I (r -THE- •JOHN FRYER^ CHINESE* LIBRAP.Y- iw of Co-operative, I 'a. bvo. id Provide! r,. „i.,*i. :^' im^mm tJ' V/ iipi Digitized by the Internet Archive in 2008 with funding from IVIicrosoft Corporation http://www.archive.org/details/commentariesuponOOphilrich INTERNATIONAL LAW. liOMBOK: PBIITTED BT 8P0TTISW00DE AND CO., NKW-STSBBT SQUABE AMD FABUAMBNT STBBBT COMMENTARIES UPON INTERNATIONAL LAW. BY SIE EOBEET PHILLIMOEE, D.C.L. MEMBER OF HER MAJESTY's MOST HONOURABLE PRIVY COUNCIL, AND JUDGE OF THE HIGH COURT OF ADMIRALTY. Ai«ca TToAicoi/ A(r(f)aAes fidOpov, ical hfio- TpoTTO? Etpa«/a, TafiCaL 'Av8pd.(Ti. ttAoutou, xpvo-eai HarSe? eipovKov ee>tTOS.' PiND. Olpmp. xiii. 7. Justice is the common concern of mankind.' — Burke, vol. v. p. 275, Thoughts on the French Revolution. Bect6 a viris doctis inter desiderata relatum est, jus Naturae et Gentium, traditum secundum disciplinam Christianorum.'— Leibnitz, xxxii. De NotionQms Juris et Justitice, p. 120. VOL. I. d&eeonti dEbition. LONDON : BUTTERWORTHS, 1 FLEET STREET, fafe f uWis^ers to i\t ^mm'% Post (gmllent Itajwtn; HODQES, FOSTER, & CO., GRAFTON STREET, DUBLIN. MAIN LIBRARY JOHN FRYER CHINESE UBRARY % • ./ PEEFACE TO THE SECOND EDITION. Erratum. P. vi. line 12, for external read eternal Phillimore's International Law. These events have not induced me to change the opinions which I had expressed in this volume as to the cardinal principles of International Law. On the contrary, I venture to think that they furnish a strong corroboration of them. The " violence, oppression, and sword-law," which at this moment prevail in part of Europe, ought not (a) The fourth volume, on Private International Law, was published in 1861. fi" "•; PEEFACE TO THE SECOND EDITION. I. The first edition of this volume, which was published in 1854, has been for some time out of print. The third volume, which closed the Commentaries on Public International Law, was published in 1857 (a). In the preface to that volume a summary of the his- torical events which in the interval of these three years (1854 to 1857) had affected International Law was given. I propose to place that summary in the present preface, adding to it a brief notice of historical events of the like character which have happened during the second interval of thirteen years (1857- 1870). These events have not induced me to change the opinions which I had expressed in this volume as to the cardinal principles of International Law. On the contrary, I venture to think that they furnish a strong corroboration of them. The '' violence, oppression, and sword-law," which at this moment prevail in part of Europe, ought not (o) The fourth volume, on Private International Law, was published in 1861. VI PREFACE. to shake conviction in the truth of these principles, while on the other hand they are confirmed by the consideration of events which, unconnected with the present war, have happened during the interval men- tioned. There always have been, and always will be, a class of persons who deride the notion of International Law, who delight in scoffing at the jurisprudence which supports it, and who hold in supreme contempt the position that a moral principle lies at its root. The proposition that, in their mutual intercourse. States are bound to recognize the external obligations of justice apart from considerations of immediate ex- pediency, they deem stupid and ridiculous pedantry. They point triumphantly to the instances in which the law has been broken (^), in which might has been substituted for right, and ask if Providence is not always on the side of the strongest battalions. But in truth these objections are as old as they are shallow ; they leave untouched the fact that there is, after all, a law to which States, in peace and war, appeal for the justification of their acts; that there are writers whose exposition of that law has been stamped as impartial and just by the great family of States, that they are only slighted by those upon whose crimes they have by anticipation passed sen- tence ; that Municipal as well as International Law is often evaded and trampled down, but exists never- theless, and that States cannot, without danger as well as disgrace, depart in practice from doctrines (b) " Sed nimirum historise non tantum qu86 juste, sed et quae inique, iracunde, impotenter facta sunt memoimt." -' Grotms, Be J. B. 1. 2 c. IVUl. 8. vu. INTERVENTION. — BALANCE OF POWER. Vll which they have professed in theory to be the guide of their relations with the commonwealth of Christendom. The axiom "populus jura naturae gentiumque ^^ violans suae quoque tranquillitatis in posterum '' rescindit munimenta " remains as true to-day as when it was written by its great author two centuries ago. The precedents of crime no more disprove the existence of International than of Civil Law (c). II. In the chapter on Intervention (c?) the doc- trine of what is known as the Balance of Power is considered. The preservation of this balance is placed under the head of Self-defence, and upon this ground the intervention of a third State, in the adjustment of the relations between other States, must be principally justified. The doctrine has of late years been attacked and ridiculed. It certainly is liable to great abuse, but fairly explained means no more than the right of timely prevention of a probable danger. As a matter of fact it has been directly recognized as a principle to be maintained by the great European Powers in recent conventions of great importance. It will be seen, to pass by other instances, that the principle occupies an important place in the Protocol of 1831, which preceded the establishment of the in- dependent kingdom of Belgium, and in the Treaty of Stockholm in 1855 {e). Whatever may be the value (c) See, also, concluding remarks of the third volume. {d) See Pt. iv. ch. i. of this volume. (e) " The Queen of England, the Emperor of the French, and the King of Sweden and Norway, being anxious to avert any complication which might disturb the existing balance of power in Europe, have resolved to come to an understanding with a view to secure the integrity of the united kingdoms of Sweden and Norway, and have named as their ▼Ill PREFACE. of this principle, so recently and so solemnly recog- nized, it has never been more rudely '^disturbed" than by the aggressions of Austria and Prussia upon Denmark in 1865, and of Prussia alone, in 1866, upon her weaker neighbours. It is indeed a melan- choly repetition of history. We see in these acts of violence the same lust for aggrandisement, the same contempt for the weakness of the State whose territory is coveted, which animated the partitioners of Po- land (/) and the rulers of Revolutionary and Im- perial France. Nevertheless, though right be thus dethroned by might for a season, justice, *'the common concern of " mankind," is the only true policy of all States, and the precedents of wrong sooner or later recoil on the wrongdoer. It is some satisfaction to an English writer that England neither directly nor indirectly gave countenance to these acts of violence. In 1864, Earl Russell expressed the opinion of the Government and people of England as follows : — " Her Majesty's Government would have preferred " a total silence instead of the task of commenting on " the conditions of peace. Challenged, however, by Plenipotentiaries to conclude a Treaty for that purpose,** &c. — Ann. Reg. 1850, p. 323. (/) " The principle of maintaining a balance of power, which for two centuries had distinguished Europe above other societies of nations, was now, for the first time, sacrificed ; three great military Powers, instead of preventing each other's aggrandisement, conspired to share the spoils of a neighbour. The feebleness and turbulence of Poland furnished them with a strong temptation and with some pretext, and the Governments of France and England, the first influenced by the weakness of the Court, and the second influenced by the division of the people, betrayed their duty to Europe, and suffered the crime to be consummated. From that moment the security of all nations was destroyed."— ijfe of Sir J. Mack- intosh, vol. ii. p. 158. INTERVENTION. — BALANCE OF POWER. ix ' M. de Bismarck's invitation to admit the moderation ' and forbearance of the great German Governments, ' Her Majesty's Government feel bound not to dis- ' guise their own sentiments upon these matters. ' Her Majesty's Government have indeed, from time ' to time, as events took place, repeatedly declared ' their opinion that the aggression of Austria and ' Prussia upon Denmark was unjust, and that the ' war, as waged by Germany against Denmark, had ' not for its groundwork either that justice or that ' necessity which are the only bases on which war ' ought to be undertaken. " Considering the war, therefore, to have been wholly ' unnecessary on the part of Germany, they deeply ' lament that the advantages acquired by successful ' hostilities should have been used by Austria and ' Prussia to dismember the Danish Monarchy, which ^ it was the object of the Treaty of 1852 to preserve entire " (g). It is worthy of consideration whether a State which can and does not intervene for the protection of another unjustly attacked does really provide for its own safety or secure that peace which it so justly prizes ; whether there are not cases in which both national honour and national interests are best con- sulted by recognizing the international obligations of succouring an oppressed member of the common- wealth of civilized States; whether the conduct of a State may not be selfish, as well as that of an indivi- dual, and be attended with the like consequences. I may apply, with a slight alteration, the language of (g) Ann. Reg. 1864, p. 237. PREFACE. our present Prime Minister as to the rights of indi- vidual men to property and religious freedom, to the aggregates of men or States, and say, " The rights of " each State are the rights of his neighbour : he that " defends one is the defender of all ; and he that "trespasses on one assails all" (A). It may safely be affirmed that in the present war (1870) France was the aggressor, that the immediate reason which she assigned for beginning it was neither true nor adequate. The choice by the Spaniards of a Hohenzollern, by whomsoever suggested, for the throne of Spain was not an act which disturbed the balance of power, and neither threatened the general liberties of Europe nor endangered the safety of France. But is it not most probable, or indeed morally certain, that if France had not refused to co- operate with England and assist Denmark in her noble war of self-defence in 1865, or had aided the minor States whom Prussia absorbed in 1866, the present war, which bids fair to be at least as disgrace- ful to Christendom as any in which Christian States have ever been engaged, would not have taken place ? Let those who deride the notion that a State has International duties weigh well the following words of M. Prevost-Paradol, uttered but two years ago : — " Le d^membrement du Danemark, tolere par " nous, malgre les ofires formelles de concours que " nous faisait alors TAngleterre pour empecher une " iniquity si dangereuse, les encouragements que la " Prusse a re9us de nous dans ses desseins declares " centre TAutriche, le secours qu'avec notre aveu. (A) Letter to the Bishop of Aberdeen in 1852, p. 14. " The rights of each many INTEEVENTION. — BALANCE OF POWER. XI " sinon par notre ordre, lui a prete I'ltalie, sont des '' faits qui n'oiit plus desormais qu'un interet histo- " rique, sur lesquels il serait sans interet de revenir, " et qu'on pent abandonner au jugement severe de " I'equitable posterite " (z). III. The evils which result from this state of things are not transient; they tend to render per- manently insecure the mutual relations of indepen- dent States. Much of the energy, freedom, and vigour which have animated, as well as the arts and sciences which have embellished and enriched Christendom may be traced to the free competition and emulation arising from the existence of States of no considerable territorial grandeur, but members of a commonwealth which proclaimed that " Russia and Geneva had " equal rights " (k). The prevailing notion, unhappily not confined to Europe, that a State must seek territorial aggrandise- ment as a condition of her welfare and security is a vulgar relapse into barbarous times, and fraught with future misery to the world (l). Hence the great evil of enormous standing armies, perpetual menaces to the liberties of mankind ; hence the miserable palliations of wrong and robbery under the specious titles of " rectification of frontiers " and the like. Hence the contempt for the feelings and wishes of the inhabitants of territories, incorporated like brute animals, by brute (m) force, into the "rectified" State. (i) La France nouvelle, par M. Prevost-Paradol, eh. iii. p. 373. {it) Pt. ii. ch. i. of this volume. (J) Mackintosh, Memoirs, vol.'ii. p. 214. (wi) " La force materielle, la force brutale, la guerre, puisqu'il faut I'appelerpar son nom." Chambre des Depute, 31 Janvier 1848. — Guizot, Hist, pari, de la France, t. v. p. 555. xn PREFACE. " D'un premier mal naitraient une foule de maux. " Reconnaissons done que Tinjustice est un mauvais '* fondement, sur lequel le monde politique ne saurait " bA-tir que pour sa ruine " (n). This mode of annihilating the liberties of free men did not, speaking only of modern times, it must be admitted, begin with these later German wars. It was the radical vice and the dissolving element of the conventions which closed the European wars against France, 1814-15. The transference of provinces and kingdoms from one potentate to another, without the consent of the transferred inhabitants, was strongly condemned at the time by the wisest statesmen and jurists of the British Parliament (o). Subsequent events have proved the wisdom as well as the justice of this con- demnation. IV. The rights of the people thus denied in Germany have been recognized in another part of the European Continent in a very remarkable manner. The kingdom of Italy, created during the interval of which we are speaking, has been founded upon the basis of consulting the will of the in- habitants ; and while these pages are being written the remaining dominions of the Pope and Eome her- self are, according to the suffrage of their inhabitants, being united to this kingdom. V. The means of ascertaining the wish of the people are open to considerable doubt and difficulty. The invention of the plebiscite is capable of being (m) MSmoire raisonnS by TaUeyrand, in 18] 4; against the dismember- ment of Saxony. (o) Ch. xiv. of this volume. INTERVENTION. — CIVIL WAR. XIU used as an engine of despotism as well as of freedom. If Italy has acquired province after province, and city after city, by this instrument, by the same she has lost and France has acquired Nice and Savoy — an acquisition from which she has derived no real bene- fit, and incurred much odium, and which she made (p) in opposition to the warning and wishes of her ally Great Britain. I may be allowed to put in contrast with this mistaken policy the cession, by England, in 1863, with the consent of the Great Powers, of the Ionian Islands to Greece — an act in which real homage was paid to the principle of consulting the wishes and feelings of the subjects of acquired territory. In a civil war (q) the stronger party will not allow the wish of the weaker party to be so ascertained, nor, if ascertained, pay attention to it, and the inter- vention of a third Power for the purpose of securing and giving effect to this expression of opinion, such as the Prince of Orange in the English, the King of France in the American, or the King of Sardinia in the Italian revolution, cannot take place without the existence of a war between this third Power and the other belligerent in the civil contest. I suppose it would not be denied that, in the recent American civil war, the Southern States would have (p) Lord Russell to Lord Cowley, July 5, 1859 : " Her Majesty's Government have learned with extreme concern that the question of annexing Savoy to France has been in agitation If Savoy should be annexed to France, it will be generally supposed that the left bank of the Rhine, and the 'natural limits,' will be the next object; and thus the Emperor will become an object of suspicion to Europe, and kindle the hostility of which his uncle was the victim." — Ann. Beg. 1860, p. 243. (q) Pt. iv. ch. i. of this volume. XIV PREFACE. separated themselves from the Northern if the ex- pression of the wishes of the inhabitants, by a vote of universal suffrage or a plebiscite^ could have enabled them to effect this disunion, even when the civil war first broke out, and the Government of Washington declared its steadfast intention of not interfering with the status of slavery in the Southern States. VI. The application of the doctrine of Interven- tion to Turkey (r) has produced events of great importance during the interval mentioned. Turkey has been formally, and in a manner to place the question beyond all doubt, admitted, by the Treaty of Paris, into the family of States which are bound, not only, as all States are, by the principles of Public International Law, but by those usages and customs which constitute what may be con- sidered the Positive Law of Christian Communities. The object of the Treaty of Paris is to secure, " through effectual and reciprocal guarantees, the '' independence and integrity of the Ottoman Em- " pire " (5). This result is the subject of a common Guarantee {t). The Plenipotentiaries declare that " the Sublime Porte is admitted to participate in the " advantages of the Public Law and system {concert) " of Europe" {u). This proposition must receive, as to Private International Law, some obvious limi- tation from the very nature of Mohammedanism: though it be true that this religion is professed by a (r) Pt. iL ch. i. of this volume. («) Preamble. (t) Article vii. («) Art. vii. of the Treaty of Paris, 30 March, 1856. INTERVENTION. — TURKEY. XV comparatively small number of the subjects of Euro- pean Turkey ; but the proposition holds good as to Public International Law ; and the fact which it affirms marks an important epoch in the History of the Progress of International Jurisprudence. For if Turkey has acquired the Eights, she has also sub- jected herself to the Duties of a civilized Community. How long this new condition of things, so utterly at variance with the former traditions and habits of Christendom, may endure, is a speculation without the province of this work. It is to be remarked, however, even in this place, that this condition is the more complicated because the same Treaty which recognizes this quasi- Christian status {x) of the Turkish Empire, contains the following most singular provision, which might almost seem intended at once to recognize and to prohibit the Right of Interven- tion by the Powers of Christendom on behalf of their co-religionists : — '' His Imperial Majesty the Sultan having, in his " constant solicitude for the welfare of his subjects, *' issued a firman which, while ameliorating their '' condition without distinction of religion or of race, '' records his generous intentions towards the Chris- " tian population of his Empire, and wishing to give " a further proof of his sentiments in that respect, '' has resolved to communicate to the Contracting '' Parties the said firman, emanating spontaneously '•'' from his Sovereign Will. " The Contracting Powers recognize the high value " of this communication. It is clearly understood (x) The Sultan has even received from the Queen of England the essentially Christian Order of the Garter. XVI PREFACE. " that it cannot, in any case, give to the said Powers " the right to interfere, either collectively or sepa- " rately, in the relations of His Majesty the Sultan " with his subjects, nor in the internal administration " of his Empire " {y). It remains to be seen whether this firman be put into bona fide execution, or whether M. Guizot be right in {z) his opinion that European intervention in Turkey is at once inevitable and of no avail. The immiscible characters of Christian and Turk are still attested by the exemption of the former from the civil and criminal jurisdiction of Turkish tribunals. The Principalities of Moldavia and Wallachia and ofServia are placed under the Suzerainete of the Porte, and the Guarantee of the Protecting Powers, but (y) Article ix. (s) " 11 y a, dans les relations de I'Europe chretienne avec I'empiro ottoman, un vice incurable : nous ne pouvons pas ne pas demander aux Turcs ce que nous leur demandons pour leurs sujets chretiens, et ils ne peuvent pas, meme quaud ils se r^signent a nous le promettre, faire ce que nous leur demandons. L'intervention europ^enne en Turquie est a la fois inevitable et vaine. Pour que les gouvemements et les peuples agissent efficacement les uns sur les autres par lea conseils, les exemples, lea rapports, et les engagements diplomatiques, il faut qu'il y ait, entre eux, un certain degr6 d'analogie et de sympathie dans les moeurs, les id^es, les sentiments, dans les grands traits et les grands courants de la civilisation et de la vie sociale. II n'y a rien de semblable entre les Chretiens europ^ens et les Turcs ; ils peuvent, par n^cessit^, par politique, vivre en paix a c6t^ les uns des autres; ils restent toujours strangers les uns aux autres ; en cessant de se combattre, ils n'en viennent pas a se comprendre. Les Turcs n'ont 6t6 en Europe que des conquerants desti'uc- teurs et st^iiles, incapables de s'assimiler les populations tomb^es sous leur joug, et 6galement incapables de se laisser p^n^trer et transformer par elles ou par leurs voisins. " Combien de temps durera encore le spectacle de cette incompatibility radicale qui ruine et d^peuple de si belles contr^es, et condamne a tant de miseres tant de millions d'hommes ? Nul ne peut le pr^voir ; mais la 8c6ne nechangera pas tant qu'elle sera occup^e par lesmemes acteurs."; — Guizotf Memoire de man Temp^j t. vi. ch. xxxvii. pp. 257-8 INTERVENTION. — GREECE. XVll without " any separate right of interfering in their " internal affairs " {a). YII. With respect to Intervention in the internal affairs of an independent State (5), Greece during the Eussian war (1856) afforded an instance in which this exceptional right, the offspring of necessity, has been exercised both by France and England, as it should seem upon two grounds: — (1) That the sending of foreign troops to Greece was necessitated by the unneutral conduct of the Government of that country towards Russia, the enemy of France and England ; (2) and also that this course was justified by the open, notorious, and admitted insecurity of life and property to French and English subjects commorant or resident in Greece. It should also be added, that Greece does not appear to have formally protested against, or seriously objected to — probably on account of the undeniable inefficiency of her own internal police — the temporary introduction of these foreign troops into her territory (c). («) Articles xxii.-xxviii. (6) Pt. ii. ch. ii. of this volume. (c) '' It cannot be denied," Count Walewski says, "that Greece is in an abnormal state. The anarchy to which that country -v^as a prej^, has compelled France and England to send troops to the Piraeus at a time when their armies, nevertheless, did not want occupation. The Congress knows in what state Greece was ; neither is it ignorant that that in which it now is, is far from being satisfactory. Would it not therefore be advantageous that the Powers represented in the Congress should manifest the wish to see the three protecting Courts take into serious consideration the deplorable situation of the kingdom which they havfj created, and devise means to make provision for it ? " Count Walewski does not doubt that the Earl of Clarendon will join with him in declaring that the two Governments await with impatience the time when they shall be at liberty to terminate an occupation to which nevertheless they are unable without the most serious incon- venience to put an end, so long as real modifications shall not be in- troduced into the state of things in Greece." — Extract from 22nd Protocol to Treaty of Paris (1856). A'OL. I. a Xviii PREFACE, VIII. The Intervention of different Foreign Powers at different periods in the affairs of Rome, on the ground of preserving the anomalous position of the Pope as a temporal prince, appears at last to be at an end. The whole question of the International position of the Pope is considered in the second volume of this work {d), IX. There is a kind of Intervention which is touched upon in this volume — though dealt with at greater length in the later volume, which relates to International Duties and Rights in time of War — {d) The following passages are to be found in the Twenty-second Protocol to the Treaty of Paris, 1856 :— " The first Plenipotentiary of France then observes that the Pontifical States are equally in an ab- normal state ; that the necessity for not leaving the country to anarchy, had decided France as well as Austria to comply with the demand of the Iloly See by causing Rome to be occupied by her troops, while the Austrian troops occupied the Legations. " He states that France had a twofold motive for complying without hesitation with the demand of the Holy See, as a Catholic Power and as an Eurof)ean Power. The title of eldest son of the Church which is the boast of the Sovereign of France makes it a duty for the Emperor to afford aid and support to the Sovereign Pontiff; the tranquillity of the Roman States and that of the whole of Italy affects too closely the maintenance of social order in Europe for France not to have an over- bearing interest in securing it by all the means in her power. But, on the other hand, it is impossible to overlook the abnormal condition of a Power which, in order to maintain itself, requires to be supported by foreign troops. " Count Walewski does not hesitate to declare, and he trusts that Count Buol will join in the declaration, that not only is France ready to withdraw her troops, but that she earnestly desires to recall them 80 soon as that can be done without inconvenience as regard the in- ternal tranquillity of the country and the authority of the Pontifical Government, in the prosperity of which the Emperor, his august Sove- reign, takes the most lively interest. " The first Plenipotentiary of France represents how desirable it is for the balance of power in Europe that the Roman Government should be consolidated in sufficient strength for the French and Austrian troops to be able, without inconvenience, to evacuate the Pontifical States."— ^w». Rey. 1860, p. 215. See also last page of this volume. INTEEVENTION. — CIVIL WAE. XIX the indirect and direct Intervention of subjects of a neutral State in a war. During the recent civil war in the United States of North America, in which England observed a strict neutrality, the principles of International Law, which England had for a long period of time upholden and enforced when belligerent, were put to a severe trial. Several grave questions of International Law were raised and discussed during this great civil war. Among them were thefollowing : — (1.) The Eecog- NiTiON of revolted States as de facto Governments by a" neutral Power. All the neutral States recognized the Southern Confederacy as a de facto Government, so far as belligerent rights and neutral obligations were concerned. But they did not accredit diplo- matic agents to this de facto Government. It would have been perfectly competent to them to have done so without any breach of neutral duty (^), and indeed if any precedent for such a step had been wanting, it would have been found in the conduct of the United States, who had always exercised their right, both of recognizing without delay as de facto Governments the Colonies in America which had revolted from European kingdoms, and of sending diplomatic re- presentatives to them. President Grant, in his mes- (e) More especially as the greatest conflict of opinion prevailed iimongst the highest American authorities on the vital point of the liberty of a State to separate herself from the Union. 1860. President Buchanan asserts that Congress has no power to coerce a State which wishes to withdraw from the Union. — Ann. Reg. p. 283. 1865. President Johnson : " It is not one of the rights of any State Government to renounce its own place in the Union." — Ann. Reg. p. 203. 1867. President Johnson : " Candour compels me to declare, there is no Union as our fathers understood the term." — Ann. Reg. p. 21)1. a 2 ZZ PREFACE. sage to Congress, 1869, said : " The people and Go- " vernment of the United States entertain the same " warm feelings and sympathies for the people of " Cuba, in their pending struggle, that they mani- " fested throughout the previous struggles between " Spain and her former colonies in behalf of the " latter. But the contest has at no time assumed *' the conditions which amount to a war in the sense " of International Law, or which would show the " existence of a de facto political organization of " the insurgents, sufficient to justify a recognition of " belligerency. " The principle is maintained, however, that this " nation is its own judge when to accord the rights " of belligerency, either to a people struggling to " free themselves from a Government they believe to " be oppressive, or to independent nations at war *' with each other" (/). (2.) The Inviolability of an Envoy on board a neutral ship on the high seas {g). This is a subject which, whatever doubt might once have existed re- specting it, must now be considered as settled in the affirmative by the consent of all civilized nations. (3.) As to Blockade and Contraband, the rights of the belligerent and the obligations of a neutral with respect to them were fully enforced, though the blockade was on a most gigantic scale, pressed most severely upon neutral commerce, and inflicted especial distress upon the manufacturing populati-on of Eng- land. X. (4.) There remains one question of the (/) Ann. Beg. 1869, pp. 305, 306. Q/) See vol. ii. pt. vi. ch. ii. as to Ambassadors generally. INTERVENTION. FOREIGN ENLISTMENT. XXI gravest importance, namely, tlie REsroNSiBiLiTY or a State for (h) the Acts of iier Citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belli- 2:erent, thous^h such armaments were furnished and ships were equipped, built, and sent without the know- ledge, and contrary to the orders, of her Government. The question to what extent the State is respon- sible for the private acts of its subjects (civitasne deliquerit an elves'^) is one of the most important and interesting parts of the law which governs the relations of independent States. The subject is dis- cussed in these volumes, but the following proposi- tions may be recapitulated here. It is a maxim of general law, that so far as foreign States are concerned, the will of the subject must be considered as bound up in that of his Sovereign. It is also a maxim that each State has a right to expect from another the observance of international obligations, without regard to what may be the muni- cipal means which it possesses for enforcing this ob- servance. The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the Government of which they are subjects. A Government may by knowledge and sufferance^ as well as by direct permission^ become responsible for the acts of subjects whom it does not prevent from the commission of an injury to a foreign State. A Government is presumed to be able to restrain the subject within its territory from contravening Qi) Pt. iv. ch. i. of this volume. Xxii PREFACE. the obligations of neutrality to which the State is bound. The prmcipal matters which have at various times and in various forms given rise to complaints on the j)art of belligerents with respect to the conduct of the neutral States are (I pass over, in this brief notice, tlie question as to loans of money) : — (1.) The furnishing from a neutral territory arms, ammunition, and the various articles which are, ac- cording to the circumstances, to be considered as contraband. (2.) The enlistment of soldiers or sailors in a neutral territory to be employed in the service of a belligerent. (3.) The furnishing ships of war to a belligerent. It is im}X)rtant to remember, in the consideration of these matters, not only what the reason of the thing might suggest, but what the usage of States has sanctioned. Having regard to the reason of the thing, it may seem very difficult to draw any distinction between the duty of a neutral Government with respect to the enlistment within the territory of military forces on behalf of a belligerent, and the permission to supply within tlie territory munitions of war to a belligerent. To furnish cannon may be often as great an assist- ance as to furnish men to the belligerent. " Yerum *' est dictum," says Grotius, " in hostium esse partibus '•qui ad helium necessaria hosti administrat:" and in the Mimoire justificatif (^) it will be seen that (0 Mh}ioire jmtificatif pour servir de reponse a Vexpose des motifs de la cotidnUe du roi de France relativemmt a VAngleterre {Miscellaneous Works of Edward Gibbon, ed. 1854, vol. v. p. 1), written by Gibbon, by desire of INTERVENTION. — FOREIGN ENLISTMENT. XXlll England then considered that the permission accorded by the French Government for the export of muni- tions of war from French ports to the revolted American colonies {la licence effrenee d'un commerce ilUgitime) was alleged as one justifying cause of the war which England had then declared against France. France and some other States have provided {j)^ by their municipal or constitutional law, that no muni- tions of war shall be fabricated without the " autori- " sation " of the Minister of War, and that their exportation may be forbidden generally, or for a particular period or destination. But with respect to the established modern usage of nations, undoubtedly a clear and decided practical distinction between these things is very generally, though not universally, made, and thus while foreign enlistment is strenuously prohibited as inconsistent with neutrality by the United States, the sale of con- traband goods at home, and the carriage of them subject to the liability of seizure, are as strenuously insisted upon as being consistent with neutrality. " There is nothing" (says the high authority of Mr. Justice Story), " in our laws, or in the laws of " nations, that forbids our citizens from sending " armed vessels, as well as munitions of war, to " foreign ports for sale. It is a commercial adven- '' ture which no nation is bound to prohibit, and " which only exposes the persons engaged in it to " the penalty of confiscation" (k). England, how- Lord Chancellor Thurlow, and Lord Weymouth, Secretary of State in 1778. Ih. vol. i. p. 234. (j) See pt. iv. ch. i. of this volume. (Ji) TJie Santissima Trinidad, Whcatons Rep. vii. p. 340. XXIV PREFACE. ever, is by her existing law enabled to prevent the exportation of munitions of war and provisions (l), J>ut the enforcement of this law has always been con- sidered a question of domestic policy. It forms a portion of her Custom House statute; and corresponds with a similar clause enabling the Crown to restrict the importation of the same articles. During the last war with Eussia, Her Majesty, bemg a belligerent, issued a proclamation, prohibit- ing the exportation of munitions of war, under the authority of this statute. This statute was not put in force during the late American civil war, nor during the subsequent war between Spain and Chili, nor the present war between France and Prussia. The Crown has generally been content to issue a ])roclamation announcing its neutrality, calling upon all subjects to abstain from affording aid to any belli- gerent, and warning them that if they carry contra- band or break blockade, they will receive no pro- tection. Tliis appears to be the course pursued by France, Sweden, Spain, and Prussia. The latter State did not exert any authority to prevent her subjects from dealing in contraband during the Crimean war, in which she was neutral ; but is known to have liberally supplied belligerent Kussia with ammunition and arms. Indeed, Prussia has gone farther than most States in not restraining commerce in this matter, having a Treaty with the United States of America, which provides that in the case of one of the contracting parties being engaged in war with any other Power, no arms. (Z) See the section at length, Appendix \ii., p. 562. INTERVENTION. — FOREIGN ENLISTMENT. XXV ammunition, or military stores of any kind carried by the other party shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals (m), though liable to de- tention or " reasonable compensation " to the owners. (m) Treaty of Amity and Commerce between the King of Prussia and the United States of America, signed at Berlin, July 11, 1799 (see Ann, Beg. 1800, p. 290) :— " AH. 12. Experience having proved, that the principle adopted in the twelfth article of the Treaty of 1785, according to which free ships make free goods, has not been sufficiently respected during the two last wars, and especially in that which still continues, 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 sucb 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, in which the other should remain neutral, the ships of war and pri- vateers of the belligerent Power shall conduct themselves towards the merchant- vessels of the neutral Power as favourably as the course of the war then existing may permit, observing the principles and rules of the law of nations, generally acknowledged. " Art. 18. And in the same case of one of the contracting parties being engaged in war with any other Power, to prevent aU the difficulties and misunderstandings that usually arise respecting merchandise and contra- band, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to indi- viduals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such, length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding, paying, however, a reasonable compen- sation for the loss such arrest shall occasion to the proprietors ; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in a case supposed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contraband nature, he shall be admitted to do it, and the vessel shall not, in that case, be carried into any port, nor farther de- tained, but shall be allowed to proceed on her voyage. " \\\ cannons, mortars, fire-arms, pistols, bombs, grenades, bullets, balls, muskets, flints, matches, powder, saltpetre, sulphur, cuirasses, pikes, swords, beltt3, cartouch-boxca, eaddlea (!), and bridle^ (! !), beyond the XXVI PEEFACE. With respect to the furnishing ships of war to a belligerent, as with respect to the supplies of ammunition, there have been before and since the time of Grotius two schools of opinion : " Nam et " olim," he says, "et nuper de ea re acriter certatum " sciraus, cum alii belli rigorem, alii commerciorum " libertatem defenderent" (n). According to the exposition of International Law on this subject by the United States, bona fide com- mercial dealings in contraband {o) of war are not re - stramed, and an American subject may build and arm a vessel and supply her with stores, and, Mr. Dana says, " may without violating our law send out " such a vessel, so equipped, under the flag and " papers of his own country, with no more force of " crew than is suitable for navigation, with no right *' to resist search or seizure, and to take the chances " of capture as contraband merchandise, of blockade, " and of a market in a belligerent port. In such " case the extent and character of the equipments is " as immaterial as in the other class of cases. The " mtent is all. The act is open to great suspicion ** and abuse, and the line may often be scarcely " traceable ; yet the principle is clear enough. Is *' the intent one to prepare an article of contraband qitantitij necessary for the use of the ship, or beyond that which every man serving on board the vessel, or passenger, ought to have ,• and in general whatever is comprised under the denomination of arms and military stores of what description soever, shall be deemed objects of contraband." By a Treaty of Commerce, May 1, 1828, between the same States, these pro- visions, with regard to the carriage of contraband, were carefully revised and re-inserted in that Treaty (Art. XUX— Mat-tens, Nouv. Bee. ck Trails, xv. p. 615. (w) De J. B. et P. 1. 8, c. I § v. (o) See vol. iii. pt. x. ch. i. INTERVENTION. — FOREIGN ENLISTMENT. XXVll " merchandise, to be sent to the market of a belli- " gerent, subject to the chances of capture and of '' the market ? Or, on the other hand, is it to fit out " a vessel which shall leave our port to cruize, im- '' mediately or ultimately, against the commerce of a " friendly nation ? The latter we are bound to pre- " vent. The former the belligerent is bound to " prevent " {p). XI. The question whether the powers given by the statute 59 Geo. III., c. 69 (July 3, 1819), to our Government, and by that of the preceding but almost contemporaneous statute of Congress (April 20, 1818) to the Government of the United States, are in excess or are in fulfilment of the International obligations of the neutral, receives a dififerent so- lution from two schools of opinion as distinct upon this point of which I have spoken as upon that of contraband. If the former school was correct in its opinion, then the English Government was already more than sufficiently armed with authority for the discharge of the International duty incident to a neutral. If the latter school was correct in its opinion, then there was, to say the least, a doubt whether the statute, as at present interpreted by English judges, did confer on our Government the requisite authority {q). In considering this subject it is to be remembered that International Law is not stationary, and that precedents of history, taken from a period when the mutual relations of States were less clearly defined (p) Wheaton's International Laiu, ed. Dana, pt. iv. p. 503, end of note 215. iq) See Meport of Neutrality Latvs Commission, 1808. XXVm PREFACE. than at present, cannot be considered as decisive on the point at issue. Precedents may be found in the time of Queen Elizabeth, and later, in which large bodies of English subjects were enlisted under the authority of the Government in this country, and, dis- ])laying the English or Scotch standard, took a part in the civil war of a foreign State without open war being declared between that foreign State and England. But for more than a century, at least, such a state of things has been considered as incon- sistent with the duties of a neutral State. And although the only alteration suggested by the United States has been in favour of a relaxation of the stringency of the provision of their Municipal Act (r), I rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive and given greater force and prominence to the maxim, that with respect to the external rela- tions of the State, the will of the subject is bound up in that of his Government. At all events, those who are interested in the pro- gress of International justice may look with satisfac- tion upon the general state of feeling and usage throughout the civilized world upon the much-vexed question of Foreign Enlistment. There is no Inter- national subject perhaps in which, during the last thirty years, so decided an improvement has taken place. The axiom that to enlist foreign subjects without the consent of their Governments is a grave (r) In 1866 this Neutrality Bill provided that " the neutrality laws shall not be so construed as to prohibit the sale of vessels, ships, or steamers, or materials, or munitions of war, the growth or product of this countiy, to tlie Government or citizens of any country not at war with the United States." — Ann. Eey, 1866, p. 277. INTERVENTION.— FOREIGN ENLISTMENT. — SHIPS. XXIX breach of the Eight of States, is now, it may be reasonably hoped, firmly incorporated into the code of International Law (s). The dispute which unhappily arose between Eng- land and the United States, in consequence of the escape of the ship Alabama from British territory and her subsequent employment as a ship of war by the Southern Confederates, is, I deeply regret to say, still open (t). I will only say in this place that no English jurist could object to have that dispute decided upon the principles of law laid down — harmoniously, I think, on the whole — by the tribunals of the United States and England, and by reference to the public Acts and documents of both countries. It is a satisfactory reflection that the general recognition of the established rules of International Law, by neutrals as well as belligerents, during this civil war prevented the extension of the calamity to other States. In 1863, President Lincoln said: " We " remain in peace and friendship with foreign Powers. " The efforts of disloyal citizens of the United States " to involve us in foreign wars to aid an inexcusable " insurrection have been unavailing. Her Britannic " Majesty's Government, as was justly expected, " have exercised their authority to prevent the '' departure of new hostile expeditions from British " ports. The Emperor of France has, by a like pro- (s) The two English and American statutes, and the judgment of the Privy Council on the former of the English statutes, are printed in the Appendix to this volume. (f) See despatch of Mr. Fish, and the answer of Earl Clarendon, Ann. Eeg. 1869, p. 295. XXX PREFACE. '* ceeding, promptly vindicated the neutrality which " he pix)claimed at the beginning of the contest. *^ Questions of great intricacy and importance have " arisen out of the blockade and other belligerent " operations, between the Government and several of " the maritime Powers, but they have been discussed, " and as far as was possible accommodated, in a spirit " of frankness, justice, and natural good- will. It is " especially gratifying that our prize courts, by the *' impartiality of their adjudication, have commanded " the respect and confidence of maritime Powers " (u). In 1862, President Lincoln, in his message to Congress, observed : — " The Treaty with Great " Britain for the suppression of the African slave " trade has been put into operation with a good " prospect of complete success. It is an occasion of " special pleasure to acknowledge that the execution " of it on the part of Her Majesty's Government has '' been marked by a jealous respect for the authority " of the United States and the rights of their moral " and loyal citizens " (a;). XII. The Black Sea has been neutralized ; its waters and its ports are opened (y) to the mercantile marine of every nation, but are formally and in perpetuity interdicted to the flag of war, either of the Powers possessing its coasts, or of any other Power (z). Russia and Turkey are allowed to keep light vessels for the service of the coasts, and each of the contracting Powers has the right to station at (m) Ann. Beg. 1863, p. 335. {x) Ann. Reg. 1862, p. 239. (y) Pt. iii. ch. viii. of this volume. (2) Article XL of the Treaty of Paris, 1856. INTERVENTION. — FOREIGN ENLISTMENT. XXXI all times two light vessels at the mouth of the Danube (a). XIII. The temporary opening of the great River St. Lawrence (h) appeared to have justified the opinion expressed in the former edition of this volume, respecting the expediency of allowing to the whole world the benefit of this great channel of traffic. By Art. lY. of the Treaty between England and the United States, signed at Washington (June 5, 1854), "It is agreed that the citizens and inhabitants of " the United States shall have the right to navigate " the Kiver 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 Britannic 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, however, that the " British Government retains the right of suspending " this privilege on giving due notice thereof to the " Government of the United States." By Article V. it was provided that " 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." While this right to navigate the St. Lawrence was (a) Articles XIV., XIX. (&) Pt. iii. ch. V. of this volume. XXxii PREFACE. granted to citizens of the United States, British subjects had a corresponding right to navigate Lake Michigan. England might suspend the right granted to the United States upon notice, in which event she lost her right to navigate Lake Michigan, and the United States might further suspend the operation, so far as Canada was affected thereby, of Article IIL of the Treaty, admitting certain articles the growth and produce of British provinces into the United States duty free. It is much to be regretted that this Reciprocity Treaty was terminated, after ten 3'ears, by a notice given by the President, in pursu- ance of a resolution of Congress of January 18, 1865 (c). The difficulties (d) arising out of the Clayton-Bulwer Treaty and the relations of England to the Bay Islands and the territory of the Mosquito Indians and the Republics of Nicaragua and Costa Rica, have been happily removed. By the Protocol of October 9, 1868, the thorny question of Natural- ization has been happily settled between England and the United States. XIV. The free navigation of the Danube^ secured by the recent Treaty of Paris {e)^ places this magni- ficent stream under the same Public Law of Europe to which other European rivers flowing through the territories of different States have been subjected by the Treaty of Vienna (/). The doctrine of Guarantee {g) has received addi- (c) Dana's Wheaton, notes 110 and 118, pp. 262, 287. (d) Pt. iii. c. ix. of this volume. See, too, President Grant's message to Congress, Ann. Reg. 18G9, p. 307. (e) Articles XV., XIX. (/) Vt. iii. ch. V. (//) Pt. iv. ch. i. of this volume. SLAVE TRADE. XXXlll tional recognition and confirmation from the practice of the European States. The case of Turkey has been already mentioned. The liberties of that important member of the Scan- dinavian Society of States, Sweden, were formally guaranteed by England and France during the recent war with Russia. The succession to the throne of Denmark has also become the subject of European guarantee^ and the independence of Belgium guaran- teed at the time of her constitution as a separate State has been sustained by Treaties between Eng- land and Prussia, and England and France, during the present war. XY. The important International questions re- lative to the Sound Dues levied by Denmark were finally adjusted in 1857 (A). With respect to Slavery (z), it is too much to say that the terrible and desolating civil war in the United States is not to be regretted, if the abolition of domestic Slavery could not otherwise be obtained, but it is impossible to estimate too highly the boon to mankind which this unintended {k) fruit of the great internal contest produced. It tends, I hope, to strengthen the opinion which, in spite of high autho- (h) Pt. iii. ch. vii. of this Yolume. (i) Pt. iii. cli. xvii. ih. (k) 1859. President Buchanan congratulates Congress that the Su- preme Court has decided that a man may take his slave as his property into the common territory. — Ann. Reg. p. 270. 1860. Northern States have no more right to interfere with the institution of slavery in the Southern States, than with similar institutions in Russia or Brazil. — Ann. Beg. p. 277. 1861. President liincoln : *' I have no purpose, directly or indirectly, to interfere with the institution of slavery in the State where it exists." 1862. All slaves declared free. — Ann. Reg. p. 242, and Ann. Reg. for 1863, p. 303. ' VOL. I. b XXxiv PREFACE. rity to the contrary, I ventured to state (Z), that, in the language of Grotius, "placuit gentibus " that tliis crime against the human race shall no longer be sheltered by International Law. " For myself," (said President Lincoln in 1864), " I have no doubt " of the power and duty of the Executive, under the " law of nations, to exclude enemies of the human race " from an asylum in the United States. If Con- " gress should think that proceedings in such cases " lack the authority of law, or ought to be further " regulated by it, I recommend that provision be " made for effectually preventing foreign slave-traders " from acquiring domicile and facilities for their " criminal occupation in our country" (m). The same President had observed in his annual Address for 1863 : " The supplemental Treaty be- " tween the United States and Great Britain for the " suppression of African slave trade, made on the *' 17 th day of February last, has been duly ratified " and carried into execution. It is believed that, so " far as American ports and American citizens are " concerned, that inhuman and odious traffic has been " brought to an end" {n). XVI. The causes of the War between England and China in 1856 underwent a full and elaborate dis- cussion in both Houses of Parliament. The House of Lords approved, the House of Commons condemned, the war. The portions of this memorable debate which will chiefly interest the International Lawyer are those which relate to the criteria by which the (J) Chapter xvii. (»i) Ann. Reg. 1864, p. 289. (w) lb. 1863, p. 335. CHINA. OUDE. JAPAN. XXXV national character of a merchant vessel is to be ascer- tained, and to the distinction between Reprisals and War. XYII. The Annexation of the Kingdom of Oude to the British dominions depends for its justification upon the right application of the doctrines laid down in this volume respecting the Eights of Acquisition {o) and of Intervention (p), partly also on the Law of Treaties discussed in the second volume {q). XVIII. The Convention (proposed 14th of October, 1854, confirmed 18th of October, 1855) of Nagaski, between England and Japan, is not an unimportant extension of International relations to a part of the globe from which they have been hitherto practically excluded. By that Convention, certain ports are opened for certain purposes to British ships, and the jurisdiction of British authorities over British subjects in Japanese ports is retained : and ships of war^ in the necessary performance of their duties, have a general right to enter all the ports of Japan ; but, unless compelled by necessity, they, like the merchant ships, are confined to certain ports named in the Con- vention (r). XIX. The Conduct, and still more the Conclu- sion, of the last war with Russia must always be memorable to the historian or the writer on Inter- national Law. (o) Pt. iii. ch. xii. (p) Pt. iv. ch. i. (g-) See remarks as to International Law between Christian and Heathen civilized States, pp. 22-6. The instrument of Annexation is printed in the Appendix. (r) Correspondence respecting the late negotiations with Japan, laid before Parliament, 1856. b2 XXXVl PREFACE. In the former^ Great Britain waived (s\ in the latter she abandoned, one of the most certain and highly valued Belligerent Rights, namely, the right of confiscating enemies' goods found on board neutral vessels (/). The mode of abandoning this right was little less remarkable than the abandonment itself. The aban- donment of that Right was not formally incorporated in the provisions of a Treaty, but was stated in a Declaration accompanying the Treaty^ with the ob- jects of which, however, it had no natural connection. This anomalous Declaration, whatever may be its binding effect, was signed by most of the European States, but not by the State the most interested, and, next to Great Britain, the best acquainted with the subject — the United States of North America. On the contrary, but a few months afterwards {u) this State formally declined — as it was perfectly com- petent to her to do — to sanction the general principle of abandoning Privateering^ — that is, of carrying on war by the aid of the individual exertions of the Subject as well as of the Government, — unless, indeed, the same Powers would agree to a Treaty securing the free navigation of the sea to all merchant vessels whatsoever. This is not the place in which the expediency of the abandonment of this great maritime Right of the Belligerent can be fully discussed ; but it may be observed, that a defence which has been put forth, namely, that nations are defeated by fleets and armies. («) Vol. iii. pt. ix. ch. x. (0 Ihtd, (m) August 1856. enemies' goods. — NEUTRAL SHIPS. XXXVii and not by attacks upon their commerce, does not appear to be either very well founded in history or well supported by reason. It is obvious that the food and the means which procure the food of your enemy are as valuable to him, to say the least, as his weapons or his ships. It is no less obvious that wars are always shortened, and frequently ended, by the privations of the Subjects of the Belligerent, whether by interruption of com- merce, or by the blockade, or the siege. These pri- vations of the Subjects, the inquiries which they sharpen, and the demands which they beget, are the natural correctives of the ambition and passion of Rulers. It is, moreover, surely plain, that the Neutral who is the carrier of the commerce of the Belligerent, enables him to convert his commercial into his mili- tary marine, and greatly to increase and strengthen the latter. Nor is it a light objection that a state of things is produced, in which the Governments of States are at war while their Subjects are at peace. Lately, indeed, it has been suggested, that the commerce of Bellige- rents should continue to be carried on in War as in Peace ; that being the condition on which the United States of North America offer to abandon the right of Privateering, Let it, however, be remembered, that to redress a present injury, to take security against a future transgression, are the only legitimate causes of war ; and that in such cases, '' toto certatum " est corpore regni." The continuance of commercial intercourse between the subjects of the offended and the offending nation is, as a matter of Public Law, XXXVUl PREFACE. utterly destructive of the first notion of allegiance on the part of subjects to their respective sovereigns : and as a matter of International Law, the proposition that the will of the subject is, so far as other States are concerned, bound up in the will of his Govern- ment, is a proposition of the most vital importance to the due administration of International Law, and to the peace of the world. After all, it remains a very serious question whether the tendency of these ex- emptions is not to prolong hostilities, to protract the horrors of war : are they not, in truth, devices for making war perpetual rather than real mitigations of its attendant calamities ? " If we were to go to war with the United States " of North America it would not much matter, we " could carry on our trade all the same,'^ was the language of a merchant to the author when this fun- damental change in the principles of Public and In- ternational Law was proposed. Such a remark bore true testimony to the fact that, by this fundamental change, one great check imposed upon the hasty beginning of this terrible scourge is removed; and the same observation applies, with at least equal force, to its continuance. How many wars have been, in fact, ended by the sufferings which their duration inflicted upon the subjects of the Belhgerents ? or rather, who, looking back into history, can fix a probable period of termination to many wars kindled by the passions of Nations or of their Governors, if the commerce of the Belligerents had remained unaffected ? or if the famous, but perhaps legendary, precedent of the two Dutch admirals — ^who, com- manding antagonistic fleets, sold powder to each other, WRITERS ON INTERNATIONAL LAW. XXXIX and, commercially, contributed to their own destruc- tion — had been generally followed ? XX. In the performance of a melancholy duty, I am obhged to close this chronicle of events by the admission that the suggestion contained in the last Protocol to the Treaty of Paris, 1856, that Christian States should not go to war without previously at- tempting to adjust their dispute by arbitration, has remained a dead letter, except perhaps in the case of Luxemburg. Neither of the Belligerents, in the present horrible war, would listen to the suggestion of such an arbitration. XXI. The writer of these pages is anxious to acknowledge the service which he has derived from the works of his own countrymen and from those of the United States of North America and the Continent of Europe in the compilation of this volume. To the works of Ward, of Manning, of Wheaton, and Story, he is under great obligations. To various writers on the European Continent, and especially to the learned Pfeiffer, his acknowledgments are also due. He also desires to draw attention to the Spanish works of Abreu and Pando, particularly of the latter. '' Die Geschichte und Literatur der " Staatswissenschaften," by R. von Mohl, Erlangen, 1855; an excellent essay by Mr. Hurd, an American jurist, on " Topics of Jurisprudence connected with " Conditions of Freedom and Bondage f a sketch by M. van Hogendorp, a Dutch jurist, of the Dutch School of Jurisprudence founded by Grotius ; some pamphlets on Maritime International Law by Pro- fessor Wlirm of Hamburg ; " Fiinf Briefe liber die " Fluss-SchilFfahrt " u. s. w., Leipzig, 1858 ; new xl PREFACE. editions of Wheaton*s "Elements of Interaational " Law," by Mr. Lawrence and Mr. Dana^ with ample notes ; a new edition by M. Demangeat of the " Droit " international priv(^," byM. Faalix; Mancini, "Delia " Nazionalita," Torino, 1851; " The Law of Nations," by Dr. Twiss, 1863; an "Historical Account of the " Neutrality of Great Britain during the American " Cvil War," by M. Bernard, Chichele Professor of International Law at Oxford, 1870, a work worthy of its very learned and accomplished author, — must be hailed as accessions to the library of the International Jurist. DEDICATION OF FIRST EDITION. TO CHAELES JOHN VISCOUNT CANNING IN AFFECTIONATE AND IN SINCERE VENERATION FOR THE ILLUSTRIOUS NAME WHICH HE WORTHILY BEARS, THESE PAGES ARE INSCRIBED. PEEFACE TO THE FIRST EDITION. The necessity of mutual intercourse is laid in the nature of States, as it is of Individuals, by God, who willed the State and created the Individual. The intercourse of Nations, therefore, gives rise to Inter- national Eights and Duties, and these require an International Law for their regulation and their enforcement. That law is not enacted by the will of any common Superior upon earth, but it is enacted by the will of God ; and it is expressed in the consent, tacit or declared, of Independent Nations (a). The law which governs the external affairs equally with that which governs the internal affairs of States, receives accession from custom and usage, binding the subjects of them as to things which, previous to the introduction of such custom and usage, might have been in their nature indifferent (b). Custom and usage, moreover, outwardly express («) G7-ot. Proleg. ss. 19-25. "Omni autem in re consensio omnium gentium lex naturae putanda est : " Cic. Tusc. \. 13. (h) " Omne jus nut necessitas lecit^ aut consensus constituit, aut for- mavit consuetudo." — Big. de Leg. 40. xHv PREFACE the consent of nations to things which are naturally^ that is by tlie law of God, binding upon them. But it is to be remembered that in this latter case, usage is the effect and not the cause of the Law (c). International Jurisprudence has received since the civilization of mankind, and especially since the introduction of Christianity, continual culture and improvement ; and it has slowly acquired, in great measure and on many subjects, the certainty and precision of positive law. There can be few nobler objects of contemplation and study than to trace the gradual progress of this jurisprudence — the steps by which it has arisen from a few simple rules of natural law transferred from individuals to States, to the goodly and elaborate fabric which it now presents. The history of this progress has been written by Ompteda, Miruss, and Wheaton {d) in a manner which leaves the German, the English, and the French readers but little to de- sire. The subject receives some further notice in the body of this work, but the space within which this preface is necessarily confined, does not allow me to enter into details, which have received a very able ex- position from the authors to whom I have referred ; and I must content myself with inviting the attention of my readers to the principal epochs of this inter- esting and instructive portion of the moral and intellectual history of mankind. I propose to cast a very rapid glance over the (c) " Veruntamen hie etiam usus est effectus juris, non ipsum jus, quia hoc jus non ex usu, sed usus ex jure est." — Suarez, Be Lege a terra et TiaturaJi, ac Jure Gentium, 1. i. c. xix. 8. Cic. de Off. 1. 3, 5. {d) By this author, both in English and French. TO THE FIRST EDITION. xlv principal Jurists, whose labours have contributed to raise the edifice of International Law, and to conclude this preface with some observations on a subject, not altogether, it may be hoped, devoid of interest to all students of jurisprudence and history, but certainly not unworthy the attention of English readers — namely, the growth and cultivation of the science of International Law in this country. BEFORE THE CHRISTIAN ^RA. It is hardly necessary to say, that the peculiar dis- pensation under which the Jewish nation was placed, and the rigidly prescribed mode of their dealings with foreign nations, render vain any attempt to trace in the history of that people the vestiges of International Jurisprudence (e). The Egyptians held the persons of ambassadors sacred upon strictly religious grounds, and it appears to have been not unreasonably supposed that the Egyptian priests compiled a written jus feciale^ which Pythagoras transplanted into Greece. Neither the source nor the nature of International Law can be said to have been unknown to the Greeks. It was indeed a maxim of their wisest statesmen (/) that no State could subsist without acknowledging the rights of its neighbours, and the remarkable in- stitution of the Amphictyonic League approached to the reality of an international tribunal, so far as the (e) Michaelis, Mosaisches Recht, Th. ii. Israelitisches Staatsrecht. See the treatment of David's ambassador "by the King of the Ammon- ites. — 2 Smmiel, c. x. (/) WacJismuth, Jus Gentium quale ohtinuit ajjud Grcscos (Berol. 1822). Vide post, pt. i. ch. ii. xlvi PREFACE great republic of the different States of Greece was concerned ; but the stranger with whom there was no alliance was an enemy, and all Treaties of peace, like those formerly made between the Turks and Euro- pi»ans, were for a limited period. The Collegium and the Jus Feciale of the Romans are the most remarkable instances of regard for In- ternational justice ever exhibited by any nation, and the wonder is increased by the reflection, that this Collegium was the institution of a nascent State, which, in its very infancy, laid down the observance of right towards other nations, as a cardinal principle of its public policy. — The institution of the recuperatores also bears testimony to the same political integrity ; how much, indeed, the practice of Rome in her ma- turity and decline was at variance with that principle of her early days, is well known. But making, as history compels us to do, this ad- mission, it must be remembered that if the Jus inter Gentes (^), strictly speaking, was violated by the practice of conquering Rome, yet the Jus Gentium was in reality established by her compilation of Ju- risprudence ; for in this stood transcribed eternally, if the word were applicable to a mortal work, those maxims of written Reason, those principles of Natural Law, which not only guide a State in its conduct towards Individual Foreigners, and are the root of Comity^ or Private International Law^ but which guide a State in its conduct towards other States, and {g) The expression of Lucan as to the violation of the Laws of Embassy by the Egyptians is very remarkable ; I do not remember to have seen it noticed : " Sed neque^ws mundi valuit, neque foedera sancta Gentibus."— PAar.-a/. x. 471-2. TO THE FIRST EDITION. xlvii which constitute the most considerable foundation of PubHc International Justice. THE CHRISTIAN ^RA BEFORE GROTIUS. We enter next upon the Christian aera. Great and inestimable has been the effect of the doctrines of Revelation upon the Jurisprudence of Nations, though long retarded by the evil passions both of mankind generally and of the governors of men ; yet the language, and the teaching, the system of a represen- tation of different nations, the very forms of the assembling of the Councils of the Church, the notion of a common International Tribunal, the authority of the Pope during ages steeped in intellectual ignorance and moral grossness, contributed to preserve some idea of the Duties and Rights of Nations. During the earlier part of the Middle Ages the Pope discharged the functions of International Judge and Arbitrator in the conventions of Christendom. The practice might have been imperfect, but the theory was sublime. The Right of the Pope to dis- charge these noble functions was almost unques- tioned before the time of Boniface VIII., a.d. 1302. A great change was effected by the introduction and prevalence of the doctrine, that a distinction was to be taken between temporal subjection ratione feudi^ SLud subjection in temporal matters ratione peccati (h). In Ecclesiastical Law the distinction was of little avail, and easily evaded, for in the Middle Ages the acts of an absolute irresponsible prince were easily brought within the category of sin (ratione peccati). (h) De Marca, De Concord. Sacerd. et Imper. iv. c. xvi. 5. xlviii PREFACE But in International Law, the distinction was of the utmost importance, for it was now competent to Princes to tell their subjects, that there were cir- cumstances under which the Papal Interdict was unlawful, and therefore invalid. The Pope lost his character of International Judge, and retained but for a season, and with difficulty, the character of International Arbitrator. That, too, had disappeared before the epoch of the Reformation, though up to that period all the foreign or international affairs of a State were considered and treated as matters apper- taining solely to the prince, and with which the people had no concern. It must be remembered that, even in the year 1493, Ferdinand and Isabella were confirmed in their possessions and discoveries in the New World by the Bull of the Pope, issued, as former Bulls had been, in virtue of his general territorial supremacy over the whole world; and that as late as the year 1701 the Pope complained, in his Consistory, that Austria had recognized the Ruler of Prussia under his new title of King^ " not considering that it was the ex- " elusive privilege of the Holy See to make kings " (z). The Crusades introduced the principle of Interven- tion, both upon the general ground of religious sym- pathy, and upon the particular ground of reverence for those holy places which had been the scenes of our Lord's life and death — principles which, after the lapse of five centuries, are, while I write these pages, again most powerfiilly affecting the destinies of Europe. Though the Greek Empire, for many cen- (t) Laviherty, Memoires, t. i, 3o3, cited Gunther, ii. 445. TO THE FIKST EDITION. xlix turies before its destruction, occupied no position which affects the history of International Jurispru- dence, yet the conquest of Constantinople by the Turks operated very injuriously upon the jus com- mune of Christendom ; because thereby an important portion of Christendom has been, up to a very recent period, exempted from its influence. Events, how- ever, which are now happening, the great internal changes in the habits and laws of that extraordinary people, and their increasing connection with the Christian States, are evidently preparing the way for a general diffusion of International justice among nations of different religious creeds. During the Middle Ages, the most remarkable features of Inter- national Jurisprudence are the maritime codes of commercial towns, the institution of the Consulate, the laws and customs of Embassies. MRK OF GROTIUS. It is strange that the admirable and luminous treatise of Suarez (A;), De Legibus et Deo Legislatore^ is not referred to by Grotius in his great work, be- cause it appears from his other writings that he was acquainted (as indeed he could not but have been) with the works of this profound j urist. Suarez cer- tainly cannot be claimed as a fruit of the Reforma- tion, but at that epoch, from whatever cause, a new a3ra of International Jurisprudence opens upon us. Streaks of light from various countries, our own in- cluded, preceded the dawn of International Jurispru- {k) Born 1548, died 1617. VOL. I. C 1 PREFACE dence which appeared in the Mare Liherum of Grotius, published in 1609; but its full meridian shone forth in his great work, De Jure Belli et Pads, which was published in 1624. It is scarcely too much to say, that no uninspired work has more largely contributed to the welfare of the Commonwealth of States. It is a monument which can only perish with the civilized intercourse of nations, of which it has laid down the master prin- ciples with a master's hand. Grotius first awakened the conscience of Governments to the Christian sense of International duty (I). His work has been blamed for a want of systematic arrangement, and because the examples which illus- trate the principles of law are taken chiefly from classical times and classical literature ; but these de- fects were, in truth, necessarily incident to the parti- cular period at which he wrote. His work was de- fended from these charges by himself during his lifetime (m), and since his death has received a vindi- cation from the pen of Sir James Mackintosh, which will not easily be surpassed (n), I would fain linger on the merits of this famous master-builder of International Jurisprudence, this great legislator of the community of States, but I am admonished by diminishing space to proceed. (J) " Christianis placuit" " Christianis in umversum placuit,^^ " hoc per- fecit reverentia Christiance legis" &c. — Vide post, p. 39. (w) In one of his latest letters to his brother, Grotius says of some one who had attacked his work : " Non probat quod, in illis libris De Jure Belli ac Pacis, utor Paganorum dictis: verum non ita ut utor, ut ilia sequi satis esse Christianis arbitror, sed ut erubescent Ohristiani si minus prjestent."— 7/. Grot. Epistolce, Ep. 546, p. 920 (ed. Amstelod. 1687) ; and see Proleg. to De Jure B. et P. (ti) Lecture on the Lmo of Nature and Nations. TO THE FIRST EDITION. FROM THE PEACE OF WESTPHALIA, 1648, TO THE TREATY OF UTRECHT, 1713. International Jurisprudence received considerable cultivation, a natural result from the increased inter- course between European nations, both in Europe and in their colonies. Puffendorf^ in 1672, published his once admired, and still celebrated work, De Jure Naturae et Gentium : it had the merit of stating boldly that Natural Law was binding upon nations as well as upon individuals. It would indeed be hardly fair to say that Grotius had altogether omitted Natural Law from the sources of International Jurisprudence ; but certainly PufFen- dorf is entitled to the merit of having supplied, by greater precision of statement, a philosophical defect upon this subject in the work of his predecessor. In other respects, however, the disparaging opinion of Leibnitz upon the work of Puffendorf has been gene- rally confirmed ; it is, in truth, very inferior to the treatise of Grotius. Leibnitz^ whose Codex Juris Gentium Diplomaticus was published in 1693, manifested in his preface, and in other passages scattered about his works, a pro- found and just acquaintance with the principles of the science which we are considering, and left pos- terity for ever to regret that the fuller prosecution of it was swallowed up in the variety and vastness of his other studies. c 2 lii PREFACE THE INTERVAL BETWEEN THE TREATY OF UTRECHT, 1713, AND OF PARIS, 1763. In 1740-43, Wolffs a disciple of Leibnitz, published the fruit of his enormous labours in nine quarto volumes, Jus Natures Methodi Scientijich Pertrac- tatum, &c. An abridgment of his work, dealing separately with the question of Jus Gentium^ sub- sequently appeared. He prided himself on accurately distinguishing the Natural from the Voluntary, Con- suetudinary, and Conventional Law of Nations. His work had two great defects — the application of technical and mathematical terms to moral subjects, and the assumption of the false hypothesis that there existed de facto a great republic of which all nations were members. The latter error, however, does not in reality affect the force of his general position, and exists, perhaps, more in the pedantry of the language than in the spirit of the argument which he derives from it. The work of Wolff, with all its merits — and it had many — ^would probably have been both unread and unknown to modern readers, but for his abridger Vattel^ who, departing in some points from his original, has melted down his ponderous quartos into the concise, readable, practical, sensible, but superficial work, which still retains its popularity. I must, however reluctantly, pass by Montesquieu. Bynhershoeh ranks next to his illustrious fellow- countryman Grotius, whom he delighted to call 6 [Msycc^^ and for whom, though not unfrequently dis- senting from his opinions, he entertained the reverence which one great jurist naturally feels for another. The Qucestiones Juris Puhlici appeared in 1737; — TO THE FIRST EDITION. liii this work, and the two treatises, by the same author, De Dominio Maris and De Foro Legatorum^ are among the most valuable authorities which this science can claim. THE INTERVAL BETWEEJVT THE TREATY OF PARIS, 1763, AND THE FRENCH REVOLUTION, 1789. Italy furnishes us with Lampredi and Galliani\ Germany with Moser and Martens. The latter has obtained, not undeservedly, a place among the classics of International Law. But this interval is chiefly memorable in its eifect upon this science, for the event of the independence of the North American Republics, accompanied by the distinct recognition of the authority and principle of Christian Inter- national Law in another quarter of the globe, and by a cultivation of that law which has already produced no less eminent professors of it than a Story^ a Kent^ and a Wheaton. FROM THE FRENCH REVOLUTION, 1789, TO THE PRESENT TIME. Germany has furnished many writers upon Inter- national Law. Two appear to me worthy of especial notice — Kluher^ whose work, in spite of leaning to the doctrines of the Holy Alliance, is of great value ; and Heffters^ who is still enjoying the reputation which he has acquired. England, to pass by for the moment the achieve- ments of her distinct International profession, has made no mean contributions to the cultivation of International Jurisprudence, in the writings of liv PREFACE Bmtham, Ward, Mackintosh, Mr. Manning, Mr. Reddie, Mr. Wildman, and Mr. Bowyer. Private International Law (jus gentium) has greatly flourished, thanks to the transfusion of Hertius, Hu- berus, Rodenburghius, Voet, and other Latin authors, into the well-arranged and carefully-reasoned works of Story, Wdchter, Savigny, and Fcelix ; of the first Mid the last of these authors we have but lately deplored the death. It will be seen that I have been compelled to omit the mention of many authors, whom I have consulted, whose names will be found below in the catalogue of authorities, and to whom I owe "a debt of much gratitude. HISTORY OF INTERNATIONAL JURISPRUDENCE IN ENGILAND. It remains only to invite attention to a subject which, however Httle known, is not without interest to the historian, the jurist, and the statesman, namely, the existence in England of a distinct Bar for the cultivation of International Jurisprudence (o). It cannot be denied that the Common Law of England has hitherto been, to a certain extent, like the territory in which it prevails, of an insulated and peculiar character. It must be acknowledged that it has borrowed less than any other State in Christendom from the jurisprudence of ancient and modern Eome. The fountains of wisdom, experience, and written reason, at which the European continent in former (o) The following sketcli, with slight alterations, has appeared in a letter firom the author to Mr. Gladstone, published in 1848. TO THE FIKST EDITION. Iv and America in later times have so largely drunk, were passed by in England with a hasty and scanty draught. The Gothic conquerors of continental Europe fell by degrees and from a variety of causes under the dominion of the laws of the vanquished. " Capta ferum victorem cepit " was eminently true of the restoration of the Civil Law during the middle ages in every country, but our own ; and yet, for more than three centuries, England had been go- verned by the Civil Law. It is a very remarkable fact, that, from the reign of Claudius to that of Honorius (a period of about 360 years), her judg- ment-seats had been filled by some of the most eminent of those lawyers {p) whose opinions were afterwards incorporated into the Justinian compila- tions. But all germs of such jurisprudence would have perished with every other trace of civility under the rude incursions of Saxons and Danes, had not the tribunals of the clergy afforded them shelter from the storm (5'). Occasionally, too, some maxims of the Roman Law, admitted either from their in- trinsic merit, or through the influence of the clergy, enriched the then meagre system of English law. The Norman invasion was attended with a memorable change in the constitution as it then existed. The Bishop and the Sheriff had heretofore sat together in the Court of Justice, administering with equal juris- diction the law upon temporal and spiritual offences ; by the charter of William the Conqueror, the Eccle- (p) Papinian, Paidus, and Ulpian. Vide Duck, De Usu ac Autor. Juris Roynani, 1. ii. c. 8, pars secunda, s. 7. {q) Blackstone, vol. iv. 410 ; Preface hy Dr. Burn, to his Ecclesiastical Law ; Millar'' s Historical View of the English Government, vol. iii. ; Burke's Fragment of the History of England. \ Ivi PREFACE siastical was separated from the Civil Court. This division has continued (with the exception of a tem- porary reunion in the reign of Henry I.) till the present period ; the Ecclesiastical tribunal deciding, according to the rules and practice of the Civil and Canon Law, generally, on all matters relating to the Church, to the spiritual discipline of the laity, and, among other questions of a mixed nature, upon two of the most important kind, namely, the contract of marriage and the disposition of personal property after death (r). It is not necessary to dwell on the original reasons for assigning these mixed subjects to the jurisdiction of the Spiritual Courts. It was an arrangement at the time almost universally prevalent in Christendom. The Ecclesiastical Courts, however, were not the only tribunals in which the Roman law was adminis- tered. In the High Court of Admiralty (s) (esta- blished about the time of Edward I.) and in the Courts of the Lord High Constable and the Earl Marshal (the Courts of Honour and Chivalry), the mode of proceeding was regulated by the same code. The Courts of Equity also borrowed largely, and for a long time almost exclusively, from the same jurisprudence. Almost every Lord High Chancellor from Beckett to Wolsey — that is, from the Conquest to the Reformation — was an ecclesiastic ; and it was a matter of course, that, like every eminent ecclesiastic of those days, he should be well skilled in the Civil (r) Bum's Preface, xvii. Lyndioood's Pr&oinciale, pp. 96-7, 261, 316 (ed. 1679, Oxford). (s) Blackstom, toI. iii. p. 68 ; Millars English Government, vol. xi. p. 338. TO THE FIRST EDITION. Ivii and Canon Law. Indeed, it was chiefly because they were deeply versed in this jurisprudence, though partly, no doubt, because their general attainments were far superior to those of the lay nobihty, that the dignitaries of the Church were usually (t) em- ployed in the foreign negotiations of this period (u). Nor can it be denied by the most zealous admirer of our municipal law that, during the period which elapsed from the reign of Stephen to Edward I., the Judges of Westminster Hall had frequent recourse to the Justinian Code ; for in truth the writings of Fleta contain many literal transcripts of passages taken from the Digest and the Institutes (x). Lastly, in the Courts of the two Universities the same system prevailed. Universities, which are not the least remarkable institutions of Christendom, had indeed originally been founded for the express purpose of teaching this science, and even in this country, where the feudal law so largely prevailed, had succeeded in kindling into a flame the precious spark which the schools of the cloisters and the (t) Surd's Dialogues, Moral and Political^ vol. ii. p. 183 ; Buck De Usu, ^-c, Juris Civilis, p. 364. (w) By the Statutes of York Cathedral express provision is made for the absence of the Dean v^hen employed beyond seas in the service of the State. The Bishop of Bristol, vrho was also Lord Privy Seal, was one of the negotiators of the Treaty of Utrecht ; the last instance, I believe, of the kind. (x) Millar, p. 325 ; Preface to Halifax's Civil Law ; Mackintosh'' s Laio of Nature and Nations, p. 52 j Lord Holt, 12 Mod Pep. p. 482 : " Inas- much as the laws of all nations are doubtless raised out of the ruins of the Civil Law, as all Governments are sprung out of the ruins of the Roman Empire, it must be owned that the principles of our law are borrowed out of the Civil I^aw, therefore grounded upon the same reason in many things." Iviii PREFACE learning of the clergy had preserved from total extinction (y), I pass now to the epoch of the Keformation. On the Continent, where the Civil Law was the basis of all municipal codes, the study of this science was scarcely, if at all, affected by this memorable event. In England it was otherwise. The professors of the Civil and the Canon Law belonged chiefly to the Ecclesiastical Courts, and were associated in the minds of the people partly with the exactions (z) of Empson and Dudley in the preceding reign, and partly with the authority of the Pope. Severe blows were dealt at the former, which were aimed solely at the latter system. '' The books of Civil and Canon Law were set " aside to be devoured with worms as savouring too " much of Popery,'^ says the learned Ayliffe in his history of the University of Oxford during the Visi- tation of 1547 (a). And Wood (Z>), after stating " That as for other parts of learning at Oxford, a " fair progress was made in them," observes, " The " Civil and Canon Laws were almost extinct, and " few or none there were that took degrees in them, " occasioned merely by the decay of the Church and " power of the Bishops." (y) See Lt/ndtoood's Life, Biog. Brit. Dedication; Ridley's View of Ciml and Ecclesiastical Law, p. 118 ; Zouche's Preface to his Treatise on the Punishment of Ambassadors, ^c, to Henry, Marquis of Dorchester ; et vide infra. (z) Empson and Dudley justified their extortions by citations from the Civil Law. See Hurd^s Dialogues, Moral and Political, vol. ii. p. 211, though they contain a very superficial and very imperfect sketch of the fortunes of the Civil Law in England. (a) Ayliffe's Oxford, vol. i. p. 188. (ft) Wood's Hist, and Antiquities of the University of Oxford, vol. ii. b. i. 6. Ixxix. (ed. Gutch). TO THE FIRST EDITION. lix In 1536, Thomas Cromwell, Chancellor of the University of Cambridge, Secretary of State, and Yice-gerent of the King in Spirituals, was appointed (by the King's seal used for causes ecclesiastical) Visitor of that University ; by the same instrument, he promulgated, in the name of the King, certain injunctions, of which the fifth was — '' That as the whole realm, as well clergy as laity, " had renounced the Pope's right and acknowledged " the King to be the supreme head of the Church, no " one should thereafter publicly read the Canon " Law, nor should any degree in that Law be con- "ferred"(c). About the same time, or rather earlier, similar in- junctions were issued to the University of Oxford : these are preserved in the State Paper Office, and the corresponding injunction to the one just mentioned is as follows : — " Quare volumus ut deinceps nulla lectio legatur " palam et publice per Academiam vestram totam in " jure Canonico sive Pontificio, nee aliquis cujus con- " ditionis homo gradum aliquem in studio illius juris " Pontificii suscipiat, aut in eodem in poster um pro- " moveatur quovis modo." These injunctions (for there never was, as is commonly believed, any statutable provision on the subject) underwent some modification from the regulations of Edward VI. In 1535, Henry YIII. appointed certain Visitors, the chief of whom were Richard Layton and John Lon- don, LL.D., to visit the University of Oxford ; these (c) Strype's Ecclesiastical Memorials, vol. i. c. xxix. App. No. Ivii. Iviii. 5 Cooper^s Annals of the University and Tozvn of Cambridge, p. 375. iX PREFACE Visitors joined a Civil to the Canon Law Lecture in every Hall and Inn. In 1549, a Visitation of the University of Cam- bridge took place under the auspices of the Protector Somerset. Bishop Kidley was appointed to be one of the Visitors, and one of the professed objects of this Visitation, according to Bishop Burnet (c?), was to " convert some fellowships appointed for encourag- '' ing the study m Divinity to the study of the Civil " Law; in particular, Clare Hall was to be suppressed." Bishop Eidley found his task very difficult and odious, and wrote to the Protector that, to diminish the number of divines went against his conscience. Somerset replied: " We should be loth anything " should be done by the King's Majesty's Visitors " otherwise than right and conscience might allow " and approve ; and visitation is to direct things for " the better, not the worse; to ease consciences, not " to clog them; " and further, " my Lord of Canter- *' bury hath declared unto us, that this maketh partly '^ a conscience unto you that Divines should be di- " minished ; that can be no cause ; for first, the same " was met before in the late King's time to unite the " two Colleges together, as we are sure ye have heard, " and Sir Edward North can tell, and for that cause " all such as were students of the Law, out of the " newly-erected Cathedral Church, were disappointed " of their livings, only reserved to have been in that " Civil College. The King's Hall being in a manner " all Lawyers, Canonists were turned and joined to " Michael House, and made a College of Divines, (rf) Bujtiet, vol. ii. pt. ii. p. 222. TO THE FIRST EDITION. Ixi " wherewith the number of Divines was much aug- " mented, Civilians diminished. Now at this present " also, if in all other Colleges where Lawyers be by " the Statutes or the King's injunctions, ye do con- " vert them or the more part of them to Divines, ye '^ shall rather have more Divines upon this change " than ye had before. The King's College should " have six Lawyers ; Jesus College some ; the Queen's '' College and others, two apiece ; and, as we are in- " formed by the late King's injunctions, every College '' in Cambridge one at the least. All these together '' do make a greater in number than the Fellows of " Clare Hall be, and they now made Divines, and " the statutes in that reformed Divinity shall not be " diminished in number, but increased, as appeareth, " although these two Colleges be so united. And we " are sure ye are not ignorant how necessary a study that '' study of Civil Law is to all Treaties with Foreign " Princes and Strangers^ and how few there be at this '''present to the King's Majesty's service therein^'' &c. Queen Elizabeth, among the Statutes which she promulgated for the University of Cambridge, and which have been recently published by Dr. Lamb, enacted one, De Tewporibus Lectionum et Libris prce- legendis (c. iv.), in which it is ordered, " Theologicus " praslector tantum sacras literas doceat et profiteatur. '^ Jurisconsultus Pandectas, Codicem, vel Ecclesiastica " regni Jura quae nos edituri sumus et non alia pr^- " leget." Since the reigns of Stephen and Henry II., when Yacarius first read lectures at Oxford on the Civil Law, the Universities have made it their legiti- mate boast that the study of the Roman Law found its shelter and encouragement within their pomoeria. Ixii PREFACE The history of almost every college will show that the promotion of this study was an object which its founder had at heart. The statutes promulgated after the Reformation, during the royal visitations of the Tudors, as has already been shown, most care- fully provided for the furtherance of the same end. The statutes of Edward YI. define more closely the knowledge requisite for a Doctor of Civil Law, and set forth the usefulness of such knowledge to the Church and State, as follows: "Doctor Legum — " Doctor mox a doctoratu dabit operam legibus " Anglia3, ut non sit imperitus earum legum quas " habet sua patria, et differentiam exteri patriique ^^ juris noscat, et in solemnibus comitialibus qu£es- " tionibus unus qui id maxime certissimeque sciat " facere ad finem quasstionum quid in illis jus civile^ " quid ecdesiasticum., quid regni Anglioe jus teneat, " defineat, determinetque " (^). In truth, the Universities were doubly interested in the preservation of this study ; first, because the statutes, both those of the University and of the College, must, in cases of doubt, which not unfre- quently arise, receive their interpretation from the Canon and Civil Law; the founders of Colleges (Chicheley and Wykeham for example) were often deeply versed in both branches of jurisprudence, and in cases tried before the Visitors of Colleges, many of the arguments have been drawn from these sources ; but, secondly, inasmuch as the degrees conferred at (e) These statutes are copied from Dr. Lamb's book, but they are, mutatis mutandis, the same as those given to Oxford, save that Oxford has some post-statuta, which Cambridge has not— Tzvyne's Collect, vol. iv. p. 144, in Turr. Schol. Oxon. : LamVs Documents from MS. Library, C. 0. C. C, p. 127 ; see also a similar statute of Elizabeth's, 323. TO THE FIRST EDITION. Ixiii the Universities were the necessary passport to the College of Advocates at Doctors' Commons. Of the five professorships (/) which Henry VI IT. founded on the spoils of the Church, one was insti- tuted and endowed at each University for teaching the Civil Law. At Oxford, the lay prebend of Ship- ton was attached to the Professorship, and in Charles II. 's reign this endowment was expressly recognized and confirmed as an exception to the general law laid down in the Statute of Uniformity. The foundation of these Professorships in some measure counter- balanced the injury which the Civil Law received from the discredit into which the Canon Law had fallen (g). But this was not, I think, the sole or the principal circumstance which kept alive at this time the know- ledge of this jurisprudence. About this period a great and important change had begun to take place in the relations of the European communities towards each other, which rendered the preservation of the study of the civil law of great, and indeed indispensable, necessity to these islands. During the reign of the Tudors, the English had been compelled, by a multitude of concurring causes (far too many for enumeration in these pages), to abandon their hopes of permanent conquests in France; never- theless, at this very period. Great Britain began to assume that attitude with respect to foreign Powers which, from the days of Lord Burleigh to Mr. Can- (/) Divinit}'^, Hebrew, Greek, Civil Law, Medicine, founded 1540, confirmed 1546. John Story appears to have been the first Professor at Oxford appointed with a fixed salary. — Wood, Hist. 8f Ant. of Oxford, vol. ii. pt. ii. pp. 840, 859 (ed. Gutch). (g) Luther openly burnt at Wittenburg the books of the Canon Law, — Robertson^ s Charles V. b. ii. Ixiv PREFACE ning, it has been the constant endeavour of her wisest and greatest statesmen to enable her to maintain. She became an integral part, in spite of her " salt- " water girdle " (h)^ of the European system, and daily more and more connected her interest with that of the commonwealth of Christendom. Every fresh war and revolution on the Continent, every political and religious movement, rendered that interest indissoluble. The closer the bond of international intercourse became, the more urgent became the necessity for some International Law, to whose decisions all members of the commonwealth of Christendom might submit. The rapid advance of civilization, bringing with it an increased appreciation of the blessings of peace, and a desire to mitigate even the necessary miseries of war, contributed to make this necessity more sensibly felt. A race of men sprang up, in this and in other countries, whose noble profession it became to apply the laws of natural justice to nations, and to enforce the sanction of individual morality upon communities. But the application of these laws and sanctions to independent States, and still more any approach towards securing obedience to them, was no easy achievement. No one nation, it was obvious, had any right to expect another to submit to the private regulations of her municipal code; and yet, according to the just and luminous observation of Sir James Mackintosh, " In proportion as they " approached to the condition of provinces of the " same empire, it became almost as essential that (A) Ct/mbeline, act. iii. sc. 1. TO THE FIRST EDITION. IxV " Europe should have a precise and comprehensive " code of the law of nations, as that each country " should have a system of municipal law" (i). It was, as has been said, soon after the era of the Reformation that the science of International Law began to flourish on the Continent ; and it has been said that this epoch was on the whole unfriendly to its study in this island. It remains to show by what means any vestiges of it have been preserved ; and how a profession, whose duty it was to be " lawyers " beyond seas '* (^•), has been maintained in these islands, where honour and emolument have ever, with few exceptions, attended the knowledge and practice of a distinct and isolated system of municipal law. Long before the Reformation there existed an an- cient society of Professors and Advocates, not a cor- porate body, but voluntarily associated for the practice of the Civil and Canon Law. In 1587, Dr. Henry Hervey, Master of Trinity Hall in the University of Cambridge, purchased from the Dean and Chapter of St. Paul's, for the purpose of providing a fixed place of habitation for this society, an old tenement, called Mountjoy House, on the site of which the College of Advocates at Doctors' Commons now stands. In this sequestered place the study and practice of laws proscribed from Westminster Hall took root and flourished. The Tudors, who, with all their faults, were un- questionably the most accomplished and lettered race which as yet has occupied the English throne, always looked with a favourable eye upon civilians, employed (i) Lecture on the Law of Nature and Nations, p. 13. {k) Ayliffe's Parergon Juris Canonici, Introduction. VOL. I. d Ixvi PREFACE them in high offices of state, and set especial value on theii* services in all negotiations with foreign coun- tries. Few, if any, matters of embassy or treaty were concluded without the advice and sanction of some person versed in the Civil Law. The enmity of Henry VII I. to the Canon, as has been observed, materially injured the profession of the Civil Law ; but this was a result neither contemplated nor de- sired by that monarch. He founded, as has been said, a Professorship of Civil Law at both Universi- ties, and in many respects befriended the maintenance and culture of this science. In 1587, Albericus Gentilis (/), an illustrious foreigner, was appointed to the Professorship of Civil J^aw at Oxford ; his work, De Jure Belli, was in truth the forerunner of Grotius. According to the emphatic language of the learned Fulbeck, he it was " who by his great Industrie hath " quickened the dead body of the civil law written by " ancient civilians, and hath in his learned labours " expressed the judgment of a great State, with the " soundnesse of a deep phylosopher, and the skill of a " cunning civilian. Learning in him hath showed " aU her force, and he is therefore admirable because " he is absolute " (m). During the earlier period of the Tudor sway eccle- siastics, many of them of high renown, were advocates of the civil law, but towards the close of Elizabeth's reign the profession became, and has ever since been, composed entirely of lay members (w). During (I) He came from the University of Perugia, died 1609. — Wood's Hist, and Antiq. of Oxford, vol. ii. pt. ii. p. 858 (ed. Gutch). (m) A Direction or Preparative to the Study of the Laio, f. 266 (Lond. 1620, 8vo.). Irving' s Introd. to the Civil Law, s. 97. (w) An unsuccessful attempt was made in High mere's case (8 Easfs TO THE FIRST EDITION. Ixvii this reign a nice question of International Law was raised in the case of the Bishop of Ross, ambassador to Mary Queen of Scots, and Elizabeth submitted to Drurye, Lewes, Dale, Aubrey, and Johnes, advocates in Doctors' Commons, that most difficult and im- portant question as to the propriety and lawfulness of punishing an ambassador for exciting rebellion in the kingdom to which he Was sent. Civilians were also consulted as to the power of trying (o) the unhappy Mary herself ; and Mr. Hallam seizes on the facts, with his usual sagacity, to demonstrate that the science of International Law was even at this period cultivated by a distinct class of lawyers in this kingdom. James L, who, besides his classical attain- ments, imbibed a strong regard for the Civil Law from his native country, protected its advocates to the utmost that his feeble aid would extend (p). To this monarch Sir Thomas Ridley dedicated his View of the Civil and Ecclesiastical Law^ a work of very considerable merit and of great learning ; it had for its object to demonstrate the pettiness and unreason- ableness of the jealousy with which the common lawyers had then begun to regard the civilians, and the law which they administered at Doctors' Com- mons — and it appears to have been by no means Mqmrts, 213) to obtain a mandamus from the archbishop commanding the Dean of the Arches to admit Dr. Highmore a member of the College of Advocates. This was in 1807. (o) Constitutional History/, vol. i. pp. 218, 219 ; Stnjjje, 360-362. (p) Cowell, who was Professor of Civil Law at Cambridge, had ac- quired a profound knowledge of this law, and had in consequence been chosen Master of Trinity Hall (an office at this moment filled by the learned Judge of the Arches), published a dictionary of law, in imitation of Calvin's Lexicon Juridicum, a work of much learning, but containing extravagant dicta about the king's prerogative. James shielded him from the wrath of Coke d2 Ixviii PREFACE unattended with success ; for it was perhaps a conse- quence of this able work that, about the year 1604, each of the two Universities was empowered by royal Charters to choose two members to represent them in Parliament, and by the same Charters they were admonished to select such as "were skilful in the " Imperial Laws" (q). The reign of the First Charles produced two civi- lians of great eminence, whose reputation, especially that of the latter, was as great on the Continent as in these islands — Arthur Duck and Richard Zouche. The former steadily adhered to the fortunes of his unhappy sovereign ; and his work, De Usu ac Aiitho- ritate Juris Civilis^ has never ceased to maintain its deserved authority. Zouche, who held several high appointments, submitted to the authority of the Par- liament (r). In 1653, the famous case of the Por- tuguese ambassador happened : Don Pantaleon de Sa, having deliberately murdered an English subject in London, took refuge in the house of his brother, the Portuguese ambassador. That high functionary in- sisted on the exemption of his brother from punishment on account of the inviolable character which the law of nations impressed upon the dwelling of an ambas- sador. Cromwell, however, caused him to be tried before a commission composed of Sir H. Blunt, Zouche, Clerk, and Turner, Advocates of Civil Law, and others ; before whom he was convicted of murder and riot, and for these offences was executed at {q) Vide infra, pp. 49, 50. (r) Zouche had received a patent from King James, assigning to him a stipend of 40Z. per annum, and all emoluments and privileges enjoyed by *' Albericus Gentilis, Frauncis James, and John Budden." A copy of this patent is to be found in Rymer'a Foedera, I TO THE FIRST EDITION. Ixix Tyburn. On this occasion Zouche wrote a very able and learned treatise, entitled A Dissertation concern- ing the Punishment of Ambassadors who transgress the Laws of the Countries where they reside^ &c. This civilian was also the author of several other treatises on public law, the most celebrated of which was en- titled Juris inter Gentes Qucestiones^ a book which is to this day of high authority and constant reference by all jurists both in Europe and America. During the reign of Charles II. various causes con- spired to extend and strengthen the influence of the Civilians. The restoration of the orders and disci- pline of the Church — the rapid growth of commerce and its consequences, augmentation of personal pro- perty and increase of shipping — the creation of a navy board (5), and widely spreading relations with foreign States — the two Dutch wars, and the personal merits of the great Civilian of the day, Sir Leoline Jenkins — all contributed to produce this result. " If," says Sir Robert Wiseman, Advocate-General, writing in 1680, "we look no farther back than " twenty years ago, we shall remember the Civil " Law did so far spread itself up and down this " nation, that there was not any one county which " had not some part of the government thereof " managed and exercised by one or more of that pro- " fession, besides the great employment and practice " it had in the Courts in London. So that it being " thus incorporated, and, as I may say, naturalized " by ourselves into this Commonwealth, it ought not («) Vide Pepys^ MertmrSj passim. IXX PREFACE " to be reputed or looked upon by us a stranger any " longer " (t). I come now to the last period, that which elapsed between the Kevolutionof 1680 and the present time. During this interval the profession of the Civil Law has been sustained by a succession of advocates and judges, who may challenge comparison with their brethren of Westminster Hall, and who have done good service to the State, both in her domestic tri- bunals, in her courts of the law of nations, and in her pacific intercourse with foreign nations. Nobody acquainted with the history of our country since the Revolution can be wholly ignorant of Sir Leoline Jenkins, Sir George Lee, Sir G. Hay {u), Sir William Wynne, Dr. Lawrence, and Lord Stowell. The biography of Sir Leoline Jenkins contains a history of the foreign affairs of this kingdom from the breaking out of the first Dutch war (1664) to the Peace of Nimeguen (1676-7), which he nego- tiated in concert with his illustrious colleague Sir W. Temple. He filled various high ofiices, those of Member of Parliament, Judge of the High Court of Admiralty, Judge of the Prerogative Court of Can- terbury, Principal of Jesus College, Oxford, Ambas- sador, Secretary of State. Throughout the works (v) of this great jurist are scattered tracts upon various questions of Public and (t) The extract is taken from a treatise called The Law of Laws, or the Excellency of the Civil Law. (u) Vide Walpoys History of Lad Ten Years of George II., vol. ii., for an account of Dr. Hay's eloquence. (y) I believe the Colleges of Jesus and All Souls contain MSS. yet unpublished of Sir L, Jenkins, which, it is to be hoped, will one day see the li«rht. TO THE FIKST EDITION. Ixxi International Law, rich in deep learning and sound reasoning, and consequently forming a mine from which all subsequent jurists have extracted materials of great value. His acquaintance with the Civil Law was deep and accurate, as he had opportunities of evincing upon several occasions ; and he often la- mented, we learn from his biographer, that the Civil Law " was so little favoured in England, where all " other sciences met with a suitable * encourage - " ment" (a)). " His learned decisions," I quote from the same source (?/), "rendered his name famous in most parts ' of Europe (there being at this time almost a general ' war, and some of all nations frequently suitors to ' this Court), and his answers or reports of all ' matters referred to him, whether from the Lords ' Commissioners of Prizes, Privy Council, or other ' great officers of the kingdom, were so solid and ' judicious as to give universal satisfaction, and often ' gained the applause of those who dissented from ' him, because they showed not only the soundness of ' his judgment in the particular matters of his profes- ' sion^ but a great compass of knowledge in the general ' affairs of Europe and in the ancient as well as (x) Life of Sir L. Jenkins, p. xi. preface. {y) lb. p. xiii. and vol. ii. p. 741. He advised the Duke of York as to his title to the Seigneury of Aubigne, on the death of the Duke of Rich- mond, vol. ii. p. 704. He advised upon the claim of the Crown of England to the dominion of the narrow seas and the homage due to her flag ; upon the Electoral Prince Palatine's settlement ; on the effect of a settlement of property made by Maurice Prince of Orange ; as to the succession to the personal estate of the Queen Mother of France, and on many other cases of great importance and delicacy, in which the knowledge of a civilian and publicist was required. See vol. ii. pp. 663, 673, 674, 709, &c. ; see also Temple's Memoirs, Ixxii PREFACE ' modern practice of other nations. Upon any ques- * tions or disputes arising beyond sea between His ' Majesty's subjects and those of other Princes, they ' often had recourse to Dr. Jenkins. Even those ' who presided in the seats of foreign Judicatures in ' some cases applied to him to know how the like ' points had been ruled in the Admiralty here, and ' his sentences were often exemplified and obtained as * precedents there, &c." " For his opinion, whether ' in the Civil, Canon, or Laws of Nations, generally ' passed as an uncontrovertible authority, being ' always thoroughly considered and judiciously 'founded" {z). The Law which governs the disposition of the personal estates of intestates, commonly called the Statute of Distributions (a), was framed by Sir L. Jenkins, principally upon the model of the 118th Novel of Justinian. It was also by the influence of this distinguished member of their body, that after the Fire of Lon- don the Advocates of Civil Law obtained a share of certain immunities enjoyed by other branches of the Bar. The Eescript of Charles 11. on the subject begins, '' Charles K. The Society of the Doctors at " Civil Law, Judges and Advocates of our Court *' now settled at Doctors' Commons, in London, hav- " ing to theu' great charges rebuilt the same, &c. &c. " And we knowing the usefulness of that profession for " the service of us and our kingdom in many affairs j " found just cause to assert their exemption from " payment of taxes, burdens, and impositions in the (z) P. xviii. (a) 22 & 23 Car. II. c. 10. TO THE FIRST EDITION. Ixxiii " same manner as the Societies of the Serjeants' Inn " are and have used to be." The death of Jenkins happened soon after the accession of James II. After the abdication of that Monarch the Civilians were consulted upon a very nice question of International Law, to which reference is made at length in this work (b). In the reign of Anne, Sir John Cooke, a dis- tinguished Civilian, and Dean of the Arches, was one of the Commissioners for the Treaty of the Union with Scotland ; and everybody acquainted with the Treaty of Utrecht is aware that the Civilians were continually consulted by the Crown upon the framing of the different Articles contained in it. Thus, the Queen, in her instructions to Lord Boling- broke, " whom we have appointed to go to France," speaking of the exchange or alienation of Sicily by the House of Savoy, observes, " As for the second " point which you are to adjust, as far forth as is " possible, we have directed what has been prepared " by the Civilians upon this subject to be put into " your hand " (c). The reigns of the first two Georges produced Sir George Paul, Sir Henry Pen- rice, and the two Bettesworths, Judges of great learn- ing and ability ; but I pass on to the date of 1729, when Sir George Lee first entered upon his career of distinction. This able Civilian was an active enemy of Sir Robert Walpole ; he was also Treasurer to Frederick Prince of Wales, and deservedly venerated for the learning, accuracy, and clearness of his deci- sions* in the Prerogative and Arches Courts, in both (6) Vide post, pp. 299, 428. (e) BoUnghrokes's Correspondencej vol. i. p. 4, note. Ixxiv PREFACE of which tribunals he presided as Judge. But he enjoys also no inconsiderable European fame ; for he was the principal composer of a State Paper (d) on a great question of International Law — the Answer to the Memorial of the King of Prussia, presented to the Duke of Newcastle by Mr. Mitchell, and, to borrow the words of his biographer (^), "it has universally " been received and acknowledged throughout Europe " as a correct and masterly exposition of the nature " and extent of the jurisdiction exercised over the " ships and cargoes of Neutral Powers by Courts of " the Law of Nations, established within the Terri- " tories of belligerent States. Montesquieu charac- " terizes is as reponse sans replique^ and Vattel terms " it un excellent morceau du droit des gens.^^ To that memorial indeed another name was affixed, the name of one who was not indeed a member of the College of Advocates, but who was destined to be among the few luminaries of Jurisprudence in our island, and able to vie with thosQ which have shone upon the Continent — of one whose boast it was that he had early and late studied the Civil Law, and who built upon this avowed basis, and on his knowledge of the writers on Public Law, that goodly fabric of Commercial Juris- prudence which has since indeed received addition and ornament, but which owed its existence to a mind saturated with the principles of the Roman Law. This great man was then Mr. Murray, afterwards Lord Mansfield. For comprehensive grasp of mind, for (d) It is printed in the Collectanea Juridica. (e) See Jbr. Phillimore's Preface to Sir G. Lee's Peports, p. xvi. See also an elaborate panegyric by Dr. Harris, in the Preface to his trans- lation of the Institutes of Justinian. TO THE FIKST EDITION. IxxV knowledge of general principles of law, and of their particular application in various countries, this illus- trious magistrate was second only to one, with the mentioned of whom I shall presently close my brief notice of distinguished Civilians (/). But, to be historically correct, I should first advert to a circumstance of great importance in its relation to the history of the Advocates of Civil Law. Sir G. Lee died in 1756 ; in 1768 George III. granted to this Society a formal charter, by which it became a legally recognized body corporate. The charter re- cites, that the members of the College at Doctors' Commons had devoted themselves to the study of the Civil and Canon Law, and were either advocates or judges in the Ecclesiastical and Admiralty Courts, and that they had for " centuries past formed a " voluntary society," &c., and prayed the King to be pleased, by letters patent under the great seal, " to " incorporate them and their successors by the name, " style, and title of the College of Doctors of Law, " exercent in our Ecclesiastical and Admiralty Courts." The charter goes on to say : " We having taken " the said petition into our royal consideration, and '* being willing to give all fitting encouragement to '' the said study," &c., and then proceeds to constitute, with every imaginable formality of expression, the College a legal corporate society, with visitors and power of making bye-laws, &c. I return to the mention of that Civilian whose reputation as a jurist overtopped even the great name of Lord Mansfield. In 1779 Dr. Scott enrolled his name among the (/) Want of space compels me reluctantly to omit all mention of such judges as Sir E. Simpson and Sir G. Hay. Ixxvi TREFACE advocates of Doctors' Commons ; he is now better known by his well-deserved title, Lord Stowell, of whom it may be indeed emphatically said that he left " Clarum et venerabile nomen And the remainder of the line is scarcely less his due — " Et multum nostrsB quod profuit urbi." The history of Lord Stowell is familiar to the pre- sent generation. His great natural endowments — his long residence at the University — the admirable use he made of the opportunities which such residence affords for storing the mind with all kinds of know- ledge — his vast and varied intellectual attainments — the mature age at which they were brought into the fray of active life — the keen insight into human nature — the judicial character of his wise, patient, and dehberative mind — the marvellous power of lucid arrangement, educing order and harmony from the most perplexed and discordant matter — the clear and beautiful robe of felicitous language and inimitable style which clothed all these high attributes — the awful crisis and convulsion of the civilized world which called for the exercise of these powers in the judgment- seat of International Law at the very time when he was elevated to it — the renown of his decisions over both hemispheres {g) — the great age to which he enjoyed the full possession of his faculties — all this is matter of too recent history to require a more detailed enumeration. " Testes vero jam omnes oras atque {g) Vide passim the American Meports. TO THE FIRST EDITION. Ixxvii " omnes exteras gentes ac nationes : denique maria " omnia turn universa, turn in singulis oris, omnes " sinus atque portus" (A). With this justly venerated name I close my catalogue of English Civilians, omit- ting, not without regret, all mention of Dr. Strahan, the translator of Domat ; of Dr. Harris, a Civilian of great eminence, the translator of The Institutes ; of that learned and able Judge, Sir William Wynne ; and of Dr. Lawrence, the well-known friend of Burke. To the latter, indeed, ample justice has been done by Lord Brougham in his Characters of British Statesmen (^). I have endeavoured to give a sketch of the fortunes of International Law in this country, and to illustrate them by some comments on the most distinguished disciples of that jurisprudence. My sketch has been necessarily meagre and imperfect ; it would otherwise have transgressed the limits of my Preface ; and I have been compelled, especially during the latter period, to pass by in silence many English Civilians who would have deserved commemoration in a larger work. CONCLUSIOK In conclusion, the Author trusts that, in any judg- ment which may be passed upon this work, it will be recollected that it is an endeavour, upon a larger scale than has hitherto been attempted in England, to reduce, in some measure at least, to a system, the principles and precedents of International Law; and that this is a task which the very nature of the ma- (Ji) Cicero, pro Lege Manilla. (^) See also Homer's Memoirs^ vol. i. Ixxvlii PREFACE TO THE FIEST EDITION. terials renders extremely hard : inasmuch as it is very difficult so to arrange them as to avoid on the one hand a vague unsatisfactory generality, and on the other an appearance of precise mathematical accuracy, of which the subject is not susceptible. The Author is anxious to express a sincere hope that others of his fellow countrymen, profiting by what may be useful, avoiding what may be erroneous, supplying what may be defective in his labours, may by them be stimulated to undertake and execute a better treatise upon the same subject. It is by such gradual additions and painful accu- mulations that the edifice of this noble science may one day be completed, and the Code of International Jurisprudence acquire in all its branches the certainty and precision of Municipal Law. Such a result would be greatly instrumental in procuring the general recognition and ultimate supremacy of Right in the intercourse of nations, and, with the blessing of God, in hastening the arrival of that period when the as- piration of the Philosopher and the vision of the Prophet shall be accomplished. " JSiec erit alia lex " Romae alia Athenis ; alia nunc, alia posthac, sed et " omnes gentes et omni tempore una lex et sempiterna " et immutabilis continebit." ( Cicero^ Be Be Puhlica^ 1. 3, c. 22.) " Nation shall not Hft up sword against " nation, neither shall they learn War any more." {Isaiah^ c. ii. v. 4.) CONTENTS. i|3art h CHAPTER I. iNTBODTJCTIOIf, FoTJNDATIOIfS OF InTEKNATIONAL JuEISPRTDEKCE, Pp. 1-9. 1. The Laws which govern International Eelations. 2. The Subjects of these Laws. 3. The objects of these Laws. 4. Certain Subjects requiring a particular consideration, 5. Legal Means of enforcing International Public Rights. 6. Jus Privatum inter Gentes, or Comity. CHAPTER II. Plan of the "Woek. Pp. 10-13. CHAPTER III. SOTTRCES OF INTERNATIONAL Law. Pp. 14-28. 1. Natural Law. 2. Revealed Law. 3. Custom. 4. Treaty. 6. Divine and Natural Law. How applied to Christian and Heathen States. EiFect of Christianity upon International Law. CHAPTER IV. Reason op the Thing. Pp. 29-36. Application of Natural and Revealed Law to States. Use of the Roman Law. IXXX CONTENTS. CHAPTER V. Consent of Nations. Pp. 37-42. How manifested. By positive Convention. By Custom. CHAPTER VI. HiSTOKT. Pp. 43-60. Repositones of International Law. History. Treaties. Proclamations. Marine Ordinances. Decisions of Prize Courts. CHAPTER Vn. Wbiters on International Law. Pp. 61-G6. Their Authority and Use. CHAPTER VIII. Recapitulation op Sources op International Law. Pp. 67-74. Instances of the Application of the Law as derived from its various Sources. CHAPTER IX. Objection that there is no Law because no Superior. Pp. 75-77. Not tenable. Confusion of Ideas. All Moral Obligations equally Perfect, although Means of compelling Performance may be imperfect. Inter- national Law recognized as a Matter of Fact. Recognition of it incorpo- rated into Municipal Law of many States. iait M. CHAPTER I. Subjects op International Law. States. Pp. 79-92. What is a State. Barbary States. The Ottoman Porte. CONTENTS. Ixxxi CHAPTER II. Different Kinbs of States. Pp, 93-132. Principal Division. 1. One or more States under one Sovereign. 2. Several States under a Federal Union. I. States under one Sovereign. a. Single States. j8. States united reali umone„ y. Case of Poland. 5. States united personali unione. €, Protected States retaining International Personality. rj. Protected States having lost International Personality. Ionian Isles. €. European Free Towns and Eepublics. I. The case of Belgium. K. The case of G-reece. A. Feudal States. Turkish Provinces, ju. The case of Egypt. CHAPTER m. States under a Federal Union. Pp. 133-134. 1. G-ermanic Confederation. 2. Swiss Confederation. 3. North American United Republics. 4. South American United Republics. CHAPTER IV. German Confederation. Pp. 135-155. 1. The Original Institution of. 2. The Remodelling of in 1806. 3. The Change effected by the Treaties of Vienna, 1815, 1820. 4. Destruction of this Confederation by Prussia, 1866. 5. Swiss Confederation. CHAPTER V. United States of North America. Central and South American Republics. Pp. 156-167. History and Character of. CHAPTER VI. Extinction of a State. P. 168. A State may lose its International Personality. How. VOL. T. e I Ixxxii CONTENTS. "l / CHAPTER VII. Changes in a State. Pp. 169-179. Doctrine of Roman Jurists — of Savigny ; Hooker ; Grotius ; Be Mably ; D'Aguesseau ; Montesquieu ; Heineccius ; Vattel ; Bynkershoek ; Kent ; Wheaton ; Puffendorf ; — all support the Doctrine that Changes in a State do not affect previously-existing International Obligations; If the Terri- tory of a State be divided, Rights and Duties are apportioned. Opinion of Kent and Story. Recent Case of Belgium. ^art m. CHAPTER I. Objects of International Law. Pp. 181-183. 1. "Rights sirieti juris. 2. Usages of Comity. Importance of observing Dis- tinctions between. CHAPTER II. Rights op Independence and Equalitt. Pp. 184-185. I. Rights of Independence. 1. Free Choice, &c., of Government. 2. Territorial Inviolability. 3. Self- Preservation. 4. Commerce. 5. Right of Acquisition. 6. Juris- diction over Persons and Things within, and, by way of Exception, without lier Territory. Christian Strangers in Mahometan Territories. Extradition of Criminals. II. Limitation of foregoing Rights. Doctrine of Intervention. III. Rights of Equality. 1. Right of protecting Subjects abroad. 2. Right to Recognition. 3. Right to external Marks of Honour. 4. Right to make Treaties. CHAPTER III. Right of a Free Choice of Government. P. 186. CONTENTS. Ixxxiii CHAPTER IV. Territorial Inviolability. National Possessions. Pp. 187-188. 1. Elvers and Lakes. 2, Open Sea. 3. Narrow Seas. 4. British Seas. 5. Straits. 6. Portions of the Sea. CHAPTER V. Property of a State. Rivers. Pp. 189-217. General Law respecting. Stipulations in the Treaty of Vienna as to free Navigation of great Eivers. The Scheldt. The Rhine and Tributaries. The Vistula. The Douro. The Danube. The Mississippi. The St. Lawrence. The Open Sea. Nootka Sound. The Baltic. Sound Dues. Eights of Fishing. CHAPTER VI. Narrow Seas, as distinguished from the Ocean. Pp. 218-223. British Channel. Mare liberum of Grotius. Mare clausum of Selden. Holland. William III. Sir L. Jenkins. Bynkershoek. Lord Stowell. CHAPTER VII. Narrow Seas. Straits. Pp. 224-234. British Channel. Great and Little Belt. Straits of Messina. Dardanelles. Hellespont. Fisheries. CHAPTER VIII. Portions of the Sea. Pp. 235-243. Kule of Territory within Marine League or Cannon-shot. Hovering or Eevenuo Laws. Landlocked Seas. CHAPTER IX. Peculiar Case of the Isthmus of Central America. Pp. 244-251, British Treaty with United States of North America. Question respecting British Settlements in Honduras. Honduras Interoceanic Railway. CHAPTER X. Self-Preservation. pp. 252-261. Means of Security. National Safety. Lawful to prevent as well as repel Attack. Rules and Illustrations. When Conduct of individual Subjects implicates the State. Doctrine oi pailentia and rcceptus. e 2 IXXXIV CONTENTS. CHAPTER XI. KiGHT TO A PREB DEVELOPMENT OF NATIONAL RESOURCES BY Commerce. Pp. 2G2-263. Former Claims of Spain and Portugal. Colonial Monopoly. CHAPTER XII. Right op Acquisition. Pp. 264-292. Doctrine of — 1. Possessio, and 2. Dominium, acquisition. 1. Original. 2. De- rivative. Different Kinds of Original Acquisition : 1. Occupation ; 2. Ac- cession ; 3. Prescription. Occupation, Elements of, in Discovery, Use. Settlement. Illustrations. Extent of Occupation. The Middle Distance. Law of Contiguity. Fluvial Accessions. Case of The Anna. Boundaries. Bull of Alexander VI. Penn. Cabot. Falkland Islands. Treaty of Utrecht. Oregon. CHAPTER Xni. Prescription, Doctrine op. Pp. 293-308. Eoman. Private. Public. International Law respecting it. CHAPTER XIV. Derivative Acquisition. Pp. 309-327. 1. Facto hominis. 2. Facto legis. Competent to a State to alienate Property. When. Usufructuary and Patrimonial Dominions. Case of Norway in 1814. International Transactions between State and Subjects, and State and other States, distinguished. Sovereigns de facto and dejure. Doctrine of Transference or traditio. Modes of Transference considered : 1. Ex- change ; 2. Cession ; 3. Gift ; Case of Louisiana ; 4. Election of Sove- reign ; 5. Marriage Contract j 6. Successio ab intestate ; 7. Testamentary Disposition. CHAPTER XV. Acquisition of Rights. Pp. 328-332. Servitutes Juris Gentium : 1. Servitus negativa ; 2. Servitus affirmativa. As to Persons. As to Places. CHAPTER XVI. Extinction of Dominion. Pp. 3.33-541. Maxim of " Quibus modis acquirimus iisdem. in contrariuni actis omittimus." Protests. Postliminiu7n. Property becoming extra commercium. CONTENTS. IXXXV CHAPTER XVn. Slaves and the Slave Trade. Pp. 342-375. Man not among the res posits in commercio. 1. Slavery of the White Man. Captives in War. Barbary Powers. Bynkershoek's Opinion. Lord Exmouth's Bombardment of Algiers. Occupation of Algiers by France. 2. Slavery of the Dark or Coloured Man. Lord Stowell's Opinion in favour of Slavery. Slavery contrary to Natural Law of Nations. Treaty of Paris, 1814, as to the Slave Trade. Subsequent Treaties. Catalogue of existing Treaties on the subject. Case of the Queen v. Da Serva. Cases of Shanley v. Harvey ; of Somersett the Negro ; of Forbes v. Cochrane ; of Borcaut ; of Francisque ; of the Pole ; of the Creole brig ; of the Slave of the Spanish Merchant in France. CHAPTER XVin. Right of Jurisdiction over Persons. Pp. 376-390. 1. Over Subjects. 2. Over Foreigners commorant in the Land. Native and Naturalized^ Citizens. Domiciled Persons. Naturalization ; Laws of dif- ferent States respecting. Jurisdiction over Foreigners : Laws of different States respecting. American Naturalization Act, 1868. Alien Act, 1870. CHAPTER XIX. Exceptions to the Territorial Right of Jurisdiction. Pp. 391-410. 1. Christian Sojourners in Infidel Countries. ]Ek;helles du Levant. British Subjects in China. 2. Foreign Sovereigns. 3. Ambassadors. 4. Foreign Armies. 6. Foreign Ships: o. Ships of War; )8. Ships of Commerce; Different Rules respecting. Cases of The Exchange, The Santissiina Trinidad, The Frim Frederik, The Newton, The Forsattning. CHAPTER XX. Rights of Jurisdiction. Pirates. Pp. 411-436. That they oxe justiciable everywhere. Cases and Charges of Judges in Courts of Admiralty. Letters of Marque and Privateers; when they are, and when they are not, considered as Pirates by International Law. Treaties and private Laws of States respecting Privateers. An abdicated Monarch cannot issue Letters of Marque. Case in the Time of James II. Ixxxvi CONTENTS., CHAPTER XXI. Renvoi. Extradition. Pp. 437-462. 1. The Right of a State to dismiss Foreigners. Renvoi, 2. The General Law as to the Obligation of a State to surrender Foreigners. Extradition. 3. Treaties of Extradition. 4. Statute Law of England on this Subject. ?3art W. CHAPTER L Intervention, Principle of. Pp. 463-531. Analogous to Interdict and Injunction. Opinion of Lord Bacon. Two Kinds of Intervention. I. Sometimes, but rarely, in domestic Concerns of Foreign Nations. a. When Institutions are inconsistent with the Peace and Safety of other Nations. jS. Eights and Duties of a Guarantee. y. Invitation of Belligerent Parties in a Civil "War. S. Protection of Reversionary Rights or Interests. II. When Territorial Acquisitions of a State threaten the Peace and Safety of other States. o. Balance of Power, a Corollary of the Principle of Self-Defence. p. Intervention on Religious Grounds : when justifiable. Treaty of Westphalia. Case of Christian Subjects in the Ottoman Empire. Justice of the War declared by England and France against Russia in 1854 to be tried by Principles of International Law already laid down in this Work. Ixxxvii LIST OF AUTHOEITIES REFERRED TO IN THIS VOLUME. Acton's Admiralty Eeports. -S^schinis et Demosthenis Orationes duae contrarise. Ahrens, Cours de Droit naturel, ou de Philosophie du Droit (Brux. 1844). Allgemeine Geschichte. Amedee F61ix. (See Code.) Ancillon iiber den Geist der Staatsverfassung. Annals of Congress. (See Congress.) Annuaire historique uniyersel (1832). des Deux Mondes (1850-1-2-3-4). Annual Register. Aristoteles, De Rhetorica (London, 1619). ,, Ethicse. Bacon (Lord) Essays ; An Advertisement touching on Holy War. Barbeyrac. (See Grotius and Puifendorf.) Barbosa, Collectanea Doetorum in Jus Pontificium. Barnwell and Alderson's Reports. Bartolus, Opera. Bernard, M., The Neutrality of Great Britain during the American Civil War. Bingham's Reports. Blackstone's Commentaries on the Laws of England. Blume, Deutsches Privatreeht. Bodinus, De Republica. Bolingbroke's Letters on the Study and Use of History. ,, Letters. Bowyer's Readings before the Society of the Middle Temple. Broekenbourgh's Reports (American). Burke's Works, Tracts on the Popery Laws. „ „ Thoughts on the French Revolution. „ „ Letters on a Regicide Peace. Ixxxviii LIST OF AUTHORITIES. Burke's Works, Reform of Representation in the House of Commons. „ „ Appeal from the New to the Old Whigs. „ „ Letter to R. Burke, Esq. „ „ Speech on Motion relative to the East Lidia Company. „ „ Speech on the Conciliation of America. Burlamaqui, Principes du Droit naturel et du Droit politique (1747), — French and English editions cited. Burrow's Reports. Butler (Bishop), (Sermon III.) On Human Nature. Bynkershoek, Quaestiones Juris Publici (Lug. Bat. 1767). „ „ „ Privati (Lug. Bat. 1767). „ De Dominio Maris (Lug. Bat. 1767). „ De Foro Legatonmi (Lug. Bat. 1767). Cabinet Library of Scarce and Celebrated Tracts (published by Clark, Edin- burgh, 1837). Camdenus in vitA Elizabethee, ad ann. 1680. Canning's Speeches. Carrington and Payne's Reports. Casaregis, Discursns Legales de Commercio. Cicero, Pro Cluentio. „ De Republica. ^ „ De Of&ciis. „ Pro Milone. „ De Legibus. „ De Pinibus. „ Orat. pro Balbo. „ Pro Caecina. Clarendon (Lord), Life of. Code civil, suivi de I'Exposi des Motifs, par Locre. Codes, Les Huit, frangais. Codes des Etrangers, ou Recueil des Lois et de la Jurisprudence anglaise con* cemant les Etrangers (F^lix Am6d6e : Paris, 1849). Coke's Institutes of the Laws of England. „ Reports. Colquhoun's Civil Law. Congress Documents ; Sess. 1827, 1828, No. 43. (See Papers.) Connecticut Reports. (See Reports.) Consolato del Mare. Corpus Juris Civilis. Corpus Juris Canonici. Correspondence. {See Papers.) Cranch's Reports (American). Croke's Reports. Cussy, De. (See Martens.) LIST OF AUTHORITIES. Ixxxix D'Aguesseau, (Euvres de M. le Chancelier. Dahlman, Geschichte von Danemark. Dallas' Reports (American). Dana's Wheaton's Elements of International Law. Davis' (Sir John) Eeports. Decretalia. (See Corpus Juris Canonici.) Decretum. (See Corpus Juris Canonici.) De Martens et De Cussy, Eecueil de Traites et de Conventions. Demosthenes, llepl irapairpe&fieias, Karo ^iXnnrov. Denisart, Collection de Decisions nouvelles. Denison's Crown Cases Reserved. Digest. (See Corpus Juris Civilis.) Dionysius Halicarnassensis. Dodson's Reports (Admiralty). Dohm, Denkwiirdigkeiten meiner Zeit. Domat, Traits des Lois. Dumont, Corps universe! diplomatique. Duvergier (M.), Collection de. (1843.) E East's Eeports. Eden's Reports in Chancery. Edinburgh Review, No. LXXXIL Edwards' Admiralty Reports. Egan's Law of Extradition. (London, 1846.) Eiehhorn, Kirchenrecht. Elliot's American Diplomatic Code. (Washington, 1834.) Emerigon, Contrats et des Assurances. (Mars 1783.) F Fselix, Revue ^trang^re de Legislation. „ „ de Droit international. (Paris, 1847.) Falck, Dissertatio Jurid. Inaugur. de servo libertate donate si Europse solum tetigit. Earrinacius, Opera. Eederalist, The (American). F^nelon, (Euvres de. J errand, Histoire des Trois D^membrements de la Pologne. Ferreiras (Pinheiro), Commentaries on Vattel. Feuerbach, Lehrbuch. Flassan, Histoire de la Diplomatie fran9aise. Forster, Crown Law. XC LIST OF AUTHORITIES. Gagem (Von), Kritik des Volkeri'echts. Garden (Le comte de), Code diplomatique de I'Europe. „ „ Traits complet de la Diplomatio (1833). Gazetteer of the World. Gentilis Albericue, Hispanicae Advocationes. „ „ De Legationibus. Gentz (Von), Fragment© aus dor neuesten Geschichte des politiachen Gleieli- gewiehts in Europa : Schriften. Gibbon's Decline and Fall of the Eoman Empire. Gilpin's Opinions of the Attornies-General of the United States. (1841 ed.) Gothofred (Jac), De famosis Latronibus Investigandis. Granville's (Lord) Speech in the House of Lords, on the Blockade of Norway, May 10, 1814. (Hansard's P. D.) „ „ Speech in the House of Peers, on the Motion of the Duke of Bedford, for the Dismissal of Ministers, 22nd March, 1798. (Published by J. Wright, Piccadilly.) „ „ Speech in the House of Lords, upon the Motion for an Address to the Throne approving of the Convention with Kussia in 1801. (Published by Cobbett and Morgan, Pall Mall, 1802.) Grotius, De Jure Belli et Pacis. French translation and notes by Barbeyrac. „ Mare Liberum. „ Epistolae. Guizot, De la Democratic en France. „ M^moires pour servir a I'Histoire de mon Temps. ,, Hist, parlementaire de France. Giinther, Europaisches Volkerrecht, (Altenburg, 1787.) Hazard's Reports (Admiralty). Hale's Pleas of the Crown. (London, 1716.) Hallam, History of the Middle Ages. Handbuch der Schweizerischen Staaten. Hansard's Parliamentary Debates. Harris and Johnson's Reports (American). Hawkins' Pleas of the Crown. (London, 1716.) Hefiters, Europaisches Volkerrecht der Gegenwart. (Berlin, 1848.) Heineccius, Prselectiones Academicse in H. Grotii de J. B. et P. libros iii. „ Jus Naturse et Gentium. Henry on Foreign Law (the judgment of the Court of Demerara in the case of Edwin V. Forbes). (London, published by Sweet, 1823.) Herodotus. Hertius. Hertslet's Collection of Commercial Treaties between Great Britain and Foreign Powers. Ilobart's Reports. LIST OF AUTHORITIES. XCl Hobbes (Thomas), De Give. Homan, De Delictis Peregrinorum, eaque puniendi ratione. Horner, Memoirs of. Hooker's Laws of Ecclesiastical Polity. (London, 1705.) Howell's State Trials. Huberus, De Conflictu Legum. Hugo, Jus Civile Antejustinianeum. Hume's History. „ Essays. I, J Ihering, Greist des Eomischen Rechts. Institutiones. {See Corpus Juris Civilis.) Isocrates, Arehidamus, Orationes et Epistolse (Grr. et Lat.). Jacobsen, Seerecht. Jenkins, Sir Leoline, iiife of (Wynne's edition). Jenkinson, Treatise on the Government of Great Britain in 1758. Johnson's (Dr.) Works : Thoughts on the Transactions relating to the Falkland Islands. Johnson's Reports (American). ,, „ Chancery (American). Jurist, The English. ,, ,, American. Kaltenborn, Volkerrecht. Kamptz (Von), Neue Literatur des Volkorrechts (1817). Kant, Reehtslehre. Keble's Reports. Kent's Commentaries on American Law. Klinkhammer's Disp. Hist. Pol. de Belli propter Success. Regni Hispan. &c. (Amstelodami, 1829). Kliiber, Europaisches Volkerrecht (Schaffhausen, 1831). „ Oeflfentliches Recht des deutschen Bundos und der Bundesstaaten. „ Acten des Wiener Congresses. Kluit, Dissertatio de Deditione Profugorum (Utrecht, 1829). Knapp's Privy Council Reports. Koch, Histoire abregee de Traites de Paix, contiuuee par Schoell (ed. Bru- xelles). „ Tableau des Revolutions de I'Europe. L Lamartine, Trois Mois au Pouvoir. Lanfrey, Histoire de Napoleon I. Lawrence's Wheaton's Elements of International Law. Laws of Oieron. Leach's Hawkins' Pleas of the Crown. Leibnitz, Opera. XCll LIST OF AUTHORITIES. Les Huit Codes frau9ai8 (Paris, 1834). Livius. Loccenii (Jo.) Jus Maxitimum Suecise (Holm. 1674). M Mably, Droit public de I'Europe fond6 sur les Traitds. Mackeldey, Lehrbuch des Kom. Eechts, and French Translation. Mackintosh (Sir James), Speech on the Kecognition of South American Ke- publics. „ Speech on the Blockade of Norway. „ Discourse on the Law of Nature and Nations. ( „ Miscellaneous "Works. „ Second Keview of Burke's Letter on a Regicide Peace. Malet, Sir A., Overthrow of the Germanic Confederation yi 1866. Manning, Law of Nations. Manuel de Droit public, par Snell. (See Handbuch.) „ Droit romain. {See Mackeldey.) Martens (De), Recueil de Trait^s (G-otting.). „ Nouveau Recueil de Traites. „ Precis du Droit des Gens (Paris, 1831). „ Primse Lineae Juris Gentium (Gott. 1785). „ Causes c616bres. „ Erzahlungen merkwiirdiger Falle des neueren Europ. Volker- rechts. „ Guide diplomatique. „ et De Cussy, Recueil de Traites et de Conventions. Mass6 (G.), Le Droit commercial, avec le Droit des Gens et le Droit civil (1845 ed.). Merlin, Repertoire de Jurisprudence. „ Questions de Droit. Miltitz, Manuel des Consuls (London, 1839). Miruss, Das Europaische Gesandschaftsrecht. Molloy, De Jure Maritimo et Navali. Montesquieu, Esprit des Lois. Moore, Privy Council Reports. Moser, Versuch des neuesten Europaischen Volkerrechts. Miihlenbriick, Doctrina Pandectarum. N Nepos (Cornelius), De Vita Excellentium Imperatorum (Delph. Paris, 1675). Neyron, Principes du Droit des Gens europeens. Newspapers : — " Times," The. " Globe," The. " Morning Post," The. "Morning Chronicle," The. LIST OP AUTHORITIES. XCUl Ompteda, Literatur des Volkerrechts, to 1784, continued by Von Kamptz to 1817. Oppenheim, System des Volkerrechts. Orient, La Question de (Paris, 1853). Ortolan, Diplomatie de la Mer. „ Des Moyens d'acqu^rir le Domaine international, ou Propriete d'Etat entre les Nations, &c. Ovidius, Fasti. Papers relative to the Aifairs of G-reece and Belgium, printed by the Foreign Office, London, 1835. Correspondence relating to the Project of annexing Cuba to the United States, laid before Parliament, April 11, 1853; and especially the English Foreign Secretary's (Lord John Eussell) Letter of February 16, 1853. Congress Documents, sess. 1827-1828, No. 43. (American), on the Navigation of the St. Lawrence, sess. 1827-28. (British), on the Navigation of the St. Lawrence, No. 45. State (English), during the "War, London, 1794. State Papers. (British and Foreign. Compiled by the Librarian and Keeper of the Papers, Foreign Office. Eidgway «fe Sons, London.) Presented to the Houses of Parliament by command of Her Majesty, 1853, with respect to British Subjects in China. Eeport of the House of Lords respecting the African Slave Trade, July 22, 1849. Eeport of the Select Committee of the House of Commons on the Slave Trade Treaties, August 12, 1853. Papers relative to the Eights of Liberated Africans, and the Prevention of Slave-dealing at Sierra Leone, laid before Parliament, August 12, 1853. Protocols of Conferences in London relative to the Affairs of Belgium, Eelating to the Latin and Greek Churches, laid before Parliament in 1853. Correspondence with the Eussian Government respecting Obstructions to the Navigation of the Sulina Channel of the Danube, in Papers laid before Parliament, 1853. Correspondence between some of the Continental Powers and Great Britain respecting the Foreign Eefugees in London, presented to both Houses of Parliament by command of Her Majesty, 1852. Pascal, Pens^es de. Pestel, De Necessitate et Usu Juris Gentium Dissertatio. Peters's Eeports (American). Philipson, Schip is Territoir. XCIV LIST OF AUTHORITIES. Phillimore (R.), Case of the Caroline Steamer, Letter to Lord Ashburton. „ Pamphlet on the Case of the Creole. „ Pamphlet, Armed Intervention on the ground of Religion con- sidered as a Question of International Law. Phillimore (Dr.), Preface to Sir George Lee's Reports. Plato. Plutarchus, Vitae Parallelee (Lipsiae, 1812). Polybius. Portalis. (See Code civil.) Pothier, CEuvres de. Prevost-Paradol, " La France nonvelle." Puchta, Cursus der Listitutionen. ,, Pandekten. PufFendorfius, De Jure Naturae et Gentium (London, Scan. 1672). „ Idem, French (Amsterdam, 1712). „ Idem, English (London, 1717). putter. Specimen Juris Public! ac Gentium Medii ^vi. Puttingen (De), Die gesetzliche Behandlung der Auslander in CEsterreich. R Raumer (Von), Polens Untergang; Histor. Taschenbuch. Rayneval (Gerard de). Institutions du Droit de la Nature et des Gens (Paris, 1851). Reiffenstuel, Jus Canonicum Universum. Reports, Acton's Admiralty. Barnwell and Alderson's. Bingham's. Brockenbourgh's (American). Burrow's. Carrington and Payne's. Coke's. Connecticut (American). Cranch's (American). Croke's. Dallas' (American). Davis' (Sir John). Denison's Crown Cases Reserved. Dodson's Admiralty. East's. Eden's, in Chancery. Edwards's Admiralty. Haggard's Admiralty. Harris and Johnson's (American). Howell's State Trials. Johnson's (American). , Chancery (American). LIST OF AUTHORITIES. XCV Be'ports (continued) — Jurist, The (English). „ (American). Keble's. Knapp's, in Privy Council, Moore's, ditto. Peters's (American). Eobinson's (Sir Ch.) Admiralty. (Dr. Wm.) „ Russell and Ryan's Crown Cases Reserved. Schoales and Lefroy, in Chancery in Ireland. Sergeant and Rawles' (American). State Trials (Howell's English). „ (Wharton's Ameriain). Strange's. Sumner's (American). Taunton's. Ventris's. Vermont (American). Vesey's (Sen.). Wallace's (in the Supreme Court) (American). Washington's Circuit (American). Wheaton's (American). Revue de Droit fran9ais et Stranger. „ de Legislature et de Jurisprudence (1843), t. xvii. Ridley, View of the Civil Law, 387. Robinson's (Sir C.) Admiralty Reports. (Dr. W.) „• Rocco, Deir Uso e delle Leggi delle Due Sicilie. Rulhi^re, Histoire de I'Anarchie de Pologne. Russell and Ryan's Crown Cases Reserved. Russell on Crimes (ed. 1843). Ruth erf orth, Institutes of Natural Law. Rymer, Fcedera, Conventiones, Literse et Acta Publica, inter Reges Anglise et alios Principes (London, 1704). Saalfeld, Handbuch des positiven Volkerrechts. Sallustius, Bellum Jugurthinum. Savigny, System des Romischen Rechts. „ Recht des Besitzes. Schilling, Pandekten-Recht. Schlegel, Staatsrecht des Konigreichs Danemark, &c. Schmalzgriiber, Jus Ecclesiasticum Universum. Schmauss, Corpus Juris Gentium Academicum. „ Einleitung zu der Staatswissenschaft. Schmalz, Das Europaisehe Volkerrecht. XCVl LIST OF AUTHORITIES. Schoales and Lofroy's Reports, Chancery, in Ireland. Schoell, Continuation of Treaties by De Martens. Seldenus, Mare Clausum. Seneca, Epistolre. Smith (Sir Thomas), Commonwealth of England. Spelman, Glossar. in voce Pirata, 387. State Papers. (British and Foreign. Compiled by the Librarian and Keeper of the Papers, Foreign Office. Eidgway & Sons, London.) {See Papers.) Statutes at Large of the United Kingdom of Great Britain and Ireland. Stephen's Commentaries on the Laws of England (3rd ed. London, 1853). Story, Commentaries on the Constitution of the United States. „ Conflict of Laws. Strange's Reports. Sumner's Reports (American). Suarez, Tractatus de Legibus et Deo Legislatore. Talleyrand (M.), Note to the Congress of Vienna. Taunton's Reports (American). Taylor's Civil Law. (1756.) Temple's Memoirs. (1709.) Thucydides. Tindall (Matthew, LL.D.), an Essay concerning the Laws of Nations and the Rights of Sovereigns. Tittman, Die Strafrechtspflege in volkerrechtlicher Riicksicht. (Dresden, 1817.) Troplong, De I'lnfluence du Christianisme sur le Droit civil des Remains. Twiss, Oregon Question Examined. „ The Duchies of Schleswig and Holstein. (London, 1848.) „ Law of Nations. Valin, Commentaire sur I'Ordonnance de la Marine. Vattel, Droit des Gens. Ventris' Reports. Vermont Reports (American). Vese/s (Sen.) Reports. Voet (J.), Comment, ad Pandectas. „ (Paul) de Statutis. W Wachsmuth, Jus Gentium apud Graecos. Waite's American State Papers. Wallace (E. J.), Pamphlet, The Oregon Question. Wallace's Reports in the Supreme Court. LIST OF AUTHORITIES. XCVU Waltersliausen, Urkundliche Geschichte des Ursprunges der Deutschen Hanse. Ward's Law of Nations. Warnkonig, De Studii Jur. Kom. Utilitate ac Necessitate oratio, (1817.) ., Doetrina Juris Philosophica. „ Institutiones Juris Eomani Privatse. Washington's Circuit Reports (American). Wenkius, Codex Juris Grentiura. Wharton's State Trials of the United States. Whea ton's History of International Law. (1"64:5.) „ Elements of International Law. (1836.) ,, Beports (American). „ Histoire des Progr^s du Droit des G-ens. (1853.) ,, The French Translations of these Treaties are constantly referred to in this Work, because they are of a later date, and contain additional matter. „ Histoire des Progr^s du Droit des Gens en Europe et en^Am^rique. (1853.) „ Elements du Droit international. (1852.) Wicquefort, L'Ambassadeur et ses Fonctions. Wi eland, De Necessitate et Usu Juris Gentium, &c. (Philadelphia, 1849.) Wilkinson's Dalmatia and Montenegro. (1848.) Wiseman's Excellency of the Civil Law. Wolfius, Opera. Wyck (H. A. M. Van Asch), De delictis extra Regni territorium admissis. (Utrecht, 1839.) Zacharia, Le Droit civil fran9ais. (1854.) „ Deutsches Staats- und Bundesrecht. (Gotting. 1841.) Zouche, De Jure Feciali, sive de Judicio inter Gentes* „ De Jure Nautico. VOL. I. xcix CASES FEOM THE ENGLISH, SCOTCH, AND IRISH REPORTS. A F Alexandra, The, 466 Fama, The, 28, n. 277 Anna, The, 283 Flad Ojen, The, 38, n. 39, n. Amedee, The, 348 40, n. 43 Advocate- General of Bengal v. Forbes v. Cochrane, 366 R. S. Dossee, 394 B G Bingley's (Sir R.) Case, 419 Grace. See Slave Grace Bond V. Hopkins, 36, n. Bonnet, Major, and others, Trials of (State), 418 H Burvot V. Barbut, 64 Hastings, Warren, Impeach- ment of, 23 C Helena, The, 21, 81 Calvin's Case, 179, 376 Henrick and Maria, The, 40, n. Chancellor, The, 391 ^^^ ,^ ^^ Codling, William, and others, ^^^^^ i;; ^^,^7' ^^' ^• Trial of (State), 420 g^op. The, 54, n Creole, The, 365, 367, 373, 444 Hurtige Hane, The, 23 ^ I Dawson, Joseph, and others, Uleanon Pirates, The, Queen t;. Trial of (State), 418 Belcher, 82 ^ Indian Chief, The, 86, n. 394 East India Company v. Camp- bell, 441 ^ Edmian and Smith's Case, 420 Kinder v. Kinder, 42 Elsebe, The, 40, n. King v. Kimberley, 442 Eclipse, The, 239, n. Knight the Negro, Case of, 365 f 2 CASES CITED. Laconia, The, 393 Langhorn v. AUnutt, 70 Le Case de mixt Moneys, 72 Le Louis, The, 38, 286, n. 242, 346, 348, 391, n. 411, 413 Lucy, The, 72, 73 Liindy, Case of, 442 M Madonna del Burso, The, 22, n. Madrazzo v. Willis, 347, n. Magellan Pirates, The, 420 Maria, The, 32, 36, n. 40, 41, 42, 46, 54, 55, 62, n. 63, n. 174, n. 182, 223, n. Mercurius, The, 40, n. Mirehouse v. Rennell, 36, n. Mure V. Kaye, 442 N Nabob of the Carnatic v. East India Company, 167 E/eg. V. Lewis, Central Criminal Court, 1857, 390 — V. Serva and others, 359 n. 363, 413 Rex V. CHnton, 461 — V. Helsham, 390, n. — V. Lepardo, 389, n. — V. M. A. de Mattos, 390, ??-. — V. Sawyer, 390, n. Ringende Jacob, The, 41, 63 S Salvador, The, 466 Santa Cruz, The, 40, 41, 42, 53 Santa Anna, The, 98, n. Serhassan Pirates, The, 82, 412 Shanley v. Harvey, 365 Slave Grace, The, 348, 365 Snipe and others. The, 42, 51 Sootragum Satputty v. Sabitra Dyo, 35, n. Somersett's (The Negro) Case, 364, 365, 366 Peach and others v. Bath, 65 Peltier, Jean, Trial of (State), 446 Peninsular and Oriental Com- pany r. Shands, 387 Pilkington v. The Commis- sioners for Claims on France, 73 Prinz Frederik, The, 402, 404 Progress, The, 40 R Recovery, The, 55 Reg. V. Carlin, ship Salvador, 466 Tandy, James Napper, and an- other. Trial of (State), 442 Triquet and others v. Bath, 65 Twee Gebroeders, The, 35, 192, 218, 231, 236 Vint and others. Trial of (State), 447 W Walsingham Packet, The, 42, n. Wall (Governor), Trial of (State), 389 CASES CITED. CI FEOM THE REPOETS OF THE NORTH AMERICAN UNITED STATES. Antelope, The, 81, 347 Arrogante Barcelones, The, 403 C Cagliari, The, 397, 409 Church V. Hubbards, 236, n. Commonwealth v. Deacon, 440, 444 V. De Long- champs, 440, 444 D Delafield v. Hand, 60, n. Desobray v. Laistre, 60, n. E Exchange, The. See Schooner Exchange G Gnlnet, John Etienne et al., Trial of (State), 425 H Henfield Gideon, Trial of (State), 426 Holmes V. Jennison, 440, 444 Holmes, Ex jparte, 44<4i Hudson V. Guestier, 237 Jackson v. Lunn, 179 Johnson v. Mackintosh, 281, n. K Kaine (Thomas), Case of, 459 Kelly V. Harrison, 179 M Monte Allegro, The, 404 Prigg V. Commonwealth of Pennsylvania, 374 Rex V. Ball, 444 Robbins's Case, 460 Rose V. Himely, 237 S Santissima Trinidad, The, 400, 404 Santos, Jose Ferreire Jos, Case of, 443 Schooner Exchange, The, v. M'Faddon and others, 398, 400, 404, 406 T Terrett and others v. Taylor and others, 179 Texas v. White, 156, n. Thompson v. Stewart, 60 U United States v. Smith, 412 V. Davis, 440,444 V. Nash, 460 Villato, Francis, Trial of (State), 426 W Washburn, In the matter of, 440, 444 Williams, Isaac, Trial of (State), 426 Yeaton v. Fry, 60 OU CASES CITED. FROM THE FRENCH REPORTS. Anonymous, Captain of Eng- Forsattning, The, 407 lish merchantman, Case of, Francisque, The Case of, 371 408 N Newton, The, 407 B S Borcant, Jean, 370 Sally, The, 407 COMMENTAEIES XTPON INTEENATIONAL LAW. COMMENT AKIES, TJPON INTERNATIONAL LAW. CHAPTER I. INTRODUCTION. I. The great community, the universal commonwealth of the world, comprehends a variety of individual members, manifesting their independent national existence through the medium of an organized government, and called by the name of States (a). II. States in their corporate capacity, like the individuals which compose them, are (subject to certain limitations) free moral agents, capable of rights, and liable to obligations {b), («) " Communitas, qusG genus humanum aut populos complures inter se colligat " — "jura magnse universitatis." — Grotius, de Jure Belli et Pads, Proleg. 17, 23. . " Societes, qui forment les nations — membres principaux de ce grand corps qui renferme tous les hommes." — D^Aguesseau, 1. 444 ; In- stitution du Droit pidtlic, v., vi. " Comme done le genre humain compose une society universelle divis^e en diverses nations^ qui ont leurs gouverneurs separes," &c. — Domat, Traite des Lois, ch. 11, s. 39. (&) I)ig. lib. V. tit. i. 76 : " (De inofF. testamento) populum eundem boc tempore putari, qui abbinc centum annis fuisset, cum ex iUis nemo nunc viveret." Dig. lib. vii. tit. i. 56 : " (De usufructu) an ususfructus nomine actio municipibus dari debeat, qusesitum est, periculum enim esse videbatur ne perpetuus fieret quia neque morte nee facile capitis diminutione ^^ periturus est ... . sed tamen placuit dandam esse actionem: unde ^^B sequens dubitatio est quousque tuendi sunt municipes ? et placuit centum ^^K annis tuendos esse municipes, quia is Jim's vita longce?««rwwj." (r) Prelim. 8. 3. (?/) Ih. 1. 2. c. XXV. 88. 1-7. INTRODUCTIOX. 9 tions of her own security ; and in the case of the nation, as in the case of the individual, duty and true self-love point to the same path (2:). The whole edifice of this science, pronounced by the still higher authority of Grotius to be the noblest part of jurisprudence («), may be said to rest upon the sure foun- dations — first, of moral truth ; and, secondly, of historical fact : — 1. The former demonstrates that independent communi- ties are free moral agents. 2. The latter, that they are mutually recognized as such in the universal community of which they are individual members {b). (z) "Ainsi quand un Etat voisin est injustement attaqu^ par un eunemi puissant, qui menace de Fopprimer, si vous pouvez le defendre sans vous exposer a un grand danger, il n'est pas douteux que vous ne deviez le faire. N'objectez point qu'il n'est pas perniis a un souverain d'exposer la vie de ses soldats pour le salut d'un etranger, avec qui il n'aura contracte aucune alliance defensive. II pent lui-meme se trouver dans le cas d'avoir besoin de secoursj et par consequent mettre en vigueur cet esprit d'assistance mutuelle, c'est travailler au salut de sa propre nation." — Liv. ii. c. i. s. 4. (a) Grotnis, Proleg. 32: "In hoc opere quod partem j urisprudentiae longe nobilissimam continet." Aristoteles, JEth. lib. i. c. 2 : 'AyaTTr]Tov ^liv kgI hi fitwrmo gentium quod et naturah dicitur." All civilized heathen nations have recognized this law as (e) Lettres persanes, liv. xlv. (/) Arist. Eth. lib. v. c. 7. St. Paul's Ep. to the Romans, ii. 14, 15. {g) Mare Libermti, lib. v. ; Merlin, Rep. de Jurispr. torn. v. p. 291. "Hanc autem qusestionem ad jus Natures ideo retiilimus, quia ex liistoriis nihil comperire potuimus ea de re jure voluntario gentium esse constitu- tum." — Grot. 1. iii. v. 5. 16 INTERNATIONAL LAW. binding upon themselves in their internal relations. They called it the unwritten, the innate law — the law of which mortals had a Divine intuition {li) — the law which was begotten and had its footsteps in heaven, which could not be altered by human will (2), which secured the sanctity of all obliocations— the law which natural reason has rendered binding upon all mankind {k). XXIV. It has been often said that the civilized heathen nations of old, that the Greeks and Romans recognized no such law in their external relations; that is, in their intercourse with themselves or with other nations. But this conclusion is founded on slender and insufficient premises, chiefly upon the absence of distinct treatises on the subject, on the want of a distinct phrase expressing the modern term international law — on the etymological meaning of words — on the use of "Jw5 gentium " in the repositories of Koman law, as an expression identical with jws naturcB — and on the practical contempt for the law, exhibited in the unbounded ambition and unjustifiable conquests of ancient Rome. XXV. Nevertheless, we know that Aristotle passed a severe censure upon those nations who would confine the cultivation of justice Avithin the limits of their own territories and neglect the exercise of it in their intercourse with other nations (Z). Thucydides (m) prefers the same charge against (Jl) Arist. Mhet. b. i. C. 13 : "ihov jxiv ruv tKaamg ujpieTfttvov rrpbg avTovg' Kal tovtov tov pev dypafoVf tqv ^k ysypap.psvov. Koivov ^k TOV Kara SfJTafij d' og. Ti S' tl nil ddiKolev ; ov fidXXov ; Yldw yf, *-.7-.X. — J)e JRq). lib. i. 22-3. (p) Kiivo KaXXioVf TiKvoVf iaorrjra ri/i^j', /) (piXox>g dei (fAXoig TToXeig Te TroXefft avfxfidxovg re av^fjid^otg ^vvht~ij TO yap "laov vomfiov dvOpdjiroig efu. Phcenissce, 535, {q) Cornehus Nepos, Vita Themistoc. (r) Livy, 1. xxiv. («) See Appendix for a fuller dissertation upon this subject. {f) Zouch's Treatise on International Law is entitled "De Jur Feciali, sive de Jure inter Gentes." VOL. I. C 18 INTERNATIONAL LAW. be better translated than by the words " Public International ** Law." 2. The institution of the Recuperator es, with the doctrine of the Recuperatio, the precursor of that system , which is now called " Private International Law." Traces of the same fact are abundantly scattered over the pages of Latin authors, legal, historical, and philosophical. The phrase '*jus gentium," in classical writers, and in the Jus- tinian compilations of law, is indeed generally (though not without exceptions) used as synonymous with natural law (?i); for there are passages in these compilations, as well as in the pages of Sallust and Livy, in which the phrase, strictly speaking, denotes international law. The fact, moreover, that the expression "jus gentium " was used as synonymous with what is now called "jus naturale,^^ is by no means inconsistent with the position, that the principles of natural law were, theoretically at least, recognized by Home in her external as well as her internal relations (:r). A cursory reference to the works of Cicero alone will show that in his time, and before the destruction of the Republic, the science of International law was beginning to receive great cultivation in all its branches ; nor can the necessity and duty of international obligations be more forcibly incul- cated than in these words : " Qui civium rationem habendam " dicunt, exterorum negant, hi communionem et societatem " humani generis dirimunt,^^ Cicero praises Pompey for being well versed, not only in what is now called Conventional or Diplomatic Law, but also in the whole jurisprudence relating to Peace and War. Cicero maintains, that God has given to all men conscience and intellect ; that where these exist, a law exists, of which (m) Puchta, Instit. 362. See Appendix. (x) Taylor, p. 128. " The law was natural law before : the existence of this situation only gives its use and application. Suppose the ob- servance of faith to be a rule of nature : when, to speak in the lan- guage of the Schools, it is Jus Natures ab oriyine et causa proxima, it is Jus Gentium a subjedo.'^ And again : " Contracts were introduced by the law of nations ; no new law is formed, but an eternal and necessary law has now a scene to exert its operations in." SOURCES OF INTERNATIONAL LAW. 19 all men are common subjects. Where there is a common law, he argues, there is a common right, binding more closely and visibly upon the members of each separate State, but so knitting together the Universe, " ut jam universus hie mun- '' dus una civitas sit, communis Deorum atque hominum " existimanda " (y). That law, this great Jurist says, is immortal and unalter- able by prince or people, and in glowing language he anticipates the time when one law and one God. will govern the world : " Neque erit alia lex Romae, alia Athenis, alia *^ nunc, alia posthac ; sed et omnes gentes et omni tempore " una lex et sempiterno et immutabilis continebit, unusque " erit communis quasi magister et imperator omnium *' Deus " {z), XXyil. The subject which has been just discussed is not one of mere literary curiosity or philosophical research. It has indirectly a practical bearing on the theme of this {y) De Rep. The Epistles of Seneca, the contemporary of St. Paul, breathe the very spirit of Christian brotherhood and unity : " Philosophia docuit colere divina, huniana diUgere, et penes Deos imperium esse, inter homines consortium " (Ep. 95). " Homo, sacra res homini — omne hoc quod vides, quo divina atque humana conclusa sunt, unum est : membra sumus corporis magni, natura nos cognatos edidit, quum ex iisdem et in eadem gigneret. Hsec nobis ainorem dedit mutuum et sociahiles fecit " (Ep. 90). Troplong, de Vlnjluence du Christianisme sur le Droit civil des Romains.—V. 70, &c. " Homo sum : humani nihil a me alienum puto," is the language ■which Terence puts into the mouth of one of his characters. — Heauton- timor. act i. sc. i. 25. {z) De Rep. lib. iii. c. xxii. See also De Legihus (lib. i. c. vii.), and a noble passage (lib. i. c. xxiii.), where he bids his hearer elevate his mind to the prospect of the universe, its rules, and its laws : " Seseque non unius circumdatum mcenibus loci, sed civem totiiis mundi quasi unius whis agnoverit." " Of Law there can be no less acknowledged than that her seat is the bosom of God, her voice the harmony of the world : all things in heaven and earth do her homage — the very least as feeling her care, and the greatest as not exempted from her power j both angels and men, and creatures of what condition soever, though each in diiFerent sort and manner, yet all, with uniform consent, admiring her as the mother of their peace and joy."— /ioo^er, ib, b. i, c 2 20 • INTERNATIONAL LAW. treatise. The same school which denies that the polished nations of antiquity recognized international obligations, uses the assumed fact as an illustration of a further and more general position — namely, a denial that any general International Law, not the result of positive compact, exists between Christian nations and those which are not Christian. XXVIII. This position, it will be seen, directly conflicts with the principle just enunciated ; and, on the contrary, the first important consequence which flows from the influence of Natural upon International Law is, that the latter is not confined in its application to the intercourse of Chnstian nations, still less, as it has been affirmed, of European nations, but that it subsists between Christian and Heathen, and even between two Heathen nations, though in a vaguer manner and less perfect condition than between two Christian communities ; so that whenever communities come into contact with each other, before usage or custom has ripened into a quasi contract, and before positive com- pacts have sprung up between them, their intercourse is subject to a Law (a). Lord Stowell, in one of those judgments in the British High Court of Admiralty which contain a masterly ex- position of the principles of International Jurisprudence, speaking of the then Mahometan States in Africa, observed, " It is by the law of treaty only that these nations hold (a) So Mr. Jenhinson (afterwards Earl of Liverpool), in his able trea- tise " On the Conduct of the Government of Great Britain in 1758," observes (p. 29) — " I shall therefore examine the right which neutral powers claim in this respect, first, according to the law of nations — that is, according to those principles of natural law which are applicable to the conduct of nations, such as are approved by the ablest writers and practised by States the most refined. I shall then consider the altera- tions which have been made in this right by those treaties which have been superadded to the law of nations, and which communities, for their mutual benefit, have established among themselves." " Jus hoc (i. e. legationis) non ut jus naturale ex certis rationibus certo oritur, sed ex voluntate gentium modum accipit." Here the distinction between natural and conventional international law is clearly laid dowTi. J SOURCES OF INTERNATIONAL LAW. 21 " themselves bound, conceiving (as some other people have " foolishly imagined) that there is no other law of nations, ** but that which is derived from positive compact and con- " vention " {h). The true principle is clearly stated in the manifesto of Great Britain to Russia, in 1780: "His Majesty," it is said in that State paper, " has acted towards friendly " and mutual powers according to their own procedure " respecting Great Britain, and conformable to the clearest " principles generally acknowledged as the Law of Nations, *' being the only law between powers where no treaties sub- " sist, and agreeable to the tenor of his different engagements " with others ; these engagements have altered this primitive " law by mutual stipulations proportioned to the will and '^ convenience of the contracting parties " (c). Montesquieu was not ignorant, as has been supposed, of the science of International Law when he said, " Toutes " les nations ont un droit des gens ; et les Iroquois memes " qui mangent leurs prisonniers en ont un. lis envoient et " re9oivent des ambassades : ils connoissent des droits de la " guerre et de la paix : le mal est que ce droit des gens " n'est pas fonde sur les vrais principes " (c?). In other words, these barbarous nations acknowledged, even while polluted by such abominations, that certain rules were to be reciprocally observed in their intercourse with each other, whether in Peace or War — even as the savages who practise infanticide do homage to the Moral Law in holding ingra- titude to be infamous. In the same spirit an eminent writer on English Criminal Law (e), speaking of the immunities of Ambassadors, says : " But for murder and other offences of great enormity, which " are against the light of nature and the fundamental laws of (6) Robinson's Admiralty Reports (The Helena), vol. iv. p. 7. (c) A7in. Regis, vol. xxiii. p. 348, Manifesto of England to Russia, April 23rd, 1780. {d) Montesquieu, de V Esprit des Lois, lib. i. c. iii. (e) Foster on Crozvti Law, p. 188 ; Ward's Law of Nations, vol. ii. p. 542. The correctness of the application of this principle to the case of ambassadors will be considered hereafter. 22 INTERNATIONAL LAW. " all society, the persons mentioned in this section are " certainly liable to answer in the ordinary course of justice, " as other persons offending in the like manner are. For " though they may be thought not to owe allegiance to the " Sovereign, and so to be incapable of committing high " treason, yet they are to be considered as members of *' society, and consequently bound by that eternal universal " law by which all civil societies are united and kept " together " (/). Vattel says : " Les nations etant libres, ** indcpendantes, egales, et chacune devant juger en sa con- " science de ce qu'elle a a faire pour remplir ces devoirs, etc., *' celle qui a tort peche contre sa conscience " {g). XXIX. But if the precepts of Natural Law are obligatory upon Heathen States in their intercourse with each other, much more are they binding upon Christian Governments in their intercourse with Heathen States. Infidel Nations indeed are, it has been frequently holden, entitled, in the absence of any compact, to an indulgent application of rules derived exclusively from the positive law andgestablished custom of Christian States (A), though the ^application of rules even from these sources becomes (J) See, in the Annual Megister for 1840, vol. Ixxxii. p. 429, the Chinese Commissioner's Letter to the Queen of England, in which he recognizes *' the principles of eternal justice " as binding between nations. {g) Vattel, Frelim. s. 21. (A) Lord Stowell speaks of the Ottoman Porte as a State long con- nected with this country by ancient treaties, and at the present day (i. e. in 1802) by engagements of a peculiar nature. " But," he adds, " independently of such engagements, it is well known that this Court is in the habit of showing something of a peculiar indulgence to persons of that part of the world. The inhabitants of those countries are not possessors of exactly the same Law of Nations with ourselves. In consideration of the peculiarities of their situation and character, the Court has repeatedly expressed a disposition not to hold them bound to the utmost rigour of that system of public laws on which European States have so long acted in their intercourse with one another." — The Madonna del Burso, 4 Eohinson's Adm. Rep. p. 172. Aud again he says : '* It has been argued that it would be extremely hard on persons residing in the kingdom of Morocco, if they should be held bound by all the rules of the Law of Nations as it is practised SOURCES OP INTERNATIONAL LAW. 23 more stringent as the intercourse increases between the Christian and the Infidel community. The great point, however, to be established is, that the principles of international justice do govern, or ought to govern, the dealings of the Christian with the Infidel Com- munity. They are binding, for instance, upon Great Britain, in her intercourse with the native powers of India ; upon France, with those of Africa ; upon Russia, in her relations with Persia or America ; upon the United States of North America, in their intercourse with the Native Indians (2). The violation of these principles is indeed sometimes urged in support of an opposite opinion, but to no purpose ; for it is clear that the occasional vicious practice cannot effect the reality of the permanent duty. XXX. Unquestionably, however, the obligations of International Law attach with greater precision, distinctness, and accuracy to Christian States in their commerce with each other {k). The common profession of Christianity both among European States. On many accounts, undoubtedly, they are not to be so strictly considered on the same footing as European mer- chants : they may, on some points of the Law of Nations, be entitled to a very relaxed application of the principles established by long usage between the States of Europe holding an intimate and constant in- tercourse with each other." — The Hurtige Hane, 3 Rohinsoii's Adm. Hep. p. 326. (i) Hyder Ali was invited by France and England to accede to the treaty by which the stattts quo ante helium was established in India. — Wheaton's History of Int. Laiv, p. 305. Heineecius, in Grcftium Prcef. v. i. p. 14 : " Quid vero si gens qusedam cum Turds vel Sine?mbus,'^ &c. " Now, having contended, as we still contend, that the Law of Nations is the law of India as well as of Europe, because it is the law of reason and the law of nature, drawn from the pure sources of morality, of public good, and of natural equity, and recognized and digested into order by the labour of learned men, I will refer your Lordships to Vattel, b. i. c. xvi., where he treats of such engagements," &c. — Burke's Works, XV. 109 (Speech on the Impeachment of Warren Hastings) ; CrancKs Reports (American), vol. v. p. 1 ; Peter's Reports (American), vol. V. p. 1 ; Kenfs Commentaries, vol. iii. p. 382 -, Wheatons Elements du Droit international, i. 50. iji) The Canon Law, which is in some respects International Eccle- 24 INTERNATIONAL LAW. enforces the observances (/) of Natural Law, and introduces, according to the language of Bartolus, a " specialejus gentis " Jidelis '\jn)f a new and most important element into this as into all other systems of jurisprudence ; Christianity- imparts a form and colour of its own to those elements of public justice and morality which it finds already existing in these systems, while it binds together by close though invisible ties the different members of Christendom, not destroying indeed their individuality, but constituting a common bond of reciprocal interest in the welfare of each other, in lieu of that exclusive regard for isolated nationality, which was the chief, though certainly not the sole end pro- posed to itself by the Heathen State. The language of the principal treaties of Europe fully recognizes this doctrine (n), siafitical Law, took distinct and especial cognizance of General International Law, and valuable remarks upon it are to be found in the commentators on the Decretum. Decret. Prima Pars, dist. i. c. ix. : " Jus gentium est sedium occupatio, a^dificatio, munitio, bella, captivitates, servitutes, postlirainia, foedera, paces, inducife, legatorum non violandorum religio, connubia inter alieuigenas prohibita (sect. 1). Hoc inde jus gentium appellatur, quia eo jure omnes fere gentes ittuntur." The great Portuguese canonist, Barhosa, observes on this : " Si princeps velit vel jus getitium jvimarium, vel seciindarium intra 8ui imperii limites abrogare, potestate sua abuti censendus est." — Barhos. Collect, in c. ix. dist. i. See, too, BeiJJenstuel and Schmalz- yriteher on the same passage in the Decretum. (l) Clement the Fifth, in his Bull " Pastoralis," annulling the ex- traordinary semi-legal procedure by which the Emperor Henry VII. meant to deprive Robert, King of Naples, of his kingdom, stated among other reasons, that Robert had been deprived of a natural right — viz,, the means and opportunity of defending himself: " Per quae de criraine prsesertim sic quasi deleto defensionis {qu(2 a jure provenit nnturali) facultas adimi valuisset ; " and, he adds, " Cum ilia impe- 7'atori tollere non licuerit quce Juris naturalis e:vistunt." — Clement, 1. ii. t. xi. (m) " Si enim jus gentium de servitute captivorum in bello justo in Ecclesia mutatum est, et inter Christianos id non servatur ex antiqua Ecclesiffi consuetudine quae est veluti spedale jus gentis Jidelis ut notavit Bartolus in 1. hostis 8. de captivis, n. 16." — Suarez, lb. c. xx. s. 8. (n) Treaty of Westphalia {Munster), 1648 : " Au nom et a la gloire de Dieu, soit notoire a tons, etc. ; eux Seigneurs Roi et Etats touches de compassion cliretienne, etc. ) au bien non-seulement des Pays-Bas, niais de toute la chretiente, convians et prians les autres Princes et SOUECES OF INTERNATIONAL LAW. 26 XXXT. This would be called by many who have of late (years written on the science. International Morality ; they [would restrict the term Law absolutely and entirely to the 'treaties, the customs, and the practice of nations. If this were a mere question as to the theoretical arrange- ^ment of the subject of International Law, it would be but of little importance ; and the disputes to which the different modes of treating the science have given rise would perhaps be found, upon careful examination, to resolve themselves for the most part into disagreements of a verbal character. But it is of great practical importance to mark the subordi- nation of the law derived from the consent of States to the law derived from God {o). Potentats d'icelle de se laisser flechir par la Grdee Divine a la meme compassion," &c. — Schmaitss, Corpus Jur. Gent. Acad, i, G14. Treaty of Par in, 1763: "Aii nom de la tres-sainte et indivisible Trinite, Vere, Fils, et Saint-Esprit, ainsi soit-il. Soit notoire a tons ceux qu'il appartiendra, etc.: II a plu au Tout-puissant de r^pandre r esprit d' union et de concord e sur les Princes, dont les divisions avoient porte le trouble dans les quatre parties du monde, etc. (Artie. 1.) II y aura line Paix chretieniie universelle et perpetuelle," &c. — Wenckii Codex Juris Gentium^ iii. 329. Treaty of Utrecht, 1713 : " Quoniam visum est Deo optimo maximo, pro nominis sui gloria et salute universa, ad miserias desolati orbis jam suo in tempore medendas, ita regum animos dirigere ut mutuo pacis studio erga se invicem gerantur; notum sit, &c. : quod sub \ns, Divinis auspic-iis Seren. ac Poten. Princeps et Domina Anna, &c. &c., et S. ac P. Prin. et Dom. Ludovicus XIV., &c., totius Chridiani orbis tran- quillitate prospicientes, &c. suo proprio motu et paterna ea cura quam erga subditos suos et Rempuhlicam Christianam exercere amant," &c. — Schmauss, ii. 1312. Treaty of Versailles, 1783, Art. 1 : "II y aura une Pair chretienne universelle et perpetuelle tant par mer que par terre," &c. — Recueil de Traites et de Conventions, De Martens et De Cussy, i. 301. Treaty of 1 ienna, 1815 : "Au nom de la tres-sainte et indivisible Tri7iite."—De M. et C. iii. 61. " Deux lois suffisent pour regler toute la repuhlique chretienne^ mieux que toutes les lois politiques — I'amour de Dieu, et celui du pro- cliain." — Pascal, Pensees, part ii. art. xvii. (o) Saviyny, R. R. i. 80 ; Burke, vol. viii. 182, Letters on a Regicide Peace. Suarez, de LeyiJms a Deo Lcyislatore, 1. ii. c. ii. s. 6, tit. DeLege ^Etcrua et Natural! ac Jure Gentium. 26 INTERNATIONAL LAW. XXXII. One important practical inference from this position is, as has been shown, the necessary existence of International Obligations between Christian and Heathen States. Another practical consequence is, that the Law derived from the consent of Christian States, is restricted in its operation by the Divine Law ; and just as it is not morally competent to any individual State to make laws which are at variance with the law of God, whether natural or revealed, so neither is it morally competent to any assem- blage of States to make treaties or adopt customs which contravene that Law. Positive Law, whether National or International, being only declaratory {p), may add to, but cannot take from the prohibitions of Divine Law. " Civilis ratio civilia quidem " jura corrumpere potest, naturalia non utique " {q) is the language of Roman Law; and is in harmony with the voice of International elurisprudence, as uttered by Wolff : ** Absit vero, ut existimes, jus gentium voluntarium ab *' earum voluntate ita proficisci, ut libera sit earum in eodem Grot, cle J. Bel 8f P. 1. ii. c. ill. s. 6. Voet ad Pandectas, lib. i. t. i. s. 19. p. 11. Vattel, Presf. 22. "Quod si populorum jussis, si principum decretis, si sententiis judi- cum, jura constituerentur : jus esset latrocinarij jus adulterare; jus testameuta falsa supponere : si hsec sufFragiis aut scitis multitudinis proharentur. Quae si tanta potestas est stultorura sententiis atque jussis, ut eorum sufFragiis rerum natura vertatur: cur non sanciunt ut quae mala perniciosaque sunt, habeantur pro bonis ac salutaribus? aut cur, quum jus ex injuria lex facere possit, bonum eadem facere non possit ex malo ? Atqui nos legem bonam a mala nulla alia nisi naturae norma dividere possumus." — Cic. de Leg. 1. i. c. xvi. (jo) " It would be bard to point out any error more truly subversive of all the order and beauty, of all the peace and happiness of human society, than the position that any body of men have a right to make what laws they please, or that laws can derive any authority from their institution merely, and independent of the quality of the subject matter. All human laws are, properly speaking, only declaratory. They may alter the mode aud application, but have no power over the substance of original justice." — Burke's Treatise on the Popery Laws. " That power which, to be legitimate, must be according to that im- mutable law in which will and reason are the same." — Burke^s WorJiS vol. V p. 180 (Thotu/hts on the French Revolution). (q) Instit. de Lcyit. Ajuat. 1. iii. I SOURCES OF INTERNATIONAL LAW. 27 " coTiclendo voluntas, et stet pro ratione sola voluntas, nulla ^^ habita ratione juris naturalis " (r). ^P Upon this principle we may unhesitatingly condemn as illegal and invalid all secret articles in treaties opposed to the stipulations which are openly expressed. Upon this principle it is clear that a custom of countries to destroy and plunder foreigners shipwrecked upon their shores must always, and under all circumstances, be an outrage upon the rights of Nations. So with respect to an usage of imprison- ing strangers who have innocently arrived in time of peace, under a lawful flag, into a foreign port, on the ground that they are free men of that particular colour or complexion, which disquiets the slaveholder of the country, inasmuch as his slaves, being of the same colour and complexion, are, by the presence of the free strangers, reminded of the possi- bility of becoming free also ; so, if there existed in a country under the government of an autocrat a law or custom of imprisoning all strangers having peaceably arrived from a country under a republican form of government — any usage of this or the like kind, however inveterate, however sanc- tioned by Municipal Law, however accordant with national feeling, must always be a grievous violation of International Justice. Upon the same principle Grotius condemns the violation of women in time of war, as an undoubted breach of International Law among all Christian nations {s). In the same manner and for the same reason he denies that captives can be lawfully made slaves, and either sold or condemned to the labour of slaves. (r) Wolf, Jus Gent. Fresf. (s) The prohibition even among heathen nations was, he observes, "Jus gentium, non omnium, sed meliorum;" but amongst Christian nations, he proclaims it as an undoubted principle : " Atque id inter Christianos observari par est, non tantum ut disciplina3 militaris partem sed et ut partem juris gentium — id est ut qui pudicitiam vi laisit, quam- . vis in bello, ubique pcense sit obnoxius." — lib. iii. c. v. s. 2. " Sed et Christianis in universum placuit bello inter ipsos orto captos servos non fieri, ita ut vendi possunt, ad operas urgeri, et alia pati qua> servorum sunt, atque ita hoc saltem quanquam exiguum est perlecit reverentia Christiance Icyis.^'— lib. iii. c. vii. s. 9. 28 INTERNATIONAL LAW. XXXIII. This branchof the subject may be well concluded by the invocation of some high authorities from the jurispru- dence of all countries, in support of the foregoing opinion. Grotius says emphatically: " Nimirum humana jura TwwZ^a '* constituere possunt prceter naturam, contra nihil " (t), John Voet speaks with great energy to the same effect : ** Quod si contra recta) rationis dictamen gentes usu quajdam *' introduxerint, non ea jus gentium recte dixeris, sed pessi- " mam potius morum hum ani generis corruptelam^^ (w). SuareZf who has discussed the philosophy of law in a chapter which contains the germ of most that has been written upon the subject, says: " Leges autem ad jus gentium " pertinentes verae leges sunt, ut explicatum manet, pro- *' pinquiores sunt legi natural! quam leges civiles, ideoquc '* impossibile est esse contrarias a3quitati naturali" {x), Wolff, speaking of his own time, says : " Omnium fere '* animos occupavit perversa ilia opinio, quasi fons juris '* gentium sit utllitas propria : unde contingit, id potentia3 '' coaiquari. Damnamus hoc in privatis, damnamus in " rectore civitatis ; sed ceque idem damnandum est in gen- " tihus " (y). Mackintosh nobly sums up this great argument : " The " duties of men, of subjects, of princes, of lawgivers, of " magistrates, and of States, are all parts of one consistent ** system of universal morality. Between the most abstract *' and elementary maxim of moral philosophy, and the most *' complicated controversies of civil or public law, there " subsists a connection. The principle of justice, deeply " rooted in the nature and interest of man, pervades the *' whole system, and is discoverable in every part of it, even ** to its minutest ramification in a legal formality, or in the " construction of an article in a treaty" (2:). {t) De J. B. et P. lib. ii, c. vi. s. 6. (w) Comment, ad Pand. de Just, et Jure, t. i. s. 19. {x) Lib. ii. c. xx. s. 3 ; De Lege j^tertm et Naturali ac Jure Gentium, {y) Jus Gent. 8. 163. (s) Discourse on the Law of Nature and Nations. t REASON OF THE THING. 29 CHAPTER IV. REASON OF THE THING. XXXIV. The next question which arises in the prose- cution of our inquiries into the sources of International Ju- risprudence is this — How are the principles of Natural or Eevealed Law to be applied to States ? Though States are properly and by a necessary metaphor treated as moral persons, and as the subjects of those rights and duties which naturally spring from the mutual relations of individuals ; nevertheless it must be recollected that a State is actually a diflPerent thing from an individual person. Reason, therefore, which governs the application of common principles to diverse subjects, and demands, therefore, a dif- ferent application of principles Intrinsically the same {a) to the State and to the Individual, may be regarded as a distinct source of International Law. This application must be made justly, and in a manner (^) suitable to this actual difference ; and in order to effect this, " the reason of the thing," which has been already enume- rated as one of the sources of International Law — " necessitas " finis quae jus facit in moralibus " (c) — must in all cases be considered. Vattel, following and improving upon Wolff, expresses himself upon this point with his usual clearness, and more than his usual force (d). There are many cases, he observes, (a) Vattel, Preface, pp. 22, 23. (6) Kara Tt)v vKix}KH^uvt]v vXiji — Arisf. Eth. I. \ Wolff, Jus Gentium, B'cef. (c) Grot, de J. B. et P. 1. ii. c. v. 24, s. 2. (d) Vattel, ih. et Prelim, s. 6. 30 INTERNATIONAL LAW. in which Natural Law cannot decide between nation and nation as it would between individual and individual. It is necessary to learn the mode of applying the law in a manner agreeable to the subject; and it is the art of doing this according to justice, founded on right reason, which makes International Law a particular science. It must, as Grotius says (e), be " recta illatio ex naturaj principiis procedens " which guides the national conscience in its international duties. XXXV. The most strenuous — it might be said the most vehement — advocate for this source of International Juris- prudence is Bynkershoek. There is no dissertation of his upon any subject of International Jurisprudence which does not teem with references to it. " Ratio " and " Usus " are, according to him, the two props which sustain the whole building; and " Recta ratio " is " Juris gentium magistra." The tendency of this author, who ranks in the first class of jurists, is rather perhaps to undervalue the authority both of his predecessors and of the tribunals of his own country. His opinion on this matter, however, construed by reference to the context, and subject to the qualification which it must receive from his frequent reliance upon precedents, and upon the opinions both of jurists and civilians, contains in reality nothing objectionable or inconsistent with the doctrine of other writers (/) with respect to the international authority due to these precedents and these opinions. Bynkershoek was very far from meaning to convey the notion that whenever a question arose between nations, either of the contending parties was at liberty to solve it arbitrarily, according to its own notions of convenience or by an independent process of reasoning. On the contrary, in every case of doubt, the reason vrhich long usage had sanctioned was to prevail ; and the authorities of writers and of precedents were also recognized as leading to a (e) Proleg. s. 40. (/) Vattel, Pi'elim. s. 6. And see Appendix to this Work. ROMAN LAW. 31 just conclusion of Law. But he more especially recognized the fitness of one authority to direct and guide the Reason of States in the adjustment of their mutual relations; that authority was the written reason of the Roman Law. His predecessors indeed, in every page of their writings, had assumed as unquestionable the homage due to this collection of the maxims deducible from right reason and natural jus- tice. None, however, have spoken more strongly with re- spect to it than Bynkershoek : " Non quod in iis^^ he says, *' qu(B sola ratio commendat a jure Romano ad jus gentium " non tuta sit collectlo " {g). And again : " Quamvis non de populi Romani, sed de " gentium jurisprudentia agamus non abs re tamen erit de " jure Romano quasdam prasmonuisse, cum qui id audit vocem " fere omnium gentium videatur audire " (Ji). Again : " Abstine commodo si damnum metuis, ipsa juris " gentium, non sola Ulpiani vox est " (i). XXXVI. The Roman Law may in truth be said to be the most valuable of all aids to a correct and full knowledge of international jurisprudence, of which it is indeed, histori- cally speaking, the actual basis ; and it has been remarked with equal force and elegance by an English civilian, " That " although whatever we read of in the text of the Civil Law was not intended by the Roman legislators to reach or ^' direct beyond the bounds of the Roman empire, neither could they prescribe any law to other nations which were ^* in no subjection to them Yet since (J) there is V^ such a strong stream of natural reason continually flowing f* in the channel of the Roman Laws, and that there is no Y^ affair or business known to any part of the world now p* which the Roman empire dealt not in before, and their (g) Qucsstiones Juris Fuhlici, 1. i. c. iii. (Ji) De Foro Legat. c. vi. (i) Qucsst. J. P. c. viii. in fine. The passage cited from U/pian will [be found Dig. lib. xvii. t. ii. s. 23. — Pro socio — " abstine commodo quod [per servum accessit, si damnum petis." (J) Alhericus Gentilis, 1. i. ; de Jure Belli, c. i. .>*i INTERNATIONAL LAW. " justice still provided (/<) for ; what should hinder but that, " the nature of affairs being the same, the same general rule " of justice, and dictates of reason, may be as fitly accom- " modated to foreigners dealing with one another (as it is " clear they have been by the civilians of all ages), as to " those of one and the same nation, when one common reason " is a guide and a light to them both ; for it is not the per- " sons, but the case, and the reason therein, that is consider- " able altogether " (/). In the case of the Maria^m), Lord Stowell expresses sur- prise that Vattel should mention a rule of International Law " as a law merely modern, when it is remembered that it is a " principle not only of the Civil Law (on which a great part " of the Law of Nations is founded), but of the private juris- " prudence of most countries in Europe — that a contumacious " refusal to submit to fair inquiry infers all the penalties of " convicted guilt." XXXVII. Independently of the historical value of the Roman Law as explanatory of the terms and sense of treaties, and of the language of jurists, its importance as a repository of decisions, the spirit of w^hich almost always, and the letter of which very frequently, is applicable to the controversies of independent States, can scarcely be over- stated («). (Ji) " Mirum tamen est banc novam prudentiam, Eomauos, a quibus ad omnes populos juris fecialis, justitiae fontes purissimi manarunt, antea semper latuisse." — Bod. de Rep. 1. v. c. vi. p. 594. (V) Wiseman'' s Excellency of the Civil Law, p. 110 ; Burhe^ viii. 185 ; Letters on a Beg. Peace. (m) 1 Bohinson's Adm. Bep. p. 363. (w) I am glad to find that the authority of Professor Mancini confirms the opinion which I have expressed : — '' D' altra parte, evocata la memoria del vecchio imperio de' Cesari, e ridestato per opera delle nostre Universita lo studio del Dritto romano, r autorita di questo antico deposito della sapienza italica venne risor- gendo da per tutto, e fini (giovamento imraenso alia civilta avvenire !) per riguardarsi come un dritto comune obbligatorio di tutte le nazioni civili." — Bella Nazionalita. Pi-elezione al corco di Dntto, etc., Torino, 1851, p. 15. ROMAN LAW. 33 From this rich treasury of the principles of universal juris- prudence, it will generally be found that the deficiences of precedent usage, and express international authority, may be supplied. Throughout the greater portion of Christendom it presents to each State what may be fairly termed their own consent, bound up in the municipal jurisprudence of their own country; and this not merely to the nations of Europe, whose codes are built on the Civil Law, but to their numerous Colonies, and to the independent States which have sprung from those Colonies, and which cover the globe. And so we find that the Koman law was more than once referred to as an authority, upon the international question of the Free Navigation of Boundary Rivers, by the president and diplomatic ministers of the United States of North America, in the discussion which took place between this Republic and the kingdom of Spain, as to the navigation of the Mississippi, in the year 1792 ; and to all nations, whatsoever and where- soever, this Law presents the unbiassed judgment of the calmest reason, tempered by equity, and rendered perfect, humanly speaking, by the most careful and patient industry that has ever been practically applied to the affairs of civilized man. It may be fairly said, that many International disputes in time of peace might be adjusted by this arbiter, assisted by the helps, and modified by the other sources which will presently be considered ; certainly it may be most truly affirmed, that the greater number of controversies between nations would find a just solution in this comprehensive system of practical equity. " Dixi ssepius," said Leibnitz, " post scripta Geometrarum nihil exstare quod vi ac subtili- " tate cum Romanorum scriptis comparari possit : tantum " nervi inest, tantum profunditatis nee uspiam juris " naturalis prgeclare exculti uberiora vestigia deprehendas ; " et ubi ab eo recessum est, sive ob formularum ductus, sive " ex majorum traditis, sive ob leges novas, ipsae consequen- " tiae, ex nova hypothesi geternis rectae rationis dictaminibus VOL. I. D 34 INTERNATIONAL LAW. ** additaj, mirabili ingenio nee minore firmitate dedu- « cuntur " (o). So the English civilian before quoted observes (p) : " And, " moreover, by, as it were, a general consent of nations, ** there is an appealing to, and a resting in, the voice and " judgment of the Civil Law in these cases between nation " and nation. The reason whereof is, because any thing ** that is irrational, unnatural, absurd, partial, unjust, im- *' modest, ignoble, treacherous, or unfaithful, that law *' abhorreth ; and for that it is the most perfect image and *' representation of nature, and of the equity and reason ** nature prescribes to humane actions, that was ever yet " presented or set forth to the world in a law." In the negotiations between the United States of North America and Spain relative to the navigation of the Mississippi, the provisions of theRoman Law were cited with respect to the public character of rivers, to the use of the shores as incident to the use of the water, and to the occasional extension of this incidental right, when circumstances rendered it necessary that the cargo should be removed further inland, the shores being, for some reason, an unsafe place of deposit (). It is scarcely necessary to guard against the error which Grotius, in another part of his work, denounces — that in- stances recorded in History, merely by virtue of being so recorded, constitute precedents of International Law (c). History is a record of the injustice, evil passions, and folly, as well as of the justice, virtues, and wisdom of Nations. The necessities of the epoch in which Grotius wrote left him (a) " Quainquam enim nee sit exemplis judicandum, et aurea ea dicitur Justiniani lex, ab exemplis tamen duci probabilem conjecturam certum est, et in dubio judicandum imo est exemplis; et cum itum in consuetudinem est. Neque enim mutare decet qufe certam observan- tiam semper babuerunt, et firmius judicium creditur, quod plurimorum sententiis confirmatur." — Alhericus Gentilis, lib. i. c. ii. De Jure Belli. (b) Grot. Proleg. s. xlvi. : "Historiae duplicem liabent usum,[^qui nos- tri sit argumenti : nam et exempla suppeditant et judicia. Exempla quo meliorum sunt temporum ac populorum eo plus babent auctoritatis ; ideo Grseca et Romana Vetera caeteris prsetuliraus. Nee spernenda judicia, prsesertim consentientia ; jus enim naturae, ut diximus, aliquo modo inde probatur; jus vero gentium non est ut aliter probetur." The Flad Oijen, 1 Rob. Adm. Rep. p. 141. (c) " Solet et illud quseri an jure talionis interfici, aut male tractari legatus possit ab eo veniens, qui tale quid patraverit. Et sunt quidem ultionis talis exempla in bistoriis satis multa : sed nimirum ^^bistoriae 44 INTERNATIONAL LAW. little or no choice in selecting his examples and precedents chiefly from the antiquity of Greece and Rome. This is not the case with his successors ; they have far ampler and far apter materials. But the edifice is not the weaker for the breadth and depth of the classical foundations laid by the first architect; and the principle which guided him is in this, as in most other instances, most valuable to the later and, in spite of their advantages, inferior builders. XLIX. (2.) Secondly, the consent of Nations is evidenced by the contents of Treaties, which for this, as well as for other reasons, constitute a most important part of International Law (d). L. Upon this point there is one observation which merits, from its importance, precedence over all others. It is this : No treaty between two or more Nations can affect the general principles of International Law prejudicially to the interest of other Nations not parties to such covenant ; at the same time, the contracting parties (e) may introduce into a treaty expressions so generally worded as to be either explanatory of a previously contested point of law, or declaratory of the future interpretation of it, or in other ways frame the covenants of the Treaty between themselves so as to lay down an universal principle binding on them, at least, in their intercourse with the rest of the world. Nowhere will this important doctrine be found laid down with greater non tantum quse juste, sed et quae inique, iracunde, impotenter facta sunt, memorant." — Grot. 1. ii. c. xviii. 7. {d) *' All this body of old conventions, composing the vast and volu- minous collection called the Corps diplomatique, forms the code or statute law, as the methodized reasonings of the great publicists and jurists form the digest and jurisprudence of the Christian world. In these treasures are to be found the usual relations of peace and amity in civilized Europe." — Letters on a Regicide Peace, BurMs Works, ix. 235. (e) " Usus intelligitur ex perpetua, quodam modo, paciscendi edicen- dique consuetudine ; pactis enim principes saepe id egerunt in casum belli, 8£epe etiam edictis contra quoscunque, flagrante bello. Dixi, ex jjerpetica quodam modo consuetudine, quia unum forte alterumve pactum, quod a consuetudine recedit, jus gentium non mutat." — Bynkershoek, Qucrstiones Juris Puhlici, 1. i. c. x. Wheatons EL of Int. Laiv, i. CO. TREATIES. 45 precision, or more irresistible argument, than in Lord Gren- ville's speech in the House of Peers, upon the motion for an address to the throne approving of the convention with Russia in 1801 (/). Among the many attributes of a statesman possessed in rare excellence by that minister, was his inti- mate acquaintance with International Jurisprudence in all its branches. His opinion is, therefore, of very great autho- rity. He argued that, by the language of that convention, a new sense, and one hitherto repudiated by Great Britain, with respect to contraband of war would be introduced,!^so far at least as Great Britain was concerned,^ into general International Law; that inasmuch as some provisions of the Treaty with respect to what should be considered contra- hand of war were merely prospective, and confined to^^the contracting parties, England and Russia, while other provi- sions of the same Treaty were so couched in' the preamble, the body, and certain sections which contained them, as to set forth, not the concession of a special privilege to be enjoyed by the contracting parties only, but a recognition of one universal pre-existing right, they must be taken as laying down a general rule for all future discussion with any Power whatever, and as establishing a principle of law which was to decide universally on the just interpretation of the technical term contraband of war {g). LI. The constant consent of various nations to adopt a particular interpretation of a particular term is, generally speaking, strong evidence that such is the true International meaning belonging to it. Bynkershoek was in the habit of placing great stress upon the language of Treaties, as evidence of the universal consent of nations, and especially on this point (A): '^^ Excute pacta gentium, qu£e diximus, excute et " alia, quae alibi exstant, et reperies, omnia ilia appellari (/) This speech was published separately, by Cobbett and Morgan, Pall Mall, November 13, 1802. See, too, Hansard's Parliamentary Debates, 1801. {g) See Appendix for the extract at length from the speech upon this point. (A) Qucsstiones Juris PMici, 1. i. c. x. 113. 46 INTERNATIONAL LAW. " contrahanda, quae, uti hostibus suggeruntur, bellis gerendis " inserviunt, sive instrumenta bellica sint, sive materia, per " se bello apta ; " and, again, " Priusquara autem, quid mihi " videatur, exponam, operas pretium erit, pactiones gentium " consuluisse ; " again, " Sed his paulisper sepositis audi " pacta gentium ; " — these and the like expressions abound in his most valuable dissertations. Nor in this respect is he at variance with other jurists ; it is their universal opinion that not only the particular provisions, but the general spirit, of Treaties to which at different periods many nations have been parties, is of great moment and account as the evidence of their consent to the doctrine contained in them. So Lord Stowell, in his judgment of The Maria, arguing for the uni- versal right of the belligerent to visit neutral merchant ships, says : " The right 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 '^ pre-existing, and merely regulate the exercise of it " (z). So the " Reponse sans replique^ already mentioned, of Great Britain to the Prussian memorial, and that memorial itself, refer to a variety of Treaties as containing provisions illustrative and confirmatory of the doctrine maintained in the reply. LII. When, however, it is said that the consent of nations may be gathered in some degree from the conventions of Treaties, it is not meant that every kind of Treaty can furnish even this degree of evidence. Many are concerned with matters of no general {j) interest to other than the (i) 1 MohinsorCs Adm. Hep. p. 3G0. (./) "By this means the proposed fraternity is hustled in the crowd of those treaties which imply no change in the public law of Europe, and which do not, upon system, aiFect the interior condition of nations. It is confounded with those conventions in which matters of dispute among sovereign powers are compromised, by the taking off a duty more or less, by the surrender of a frontier town or a disputed district on the one side or the other, by pactions in which the pretensions of fa- milies are settled (as by a convenyancer making family substitutions and successions), without any alterations in- the laws, manners, religion, privileges, and customs of the cities or territories which are the subject of such arrangements." — Burke, viii. 234, Letters on a Regicide Peace. TREATIES. 47 contracting parties ; many contain stipulations wrung from the necessities of one party, and compelled to admit claims to which by the general law its adversary was not entitled (k). From Treaties of this description no argument of the consent of Nations can be fairly deduced. But there are certain great and cardinal Treaties in which, after long and bloody wars, a re-adjustment of International relations has taken place, and which are therefore more especially valuable, both from the magnitude and importance of their provisions, which have necessitated a recurrence to, and a re-statement of, the fundamental principles of International Law; and also from the fact, that frequently the greater number of European States, and lately some American and even Asiatic communities, have been parties thereto (Z). This subject will come again under discussion in a subse- quent consideration of the general subject of Treaties (m). It may, however, be as well to mention in this place that the Treaties which have principally affected International Law, are (n) : — (k) "Qiiodvero contra rationem juris receptum est, non est produ- cendum ad consequentias." — Diff. i. iii. s. 14 (De Legihus). " Quas propter necessitatem recepta sunt, non debent iu argumentum train.*' — Dig. 1. xvii. 162 ; de JDiversis Hegulis Jtois Antiqui. (J) " Tons les princes et etats de I'Europe se trouvent ainsi directement ou indirectement compris dans ce traite, a I'exception du Pape et du Grand Seigneur, qui seuls n'y prirent aucune part." — Koc7i. Hist, des Tr. c. i. 1, 3, injine. (m) Vol. ii. ch. vi. vii. viii. (w) " Si Ton examine les revolutions qui ont contribu^ a constituer I'etat actuel de I'Europe, on se convaincra qu'il y a peu de traites ante- rieurs a ceux de Westphalie, d'Oliva, et de Carlowitz, dont I'influence s'etende aux affaires generales, et au systeme politique de nos jours. L'etude des traites qui les precedent ne laisse cependant pas d'avoir son utilite, parce que les stipulations qu'ils renferment sont souvent rappelees et confirmees dans des actes plus recents ; que les pretentions des puis- sances derivent en grande partie des anciens traites, et qu'enfin la con- naissance de ceux-ci sert a etendre les vues de la politique ; car plus on p^netre dans I'bistoire des traitds, plus on se rend propre aux negociations et aux travaux diplomatiques. " II serait superflu d'entrer dans un plus grand detail sur les avantages que procure la connaissance des traites ; il suffit de remarquer qu'elle donue celle de I'etat actuel de TEurope, ainsi que des droits et des obli- 48 INTERNATIONAL LAW. For Europe generally: — Westphalia (1648), to which every Sovereign and State on the Continent of Europe, except the Pope and the Grand Seignor, was a party ; Utrecht (1713); Paris and Hubertsbourg (1763); Paris (1814), and the Congress of Vienna. The Treaty of Paris (with the Conventions annexed to it), March 30, 1856, between England, France, Russia, Sardinia, and the Porte, by which the independence and integrity of the Ottoman Empire are secured, and this Empire is admitted " into the Public Law and System of Europe." The Principalities of Moldavia and Wallachia (o) and Servia (the last in a peculiar way) (/?) are placed under the suzerainty of the Porte. The Black Sea is neutralized and opened to the merchant vessels of the world, but interdicted gations r^ciproques des puissances. Elle est done indispensable a tous ceux qui sont charges du maniement des affaires publiques ou qui veulent s'y former. Elle n'est pas d'une nioindre utility a ceux qui dtudient I'histoire en philosophes et en politiques. " En suivant le fil des n6gociations, on d^couvre I'origine des 6vene- ments qui ont change la face du monde politique et produit I'etat de choses qui regne aujourd'hui en Europe. Cette ^tude conduit done a la vraie connaissance de I'histoire, et nous met en ^tat de releyer beaucoup d'erreurs commises par les historiens qui ont neglig6 d'approfondir les traites. "—^oc7«, Hid. des Tr.y Tref. (o) Article XXI. — " The territory ceded by Russia shall be annexed to the Principality of Moldavia under the suzerainty of the Sublime Porte.'' Ai-tiele XXVI. — " It is agreed that there shall be in the Principalities a national armed force, organized with a view to maintain the security of the interior, and to ensure that of the frontiers. No impediment shall be opposed to the extraordinary measures of defence which, by agree- ment with the Sublime Porte, they may be called upon to take in order to repel any external aggression." (;j) Article XXVIII. — " The Principality of Servia shall continue to hold of the Sublime Porte, in conformity with the Imperial Hats which fix and determine its rights and immunities, placed henceforward under the collective guarantee of the Contracting Powers. In consequence, the said Principality shall preserve its independent and national administra- tion, as well as fuU liberty of worship, of legislation, of commerce, and of navigation." Article XXIX.—" The right of garrison of the Sublime Porte, as stipulated by anterior regulations, is maintained. No armed intervention can take place in Servia without previous agreement between the High Contracting Powers." — Annual Begister, 1856, pp. 316, 317. TKEATIES. 49 to vessels of war. The navigation of the Danube (q) made free and placed in the category of the great rivers mentioned in the Treaty of Vienna. The Declaration respecting Maritime (r) Law was signed by the Plenipotentiaries of Great Britain, Austria, France, Prussia, Russia, Sardinia, and Turkey, assembled in Con- gress at Paris, April 16, 1856. The Treaty of Prague, 1866, the close of the war by which Prussia destroyed the old German Bund, obtained for herself the supremacy which Austria once had in Germany, seized without scruple or justification large portions of her weaker neighbours' territories — a fate which even the ancient Free City of Frankfort could not escape (5). (fy) Article XV. — " The Act of the Congress of Vienna having esta- blished the principles intended to regulate the navigation of rivers which separate or traverse different States, the Contracting Powers stipulate among themselves that those principles shall in future be equally applied to the Danube and its mouths. " They declare that this arrangement henceforth forms a part of the public law of Europe, and take it under their guarantee." — Annual Megister, 1850, p. 314. (r) See Appendix j also Preface to this volume ; also ch. x. of third volume. (s) See Overthroiu of the Germanic Confederation in 1866, by Sir A. Malet, 1870. " The ancient free city of Frankfort," he says, " obtained, by special favour of the King of Prussia, reimbursement of a portion of the contribution which was exacted j but the Government is abolished, and the city is reduced to a Prussian town of thethird rank." — Chap. xx\. p. 384. " Before the war the kingdom of Prussia consisted of nine pro- rVinces : — 1. Eastern Prussia, with Konigsberg as its capital. 2. Western [Prussia ; capital, Dantzig. 3. The Grand Duchy of Posen, or Polish 'Prussia; capital, Posen. 4. Silesia; capital, Breslau. 5. Brandenberg; in which is situated Berlin. 6. Pomerania ; capital, Stettin. 7. Saxon Prussia, in which is situated the strong fortress of Magdeburg. 8. West- phalia. 9. Rhenish Prussia. After the war, in addition to these terri- tories, she incorporated into her dominions Hanover, Hesse-Cassel, Nassau, Hesse-IIomburg, the Duchies of Schleswig, Holstein, and Lauenburg (these last, however, had been previously annexed), that part : of Hesse-Darmstadt which lies to the north of the Maine, and the little principality of Hohenzollern — the cradle of the Prussian Royal House — VOL. I. E 50 INTERNATIONAL LAW. The amalgamation of the various Italian States into the Kingdom of Italy is not recorded in any Treaty or Treaties. The union of Lombardy with Piedmont is recorded in the Treaty or Treaties of Zurich (November 11, 1859), between Austria, France, and Sardinia. Austria adopted the course with respect to Lombardy {t) which she afterwards pursued with respect to Venetia — namely, that of ceding the territory to France, who transferred it to Sardinia. Events, subse- quently to the Treaties of Zurich, led to the formation of the present Italian Kingdom, which has been recognized by all Powers but the Pope. The principal Treaties between the United States of North America and the European Powers are — The Treaty of Versailles (1783), containing the recogni- tion of this Republic. The Treaty of Ghent (December, 1814), between Great Britain and the United States, chiefly as to boundaries of their respective dominions in North America. The Treaty between the United States of North America with the Confederation of Central America (December 4, 1845). The international position of the Republics of Honduras and Nicaragua, in Central America, was materially affected by the claims of Great Britain to the Protectorate of the Mosquito territory. The Treaty called the Clayton-Bulwer situated on the borders of Lake Constance, between Wiirtemberg and Switzerland." Frankfort is omitted.— ^ww. Hec/. for 1866, p. 239. Article IV. of the Treaty of Prague. — " His Majesty the Emperor of Austria recognizes the dissolution of the late German Bund, and gives his consent to a new formation of German}^, in which the Imperial State of Austria shall take no part. Moreover, his Majesty promises to recog- nize the closer Federal relations which his Majesty the King of Prussia is about to establish north of the line of the Maine, and also agrees that the German States to the south of this line shall form an union, the national connection of which with the northern confederacy is reserved for a more definite agreement between both parties, and which is to maintain an international independent existence." {t) Ann. Reg. 1859, p. 2o4. TREATIES. 51 Treaty, and the explanatory subsequent Dallas-Clarendon Treaty, which the United States Senate refused to ratify, failed to remove the dispute between Great Britain and the United States of North America relatively to these Re- publics. But by a Treaty between Great Britain and Honduras, 28th Xovember, 1859, and with Nicaragua, 28th August, 1860, relinquishing the Mosquito Protectorate, these troublesome questions were finally set at rest {u). The Treaty which established the kingdom of Belgium (1839). A group of Treaties negotiated for the North of Europe only :— Oliva (1660) ; Kiel (1814), with the Ottoman Porte ; Carlowitz (1699) ; Bucharest (1812). The Treaties which have affected the relations between the Ottoman Porte and the European Powers generally : — The Act of the Porte granting to British merchant vessels the privileges of commerce in the Black Sea (October 30, 1799). The Treaty which established the kingdom of Greece (1832). The Convention concluded between the Courts of Great Britain, Austria, Prussia, and Russia, and the Sublime Otto- man Porte, for the Pacification of the Levant, signed at London, July 15, 1840. The Treaty of July 13, 1841, as to the Navigation of the Dardanelles and the Bosphorus, which incorporated into the written Law of Nations the conventional maxim as to territorial jurisdiction over adjacent waters, revised and altered by Treaty of Paris (already mentioned), 1856. The separate Treaty between England, Austria and France guaranteeing the independence and integrity of the Ottoman Empire (Paris, 1856). The Firman and Hatti-Sherif in 1856, relative to the status and privileges (u) They were constantly referred to in the speeches of Presidents of the United States. See Ann. Register for 1857, p. 345 ; for 1858, p. 283 j for 1859, p. 274 ; for 1860, p. 284. 52 INTERNATIONAL LAW. of Christians and non-Mussulmans in Turkey, issued in accordance with Article IX. of the Treaty of Paris, 1856 (x). The Treaty between Russia and Persia, signed at Seiwa (1813), and confirmed at Tefl is, under the mediation of Great Britain, in which Persia recognized the exclusive right of Russia to have ships of war in the Caspian Sea. The Treaty between Great Britain and Persia, signed at Tehran, November 25th, 1814, followed by the royal order of the Schah relative to the trade of British subjects in Persia (y). LIII. These Treaties furnish one of the many reasons why the science of International Law has made such progress since the Treaty of Westphalia, which is usually considered as the first great adjustment of International Relations on the Continent of Europe. It is, then, a sound maxim that a principle of International Law acquires additional force from having been solemnly acknowledged as such in the provi- sions of a Public Treaty (z). LIV. How far a provision of a Treaty may be affected by its omission in a subsequent Treaty between the same PoAvers is a question of much gravity. When the independence of the United States of North America was acknowledged, the right of navigating the Mississippi was secured to the subjects of Great Britain as well as those of the United States by a Treaty (1783) between these two Powers : but in the Treaty of Ghent (1814), which put an end to the war between these Powers which had broken out in 1812, the stipulation of 1783 in favour of British subjects was not renewed, and it is now contended by the United States that the right belongs exclusively to their own subjects (a). When a Treaty, dealing with certain subjects, is silent as (x) See also pt. ii. ch. i. on States. (y) In vol. ii. pt. viii. the International status of foreign Spiritual Powers, especially the Pope, is considered, and the History of Concordaia, or Treaties between such Powers and the State. (s) For a list of Treaties relating to the opening/ of ports usnalli/ closed to foreigners — reldche forcee — see Appendix. (a) Wheatons Hid. mi, -508, 585. TEEATIES. 53 to others naturally connected with them, or leaves them on an indefinite and disputable footing, questions afterwards arising upon subjects of this latter class will then be decided according to the subsequent judgment and practice of nations, which must be looked to for exposition of these subjects ; and when in a Treaty an enumeration is made of particular articles, or particular matters, according to the nature of the Treaty, this is held to be done in order to prevent misunder- standing, and not to warrant the inference, that the articles or matters excepted from the enumeration should be consi- dered as tacitly sanctioned thereby : the rule " Exceptio " confirmat regulam " is not applicable to cases of this de- scription ip). LV. The consent of Nations is also evidenced by the Proclamations or Manifestoes (c) issued by the Governments of States to the subjects of them upon the breaking out of war. These frequently contain, not only expositions of the causes which have led to this result, but also a defence of the conduct of the Government, founded upon a reference to the principles of International Law, in declaring an offensive or undertaking a defensive war. These public documents furnish, at all events, decisive evidence {d) against any State which afterwards departs from the principles which it has thus deliberately and solemnly invoked ; and in every case they clearly recognize the fact, that a system of law exists which ought to regulate and control the International relations of every State. LVI. The Marine Ordinances or regulations of a State afford valuable testimony, first, as to the practice of the State (6) The Ringende Jacob, 1 Rob. Adm. Rep. p. 92 {Lord Stoioell). (c) The Santa Cruz, 1 Rob. Adm. Rep. 61. (d) The remarks which JEschines so forcibly urges as to the advantage of public records, and the testimony they bear to the character of public men, is equally applicable to States: Ka\6r, cj dvSptg 'Aeiivdioi^ KaXof i) Tu>v Sijuoaiujv ypafifJLdrcJV (pvXaicrj ' aKivtiTOV yap iari koI ov avfifitTaTTinTti toXq avTOfioXovaiv tv ry TTokiTtiq,, dW iTTsdojKS rw Srjfiqjf oirorav (SovXrjTaif avviStiv Toiig TvaXai jxiv TTovrtpovQy Ik fieTal3o\fj<^ S' d^iovvrag tivai xpijarovc. — JEschin. Oral. adv. Ctesiph, s. 75. 54 INTEliNATlONAL LAW. itself upon this branch of International Law ; and also, in some degree, as to the usage of Nations as generally recog- nized at that time by the jurists and statesmen, and legis- lative assemblies of the country which issued them (e). When the institutes of great maritime countries agree upon a question of International Maritime Law, they consti- tute a tribunal from which there can rarely, if ever, be any appeal. Certain of these institutes, independently of their agree- ment or disagreement with other maritime codes, have always been held in the highest respect ; and certainly no English writer or judge can be accused of national partiality for relying upon them (/). These are the celebrated " Con- " solato del Mare," with the commentary of Casaregis, and the French Ordonnance sur la Marine of 1681, with the com- mentary of Valin ; and, due regard being had to the modem practice, the " Collection des Lois marltimes anterieures au " XVIir SiecW by Pardessus. LVII. The consent of Nations is also evidenced by the decisions of Prize Courts, and of the tribunals of Interna- tional Law sitting in each country. It has been already observed, that in time of war, neutral States have a right to demand ex debito justitice {g) that there be courts for the administration of International Law sitting in the belligerent countries (/i). (e) Wheaton states the proposition in a less limited shape. — Elements of Inteiyi. LmOj p. 101. See The Maria, passim, especially p. 368, 1 Roh. Adm. Re2i. : The Hoop, 1 Roh. Adm. Rep. pp. 198, 199. (/ ) The Maria, passim. Oppenheim, System des Volkerrechts, kap. v. s. 8. *'The venerable authority of the Consolato." — Zord Stowell, 6 Roh. Adm. Rep. p. 4, Henrick and Maria. " // Consolato del Mare, cap. 273, expressly says, * The enemy's goods found on board a friend's ship shall be confiscated -, ' and this is a book of great authority." — The Duke of Newcastle's Letter to M. Michel, note to first Proposition, p. 64. ((j) The Snipe and others, Edivardsh Adm. Rep. : also published sepa- rately. (A) See important remarks of Mahly, Droit puhlic, vol. iii. pp. 350, I DECISIONS OF PRIZE COURTS. 55 The duties of those courts are faithfully described by Lord Stowell, in the case of the Swedish Convoy (i) : " In forming '' my judgment, I trust that it has not for a moment escaped " my anxious recollection what it is that the duty of my sta- " tion calls for from me ; namely, not to deliver occasional " and shifting opinions to serve present purposes of particular '^ national interest, but to administer with indifference that " justice which the Law of Nations holds out, without distinc- " tion, to independent States, some happening to be neutral, " and some belligerent : the seat of judicial authority is indeed " locally here, in the belligerent country, according to the " known law and practice of nations, but the law itself has no " locality. It is the duty of the person who sits here to " determine this question exactly as he would determine the " same question if sitting at Stockholm ; to assert no preten- " sions on the part of Great Britain which he would not allow " to Siceden in the same circumstances ; and to impose no " duties on Sweden, as a neutral country, which he would not " admit to belong to Great Britain in the same character." In another case {k), he says : " It is to be recollected that " this is a Court of the Law of Nations, though sitting here " under the authority of the King of Great Britain. It belongs " to other nations as well as to our own ; and what foreigners " have a right to demand from it is the administration of the " Law of Nations simply, and exclusively of the introduction " of principles borrowed from our own municipal jurispru- " dence, to which it is well known they have at all times " expressed no inconsiderable reluctance." It cannot be denied that this theory of judicial | duty breathes the very spirit of pure and impartial justice. It is to be remembered, also, that the simple enunciation of such a theory is, to a certain extent, a guarantee for a correspond- ing practice on the part of the nation proclaiming it. It holds up the severest standard by which to measure {i) The Maria, 1 Rohinson, p. 350. ik) The Recovery, (3 Dodson's Adm. Rep. p. 340. 56 INTERNATIONAL LAW. the decisions of the court ; and it witnesses beforehand, as it were, against any deviation from the path of duty thus emphatically pointed out. The remark of Mr. Wheaton upon this theory, expounded, he admits, by " one of the greatest of maritime judges," is, that those whose interests are affected by those adjudications will always doubt whether the practice corresponds with the theory — especially in the case of a great maritime country, whose judge must, he thinks, unconsciously feel the national bias in favour of whatever operates to the encouragement of the national navy. These judgments, however, he says, if the principles upon which they are founded be rigorously examined, may be an instructive source of information upon Prize Law; and he himself enumerates "the adjudication of " Boards of Arbitrators and Prize Courts " among: the sources of International Law, ascribing greater weight to the former than to the latter authority. It is true that the value of the judgments referred to depends upon the principles, reasonings, and authorities upon which they rely ; but it is the constant practice in these cases to state the data at length, as well as the judicial con- clusion ; and Mr. Wheaton himself does not suggest that the latter are often found inconsistent with the former. In the very elaborate letter addressed, March 28, 1843, to the British Government, by Mr. Webster, then Foreign Secretary to the United States, that eminent person, after contending that there is no distinction between the right of Visitation and the right of Search, observes: "If such well- " known distinction exists, where are the proofs of it? What " writers of authority on the public law, what adjudications " in Courts of Admiralty, what public Treaties, recognize "it?"(/) As reference has been, and must afterwards be made, in the course of this work, to the judgments of Lord Stowell, and as it is important to mark the place which these are (/) Wheaton'' s Hist. p. 711. I DECISIONS OF PRIZE COURTS. 57 entitled to occupy among the sources of International Law, the opinion of American jurists with respect to them becomes valuable, and for many reasons. When they were delivered, the greater portion of Continental Europe was under the actual dominion, or at least the predominating influence, of France, which then disregarded all the authorities of the ancient Law of Nations. These judgments contain frequent references to French writers upon Maritime Law, and to Vattel generally, as a work of the highest authority. The assent or dissent therefore of France, and the countries subject to France at that time, could not aifect the merit of these decisions. The United States of North America, hoAvever, were naturally inclined to favour France from motives of gratitude. These States composed a free maritime nation, daily increasing in all the elements of national greatness and prosperity ; occupying an immense territory in the new world ; avowedly adhering to the system of International Law (w) as acknowledged and received at the time when they became an independent kingdom: they were themselves, during a portion of the momentous period over w^hich these decisions extend, a Neutral Power, upon whom the principles laid down in them pressed, however justly, with great and acknowledged severity ; and during another portion a Belligerent, actuated by the keenest hostility against the country in which these judgments were delivered. The verdict of such a nation is unquestionably entitled to great weight in matters of International Law, and not open to the charge, with respect to this epoch at least, of partiality to the Prize Tribunals of Great Britain. For this reason, the opinion of Mr. Chancellor Kent upon the sub- ject of Lord Stowell's judgments is very valuable. A portion of the Chancellor's work was devoted by him to the subject (m) Commentaries upon American Law, hij Mr. Chancellor Kent, vol. i. p. 1, eitinf? instance of the 4tli of December, 1781 ; Annals of Cmit/ress, vol. vii. 185. 58 INTEKNATIONAL LAW. of International Jurisprudence, and it is certainly in no way inferior to the rest of the Commentaries which have earned for him a very high legal reputation in the Western hemisphere (n): — " In the investigation of the rules of the Modern Law of " Nations, particularly with regard to the extensive field of " maritime capture, reference is generally and freely made to " the decisions of the English Courts. They are in the habit " of taking accurate and comprehensive views of general " jurisprudence, and they have been deservedly followed by " the Courts of the United States on all the leading points " of National Law. We have a series of judicial decisions " in England and in this country, in which the usages and " the duties of nations are explained and declared with that " depth of research, and that liberal and enlarged inquiry, " which strengthen and embellish the conclusions of reason. " They contain more intrinsic argument, more full and pre- " cise details, more accurate illustrations, and are of more " authority, than the loose dicta of elementary writers. When " those courts in this country which are charged with the " administration of International Law have differed from the " English adjudications, we must take the Law from domestic " sources ; but such an alternative is rarely to be met with ; " and there is scarcely a decision in the English Prize Courts " at Westminster, on any general question of public right, " that has not received the express approbation and sanction " of our National Courts, We have attained the rank of a " great commercial nation ; and war, on our part, is carried " on upon the same principles of maritime policy which have " directed the forces and animated the councils of the naval " powers of Europe. When the United States formed a " component part of the British empire, our Prize Law and " theirs was the same ; and after the revolution it continued (») Kent's Commentaries upon American Law, vol. i. p. 8. DECISIONS OF PRIZE COURTS. 59 " to be the same as far as it was adapted to our circum- *' stances, and was not varied by the power which was " capable of changing it. The great value of a series of " judicial decisions in prize cases, and on other questions " depending on the Law of Nations, is, that they render " certain and stable the loose general principles of that Law, " and show their application, and how they are understood, in " the country where the tribunals are sitting. They are, " therefore, deservedly received with very great respect, and " are presumptive, though not conclusive, evidence of the Law " in the given case. This was the language of the Supreme " Court of the United States so late as 1815; and the *' decisions of the English High Court of Admiralty, espe- " cially since the year 1798, have been consulted and " uniformly respected by that Court as enlightened commen- " taries on the Law of Nations, and affording a vast variety of " instructive precedents for the application of the principles " of that Law." Few names have obtained greater celebrity upon questions of International Law than that of Dr. Story ; and with his opinion this branch of the subject may be concluded : " How " few," he says, ^' have read with becoming reverence and " zeal the decisions of that splendid jurist — the ornament, I " will not say, of his own age or country, but of all ages and " all countries ; the intrepid supporter equally of neutral and " belligerent rights ; the pure and spotless magistrate of " nations, who has administered the dictates of universal " jurisprudence with so much dignity and discretion in the " Prize and Instance Courts of England ! — Need I pronounce " the name of Sir William Scott ? " During the last Eussian war the English Prize Tribunals — both the High Court of Admiralty and the Judicial Com- mittee of the Privy Council — applied to the cases brought before them the principles of the American and English judgments as of equal authority. During the late civil war in the United States the tri- 60 JNTEKNATIONAL LAW. bunals of both belligerents professed to administer, and with very few exceptions did administer, the law as already ex- l)ounded by these Courts. The seal of Courts of Admiralty, being also Courts of International Law, is judicially taken notice of, without positive proof of its authenticity, by the Courts of all Nations (o). (o) Yeaton v. Fry^ 5 Cranch's (American) Hep. 335, 343 (Ch. J. Marshall) ; Thompson v. Stewart, 3 Conn. {American) Hep. 171 ; 2 Kenfs Co7nmentaries, 121, note. But the rule is different as to the seal of other foreign courts : Delajield v. Hand, 3 Johns. {American) Hep. 310; Besohrey v. Laistre, 2 Han-. 8f Johns. {American) Rep. 192. Henry V. Adey, 3 East, 221: "In an action upon a judgment ob- tained in the island of Grenada, the plaintiff, at the trial before Lord EUenborough, C. J., at the sittings after last term at Guildhall, proved the handwriting of the Judge of the Court subscribed to the instrument purporting to be the judgment of the Court, but could not prove that the seal affixed to it was the seal of the island ; for want of which proof the plaintiff was nonsuited." The Court, on an application to set aside the nonsuit, upheld it. WRITERS ON INTERNATIONAL LAW. 61 CHAPTEK VIL WRITERS ON INTERNATIONAL LAW. LVIII. The consent of nations is further evidenced by the concurrent testimony of great writers (a) upon International Jurisprudence. The works of some of them have become recognized digests of the principles of the science ; and to them every civilized country yields great, if not implicit, homage (h). When Grotius wrote his immortal work he derived but little help (c) from any predecessor in the noble career which (a) See some very sensible remarks on this head, by M. Ortolan, Diplomatie de la Mer, 1. i. c. iv. t. i. p. 74, &c. '" Text writers of authority showing- what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent," are placed as the second branch of International Law by JVJieaton. — El. of Int. Law, vol. i, p. 59. (h) The English courts of Common Law, and English commentators upon that law, both in cases of public and private International Law, have been in the habit of referring to other works of these foreign authors, as containing evidence of the law to be administered in England : e. g. see Co7nyn's Digest, tit. Ambassador, where Grotius is cited. See the autho- rities cited by Lo7'd Mansfield in the cases relating to ambassadorial pri- vileges, mentioned in a later part of this work ; and see the whole part of this work on Comity, or Private International Law. Lord Mansfield, •in fact, built up the fabric of English Commercial Law upon the foun- dation of the principles contained in the works of foreign jurists. In the Admiralty and Ecclesiastical Courts, these works had been always referred to as authorities. It is by these courts indeed, and the prac- titioners therein, that the study of Civil and International Law was alone preserved from perishing in these Islands : the seed was sown and kept alive in them, which subsequently bore fruit of which no country need be ashamed. — See Preface, hy Dr. PhilUmore, to Sir G. Lee's Peports. (c) Grotii Prolegotnetia, xxiii., as to the anxilia scripti wliicli he had. " Solent autem gentium sententise de eo quod inter illos justum esse debet triplici modo manifestavi, moribus scilicet et usu, pactis et foede- 62 INTERNATIONAL LAW. he chose for himself. Albericus Gentllis, Arthur Duck, and Suarez had indeed left him materials of which he fully- availed himself, as well as of the labours of publicists like Ayala and Bacon, and of the commentators on the Civil and Canon Law ; but he may be almost said to have himself laid the foundation of that great pillar of International Law — the authority of International Jurists. His own book, one of the firmest barriers yet erected by Christendom against bar- barism, and the works of some subsequent writers upon the same subject, have long obtained the honour of being the repositories to which nations have recourse for argument to justify their acts or fortify their claims. They are, indeed, with the modifications that reason and usage apply, ad- mitted umpires in International disputes ; and this fact has greatly contributed, and still does contribute, to clothe the Law of Nations, more and more, with the precision and cer- tainty of positive and municipal law. The value ascribed to the opinion (d) of each writer, in the event of there being a difference between them, is a point upon which it is impossible to lay down a precise rule ; but among the criteria of it will be the length of time by which it is, as it were, consecrated, the period when it was expressed, the reasoning upon which it rests, the usage by which it has been since strengthened, and to the previous existence of which it testifies (e). ribus, et tacita approbation e juris regularum, a prudentibus ex ipsis rerum causis per interpretationem et per rationem deductarum." — Warnkmiicff Doctrina Juris PMlosophica Aphorismis Distincta (a most valuable little work), s. 146, p. 190. (d) No rule of International Law exists like that of tbe Imperial Law of Rome, which decided that the opinions of Papinianus, Faulus, Gaitcs, TJlpianus, and Modestinus should have the force of law: that, in points where they differed, the opinion of the majority, and, where they were equally divided, the side on which Papinianus was found, should prevail. — Th. Cod. i. 4, De Responsis Prudentum L. un. ; lb. ix. 3, L. un. Pr. de Sent. Pass.; Cod. ix. 51, 13 de Sent. Pass.; Muhlen- bruch, Doctr. Pand. Pr. s. 8. (e) Vattel cited " as a witness as well as a lawyer." — The Maria, 1 Rob. Adm. Rep. p. 363. See the case generally on this point. WRITERS ON INTERNATIONAL LAW. 63 When, on the other hand, their authority, in the absence of any contrary usage or convention, may be safely said to be binding upon all nations: "All writers upon the Law " of Nations unanimously acknowledge it," is not the least of Lord Stowell's arguments for the Belligerent's right of search ( / ). In cases where the principal jurists agree, the presump- " tion will be very great in favour of the solidity of their " maxims ; and no civilized nation that does not arrogantly " set all ordinary law and justice at defiance will venture to " disregard the uniform sense of the established writers of " International Law " {g). And how great is the advantage of this, that a controversy between France and England should be capable of being referred to principles laid down by an arbitrator who existed long before the disunion arose, and whom it is impossible to accuse of partiality ! This remark supposes the reference made to a neutral jurist, belonging to neither country; but the advantage is not so limited — it may be that the authorities belonging to the very country which is urging a demand will be found to pronounce against it. If the authority of Zouch, of Lee, of Mansfield, and, above all, of Stowell, be against the demand of England — if Yalin, Domat, Pothier, and Vattel {h) be opposed to the preten- sions of France — if Grotius and Bynkershoek confute the claim of Holland — PuffendorfF (z) that of Sweden — if (/) The Maria, 1 Roh. Adm, Rep. p. 360. (/7) Kenfs Co7nmentaries, vol. i. p. 19. (Ji) " I stand with confidence upon all fair principles of reason — upon the distinct authority of Vattel — upon the Instittites of other great maritime countries as well as those of our own countries — when I ven- ture to lay it down that, by the Law of Nations/' &c. — The Maria, 3 Roh. Adm. Rep. p. 369 {Lord Stowell). (i) So, in the case of the Swedish convoy, Lord Stoioell said : " If authority is required, I have authority — and not the less weighty in this question for being Swedish authority ; I mean the opinion of that distinguished person — one of the most distinguished which that country (fertile as it has been of eminent men) has ever produced — I mean 64 INTERNATIONAL LAW. Heineccius, Leibnitz, and WolfF array themselves against Germany — if Story, Wheaton, and Kent condemn the act of America, it cannot be supposed (except, indeed, in the particular epoch of a Revolution, when all regard to law is trampled under foot) that the argumentum ad patriam would not prevail — at all events, it cannot be doubted that it ought to prevail, and should the country relying upon such authority be compelled to resort to arms, that the guilt of the War would rest upon the antagonist refusing to be bound by it. It is with reference to the authority of jurists that we find Lord Stowell using such expressions as these : " It is the " necessary consequence acknowledged in all books.^^ " The "institution (i.e. of a particular State with respect to a " matter of the Law of Nations) must conform to the text "law, and likewise to the constant usage upon this matter;" and again : " All writers upon the Law of Nations unani- " mously acknowledge it, without the exception of even " Hubner himself, the great champion of neutral privileges." And Lord Mansfield, deciding a case in which the privi- leges of the attendant of an ambassador were concerned, said : " I remember, in a case before Lord Talbot, of Burvot " V. Barhuty upon a motion to discharge the defendant (who " was in execution for not performing a decree) * because he " * was agent of commerce, commissioned by the King of " ' Prussia, and received here as such,' the matter was very " elaborately argued at the bar, and a solemn, deliberate " opinion given by the court. These questions arose and were " discussed : ' Whether a minister could, by any act or acts, " * waive his privilege? '— ' whether being a trader was any ob- "' jection against allowing privilege to a minister personally ?' ** — * whether an agent of commerce, or even a consul, was "^ entitled to the privileges of a public minister? ' — ' what was Baron Puffendorff. ... In the opinion, then, of this wise and virtuous Swede ... his words are memorable. I do not overrate their im- portance when I pronounce them to be well entitled to the attention of his country." WRITERS ON INTERNATIONAL LAW. 65 « < the rule of decision ? ' Lord Talbot declared a clear opi- "nion, * That the Law of Nations, in its full extent, was " * part of the law of England ; ' ' that the Act of Parlia- **^ ' ment was declaratory, and occasioned by a particular inci- " * dent ; ' ' that the Law of Nations was to be collected from '' ' the practice of different nations, and the authority of " ' writers.' Accordingly, he argued and determined from " such instances, and the authority of Grrotius, Barbeyrac, " Bynkershoek, Wiquefort, &c., there being no English " writer of eminence upon the subject " (Tc), In truth, a reverence for the opinions of accredited writers upon Public and International Law has been a distinguish- ing characteristic of statesmen in all countries, and perhaps especially of those who have deserved that appellation in this kingdom. It has been felt, and eloquently expressed by them, that though these writers were not infallible, nevertheless, " the " methodized reasonings of the great publicists and jurists " formed the digest and jurisprudence of the Christian *' world ; " that their works contained principles which in- fluenced every State, and constituted the permanent and embodied voice of all civilized communities ; and that upon their decisions depended one of the best securities for the observance and preservation of right in the society of nations. Sir James Mackintosh, in his speech on the annexation of Genoa to the kingdom of Sardinia, touched upon this im- portant subject, in the following well-weighed and emphatic terms : " It is not my disposition to overrate the authority " of this class of writers, or to consider authority in any case ^' as a substitute for reason. But these eminent writers were, " at least, necessarily impartial. Their weight, as bearing '^ testimony to general sentiment and civilized usage, receives '' a new accession from every statesman who appeals to their (k) Triquet and Others v. JBath, Peach and Others v. Same, 3 Btcrroios* Rep. 1480. BiD'ke's WorkSf vol. viii. p. 235, Letters on a Regicide Peace, VOL. I. F 66 INTERNATIONAL LAW. " writings, and from every year in which no contrary practice " is established, or hostile principles avowed. Their works " are thus attested by successive generations to be records of " the customs of the best times, and depositories of the deli- " berate and permanent judgments of the more enlightened " part of mankind. Add to this, that their authority is " usually invoked by the feeble, and despised by those who " are strong enough to need no aid from moral sentiment, " and to bid defiance to justice. I have never heard their '* principles questioned, but by those whose flagitious policy " they had by anticipation condemned " (/)• In the same spirit Cicero had long ago observed : " Qui " peritis non putat esse obtemperandum, non homines laedit, " sed leges ac jura labefactat" {m). (I) The Miscellaneous Works of Sir J, Mackintosh, vol. iii. p. 342. (w) CicerOf ^wo Cadna, ss. 23-25. Suarez has the following remarks concerning what he designates the doctrinalis interpretatio of Laws : " De hac igitur interpretatione cerium est, non habere vim legis, quia non procedit a potestate juris- dictionis, sed a scientia, et judicio prudentum ; et ideo dicimus per se non inducere obligationem. Quia vero in omni arte judicium peri- torum in ilia magnam inducit probabilitatem, ideo etiam in hac legum humanarum interpretatione hsec doctrinalis interpretatio magnum hahet authoritatis pondus. In quo varii gradus esse possunt ; nam si in ali- cujus legis intelligentia omnes interpretes conveniant, faciunt humanam certitudinem, et regulariter loquendo, etiam inducunt obligationem ser- vandi legem, et utendi ilia in praxi juxta talem interpretationem." — De Leffibtis, lib. vi. SOURCES OF INTERNATIONAL LAW. 67 CHAPTER VIII. RECAPITULATION OF SOURCES OP INTERNATIONAL LAW. The sources, then, from which International Jurisprudence is derived, are these : — 1. The Divine Law, in both its branches — namely : The principles of Eternal Justice implanted by God in all moral and social creatures, of which nations are the aggregate, and of which governments are the International Organs — 2. The Revealed Will of God, enforcing and extending these principles of Natural Justice. 3. Reason, which governs the application of these prin- ciples to particular cases, itself guided and fortified by a constant reference to analogous cases and to the vpritten reason embodied in the text of the Roman Law, and in the works of Commentators thereupon. 4. The universal consent of Nations, both as expressed (1) by positive compact or treaty, and (2) as implied by usage, custom, and practice : such usage, custom, and practice being evidenced in various ways — by precedents recorded in History ; by being embodied and recorded in Treaties ; in public documents of States ; in the Marine Ordinances of States ; in the decisions of International Tribunals ; in the Works of eminent writers upon International Jurisprudence. LIX. It may be well to illustrate by an example the prac- tical application of the principles of International Law de- rived from the sources which have been enumerated in the preceding pages. In 1839, the Emperor of China seized the opium of certain British merchants at Canton. Reparation was demanded by Great Britain, and on the refusal of it, war followed between the two countries. Peace being made, and the reparation promised? a question arose. Whether, I 68 INTERNATIONAL LAW. according to the principles of International Law, the measure of compensation which one government ought to demand of another for the forcible seizure of the property of its subjects was the cost price of the property, or its marhet price at the place of seizure ? This curious and important question between a Christian and civilized Heathen nation might have been impartially answered by a reference to the principles of the Roman Law, and to the commentaries of foreign jurists, aided by the analogy derived from similar cases adjudicated upon between subject and subject, both in England and other countries. The decision which these authorities pronounced would have furnished no unfair measure of the redress due from the Chinese Government to the subjects of Great Britain. The claims of the British Government on behalf of her merchant subjects might have been supported by the follow- ing arguments : First, the obligations which the Chinese Government would have incurred if they had simply consti- tuted themselves the purchasers of the opium, and deferred the payment till the period of the treaty ; and. Secondly, the obligations which they incurred by the act of violence, and the character of wrong-doers with which that act clothed them. As to the first point, then — that is to say, let the Chinese be considered simply as debtors, who had delayed the fulfil- ment of their contract till the price of the article had fallen in the market. Perhaps the portion of the Roman Law which, on account of its acknowledged wisdom and equity, is most generally incorporated into the municipal codes of Europe is that which relates to obligations. One of the most cele- brated expounders of this branch of Jurisprudence is Pothier. In the third article of the second chapter, and first part of his Treatise, he considers " des dommages et interets resul- " tant, soit de I'inexecution des obligations, soit du retard " apporte a leur execution^'' And he begins by defining his subject thus : '* On appelle dommages et interets, la perte " que quelqu'un a faite, et le gain qu'il a manque de faire : INSTANCE OF APPLICATION OF LAW. 69 " c'est la definition qu'en donne la loi (13 Ff. Rat. rem hah.) — " Quantiim med interfuit, id est quantum mihi ahest, quan- *' tumque lucrari -potuV The result of his examination of this law is, that in all cases, even where the debtor is guilty of no bad faith, he shall be compelled to indemnify the creditor both for the actual loss which he has sustained, and for the gain which it may reasonably be supposed that he would have made, had he not been impeded by his engage- ment. In cases of bad faith, the rule is much more severe. A particular kind of action was known to the Roman Law, in cases where the price or value of a thing in which one person was indebted to another was sought in lieu of the thing itself, payment of which had been delayed. The action was called, for an antiquated reason which need not be discussed, Condictio triticaria («); and it is most learnedly treated by J. Voet, who says, it is necessary to consider, first, whether the value of the thing is the principal object of the suit, or whether the thing itself be the principal object, and the value only the necessary substitute, under the circumstances. If it be the value of the thing, if the price was to be paid in money, the law, he says, is clear — the sum due is to be measured by the value of the article at the time when the obli- gation was first contracted, not at the time when the pay- ment was enforced (b). If the thing itself be the principal object of the suit, its value should be estimated, either by that which it was worth at the time of beginning the suit (litis contestatio), or at the time the sentence was pronounced (condemnationis tempus) ; provided always that no delay has been caused by the party against whom the suit is brought^ because then " dubium non est, quin frustratio moratori, et " non alteri obesse debeat ; ac propterea, si inter moram et " litem contestatam remve, judicatam res pluris valuerit.quam (a) Dig. de Condic. Trvtic. xiii. iii. 1. (6) " Neque aliam contrahentes videri possunt sestimationem adeoque quantitatem pecuniariaui respexisse, quam quae fuit eo tempore, quo primitus obligatio nascebatur, sive bonse fidei sive strict! juris negotium sit" — Voet, ad Fund. 1. xiii. tit. iii. 70 INTERNATIONAL LAW. " ipso litis contestatae vel condemnationis momento, reus in " id, quanti res plurimi fuit, a tempore mora) ad tempus litis " contestata), in stricti juris, aut rei judicatse in bonaj fidei " judiciis, damnandus foret." There can be no doubt that the Chinese Government was the " Morator " in this case, or that, according to the maxim of jurisprudence which has been cited, it ought to have been condemned in the costs of the opium at the time it became possessed of that article, unless, between that period and the period of restitution, the opium had become of greater value ; for the only doubt raised by Fbe^ is, whether in cases of bona fides, the augmented price should be due. Again, from the time of the seizure, the Chinese Govern- ment became the Emptor \ and whatever depreciation of price happened in the interim betwixt that time and the treaty, enured to the detriment of the purchasers, no maxim being clearer than " periculum rei venditas ad emptorem statim " pertinet " (c). Again, let the Chinese Government be considered, not as the actual purchasers, but as securities for the payment of the money, and let the question be tried by the principle of Commercial, which is ^'Masz-International Jurisprudence. What is the value in which the insurer is bound to indemnify the insured — that of the goods at the time of their loss, or that of their invoice price ? Emerigon, no light authority, is clear upon this point. He says {d\ adopting the language of other writers : " En fait de pret a la grosse et d'assurance, " on ne fait point attendon a la valeur des effets au temps de " leur perte ; mais seulement a ce qu'ils valoient au temps de '^ leur chargement.^'' So the English law adopts the original value of the goods as the basis of the calculation of the amount in which the partial loss of the insured is to be indemnified by the insurer {e). Secondly, as to the obligations which the Chinese Govern- (c) Vide passiniy Dig. lib. xviii. tit. vi. ; Cod. lib. iv. tit. xlviii. {d) Tom. i. p. 262. (e) Langhom v. AllniUt, 4 Taunton's JReports, 511. INSTANCE OF APPLICATION OF LAW. 71 ment incurred by its act of violence, and by the character of a wrong-doer with which it thereby clothed itself; and if the language and spirit of Roman Jurisprudence was in favour of the claim of the opium owners against the Chinese Government, considered as simple debtors, or as securities for debtors, infinitely more was it in their favour against that Government treated as wrong-doers. And, first, as to the Civil Law, which throughout that large chapter, " De obligationibus quae ex delicto nascuntur," teems with analogies, and those of great force and directly bearing upon this subject. When a party^ wrongfully deprived, was reinstated in his property by the well-known decree of the Praetor, the " restitutio in integrum " — the law said, " Sive quid amiserit " sive luci'atus non sit, restitutio facienda est, etiamsi non ex " bonis quid amissum sit ; " and in cases of theft, where the sentence restored with heavy damages the stolen property, it also provided for the value of the property where it could not be so restored — " gestimatione relata in id tempus quo fur- " tum factum est" (/). So by the " Lex Aquilia," where there had been " dam- " num injuria datum," in consequence of which the thing had diminished in value, the measure of restitution was " quanti ea res in anno plurimi fuit tantum domino dare " damnetur " (^) ; and again it is said, " placet ad id tempus " spectandum quo res unqusim plurimi fuit " (h). So Pothier, in the chapter already cited, after stating the mitigating circumstances attaching to transactions of bona Jides, observes (z): " Les principes que nous avons etablis " jusqu'a present n'ont pas lieu lorsque c'est le dol de mon " debiteur qui a donne lieu a mes dommages et intcrets. En " ce cas le debiteur est tenu indistinctement de tons les (/) Dig. de Furtis, xlvii. t. ii. 51. Inst. iv. t. iii, (De Lege Aquilia). (g) Dig. lib. ix. tit. ii. 23. (h) Dig. lib. xiii. tit. i. 8. 1. De Condictione Furtiva, (i) Lib. i. p. 72. 72 INTERNATIONAL LAW. *' dommages et interets que j'ai soufferts, auxquels son dol a " donne lieu, non-seulement de ceux que j'ai soufFerts par *' rapj)ort a la chose qui a fait I'objet du contrsit, propter rem " ipsanif mais de tous les dommages et interets que j'ai souf- '' ferts par rapport a mes autres biens, sans qu'il y ait lieu " de distinguer et de discuter en ce cas, si le debiteur doit " etre cense s'y etre soumis ; car celui qui commet un dol ** s'oblige, velit, nolit, a la reparation de tout le tort que ce ** dol causera." Grotius (J)i in that chapter of his work which treats " De *' damno injuria dato, et de obligationibus quae ex delicto <* nascuntur," fully adopts these maxims of the civil law. To the same effect are the instances cited by Sir John Davis {k)i in a very curious case, called " Le case de mixt <* moneys," In that case the English Privy Council (J), as- sisted by the Judges, seem to have said, that if a man, upon marriage, receives £1000 as a portion with his wife, paid in silver money, and the marriage is dissolved causa precon-' tractus, so that the portion is to be restored, it must be restored in equal good silver money, though the State shall have depreciated the currency in the meantime (m) ; so if a man recover :glOO damages, and he levies that in good silver money, and that judgment is afterwards reversed, by which the party is put to restore back all he has received, the judgment creditor cannot liberate himself by merely re- storing £100 in the debased currency of the time, but he must give the very same currency that he had received. To the same, or even to a stronger effect, were the decisions of Lord Stowell (n) in restoring captured vessels which had been condemned by illegally constituted Courts in the West Indies. The ship and cargo were directed to be restored in value 'i and on reference being made to the registrar and 0') De J. B. et P. lib. ii. c. xvii. (k) Sir John Bairn's Reports^ p. 27. (/) Knapp^ Privy Council Rep. vol. ii. p. 20. (m) Canf. Burke, Thoughts on the French Revolution, v. 277. (n) The Lucy, 3 Robinson's Adm. Rep. p. 208, INSTANCE OF APPLICATION OP LAW. 73 merchants, they took the invoice prices as the measure of the value, allowing upon it ten per cent, profit. Nor was this a solitary case ; it was, as the Queen's advocate of that day said, " A question in which a great number of cases, and very " considerable amount of property, were involved " (o). Lastly, there was in favour of this position the elaborate judgment of Sir William Grant, in the case of Pilkington v. The Commissioners for Claims on France (/>). The circum- stances of that case were, that the Revolutionary Government had confiscated the debts owing from the subjects of France to those of Great Britain. By the Treaty of 1814 compensa- tion was to be made to the latter. Between the decree of confiscation and the repeal of it, the assignats in which the debts were to be paid had been depreciated in value : it was disputed whether or no the depreciation should be charged to the French. Sir William Grant, after touching upon the curious question of depreciated currency as affecting the relations of debtor and creditor, observes : " I have said it is " unnecessary to consider whether the conclusion drawn by " Vinnius or the decision in Davis's Reports be the correct " one, for we think this has no analogy to the case of " creditor and debtor. There is a wrong act done by the " French Government ; then they are to undo that wrong act, *' and to put the party into the same situation as if they never " had done it. It is assumed to be a wrong act, not only " in the Treaty, but in the repealing decree. They justify it " only with reference to that which, as to this country, has a ** false foundation — namely, on the ground of what other " Governments had done towards them, they having confis- ** cated the property of French subjects ; therefore they say, " we thought ourselves justified at the time in retaliating " upon the subjects of this country. That being destitute of " foundation as to this country, the Republic themselves, in " effect, confess that no such decree ought to have been (o) The Lucy, 3 Rohinsonh Adtti. Hep. p. 210. (p) Knapp, Privy Council Rep. p. 19. 74 INTERNATIONAL LAW. " made, as it affected the subjects of this country ; therefore " it is not merely the case of a debtor paying a debt at the ** day it falls due, but it is the case of a wrong-doer who " must undo, and completely undo, the wrongful act he has " done ; and if he has received the assignats at the value of " 50<^., he does not make compensation by returning an " assignat which is only worth 20d, — he must mahe up the " difference between the value of the assignat at different " periods * * ^ -^^ If the act is to be undone, it must be " completely undone, and the party is to be restored to the " situation in which he was at the time the act to be undone " took place." If in the case of the British merchants and the Chinese Government, the Treaty had not specified the sum of six millions for the compensation, but merely promised in gene- ral terms to restore the value of the opium seized — then the principles of International Law which govern the construc- tion of Treaties (q), would have entitled the original posses- sors of the opium to demand the jnost favourable interpreta- tion which could be put upon the term " value " (r). The conclusion then to which we are led with respect to the case which has been discussed, from the application of the principles of International Law, derived from all the sources which have been enumerated, is this: That the British Government would have been justified by the Law of Nations in demanding the cost price of the opium from the Chinese Government, even if the depreciation in value of that article at the time of the conclusion of the Treaty had been the result of the usual fluctuations of commerce. It is obvious that this conclusion applied with increased force to a case where the diminished value was one of the conse- quences of the wrongful acts of that Government itself. (q) Grotius, lib. ii. c. xiv. (r) Vattel, t. ii. p. 33. OBJECTION TO INTERNATIONAL LAW. 75 CHAPTER IX. OBJECTION THAT THERE IS NO LAW BECAUSE NO SUPERIOR. LX. It is sometimes said that there can be no Law be- tween Nations because they acknowledge no common superior authority, no International Executive capable of enforcing the precepts of International Law. This objection admits of various answers : First, it is a matter of fact that States and Nations recognize the existence and independence of each other ; and out of a recognized society of Nations, as out of a society of individuals, Law must necessarily spring. The common rules of right approved by Nations as regulating their intercourse are of themselves, as has been shown, such a Law. Secondly, the contrary position confounds two distinct things; namely, the physical sanction which Law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of Right ; the error is similar in kind to that which has led Jurists to divide moral obligations into Perfect and Imper- fect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cog- nizance of human laws («). In like manner. International Justice would not be the less deserving of that appellation, if the sanctions of it were wholly incapable of being enforced. 1(a) Kant, Reehtslehre, s. 54, req. — Warnkonig says, with much force and truth, ''Nonne ex mutua inter sese invicem agnitione inter eas queedam constituitur societas, et probantur communes justi regulse quae verum jusefficiunt? miscet vir summus (i. e. Kant) juris sanctionera cum justi notione, eaque in re parum sibi constans esse videtur." — Doc- trina Juris Philoso2)hica, s. 147. Brown's Philosophy of the Human Mind, vol. iv. pp. 396-7-8. 76 INTERNATIONAL LAW. How far and by what means they are capable of being executed are questions which have been already alluded to, and which will be more fully discussed in a subsequent portion of this work, when the International Process of enforcing the execution of International Justice by Negotiation, Treaties, Reprisals, or War comes under consideration. But, irrespectively of any such means of enforcement, the Law must remain (i). God has willed the society of States as He has willed the society of individuals. The dictates of the conscience of both may be violated on earth : but to the national, as to the individual conscience, the language of a profound philosopher is applicable : " Had it strength as it " had right, had it power as it has manifest authority, it " would absolutely govern the world " (c). Thirdly, most, if not all, civilized countries have incorpo- rated into their own Municipal Law a recognition of the principles of International Law. The United States of North America, almost contempo- raneously with the assertion of their independence {d), and the new Empire of Brazil in 1820, proclaimed their national adherence to International Law : in England it has always been considered as a part of the law of the land {e), (h) Kaltenhorrij Kritik des Volkerrechts, lias a very good chapter on this head, entitled, Die Lau(/ner des VdlkeirechtSy kap. vi. p. 306 : *' Mit Recht nennt Stein es einen halden und trostlosen Satz, das es kein Volkerrecht geben soUe." — " Stahl (Rechtsphilosophie) erklart, nicht alias Recht sei erzwingbar, unter Anderen nicht das Volkerrecht. Wenn man aber nurrichtiger und allgemeiner Weise die Erzwingbarkeit als aussere Realisirbarkeit auiFasst, so ist auch das Volkerrecht erzwingbar zu nennen," pp. 307, 309, n. (c) Bishop Butler {Sermon III.), On Human Nature. " Si lea loix naturelles ont assez de force pour regner sur les Rois memes par la crainte de I'Autour de ces loix, elles ne regnent pas moins entre les Rois qu' entre les differentes nations comparees les unes avec les autres. Elles sont le seul appui ordinaire de ce droit qui nidrite propreraent le nom de Droit des Gens', c'est-a-dire, de celui qui a lieu de Royaume a Royaume ou d'Etata Etat." — Institution du Droit public^ xii. t. i. 498 ; CEuvres d^Ayuesseau. {d) "According to the general usages of Europe." — Kent, Comm. i. p. 1. (e) Blackstone^s Commentaries on the Laws of England, book iv. c. v. OBJECTION TO INTERNATIONAL LAW. 77 Lastly, it may be observed on this head, that the History of the World, and especially of modern times, has been but incuriously and unprofitably read by him, who has not perceived the certain nemesis which overtakes the transgres- sors of International Justice ; for, to take but one instance, what an " Iliad of woes " (/) did the precedent of the first partition of Poland open to the kingdoms who participated in that grievous infraction of International Law ! The Koman Law nobly expresses a great moral truth in the maxim — " Jurisjurandi contempta religio satis Deum habet " ultorem " {g). The commentary of a wise and learned French jurist upon these words is remarkable, and may not inaptly close this first part of the work : " Paroles (he says) " qu'on pent appliquer egalement a toute infraction des loix " naturelles. La justice de I'Auteur de ces loix n'est pas " moins armee contre ceux qui les transgressent, que contre " les violateurs du serment, qui n'ajoute rien a I'obligation " de les observer, ni a la force de nos engagements, et qui ne " sert qu'a nous rappeler le souvenir de cette justice in- ** exorable " {h). (/) Burhe, Letters on a Reyicicle Peace. ig) Cod. lib. iv. t. i. 2, De Reh. Cred. et de Jurejurando {Alexander Sever us). (h) D^Aguesseau, lb. xiv. t. i. p. 500. See, too, p. 482. ** Auch ist die Erzwingbarkeit nicbt der einzige Charakter des Kechts, aucli nicbt sein wesentlichster — Dieser bestebt vielmehr darin, das es Norm iind Ordnung fiir alle menscblicben Gemeinverhdltnisse in alien Sphiiren und Dimensionen des privaten und des ofFentlichen Lebens, mitliin auch des socialen Verbaltnisses der Volker und Staaten unter- einander also Volkerreeht ist — Der Zwang gebt nun aber von Gemein- schaft als soleber aus — Dies ist die Ordnung die aufrecht erhalten werden soil — Das Rechtsleben ist das Gemeinleben u. s. w." — Kalten- horn, 310, ib. PART THE SECOND. CHAPTER I. SUBJECTS OF INTEKNATIONAL LAW — STATES. LXI. States are the proper, primary, and immediate subjects of International Law. It will be seen, indeed, that questions of this jurisprudence may be raised in matters affecting the persons and property both of Private Individuals and of Sovereigns and Ambassadors — the Representatives of States — and of public officers like Consuls, but mediately and indirectly, and in so far only, as they are members, or representatives, or public officers of States. Under the appel- lation of State are included all the possessions of a Nation ; so that if a Nation establish a Colony, however distant, that is looked upon by the eye of the Law as a part of the State, in the same manner as a province or city belonging to her ancient territory ; and therefore, unless by the policy of the Mother State, or by the provisions of Treaty, a different cha- racter has been impressed upon the Colony, the Law appli- cable generally to the territory of the State is applicable to the Colony or Colonies belonging to her : all together make up one State, and are to be treated as one by International Law (a). LXII. The question as to the origin of States belongs rather to the province of Political Philosophy than of Inter- national Jurisprudence. The idea that any descendant of (a) Vattel, lib. i. c. xviii. s. 210 : " Tout ce qui est dit du territoire d'lme nation, doit s'entendre aussi de ses colonies." 80 INTERNATIONAL LAW. Adam ever existed in what has been falsely called a state of nature, that is, out of the society of his fellow-men, has been long ago demonstrated to be equally inconsistent with reason and experience. The occasions, however, which led to the first formation of the particular society, of which each man is a member, may be of various kinds. That society may have been created by the division of a great empire into several kingdoms, whether by force of arms or by mutual consent ; thus the empires of Alexander, of Charlemagne, and of Charles V. were distributed, among their successors, into separate kingdoms. It may have been founded by an accidental concourse of individuals abandon- ing another country, according to the classical legend of Antenor (b) and the story of the fugitives from the oppres- sion of Attila, to which Venice (c) was said to owe her origin, or it may have been formed by the separation of a province from the community of which it was formerly an integral part, and by its establishment as an inde- pendent nation (d). In all the foregoing ways, " novus " populus sui juris nascitur " (e). The last instance will be (b) " Antenor potuit, mediis elapsus Achivis, Ulyricos penetrare sinus, atque intima tutus Regna Libumorum et fontem superare Timavi : Hie taraen ille urbem Patavi, sedesque locavit Teucrorum, et genti nomen dedit, armaque fixit Troia."— JEn. i. 242^249. (c) Gibbon, Decline and Fall of the Roman Empire, vol. vi. c. xxxy. 119-121. {d) Vattel, liv. i. c. xviii. s. 206 ; Rtdherforth, b. ii. c. ii. s. 5, p. 1259 ; Kluher, pt. i. c. i. ; Wheaton^s Elements, vol. i. p. 91. (e) Cfrotius, lib. ii. c. x. p. 327. " Concilia coetusque hominum Jure sociati quae civitates appellantur." — Cicero, Somn. Scip. iii. " Quid est enim dvitas nisi Juris societas? "-De Rep. lib. i. 32. " Est igitur, inquit Africanus, respublica res populi, populus autem, non omnis hominum coetus, quoquo modo congregatus, sed coetus mul- titudinis^wm consensu et utUitatis communione sociatusJ^—Ib. lib. i. 25. " Consociatio juris atque imperii." — Grotius, De J. B. et P. lib. ii. c. ix. 8. 8, p. 326. 'O o;^Xos, (lari) wXiiOog doptarov, TrX^Qog avyKtxvusvov, TrXrjOoQ davvuKrov I STATES. 81 more particularly considered in another part of this work, when the doctrine of Recognition comes under discussion (/). LXIIT. But for all purposes of International Law, a State {Brj/ji09, civitas, Volk) may be defined to be, a people perma- nently occupying a fixed territory {certam sedem), bound together by common laws, habits, and customs into one body politic, exercising, through the medium of an organized Government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into all International relations with the other communities of the globe. It is a sound gene- ral principle, and one to be laid down at the threshold of the science of which we are treating, that International Law has no concern with the form, character, or power of the consti- tution or government (^) of a State, with the religion of its inhabitants, the extent of its domain, or the importance of its position and influence in the commonwealth of nations. *' Russia and Geneva have equal rights " (A) : " line 5u yap olov 6 x^poc^ ovdk olov 6 Sfjfiog' 6 fihv yap dfj/xog kart TrXrjQoQ avvSfontvovy 6 Sk ox^og du(T7ra(Tf.uvov. — Ploto, Proclus in Alcih. lib. [xviii. "QaTTip yap cvds eK rov Tvxovrog 7r\f]9ovg iroXig yiyvfrai. — Arist. \JPolit. V. 3, 10. '' Facultas ergo moralis civitatem gubemandi, quse potestatis civilis [vocabiilo nimcupari solet a Thucydide, tribus rebus describitur, cum itatenij quae vere civitas sit, vocat avrovofiovj ovtoSikov, avroTeXfj !(lib. V. 18), suis utentem legibus, judiciis, magistratibus." — Grotius, [lib. i. c. iii. s. vi. Grotius observes (lib. ii. c. xviii. s. 2) most truly, '' Qui autem externi habendi sint, ita clare exposuit Virgilius ut nemo jurisconsultorum possit clarius : ' Omnem equidem sceptris terram quae libera nostris Dissidet, externam reor.' " — jEn. vii. 369, 370. (/) See also Preface to this volume. {(/) Vattel, liv. i. c. i. s. 4 : " Toute nation qui se gouverne elle- imeme sous quelque forme que ce soit, sans d^pendance d'aucun stranger, est un Etat souverain." The words "sans dependance " are, it will be seen, too lax. (h) Judgment of Chief Justice Marshall, in the case of The Antelope, Wheaton's Reports {American)^ vol. x. p. 66 ; Wheaton's History of the Modern Law of Nations, p. 637. VOL. I. G 82 INTERNATIONAL LAAV. " petite Rdpublique n'est pas moins un Etat souverain que " le plus puissant royaume " (z). Provided that the State possess a Government capable of securing at home the ob- servance of rightful relations with other States, the demands of International Law are satisfied. LXI V. If the foregoing definition be considered in detail, it will be found to exclude from the legal category of a State the following aggregates of individuals : (1.) All hordes or bands of men recently associated together, newly arrived at or occupying any previously uninhabited tract or country, though it may be possible that such horde or band may, in course of time, change its character, and ripen into a body politic, and have a claim to be recognized as such. " Est " autem civitas," Grotius says (J), " coetus perfectus libe- " rorum hominum, juris fruendi et communis utilitatis *' causa sociatus ; " and in another place, defining the cha- racter of sovereignty, " Summa autem ilia dicitur (z. e. " potestas civilis) cujus actus alterius juri non subsunt, '* ita ut alterius voluntatis humanaj arbitrio irriti possint " reddi summae potestatis subjectum commune est " civitas quam perfectum ca3tum esse supra diximus " (k). (2.) All migratory hordes not occupying a fixed or certain seat — and all associations of men united for the accomplishment of immoral ends {sceleris causa), such as piratical hordes, although they may have a fixed abode, and call themselves by the name of States. The Malay and Sooloo pirates of Borneo and the Eastern Archipelago furnish an existing ex- ample of such societies (/). " Poj^ulus autem," Cicero says, in a definition copied by most jurists, "nonomnis hominum coe- " tus, quoquo modo congregatus, sed coetus multitudinisjMre^ (i) Vattely Prelim, s. 18, Egalite des Nations -, and s. 19, " Par une suite n^cessaire de cette 6galite, ce qui est permis a une nation Test aussi a toute autre, et ce qui n'est pas permis a Tune, n'est pas non plus a Tautre." (.y) De J. B, et R lib. i. c. i. s. 14. {k) lb. c. iii. s. 7. (l) Serhassan Pirates, 2 Robinson, Jun., Adm. Rep. pp. 354-358 j The lUeanon Pirates, Queen v. Belcher, 6 Moore^s Privy Council Rep. pp. 471-484. STATES. 83 " consensu et ntilitatis communione sociatus " (m) ; and in another place, " Neque esset unum vinculum juris, nee con- " sensus ac societas coetus, quod est populus " (n). LXV. With respect to societies united sceleris causa, the philosophers and jurists of antiquity are in perfect accordance with those of modern times. All agree to class such bodies amongst those of whose corporate existence the law takes no cognizance {qui civitatem non faciunt), and therefore as not entitled to International Rights either in peace or war. The question has generally been raised in time of war as to when a State should be considered a legitimate enemy (hostis), and when as a lawless freebooter {pirata latro) (o). It is not, however, because a nation commits a piratical act, or is guilty of the violation of International Rights, that it is to be considered as wholly without the pale of a State. The ancient Greeks, we learn from Homer and Thucydides, practised rapine and piracy, and considered these exploits rather glorious than shameful. The Normans, the original discoverers of America who swept the seas with their victorious galleys, and subverted and founded kingdoms by the prowess of their individual subjects, dealt, it is said, with the ships which they encountered upon the high seas as their legitimate prey (p). The ancient Greeks and Normans, how- ever, were not pirates in the legal sense of the term. Their (m) De Hep. lib. i. 25. (n) De Rep. lib. iii. 31. (o) Grotius, De J. B. et P. lib. iii. c. iii, ss. 1, 2 : " Distinctio populi, quamvis injuste agentis, a piratis et latronibus." (p) Thticyd. i. 5 : Ot yap "EWjjj'cg to TraXai .... eTpairovro irpvg Xyardav .... /cat rjprr(tZ,ov .... ovk t^ovrfQ ttco aitrxi'vjjv tovtov tov tpyov, (pkpovTfc, Sf Ti Kai S6^r]c juaXXoj'. Arist. Pol. V. 2, 3 ; Horn. Od. iii. 73 ; ix. 252 ; Herod, ii. 152 ; iii. 39, 47 ; Thucyd. vi. 4^ Apollod. i. 9, 18. Liv. V. 28 : " Haud procul freto Siculo a piratis Liparensium excepti, devehuntur Liparas. Mos erat civitatis, velut puhlico latrocinio partam praedam dividere." Lord Clarendon's account of the Privateers of Ostend, by whom he was taken prisoner, puts them pretty much upon the same level as the classical Freebooters. See Clarendon's Life (8vo. ed.), p. 208 : "All the ships, though they had the King of Spain's commission, were free- booters, belonging to private owners, who observed no rules or laws of nations." See, too, p. 212. G 2 ■ 84 INTERNATIONAL LAW. society was formed for civil and moral objects, not for plunder ; and their acts of violence sprung from a confusion, incident to a barbarous age, as to the principles of right and wrong, and the laws of war and peace. Pompey was allowed the honour of a triumph for his victory over the lUyrians, who certainly exercised indiscriminate hostilities against the ships of all countries, but they were con- sidered a "). It seems, however, impossible at the present time to consider Poland as retaining any of those characteristics which would entitle it to be considered as an independent kingdom, according to the principles of International Law (c). (6) Annuaire historique, 1832, Documens historiquesi, p. 184. Whea- ton's History, 433, 441. Wheaton, Mem. du Droit inter, i. pp. 63-55. Hansard's Parliamentary Debates, vol. xiii. p. 1115. (c) In 1865 this question was again brought before the English 96 INTERNATIONAL LAW. LXXI V. Fourthly. — In the cases which have been men- tioned the several States are really and perpetually {iinione reali) united under one Sovereign ; but there may be cases in which the union is of a personal character {unio personalis), depending upon the continuance of a certain dynasty (c?). Hanover and Great Britain, while under the same crown, Prussia and Neufchatel in Swizerland, at the time when Vattel wrote, afforded examples of this kind (e). Norway and Sweden, since the Treaty of Vienna, have presented a similar instance. In these cases the individuality of the State as to her external relations remains in abeyance, and is not lost, though it be merged in the union ; and therefore, emerging when that union is dissolved, she is entitled to the rank and consideration of an independent kingdom. LXXV. Fifthly. — A State may place itself under the Parliament. Lord Palmerston, then Prime ?>Iinister, admitted that Russia had not executed faithfully her Treaty engagements to Poland, said that diplomatic action had been tried in vain, that war was inexpedient, and with respect to the proposal that the payment of the annual sum on account of the Russo-Dutch loan should he suspended, observed, " That engagement having no reference whatever to Poland, to say that, because Russia had misconducted herself in Poland, and broken her engagement under the Treaty of June 1815, we were therefore to break our engage- ments founded on a difi'erent treaty, and relating to a different transac- tion, was a lame and impotent conclusion. Any such course the House and the Government should be ashamed even to contemplate adopting, as it would be equally unworthy of Parliament and unbecoming to the country."— ^WM. Reg. 1865, p. 70. See also vol. ii. s. xc. &c. of these Commentaries. (d) " Rursum accidit, ut plurium populorum idem sit caput, qui tamen populi singuli perfectum ccetum constituunt: neque euim ut in naturali corpore non potest caput unum esse plurium corporum, ita in morali quoque corpore j nam ibi eadem persona, diversa ratione consi- derata, caput potest esse plurium ac distinctorum corporum. Cujus rei certum indicium esse potest, quod extincta domo regnatrice imperium ad quemque populum seorsim revertitur." — Grot. De J. B. et P. lib. i. c. iii. s. 7, § 2. (e) The King of Prussia by Treaty (1857) renounced his right of sovereignty in the Principality of Neufchatel and the Comt^ of Valengin. Neufchatel became a member of the Helvetic Confederation. — Ann. Iteg. 1857, pp. 232-437. DirFERENT KINDS OF STATES. 97 protection of another State with or without losing its Inter- national existence. It may well be, as Grotius, translating Appian, says, " Sub patrocinio non sub ditione " (/) ; or, according to his own expression in another part of his work, it may be " Cum imminutione imperii ; " or, " Sine imminu- '' tione imperii " (g). The proper and strict test to apply will be the capacity of the protected State to negotiate, to make peace or war with other States, irrespectively of the will of its protector. If it retain that capacity, whatever may be the influence of the protector, the protected State must be considered as an independent member of the European commonwealth. It must, however, retain this capacity de facto as well as de jure {Ji) ; and it is necessary to make this observation, because, at no distant period of history, an attempt was made to evade the application of this principle of law, by retaining theoretically the name when the substance was practically and notoriously lost. The Swiss Cantons and the States forming the Confederation of the Rhine, to say nothing of other countries, were nominally free and independent when their armies were under French officers, their cabinets under French ministers, and their whole constitution entirely subject and subservient to their French ruler and protector Napoleon. They were, therefore, justly considered \xy International Law as provinces of France, and were denied the rights of independent States during the continuance of this state of subserviency. It was on this ground that the capture of the (/) Lib. i. c. iii. s. 21, § 3. Ig) Lib. ii. c. xv. s. 7, § 1. {K) " Interim verum est accidere plerumque, ut qui superior est in foedere, si is potentia multum antecellat, paulatim imperium proprie dictum usurpet : praesertim si foedus perpetuum sit, et cum jure praesidia inducendi in oppida, &c Hsec cum fiunt, et ita fiunt id potentia in jus transeat, qua de re alibi erit disputandi locus, tunc aut qui socii fuerant fiunt subditi, aut certe partitio fit summi imperii, qualem acci- dere posse supra diximus." — Grotius, lib. i. c. iii. s. 21, pp. 126, 127. VOL. I. H 98 INTERNATIONAL LAW. Danish fleet, in 1806, by Great Britain was justified— namely, that it was de facto a fleet in the power and under the orders of France. On the other hand (z), while this capacity remains, no mere inequality of alliance is destructive of the personality {persona standi) of a State among nations. The parties to such alliance are not the less sovereign because they have consented of their own accord to disadvantageous terms in their Treaties with other nations ; it belongs, as Grotius says, to unequal alliances, "Ut potentiori plus " honoris, infirmiori plus auxilii deferatur" (j) ; or because they rely upon the arm of those nations for succour and defence when attacked : " Si ergo populus tali foedere obli- *' gatus liber manet, si alterius potestati subjectus non est, *' sequitur ut summum imperium retineat. Atque idem de '^ rege pronunciandum est enim populi liberi, et regis qui '^ vere rex sit, eadem ratio " (^). LXXVI. Sixthly. — States which cannot stand this test, which cannot negotiate, nor declare peace or war with other countries without the consent of their protector, are only mediately and in a subordinate degree considered as subjects (t) *^ Proculus, Lihro Epistolarum viii. Non dubito, c[uin foede- rati et liberi nobis extemi non sint, neque inter nos atque eos post- liminium sit ; etenim quid inter nos atque eos postliminio opus est, quum et illi apud nos et libertatem suam, et dominium rerum suarum seque atque apud se retineant, et eadem nobis apud eos contingent ? " Sec. 1. " Liber autem populus est is, qui nuUius alterius populi potestati est subjectus, sive qui foederatus est, item sive aequo foedere in amici- tiam venit, sive foedere coraprehensum est, ut is populus alterius populi majestatem comiter conservaret ; hoc enim adjicitur, ut intelligatur, alterum non esse liberum ; et quemadmodum clientes nostros intelligimus liberos esse, etiam si neque auctoritate, neque dignitate, neque jure omni nobis pares sunt, sic eos, qui majestatem nostram comiter conser- vare debent, liberos esse intelligendum est." — Dig. xlix. tit. xv. De Captivis et de Postliminio, 8fc. Grotius incorporates this reason- ing into International Law. — Lib. i. c. iii. 21, 22 ; De J. B. et P. p. 119. See the reason of the exception in the case of the Santa Annay Edwards' Adm. Rep. 181. Q) Grotius, ubi supra. (k) Grotius, ubi suprd,. AdherbaVs Speech to the Roman Senate describes a protected king- DIFFERENT KINDS OF STATES. 99 of International Law (/). In war they share the fortunes of their protectors (m) ; but they are" for certain purposes, and under certain limitations, dealt with as independent, moral persons, especially in questions of Comity, touching the per- sons and property of their own subjects in a foreign country, or of strangers in their own territory, and with respect to other matters of the like kind. States of this description are sometimes, but with admitted impropriety of expression, called semi-sovereign {demi-souve- rain — halbsouveran). Such appears to be or have been the lordship of Kniphausen, in North Germany, which exercised independent jurisdiction over the inhabitants of a territory enjoying maritime traffic and a {n) flag of its own, under the protection of the German Confederation and the Suzerainete {Hoheit, Oberhoheit) of Oldenburg (o). Such is the Republic of Polizza (/?), in Dalmatia, under the protection of Aus- tria. Such, it should seem, are the provinces of Montenegro, Moldavia, and Wallachia {q), and the hereditary princi- pality of Servia, under the Suzerainete of Turkey ; but the International status of these tributary provinces of Turkey will be presently considered. Such was the little State of Monaco, from 1641 till the Revolution, under the Pro- dom in these words : " P. C. Micipsa pater meus moriens mihi pra5- cepit, uti regni Numidise tantummodo procurationem existimarem meara ; ceterum Jus, et imperium penes vos esse: simiil eniterer domi militiaeque quam maximo usui esse populo Romano. Vos mihi cogna- torum, vos in locum affinium ducerem : si ea fecissem, in vestra amicitia exercitum, divitias, munimenta regni me habiturum." — Salhist, Bellum Jugurth. 14. {I) Though Grotius (c. xxi. p. 118) would seem to think otherwise ; but Barheifrac' s note (vol. i. 161, 25) supports the view in the text. (m) Vattel, 1. xvi. ; Wolff, c. iv. 437-439. (w) Under this ancient German Empire, there were a variety of petty Principalities exercising a territorial supremacy {Landeshoheit), but, nevertheless, subject to the legislative and judicial authority of the Emperor and the Empire. These were absorbed in the German Con- federation, except Kniphausen. (o) Hefters, das Etiropaische Volkerrecht, 1. Buch, xxxviii. s. 10. (p) Martens, Droit des Gens, liv. i. c. ii. s. 20. (g-) Wheaton, Mem. de Dr. int. i. 49. h2 100 INTERNATIONAL LAW. tectorate of France ; replaced under it by the Treaty of Paris in 1814; and, by a Treaty in 1815, it was placed under the Protectorate of Sardinia. Nice was given up by Italy to France in 1860, and in the next year the greater part of Monaco was ceded to that country, while a frag- ment was placed under its protection. LXXVII. The Ionian Islands, placed by the Treaty of Paris under the Protection of Great Britain, are cited by Kliiber as a perfect specimen of a semi-sovereign State (r). By a convention between Great Britain and Austria, and Russia and Prussia, signed at Paris, November 5th, 1815, it is provided, that — " I. The Islands of Corfu, Cephalonia, Zante, Santa Maura, Ithaca, Cerigo, and Paxo, with their dependencies, such as they are described in the Treaty between his Majesty the Emperor of all the Russias and the Ottoman Porte, of the 21st of March, 1800, shall form a single, free, and inde- pendent State, under the denomination of the United States of the Ionian Islands. " II. This State shall be placed under the immediate and exclusive protection of his Majesty the King of the United Kingdom of Great Britain and Ireland, his heirs and successors. The other contracting Powers do consequently renounce every right or particular pretension which they might have formed in respect to them, and formally guarantee all the dispositions of the present Treaty. " III. The United States of the Ionian Islands shall, with the approbation of the protecting ' Power, regulate their internal organization ; and, in order to give to all the parts of this organization the necessary consistency and action, his Britannic Majesty will employ a particular solicitude with regard to the legislation and the general administration of those States. His Majesty will therefore apoint a Lord (r) '' Einen wahren halbsouveranen Staat bilden, seit 1815, die Vereinigten Staaten der lonischen Inseln wegen der Schutz- und Souverainetats-Ilechte, welche Grossbritannien iiber sie auszuuben hat." —Kliiber, § 33. IONIAN ISLANDS. 101 High Commissioner to reside there, invested with all the necessary power and authorities for this purpose. " IV. In order to carry into execution without delay the stipulations mentioned in the articles preceding, . and to ground the political re-organizatio^ ^f'tf.e' United, uonian States upon that organization which iiS actuall,y ii;i;fpcce, the Lord High Commissioner of thje pir>tect'iiig'I^owie1: shall regulate the forms of convocation of a legislative assembly, of which he shall direct the proceedings, in order to draw up a new Constitutional Charter for the States, which his Majesty the King of the United Kingdom of Great Britain and Ireland shall be requested to ratify. " Until such Constitutional Charter shall have been so drawn up and duly ratified, the existing Constitutions shall remain in force in the diiferent Islands, and no alteration shall be made in them, except by his Britannic Majesty in council. " V. In order to ensure, without restriction, to the in- habitants of the United States of the Ionian Islands the advantages resulting from the high protection under which these States are placed, as well as for the exercise of the rights inherent in the said protection, his Britannic Majesty shall have the right to occupy the fortresses and places of those States, and to maintain garrisons in the same. The military force of the said United States shall also be under the orders of the Commander-in-Chief of the troops of his Britannic Majesty. " VI. His Britannic Majesty consents that a particular Convention with the Government of the said United States shall regulate, according to the revenues of those States, everything which may relate to the maintenance of the fortresses already existing, as well as to the subsistence and payment of the British garrisons, and to the number of men of which they shall be composed in time of peace. " The same Convention shall likewise fix the relations which are to exist between the said armed force and the Ionian Government. 102 INTERNATIONAL LAW, " VII. The trading flag of the United States of the Ionian Islands shall be acknowledged by all the contracting Parties as the flag of a free and independent State. It shall carry with' the colours, and above the ai'morial bearings thereon displayed before the year 1807, such other as his Britannic MojfeSity .may tbink proper to grant, as a mark of the 'protec- tion iinSfer Which- th,*3 .saii United Ionian States are placed ; and for the more effectual furtherance of this protection, all the ports and harbours of the said States are hereby declared to be, with respect to honorary and military rights, within British jurisdiction. The commerce between the United Ionian States, and the dominions of his Imperial and Royal Apostolic Majesty, shall enjoy the same advantages and facilities as that of Great Britain with the said United States. None but commercial agents^ or Consuls^ charged solely with the carrying on commercial relations, and subject to the regulations to which commercial agents or Consuls are subject in other independent States, shall be accredited to the United States of the Ionian Islands " (5). By the Constitutional Chart of the United States of the Ionian Islands, as agreed on and passed unanimously by the legislative assembly on the 2nd of May, 1817, it is provided as follows (s. 4) as to their Foreign Relations: — *' I. Whereas, in the latter part of the seventh article of the Treaty of Paris, it is agreed, * That no person, from any Power whatsoever, shall be admitted within these States, possessing or pretending to possess any powers beyond those which are defined in the aforesaid article;' it is hereby declared, that any person who shall assume to himself any authority as an agent for a foreign Power, except as therein directed, shall be amenable to be tried before the Supreme Council of Justice, and be liable, if found guilty, to punish- ment, as in cases of high treason against the State. " II. No native, or subject, of the United States of the («) Extracted from Heiislet's Treaties, vol. i. p. 47. Martens, Eec. cle Tr. N. H. ii. 663. IONIAN ISLANDS. 103 Ionian Islands shall be held competent to act as Consul or Vice-Consul for any foreign Power within the same. " III. The British Consuls, in all ports whatsoever, shall be considered to be the Consuls and Yice-Consuls of the United States of the Ionian Islands, and the subjects of the same shall be entitled to their fullest protection. " lY. All applications necessary to be made by these States to any foreign Power, shall be transmitted by the Senate to his Excellency the Lord High Commissioner of the protecting Sovereign, who shall forward the same to the Ambassador or Minister of the protecting Sovereign, resident at the court of the said foreign Power, for the purpose of submitting them in due form to the said Power. " V. The approval of the appointments of all foreign agents or Consuls in the United States of the Ionian Islands shall be by the Senate, through the medium of his Highness the President thereof, with the concurrence of his Excellency the Lord High Commissioner of the protecting Sovereign. " VI. With a view to ensure the most perfect protection to the commerce of these Islands, every vessel, navigating under the Ionian flag, shall be bound, before leaving the port of the Ionian States to which she belongs, to provide herself with a pass, signed by his Excellency the Lord High Commissioner of the protecting Sovereign, and no vessel, sailing without such pass, shall be considered as navigating according to law. But it is reserved to his Majesty the protecting Sovereign to decide how far it may be necessary that, independent of such pass, they should further be bound to supply themselves with Mediterranean passes." The sixth section relates to the National Colours and Armorial Bearings : — " I. The National Commercial Flag of the United States of the Ionian Islands, as directed by the seventh article of the Treaty of Paris, shall be the original flag of the States, with the addition of the British union, to be placed in the upper corner next to the flag-staff. 104 INTERNATIONAL LAW. " II. On usual days the British colours shall be hoisted on all the forts within the United States of the Ionian Islands ; but a standard shall be made, to be hoisted on days of public rejoicing and festivity, according to the model of the armorial bearings of the said States. '' III. The arms, or armorial bearings, of the United States of the Ionian Islands shall hereafter consist of the British arms in the centre, surrounded by the arms of each of the Islands composing the said States. " IV. The armorial bearings of each of the Islands shall consist of the individual arms of the Island, and such emblem, denoting the sovereign protection, as may be deemed advisable." In the seventh section are the following General Clauses : — " III. In the instance of all maritime transactions and the collection of the customs, it shall be competent for the proper authorities to employ either British or Ionian subjects. " V. A specific law shall settle the terms, time, and mode for the naturalization of foreign subjects in the States; but the subjects of the j)rotecting Power shall, in all instances, be entitled to naturalization in half the time that is required for those of any foreign Power ; and a subject of the pro- tecting Power, or of any other Power, may be at once naturalized by a Bill to that effect, without reference to any fixed time of residence in these States, which shall be laid down in the law itself" {t). The Protectorate of Great Britain over the seven Ionian Islands was ratified by the Porte in 1819 {u). During the last Russian war an Ionian vessel was seized by a British cruiser, and brought into the Prize Court, where her condemnation was asked for. It was not denied (t) Extracted from Hertslefs Treaties, vol. i. p. 53. (u) Martens, N. R. {Suppl.) v. 387. Acte de Ratification de la Porte Ottomane relativement a la cession des lies loniennes a la Grande- Bretagne, et de Parga a la Turquie, du 24 avril 1819. IONIAN ISLANDS. 105 that she was destined to a belligerent or Kussian port. The learned judge (Dr. Lushington) said, — " The vessel proceeded against was an Ionian vessel, " destined, for the purpose of the present inquiry, to Ta- " rangos, a Russian port. The captors said that such a " voyage by an Ionian ship subjected her to condemnation. " The claimants said that neither by the law of nations, nor " any other law, were they liable to condemnation ; that the " port of Tarangos was not blockaded ; that they did not " carry contraband; that the .expedition in which they *^ were engaged was, lawful ; and that they were entitled to " restitution. He, must now. endeavour to set forth as " clearly as he coiild* the reasons and principles on which " the prayers for condemnation and restitution were founded. " The counsel for the captors alleged that all Ionian vessels " were to be considered as British vessels ; that, as British " vessels were prohibited from trading with Russia during " war, so, for the same reason, were Ionian vessels ; in " other words, that British and Ionian vessels were to be " placed in the same category; that, as regarded a Power " hostile to Great Britain, the lonians stood in the same ^^ position as British subjects. If that proposition were true, " it necessarily followed as a corollary from it that all trade " with the enemy of Great Britain not allowed to British " subjects was prohibited to the inhabitants of the Ionian " Islands. There was no doubt that a British vessel could " not trade with Tarangos ; therefore if British and Ionian " vessels were in eadem conditione, this vessel could not " lawfully prosecute her enterprise and must be condemned. " The claimants denied all those ^propositions. They said " they were not British subjects, that they were not at war " with Russia, and had a right to carry on with Russia any " trade that the subjects of a neutral nation could be law- " fully engaged in." The learned judge, after a careful examination of the facts and the law, concluded as follows : — " Did the subjects of the Ionian States stand in eadem " conditione'^ It was admitted on all hands they were not 106 INTERNATIONAL LAW. " British subjects in the proper sense of the term. They ^* did not participate with British subjects in the advantages " of commercial intercourse in virtue of the treaty. Were " they to suffer the inconveniences, and have none of the *' benefits ? Did they owe any allegiance to the Crown of '' Great Britain which they violated by such trade ? Perhaps " that was the nicest and most difficult point. Allegiance, ** in the proper sense of the term, undoubtedly they did not " owe. A limited obedience, according to the treaty, they " did owe, as a sort of equivalent for protection. There " might be cases in which it would be competent to Great " Britain to declare that abstinence from trade with the *' enemy was due for such protection ; but was it to be in- " ferred without such declaration ? He thought not. But, " again, was that presumed illegality of trade a principle to " be enforced beyond all precedent ? On what ground was " it to be based ? Not of advantage to the Ionian Islands, " which had no interest in the quarrel. Without a possi- '* bility of advantage to themselves, they might be deprived " of a lucrative trade, and that, too, without any formal act " done by the protecting Power. He had mentioned some '' of the reasons which had induced him to come to this con- *' elusion ; but there were others. He would restore, because " the property was not the property of allies in war ; for ** neither by the treaty nor by the law of nations could he " impose upon the subjects of the Ionian States that cha- " racter. He would restore, because if Great Britain had " the right by treaty of declaring war between the Ionian *' States and Russia, she had not done so ; because, in the " absence of all such declaration or solemn act in whatever " form, he was of opinion that the Ionian subjects were not " placed in a state of war ; because he held it to be the duty " of every court professing to administer the law of nations to " carry into effect and operation the plain terms of a treaty, " though the consequences might not have been foreseen "(or). (x) See also 1 Jtir. N.S. p. 549. IONIAN ISLANDS. 107 This judgment was not appealed from. But the evil was remedied by taking the proper formal steps for prohibiting commerce between the Ionian Islands and Russia during the continuance of the war. This account of the peculiar status of these Islands while under the Protectorate of Great Britain, and the application of International Law to them, has seemed to me proper to be preserved in this work. But the recent cession of these Islands by Great Britain to the Kingdom of Greece has deprived the statement of the prac- tical importance which formerly attached to it. In December 1862, after the abdication of King Otho, a memorandum from the British Government was delivered to the Provisional Government of Greece, in which were these passages : — " It is her Majesty's earnest desire to contribute to the " welfare and prosperity of Greece. " The Treaties of 1827 and 1832 bear evidence of this " desire on the part of the British Crown. " The Provisional Government of Greece declared, upon ** the withdrawal of King Otho from Greece, that their " mission is to maintain for Greece constitutional monarchy, " and the relations of peace with all other States. " If the new assembly of the representatives of the Greek " nation should prove faithful to this declaration, should " maintain constitutional monarchy, and should refrain from " all aggression against neighbouring States, and if they '' should choose a sovereign against whom no well-founded " objection could be raised, her Majesty would see in this *' course of conduct a promise of future freedom and happi- " ness for Greece. In such a case, her Majesty, with a " view to strengthen the Greek Monarchy, would be ready " to announce to the Senate and representatives of the " Ionian Islands her Majesty's wish to see them united to " the Monarchy of Greece, and to form with Greece one " united State ; and if this wish should be expressed also by " the Ionian Legislature, her Majesty would then take " steps with the concurrence of the Powers who were " parties to the Treaty by which the seven Ionian Islands 108 INTERNATIONAL LAW. " and their dependencies were placed as a separate State " under the Protectorate of the British Crown." The offer of Great Britain was received with much joy and gratitude by the lonians. Prince George of Denmark was elected King of Greece. A conference as to the cession of the Ionian Islands was holden in London on the 26th of June, 1863, at which the Plenipotentiaries of Great Britain, France, and Russia were present. A protocol was drawn up which declared, — (1) " With regard to the guarantee of the political ex- " istence and of the frontiers of the Kingdom of Greece, " the three Protecting Powers maintain simply the terms " in which it is expressed by Article IV. of the Convention " of May 7th, 1832. " It is agreed that the Ionian Islands shall be included in " that guarantee, when their union to the Hellenic Kingdom " shall have obtained the consent of the parties concerned. (2) " With regard to the financial obligations which ** Greece has contracted towards the three Protecting " Powers, on account of the loan, in virtue of Article XII. *^ of the Convention of May 7th, 1832, it is understood that " the Courts of France, Great Britain, and Russia will in *' concert watch over the strict execution of the encragrement " proposed at Athens by the representatives of the three " Powers, and accepted by the Greek Government, with " the concurrence of the Chambers, in the month of June, " 1860 " (y). The Lord High Commissioner dissolved the Ionian Par- liament, " with a view to consult in the most formal and " authentic manner the wishes of the inhabitants of the " Ionian Islands as to their future destiny." The new Parliament unanimously resolved in favour of the union of the Ionian Islands with Greece. " A Treaty " was concluded between her Majesty, the Emperor of (y) Ann. Rey, 1803, pp. 296-7. IONIAN ISLANDS. 109 " Austria,- tlie Emperor of the French, the King of Prussia, " and the Emperor of Russia, which was signed at London " on the 14th of November, and by it her Majesty renounced " the protectorate over ' the islands of Corfu, Cephalonia, " ' Zante, Santa Maura, Ithaca, Cerigo, and Paro, with " ' their dependencies.' It was also provided that the Ionian " Islands, after their union to the Kingdom of Greece, " * shall enjoy the advantages of a perpetual neutrality ; ** * consequently no armed force, either naval or military, " ' shall at any time be assembled or stationed upon the ter- " ' ritory or in the water of those Islands, beyond the number " * that may be strictly necessary for the maintenance of " ' public order, and to secure the collection of the public " * revenue. The high contracting parties engage to respect " * the principle of neutrality stipulated by the present " ' article '" (^). It was further provided that the fortifications of Corfu and its immediate dependencies should be demolished pre- viously to the withdrawal of the British troops. LXXVIII. In all the foregoing instances, though they may exhibit a greater or a less derogation from the rights of independent Sovereignty (excepting perhaps in the case of Servia), the attribute of free and uncontrolled agency in their external relations with foreign States is wanting. LXXIX. Seventhly. — There are in Europe some few States which are Free Republics, to which Consuls are accredited, and which, strictly speaking, are capable of entering into treaties («) with Foreign Powers. (z) Ann. Reg. 1863, pp. 293-7. (rt) For example, see the Treaty, in 1841, between Mexico and these cities, entitled '' Trait6 d'Araitie, de Navigation et de Commerce, conclu entre la Eepublique du Mexique et les Villes anseatiques de Breme, Lubeck, et Hambourg j signe a Londres le 7 avril 1832, ratifie a Londres le 8 novembre 1841."— De M. et Be. C. v. 155. Convention between the Hanseatic States and United States of North America, London, Sept. 20, lS2o.—JE:iliofs American lJiplo7natie Code^ ii. 202. Convention with the Porte, May 1839.— ifcTar^'ws, Nmv. Hec. ii. 183. 110 INTERNATIONAL LAW. Bremen, Hamburg, and Lubeck (b) were a few years ago, and still appear to be, Free cities of Germany — the only remains of that once formidable and celebrated Hanseatic League, the last general Diet of which was held at Lubeck in 1630. These three towns were Cities of the German Empire, and since 1814 had been admitted as members of the German Confederation, and had, in conjunction with Frankfort, a vote in the Diet. LXXX. Fr ankf or t'On-the- Maine (c) was the most im- portant free town of Germany, and, as has been mentioned, the seat of the German Diet. The constitution of this free city was established in 1816. It consisted of a Senate in which the Executive Power is lodged, and a Legislative body chosen by Electors of the city and suburbs. In 1866 it was forcibly seized by Prussia. LXXXI. Andorra or Andor re (^d) \^ a small independent State composed of three valleys on the southern side of the Central Pyrenees. It is considered as a neutral and in- dependent Province, though to a certain extent connected both with France and Spain. This little Republic has pre- served for a long series of years the institutions which it now enjoys. LXXXII. San Marino is also a very small but inde- pendent Republic in the north-east of Italy. The military force of the Republic is said to consist of 80 men, and the (h) Miltitz, Manuel des Consuls, 1. i. c. iii. s. 9 ; 1. ii. c. i. s. 3, Art. 6. Waltershausm, Urkundliche Geschichte des Ursprungs der Deutschen Hanse. Gazeteer of the World, vol. vi., " Hanse Towns." (c) Treaties between Great Britain and Frankfort : — Treaty, Commerce and Navigation, London, May 13, 18S2. —Jlertslefs Treat, vol. iv. 147, 153, 548. lb. Dec. 29, 1835.— 76. vol. v. 97, 98, 625. Convention, Commerce and Navigation, March 2, 1841. — lb. vol. vi. 751, 755, 996. Traits de Commerce et de Navigation entre la Grece et les Villes Ans^atiques, mai 1843.— Vide Be M. et C. 311. (d) Gazeteer of the World, "Andorra." BELGIUM. Ill whole population to be about 7600. In 1739, Cardinal Alberoni subjected it to the Pope, who, however, restored the Republic. It declined the offer of an increase of territory- made to it by Napoleon in 1797. LXXXIII. Eighthly.— The Constitution and Territory of Belgium have been also definitively established by Treaty, and are therefore matter of International Law. It will be seen that a perpetual neutrality (e), in questions arising between other Powers, is the most remarkable condition of the national existence of Belgium. The articles of the Treaty which establish the kingdom of Belgium are as follows : — " 1. The Belgian territory shall be composed of the provinces of South Brabant, Liege, Namur, Hainault, West Flanders, East Flanders, Antwerp, and Limhourg ; such as they formed part of the United Kingdom of the Nether- lands constituted in 1815, with the exception of those districts of the province of Limbourg which are designated in Art. 4. " The Belgian territory shall, moreover, comprise that part of the Grand Duchy of Luxembourg which is specified in Art. 2. " 2. In the Grand Duchy of Luxembourg, the limits of the Belgian territory shall be such as will be hereinafter described; viz., commencing from the frontier of France, between Rodange, which shall remain to the Grand Duchy of Luxembourg, and Athus, which shall belong to Belgium, there shall be drawn, according to the annexed map, a line which — leaving to Belgium the road from Arlon to Longwy, the town of Arlon with its distj-ict, and the road from Arlon to Bastogne — shall pass between Mesancy, which shall be on the Belgian territory, and Clemancy, which shall remain to the Grand Duchy of Luxembourg, terminating at Stein- fort, which place shall also remain to the Grand Duchy. From Steinfort this line shall be continued in the direction (e) Vide post, Arts. 7-26. 112 INTERNATIONAL LAW. of Eischen, Ileclms, Guirsch, Oherpalen, Grende, Notliomh, Pareite^ and Perle, as far as Martelange ; Hechus, Guirsch, Grende, Nothomb, and Parette being to belong to Belgium ; and Eischen, Oberpalen, Perle, and Martelange to the Grand Duchy. " From Martelange the said line shall follow the course of the Sure, the waterway (thalweg) of which river shall serve as the limit betweeen the two States as far as opposite to Tintange, from whence it shall be continued, as directly as possible, towards the present frontier of the Arrondissement of DieMrch, and shall pass between Surret, Harlange, and Tarchamps, which places shall be left to the Grand Duchy of Luxembourg, and Honville, Liverchamp, and Loutremange, which places shall form part of the Belgian territory. Then having — in the vicinity of Doncols and Soulez, which shall remain to the Grand Duchy — reached the present boundary oi \\\Q Arrondissement of Diekirch, the line in question shall follow the said boundary to the frontier of the Prussian territory. All the territories, towns, fortresses, and places situated to the west of this line, shall belong to Belgium ; and all the territories, towns, fortresses, and places situated to the east of the said line shall continue to belong to the Grand Duchy of Luxembourg. " It is understood that, in marking out this line, and in conforming as closely as possible to the description of it given above, as well as to the delineation of it on the map, which, for the sake of greater clearness, is annexed to the present article, the Commissioners of demarcation, mentioned in Art. 6, shall pay due attention to the localities, as well as to the mutual necessity for accommodation which may result therefrom. " 3. In return for the cessions made in the preceding article, there shall be assigned to his Majesty the King of the Netherlands, Grand Duke of Luxembourg, a territorial indemnity in the province of Limbourg. " 4. In execution of that part of Art. 1 which relates to the province of Limbourg, and in consequence of the cessions BELGIUM. 113 specified in Art. 2, there shall be assigned to his Majesty the King of the Netherlands, either to be held by him in his character of Grand Duke of Luxembourg, or for the purpose of being united to Holland, those territories the limits of which are hereinafter described : — " First. On the right bank of the Meuse : to the old Dutch enclaves upon the said bank in the province of Limbourg, shall be united those districts of the said province upon the same bank, which did not belong to the States General in 1790; in such wise that the whole of that part of the present province of Limbourg, situated upon the right bank of the Meuse, and comprised between that river on the west, the frontier of the Prussian territory on the east, the present frontier of the province of Liege on the south, and Dutch Guelderland on the north, shall henceforth belong to his Majesty the King of the Netherlands, either to be held by him in his character of Grand Duke of Luxembourg, or in order to be united to Holland. " Secondly. On the left bank of the Meuse : commencing from the southernmost point of the Dutch province of North Brabant, there shall be drawn, according to the annexed map, a line which shall terminate on the Meuse below Wessem, between that place and Stevenswaardt, at the point where the frontiers of the present Arrondissement of Ruremond and Maestricht meet, on the left bank of the Meuse; in such manner that Bergerot, Stamproy, Neer Itteren, Ittervoord, and Thome, with their districts, as well as all the other places situated to the north of this line, shall form part of the Dutch territory. " The old Dutch enclaves in the province of Limbourg, upon the left bank of the Meuse, shall belong to Belgium, with the exception of the town of Maestricht, which, together with a radius of territory, extending 1200 toises from the outer glacis of the fortress on the said bank of this river, shall continue to be possessed in full sovereignty and property by his Majesty the King of the Netherlands. " 5. It shall be reserved to his Majesty the King of the VOL. I. I 114 INTERNATIONAL LAW. Netherlands, Grand Duke of Luxembourg, to come to an agreement with the Gei-manic Confederation, and with the Agnates of the House of Nassau, as to the application of the stipulations contained in Arts. 3 and 4, as well as upon all the arrangements which the said articles may render neces- sary, either with the above-mentioned Agnates of the House of Nassau or with the Germanic Confederation. " 6. In consideration of the territorial arrangements above stated, each of the two parties renounces reciprocally, and for ever, all pretensions to the territories, towns, fortresses, and places situated within the limits of the possessions of the other party, such as those limits are described in Arts. 1, 2, and 4. " The said limits shall be marked out in conformity with those Articles by Belgian and Dutch Commissioners of de- marcation, who shall meet as soon as possible in the town of Maestricht. " 7. Belgium, within the limits specified in Arts. 1, 2, and 4, shall form an independent and perpetually neutral State. It shall be bound to observe such neutrality towards all other States. " 8. The drainage of the waters of the two Flanders shall be regulated between Holland and Belgium, according to the stipulations on this subject, contained in Art. 6 of the defini- tive Treaty, concluded between his Majesty the Emperor of Germany and the States General on the 8th of November, 1785 ; and in conformity with the said article. Commissioners, to be named on either side, shall make arrangements for the application of the provisions contained in it. " 9. The provisions of Arts. 108-117, inclusive of the General Act of the Congress of Vienna, relative to the free navigation of navigable rivers, shall be applied to those navigable rivers which separate the Belgian and the Dutch territories, or which traverse them both. " So far as regards specially the navigation of the Scheldt, it shall be agreed that the pilotage and the buoying of its channel, as well as the conservation of the channels of the Scheldt below Antwerp, shall be subject to a joint superin- tendence ; that this joint superintendence shall be exercised BELGIUM. 115 by Commissioners ; to be appointed on both sides for this purpose; that moderate pilotage dues shall be fixed by mutual agreement, and that such dues shall be the same for the Dutch as for the Belgian commerce. " It is also agreed that the navigation of the intermediate channels between the Scheldt and the Rhine, in order to proceed from Antwerp to the Rhine, and vice versa, shall continue reciprocally free, and that it shall be subject only to moderate tolls, which shall provisionally be the same for the commerce of the two countries. " 25. The Courts of Great Britain, Austria, France, Prussia, and Russia guarantee to his Majesty the King of the Belgians the execution of all the preceding articles. " 26. In consequence of the stipulations of the j^resent Treaty, there shall be peace and friendship between their Majesties the King of the United Kingdom of Great Britain and Ireland, the Emperor of Austria, the King of the French, the King of Prussia, and the Emperor of all the Russias, on the one part, and his Majesty the King of the Belgians, on the other part, their heirs and successors, their respective States and subjects, for ever " (/). In 1870, Great Britain entered into separate Treaties with France and Prussia, then at war, with respect to the neutrality of Belgium. The ratifications were exchanged in London on the 9th, and with France on the 26 th of August. The following is the document, w^hich is the same, mutatis mutandis, in both cases : — " Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and his Majesty the Emperor of the French, being desirous at the present time of recording in a solemn act their fixed determination to maintain the in- dependence and neutrality of Belgium, as provided by the 7th Article of the Treaty signed at London on the 19th of April, 1839, between Belgium and the Netherlands, which (/) Hertslees Treaties, vol. iv. pp. 27-31, 37. I 2 116 INTERNATIONAL LAW. article was declared by the Quintuple Treaty of 1839 to be considered as having the same force and value as if textually inserted in the said Quintuple Treaty, their said Majesties have determined to conclude between themselves a separate treaty, which, without impairing or invalidating the con- ditions of the said Quintuple Treaty, shall be subsidiary and accessory to it ; and they have accordingly named as their plenipotentaries for that purpose, that is to say, &c. " ' Article 1. " * His Majesty the Emperor of the French having de- clared that, notwithstanding the hostilities in which France is now engaged with the North German Confederation and its allies, it is his fixed determination to respect the neutrality of Belgium so long as the same shall be respected by the North German Confederation and its allies, her Majesty the Queen of the United Kingdom of Great Britain and Ireland on her part declares that, if during the said hostilities the armies of the North German Confederation and its allies should violate that neutrality she will be prepared to co- operate with his Imperial Majesty for the defence of the same in such manner as may be mutually agreed upon, em- ploying for that purpose her naval and military forces to ensure its observance, and to maintain, in conjunction with his Imperial Majesty, then and thereafter, the independence and neutrality of Belgium. ** ' It is clearly understood that her Majesty the Queen of the United Kingdom of Great Britain and Ireland does not engage herself by this treaty to take part in any of the general operations of the war now carried on between France and the North German Confederation and its allies, beyond the limits of Belgium as defined in the treaty between Belgium and the Netherlands of April 19, 1839. " ' Article II. " ' His Majesty the Emperor of the French agrees on his part, in the event provided for in the foregoing article, to GREECE. 117 co-operate with her Majesty the Queen of the United King- dom of Great Britain and Ireland, employing his naval and military forces for the purpose aforesaid; and, the case arising, to concert with her Majesty the measures which shall be taken, separately or in common, to secure the neutrality and independence of Belgium. " ' Article III. " ' This Treaty shall be binding on the high contracting parties during the continuance of the present war between France and the North German Confederation and its allies, and for twelve months after the ratification of any treaty of peace concluded between those parties ; and on the expira- tion of that time the independence and neutrality of Belgium will, so far as the high contracting parties are respectively concerned, continue to rest, as heretofore, on the 1st Article of the Quintuple Treaty of the 19th of April, 1869. " ' Article IV. " * The present Treaty shall be ratified, and the ratifica- tions shall be exchanged at London as soon as possible. " ' In witness whereof the respective plenipotentiaries have signed the same, and have aflSxed thereto the seal of their arms. " * Done at London the 11th day of August, in the year of our Lord 1870. '^ ' (L.S.) Granville. '' ' (L.S.) La Valette ' " {g). LXXXIV. Ninthly.— The Constitution and Territory of Greece are the subject of Treaty and guarantee, and under the protection of International Law. The articles which principally afiect the International Status of Greece are as follows ; — " 1. The Courts of Great Britain, France, and Russia, duly authorized for this purpose by the Greek nation, offer the hereditary Sovereignty of Greece to the Prince {y) See debate in the House of Lords on this Treaty. 118 INTERNATIONAL LAW. Frederick Otho of Bavaria, second son of his Majesty the King of Bavaria. " 2. His Majesty the King of Bavaria, acting in the name of his said son, a minor, accepts, on his behalf, the hereditary Sovereignty of Greece, on the conditions hereinafter settled, " 3. The Prince Otho of Bavaria shall bear the title of King of Greece. " 4. Greece, under the Sovereignty of the Prince Otho of Bavaria, and under the guarantee of the three Courts, shall form a monarchical and independent State, according to the terms of the Protocol, signed between the said Courts on the 3rd of February, 1830, and accepted both by Greece and by the Ottoman Porte. " 5. The limits of the Greek State shall be such as shall be definitively settled by the negotiations which the Courts of Great Britain, France, and Russia have recently opened with the Ottoman Porte, in execution of the Protocol of the 26th of September, 1831. " 6. The three Courts having beforehand determined to convert the Protocol of the 3rd of February, 1830, into a definitive Treaty, as soon as the negotiations relative to the limits of Greece shall have terminated, and to communicate such Treaty to all the States with which they have relations, it is hereby agreed, that they shall fulfil this engagement, and that his Majesty the King of Greece shall become a con- tracting party to the Treaty in question. " 7. The three Courts shall, from the present moment, use their influence to procure the recognition of the Prince Otho of Bavaria as King of Greece by all the Sovereigns and States with whom they have relations. " 8. The Royal Crown and dignity shall be hereditary in Greece ; and shall pass to the direct and lawful descendants and heirs of the Prince Otho of Bavaria, in the order of primogeniture. In the event of the decease of the Prince Otho of Bavaria, without direct and lawful issue, the Crown of Greece shall pass to his younger brother, and to his direct and lawful descendants and heirs, in the order of primo- BARBARY STATES. 119 genlture. In the event of the decease of the last-mentioned Prince also, without direct and lawful issue, the Crown of Greece shall pass to his younger brother, and to his direct and lawful descendants and heirs, in the order of primogeni- ture. In no case shall the Crown of Greece and the Crown of Bavaria be united upon the same head. " 9. The majority of the Prince Otho of Bavaria, as King of Greece, is fixed at the period when he shall have completed his twentieth year; that is to say, on the 1st of June, 1835. " 10. During the minority of the Prince Otho of Bavaria, King of Greece, his rights of Sovereignty shall be exercised in their full extent by a Regency composed of three Coun- sellors, who shall be appointed by his Majesty the King of Bavaria. "11. The Prince Otho of Bavaria shall retain the full possession of his appanages in Bavaria. His Majesty the King of Bavaria, moreover, engages to assist, as far as may be in his power, the Prince Otho in his position in Greece, until a revenue shall have been set apart for the Crown in that State " (k). The union of the Ionian Islands with Greece has been already mentioned. LXXXV. Tenthly. — As to States standing in a Feudal Relation to other States. These may be said to be now con- fined to the province of Turkey. The existing independent Regencies tributary to the Sub- lime Porte are: — I. In North Africa : 1. Tunis. 2. Tripoli. II. In Europe : 1. Montenegro. 2. Moldavia. 3. Wallachia. 4. Servia (z). III. Egypt. (h) Ilertslefs Treaties, vol. iv. pp. 320, 322. (i) Vide post. Tripoli is not exactly in this category. See Koch, Hist. des Tr. iv. 388, 424, 438. 120 INTERNATIONAL LAW. LXXXVI. The relations subsisting between the Porte and these tributary States is of an anomalous and perplexing character ; nor have the great Powers of Europe been always agi-eed as to the light in which all these Regencies are to be considered. LXXXVII. First, with respect to the Barbary States, which are tributary to the Porte. These have been almost of necessity treated to a certain extent, and for certain pur- poses, as de facto independent States, though their de jure subordination to the Porte was undisputed. The course (A) which the European Powers have adopted has been such as, on the one hand, would recognize the Supremacy {Suzerainete) of the Porte over its dependencies ; while, on the other hand, these Powers have often demanded and enforced redress in vindication of the injuries done to their subjects, immediately and in the first instance from these dependencies themselves. The necessity of the cases, and the reason of the thing, have rendered this irregular mode of International proceeding unavoidable. " Nature" (Mr. Burke (J) observes, with his usual saga- city) " has said it, that the Turk cannot govern Egypt, " Arabia, and Curdistan as he governs Thrace. Nor has he " the same dominion in Crimea which he has at Brusa and " Smyrna The Sultan gets such obedience as he can. "He governs with a loose rein that he may govern at all ; " and the whole force and vigour of his authority in his (A;) Mahly^ Le Droit public de V Europe, t. i. c. v. "Le commerce ne seroit point en surety contre les Puissances de la cote de I'Afrique, si Ton se contentoit de prendre a ce sujet des engagemens avec la Porte Aussi la France, I'Angleterre, les Provinces-Unies, etc., traitent-elles diredeiiient avec Tunis, Tripoli, Alger, etc. Cependant ces Barbaresques, n'observant leurs trait^s qu'autant qu'ils y sont forces, s'exposent souvent a etre chati^s avec vigueur j et dans ces occasions il est tres-avantageux d'avoir contracts de telle fa^on avec le Grand Seigneur qu'il ne puisse prendre leur defense." — Ih. p. 396. Wheatori's Elem. de Droit inter, p. 49; Wheaton's Hid, p. 536. (/) S2)eech on Conciliation ivith America. — Burke's Works, vol. iii. pp. 66, 57. BARBARY STATES. 121 " centre is derived from a prudent relaxation in all his " borders." LXXXVIII. Since the conquest of Algiers by France (1830), Tripoli and Tunis are the only Barbary States {Re- gences harharesques) tributary to the Porte. Indeed, Tripoli is, properly speaking, not a Barbary State under the pro- tection of the Porte, but a province of the Porte, in the same condition and category as Bagdad or any other province of the Ottoman Power. The Bey is appointed and removed at the pleasure of the Sultan: nevertheless, European Powers have entered into Treaties with the Bey(?72) as an indepen- dent Power, and have sought redress from him, in the first instance, for injuries inflicted on their subjects. LXXXIX. Tunis, at the present time, stands in a diffe- rent and more independent category. The Bey is Hereditary Regent, and practically, if not theoretically, also irremovable by the Sultan, though, like Egypt, tributary to the Porte. In 1803 (w), nevertheless, the Porte addressed a Firman equally to Tunis and Tripoli, commanding both Regencies to obey the conditions of a Treaty of navigation and com- merce which the Porte had entered into with Prussia, and which related to both Tripoli and Tunis. In 1813 a Treaty was entered into between Great Britain and Tunis (o), by which this Regency agreed to accord to the inhabitants of the Ionian Islands the privileges of British sub- jects, provided Algiers and Tripoli adopted the same course. XC. The principal circumstances Avhich mark the recognition by the European Powers of the Suzerainete of the Porte over these Regencies appear to be these : — (m) The Bey styles himself, in these Treaties, " Bey, Gouverneur et Capitaine-Gen^ral de la cite et royaume (or regence) de Tripoli." See Treaties of 1762 and 1818 (last Treaty) between Tripoli and Great Britain ; Treaty of 1830 (last Treaty) between France and Tripoli. The Appendix to this volume will contain a chronological catalogue of the Treaties between European Powers and the Regences harharesques — xilgiers, Tripoli, Tunis. (w) De Martens et De Cussi/, Rec, de Tr, ii. 311. (o) Ih. 401. 122 INTERNATIONAL LAW 1. That they do not accredit Public Ministers to the Courts of these Regencies, but send Consuls only (/?). 2. That when the Beys, Pachas, or Governors of these Regencies visit the European Courts, they are presented there by the Ambassador of the Porte, and are not received as the representatives of an independent State. France, it is believed, has not always been so particular as Great Britain in the observance of this not insignificant point of etiquette. 3. That they have recognized the rule, however departed from in emergencies, either of negotiating through the Porte with respect to these Regencies, or of obtaining the subse- quent confirmation of the Porte for arrangements entered into with these Regencies. XCI. Morocco, it may be observed in passing, is un- questionably an Independent State, of which the Emperor is the International Representative. Various Treaties be- tween him and European Powers have been from time to time concluded, without any reference direct or indirect to the Porte {q). XCII. The mountainous province of Montenegro, which is a district of Western Turkey, consists of an elevated plain, separated by a narrow strip of Austrian territory from the Adriatic, bounded on the north-west and north by the Bosnian Herzegovina, on the east and south by the Albanian Paschalic of Scutari, and on the south-west by the Austrian frontier of Dalmatia, at the Bocca di Cattaro (r). This singular region of mountain fortresses, which was {p) Vide post, the important distinction in International Law between the Public Minister and the Consul. {q) For the Treaty settling the frontiers between French Algeria and Morocco see Guizofs Mem. vii. ch. xli. (1841-7). (r) Gazetteer of the World ; Ftdlarton, 1853, vol. ix. — " Montenegro." Wilkinson, Dalmatia and Montenegro, 2 vols. 1848. Treaty of Carlowitz, 1691 ; Schmams, ii. 1131. Treaty of Passaroivitz, 1718 ; Schmauss, ii. 1705. Treaty of Belgrade, 1739 j Wenck, Cod. J. Gent. i. 316. Treaty of Sistotva, 1791 ; Martens, Rec. de Tr. vol. v. p. 246. MONTENEGRO. 123 occupied by Ivan Czemojewich, who left his paternal domains near the Lake Scutari towards the end of the fifteenth century, has ever since that period been in a semi- independent condition. At first, the Montenegrins, having adopted the Greek religion, were placed under the Protectorate of Venice ; but in 1623, after a desperate resistance, they were compelled to pay a capitation tax {haratscK) to the Sultan. The Montenegrins have been till lately governed by a Prince Bishop of the Greek Church, called a Vladika, For a century and a half this dignitary appears to have been hereditary in the Petrovitsck family ; but the present Vladika, who succeeded in 1830, refused the episcopal dignity, and is a lay Chief. By the Treaty of Carlowitzin 1699 between the Republic of Venice and the Ottoman Porte, Montenegro appears to have been left under the Protectorate of Venice ; but by the Treaty of Passarowitz in 1718 it became again subject to the Porte ; in 1791 it was still a part of the Turkish Empire ; for it is a provision of the Treaty of Sistowa {s), concluded (s) Traits de Faix entre sa Majeste Imperiale Royale ApostoUque et la Sublime Porte Ottomane. Fait a SistoiUj le 4me aout 1791. {En langtie franqoise et turque) : — Art. 1. II y aura desormais une paix perp^tuelle et universelle, par terre, sur mer, et sur les rivieres, entre les deux empires, leurs sujets et vassaux, une amiti^ vraie et sincere, une union parfaite et etroite, une abolition et amnistie pleine et generale de toutes les hostilites, violences, et injures comraises dans le cours de cette guerre, par les deux puis- sances, ou par les sujets et vassaux de Tune, qui ont suivi le parti de I'autre; et specialement les habitans de toute condition du Monte- neyre, de la Bosnie, la Servie, la Valachie, et Moldavie, qui, en vertu de cette amnistie, pourront tons rentrer dans leurs anciennes demeures, possessions et droits quelconques, et en jouir paisiblement, sans etre jamais inquietes, molestes, ni punis pour s'etre declares centre leur propre souverain, ou pour avoir pret6 bommage a la cour imperiale et ro^'ale. Art. 12. Et quant a I'exercice de la religion catholique cbr^tienne dans I'Empire Ottoman, ses pretres, ses sectateurs, ses ^glises a entre- tenir, ou a reparer, la liberte du culte et des personnes, la frequentation et la protection des lieux saints de Jerusalem et d'autres endroits, la Sublime Porte Ottomane renouvelle et confirme, d'apres la regie du status 124 INTERNATIONAL LAW. in that year between Austria and the Porte, that the Monte- negrins shall not be molested or punished for having declared against their proper Sovereign. In 1766 the Montenegrins placed themselves under the Protectorate of Russia ; and ever since that period a relation of an undefined kind has subsisted between them. Since 1815 the Venetian possessions on the Illy rian coast, including the Bocca di Cattaro and the Ragusan territory, have been annexed to Austria. Nevertheless, two small points on the coast — the Leek and the Sutorina, which had been secured by the Treaties of Carlowitz and Passarowitz to Turkey — remained in her possession till 1852. In that year the Prince of Montenegro attacked and carried a fortress at the head of the Lake Scutari : this act of aggres- sion provoked Turkey to attempt the subjugation of Monte- negro. Austria, and, more tardily, Russia interfered on behalf of the Montenegrins; while England and France advised Turkey, without abandoning her de jure title over Montenegro, to respect the quasi independence of that terri- tory, and on this basis a dangerous quarrel, which might have embroiled all Europe, was adjusted. But Austria obtained the establishment of Consulates in Bosnia, Servia, and Herze- govina, and other parts of Roumelia ; and though she did not possess herself of Leek and Sutorina — the strips of territory whereby Turkish Herzegovina touches the Adriatic — she ob- tained a stipulation that Turkey should make no use of them as ports, and that no Turkish vessels should approach them. XCIII. The districts of Eastern Europe called Moldavia and Wallachia are two Principalities situated between the Carpathian mountains and the Danube and the Pruth. These Principalities, as well as those of Servia and Bul- garia, before the conquest of Gallipoli in 1358, by which Solyman opened to the Turks an entrance into Europe, had q\w strict, non-seulement les privileges assures par I'article IX du Traits de Belgrade a cette religion, mais aussi ceux qui ont dt6 post^rieiirement concedes par ses firmans, et autres actes ^manes de son autorite," — Martens, liec. de Tr. (1791), vol. v. p. 246. DANUBIAN PRINCirALITIES. 125 been governed by Princes of their own, tributary, sometimes to Hungary, and sometimes to Poland (t). In 1529 these Principalities submitted to the Porte, on condition of obtaining security for their religion (which, like that of Montenegro and Servia, is of the Greek Church) and their laws, and of being exempt from all taxes save that of a yearly tribute to the Sultan. These conditions were never rigidly adhered to, and the Principalities were always in a state of chronic revolt from Turkey ; but they suffered more especially from being the battle-field on which Kussia and the Porte contended for the mastery. This is not the occasion on which to enter into the history of the various fortunes of these Principalities. When these pages were first preparing for the press, a most grave matter of International Law had become involved in the proposition, that these Christian Principalities are Provinces (with what- soever privileges) of the Turkish Empire. It had become of great importance to the welfare of Europe to ascertain in what light Russia, the most powerful neighboui of Turkey, is bound to consider them, and what she has herself declared to be the limits of the Russian and Ottoman Empires. To answer the last question first : Russia dictated her own terms in the Treaty referred to by Count Nesselrode, as sus- taining her present demand, the Treaty of Adrianople, 1829; for, by the 3rd Article of that Treaty, it is provided that the Pruth shall continue to he the limit of the two Empires. The same Treaty provided, both by the 5th Article, and by supplemental annexed provisions, for the constitution of the Principalities. They are placed under the Suzerainete of the Porte, with the guarantee of Russia for their liberties and privileges. The next question was. In w^hat light has Russia bound it?) Koch, Hist. ahrSg. des Tr. TraiUs entre la PoHe Ottomane et les Puissances Chretienncs dermis la Pai.c de Carlowitz en \{M) jusqu^uu Traite de liuchnrest en 1812, t. iv. pp. 342, 410, ed. ]kuxelles, 1838. 126 INTERNATIONAL LAW. herself to consider these provinces? The Treaty of Adrian ople answers — as part of the Turkish Empire, The commercial Treaty between Russia and the Porte in 1846 makes the same reply still more distinctly. The 1 6th Article says, " Les " deux cours contractantes,prenant en consideration que pnrmi " les provinces qui font par tie des Etats de la Sublime Porte " les principautes de Valachie, de Moldavie, et de Servie "jouissent d'une administration distincte, sont convenues " que les raarchandises," &c. &c. (m). The yet more recent Treaty of Balta-Liman, of the 1st of May, 1849, does not annul the previous stipulations on this subject between Russia and the Porte, but, on the contrary, by the 7th Article, provides that they shall not be set aside (x), XCIV. The executive government of these provinces is that of a Hospodar or Woivode, elected by the inhabitants. This right of election, and that of administrative and legis- lative independence and inviolability of territory, constitute the principal privileges acquired by capitulation from the Porte. By the Treaty of Bucharest, in 1812, the third part of Moldavia was ceded by the Porte to Russia. The rest of Moldavia and Wallachia was restored to Turkey, with a special provision for the privileges of the inhabitants of Moldavia (?/). By the Treaty of Ackermann, in 1826, it was stipulated that the Hospodars should be nominated for seven years, and be liable to be deposed by the Suzerain or by the Pro- tecting Power. But by the Treaty of Adrianople, signed three years later. (w) De M. et De C. p. 637, Treaty of Balta-Liman in 1846. (x) Russia and Turkey : Armed Intervention on the ground of Beligion considered as a Qmstion of International Law ; with Appendix of Docu- ments. By Robert PJdllimore. London : Ridgway, 1853. Vide post, Intervention. (y) The Treaty of Sistowa secured Moldavia to the Porte in the same condition as formerly. SERVIA. 127 it was stipulated that the Hospodars should be appointed for life. By the Treaty oi Balta-Liman, of the 1st of May, 1849, it is agreed that the Hospodars should be appointed by the Sultan for a term not exceeding seven years ; that two Com- missioners should be appointed for the reformation of abuses, whose proposed alterations were to be submitted to the cabinets of St. Petersburg and the Porte; and that the consent of both of them should be obtained previous to their promulgation, by a Natti- Sheriff of the Sultan. The effect of the Treaty of Paris, 1856, placing these Principalities under the Suzerainete of the Porte and the guarantee of the Protecting Powers, has been already discussed (2;). XCV. Servia is not exactly in the same category as the provinces which have been first mentioned. Servia Proper contains about a million of inhabitants ; but the Servian race is said to amount to above five millions in number, and to occupy one-third of the European territories of Turkey, and all the south of Hungary. In the middle ages the Chief of this people assumed the title of Emperor of the East, and was only subdued by the united forces of the adjoining nations. The Servian empire was at last divided between Austria and the Porte. By the Treaty of Passarowitz, in 1718, the Porte ceded the north of Servia, with the capital Belgrade, to Austria, but regained this territory by the Treaty of Belgrade in 1739. In 1801 the struggle of the Servians for liberty began to be aided — at first secretly, and after 1809 openly — by Russia ; and the Treaty of Bucharest, in 1812, between Russia and the Porte, contained in its eighth article a provision securing, among other things, to the natives the internal administration of their affairs, on the payment of a moderate contribution to Turkey. In 1813 the Servian insurrection broke out again, but, no longer assisted by Russia, was put dowH with circumstances of horrible bar- barity. The Servians applied in vain to the Congress of (s) Vide ante, p. 48, and Preface to this vol. 128 INTERNATIONAL LAW. Vienna for the mediation of Christendom in their favour. But the Greek insurrection in 1821, and the subsequent independence of Greece, operated favourably upon the con- dition of Servia ; and it is now recognized by the European Powers as a distinct and independent nation, governed by a native Prince. Foreign Powers send Consuls to Servia, whose excBquatur emanates from the Sovereign of the country. Beside the Treaty of Bucharest, already mentioned, between Russia and the Porte, the Treaties of Ackermann in 1826 («), and of Adrianople in 1829, are to be consulted for the national Status of Servia, as well as for that of the Danubian Principalities of Moldavia and Wallachia {b). (a) Extract front Convention between the Ottoman Porte and Russia^ signed at Ackermann, September 25th, 1826. — Acte separe relatif a la Servie : — " La Sublime Porte, dans runique intention de remplir fidelement les stipulations de 1' Article VIII du Traits de Bucharest, ayant prec^dem- ment permis aux deputes serviens a Constantinople de lui presenter les demandes de leur nation, sur les objets les plus conveuables pour con- solider la suret<5 et le bien-etre du pays, ces deputes araient prdc^dem- ment expos6 dans leur requete le voeu de la nation relativement a quelques-uns de ces objets, tel que la liberttS du culte, le choix de ses chefs, I'ind^pendance de son administration interieure, la reunion des districts detaches de la Servie, la rdunion des difF^rents impots en un seul, I'abandon aux Serviens de la r^gie des biens appartenant a des Musulmans, a charge d'en payer le revenu ensemble avec le tribut, la liberte de commerce, la permission aux negociants serviens de voyager dans les Etats Ottomans avec leurs propres passeports, I'etablissement d'hopitaux, ^coles et imprimeries, et enfin la defense aux Musulmans, autres que ceux appartenant aux garnisons, de s'^tablir en Servie. Tandis que Ton s'occupait a verifier et a regler les articles ci-dessua specifies, certains empechements survenus en motiverent Pajournement. Mais la Sublime Porte persistant aujourd'hui encore dans la ferme reso- lution d'accorder a la nation servienne les avantages stipules dans I'Article VIII du Traits de Bucharest, elle r^glera, de concert avec les d^put^s serviens a Constantinople, les demandes ci-dessus mentionnees de cettQ nation fidele et soumise, comme au«si toutes les autres qui lui seraient pr^senttSes par la deputation servienne, et qui ne seront point contraires a la quality de sujets de I'Empire Ottoman." — De Martens et De Cussy, liec. de Traites et Conventions, vol. iv. pp. 40, 41. (&) De Martens et De Cussy, Bee. de Tr. Treaty of Bucharest, t. ii. EGYPT. 129 The effect of the Treaty of Paris, 1856, upon Servia has been already considered (c). XC VI. With respect to Montenegro, the Danubian Prin- cipalities, and Servia, an International question of some delicacy and difficulty arises — namely. To what extent the Protectorate of Austria or Russia over the Christian sub- jects of the Porte, in matters relating to their religion, has been allowed by custom or by treaty to extend ? This point will receive further discussion in a later part of this work, when the Right of Intervention is considered. XCVII. In all the foregoing instances, though they may exhibit a greater or a less derogation from the rights of inde- pendent Sovereignty (excepting perhaps the case of Servia), the attribute of free and uncontrolled agency in their ex- ternal relations with Foreign States is wanting. XC VIII. States that pay tribute, or stand in a feudal rela- tion towards other States, are, nevertheless, sometimes con- sidered as Independent Sovereignties. It was not till 1818 that the King of Naples ceased to be a nominal vassal of the Papal See ; but this feudal relation was never considered as affecting his position in the Commonwealth of States. Of the same kind some German Jurists appear to consider the subsisting relation between Kniphausen and Olden- burg ; but, in fact, it is a relation which can hardly be said to exist in these days, except where, as in the instances of the Barbary States, there is a direct and practical acknow- ledgment of a superior Sovereignty. XCIX. Eleventhly. — The Status of Egypt with respect to its International relations is very peculiar. Under the rule of the Mamelukes, Egypt had assumed the shape of an Independent State, though owing an allegiance of a feudal character, and being tributary to the Porte. After the destruction of the Mamelukes, the then Pacha of p. 393. Treaty of Ackermann, t. iv. p. 40. Treaty of Adriatiople, ib. p. 223. Wheaton's History, p. 558. (e) Vide ante, p. 48. VOL. I. K 130 INTERNATIONAL LAW. Egypt, Mehemei Ali, endeavoured to establish an entirely independent kingdom. This endeavour led to the Interven- tion — which will be more fully considered hereafter — of the principal European Powers in the conflict between the Sultan and the Pacha, and the Convention of July 1840 (d). On November 3, 1839, the Porte published an Ordinance for the regulation of its provinces and of its vassal States, called Haiti' Sheriff of Gulhane {e). This Hatti- Sheriff was followed by the promulgation of a collection of Laws called the Tanzimat, and this, with certain modifications, has been applied to Egypt by a Firman decore d!un Hatti- Sheriff (f)f of July 1852. This Firman appears to overrule the Code d^ Abbas, which the present Pacha had established in Egypt. This Firman can hardly be said to affect the Inter- national relations of the Pacha ; the principal derogation from the Sovereignty of the latter consisting in the reservation to the Sultan of the power as to life and death over the subjects of the Pacha (g). (d) See the Acte de Soumission, in the Firman du 13 fevrier 1841 j Correspondence relative to the Affairs of the Levant^ vol. ii. 735 (London, 1841). (e) See the Morning Chronicle, 27 November, 1839; the Times, 24 October, 1839. (/) This has not yet been published, but it describes itself as — " Firman adress^ a mon illustre et judicieux Vizir Abbas Halmi Pacha, actuellement et h^reditairement Gouverneur de I'Egypte, avec le rang Eminent de Grand Vizir." {g) The following are extracts from this Firman : — " Comme resultat salutaire de ces sentimens, les Tanzimati-Hairiy^, qui renferment les principes d'equit^ et de justice que la Loi Sainte, dont les bases sont in6branlables, pr^scrit, out 6te institues, j'ai r^ussi a faire executer ces Tanzimat, qui conform(5ment a mon Hatti-SherifF qui a et«5 lu, il y a quelque temps, sur la Place de Ghiulkaneh, assurent completement la vie, la propria t^, et I'honneur de toutes les classes des sujets de ma Sublime Porte etablis dans mes ^tats. "D'apres les lois generates de ma Sublime Porte, I'exgcution des criminels qui doivent etre mis a la Poi-te, soit en vertu de la loi du talion, soit par mesure d'administration, apres les formalites necessaires d'une enquete juridique et conforme aux lois reglementaires, depend absolument de mes ordres souverains. " Lorsque tu auras pris connaissance de mes ordres souverains, tu EGYPT. 131 In the Separate Act annexed to the Convention, concluded at London on the 15th of July, 1840, between the Courts of Great Britain, Austria, Prussia, and Eussia on the one part, and the Sublime Ottoman Porte on the other, the Inter- national Status of Egypt is described in the following articles : — " 1. His Highness promises to grant to Mehemet Ali, for himself and for his descendants in the direct line, the ad- ministration of the Pachalic of Egypt ; and his Highness promises, moreover, to grant to Mehemet Ali for his life, with the title of Pacha of Acre, and with the command of the fortress of Saint John of Acre, the administration of the southern part of Syria, the limits of which shall be deter- mined by the following line of demarcation : — " This line, beginning at CapeRas-el-Nakhora, on the coast of the Mediterranean, shall extend direct from thence as far as the mouth of the River Seizaban, at the northern extremity of the Lake of Tiberias. It shall pass along the western shore of that lake. It shall follow the right of the Eiver Jordan and the western shore of the Dead Sea. From thence it shall extend straight to the Red Sea, which it shall strike at the northern point of the gulph of Akaba ; and from thence it shall follow the western shore of the gulph of Akaba, and the eastern shore of the gulph of Suez, as far as Suez. " 3. The annual tribute to be paid to the Sultan by Mehemet Ali shall be proportioned to the greater or less amount of territory of which the latter may obtain the administration, according as he accepts the first or the second alternative. " 5. All the Treaties and all the Laws of the Ottoman Empire shall be applicable to Egypt and to the Pachalic of auras, etc., soin que d^somiais aucune autorite, aucun employe n'ait a contrevenir en la moindre chose aux Tanzimat-Hairiye, et tu mettras en pratique toutes les dispositions et tous les reglemens qui sont contenus dans le statut sus-mentionn6. . . . " Aie-le pour entendu et ajoute foi au noble chifFre dont est orne le present comraandoraent imperial, donne dans la derniere dizaine du mois Ramazan,ran mil deux cent soixante-huit (vers la mi-juillet 1852)." k2 132 INTERNATIONAL LAW. Acre, such as it has been above defined, in the same manner as to every other part of the Ottoman Empire. But the Sultan consents, that on condition of the regular payment of the tribute above mentioned, Mchemet Ali and his descen- dants shall collect — in the name of the Sultan, and as the delegate of his Highness, within the provinces the adminis- tration of which shall be confided to them — the taxes and imposts legally established. It is moreover understood that, in consideration of the receipt of the aforesaid taxes and imposts, Mehemet Ali and his descendants shall defray all the expenses of the civil and military administration of the said provinces. " 6. The military and naval forces which may be main- tained by the Pacha of Egypt and Acre, forming part of the forces of the Ottoman Empire, shall always be considered as maintained for the service of the State " (h). Recently the Sultan and the Turkish Grovernment were alarmed and offended by what they conceived to be conduct on the part of the Viceroy or Khedive, indicating a claim on his part to be treated as an independent Sovereign. This alarm, it is supposed, was partly founded on the re- ception of the Viceroy, by the different Courts of Europe, on his visits to them ; on his invitation to foreign Powers to be present at the opening of the Suez Canal ; on certain steps which he had taken to attract strangers, and to found commercial establishments in Egypt, and on certain regula- tions with respect to the institution of schools ; and also on account of the purchase of vessels and ammunition of war. The Turkish Minister addressed a letter of complaint upon these and other subjects to the Viceroy, in reply to which he denied that he had ever gone " beyond the limits of the "rights and duties prescribed by the Imperial Firmans." The Porte however insisted upon certain conditions, which after diplomatic intervention the Viceroy accepted (i). (A) Hertslefs Treaties, vol. v. pp. 547-649. (ij See the Viceroy's defence at length, Ann. Reg. 1869, p. 273. STATES UNDEIl A FEDERAL UNION. 133 CHAPTER HI. STATES UNDER A FEDERAL UNION. C. We now arrive at the second branch of this part of our subject — namely, the consideration of several States under a Federal Union. The examples in modern times of this description of States are the following : — 1. The Germanic Confederation (^Der Deutsche Bund) {a), or the North German Confederation since 1866. 2. The Confederated Cantons of Switzerland. 3. The United Kepublics of North America. 4. The United Republics of Central and South America : — namely, first. The United Provinces of Guatemala, or the Republic of Central America; secondly. The United Pro- ■\dnces of Rio de la Plata, or the Argentine Republic. CI. States under a Federal Union may be classed under two principal heads : — First. Those which have retained their Independent and Individual Sovereignty, especially as to the adjustment of their external relations with other Nations, and belong to a system of Confederated States only for purposes of domestic and internal policy, and of mutual assistance and defence ( Staatenhund) (b). But the Laws of this Federal Body have only effect and force in the separate members of the system through the agency and application of the particular laws and jurisdiction (a) Deutsches Slants- und Bundesrecht von Zacharid, erster Theil, kap. i. s. 21 {Gottingen, 1841): "Von dem zusammenfresetzten Staate, der Union, und dem volkerrechtlichem Staatenvereine," (b) Zacharid, ib. b. i. kap. i. s. 21. The other class is aptly de- sifmated Bundesstaat. 134 INTERNATIONAL LAW. of each individual Government ; therefore, as far as Foreign Power is concerned, these Confederated States must be con- sidered as individually responsible for their conduct, and as separate Independent States. In this class must be ranked the existing Germanic Confederation. Secondly. The Federal Union may be so adjusted that the management of the external relations of the respective members of the Union be absolutely vested in a Supreme Federal Power. GERMAN CONFEDERATION. 135 CHAPTER IV. GERMAN CONFEDERATION. CII. The history of the Germanic Confederation has had an important bearing on the general system of Inter- national Law, and of the public law of Europe. It has undergone a complete revolution since the first publication of this volume. Nevertheless it has seemed to me for various reasons expedient to add to rather than omit what had been then written. The complete study of this subject requires a division of it into at least four epochs — 1. The original institution of the Confederation. 2. The remodelling of it in the year 1806. 3. The change effected by the Treaties of Vienna, 1815, 1820. 4. The entire destruction of this Confederation by Prussia, and the erection of a new Confederation united to Northern Germany in 1866. cm. (1) The ancient Germanic Empire («), august and venerable for many reasons to the student of International Jurisprudence and Public Law, was virtually destroyed by Napoleon's Confederation of the Rhine, and must be con- sidered as formally extinguished by the Act (b) of Abdication (a) Deutsches Staats- und Bundesrecht, Zacharid, band i. kap. ii. ^' Die Zeit des Deiitschen Reichs." V&n dem Gesandschaftsrechte des Deutschen Bundes, Miruss, i. p. 523. Vattel, ii. p. 338, s. 69. (6) See the Act, Martens' Bee. des Traites, viii. p. 498 ; Wheaton's History, p. 70 ; Hallam's Middle Ages, vol. ii. c. 5 ; Koch, Histoire des Traites, c. i. s. 1 (par Schoell). The Germanic Constitution, and still more the Medieval Councils of the Church, are the institutions which have, in theory, made the nearest approach which perhaps the world has ever seen to an Universal International Tribunal. 136 INTERNATIONAL LAW. of the Emperor Francis, in August 1806. (2) By this Act the Electors were absolved from their duty to him as head of the Empire, and his own German dominions were incor- porated into the Austrian States, over which he henceforth ruled as Emperor of Austria. CIV. The Germanic Confederation is to be distin- guished from those confederated States which have indeed an Independent National Government, but have also a Central Federative Government which conducts the Inter- national relations of the Confederacy. The deliberations of the Germanic Confederacy are con- ducted by a Diet, which sits at Frankfort-on-the-Maine, and is the established organ of the Confederacy, and the permanent congress of the plenipotentiaries of the States which are members of it (c). It does not interfere with the internal arrangements of the individual members of the Confederacy, except in so far as they affect the general interests of the whole body ; and each of these members communicates directly, and not through the medium of a central Government, with the Governments of Foreign Nations {d). CV. (3) The Treaties which must be consulted upon this subject are — The Treaty of Vienna, 1815 — the Annexes to that Treaty; the Actejinal (^Wiener Schlussacte^ signed at Vienna May 15, 1820; the Loi organique, which settles the military constitution of the Confederation ; the Act of the Diet of the 28th of June, 1832, and of the 30th of October, 1834. By the fourth, fifth, and sixth articles of the Act which settled the Constitution of the German Confederation at the Congress of Vienna, it was provided, That, in the Fede- rative Diet, all the members vote by their plenipotentiaries, either individually or collectively : — (e) Zacharia, ib. iii. ss. 223, 11 ; ss. 261, 1. (d) The Diplomatic intercourse of the German Confederation, as such, with other nations, will be considered hereafter. — Zachar. ib. s. 262. GERMAN CONFEDERATION. 137 Votes Austria Prussia Bavaria ........ Saxony Hanover Wurtemburg Baden Electoral Hesse ....... The Grand Duchy of Hesse Denmark (for Holstein) The Netherlands (for Luxemburg) .... The Grand Ducal, and Ducal Houses of Saxony Brunswick and Nassau Mecklenburg, Schwerin, and Strelitz ... Oldenburg, Anhalt, and Schwartzburg ... HohenzoUern, Lichtenstein, Reuss, Schaumburg, Lippe, Waldeck, and Hesse Homburg The Free Cities of Lubeck, Frankfort, Bremen, and Hamburg (e) Total 1 Austria presides over the Diet. Each State has a right to make propositions, under limitations as to time fixed by the President. Whenever Fundamental Laws are to be proposed or altered, when Organic Institutions or other arrangements of a common interest are to be adopted, the Diet resolves itself into a General Assembly, and the votes are taken as follows : Votes Austria ........ 4 Prussia ........ 4 Saxony ........ 4 Bavaria 4 Hanover 4 Wurtemburg 4 Baden 3 Electoral Hesse 3 The Grand Duchy of Hesse 3 Holstein 3 Luxemburg 3 (e) • Be Martens et I)e Cussy, Rec. de Tr. torn. iii. p. 146. JVheaion on International Laiv, vol. i. pp. 70, 71. 138 INTERNATIONAL hXW. VoW Brunswick . . 2 Mecklenburg Schwann 2 Nassau 2 Saxe- Weimar Saxe-Gotha Saxe-Coburg Saxe-Meiningen Saxe-Hilburghausen Mecklenburg-Strelitz Oldenburg Anhalt-Dessau Anhalt-Bernburg Anhalt-Coethen Scbwartzburg-Sondershausen Schwartzburg-Rudolstadt Hohenzollem-Hechingen Lichtenstein . Hohenzollem-Sigmaringen Waldeck Reuss (elder branch) Reuss (younger branch) . Schaumburg-Lippe . Lippe .... Hesse-Homburg The Free City of Lubeck „ „ Frankfort „ „ Bremen „ Hamburg (/) Total 70 CVI. By the sixth article of the Treaty of Paris (1814), it was stipulated that " the States of Germany should be " independent, and united by a Federal League." By the Federal Act (^) of 1815, the possessions of those Sovereigns and Free Towns " which had anciently apper- " tained to the German Empire " were anew incorporated into a League, entitled " The German Confederation " (h). By the eleventh article of the Annexe to the Treaty, it was provided, that — (/) Be Martens et De Cussy, Rec. de Tr. tom. iii. pp. 146, 147. Wheaton on International Law, vol. i. pp. 71, 72. (g) See Annexe 9 of the Final Act of the Congress of Vienna. (h) Martens, Nouv. Rec. ii. p. 516. GEKMAN CONFEDERATION. 139 "(Art. 11.) The States of the Confederation bind them- selves to defend, not only the whole of Germany, but also each individual State of the Union, in case it should be attacked, and mutually guarantee all their possessions in- cluded in this Union. " When war is declared by the Confederation, no member can engage in separate negotiations with the enemy, nor make peace, or a truce, without the consent of the others. " The members of the Confederation, whilst reserving to themselves the right of forming alliances, bind themselves not to contract any engagement which shall be directed against the security of the Confederation, or of the individual States of which it is composed (i). " The Confederated States bind themselves not to make war against each other under any pretext, and not to pro- secute their controversies by force of arms, but to submit them to the Diet, which shall endeavour to mediate through the medium of a Commission ; and if this fail, and a judicial sentence be necessary, it shall be obtained by an Austregal Tribunal {Austregal Instanz) properly constituted, from which there shall be no appeal " {k). The Act of 1815, so incorporated in the Treaty of Vienna, was completed by the First Act of 1820 (May 15). This Act contains the following articles as to their Mutual Inter- national Relations (/) : — " Art. 1. The Germanic Confederation is an International union (volkerrechtlicher Verein) of sovereign princes and free cities of Germany, for the preservation of the independence and inviolability of the States comprised in the Confederation, and for the maintenance of the internal and external security of Germany. " Art. 2. This union is, in its relations, a self-subsisting («') This clause is not in the body of the Treaty ; see s. 63. {k) Annexe to the Treaty, De M. et Be C. i. p. 145. (J) Confederation germanique. — De Martens et De Cussy, Bee. de Traites^ &c., vol. iii. pp. 463, 464. Wheaton's History, p. 445. 140 INTERNATIONAL LAW. Association of States, mutually independent of one another, with equal reciprocal rights and obligations ; but, in its ex- ternal relations, a collective power combined in political unity. " Art. 3. The extent and limits which the Confederation has marked out for its operation are defined by the Federal Act, which is the original compact and first groundwork of this union : whilst it announces the object of the Confede- ration, it provides and determines at the same time its powers and obligations. " Art. 4. The power of developing and perfecting the Federal Act, so far as the completion of the object therein set forth may require, belongs to the assembly of the members of the Confederation. The resolutions, however, to be adopted for this purpose may not contravene the spirit of the Federal Act, nor deviate from the fundamental character of the Confederation." CVII. The following articles respect the International relations of the Confederation with other States, both with respect to its corporate capacity, and with respect to the in- dividual members under its protection. And, first, it should be observed, that by the fiftieth article of the Acte Final {Wiener Schlussacte) of 1820, it is provided: " That, with respect to Foreign Affairs in general, it is the duty of the Diet — *' 1. As the organ of the Confederation, to watch over the maintenance of peace and amicable relations with Foreign States. " 2. To receive the Envoys accredited by Foreign States to the Confederation, and to nominate, if it should he thought necessary, ministers to represent the Con- federation at Foreign Courts. " 3. To conduct, when it may be necessary, negotiations, and conclude treaties on behalf of the Confederation. " 4. To interpose with Foreign States good offices on behalf of those members of the Confederation who desire them, and to employ the same agency with the GERMAN CONFEDERATION. 141 separate States, members of the Confederation, on behalf of Foreign Governments who ask for such intervention." By the thirty-fifth article it is declared, that " The Ger- manic Confederation has the right, as a collective body, to declare war, make peace, and contract alliances, and nego- tiate treaties of every kind ; nevertheless, according to the object of its institution, as declared in the second article of the Federal Act, the Confederation can only exercise these rights for its own defence, for the maintenance of the external security of Germany, and the indepen- dence and inviolability of each of the States of which it is composed. " Art. 36. The Confederated States having engaged, by the eleventh article of the Federal Act, to defend against every attack Germany in its entire extent, and each of its Co- States in particular, and reciprocally to guarantee the integrity of their possessions, comprised in the union, no one of the Confederated States can be injured by a Foreign Power, without at the same time, and in the same degree, aifecting the entire Confederation. " On the other hand, the Confederated States bind them- selves not to give cause for any provocation on the part of Foreign Powers, or to exercise any towards them. In case any Foreign State shall make a well-grounded complaint to the Diet of an alleged wrong committed on the part of any member of the Confederation, the Diet shall require such member to make prompt and satisfactory reparation, and take other necessary measures to prevent the disturbance of the public peace. " Art. 37. Where differences arise between a Foreign Power and any State of the Confederation, and the interven- tion of the Diet is claimed by the latter, that body shall ex- amine the origin of the controversy, and the real state of the question. If it results from this examination that such State has not a just cause of complaint, the Diet shall engage such State, by the most earnest representations, to desist from its 142 INTERNATIONAL LAW. pretensions, shall refuse its intervention, and, in case of necessity, take all proper means for preserving peace. Should the examination prove the contrary, the Diet shall employ its good offices in the most efficacious manner, in order to secure to the complaining party complete satisfaction and security. • " Art. 38. Where notice received from any member of the Confederation, or other authentic information renders it probable that any of its States, or the entire Confederation, are menaced with a hostile attack, the Diet shall examine into and pronounce without delay upon the question whether such danger really exists ; and if determined in the affirma- tive, shall adopt the necessary measures of defence. " This resolution and the consequent measures are deter- mined in the permanent council by a plurality of votes. " Art. 39. When the territory of the Confederation is actually invaded by a Foreign Power, tlie state of war is established by the fact of invasion ; and whatever may be the ultimate decision of the Diet, measures of defence, pro- portioned to the extent of the danger, are to be immediately adopted. " Art. 40. In case the Confederation is obliged to declare war in form, this declaration must proceed from the general assembly determining by a majority of two-thirds of the votes. " Art. 41. The resolution of the permanent council de- claring the reality of the danger of a hostile attack renders it the duty of all the Confederated States to contribute to the measures of defence ordained by the Diet. In like manner, the declaration of war, pronounced in the general assembly of the Diet, constitutes all the Confederated States active parties to the common war. " Art. 42. If the previous question concerning the exist- ence of the danger is decided in the negative by a majority of votes, those of the Confederated States who do not concur in the decision of the majority, preserve the right of concert- ing between themselves measures of common defence. '' Art. 43. Where the danger and the necessary measures GERMAN CONFEDERATION. 143 of defence are restricted to certain States only of the Con- federation, and either of the litigating parties demands the mediation of the Diet, the latter body may, if it deems the proposition consistent with the actual state of things, and with its own position, and if the other party consents, accept the mediation ; provided that no prejudice shall result to the prosecution of the general measures for the security of the territory of the Confederation, and still less any delay in the execution of those already adopted for that purpose. " Art. 44. War being declared, each Confederated State is at liberty to furnish for the common defence a greater amount of forces than is required as its legal contingent ; but this augmentation shall not form the ground of any claim for indemnity against the Confederation. " Art. 45. Where in case of war between Foreign Powers, or other circumstances, there is reason to apprehend a viola- tion of the neutral territory of the Confederation, the Diet shall adopt without delay, in the permanent council, such extraordinary measures as it may deem necessary to maintain this neutrality. " Art. 46. Where a Confederated State, having possessions without the limit of the Confederation, undertakes a war in its character of a European Power, the Confederation, whose relations and obligations are unaffected by such war, remains a stranger thereto. " Art. 47. Where such State finds itself menaced, or at- tacked, in its possessions not included in the Confederation, the latter is not bound to adopt defensive measures, or to take any active part in the war, until the Diet has recognized in the permanent council, by a plurality of votes, the exist- ence of a danger threatening the territory of the Confedera- tion. In this last case, all the provisions of the preceding articles are equally applicable. " Art. 48. The provision of the Federal Act, according to which, when war is declared by the Confederation, none of its members can commence separate negotiations with the enemy, nor sign a treaty of peace or armistice, is equally 144 INTERNATIONAL LAW. applicable to all the Confederated States, whether they possess or not dominions without the territories of the Con- federation. ** Art. 49. In case of negotiations for the conclusion of a peace or armistice, the Diet shall confide the special direction thereof to a select committee named by that body, and shall appoint plenipotentiaries to conduct the negotiations accord- ing to instructions, with which they shall be furnished. The acceptance and confirmation of a treaty of peace can only be pronounced in the general assembly " (m). C VIII. The Federal Constitution was modified by a decree of the Diet at Frankfort (30th October) 1832, and still further by an act of 1834 ; but these modifications, whether desirable or not, were pronounced by the British Minister for Foreign Affairs to involve no point which concerned the foreign relations of the different States with other States, and, therefore, not to found any just ground for their interference (n). But in 1834 the British Minister at the Germanic Diet protested against the occupation of Frankfort by Austrian and Russian troops as a violation of the Treaty of Vienna, and said, " The Germanic Confederation has been " created by the Treaty of Vienna ; and, as to its relations " with other States, the rights of the Confederation, its " powers, and its obligations, are to be sought for in the " stipulations alone " (o). It would not be within the limits of this work to describe (m) Martens, Nouveau Mecueil, torn. v. pp. 467-501 ; Be M. et JDe C. i. p. 463 ; Wheaton's Law of Nations, pp. 457-460 ; Relations of the Duchies of Schlestoig and Holstein. — Tioiss, p. Ill ; Zachar. ib. Ill, 8. 261. («) Wheaton's History, 460, 468, 470, 472, 483. Mr. Buhver's Speech in the House of Commons, August 2, 1832 ; and Lord Palmerston's Reply. — Hansard's Parliamentary Debates (third series), vol. xiv. pp. 1020-1049. (o) Zacharid, ib. b. iii. ; kap. iii. s. 256 : " Streitigkeiten iiber Aus- legung und Anwendung der Verfassung." — Bnndesschiedsgericht von 1834. The Relation of Schlestviff and Hohtein, by Dr. Tiviss, p. 119; 1 Wheaton, Elem. p. 65. GERMAN CONFEDERATION. 145 the various attempts made to remodel the Germanic Con- federation, extending from the month of February 1848, to the 15 th of May 1851. The end of the revolutionary ^agita- tion which distracted Germany during this period is the restoration of the Frankfort Diet as it had existed^since 1815 (jt>). CIX. From what has been stated, the following proposi- tions appear to be legitimately deduced : — First. That the Germanic Confederation maintains with those who are members of that league relations of a special International character, resting entirely upon the Federal Act of 1815, and further explained by that of 1820, as their sole foundation ; but that all the members of this league are governed in their relations with other Independent States by the general International Law. Secondly. That the mutual rights and duties of the mem- bers of this Confederation are wholly distinct from those which exist between them and other States, not members of the Confederation. Thirdly. That the operation of the duties and rights growing out of the constitution of the Confederation is not only exclusively confined to the Independent Sovereigns who are members of it, but also to the territories which belong to them, by virtue of which they were originally incorporated into the Germanic Empire {q). Fourthly. That the admission of new States, not being German, into the Confederation, or the admission of States not sovereignties, would conflict with the principle and the objects of the Confederation (r). If these propositions be sound in point of law and reason, it follows that neither territories belonging to these sovereigns at that time, nor subsequently acquired territories, can be engrafted into this Confederation without the consent of (p) Annual Register^ vol. xciii. p. 277. {q) ZacJiariii, ib. band iii. s. 219 : " Begriff und Zweck des Deutschen Bundes." (/•) Zacharidj ib. s. 222. VOL. I. L 146 INTERNATIONAL LAW. other nations, especially of those who were parties to the Treaty of Vienna. ex. The events of our own day have called for very important practical applications of these principles : first, in the case of the Duchies of Schleswig and Holstein(5), as to the relation in which they stood to the Crown of Denmark on the one hand, and to the Germanic Confederation on the other : Schleswig having been a fief of the Danish Crown from the period of its first creation as a Duchy up to the year 1658, and having since that time been annexed to the Gottorp Duchy, and having been afterwards re-annexed with Gottorp to Denmark, and never having been directly connected with the German Empire ; Holstein, on the contrary, having been a German fief. Those who argued for the German side (as it was called) of the question, contended, that because the King of Den- mark was subject, as Duke of Holstein, to the laws of the Confederation with respect to that Duchy, therefore his Duchy of Schleswig was also subject to the same condition. It was answered irresistibly, it would seem, so far as justice, practice, and the reason of the thing are concerned, that it might as well be said that his province of Jutland was subject to the Confederation ; that the King of Holland, by reason of his Duchy of Luxemburg, had not subjected Belgium to the Confederation ; and that the members of it had not pre- tended to interfere as to the separation of Belgium from Holland, though they had done so as to the arrangements with respect to the Duchy of Luxemburg. On the establishment of the kingdom of Belgium, Luxemburg was divided, half being given to Belgium, and half remaining to Holland; the German Confederation being compensated by the admis- sion into its membership of the newly-created Duchy of (s) The Relations of the Duchies of Schlesivig and Holstein to the Croiun of Denmark and the Germanic Confederation, by Dr. Tiviss, chap. V. p. 103. GERMAN CONFEDERATION. 147 Limburg (t). Another case which gave rise to a discussion as to the practical application of the principles of the German Confederation was the alleged attempt or desire of Austria to incorporate her Hungarian, Croatian, and Italian Domi- nions into the German Confederation ; to which attempt the Powers who guaranteed the Treaty of Vienna had an un- questionable right to refuse their consent, and which right they might hold themselves bound by their obligations, both with respect to themselves and to the general peace of the world, to exert (m). CXI. (4) We have now arrived at the last, but, in spite of present appearances, perhaps not the final resolution of the Germanic Confederation. In its relation to Foreign States, it had been of little practical importance since the Treaty of Vienna. This was owing to the constant rivalry between the two greatest members of it, Austria and Prussia — a rivalry which was terminated in 1866, in a manner which had not been foreseen or expected by the European Powers, although the outbreak of democracy, in the years 1848 and 1849, had ended in greatly strengthening the power and authority of Prussia. In 1863 the Emperor of Austria convened the German Sovereigns at Frankfort to consider the form of the Federal Union. Prussia refused to take any part in this convention, and at that time probably began to prepare, in secret, the first steps for obtaining the supre- macy for herself over the German Confederacy, and for excluding Austria from all future participation therein. After the death of the King of Denmark, the claims of the German people with respect to the Duchies of Holstein and Schleswig ought to have been enforced, if they were founded upon justice, by the intervention (x) of the Diet ; but Austria was induced by Prussia, under the pretext of restraining (t) Zacharia, ib. s. 221. II. D. (u) See the note on this subject of the French and English to the Austrian Government in the Appendix to the second volume of the Annuaire 1852-3, by the editors of the Revue des Deux Mondes. (.r) By what was technically termed '' a Federal execution." l2 148 INTERNATIONAL LAW. democracy, to participate with her in the invasion of Den- mark. From that moment, Prussia saw her way to expel Austria from the supremacy in Germany, which she intended to obtain for herself. In 1864 "much- wronged Denmark" (y), left alone without allies, was compelled, by the overwhelming military forces of Austria and Prussia, to cede to them the Duchies of Schles- wig, Holstein, and Lauenburg (z). A dispute rapidly arose between Austria and Prussia with respect to the right of succession to the Duchies of Schleswig and Holstein. This right they had both previously re- cognized as being vested in the hereditary Prince of Augus- tenburg. Prussia soon showed the determination, which she afterwards executed, of annexing to her own territories the Elbe Duchies. The other Powers of Europe did not inter- fere, otherwise than by diplomatic remonstrance, to maintain the public law of Europe, as contained in the Treaties of 1815 upon this question. The Diet attempted to intervene, but Prussia denied its competence, and refused to be bound by its jurisdiction. On the 14th of August, 1865, the Treaty of Gastein embodied a sort of compromise between Austria and Prussia, whereby the former was to take Holstein and the latter Schleswig. But this treaty did not avail to pre- vent an open breach between these two great Powers, which shortly afterwards took place. The Diet again, in vain, attempted to intervene. Prussia allied herself with Italy, and a war with Austria ensued. In this war the Diet en- deavoured to support her rights, by bringing into the field an army composed of the troops of divers Federal States. Bavaria, Hanover, and Saxony became the allies of Austria. The result is well known. Prussia, by her superior military organization, and the important aid of Italy, obtained, in 1866, a complete victory over her rival. The Treaty of (if) tS^r A. Malet, Overthrow of the Germanic Confederation, p. 385 j see also p. 29. (z) See Article iii. Treaty of Vienna, Oct. 30, 1864. GEEMAN CONFEDERATION. 149 Prague was' signed on the 23rd of August, 1866, between the two Powers, the exact contents of which, so far as they affect the present question, have been already men- tioned (a); but I will state here the general conclusion in the language of the most recent, and certainly not the least competent, historian of the Germanic Confederation. " The peace agreed on at Nicolausberg was signed at " Prague, and ratified on the 30th of July. The dissolution " of the Germanic Confederation was thereby recognized, '^ and Austria, engaging to abstain from all interference in " the reconstruction of Germany, gave her assent before- '' hand to all such territorial changes as Prussia saw fit to " make, on the sole condition that Saxony should remain " intact. Austria likewise ceded all pretensions to con- " dominate right with Prussia in the Elbe Duchies, stipu- " lating, however, that North Schleswig should be entitled " to vote upon the question of eventual re-union with " Denmark. " Saxony it was decided should be united to the North " German Confederation; and special arrangements as to " the army, the police, and post-office were made with that '^ Government, which left King John few remains of inde- " pendence or royal prerogative, excepting the right of " imposing taxes on his subjects. " Prussia took possession of Hanover, of Electoral Hesse, " Nassau, and the formerly free city of Frankfort-on-Main, " as well as that of Schleswig and Holstein, besides the " territorial cessions made by Bavaria and Grand-Ducal " Hesse, in full sovereignty ; and here it may be remarked " that, in spite of many remonstrances, the article of the " Treaty of Prague relating to the vote of North Schleswig " for re-union with Denmark remains to this day (the author " writes in 1870) unexecuted (i)." (a) Vide anU, p. 49. (&) The Overthrow of the Germanic Confederation by Prussia in 150 INTERNATIONAL LAW. Germany now presents a new International aspect to Foreign States — a North German Confederation, diplomati- cally represented as such, but really under the absolute control of Prussia ; and Southern States, not formed as yet into a South German Confederation, but of which Austria is the most powerful State. With respect to Northern Germany, a treaty of con- federation was entered into between the Governments of Prussia, Saxe- Weimar, Oldenburg, Brunswick, Sachsen- Altenburg, Sachsen-Coburg-Gotha, Anhalt, Schwartzburg- Sondershausen, Schwartzburg-E-udolstadt, Waldeck, Reuss (of the younger line), Schaumburg-Lippe, Lippe, Liibeck, Bremen, and Hamburg. By this treaty it was agreed that a confederate constitution should be adopted by a German Parliament, and the troops of the confederates were to be under the supreme command of the King of Prussia. They mutually agreed to maintain " the inde- " pendence and integrity " of the contracting States, and guaranteed the defence of their territories (c). The enormous military preponderance which Prussia thus obtained, not only in Germany, but in Europe, and the complete disturbance of the previously existing balance of power, are obvious and indisputable facts ; but the matter does not rest here, for in 1867 it was discovered that she had concluded a secret treaty, identical in its provisions, with the four States of Bavaria, Wurtemburg, Baden, and Hesse-Darmstadt. It was, in its fullest sense, an offensive and defensive alliance with each of them, with the peculiar feature of placing the whole military force of each State under the orders of the King of Prussia in case of war ( p. 323. Lawrence's Wheaton, 360, n. 114. See Speech of the Earl of Clarendon, Secretary of Fordgn Affairs, in the House of Lords, June 3rd, 185S.— Hansard's Pari. Deb. vol. cxxvii. No. 6, pp. 1073-4. if) Alhericus Gentilis, lib. i. c. viii. Advocationes Hispanicce, maintains (in 1613) the claim of Great Britain to the Narroio Seas. Wheaton' s Law of Nations, \, 225-9. Vattel, lib. i. c. xxiii. Martens, lib. ii. c. i. s. 43. De V Ocean, lib. iv. c. iv. s. 157. Droits sur r Ocian et sur la Mer des Indes. Giinther, ii. p. 28. " Das Hauptwerk hierbei kommt darauf an, das VOL. I. P 210 INTERNATIONAL LAW. Liherum (s), written by Grotius in 1609, the chief object of which was to demonstrate the injustice of the Portuguese pretensions, founded on their discovery of the Cape of Good Hope, to the exclusive navigation of the African and the Indian seas, — the Mare Clausum, written by our own countryman Selden, to establish the exclusive right of Great Britain to the British seas, — Puffendorf, in the fifth chapter of his fourth book "De Jure Naturale Gentium," — and the essay of Bynkershoek in 1702, De Dominio Maris, have exhausted this theme {t). It is sufficient to say, that the reason of the thing, the preponderance of authority, and the practice of nations, have decided, that the main ocean, inasmuch as it is the necessary highway of all nations, and is from its nature incapable of being continuously possessed, cannot be the property of any one State. " Igitur quicquid dicat Titius, " quicquid Majvius, ex possessione jure naturali et gentium " suspenditur dominium, nisi pacta dominium, citra possessi- " onem, defendant, ut defendit jus cujusque civitatis pro- " prium " {'(i). It is possible, as is indeed apparent from this citation, that a nation may acquire exclusive right of navi- gation siiid Jishing of the main ocean as against another nation, by virtue of the specific provisions of a treaty; for it is competent to a nation to renounce a portion of its rights ; and man die ofFene See, oder das grosse Weltmeer von den einzelnen Theilen desselben, die an oder zwischen die Lander der Nationen gehen, unter- scheide." («) A noble work, which cannot now be read without profit to the reader and admiration for the writer. It was dedicated " Ad Principes Populosque liberos orbis Chris iiani." {t) When the Spanish envoy, Mendoza, complained to the Queen Elizabeth that English ships presumed to trade in the Indian Seas, that queen gave for answer, — " That she saw no reason that could exclude her, or other nations, from navigating to the Indies, since she did not acknowledge any prerogative that Spain might claim to that effect, and much less any right in it to prescribe laws to those who owed it no obe- dience, or to debar them trade. That the English navigated on the ocean, the use of which was like that of the air, common to all men, and which, by the very nature of it, could not fall within the possession or pro- perty of any one." — Camd. in vita Elizabeth, ad ann. 1580, p. m. 328 et seq. (u) Bynkershoek, Opera, t. vi. p. 361. THE OPEN SEA. 211 there have been instances of such renunciation, both in ancient and modern times. CLXXIII. The treaty of peace, justly called "famous" by Demosthenes (x) and Plutarch (y), whereby the Athenians extorted from the Persians a pledge that they would not ap* proach the Greek sea within the space of a daj^'s journey on horseback, and that no ship of war should sail between the Cyanean and Chelidonian isles ; the treaties whereby the Carthaginians bound the Romans not to navigate the Medi^ terranean beyond a certain point, and whereby the Romans imposed restrictions of the like kind upon the Illyrians, and on King Antiochus ; — these are memorable examples of the voluntary resignation of a nation's intrinsic rights. So, in modern times, the House of Austria (z) has re- nounced, in favour both of the English and Dutch, her right to send ships from the Belgic provinces to the East Indies : and the Dutch attempted to interdict Spanish ships, sailing to the Philippine Islands, from doubling the Cape of Good Hope. CLXXIV. Instances of this kind, however, are far from proving that the main ocean is capable of becoming property* " Possunt enim ut singuli," (Grotius truly remarks) " ita " et popull pactis, non tantum de jure quod proprie sibi com- " petit ; sed et de eo quod cum omnibus hominibus commune " habent, in gratiam ejus cujus id interest decedere " {a). He (x) KaWiav rov 'iTTTroviKOVf rbv tgvttjv Trjv vnb iravrwv OpvWov^svrjv tipr]vr]v TrptafStvffavraf ittttov fxev dpofiov 7'i^EpaQ tts^tj fir) Kara^aiviiv etti t^v QaXaTTav (iacriXka kvTOQ Sk XtXidovkiov Kai KvaviuiVj ttAoi'^ fiaicpi^ fit) TrXelv. — Orat. de falsa Legal. ^ Demosth. (y) TovTO TO ipyov ovrwg kraTrdvbiGt ti)v yvu)fiT]v tov (iaaiKsojgf uxTTt avvOkaOai t)]V TrtpifSorfTov elprjvrjv £KsivT]v, 'ittttov fiev Spofiov del Trjg 'EWtjviKrjg dnsxdv tfaXd(7ff?/g, tvSov S'e Kvavkwv Kai Xe\idov'tu)v fiaicp<^ vtjX jcai XaXK(fi(36\(i) [xri TrXtiv. — Plutarch, in vita Cimon. Grotius, 1. ii. c. iii. s. 15. Vattel, 1. i. c. xxiii. s. 284. (2) Traite de Vienne, 16 mars 1731, Art. 5i («) Grotius, 1. ii. c. iii. s. 15. Vattel, 1. i. c. xxiii. s. 284. Barheyrac remarks in a note on this passage : " Cela est vrai ; mais rien p 2 212 INTERNATIONAL LAW. illustrates this position, according to his wont, by a reference to the Koman Law. A person sold his maritime farm with the condition that the purchaser should not fish for thunnies to the prejudice of another maritime farm, which the seller retained in his possession. Upon this case Ulpian gave his opinion that, although the sea belonged to the class of things which could not be subjected to a servitus (Z>) of this kind, yet the bona fides of the contract required that the restriction should be binding against the purchaser, and those who suc- ceeded to his rights and estates. The right of navigation, fishing, and the like, upon the open sea, being Jwra mercB facultatis, rights which do not require a continuous exercise to maintain their validity, but which may or may not be exercised according to the free will and pleasure of those entitled to them, can neither be lost by non-user or prescribed against, nor acquired to the exclusion of others by having been immemorially exercised by one nation only. No presumption can arise that those who have not hitherto exercised such rights, have abandoned the inten- tion of ever doing so (c). n'empeclie aussi que, quand on fait des trait^s comme ceux dont il s'agit, on n'ait dessein de s'assurer par la la propi-i^t^ de quelque mer, et d'obliger les autres a la reconnoitre. M. Vitrarius, dans son Abr^ge de notre auteur (1. ii. c. iii. s. 18), pretend que, si celui qui fait un tel traits 6toit deja maitre de la mer dont il veut que I'autre s'eloigne, il ne seroit pas necessaire de stipuler une telle clause. Mais il ne s'est pas souvenu de ce qu'il etablit lui-meme, apres notre auteur (1. ii. c. xv.), qu'il y a des traites qui roulent sur des choses deja dues, meme par le Droit naturel." (h) Big. 1. viii. t, iv. leg. 13 : " Venditor fundi Geroniam fundo Ba- triano, quern retinebat, legem dederat, ne contra eum piscatio thynnaria exerceretur. Quamvis mari, quod natura omnibus patet, servitus imponi privata lege non potest, quia tamen bona fides contractus legem servari venditionis exposcit, personse possidentium aut in jus eorum succedentium per stipulationis vel venditionis legem obligantur." (c) Vattely 1. i. c. viii. s. 95 : " Si les droits touchant le commerce sont sujets a la prescription." Lib. i. c. xxiii. s. 285-6. Puffendorf, Jur. Nat. et Gent. 1. iv. c, v. s. 5. Heffters, s. 74 : " Sogar ein unvordeuklicher Besitzstand, wenn er nicht ein freiwilliges Zugestandniss anderer Nationen devtUch erkennen lasst, NOOTKA SOUND. 213 CLXXV. But though no presumption can arise, it is the opinion of Yattel — who holds most explicitly, in more than one part of his work, the doctrine which has just been laid do^Yn — that such non-user on the part of other nations may possibly, under certain circumstances, become clothed with the character of a tacit consent and convention, which may found a title in one nation to exercise such rights to the exclusion of others. " Qu'une nation en possession de la " navigation et de la peche en certains parages, y pretende " un droit exclusif, et defende a d'autres d'y prendre part ; si " celles-ci obeissent a cette defense, avec des marques suffi- " santes d'acquiescement, elles renoncent tacitement a leur " droit en faveur de celle-la, et lui en etablissent un, qu'elle " pent legitimement soutenir contre elles dans la suite, sur- " tout lorsqu'il est confirme par un long usage " (d). CLXXVI. Mr. Wheaton does not appear to agree with the qualification of the doctrine contained in the passage just cited ; but the reasoning of Vattel does not seem to be unsound : the case for its application is not often likely to occur. CLXXVII. In 1790, May 25(e), Lord Grenville vindi- cated the British dominium over Nootka Sound against the Spaniards. In a message laid before both Houses of Par- liament it was said that " His Majesty has received inform- " ation, that two vessels belonging to his Majesty's subjects, " and navigated under the British flag ; and two others, of Termag keine ausschliessliclien Befugnisse bei solchen res merce facultatis zu ertheilen." Wheaton s Elements, vol. i. p. 228 : " The authority of Vattel would be full and explicit to the same purpose, were it not weakened by the con- cession, 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 favour of one nation against another." (d) Vattel, Le Droit des Gens, t. i. 1. i. c. xxiii. s. 286. (e) Annual Reyister, vol. xxxii., 1790, 214 INTERNATIONAL LAW. " which the description is not hitherto sufficiently ascertained, " have been captured at Nootka Sound, on the north-western *' coast of America, by an officer commanding two Spanish " ships of war ; that the cargoes of the British vessels have *' been seized, and that their officers and crews have been ^' sent as prisoners to a Spanish port. " The capture of one of these vessels had before been " notified by the Ambassador of his Catholic Majesty, by ^' order of his Court, who, at the same time, desired that " measures might be taken for preventing his Majesty's ** subjects from frequenting those coasts which were alleged *' to have been previously occupied and frequented by the ** subjects of Spain. Complaints were also made of the *' fisheries carried on by his Majesty's subjects in the seas ** adjoining to the Spanish continent, as being contrary to ^' the rights of the Crown of Spain. In consequence of this '* communication, a demand was immediately made, by his '^ Majesty's order, for adequate satisfaction, and for the ^' restitution of the vessel previous to any other discussion. ^* By the answer from the Court of Spain^ it appears that *' this vessel and her crew had been set at liberty by the " Viceroy of Mexico ; but this is represented to have been ^' done by him on the supposition that nothing but the " ignorance of the rights of Spain encouraged the individuals ^* of other nations to come to those coasts for the purpose of ** making establishments, or carrying on trade ; and in con^ ^^ formity to his previous instructions, requiring hira to show ^' all possible regard to the British nation. " No satisfaction is made or offered, and a direct claim is ^' asserted by the Court of Spain to the exclusive rights of " sovereignty, navigation, and commerce in the territories, ^^ coasts, and seas in that part of the world. " His Majesty has now directed his minister at Madrid to ** make a fresh representation on this subject, and to claim " such full and adequate satisfaction as the nature of the case ^' evidently requires. And, under these circumstances, his *' Majesty, having also received information that considerable I THE BALTIC. 215 '* armaments are carrying on in the ports of Spain, has " judged it indispensably necessary to give orders for making " such preparations as may put it in his Majesty's power to " act with vigour and effect in support of the honour of his " Crown and the interests of his people. And his Majesty " recommends it to his faithful Commons, on whose zeal and " public spirit he has the most perfect reliance, to enable " him to take such measures, and to make such augmentation " of his forces, as may be eventually necessary for this " purpose. " It is his Majesty's earnest wish, that the justice of his *' Majesty's demands may ensure, from the wisdom and " equity of his Catholic Majesty, the satisfaction which is " so unquestionably due ; and that this affair may be ter- " minated in such a manner as to prevent any grounds of " misunderstanding in future, and to continue and confirm " that harmony and friendship which has so happily subsisted " between the two Courts, and which his Majesty will " always endeavour to maintain and improve, by all such " means as are consistent with the dignity of his Majesty's " Crown, and the essential interests of his subjects." The dispute was terminated by the Nootka Sound Convention, the importance of which was much insisted upon in the recent discussions between Great Britain and the North American United States relative to the question of the Oregon boundary (/). CLXXVIII. Upon the 17th of April, 1824 (^), a con- vention was entered into at St. Petersburg, between the United States of America and Russia, respecting the navi- gation of the Pacific Ocean, and the forming of settlements upon the north-western shores of America. By this con- vention it was agreed generally, that the subjects of both countries might freely navigate the Pacific, or South Sea, occupy shores as yet unoccupied, and enter into commerce (/) Vide pod. (ff) Rcatified llth January, 1825. 216 INTERNATIONAL LAW. with the native inhabitants : and it was stipulated that for the future it should be unlawful for the subjects of the United States to make any settlement on the north-west coast of America, or of the adjacent isles, " au nord du cinquante- " quatrieme degre et quarante minutes de latitude septentri- " onale ; " and for any subjects of Russia to make any settle- ment *' au sud de la m^me parall^le" (h). This convention therefore restricts the natural rights of these two countries ; but it cannot extend beyond them, or have any effect, 7?er se, upon other countries. CLXXIX. Denmark {i) has not always confined her pretensions of sovereignty to the narrow sea of the Baltic, but has also extended them to the open north sea (A). Queen Elizabeth complained in a letter which she wrote to the King of Denmark, in 1600, of the manner in which British vessels were prevented from fishing in this sea, maintaining their right to do so as resting upon an undoubted principle of law (Z). The supremacy claimed by Denmark over the Sound and the two Belts, through which the Baltic Sea finds its way into the ocean, was founded upon the valid international title of im- memorial prescription confirmed by many treaties with various Maritime States. The dues, however, which Denmark levied upon ships passing these straits had long been the object of much complaint and the cause of much irritation to foreign States, and had become in fact very injurious to trade, owing to the detention of vessels which the collection of these dues occasioned. In 1857 the whole subject was happily adjusted by Treaty with the great European Powers. {h) Martens et De Cussy, Recueil de Trait4s, t. iii. p. 659. (t) Schlegelj Staatsreeht Banemarks. (k) Vide post, 1^. 226. (l) " Regiam proinde protectionem nostram implorant, atque humiliter supplicant ne ab honestissima liac vivendi ratione (cui jam inde a primis annis assueverunt) alti nempe maris piscatione, Jure Gentium omniumque Nationum moribus libera, excludi illos facile permittamus." — JRymer, Feed. t. xvi. p. 395, A Regina ad Regem Dani» ; super Piscatione in Alto Mari permittenda. NARROW SEAS. 217 The right of Denmark to levy these dues was not distinctly recognized, but compensation was made to her by payment of a capital sum (m) on the ground of indemnity for main- taining lights and buoys, which Denmark stipulated to maintain and to levy no further duties. The United States declined to take any part in this European convention for what President Pierce considered " the most cogent " reasons." He stated — " One is, that Denmark does not " offer to submit to the convention the question of her " right to levy the Sound dues. A second is, that if the '' convention were allowed to take cognizance of that par- '* ticular question, still it would not be competent to deal " with the great international principle involved, which " affects the right in other cases of navigation and com- " mercial freedom, as well as that of access to the Baltic. " Above all, by the express terms of the proposition, it is " contemplated that the consideration of the Sound dues " shall be commingled with and made subordinate to a *' matter wholly extraneous — the balance of power among " the Governments of Europe. While, however, rejecting " this proposition, and insisting on the right of free transit " into and from the Baltic, I have expressed to Denmark " a willingness on the part of the United States to share " liberally with other Powers in compensating her for any " advantages which commerce shall hereafter derive from " expenditures made by her for the improvement and " safety of the navigation of the Sound or Belts " (w). Accordingly a separate Treaty was made between the United States and Denmark, April 11, 1857, by which Denmark declared the Baltic open to American vessels, and stipulated to maintain buoys and lights and furnish pilots, if desired, for which she received a certain sum of money. (m) The sum paid by Great Britain was a million and a quarter. (n) See Ann. Meg. for 1855, p. 291. Hertslet's Treaties, x. pp. 736, 742, 743. Dana's Wheaton, p. 185, n. 112. Laurence's Wheaton, p. 333, n. 110. 218 INTERNATIONAL LAW. CHAPTER VI. NARROW SEAS, AS DISTINGUISHED FROM THE OCEAN. CLXXX. Claims have been preferred by different nations to the exclusive dominion over the seas surrounding their country : if not to every part of such seas, to an extent far beyond the limits assigned in the foregoing paragraphs. This kind of claim is distinguished from the claim of jurisdiction over the ocean by being confined to what are called the narrow or adjacent seas, they not being (it is con- tended), like the ocean, the great highway of the nation. It is further distinguished from the case of the Straits which just has been discussed, by the fact of the claimants not possessing the opposite shore. CLXXXI. This claim is rested upon immemorial usage, upon national records, upon concessions of other States, upon the language of treaties. Considering the nature of the claim, and of the subject over which it is to be exercised, it cannot be built securely upon a less foundation than the express provisions of positive treaty, and can be valid only against those nations who have signed such Treaty. " There " may, by legal possibility" (as Lord Stowell says {a) ), exist " a peculiar property excluding the universal or common " use ; " but the strongest presumption of law is adverse to any such pretension. The Portuguese affected at one time to prevent any foreign vessel from navigating the African seas near the Bissagos Islands: and it is known that Great Britain once laid claim to exclusive right of property and («) TJie Twee Gehrceders, 3 Itobinson's Ad. Rep. 339. Das Britanniache Meer, Gunther^ vol. ii. s. 20, p. 39. NAEROW SEAS. 219 jurisdiction, not merely over the British Channel extending from the island of Quessant to the Pas de Calais, but over the four seas which surround her coasts (Z>). Nor was this only while the Duchy of Normandy was held with the British dominions; or even while Calais, or the Pas de Calais, belonged to Great Britain, a circumstance of considerable weight with respect to their claim. Albericus Gentilis, in one of his Advocationes HispaniccB (c), published in 1613, supports these pretensions. Queen Elizabeth seized upon some Hanseatic vessels lying at anchor off Lisbon for having passed through the sea north of Scotland without her per- mission. CLXXXII. In support of this doctrine, Selden {d) wrote his celebrated Mare Clausum, in which he sought to establish two propositions: — 1. That the sea might be property; 2. That the seas which washed the shores of Great Britain and Ireland were subject to her sovereignty even as far as the northern pole. The opinions of jurists, as well as the practice of nations, have decided, that this work did not refute the contrary positions laid down by Grotius in his Mare Liherum, to which it purported to be an answer. Selden dedicated his work to Charles I. ; and so fully did that monarch imbibe its prin- ciples, that in 1619 he instructed Carleton, the British am- bassador, to complain to the States General of the Dutch provinces of the audacity of Grotius in publishing his Mare Liherum, and to demand that he should be punished. Not less agreeable was this doctrine to Cromwell and the re- (h) WheatorCs Hist, part i. s. 18, p. 152, &c., contains a clear and valu- able account. (c) Lib. i. cap. viii. (c?) Joh. Seldeni,Mare Clamum,sivedeDoininio Maris, lib. ii.: "Primo, mare ex jure naturae sive gentium hominum non esse commune, sed do- minii privati sive proprietatis capax pariter ac tellurem esse demonstratur ; Sectmdo, Serenissimum MagnsB Britanniae Regeni maris circumfiui ut in- dividuae atque perpetuse Imperii Britannici appendicis dominum esse asseritur." 220 INTERNATIONAL LAW. publican parliament. They made war upon the Dutch to compel them to acknowledge the British empire over these seas (e). CLXXXIII. The rights occasionally claimed by Great Britain in these seas were chiefly those of exclusive fishing, and of exacting the homage of salute from all common vessels. But it is very remarkable that Sir Leoline Jenkins, who was in fact the expounder of all international law to the Govern- ment of Charles II. and James II., appears never to have insisted upon these extravagant demands, but to have confined the rights of his country within the just and moderate limits which have been already stated. CLXXXIV. It is true that the Dutch appear to have occasionally admitted the exclusive right of fishery, by making payment and taking out licences to fish — payment and licences which were afterwards suspended by Treaties between England and the Burgundian princes. It is true that, by the fourth Article of the Treaty of Westminster, concluded in 1674, the Dutch conceded the homage of the flag iQ the amplest manner to the English. " It was carried " (says Sir "W. Temple, the negotiator of the Treaty) " to all " the height his Majesty could wish ; and thereby a claim of " the crown, the acknowledgment of its dominion in the " Narrow Seas, allowed by treaty from the most powerful " of our neighbours at sea, which had never yet been yielded " to by the weakest of them that I remember in the whole ** course of our pretence ; and had served hitherto but for an " occasion of quarrel, whenever we or they had a mind to it, " upon either reasons or conjectures " (/). (e) Comte de Garden, TraiU de Diplom. t. i. p. 402. (/) •' Praedicti Ordines Generales Unitarum Provinciarum debite ex parte sua agnoscentes jus supramemorati Serenissimi Domini MagnsB Britanniae Regis, ut vexillo suo in maribus infra nominandis honos habeatur, declarabunt et declarant, concordabunt et concordant, quod qusecunque naves aut navigia ad prsefatas Unitas Provincias spectantia, sive naves bellicse, sive alise, ea^que vel singulae vel in classibus conjunctSB, in uUia maribus a Promontorio Finis Terrce dicto usque ad medium NARROW SEAS. 221 CLXXXV. Upon this concession, so humiliating to the countrymen of Euyter and Van Tromp, so little to be expected by those who in 1667 had demolished Sheerness and set fire to Chatham, Bynkershoek {(j) ingeniously re- marks : " Usu scilicet maris Qtfructu contenti Ordines,alIorum ** ambitioni, sibi non damnosa3, baud difficulter cedunt." And in his Treatise De Dominio Maris, published in 1702, and before the work from which the extract just cited is taken, he observes, on this Article of the Treaty : " Sed " quod ita accipiendum est, ut omnes pactiones, quas, ut " bello abstineatur, paciscimur, nempe Anglis id competere, " quia in id convenit, per se enim nihil in eo mari habent, " prascipuum. Porro ut ita hoc accepi velim ut ne credamus " Belgas eo ipso Anglis concessisse illius maris dominium, " nam aliud est se subditum profiteri, aliud majestatem " alicujus populi comiter conservare (ut haec explicat Pro- " cuius in Dig. xlix. t. 15, 7, De Captlv. et Postlim.); fit '' hoc, ut intelligamus alterum populum superiorem esse, non " ut intelligamus, alterum non esse liberum" (/i). CLXXXVI. France, however, as Mr. Wheaton observes, never formally acknowledged the British pretension. Louis XV. published an ordinance on the 15th of April, 1689, not only forbidding his naval officers from saluting the vessels of punctum terrae van Stnten dictse in Norwegia, quibuslibet navibus aut navigiis ad Serenissimum Dominum MagnsB Britanniae Regem spectan- tibus, se obviam dederint, sive illse naves singulse sint, vel in numero majori, si majestatis suae Britannicse aplustrum sive vexillum Jack appel- latum gerant, prsedictse Unitarum Provinciarum naves aut navigia vexillum suum e mali vertice detrahent et supremum velum demittent, eodem modo parique honoris testimonio, quo ullo unquam tempore aut in illo loco antehac usitatum fuit, versus uUas Majestatis suae Britannica3 aut antecessorum suorum naves ab ullis Ordinum Generalium suorumve antecessorum n^\i\iVi&y —Traciatus Pads inter Carolum 11. Regem Magnce Britannice et Ordines Ge^ieraks fcederati Belgii, 1674, Art. 4. Bynkershoek, Qucest. J. P. 1. ii. c. xxi. Temple's Memoirs, ii. p. 250. Hume, vol. vi. c. lii. Wheaton s Hist. pp. 155-6. {g) Quasi. J. P. lib. i. cap. xxi. {h) De Dominio Maris, cap. v. 222 INTERNATIONAL LAW. Other princes bearing a flag of equal rank, but, on the con- trary, enjoining them to require the salute from foreign vessels in such a case, and to compel them by force, in whatever seas and on whatever coasts they might be found. This ordinance was plainly levelled at England. Accordingly, in the manifesto published by William III. on the 27 th of May, 1689, he alleged this insult to the British flag as one of the motives for declaring war against France (z). CLXXXVII. In another part of his very able Treatise, Bynkershoek clearly and irrefragably lays down the princi- ples of law applicable to the occupation of the sea : — " Totum, " qua patet, mare non minus jure naturali cedebat occupanti, *' quam terra quasvis, aut terras mare proximum. Sed diffi- " cilior occupatio, diflicillima possessio ; utraque tamen ^' necessaria ad asserendum dominium, jure videlicet gentium, " ad quod ea disputatio unice exigenda est. Nam ex iis, '* qua3 Cap. 1. enarravimus, certum est consequi, dominium ** maris prima ab origine non fuisse quaesitum nisi occupa- " tione, hoc est, navigatione eo animo instituta, ut qui libera '' per vacuum ponit vestigia princeps, ejus, quod navigat, " maris esse velit dominus ; certum est et porro consequi, " non aliter id dominium retinere, quam possessione perpetua, *' hoc est, navigatione, quae perpetuo exercetur ad custodiam *' maris, si exterum est, habendam : ea namque remissa, " remittitur dominium, et redit mare in causam pristinam, *' atque ita rursus occupanti primum cedit" (k). CLXXXVIII. Thus the opinion of Sir Leoline Jenkins and Bynkershoek are in harmony upon this question ; and (i) Valm, Commentaire sur VOrdonncmce de la Marine, liv. v. tit. 1, p. 689 : De la Liberie de la Peche : '^ Que le droit de pavilion, qui ap- partient a la coujonne d'Angleterre, a et^ dispute par son ordre (de Louis XIV) ; ce qui tende a la violation de notre souverainete sur la mer, laquelle a 6t6 maintenue de tout temps par nos pr^decesseurs, et que nous sommes aussi r^solus de maintenir pour I'honneur de notre couronne et de la nation angloise." Wheaton^s History, pp. 155-6. (k) Bynkershoek, De Dominio Marisj cap. iii. pp. 365-6. STRAITS. 223 in spite of the proclamation of William III. it does not appear that Great Britain has ever again insisted upon any other limits to her or to other nations. This right;, however, was alluded to by Lord Stowell in his judgment in the Maria (I), a Swedish vessel sailing under convoy of an armed ship condemned for resisting the bellige- rents' visitation and search: " It might likewise" (he observes) " be improper for me to pass entirely without notice, as " another preliminary observation (though without meaning " to lay any particular stress upon it), that the transaction in " question took place in the British Channel close upon the " British coast, a station over which the Crown of England " has, from pretty remote antiquity, always asserted some- " thing of that special jurisdiction which the sovereigns of " other countries have claimed and exercised over certain " parts of the seas adjoining to their coasts." (I) 1 Bob. Ad. Bep. p. 352. 224 INTERNATIONAL LAW. CHAPTER VII. NARROW SEAS — STRAITS. CLXXXIX. With respect to Straits {detroits de mer, Meerenge,freta),^\iQtQ there is, asGrotius says in the passage already cited, supra et infra fretum, both the shores of which belong to one nation, these may be subject to the proprietary rights of that nation. Or if the shores belong to several nations, then, according to PufFendorf («), the dominion is («) Lib. iv. c. V. 8. 7 : " Aquandi ergo et lavandi usus nee magni est, nee nisi littorum aceolis patet, et revera inexhaustus est. Inservit quoque aqua marina sali excoquendo ; sed quo usu accolae littorum dimtaxat gaudent. Inexhaustum quoque et innoxise utilitatis est mare quantum ad navigationem. (Vid. 1. xxiii. s. 1. D. de Servit. prced. rust.) Verum sunt praeter lios alii quoque usus maris, qui partim non penitus sunt in- exhausti ; partim populo maris accolae occasionem damni prsebere possunt, ut ex re ipsius non sit, omnes maris partes cuivis promiscue patere. Prioris generis est piscatio, et collectio rerum in mari naseentium. Pis- catio etsi in mari fere sit uberior, quam in fluminibus aut lacubus : patet tarn en ex parte earn exhauriri posse, et aceolis maris maligniorem fieri, si omnes promiscue gentes propter littora alicujus regionis velint piscari j praesertim cum frequenter certum piscis, aut rei pretiosae genus, puta, margaritse, corallia, succinum, in uno tantum maris loco, eoque non valde spatioso inveniantur. Hie nihil obstat, quo minus felieitatem littoris aut vicini maris ipsorum accolse potius, quam remotiores sibi propriam queant asserere ; quibus caeteri non magis jure irasci aut invidere possunt, quam quod non omnisfert omnia tellies; India mittit ehur^ molles sua thura Sah) ; the straits of Messina {il Faro di Messina, fretum Siculum), once belonging to the kingdom of the Two Sicilies: the straits leading to the Black Sea, the Dardanelles and Hellespont ; the Thracian Bosporus, belonging to the Turkish empire (c). To narrow seas which flow between separate portions of the same kingdom, like the Danish and Turkish straits, or to other seas common to all nations, like the straits of Messina, and perhaps the St. George's Channel, the doctrine of innocent dicere possit.) " Sinus quoque maris regulariter pertinere ad eum po- pulum, cujus terns iste ambitur; neque minus freta. Quod si autem diversi populi fretum, aut sinum accolant, eorum imperia pro latitudine terrarum ad medium usque ejusdem pertinere intelligentur ; nisi vel per conventionem indivisim id imperium contra exteros exercere, ipsos autem promiscue inter se isto sequore uti placuerit ; vel alicui soli in totum istum sinum aut fretum sit dominium qusesitum ex pacto, reliquorum concessione tacita, jure victorise, aut quia is prior ad id mare sedes fixerat, idque statim totum occupaverat, et contra adversi littoris accolam actus imperii exercuerat. Quo casu tamen nihilominus reliqui sinus aut freti accolse suorum quisque portuum, tractusque littoralis domini esse intelli- gentur."— P?). Before, however, we enter upon the consideration of the manner in which Acquisitions are made by a State, it seems expedient to offer some observations upon the nature of — 1. Possession (/?o55es52o) ; and of 2. Property (proprietas), or Dominion {dominium). The Roman Law(c) is the rej)ository from which all («) ^' Les territoires de V Europe ont 6te appropri^s a chaque nation a la suite de revolutions successires, dans lesquelles la force, puis la marche lente et logique des evenements, ont eu plus d'influence que le droit. L'invasion des peuples du nord dans le monde romain : plus tard, la re- union des differentes petites puissances de la feodalite en 6tat8 plus forts et moins nombreux, sont, dans ce travail, les deux faits principaux. Pendant ce long espace de temps, et depuis, des transformations diverses, des trait^s nombreux, se sont succedes^ et tout finit par constituer le terri- toire des etats actuels. " II serait inutile de discuter sur la Idgitimit^ des premieres occupations qui se rencontrent a I'origine de ces ^tats." — Des Moyens (Tacquerir le Domaine international, par Eugene Ortolan, s. Ixi. p. 42. (5) Dig. 1. i. t. iii. 41. (c) Warnkonig, Instit. Juris Roin. Privati, 1. ii. c. i. t. iii., c. ii. t. ii. Puchta, Pandekten, Kap. 2. Mackeldey, Besond. Theil. Kap. 1, t. i. Savigny, Besitzrecht. Muhlenbriick, Doctrina Pandect. 1. ii. c. 2. RIGHT OF ACQUISITION. 265 jurists, whether writing on private or public law, have borrowed their elementary learning upon this point ; and it is with truth that a very distinguished modern jurist observes, " Possessionis notio atque indoles, ejus acquisitio vel omissio, " accuratius a jurisconsultis Romanis definitEe sunt, ut ea jam " non facti solum sed juris quoque esse dicatur"(c?). CCXXIII. The generic term possession branches forth into various species (e). That person is properly said to possess a thing who both actually and corporally retains it, and who desires and intends at the same time to make it his own. That person who, having no such desire or intention, by mere corporal act retains a thing, is, only in a gross and in accurate sense, said to possess it. (d) Warnkdnig, Instit. Juris Romani Privati, s. 295. In The Fama, 5 Robinsons Adm. Rep. pp. 114-16, Lord Stowell applies the rules relating to Possession, &c. in the Institutes and Digests to decide a question of International Law. (e) Dig. xli. 2 : '^ De acquirenda vel amittenda possessione." Ih. xliii. 17 : " Uti possidetis." Inst. ii. t. vi. : " De usucapione." " Possessio appellata est, ut et Laheo ait, a sedibus, quasi positio, quia naturaliter tenetur ab eo, qui ei insistit; quam Grseci Karoxfiv dicunt."— De^. xH. 2, 1. " Qui jure familiaritatis amici fundum ingreditur, non videtur possi- dere, quia non eo animo ingressus est, ut possideat, licet corpore infimdo sit."— 76. 41. " Quod meo nomine possideo, possum et alieno nomine possidere ; nee enim muto mihi causam possessionis, sed desino possidere, et alium pos- sessorem ministerio meo facio. Nee idem est possidere, et alieno nomine possidere ; nam is possidet, cujus nomine possidetur. Procurator alienee possessionis praestat ministerium." — Ih. 18. " Justa enim an injusta adversus ceteros possessio sit, in hoc interdicto nihil refert ; qualiscunque enim possessor hoc ipso, quod possessor est, plus jm-is habet, quam ille, qui non possidet." — lb. xliii. 17, 2. " Creditores missos in possessionem rei servandse causa interdicto uti possidetis uti non posse ; et merito, quia non possident. Idemque et in ceteris omnibus, qui custodise causa missi sunt in possessionem, dicendum est."— 76. 17, 3, 8. " Dejicitur is, qui possidet, sive civiliter, sive naturaliter possideat; nam et naturalis possessio ad hoe interdictum pertinet." — Ih. xliii. 16, 1. s. 9. 266 INTERNATIONAL LAW. That person who retains a thing in the conviction that he is the rightful possessor of it, though he be mistaken, and be not the rightful possessor, may acquire, by the operation of time, a legal title to it, and be protected by law in the pos- session of it {ad usucapionem possldet). There are, therefore, three species o£ possession : 1. Natural possession, or the bare seizing and detaining a thing {naturalis possessio, sive nuda rei detentio). 2. Legal possession, by act and intention {animo et facto, de droit et de fait, possessio proprie sic dicta) (/). 3. Possession by operation of time (civilis possessio). CCXXIV. Dominion {dominium) is the fullest right which can be exercised over a thing : the right of property, properly so called. According to the ancient Roman Law, dominium could only be acquired by a Roman citizen, and through the medium of certain strict formalities (" in mancipio habere, " ex jure Quiritium dominus"). But the Praetor, following the dictates of natural equity (jus gentium), introduced a doc- trine, which, without these formalities, secured to the stranger {peregrinus) as well as the citizen, a dominion over the thing {in bonis, bonitarium) which he had lawfully, and "jure gen- " tium " acquired. Justinian abolished altogether this distinction {g) between (/) " Si me in vacuam possessionem fundi Coraeliani miseris, ego pu- tarem me in fundum Sempronianum missum, et in Cotnelianum iero, non acquirem possessionem, nisi forte in nomine tantum erraverimus, in corpore consenserimus. Quoniam autem in corpore non consenserimus an a te tamen recedat possessio ? quia animo deponere et mutare nos possessionem posse et Celsus et Marcellus scribunt, dubitari potest ; et si animo acquiri possessio potest, numquid etiam acquisita est ? sed non puto errantem acquirere, ergo nee amittet possessionem qui quodammodo sub conditione recessit de possessione." — Dig. xli. 2, 34. " Differentia inter dominium et possessionem haec est, quod dominium nihilo minus ejus manet, qui dominus esse non vult, possessio autem recedit ut quisque constituit nolle possidere. Si quis igitur ea mente possessionem tradidit, ut postea ei restituatur, desinit possidere." —lb. 17, 1. {g) Cod. vii. 25 : De nudo jure Quiritium tollendo. Warnkonu/, Instit. J. 22. 1. ii. ch. i. t. 3. RIGHT OF ACQUISITION. 267 le ancient and the Praetorian Equity, and established univer- jally the dominium jure gentium. The law, however, still fecognized certain modes of acquiring property : these were either according to ihQJus gentium or the Jw5 civile. The principal modes under the Jm5 gentium were : 1. Occupation {occupatio). 2. Natural increase (accessio). 3. Transfer {traditio) : either {a. inter vivos, ^. or by testament or succession. The mode of acquisition under thejws civile was, 1. By the effect of a law (lege). 2. By a judicial sentence {adjudicatione), 3. By the operation of time (yetustatis auctoritate, usu- capione, prcBscriptione). Dominion might suffer an interruption by the invasion of another person (usurpatio). 1. By an overt act on the part of an individual {natu- ralis usurpatio) ; 2. By an adverse decision of a legal tribunal {civilis usur- patio). As Dominion is acquired by the combination of the two elements oifact and intention, so, by the dissolution of these elements, or by the contrary fact and intention, it may be lost(/i) or extinguished (z). The application of these principles of Roman jurisprudence to the system of International Law appears to have been readily made by Grotius and other jurists ; and without some ac- quaintance both with the language and doctrine of the Roman Law upon the subject of Possession and Dominion, it is impossible correctly to understand and justly to appreciate the writings of commentators upon International Law. (K) '^ Quemadmodum nulla possessio acquiri nisi animo et corpore potest, ita nulla omittitur nisi in qua utrumque in contrarium actum est." —Dig. xli. 2, 8. (») Vide post. 268 INTERNATIONAL LAW. It will be well to recite, as a preface to the discussion upon the Rights of Acquisition by a State, the doctrine and lan- guage of Bynkershoek : " Postquam Lex certos dorainii " acquirendi modos prajscripsit, hos sequemur " (A). From Grotius (Z) we leam that these modes of Acquisition were : 1. By Occupation {occupatione derelicti). 2. By Treaty and Convention (pactionibus). 3. By Conquest (victorice jure). And if Acquisition by Accession and by Prescription be con- sidered as corollaries to Occupation, and all cases of Transfer be held to fall under the category of Treaty and Convention, the enumeration may be considered as sufficiently com- plete {m), CCXXV. But Acquisition itself is divided into two classes ; Original (acquisitio originarid) and Derivative {derivatwa, facto hominis, vel facto legis). Under the former head may be classed Acquisition by Occupation, Accession, and Prescription : under the latter, all Acquisitions by Treaty or Convention, including Transfer (traditio), Gift, Sale, Exchange, Inheritance by Testament or Succession, and Acquisitions by Conquest (n), (k) Opera, iii. 254 : De Dominio Maris. (/) Lib. ii. c. ix. s. 11, p. 338. (m) " Dominiumque rerum ex naturali possessione coepisse, Nerva filius ait, ej usque rei vestigium remanere in his, quae terra, mari, coeloque capiuntur ; nam hsec protinus eorum fieri, qui primi possessionem eorum apprehenderint. Item bello capta, et insula in mari enata, et genimse, lapilli, margaritse in littoribus inventae ejus fiunt, qui primus eorum possessionem nactus est." — Dig. xli. 2, 1, i. " Sed quemadmodum, cum Theatrum commune sit, recte tamen dici potest ejus esse eum locum quem quisque occuparit: sic in urbe mundove communi non adversatur jus quo minus suum quidque cujusque sit." — Cicero De Fin. 1. iii. c. 20. *' Sunt autem privata nulla natura : sed aut veteri occupatione, ut qui quondam in vacua venerunt : aut victoria, ut qui bello potiti sunt -, aut lege, pactione, conditione, sorte, ex quo fit ut ager Arpinas Arpinatum dicatur : Tusculanus Tusculanorum : similisque est privatorum posses- sionum descriptio, ex quo quia suum cujusque fit, eorum, quae natura fuerimt communia, quod cuique obtigit, id quisque teneat : eo si qui sibi plus appetet, violabit jus humanae societatis." — De Off. 1. i. c. 8. (n) The effect of Christianity upon the doctrines of possession and RIGHT OF ACQUISITION. 269 CCXXVI. With respect to Original Acquisition, we have first to consider under this head the title which a nation acquires by occupation. Discovery, Use, and Settlement are all ingredients of that Occupation which constitutes a valid title to national acquisitions. ■I CCXXVII. Discovery, according to the acknowledged practice of nations, whether originally founded upon Comity or Strict Right, furnishes an inchoate title to possession in the discoverer. But the discoverer must either, in the first instance, be fortified by the public authority and by a com- mission from the State of which he is a member, or his discovery must be subsequently (o) adopted by that State ; otherwise it does not fall, with respect to the protection of the individual, under the cognizance of International Law, except in a limited degree ; that is to say, the individual has a natural title to be undisturbed in the possession of the territory which he occupies, as against all third Powers. It will be a question belonging to the Municipal Law of his own country, whether such possessions do not belong to her, and whether he must not hold them under her authority and by her permission. Such would be the case with the possessions of an English subject. But, as far as International Law is property, or dominion, was as beneficial as it was upon all other doctrines wliich are conservative of social order and productive of human happiness. Ascribing to God " the world and all that is therein," it nevertheless consecrated the rights of Property ; and though for a season the first professors of Christianity had their goods in common, and no private property, yet this was an accidental arrangement, growing out of the particular exigencies of a particular epoch, and ceasing when they ceased. The arrangement, moreover, while it lasted, was voluntary ; and even during its continuance a respect for the strict rights of property was carefully inculcated and preserved. — See Troplong, de VInJiumce du Christianisme sur le Droit civil des Rumains, p. 121. (o) " Ratihahitio constituit tuum negotium, quod ab initio tuum non erat, sed tui contemplatione gestum." — Dig. iii. 5, vi. 9. De Negotiis gestis. " Sed etsi non vero procuratori solvam, ratum autem habet dominus, quod solutum est, liberatio contingit : ratienimhahitiomandato comparatur.''^ —Dig. xlvi. 3, xii. 4, de Solid. : of. Dig. xliii. 16, i. 14, de vi et de vi arm. 270 INTERNATIONAL LAW. concerned, Vattel, following the rules of natural equity incorporated into Roman Jurisprudence, says justly : " Tons " les hommes ont un droit egal aux choses qui ne sont " point encore tombees dans la propriete de quelqu'un ; et " ces choses-la appartiennent au premier occupant. Lors *' done qu'une nation trouve un pays inhabit^ et sans maitre, " elle pent legitimement s'en emparer; et apres qu'elle a *' suffisamment marque sa volonte acet egard,un autre nepeut " Ten depouiller. C'est ainsi que des navigateurs, allant k la *' decouverte, munis d'une commission de leur souverain, et " rencontrant des iles, ou d'autres terres desertes, en ont pris ^^ possession au nom de leur nation : et communement ce " titre a etc respecte, pourvu qu'une possession reelle I'ait " suivi de pr^s " (p). CCXXVIII. In the various discussions which took place between the United States and Great Britain with respect to the right of the Oregon Territory, the title resultiQg from discovery was attempted to be pushed far beyond the limits of this doctrine, even to the extent of maintaining, that the first discovery by an uncommissioned merchant-ship gave pri- ority to the claims of America upon these regions. But such a position appears opposed to all authorities upon Interna- tional Law, and it was steadily denied by Great Britain. CCXXIX. The inchoate title, then, must in the first place be fortified by the previous commission or confirmed by the subsequent Ratification of the State to which the discoverer belongs. So far, according to the practice of na- tions, strengthened in some degree by the principles of natural Law and the reason of the thing, the fact of authorized discovery may be said to found the right to occupy. " It is to be observed, then," (Lord Stowell says), ^* that " all corporeal property depends very much upon occupancy. " With respect to the origin of property, this is the solefound- ** ation : quod nullius est ratione naturali occupanti conceditur. (p) "Comment une nation s'approprie un pays d6fiert.^'— Vattel, torn. i. 1. i. c. 18, s. 207. OCCUPATION. — ORIGINAL ACQUISITION. 271 " So with regard to transfer also, it is universally held, in " all systems of jurisprudence, that to consummate the right " of property, a person must unite the right of the thing with " possession. A question has indeed been made by some " writers, whether this necessity proceeds from what they " call the natural law of nations, or from that which is only " conventional. Grotius seems to consider it as proceeding " only from civil institutions. Puffendorf and Pothier go " farther. All concur, however, in holding it to be a ne- " cessary principle of jurisprudence, that, to complete the " right of property, the right to the thing and the possession " of the thing itself should be united ; or, according to the " technical expression, borrowed either from the civil law, or, " as Barbeyrac explains it, from the commentators on the " Canon Law, that there should be both the Jw5 in rem and " the Jw5 in re. This is the general law of property, and " applies, I conceive, no less to the right of territory than to " other rights. Even in newly discovered countries, where " a title is meant to be established for the first time, some " " act of possession is usually done and proclaimed as a notifi- " cation of the fact. " In transfer, surely, where the former rights of others are " to be superseded and extinguished, it cannot be less neces- " sary that such a change should be indicated by some public " acts, that all who are deeply interested in the event, as the " inhabitants of such settlements, may be informed under " whose dominion and under what laws they are to live. " This I conceive to be the general propriety of principle on " the subject, and no less applicable to cases of territory, " than to property of every other description " {q). CCXXX. The next step is to consider what facts con- stitute an Occupation ; what are the signs and emblems of its having taken place : for it is a clear principle of Inter- national Law, that the title may not be concealed, that the intent to occupy must be manifested by some overt or external {q) The Fama^ o Roh. Adm. Hep. pp. 114-116. 272 INTERNATIONAL LAW. acts. The language of the commentators is clear and full upon this point. *' Simul discimus quomodo res in proprietatem iverint: " non animi actu solo ; neque enim scire alii poterant quid " alii suum esse vellent, ut eo abstinerent ; et idem velle " plures poterant : sed pacto quodam aut expresso, ut per *' divisionem, aut tacito, ut per occupationem " (r). Again : " Requiritur autem corporalis quajdam possessio ad domi- " nium adipiscendum " (5). And again : " Praeter animum possessionem desidero, sed qualemcun- " que, quas probet, me nee corpore desiisse possidere " (t). These acts, then, by the common consent of nations, must be use of and settlement in the discovered territories. CCXXXI. By a Bull promulgated in 1454, Pope Nicho- las V. gave to the crown of Portugal the Empire of Guinea, and the power to subdue all the barbarous nations therein, and prohibited the access of all other nations thereto (m). By a Bull promulgated in 1493, Pope Alexander VI. granted to the crown of Spain all lands already, or here- after discovered, lying to the west and south of the Azores, drawing a line from one pole to the other, a hundred leagues from the west of the Azores. This pontifical decision was subsequently ratified by the Treaty of Tordesillas in 1494 {v), and confirmed by Pope Julius in 1506. These Papal grants to, and arbitrations between, Spain and Portugal, as well as the conventions on this subject between the lay Powers themselves, were always utterly disregarded by Grreat Britain, France, and Holland, though not altogether aban- doned by the grantees, till their futility had been demon- (r) Grotius, 1. ii. c. ii. 2, s. 5. (s) Grotius, 1. ii. c. viii. s. 3. {t) Bynltershoek, De Dom. Maris, c. i. (w) Giinther, Kap. i. G, Kap. ii. 2, s. 10. (v) Martens, Rec. t. i. p. 372. OCCUPATION.— ORIGINAL ACQUISITION. 273 strated by the result of many sanguinary wars {w). Vattel is very clear upon this point : " Mais c'est une question de *' savoir si une nation pent s'approprier ainsi, par une simple " prise de possession, des pays qu'elle n'occupe pas re- *' ellement, et s'en reserver de cette maniere beaucoup *' plus qu'elle n'est capable de peupler et de cultiver. II " n'est pas difficile de decider qu'une pareille pretention *' serait absolument contraire au droit naturel, et opposee *' aux vues de la nature, qui, destinant toute la terre aux *' besoins des hommes en general, ne donne k chaque peuple *' le droit de s'approprier un pays que pour les usages " qu'elle en tire, et non pour empecher que d'autres en *' profitent. Le droit des gens ne reconnaitra done la pro- ** priete et la souverainete d'une nation que sur les pays vides " qu'elle aura occupes reellement et de fait, dans lesquels elle '* aura forme un etablissement, ou dont elle tirera un usage ** actuel {x). En effet, lorsque des navigateurs ont rencontre " des pays deserts, dans lesquels ceux des autres nations " avaient dresse en passant quelque monument, pour marquer " leur prise de possession, ils ne se sont pas plus mis en " peine de cette vaine ceremonie que de la disposition des '' papes, qui partagerent une grande partie du monde entre les " couronnes de Castille et de Portugal " (y). Indeed, writers on International Law agree that Use and Settlement, or, in other words, continuous use, are indispensable elements of occupation properly so called. The mere erection of crosses, landmarks, and inscriptions is ineffectual for acquiring or maintaining an exclusive title to a country of which no real use is made (z). (w) Even in modern times Spain has claimed the north-western coasts of America upon the sole ground of having first discovered them. {x) "Quam est hie fortunatus putandus, cui soli vere licet omnia, non Quiritium, sed sapientmm jure, pro suis vindicare ! nee civili nexo, sed communi lege naturce quae vetat ullam rem esse cujusquam, nisi ejua qui tractare et uti sciat." — Cicero, De Repuhlica, 1. i. c. 17. (i/) L. i. c. xviii. s. 208. (z) Kluber,B. 126. Wheaton, Elem. i. c. 4. VOL. I. T 274 INTERNATIONAL LAW. CCXXXIT. But when occupation by Use and Settlemci has followed upon discovery, it is a clear proposition Law, that there exists that corporeal possession {corporal quccdam possessio (a), detentio corporalis {b) ) which confe an exclusive title upon the occupant, and the Dominiu eminens, as Jurists speak, upon the country whose aorei he is. CC XXXIII. Next arises the difficult question, as to ho much territory is occupied by such a settlement ? to whi extent must the corporeal possession go, in order to give title to more than is actually inhabited ? (c) — what, in fac is the International doctrine of contiguity {ratio vicinitatis) CCXXXIV. Vattel says, that when several nations posses and occupy a desert (c?) and unoccupied land, they should agrc upon an equitable partition between themselves; if the cannot do this, each nation has a right of empire and domai in the parts where they have first made their settlementi This remark, however, does not afford much assistance tc wards a solution of the difficulty (e). In truth, it is impossible to do more than lay down broad general rule, aided in some degree by the practice ( (a) Grotitis, 1. ii. c. viii. s. 3. (b) " Cultura utique et cura agri possessionem quam maxime indica Neque enim desidero, vel desideravi unquam, ut tunc demum videati quia possidere, si res mobiles, ad instar testudinum, dorso ferat suo, v( rebus immobilibus incubet corpore, ut gallinse solent incubare ovi Prreter animum possessionem desidero, sed qualemcunque, qufe probe me nee corpore desiisse possidere Igitur quicquid dicat Titiu quicquid Msevius, ex possessione jure naturali et gentium suspenditi] dominium, nisi pacta dominium, citra possessionem, defendant, ut defend; jus cuj usque civitatis proprium." — Bynkershoek, Op. t. vi., De Domini Mans, pp. 360, 361. (c) " Et adipiscimur possessionem corpore et animo, neque per s animo, aut per se corpore. Quod autem diximus et corpore et anin: acquirere nos debere possessionem, non utique ita accipiendum est, utqu fundum possidere velit, omnes glebas circumambulet, sed sufficit quam libet partem ejus fundi introire, dum hac mente et cogitatione sit, \\\ totum fundum usque ad terminum velit possidere." — Dig. xli. 2, 3, 1. {d) Ibid. 7, 5. (e) Vattel, 1. ii. s. 95. OCCUPATION. — ORIGINAL ACQUISITION. 275 nations, to be applied to each case as it may arise, and mo- dified in some degree by any particular circumstance which may belong to it. CCXXXV. Some natural circumstances, however, seem to distinguish the rule in its application to a continent or an island. With respect to a continent. — The occupation of a portion of the sea-coast gives a right to the usual protecting limit at sea, which is holden to exist in all old countries. The right of dominion would extend from the portion of the coast actually and duly occupied inland, so far as the country was unin- habited, and so far as it might fairly be considered to have the occupied sea-board for its natural outlet to other nations. CC XXXVI. A remarkable instance of an International dispute, arising out of the doctrine of contiguity, is afforded by the discussion, which arose upon the interpretation of the language of the Treaty of Utrecht relating to the cessions of France to England. The expressions were as follows : " Dominus Rex Christianissimus eodem quo pacis prajsentis *' Ratihabitiones commutabuntur die, DominaB Reginaj " Magnae Britanniae litteras, tabulasve solennes et authen- " ticas tradendas curabit, quarum vigore, insulam Sancti " Cliristophori, per subditos Britannicos sigillatim dehinc pos- " sidendam ; Novam Scotiam quoque, sive Acadiam totam, " limitibus suis antiquis comprehensam, ut et Partus Regii " urbem, nunc Annapolin regiam dictam, cceteraque omnia in " istisregionibus quce abiisdem terris et insulis pendent, unacum. " earundeminsularum,terrarum, etlocorumdominio,proprie- " tate, possessione, et quocunque jure sive per pacta, sive alio " modo quaesito, quod Rex Christianissimus, corona Gallias, " aut ejusdem subditi quicunque ad dictas insulas, terras et loca,eorumque incolas,hactenus habuerunt,Regina3 Magnae Britanniae ejusdemque coronas in perpetuum cedi constabit et transferri, prout eadem omnia nunc cedit ac transfert Rex Christianissimus ; idque tam amplis modo et forma, ut regis Christianissimi subditis in dictis maribus, sinubus, T 2 276 INTERNATIONAL LAW. " aliisque locis ad littora Novae Scotiae, ea nempe quae Eurum " respiciunt, intra triginta leucas, incipiendo ab insula, vulgo " Sahle dicta, eaque inclusa et Africum versus pergendo, " omni piscatura in posterum interdicatur " (/). The words in Italics le^ to a variety of demands on the part of Great Britain, with respect to the territories included under these words. The French replied ; " Les mots de ** limitihus et de comprehensam n'ont jamais ete places nulle- " part pour donner de I'extension. La phrase {ut et) que " citent les Commissaires anglois ne donne aucune extension " a la cession, et ne pent pas operer sans le dire, et par une " vertu secrete, que ce qui n'^toit pas Acadie avant le traite " soit devenu Acadie apres le traite ; ni que les pays circon- '' voisins, ou les conjins de 1' Acadie, en soient devenus des '^ dependances ; ni que I'accessoire soit six ou huit fois plus " considerable que le principal. Jamais on ne prouvera, que " par les appartenances et les dependances d'un pays, on " doive entendre ceux qui en sont voisins. Proximite et " dependance sont deux idees diiFerentes, distinctes ; leur " confusion en traineroifc celle des limites de tons lesfitats" {g). The dissensions on this subject were the principal cause of the war which broke out in 1756. A similar quarrel arose with respect to the provinces claimed from Germany by the Chambers of Reunion of France. By the following words in the 12th article of the Peace of Munster (1648)—" Su- ^* premum dominium, jura superioritatis aliaque omnia in " Episcopatus Metensem, Tallensem et Viradunensem, ur- ** besque cognomineseorumqueEpiscopatuumofw^nc^M5,"&;c., it was contended that the throne of France was exempted from various feudal liabilities to the German Empire, to which these bishoprics had been previously subject, but, as Giinther (A) remarks, without any foundation in justice. (/) Treaty of TJtrecht, 1713 : — Schmauss, Corpm Jur. Gent. Academ. Tol. ii. p. 1332. (g) Memoires des Commissaires de S. M. Trhs-Chretienne, etc., torn, i. R. 1, pp. 54, 62, 183. (A) Europ. Volkerrecht, vol. ii. p. 180. See also Bolinghroke'' s Letters on the Study and Use of Histoj-y, 1. vii. p. 273 (ed. 1752). OCCUPATION. — ORIGINAL ACQUISITION. 277 The United States of America, during the pendency of the negotiations with England, with respect to the Oregon boundary, asserted " that a nation discovering a country, by " entering the mouth of its principal river at the sea-coast, " must necessarily be allowed to claim and hold as great an *' extent of the interior country as was described by the course " of such principal river and its tributary streams " (z). But this proposition was strenuously denied by Great Britain upon various grounds: — 1. That no such right accrued at all to mere discovery ; 2. Not to discovery by a private individual. Great Britain " was yet to be informed '' (she said) under what principles or usage, among the '* nations of Europe, his having first entered or discovered " the mouth of the Biver Columbia, admitting this to have " been the fact, was to carry after it such a portion of the " interior country as was alleged. Great Britain entered ** her dissent from such a claim ; and least of all did she *^ admit that the circumstance of a merchant vessel of the " United States having penetrated the coast of that continent " 'at Columbia River, was to be taken to extend a claim in " favour of the United States along the same coast, both " above and below that river, over latitudes that had been " previously discovered and explored by Great Britain her- " self, in expeditions fitted out under the authority and with " the resources of the nation " (j). CC XXXVII. If the circumstances had been these, viz. that an actual settlement had been grafted upon a discovery made by an authorized public ofificer of a nation at the mouth of a river, the law would not have been unreasonably applied. There appears to be no variance in the opinions of writers upon International Law as to this point. They all agree that the Bight of Occupation incident to a settlement, such as has been described, extends over all territory actually and bona fide occupied, over all that is essential to the real use (i) State Papers, vol. iii. p. 506. Twiss, Oregmi Question Examined, (J) State Paper's, vol. xiii. p. 509. 278 INTERNATIONAL LAW. of the settlers, although the use be only inchoate, and not fully developed ; over all, in fact, that is necessary for the integrity and security of the possession, such necessity being measured by the principle already applied to the parts of the sea adjacent to the coasts, namely, " ihijinitur imperium uhi ^' Jinitur armornm vis.^^ The application of the principle to a territorial boundary is, of course, dependent in each case upon details of the particular topography. Martens, discussing "jusqu'ou s'etend I'occupation," writes with as much precision and clearness upon the point as the subject will admit of. " Une nation qui occupe un " district doit etre censee avoir occupe toutes les parties " vacantes qui le composent ; sa propriete s'etend meme sur " les places qu'elle laisse incultes, et sur celles dont elle " permet Fusage a tous. Les limites de son territoire sont " ou naturelles (telles que la mer, les rivieres, les eaux, les " montagnes, les forets) ou artificielles (telles que des bar- " rieres, des homes, des poteaux, etc.). Les montagnes, les " forets, les bruyeres,etc., qui separent le territoire de deux " nations, sont censes appartenir a chacune des deux jus- " qu'a la ligne qui forme le milieu, a moras qu'on ne soit " convenu de regler difFeremment les limites, ou de les " neutraliser. A defaut des limites certaines, le droit d'une " nation d'exclure des nations etrangeres des terres ou iles " voisines ne s'etend pas au-dela du district qu'elle cultive, " ou duquel du moins elle peut prouver I'occupation ; a moins " que, de part et d'autre, I'on ne soit convenu de ne pas " occuper certains districts, iles, etc., en les declarant " neutres" (A). CC XXXVIII. This middle distance mentioned by Martens appears, in cases where there is no sea-coast boun- dary, to be recognized in practice. In the negotiations between Spain and the United States of America respecting the western boundary of Louisiana, the latter country laid down with accuracy and clearness {k) Martens, Droit des Gens, 1. ii. c. 1, 8. 38. OCCUPATION.— ORIGINAL ACQUISITION. 279 certain propositions of law upon this subject, and which fortify the opinion advanced in the foregoing paragraphs. " The principles" (America said on this occasion) " which " are applicable to the case, are such as are dictated by " reason, and have been adopted in practice by European " Powers in the discoveries and acquisitions which they " have respectively made in the New World. They are " few, simple, intelligible, and, at the same time, founded " in strict justice. The first of these is, that when any " European nation takes possession of any extent of sea- " coast, that possession is understood as extending into the " interior country, to the sources of the rivers emptying '^ within that coast, to all their branches, and the country " they cover, and to give it a right, in exclusion of all other " nations, to the same. (See Memoire de VAmerique, p. " 116.) It is evident that some rule or principle must " govern the rights of European Powers in regard to each " other, in all such cases : and it is certain that none "•can be adopted, in those to which it applies, more reason- " able or just than the present one. Many weighty consi- " derations show the propriety of it. Nature seems to have " destined a range of territory so described for the same " society ; to have connected its several parts together by " the ties of a common interest, and to have detached them " from others. If this principle is departed from, it must " be by attaching to such discovery and possession a more " enlarged or contracted scope of acquisition ; but a slight " attention to the subject will demonstrate the absurdity of " either. The latter would be to restrict the rights of an " European Power, who discovered and took possession of a " new country, to the spot on which its troops or settlements " rested ; a doctrine which has been totally disclaimed by " all the Powers who made discoveries and acquired posses- " sions in America. The other extreme would be equally " improper ; that is, that the nation who made such dis- " CO very should, in all cases, be entitled to the whole of the " territory so discovered. In the case of an island, whose 280 INTERNATIONAL LAW. *^ extent was seen, which might be soon sailed round and " preserved by a few forts, it may apply with justice ; but " in that of a continent it would be absolutely absurd. *' Accordingly we find, that this opposite extreme has been " equally disclaimed and disavowed by the doctrine and ** practice of European nations. The great continent of " America, north and south, was never claimed or held by " any one European nation ; nor was either great section ** of it. Their pretensions have been always bounded by " more moderate and rational principles. The one laid ** down has obtained general assent. " This principle was completely established in the con- *' troversy which produced the war of 1755. Great Britain " contended that she had a right, founded on the discovery " and possession of such territory, to define its boundaries " by given latitudes in grants to individuals, retaining the *' sovereignty to herself, from sea to sea. This pretension ** on her part was opposed by France and Spain, and it was *' finally abandoned by Great Britain in the treaty of 1763, " which established the Mississippi as the western boundary *^ of her possessions. It was opposed by France and Spain, *' on the principle here insisted on, which of course gives it *' the highest possible sanction in the present case. " The second is, that whenever one European nation " makes a discovery and takes possession of any portion of that " continent (Z), and another afterwards does the same at some " distance from it, where the boundary between them is not " determined by the principle above mentioned, the middle ** distance becomes such of course. The justice and pro- " priety of this rule is too obvious to require illustration. " A third rule is, that whenever any European nation has " thus acquired a right to any portion of territory on that '' continent, that right can never be diminished or affected " by any other Power, by virtue of purchases made, by grants (/) As to the character of the early acquisitions made by the East India Company, see Speech on Motion relative to the Speech from the Throne, Burke^s Works, vol. iv. p. 161 and note. OCCUPATION. — ORIGINAL ACQUISITION. 281 *^ or conquests of the natives within the limits thereof. It "is believed that this principle has been admitted (ttz) " and acted on invariably since the discovery of America, ** in respect to their possessions there, by all the European " Powers. It is particularly illustrated by the stipula- " tions of their most important treaties concerning those " possessions and the practice under them, viz., the Treaty " of Utrecht in 1713, and that of Paris in 1763. In con- " formity with the 10th Article of the first-mentioned " Treaty, the boundary between Canada and Louisiana on " the one side, and the Hudson Bay and North-western " Companies on the other, was established by Commis- " saries, by a line to commence at a Cape or Promontory " on the Ocean in 58° 30' north latitude, to run thence " south-westwardly to latitude 49° north from the Equator, '* and along that line indefinitely westward. Since that " time, no attempt has been made to extend the limits of " Louisiana or Canada to the north of that line or of " those Companies to the south of it, by purchase, conquest, " or grants from the Indians. By the Treaty of Paris, " 1763, the boundary between the present United States " and Florida and Louisiana was established by a line to " run through the middle of the Mississippi from its source " to the river Iberville, and through that river to the " Ocean. Since that time, no attempts have been made, " by those States since their independence, or by Great " Britain before it, to extend their possessions westward " of that line, or of Spain to extend hers eastward of it, " by virtue of such acquisitions made of the Indians. " These facts prove incontestably that this principle is not " only just in itself, but that it has been invariably observed " by all the Powers holding possessions in America, in all ques- " tions to which it applies relative to those possessions " (n). (m) In the case of Johnson v. Mackintosh, decided by the Supreme Court of the U.S. The practice and law on this subject are fully con- sidered, 8 Tflieaton's Hep. p. 54-3, a.d. 1823. (n) State Papers, vol. v. pp. 327-329. 282 INTERNATIONAL LAW. CCXXXIX. Here it should be remarked that in those instances in which (o) rivers form the boundary between two States, all nations appear to have acquiesced in the wisdom and justice of the rules laid down in the Roman Law upon this subject. CCXL. The law of property as incident to Neighbour- hood {yicinitas) or Contiguity was discussed under many and various heads {p) in that system of jurisprudence. But it was especially treated of in the following cases relating to fluvial Accessions, Proceeding upon the principle that the river itself was " communis usus,^ but that the bed of it was so much land belonging to the proprietors of the banks, though the pro- perty was in abeyance while covered with water, and that the mid-channel was the line of demarcation between the neighbours, it decided — 1. That if an island emerged in the stream, the property of it accrued to the owner of the nearest bank. 2. If it emerged in the middle of the stream, the property was divided between the arcifiniii as the opposite proprietors were called. 3. If the channel of the river was left dry {alveus derelic- tus) it was also equally apportioned between .the owners of the banks. 4. If the river abandoned its new channel, a diiference of opinion existed whether that channel also accrued in equal moieties to the owners of the banks, or whether it reverted to the dominion of the ancient proprietor (cujus anteafuit). The former opinion was given by Caius, the latter by Pom- pojiius, and both were incorporated in the Digest ; though the former only appeared in the Institutes j with an intimation that (o) Vcdtel, i. c. xxii. s. 266 : Des Fleuves, des JRivieres, et des Lacs. (p) Dig. xliii. t. xii. 1. i. s. 7. De Flummibus, 4'c. Instit. 1. ii. t. i. ss. 20, 21. De lia-um divis. ^-c. Cod. vii. 41. De AUuvionihus. Diff. xli. t. i. 1. 7, 1. 29, 1. 30, 1. 56, 1. 65, De Adquir. rerum donm. RIGHT OF ACQUISITION. 283 it was doubtful Law {sed vix est ut id ohtineat), as indeed it appears to be, though much might depend upon the length of time during which the new channel had been occupied. 5. All alluvial deposits belonged Jz^re gentium, that is, by natural law, to the owner of the bank to which they adhered. 6. If the violence of the stream {vis Jiuminis) had de- tached a portion of the soil from one bank and carried it over to the other side, the Law decided, that if it became firmly imbedded so as to be irremovable, it belonged to the owner of that side, otherwise it might be vindicated by its old proprietor. CCXLI. Modern times have furnished us with a very important practical commentary upon this ancient rule of Public Law. In the case of the Anna, captured by a British privateer and brought into the High Court of Admiralty for adjudica- tion, LordStowell made the following observations: — " When " the ship was brought into this country, a claim was given of " a grave nature, alleging a violation of the territory of the " United States of America. This great leading fact has very ** properly been made a matter of much discussion, and " charts have been laid before the Court to show the place of " capture, though with different representations from the " adverse parties. The capture was made, it seems, at the " mouth of the Kiver Mississippi, and, as it is contended in " the claim, within the boundaries of the United States. We " all know that the rule of Law on this subject is, terrm " dominium Jinitur, ubi Jinitur armorum vis ; and since the " introduction of fire-arms, that distance has usually been " recognized to be about three miles from shore. But it so " happens in this case, that a question arises as to what is to " be deemed the shore, since there are a number of little " mud-islands composed of earth and trees drifted down by " the river, which form a kind of portico to the main land. " It is contended that these are not to be considered as any " part of the territory of America, that they are a sort of " ' no man^s land,^ not of consistency enough to support the 284 INTERNATIONAL LAW. " purposes of life, uninhabited, and resorted to only for " shooting and taking birds' nests. It is argued that the line " of territory is to be taken from the Balise, which is a fort " raised on made land by the former Spanish possessors. I " am of a different opinion ; I think that the protection of " territory is to be reckoned from these islands ; and that " they are the natural appendages of the coast on which they " border, and from which, indeed, they are formed. Their " elements are derived immediately from the territory, and on " the principle of alluvium and increment, on which so much " is to be found in the books of Law, quod vis fluminis de " tuoprcedio detraxerit, et vicino prcsdio attulerit,palam tvum " remanet {jj), even if it had been carried over to an adjoining " territory. Consider what the consequence would be if ** lands of this description were not considered as appendant " to the main land, and as comprised within the bounds of " territory. If they do not belong to the United States of " America, any other Power might occupy them ; they might " be embanked and fortified. What a thorn would this be in " the side of America ! It is physically possible, at least, that '* they might be so occupied by European nations, and then '*' the command of the river would be no longer in America, " but in such settlements. The possibility of such a conse- " quence is enough to expose the fallacy of any arguments " that are adduced to show that these islands are not to be " considered as part of the territory of America. Whether " they are composed of earth or solid rock, will not vary the " right of dominion ; for the right of dominion does not " depend upon the texture of the soil. I am of opinion " that the right of territory is to be reckoned from those «* islands " (r). It was not without reason that the ancients worshipped the God Terminus on account of the fidelity with which he preserved the Rights of Property between nations as well as {q) Inst 1. ii. tit. i. s. 21. (r) The Anna, 5 Robinson's Adm, Rep. p. 373. RIGHT OF ACQUISITION. 285 individuals, and because they saw that if his jurisdiction were to cease, quarrels would be endless. Tu populos urbesque et regna ingentia finis (s). The River and the Mountain are not necessary land- marks (t) ; there may be, and often are, artificial landmarks wholly irrespective of any natural boundaries. In these cases, the change in the course of the river has no eifect upon the property. We know indeed, alas ! by recent experience, that the phrases " natural boundaries " and " rectification of fron- " tiers," have been used by powerful military States to cover unjust spoliation of the property of their weaker neighbour. But turning from these acts of violence and wrong, it is to be observed that in countries which have no other limit than a river, there is a distinction to be taken, according to Grotius, between a change made in the course of a river by imper- ceptible degrees, and a change made all at once. In the former case, the river, being the same, continues to be the boundary ; in the latter, the river leaving its old channel all at once, it is no longer reckoned the same: the old bed of the river continues to be the boundary. CCXLII. The nature of Occupation is not confined to any one class or description; it must be a beneficial use and occupation {le travail d' appropriation {li) ); but it may (s) " Conveniunt, celebrantque dapes vicinia supplex, Et cantant laudes, Termine sancte, tuas. Tu populos urbesque et regna ingentia finis ; Omnis erit sine te litigiosus ager. Nulla tibi ambitio est : nullo corrumperis auro, Legitima servas credita rura fide." Ovid, Fasti, ii. 655. (t) Grotius, 1. ii, c. iii. ss. 16, 17. Heffters, s. 66 : Grenze)i der Staatsgebiete. Traits des Limites entre le Br6sil et la K^publique orientale de TUru- guay, Annuaire des Deux Mondes, 1851-2. Appendix, p. 985. Kluher, s. 133. Gunther, Kap. ii. 4. Mutherforth, b. ii. c. ix. vii. p. 491 (ed. Baltimore, 1832). (u) Eug. Ortolan, Dam. intern, p. 37. 286 INTERNATIONAL LAW. be by a settlement for the purpose of prosecuting a parti- cular trade, such as a fishery, or for working mines, or pastoral occupations, as well as agriculture, though Bynkershoek is correct in saying, " cultura utique et cura agri possessionem " quam maxime indicat"(^). Vattel justly maintains that the pastoral occupation of the Arabs entitled them to the exclusive possession of the regions which they inhabit. " Si les Arabes pasteurs voulaient '' cultiver soigneusement la terre, un moindre espace pour- '' rait leur suffire. Cependant, aucune autre nation n'est en *' droit de les resserrer, ^ moins qu'elle ne manquat absolu- ^' ment de terre ; car enfin ils possedent leur pays ; ils s'en " servent ^ leur maniere ; ils en tirent un usage convenable " a leur genre de vie ; sur lequel ils ne re9oivent la loi de ** personne " (y). It has been truly observed that, " agreeably to this rule, " the North American Indians would have been entitled to " have excluded the British fur-traders from their hunting " grounds ; and not having done so, the latter must be '^ considered as having been admitted to a joint occupation " of the territory, and thus to have become invested wdth a " similar right of excluding strangers from such portions of " the country as their own industrial operations pervade " {z). CCXLIII. A similar settlement was founded by the British and Russian Fur Companies in North America. The chief portion of the Oregon Territory is valuable solely for the fur-bearing animals which it produces. Various establishments in different parts of this territory organized a system for securing the preservation of these animals, and exercised for these purposes a control over the native po- pulation. This was rightly contended to be the only exercise of proprietary right of which these particular (:r) De Dominio Maris, vol. vi. c. i. p. 360. (y) Vattel, 1. ii. 8. 97. (s) The Oregon Question, a pamphlet by Edward J. Wallace, 1846, p. 25. RIGHT OF ACQUISITION. 287 regions at that time were susceptible ; and to mark that a beneficial use was made of the whole territory by the occupants. CCXLIV. It should be mentioned that the practice of nations in both hemispheres is to acknowledge, in favour of any civilized nation making a settlement in an uncivilized country, a right oi pre-emption of the contiguous territory from the native inhabitants as against any other civilized na- tion {a). It is a right claimed by Great Britain with respect to her Australian settlements, especially New Zealand ; and by the United States of America with respect to the Indians in their back States {h). CCXLV. The Bulls of Alexander VI. reserved from the grant to Spain all lands previously acquired by any Christian nation. It is much to be lamented, both for the influence of Christianity and the honour of Europe, that the regard, which has been shown of late years, for the rights of natives in those countries, into which the over- flowings of European population have been poured, was not exhibited at an earlier period. It may indeed be justly said, that the Earth was intended by God to supply the wants of the general family of man- kind, and that the cultivation of the soil is an obligation imposed upon man; and it seems a fair conclusion from these premisses, that when the population of a country exceeds the means of support which that country can afford, they have a right, not only to occupy uninhabited districts (which, indeed, they would be entitled to do irrespectively of this emergency), but also to make settlements in countries capable of supporting large numbers by cultivation, but at present wandered over by nomad or hunting tribes. Vattel goes further, and gives a right to expel by force the inhabitants of a country, who, refusing to cultivate the soil, live entirely by rapine on their neighbours ; and such people, like the (a) Wallace's Pamphlet, p. 28. (b) Twlss, Oteyon, p. lo6. 288 INTERNATIONAL LAW. modern Buccaniers in the Chinese Seas, may lawfully be treated as pirates. CCXLVI. To return, however, to the previous question. Vattel says : " Ceux qui retiennent encore ce genre de vie ** oisif, usurpent plus de terrain qu'ils n'en auraient besoin " avec un travail honnete, et ils ne peuvent se plaindre, si *^ d'autres nations, plus laborieuses et trop resserrees, vien- " nent en occuper une partie. Ainsi, tandis que la conqu^te ** des empires polices du Perou et de Mexique a ete une " usurpation criante, I'etablissement de plusieurs colonies " dans le continent de VAmerique septentrionale pouvait, en " se contenant dans de justes homes, n'avoir rien que de " tres-legitime. Les peuples de ces vastes contrees les " parcouraient plut6t qu'ils ne les habitaient " (c). And again : " On ne s'ecarte done point des vues de la " nature, en resserrant les sauvages dans des bornes plus *' etroites. Cependant, on ne pent que louer la moderation " des Puritains anglais, qui les premiers s'etablirent dans ** la ]N^ouvelle-Angleterre. Quoique munis d'une charte de *' leur souverain, ils acheterent des sauvages le terrain qu'ils *' voulaient occuper. Ce louable exemple fut suivi par " Guillaume Penn et la colonic de Quackers, qu'il conduisit '' dans la Pennsylvanie " (c?). Though it is to be hoped that this comparison in favour of Great Britain is, in great measure, founded in justice, it cannot be denied that she is not without her share in the guilt of forcibly dispossessing and exterminating unoffending inhabitants of countries with whom she had no just cause of (c) Vattel^ t. i. 1. i. c. vii. 8. 81. \d) Ih. c. xviii. s. 209. " He that brings wealth home is seldom interrogated hy what means it Was obtained. This, however, is one of those modes of corruption with which mankind ought always to struggle, and which they may in time hope to overcome. There is reason to expect that as the world is more enlightened, policy and morality will at last be reconciled, and that nations will learn not to do what they would not suffer." — Thoughts on the Transactions relating to the Falkland Islands, 1771, by Dr. Johnson^ Works, vol. xii. pp. 123, 124. RIGHT OF ACQUISITION. 289 war. " The patent granted by King 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, Ho subdue, " ' occupy, and possess these territories, as his vassals and " ' lieutenants.' In the same manner the grant from Queen " Elizabeth to Sir Humphrey Gilbert empowers him ^ to " ' discover such remote heathen and barbarous lands, coun- " Hries, and territories, not actually possessed of any Christian " ^ prince or people, and to hold, occupy, and enjoy the same, " ' with all their commodities, jurisdictions, and royalties' " (e). Most truly does Mr. Wheaton say, " There was one thing " in which they " (i.e. the European nations) " all agreed, " that of almost entirely disregarding the right of the native " inhabitants of these regions " (/). CCXLVII. Nor can a better excuse for such conduct be alleged than the detestable doctrine, which it is melancholy to find maintained by some modern writers, viz. that Inter- national Law is confined in its application to European territories. A denial of this doctrine formed part of an earlier chapter of this work {g), and need not be more parti- cularly referred to in this place. It should be remembered that Penn, though formally commissioned by his sovereign, acquired his territory by treaty and convention, with the aboriginal inhabitants. CCXLVIII. It may therefore be considered as a maxim of International Law, that Discovery alone, though accom- panied by the erection of some symbol of sovereignty, if unaccompanied by acts of a de facto possession, does not constitute a national acquisition. „x^ A different opinion appears, indeed, to have been enter- tained by the officers of Great Britain in 1774, at the period of her temporary abandonment of the Falkland Islands. (e) Whentm's Elements (English ed.), pp. 209, 210. (/) Ihid. (g) Pt. i. ch. ill. VOL. I. U 290 INTERNATIONAL LAW. But the doctrine in the text may now be said to be very generally established (A). CCXLIX. The practice of nations supports the doctrine of beneficial use and occupation (z). In a dispute which arose between Great Britain and Spain relative to the subject of Nootka Sound (A), Spain claimed a large portion of the north- western coast of America upon the ground of priority of discovery and of long possession, confirmed by the 8th Article (/) of the Treaty of Utrecht (1713). The British Government resisted their claim upon the ground that the Earth was the heritage of all mankind, and that it was com- petent to each State, through the means of occupation and cultivation, to appropriate a portion of it. The dispute was ended by a convention between the two Powers, in which it was agreed, that it was lawful for the respective subjects of each to navigate freely the Pacific and the Southern Seas, to land upon the coasts of these seas, to tr'aflSc with the natives, and to form settlements; subject to certain con- ditions specified in the convention. CCL. The claims of the United States of North (A) Eug. OHolan, Dom. intern, p. 49, n. 2 ; Moser's Versueh, Bucli 5, p. 541. Wench, t. iii. p. 815. Johnson^ 8 Works, vol. xii. : ThoiigTits on the Falkland Islands. Martens, Rec. t. ii. p. 1. Inscription que le Lieutenant Clayton, commandant le fort Egmont, jit graver sur une plaque de plomh attachee au fort Egmont pour conserver les droits de la couronne d'Angletcrre sur les Isles de Falckland lorsque les Anglais quitthrent ledit fort le 22 mai 1774 : " Qu'il soit notoire a toutes les nations que les Isles de Falckland, ainsi que ce Fort, les Magasins, (^uais, Havres, Bayes et Criques qui en dependent, appartiennent de droit uniquement a Sa Tres-Sacree Majesty George III, Roi de la Grande-Bretagne, de France, et d'Irlande, De- fenseur de la Foi, etc. En foi de quoi cette Plaque a ete fixee, et les Pavilions de S. M. Britannique deployes et arbores, comme une marque de possession, par Samuel Guillaume Clayton, Officier commandant aux Isles de Falckland, le 22 mai 1774." (i) Eug. Ortolan, Dom. int. p. 48. (k) Wheaton, Elem. t. i. p. 162. (I) Schmotiss, ii. 1422, The words of the Article are very vague. RIGHT OF ACQUISITION. 291 America upon the Oregon Territory were, as has been shown, chiefly founded upon priority of discovery, both by their own subjects, and by the Spaniards, whose pretensions they had by the Treaty of 1819 inherited. The British Go- vernment denied both the fact of prior discovery, and the enormous inference sought to be drawn from it ; and most clearly asserted at the same time the right of other nations to occupy vacant portions of the earth wheresoever they might be. The temporary arrangements of 1818 and 1827 were merged in the definitive Treaty of Washington in 1846 (m). (m) Article I. — From the point on the forty-ninth parallel of north latitude, where the boundary laid down in existing Treaties and Con- ventions between Great Britain and the United States terminates, the line of boundary between the territories of her Britannic Majesty and those of the United States shall be continued westward along the said forty-ninth parallel of north latitude to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly, through the middle of the said channel, and of Fuca's Straits to the Pacific Ocean ; provided, however, that the navigation of the whole of the said channel and straits, south of the forty-ninth parallel of the north latitude, remain free and open to both parties. Article II. — From the point at which the forty-ninth parallel of north latitude shall be found to intersect the great northern branch of the Columbia Eiver, the navigation of the said branch shall be free and open to the Hudson's Bay Company, and to all British subjects trading vrith the same, to the point where the said branch meets the main stream of the Columbia, and thence down the said main stream to the ocean, with free access into and through the said river or rivers ; it being understood that all the usual porterage along the line just described shall be in like manner free and open. In navigating the said river or rivers, British subjects, with their goods and produce, shall be treated on the same footing as citizens of the United States ; it being, however, always understood that nothing in this article shall be construed as preventing or intending to prevent the Government of the United States from making any regulations respecting the navigation of the said river or rivers not inconsistent with the pre- sent Treaty. Article III. — In the future appropriation of the territory south of the forty-ninth parallel of north latitude, as provided in the first article of this Treaty, the possessory rights of the Hudson's Bay Company, and of all British subjects who may be already in the occupation of land or u 2 292 INTERNATIONAL LAW. other property lawfully acquired within the said territory, shall be respected. Article IV. — The farms, lands, and other property of every description belonging to the Puget's Sound AgTicultural Company, on the north side of the Columbia River, shall be confined to the said company. In case, however, the situation of those farms and lands should be con- sidered by the United States to be of public and political importance, and the United States Government should signify a desire to obtain possession of the whole or of any part thereof, the property so required shall be transferred to the said Government at a proper valuation, to be agreed upon between the parties. — Ann. Reg. 1846, pp. 453, 454. PRESCRIPTION 293 CHAPTER XIII. PRESCRIPTION. CCLI. The second mode of Original Acquisition is effected by the operation of time, by what English and French jurists term Prescription (a). In order to arrive at any solu- tion of this difficult question which may be at all satisfactory, it is necessary to make some observations upon the place which Prescription occupies in the systems both of Private and Public Law, as introductory to the consideration of the place occupied by the same doctrine in the system of Inter- national Jurisprudence. First, as to Private Law. In all systems of private juris- prudence, the lapse of time has a considerable bearing upon the question of property (i). There is, according to all such systems, a period when a de facto becomes a dejure ownership, when possession becomes property. The nature of man, the reason of the thing, the very existence of society, demand that such should be the case. The Roman Law does but give expression to this paramount necessity in the maxim, " Vetus- (d) Gi'otiuSy 1. ii. c. iv. Puffendorf, Jus Nat. et Gent. 1. iv. c. xii. Wolff, Jus Nat. p. iii. c. vii. Vattel, 1. i. c. xvi. s. 199 ; 1. ii. c. xi. ss. 140, 151. (b) Grotius indeed says that usucapio is the creature of the Civil Law, because nothing is done hy time, though everything is done in time ; but this seems an unworthy subtlety, and is inconsistent with other passages in his work. " Le Temps, qui renferme en soi I'id^e de la duree, de la repetition, et de la succession des phenomenes, un des agents de modification, de destruction et de generation pour lea choses physiques, restera-t-il sans influence sur la modification, sur la destruction, et sur la generation des droits ? " — Domaine internat, par E. Ortolan, p. 98. 294 INTERNATIONAL LAW. " tas quaB semper pro lege tenetur " (c). The doctrine of Usu- capio exhibits the first trace of this mode of acquisition in Roman Jurisprudence {d). According to this doctrine, the possessor Jw5^o titulo et bona fide ^ during two years of land, and during one year of movables, which had not previously belonged to him, acquired a property in it or them. This in- stitution was originally confined to the prcedia Italica and to the Roman citizen ; but the Prsetor extended it to the fundi provinciales, and to the peregrinus, under the appellation of prcBscriptio longi temporis. Justinian, who destroyed the dis- tinction between civil and natural property, took also away the distinction between fundi Italici and provinciales, blended together the usucapio and the prcescriptiOf and conferred not only a right of possession but of property on the person who had possessed movables for three, and immovables for ten years inter prmsentes, or twenty inter absentes, provided that the subject-matter had been capable of usucapio or prcBscriptiOf and there had heenjustus titulus and bonafides{e). He also added another species of Prescriptive Acquisition, the (e) Dig. de aq. et aq. pluv. arc. xxxix. 3, 2 : see also Big. de loc. et itin. publ. xliii. 7, 3. Dig. de aqua quotidiana et sestiva, 43, 20, 3, 4 : " Ductus aquEe cujus origo memoriam excessit,jure constituti loco habetur." {d) Which the Germans call Ersitzung. In the XII Tables it bore the name of musauctoritas, i. e. usus et auctoritas. Puchta, Instit. ii. s. 240. Savigny, R. R. iv. s. 195. Savigng, Recht des JBesitzes, Abschnitt i. s. 2. Instit. ii. 6, de usucapionibus et longi temporis prsescriptionibus. Dig. xli. 3, de usurpationibus et de usucapionibus. — Code 31, de usu- capione transformanda et de sublata difterentia rerum mancipi et nee mancipi.— 33, de praescriptione longi temporis decem vel viginti annorum. — 34, in quibus causis cesaat longi temporis prsescriptio. — 35, quibus non objicitur longi temporis prsescriptio. — 38, ne rei dominicae vel templorum vindicatio temporis prsescriptione submoveatur. — 39, de prsescriptione XXX vel xl annorum. (e) " Par la cessent les differences entre la propri^t^ civile et la pro- priete naturelle — entre Vusticapian, cette patronne de I'ltalie, etla^^re- scription, cette patronne du genre humain." — Troplong, p. 139. Cod, C., De Usucapione transformanda. ACQUISITION BY PRESCRIPTION. 295 PrcBScriptio xxx vel xl annorum. This longissimi temporis possessio, as it was afterwards called, did not confer property on the possessor or take it away from the proprietor, but it furnished the possessor with a defence against all claimants, and that though there had been no Justus titulus. Besides these classes of Prescription measured by a definite time, was the indefinite class. Immemorial Prescription {immemo- riale tempus, possessio vel prcescriptio immemorialis), which was called " adminiculum juris quo quis tuetur possessionem, " quce memoriam hominum excedit " (/). This kind of Prescription was available when the origin of the possession was incapable of proof — when nobody could recollect that it had belonged to another person. Such a Prescription might have for its object things incapable of being otherwise acquired, though not such things as were by nature res communes. It is mentioned, however, with re- ference to only three heads of what may be called public law — namely, 1. With reference to public ways {vim publicce, privates, vicinales); 2. To aright of protection from the rain- water {aquce pluvice arcendce) ; 3. The right relating to water- courses {ductus aqucB {g) ). CCLII. The passages in the Roman Law {h) show that the doctrine of Immemorial Prescription was applicable only to those few cases in which either a right of a public character, or an exemption from the obligation of such a right, was to be acquired. It is not surprising, therefore, that the doctrine should have occupied a very subordinate place in Roman (/) -0«>- de aqua quotid. et aest. xliii. 20, 3, 4, x. 1. v. t. 40, c. 26, deV. S. Big. de aqu. et aqu. pluv. arc, xxxix. 3, 24.—" The possession ne- cessary to constitute a title by prescription must be uninterrupted and peaceable, both according to the Law of England, the Civil Law, and those of France, Normandy, and Jersey."— ^ewes^ v. Pipon, 1 Knapp's Privy Council Reports, p. 60. (g) See note (c). " Scsevola respondit solere eos, qui juri dicundo prsesunt, tueri ductus aquae quihus auctoritatem vetustatis daret, tametsi jm non proharetur.''^ Big. xxxix. 3, 26. {h) Savigng, P. P. iv. s. 108. 296 INTERNATIONAL LAW. jurisprudence, or, the reason of the thing being considered, that it should during the Middle Ages have risen into an institute of continual use and of the highest importance. In the first two of the three instances specified in the Digest, Immemorial Prescription appears, on examination, to be unconnected with the fact of actual possession, but in the last to be necessarily bound up with it ; and this condition is treated as indispensable in later jurisprudence. CCLIII. The Canon Law (z) contains two remarkable instances of the application of Immemorial Prescription. In the year 1209 a Papal Legate forbad the Count of Toulouse the exercise of certain regal privileges with respect to the imposition of taxes. The Pope, at the request of the Count, declared that the prohibition extended only to the taxes arbitrarily imposed, and not to those which were equitable ; under which class were to be reckoned those which had been permitted by the Emperor, the King, or the Lateran Council, and also those '^vel ex antiqua consuetudine, a " tempore cujits non exstat memoria, introducta " {k). The (i) Saviffni/, R. JR. iv. s. 198. Eichhoniy Kirchmrecht, b. vii. c. vii. iv. : " Verjahrung gegen die Kirche." Suarez, De Leg. 1. viii. c. xxxv. s. 21. More than 100 years, however, were held necessary to establish a prescription against the Church of Rome : 1. ii. t. xiii. c. ii., t. vi. The distinction between "Usucapio" and "Praescriptio" is thus stated by one of the most eminent of modem canonists, Schmalzgruher {Jus Canonicum, vol. ii. p. 321). He says : " Distinctio propria et primaria " is — 1. Usucapio is cause. 2. Prsescriptio is effect. " Distinctio ordinaria " is — 1. " Usucapio " concerns " res corporales " and requires actual possession, " veram possessionem." 2. " Preescriptio " does not^ but is content with quasi possessio. The use of the phrase " prsescriptum est obligationi " implies oppo- sition to d. former propi'ietor, " Prescripta est servitus, prsescripsi rem " implies, " no more than legitimate acquisition." (k) X. 1. V. t. 40, c. 26, de V. S. ACQUISITION BY PRESCRIPTION. 297 second passage relates to the case of a bishop, who claimed a Prescriptive Right to the tithes and churches within the see of another bishop. It has been seen that, according to the Roman Law, a possession for three, ten, or twenty- years with, or for thirty without, a title, furnished the possessor with a defence on the ground of prcBscriptio or usucapio against any private claimant. Churches were, generally speaking, privileged against any Prescription less than forty years ; but that Prescription against the Church did not require 'a title provided there were a bona fides. In the case of the bishop, however, this Prescription of forty years, it was said, would not avail, because it was contrary to the Common Law: "ubi tamen est ^\jus commune contrarium " vel \\3}o^\.ViX prcBsv.mptio contra ipsum, bona fides non sufficit : " sed est necessarius titulus, qui possessori causam tribuat " praescribendi : nisi tanti temporis allegetur praescriptio, cujus " contrarii memoria non existat " (Z). CCLIV. The tendency and spirit of modem legislation and jurisprudence has been to substitute, in Private Law, a short definite period of time in lieu of Immemorial Pre- scription. In England, the " time of memory " was, at a very early period of her history, ascertained by the law to commence from the reign of a particular monarch ; for though a custom was said to be good when it had been used " time out of " mind," or " for a time whereof the memory of man runneth " not to the contrary," the phrase referred to 2^ fixed epoch, namely, that the custom was in use before the beginning of the reign of Richard I. Recent legislation has introduced Q,) The whole passage in the sixth book of the Decretals is as follows: " Episcopum, qui ecclesias et decimas, quas ab eo repetis, proponit, licet in tua siat constitutse dicecesi, se legitime prsescripsisse, adlegare oportet, cum jus commune contra ipswm /«c^a^, hujusmodi prsescriptionis titulum et probare ; nam licet ei qui rem prsescribit ecciesiasticam, si sibi non est contrarium jus commune, vel contra eam prsesumtio non habeatur, sufficiat bonajldes; ubi tamen," &c. — L. ii. t. 13, cap. 1. De Prescript. in Vlto. 298 INTERNATIONAL LAW. a Prescription limited by a specific number of years, which it has substituted for the doctrine of immemorial usage (m). In France (w) Immemorial Prescription has been abolished, and a fixed period substituted ; and in Austria ; as well as in Prussia also, though in this country very long periods of time are required in certain cases (o). CCLV. Secondly, as to Public Law. The doctrine of Immemorial Prescription is, from the very necessity of the case, indispensable (/?) in the system of Public Law. Ac- cordingly, we find it mentioned more than once in the Constitutions of the ancient German Empire, and as a mode of acquiring Public Rights {q). Savigny illustrates the use of Immemorial Prescription in (m) Blackstone^s Commentaries on the Laws of England, b. 2, c. iii. The rule was adopted when, by the Statute of Westminster (3 Edward I. c. 39), the reign of Richard I. was made the time of limit- ation in a writ of right. Statute of 2 «fe 3 William IV. c. Ixxi., An Act "for shortening the time of prescription in certain cases." It was the intention of this Act to establish practically and generally a 30-years', and certainly and univer- sally a 60-years', prescription. — Stephen's Comment, b. 2, t. i. c. xxii. (n) Code civil. " 690. Les servitudes continuees et apparentes s'acquierent par titre, ou par la possession de trente ans.'' (c. 688, 689, 706, s. 2177, 2232, 2281.) " 691. Les servitudes continuees non apparentes, et les servitudes dis- continu6es apparentes ou non apparentes, ne peuvent s'etablir que par titres. " La possession meme imm^moriale ne suffit pas pour les gtablir ; sans cependant qu'on puisse attaquer aujourd'hui les servitudes de cette nature d^ja acquises par la possession, dans les pays ou elles peuvent s'acqu^rir de cette maniere." (c. 688, 689.) (o) Six, thirty, forty years in Austria. Thirty, forty, forty-four, fifty years in Prussia. JBlume, Devtsches Privatrecht, s. 179. Savigny^ R. R. iv. s. 198. {p) " Im ofFentlichen Recht ist die unvordenkliche Zeit durchaus nicht zu entbehren, und es ist ganz gleichgiiltig wie wir Juristen dariiber urtheilen, sie wird sich unfehlbar Bahn brechen, so oft eine Veranlassung dazu erscheint." — Savigny, ih. \ (q) Savigny, ib., citing Aurea BuUa, c. viii. s. 1 : "A tempore cujus contrarii hodie non existit memoria." See too a Reichsahschied of 1548 and of 1576. ACQUISITION BY PRESCRIPTION. 299 matters of Public Law, by a reference to the condition of England from the Revolution of 1688 to the death of the last of the male Stuarts, the Cardinal of York, in 1806. During a considerable portion of this interval it might have been, and it actually was, a question of grave conscientious doubt to many, whether the change of dynasty was the effect of temperate equity and wise policy, or of mere violence and injustice : and if, during this interval, a successful invasion had reseated the Stuarts upon the British throne, their right, as having continued unbroken, though suspended by violence, would have obtained a very general recognition. Who can point out, in this or in a similar instance, the exact year when the doubt was merged into certainty ? and yet it is not difficult to describe the general character of such a transition. When the generation had passed away which had been alive during the former state of things ; when the convictions, feelings, and interests of the succeeding genera- tion had become identified with the new order of things ; then might not improperly be said to begin the Prescription of Public Law. This is, in principle, very much the same as the Prescription of the Private Law ; which, indeed, may be said to have been modelled upon the usage of Public Law, and which usage grew out of the reason of the thing. CCLVI. Having discussed the position of prescription in the systems of Private and Public Law (r), we now ap* proach the consideration of a matter, holden by the master mind of Grotius to be one of no mean difficulty, namely. In- ternational Prescription. Does there arise between nations, as between individuals, and as between the State and in- dividuals, a presumption from long possession of a territory or of a right which must be considered as a legitimate source of International Acquisition ? In seeking an answer to this important question, it is (r) 'AX\a firfv ov8 eKtivo viiag XaXtfyev, on rag KTi'iaeig Kai rag idiag, /cat Tag Koivag, rjv eTTiysvrjTai iroXvg xpovog, Kvplag Kai irarpi^ng airavrtg tiviu vofiilovm. — Isocr.f Orat. Archidam, 300 INTERNATIONAL LAW. necessary to keep clear of all subtle disquisitions with which this subject has been perplexed ; whether, for instance, it be the creature of Natural or Civil Law, or whether it must always be founded upon a presumption of voluntary aban- donment or dereliction by the former owner. Through these metaphysical labyrinths we cannot find a clue for questions of International Jurisprudence. The effect of the lapse of time upon the property and right of one nation relatively to another is the real subject for our consideration. And if this be borne steadily in mind it will be found, on the one hand, in the highest degree irrational to deny that Prescrip- tion is a legitimate means of International Acquisition ; and it will, on the other hand, be found both inexpedient and impracticable to attempt to define the exact period (5) within which it can be said to have become established — or, in other words, to settle the precise limitation of time which gives validity to the title of national possessions. And therefore to the question, what duration or lapse of time is required by the canons of International Jurispru- dence in order to constitute a lawful possession ? it is enough to reply — First, that the title of nations in the actual en- joyment and peaceable possession of their territory, howsoever originally obtained, cannot be at any time questioned and disputed : Secondly, that a forcible and unjust seizure of a country, which the inhabitants, overpowered for the moment by the superiority of physical force, ineffectually resist, is a possession which, lacking an originally just title, requires the aid of time to cure its original defect ; and if the nation so subjugated succeed, before that cure has been effected, in shaking off the yoke, it is legally and morally entitled to resume its former position in the community of States. (s) Vattel, 1. ii. c. xii. s. 151, expresses a wish that such a period could be ascertained by the universal consent of nations : but fhe inexpediency is as great as the impossibility of such a scheme. Grotius refers to the analogy of custom : " Tempus vero, quo ilia consuetudo efiectum juris accipit, non est definitum sed arU'itrarium, quantum satis est ut concurrat ad significandum consensum." — 1. ii. c. iv. 5, s. 2. ACQUISITION BY PRESCRIPTION. 301 CCLVII. This is called, in technical language, the doc- trine of Postliminium, which will be discussed hereafter (t). It must, however, be remarked here, that the rights of Post- liminium can only attach to States which have been, previous to their subjugation. Independent Kingdoms. It was there- fore with justice that the Allied Powers, in the adjust- ment of the relations between Belgium and Holland after the revolution of 1830, resisted certain Belgic claims founded upon an alleged Postliminium, on the ground that Belgium had never been an Independent State, had never been " sui '' juris, ^^ and could therefore have no title to the application of this doctrine. CCLVIII. It is true that some later writers on the Law of Nations have denied that the doctrine of Prescription has any place in the system of International Law (u). But their opinion is overwhelmed by authority, at variance with practice and usage, and inconsistent with the reason of the thing. Grotius, Heineccius, Wolff, Mably, Vattel, Euther- forth, Wheaton, and Burke (x), constitute a greatly* prepon- (t) Vide post, ch. xvi. (w) Kluher, s. 6, 125. Martens, 1. ii. c. iv. s. 71. (:r) Grotius, 1. ii. c. iv. " De derelictione prsesumpta et earn secuta occupatione : et quid ab usucapione et prsescriptione difFerat ; " and the commentary of Heineccius thereupon in his Prcelect. Acad, in Grot. Burke, vide post. Vattel, 1. ii. c. xi. Wheaton, Mem. c. iv. s. 4, t. i. p. 159. Bynhershoek may, I think, fairly be added to the list. Such it seems to me is the inference from the following, among other passages, in which he combats the possibility of the Dominion of the Sea being acquired by Prescription : " Sed Hugo Grotius (p. 386) et Vasquius Grotio re- prsesentatus cap. vii. Maris liheri, docuerunt, longa possessione non quseri marium dominia. Et qui potest modus acquirendi, qui duntaxat est a Jure Civili, diversos principea obligare ? Utitur etiam ea ratione Grotius, sed bene est, quod parcius, quia id ipsum rursus concessit {de Jure B. et P. lib. ii. c. 4) et ita iiunc vulgo placet, si adsint, quas ille persequitur, tacitse concessiones, indicia, preesumtiones aliaque ad- minicula, per quae ipsa magis, quam per longi temporis capionem extra- neos excludi jus fasque esset. At vero, per me licet, excute quicquid est 302 INTERNATIONAL LAW. derating array of authorities, both as to number and weight, upon the opposite side. The practice of nations, it is not denied, proceeds upon the presumption of Prescription, whenever there is scope for the admission of that doctrine. The same reason of the thing which introduced this principle into the civil juris- prudence of every country, in order to quiet possession, give security to property, stop litigation (y), and prevent a state of continued bad feeling and hostility between individuals, is equally powerful to introduce it, for the same purposes, into the jurisprudence which regulates the intercourse of one society with another, more especially when it is remembered that war represents between States litigation between In- dividuals (z). It is very strange that the fact, that most nations possess in their own municipal codes a positive rule of law upon the subject, has been used as an argument that the general doctrine has no foundation in International Law. It is admitted, indeed, that Immemorial Prescription con- stitutes a good title to national possession; but this is a perfectly nugatory admission, if, as it is sometimes explained, it means only that a State which has acquired originally by earum prsesumptionum^ et si quid conjecturis dandum, reperies gentium animos adversus prsBscriptionem maris omuimodo militare et nihil reliqui facere, quominus voluntatem suam enixe declarent; testantur id acta populorum publica, testatur quotidie suo quisque exemplo, dum, quod alius mare in dominium suum transcribit, alius eo vel invito ingrediatur et alterius possessionem, si quam prsetendat, continua navigatione turbet." And again be says : *^ Caeterum ne plura addam, Grotius et Vas- quius in causa sunt, namque hi maris usucapionem submoverunt eis rationihus quas meas facere non dubitem, si demas, quae ipsi aiunt de natura maris preescriptioni adversa, utpote re communi ex legibus Naturae et Gentium, et quae nee in bonis esse posset, nee possideri, nee quasi possideri, nee alieuari, et caetera, de quibus non nihil dicam cap. uUy — De Dominio Maris Prcescriptio, c. vi. (y) " Vetustas quae semper pro lege habetur minuendorum scilicet litium causa." — Dig. xxxix. 3, 2, De Acq. Pluv. (z) " Bono publico usucapio introducta est, ne scilicet quarundem rerum diu et fere semper incerta dominia essent." — Dig. xli. t. 3, 1. PRESCRIPTION. 303 a bad title, may keep possession of its acquisition as against a State which has no better title. If it had been merely alleged that the exact number of .years prescribed by the Roman Law, or by the municipal institute of any particular nation, as necessary to constitute ordinary prescriptions (a), is not binding in the affairs of nations, the position would be true. It is, perhaps, the difficulty attending the application to nations of this technical part of the doctrine, which has induced certain writers to deny it altogether ; but incorrectly, for, whatever the necessary lapse of time may be, there unquestionably is a lapse of time after which one State is entitled to exclude every other from the property of which it is in actual possession. In other words, there is an In- ternational Prescription, whether it be called Immemorial Possession, or by any other name. The peace of the world, the highest and best interests of humanity, the fulfilment of the ends for which States exist, require that this doctrine be firmly incorporated in the Code of Internationa? Law. It (a) Puffendorf, under the title " De Usucapime" in the 12th chapter of his 4th Book, discusses the application of the doctrine of Prescription to nations. His remarks are perspicuous and wise. " Inter hasce (he says in his 9th section) discrepantes sententias id quidem liquidum videtur : quemadmodum dominia rerum pacis causa sunt introducta ; ita et illud ex eodem fonte promanare, quod possessores bonee fidei ali- quando sint in tuto coUocandi^ neve ipsis in perpetuum super sua pos- sessione controversia queat moveri. Quantum autem sit illud spatium, intra quod possessio bonse fidei in vim dominii evalescat, precise neque naturali ratione, neque universali gentium consensu determinatum de- prehenditur ; sed arbitratu boni viri non citra aliquam latitudinem defi- niendum erit." He then refers with some humour to the vague tests of jjrescriptive poetry proposed in Horace, lib. 2, ep. 1, and proceeds: — " In designando autem hoc tempore ratio habebitur et antiqui domini, et recentis possessoris. Illius quidem, ut ne mature nimis a persequenda et investiganda sua re excludatur." And he closes the section with saying: — "Adeoque cum dominia rerum introducerentur, id quoque pacis causa placuisse, ut qui aliquid neque vi, neque clam, neqve precario, suo nomine possideret, tantisper dominus prsesumeretur, quoad ab altero contrarium probaretur; qui autem per longissimum temporis spatium, per quod nemo mediocriter diligens rem suam negligere creditur, quid bona fide possederit, serum petitorem plane posset repellere, quia non citius rem suam vindicatum iverit." — De Jure JSaturce et Gentium. 304 INTERNATIONAL LAW. is with great force of reason and language that Grotius, re- pelling the contrary proposition, observes : " Atque id si " admittimus, sequi videtur maximum incommodum, ut con- " troversias de regnis regnorumque finibus nullo unquam " tempore extinguantur : quod non tantum ad perturbandos *' multorum animos et bella serenda pertinet, sed et communi '' gentium sensui repugnat " {b), CCLIX. It is impossible to speak with greater accuracy upon this very delicate subject ; as the application of the general rule must of necessity be greatly modified by the special circumstances of each particular case. Vattel's re- marks upon this subject are clear and sensible : — " La Prescription ne pouvant ^tre fondee que sur une pre- " somption absolue, ou sur une presomption legitime, elle " n'a point lieu si le proprietaire n'a pas veritablement neglige " son droit. Cette condition importe trois choses : 1° que " le proprietaire n'ait point a alleguer une ignorance invin- " cible, soit de sa part, soit de celle de ses auteurs ; 2° qu'il " ne puisse justifier son silence par des raisons legitimes et " solides ; 3° qu'on ait neglig^ son droit, ou garde le silence " pendant un nombre considerable d'annees ; car une negli- " gence de peu d'annees, incapable de produire la confusion " et de mettre dans I'incertitude les droits respectifs des par- " ties, ne suffit pas pour fonder ou autoriser une presomption " d'abandonnement. II est impossible de determiner en droit " naturel le nombre d'annees requis pour fonder la Prescrip- " tion. Cela depend de la nature de la chose dont la pro- " priete est disput^e, et des circonstances " (c). (6) L. ii. c. iv. 8. 1. See, too, Wolff. And so Vattel : " Le droit de succession n'est pas toujours pri- mitivement 6tabli par la nation ; il pent avoir €i4> introduit par la con- cession d'un autre souverain, par I'usurpation nieme. Mais lorsqu'il est appuy6 d'une longue possession, le peuple est cens6 y consentir, et ce consenteraent tacite le legitime, quoique sa source soit vicieuse. // pose alors sw le meme fondement seul legitime et in^hranlable, auqttel il faut tot/Jours revenir.''^ — Vattel, t. i. 1. i. c. v. s. 69. (c) " De ce qui est requis pour fonder la Prescription ordinaire." PRESCRIPTIOIC. 305 But tliat Prescription is the main pillar upon which the security of national property and peace depends, is as incon- trovertible a proposition as that the property and peace of individuals rest upon the same doctrine (d)^ To these remarks should be added the observation of a great modern jurist (e) : — " The jreneral 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 disregard 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." In one of those treatises (/) which show how deeply the Vattel, Le Droit des Gens, t. i. 1. ii. c. xi. s. 142. And again : ^' Mais si la nation protegee oil soumise a certaines conditions ne resiste point aux entreprises de celle dont elle a recherche I'appui, si elle n'y fait aucune opposition, si elle garde un profond silence quand elle devrait et pourrait parler, sa patience, apres un temps considerable, forme un con- sentement tacite qui legitime le droit de I'usurpateur. II n'y aurait rien de stable parmi les hommes, et surtout entre les nations, si une longue possession, accompagn^e du silence des interessfSs, ne produisait un certain droit. Mais il faut bien observer que le silence, pour marquer un consente- ment tacite, doit etre volontaire. Si la nation inftSrieure prouve que la violence et la crainte ont ^toufi'^ les t^moignages de son opposition, on ne peut rien conclure de son silence, et il ne donne aucun droit a I'usur- pateur." — Vattel, t. i. c. xvi. s. 199. See list of authorities on the doctrine of International Prescription given by Ompteda, 512, s. 213, Lit. des Volkerrechts. (d) Vattel, 1. ii. c. xi. s. 142. (e) Wheatotiy vol. i. c. iv. s. 5, p. 207. " Es liessen sich viele Beispiele, unter andem in Beutschland nach- weisen, wo das Recht der Staatsgewalt nur auf langen Besitzstand gegriindet ist, ohne erweislichen Rechtstitel." — Heffters, s. 69, 1. (/) Vol. ix. p. 449. Letter to R. Burke, Esq. See, too, vol. x. p. 97 : Beform of Representation in the House of Commons. " Prescription is the most solid of all titles, not only to pro- perty, but^ which is to secure that property, to Government.^'' And vol. v» p. 274: "With the National Assembly of France possession is nothing. VOL. I. X ' 306 INTERNATIONAL LAW. mind of the writer was imbued with the principles of general jurisprudence, Mr. Burke uses the following admirable ex- pressions : — " If it were permitted to argue with power, might one not " ask one of these gentlemen, whether it would not be more " natural, instead of wantonly mooting these questions con- " cerning their property, as if it were an exercise in law, to '^ found it on the solid rock of prescription ? — the soundest, " the most general, the most recognized title between man " and man that is known in municipal or in public jurispru- *' dence ; a title in which not arbitrary institutions but the " eternal order of things gives judgment ; a title which is not ^' the creature, but the master of positive law ; a title which, " though notjixed in its term, is rooted in its principles in the " Law of Nature itself, and is indeed the original ground of *' all known property ; for all property in soil will always be " traced back to that source, and will rest there." . . . " These gentlemen, for they have lawyers amongst them, '' know as well as I that in England we have had always a " prescription or limitation, as all nations have against each "other" . . . All titles terminate in Prescription; in which " (differently from Time, in the fabulous instances) the son " devours the father, and the last Prescription eats up all " the former " (g). law and usage are nothing. I see the National Assembly openly re- probate the doctrine of Prescription, which one of the greatest of their own lawyers (Domat) tells us, with great truth, is part of the Law of Nature. He tells us that the positive ascertainment of its limits and its security from invasion were among the causes for which civil society itself was instituted." — He/lections on the Revolution in France. (g) The Abbe de Mably, speaking of the Treaty of the Pyrenees, which followed the Treaty of Westphalia (1659), observes : — " Le Roi de France proteste centre toute prescription et laps de temps, au sujet du Royaume de Navarre, et se reserve la faculte d'en faire la poursuite par voie amiable, de meme que tons les autres droits qu'ils pretend lui appartenir, et auxquels lui ou ses pred(^cesseur8 n'ont pas renonc^." ( Traite de Vervin, rappele par le Traite des Pyrenees, art. 23. Traitc des Pyrenees, art. 89.) " Tons les auteurs qui ont ecrit sur le Droit des Gens conviennent que la prescription rend legitimes les droits les plus equi- voques dans leur origine ; et ce qui prouve la sagesse de ce principe, c'est PRESCHIPTION, 307 CCLX. In the foregoing observations, the foundation of International Prescription has not been necessarily laid upon the abandonment or dereliction of the State to whom the possession formerly belonged. It has been placed upon the length of time during which the possession has been held by the State which prescribes for it. It is important to establish clearly that dereliction does not, in the case of nations, necessarily precede prescriptive acquisition. Much of the uncertainty and confusion in the writings of Inter- national Jurists upon this subject may be ascribed to the want of firm discrimination and clear statement upon this point. Dereliction or voluntary abandonment by the original pos- sessor may be often incapable of proof between nations after the lapse of centuries of adverse possession ; whereas the proofs of prescriptive possession are simple and few. They are, principally, publicity, continued occupation, absence of interruption {itsurpatio), aided no doubt generally, both morally and legally speaking, by the employment of labour and capital upon the possession by the new possessor during the period of the silence, or the passiveness (inertia), or the absence of any attempt to exercise proprietary rights, by the former possessor. The period of time, as has been repeatedly said, cannot be fixed by International Law between nations as it may be by Private Law between individuals : it must depend upon variable and varying circumstances ; but in all cases these proofs would be required. Now it has been well observed by a recent writer (A), that in cases where the dereliction is capable of proof, the new qu'il est de I'int^ret de cliaque nation en partieulier de radoptei*. La difficulte consiste a savoir, comment la prescription s'acquiert ; pour moi je croirois qu'elle ne pent etre etablie que par le silence delapartie lesde, quand elle traite avec le Prince qui possede son bien, ou que celui-ci le vend, le cede et I'aliene en quelque autre maniere. Le silence dans ces occasions equivaut a un consentement." — Droit inihlic^ t. i. p. 31. (K) Monsieur Eughne Ortolan. See his chapter on Prescrij^tion ocqni- sifive, in bis work Uu Domaitie tnfernationnl (Paris, 1851). X 2 308 INTERNATIONAL LAW. possessor may found his claim upoti original Occupation alone, without calling in the aid of Prescription. The loss of the former, and the gain of the later possessor, are distinct and separate facts. Whereas, in cases of Prescriptive Acquisition, the facts are necessarily connected ; the former possessor loses, because the new one gains* CCLXI. There was a dispute of long standing between France and Englandrespecting Santa Lucia, one of the Antilles Islands. After the Treaty of Aix-la-Chapelle( 1748), the matter was referred to the decision of certain Commissioners, and it was the subject of various State Papers (i) in 1751 and 1754. The French negotiators maintained, that though the English had established themselves in 1639, they had been driven out or massacred by the Caribbees in 1640, and they had, animo et facto and sine spe redeundi, abandoned the island ; that Santa Lucia being vacant, the French had seized it again in 1650, when it became immediately, and without the necessity of any prescriptive aid, their property. The English negotiators contended that their dereliction had been the result of violence, that they had not abandoned the island sine spe redeundi, and that it was not competent to France to profit by this act of violence, and surreptitiously obtain the territory of another State ; and that by such a proceeding no dominium could accrue to them. The principal discussion turned, not upon the nature of the conditions of Prescriptive Acquisition, but upon the nature of the conditions of Voluntary Dereliction, by which the rights of property were lost, and the possession returned to the class of vacant and unowned {aZidirora) territories (A). (i) Eugene Ortolan, Du Domaine international^ p. 111. {k) Vide post, Extinction of Acquisition. Dl^KJVATJVE ACQUJSlXrON. 309 CHAPTER XIV. DERIVATIVE ACQUISITION. CCLXII. We now enter upon the second kind of Acqui- sition, viz., that which in the system of Private Law is called Derivative. Derivative Acquisition {a) is said to be that which takes place by the act of another, or by the act of the law {acqui- sitio derivativa, vel facto hominis, vel facto legis). In this system, not only Individuals, but Corporations or legal per- sons, are enabled to acquire and to alienate rights of pro- perty, through the medium of a representative, as minors and lunatics are in all systems of jurisprudence enabled to act through their guardian or tutor. Who the representative of the corporation may be, depends upon the constitution of this legal person. But, as a general rule, the will of a corporation is expressed not only by the unanimous assent, but by the assent of the major part of its members. The rule that the will of the corpo- ration may be collected from the agreement of a part of its members seems to be founded in Natural Law, as other- Avise the body might be prevented from acting at all (h). (a) Eugene Ortolan^ p. 23. Hefters, 8. 71. (&) " — quod a viajore parte ordinis salubriter fuit constitutum." — Cod. X. t. 82, 46. De Demr. " Quod major pars curice eftecit, pro eo habetur, ac si omnes egeriut." —Dig. 1. 1, 19. Savigng, R. H. s. 97. But see Burke, vol. vi. p. 212 : Appeal from the New to tlie Old Whi. xli. t. i. 20, 1. '* Nihil autem interest utrum ipse dominus tradat alicui rem, an volun- tate ejus alius cui ejus rei possessio permissa sit." — hist. ii. t. i. 42, (u) " Nunquam nuda traditio transfert dominium, sed ita, si venditic, aut aliqua jmta oausa, prsecesserit propter quam traditio sequeretur." — Diff. xli. t. i. 31. (x) Dig. xlvi. t. iii. 79, De Solut. ; xli. t. ii. 18, 2 j xxiii. t. iii. 43, 1, dej. dot. " Interdum etiam sine traditione nuda voluntas domini sufficit ad rem transferendam ; veluti si rem, quam commodavi aut locavi tibi aut apud te deposui, vendidero tibi ; licet enini ex ea causa tibi eam non tradi- derim, eo tamen quod patior cam ex causa emtionis apud te esse tuam efficio."-xli. t. i. 9, .5. DERIVATIVE ACQUISITIOX. 317 that part of the great Treaty of Utrecht, which in 1713 was concluded between France and the States General, it was provided: "On est aussi convenu qu'aucune Province, Ville, " Fort, ou Place desdits Pa'is-Bas Espagnolsj ni de ceux qui " sont cedez par Sa Majeste Trcs-Chretienne, soient jamais " cedez, transportez, ni donnez, ni puissent echoir a la Cou- " ronne de France, ni a aucun Prince ou Princesse de la Mai- " son ou Ligne de France, soit en vertu de quelque Don, " Vente, Echange, Convention matrimoniale. Succession par " testament, ou ah intestat, ou sous quelqu'autre Titre que ce " puisse etre, ni etre mis de quelque mani^re que ce soit au " pouvoir, ni sous I'autorite du Roi Tres-Chretien, ni de " quelque Prince ou Princesse de la Maison ou Ligne de « France "(y). These provisions contain an enumeration of every conceiv- able mode of acquisition, except that of original occupation, discussed in the foregoing chapters. Many historical ex- amples may be cited of these International titles to property. CCLXIX. The exchange of territories, and especially of portions of territories, is familiar to all who are acquainted with European History, and with the provisions of the prin- cipal treaties. Thus, in the Treaty of Nimeguen, it is pro- vided by Article XIV., " pour prevenir toutes les diffi- " cultes que les enclaves ont causees dans I'execution du " traite d'Aix4a-Chapelle, et retablir pour toujours la bonne " intelligence entre les deux couronnes, il a ete accorde que " les terres enclavees seront echangees contre d'autres qui " se trouveront plus proches et a la bienseance de S. M. " Catholique," &c. The islands of Sardinia and Sicily {z), the {y) Gunther, vol. ii. p. 91. Art. xiv. Schmauss, p. 1393. (s) " Eeference had been made indeed to otlier territories, the Ger- manic body, the States of Italy, Sicily, &c., where cessions were frequent ; but they were only nominally independent ; they were attached to larger kingdoms ; they were the infirm and palsied limbs of Europe, and became invariably the first points of attack in every war." — Hansard's Debates in Parliainent on the Blockade of Korivay, 1814, Speech of Sir James Machintosh. 318 intehnattonal law. Duchies of Tuscany, Parma, and Placentia, were continually exchanged with each other in the multiplicity of entangled negotiations which intervened between the Peace of Utrecht, in 17 1 3, and the Treaty of Aix-la-Chapelle, in 1748. By the 6th Article (a) of the Quadruple Alliance in 1720, Phi- lip V. of Spain renounced the reversionary title on Sicily, conferred on him by the Treaty of Utrecht, and received in exchange a reversionary title to Sardinia ; and by the first article, the Duke of Savoy made a reciprocal renunciation of his rights to Sicily. By the same Treaty, it was agreed that the reversion of Tuscany, Parma, and Placentia, about to be vacant by the extinction of the male descendants of the Houses of Medici and Famese, should be declared male fiefs of the Empire, and the investiture be conferred by the Em- peror on the eldest son of the second wife (Elizabeth Farnese) of Philip V. (b). By the Treaty of Vienna, in 1738, Tuscany was given in reversionary exchange for the Duchy of Lorraine, to the Duke of that province ; Naples and Sicily to Don Carlos, the son of Philip V. ; while Parma and Placentia were ceded to the Emperor. In 1790, Leopold II., succeeding to the Austrian Empire, renounced by a formal act — in which his eldest son Francis (afterwards Emperor) joined — his sovereignty over Tuscany, in favour of his second son, Ferdinand III., who confirmed the act, and accepted in due form the sovereignty. These " actes," the address of the Pegius Advocatus, and the re- ply of the Senate to the Grand Duke through their organ the principal Senator, are all contained in what is called in the Diplomatic Code the " Acte de cession du Grand-Duche '^ de Toscane a la branche puisnee de la maison de I'Au- " triche " (c). (a) Koch, Hist, des Tr. t. i, c. xiii. p. 236. {h) Koch, t. i. c. XV. p. 256. (c) MaHens, Bee. de Traites, torn. iv. (1785-90), p. 476 : " Acte de renonciation de S. M. I. et R. Leopold II, par rapport au Grand-Duch6 de Toscane, en faveiir de S. A. R. I'Archiduc Ferdinand, son second iils, I DERIVATIVE ACQUISITION. 319 By the last Treaty of Vienna (1814-15 (d) ), these Italian provinces were again parcelled out among various Powers ; and the Stati dei Presidi (a district belonging anciently to Sienna), the Island of Elba, the Principality of Piombino (over which the Crown of Naples had exercised feudal rights (e) ), were thrown into the portion of Tuscany, and given to the Archduke Ferdinand of Austria. CCLXX. Cessions (/) of territory are generally con- sequent on war, and the subjects of provisions in the Treaties which conclude it ; but instances are to be found of their taking place in the time of peace. In 1777, Portugal ceded to Spain the islands of Annohon and Fernando del Po, in order to facilitate the slave trade of Spain with the coast of Africa. In 1784, France ceded to Sweden the islands of St. Bartholomew in the West Indies, in return for the free use of the harbour of Gottenburg, and certain other com- mercial advantages. The most recent instance of cession is afforded by the Convention in 1850 between Great Britain and Denmark, whereby Denmark ceded to Great Britain, in consideration of the sum of ten thousand pounds, all the possessions of the Danish Crown on the Gold Coast, or Coast of Guinea, in Africa (^). CCLXXI. Gifts of territory were not uncommon in earlier times ; for, not to mention the handsome presents, already adverted to, of different parts of the globe made by the Pope to Spain and Portugal, John XYIII., in 1004, et des descendans males de celui-ci, ensemble avec I'acte d'investiture du Grand-Duche et la cession pleiniere de ce pays, tant de la part de S. M. I. et S. A. Leopold II, que de S. A. R. rAreliiduc rran9ois (aujourd'hui Emperenr). a la Secondo-geniture, en date de Vienne le 21 juill. 1790, ainsi que Tacceptation de S. A. II. le Grand-Due Ferdinand III de la confirmation des loix, statuts, etc. du Grand-Duche en date du 22 fev"" 1791, et de I'hommage prete au Grand-Due le 16 mars 1791." (d) Koch, vol. iii. c. xli. p. 493. (e) I.e. la suzerainete, relating to le droit feodal, distinguished from la suzerainete which relates to droit politiqtie. (/) Gilnther, vol. ii. p. 94 {Ahtretung). (g) Annual Register y\o\. xcii. p. 891, art. i. 320 INTERNATIONAL LAW. offered the island of Sardinia to whomsoever would take it from the Saracens; and Boniface YIII. (h), in 1297, be- stowed the same island, together with Corsica, upon James II. of Arragon. In 1485, Queen Charlotte of Cyprus (i) gave that island to Duke Charles I. of Savoy ; and, in 1530, the Emperor Charles V» (h) gave Malta to the Knights of St. John. "We may pass over the earlier alleged donations of Pepin and Charlemagne to the Roman See, and the ac- quisitions of the French Crown by gift, such as the province of Dauphine in 1349. CCLXXII. The history of Louisiana furnishes a more recent and very remarkable instance of the practical appli- cation of some of the foregoing modes of acquisition by in- dependent nations. By a secret convention (Z) (never, it is said, yet printed) between the Courts of Versailles and Madrid, on the 2nd of November, 1762, New Orleans, together with that part of Louisiana which lies on the western side of the Mississippi, was ceded to Spain. The object of this cession was to in- demnify Spain for the loss of Florida, which, by the pre- liminaries of the memorable Treaty of Paris (m), she had given up to Great Britain ; and, in spite of the remonstrances of the French inhabitants of Louisiana, Spain took complete possession of this province in 1769. By a secret Treaty concluded between the French Re- public and Spain, at Saint Ildefonse, on the 1st of October, 1800, Spain engaged to retrocede to France — six months after the fulfilment of certain conditions relative to the Duchy of Parma, in favour of the daughter of the King of Spain — the province of Louisiana as at that time possessed by Spain. (h) GuntJier, vol. («■) Schmauss, vol. i. p. 124. (k) Giinther, vol. i. p. 96. (/) Koch, Hist, des Traitis, c. xvii. j Traites de Paris H de Huh^Hs- hourg, vol. i. p. 362. (ni) The secret convention was signed on the same day as the preli- minaries of the Treaty. The Treaty itself was not signed till 1763. DERIVATIVE ACQUISITION. 321 As soon as this Treaty was made known, Great Britain and the United States took alarm, and determined to oppose to the utmost its completion. Buonaparte, then First Consul, urged by the difficulty of his position, and partly perhaps also by his need of pecuniary resources, resolved upon the ex- pedient of selling his new, or rather inchoate, acquisition to the United States. To this bargain, however, he gave the name of Cession, and it was effected by the Treaty of Paris, of 1803, between France and the United States of North America. The words of the Convention were remarkable : — " Attendu, y est-il dit, que par Particle 3 du Traite conclu " a Saint-Udefonse, le 9 vendemiaire, an ix, entre le Pre- " mier Consul de la Bepublique Fran9aise et S. M. C, il a " ete convenu ce qui suit : [ici est insere Particle ;] et comme, " par suite dudit traite, et specialement dudit art. 3, la " Bepublique Fran9aise a un titre incontestable au domaine " et a la possession dudit territoire, le Premier Consul de la *^ Bepublique, desirant de donner un temoignage remarquable " de son amitie aux dits Etats-Unis, leur fait, au nom de '^ la Bepublique Fran9aise, cession, a toujours et en pleine " souverainete, dudit territoire, avec tous ses droits et appar- " tenances, ainsi et de la maniere qu'ils ont ete acquis par la " Bepublique Fran9aise, en vertu du traite susdit, conclu " avec S. M. C." {n) The peculiarity of this form arose from the fact that the Treaty of October 1800 had never been formally executed by either of the contracting parties. The ninth article of this Treaty provided that two particular conventions, to be signed the same day, should be considered as inserted in the Treaty itself. The first contained the stipulation that sixty millions of francs should be paid to France; the second, that all claims upon France by the United States for illegal captures or other matters should be considered as discharged. It belongs to the province of the historian to record the ineffectual regret of deceived and injured Spain, and the (w) Koch, vol. ii. p. 322. VOL. I. Y 322 INTERNATIONAL LAW. sagacity of the United States in profiting by the troubles of Europe, both at this period and subsequently by the acquisi- tion of Western Florida. But it should be observed here that the instance illustrates national acquisition by gift, sale, and exchange, and that the title of the United States to this acquisition has never been questioned. The fate of Venice has been remarkable. Bestowed like a chattel upon Austria by the First Napoleon, she obtains her liberty from his nephew in a manner which could scarcely have been foretold. In the war of 1866 between Prussia and Austria, in which Italy was the ally of the former Power, Austria ceded to France Venetia, which France accepted, and, by the Treaty of Vienna, August 24, 1866, conferred upon Italy, an ar- rangement recognized by a Treaty of the 23rd of October in the same year between Austria and Italy {o). CCLXXIII. The Election of an individual to the sove- reignty of a State, though not strictly speaking a mode of acquiring territory, may indirectly be the cause of it, when the elected person is already ruler over an independent king- dom, to which the new State becomes united. Thus the Poles, by the election of the Duke Jagello in 1386, united Litthauens to their own kingdom. And this result may ensue not only in the case of an elective sovereignty, but also in the instances, not infrequent in history, of the failure of the first line of sovereigns, and the consequent necessity of choosing a collateral branch (p). Towards the close of the fourteenth century (5-) (1375) the race of Bang Svend Estritlison became extinct in the person of Waldemar IV. His grandchild Olaf, the son of his youngest daughter Margaret, wife of the King of Norway and the asserted heir of Sweden, was chosen successor to the throne, because he would eventually unite Norway with Denmark(r). (o) Ann. Reg. 1866, p. 260. (p) Giinther, vol. ii. p. 97. {q) Dahlman^s Geschichte von JDdnemark, Band 2, pp. 46-75. (r) The senators were at first divided, some wishing for the acquisition to be acquired by the Union ; others objecting that Denmark, an elective DERIVATIVE ACQUISITION. 323 Olaf died in 1387, and his ambitious and energetic mother having sur\dved her mother and child, and seized upon the sceptre of Sweden in 1387, united the then Scandinavian kingdoms under one monarchy by the famous Union of Calmar in 1397. The Election of the House of Brunswick to the throne of Great Britain brought with it the union of Hanover, though happily for a limited time only, to these kingdoms. CCLXXIV. Marriage {contrat de mariage) of the here- ditary governor of a country has been frequently a mode of acquisition of new territory to that country, sometimes by the incorporation of a province, sometimes by the union of two distinct and independent kingdoms. The wife of Charles II. of Eno;land brou&'ht with her Tangiers and Bombay as a dowry, and the latter has proved no unimportant addition to the empire of Great Britain. Philip III. of France acquired to the French throne the countries of Carcasonne and Bezier, the dowry of his wife, Isabella of Arragon. Alphonso III. of Portugal acquired the province of Algarves to the throne of that country, as the dowry of his wife, the natural daughter of Alphonso X. of Castille {s). Philip IV. of France acquired the independent kingdom of Navarre by his marriage with Joanna, Queen of that ter- ritory ; and though, after a time, Navarre again returned to the government of its own monarchs, it was finally acquired to the throne of Spain by the marriage of Blanche of Navarre to John II. of Arragon in 1425. France acquired, through the successive marriages of Charles VIII. and Louis XIII. with Ann of Brittany, that great and formerly independent Duchy. The House of Hapsburg owes its power and station, partly to the imperial dignity which it obtained toward the monarcliy {einfreies Wahlreich), would thereby be subjected to Norway, an hereditary kingdom {Erhreich)^ ih. 52. (s) Gilnther^ vol. ii. p. 08 (Ahtreficnf/). Y 2 824 IXTERNATIOXAL LAW. end of the thirteenth century, but still more to the mar- riages which the Emperors of Austria have contracted with heiresses. Mary of Burgundy, the daughter and sole heiress of the last Duke of that name, brought with her the magnificent dowry of the Low Countries, including Franche-Comte, Flanders, and Artois, to the Emperor Maximilian (t). The son of this marriage, Philip the Handsome, married the sole heiress of the crowns of Arragon and Castille, so that it has not been untruly sung by a poet of modern date, — Bella gerant alii, tu, felix Austria^ nuhe ; Nam quae Mars aliis, dat tibi regna Venus. Sometimes national rights and claims have been conferred by marriage. At the Peace of Noyon, in 1516, Francis I. of France promised to give with his daughter on her mar- riage with the then King Charles of Castille, all his rights and title to the kingdom of Naples ; and in the abortive matrimo- nial negotiations between the two thrones, it was stipulated that certain lands should be given in compensation for the non- fulfilment of a contracted marriage by the party causing it (m). The marriage of sovereigns may or may not occasion a permanent incorporation of territories, according to the laws of the respective kingdoms ; by which will also be governed the rank of each sovereign and their respective powers and authorities. The instances of Philip and Mary in England, Francis II. and Mary in Scotland, William and Mary in the British dominions, will readily occur as illustrations of this remark (x). CCLXXV. Successio ah intestato (Succession) is also among the means of national acquisition. It is true that the rules of Civil Law framed for individuals are not, strictly speaking, applicable to nations {y). The death of a nation {t) Koch, Tahl des Rev. t. i. p. 316. (m) Gunther, vol. ii. p. 99. (.r) Gunther, ih. pp. 100-103, and valuable notes. (y)_ Groints, 1. ii. c. ix. DERIVATIVE ACQUISITION. 325 would be the dissolution of its social and political elements ; and there would be no next of kin to succeed to the property, which it had occupied, while its corporate character remained. But as States, represented by monarchs, have been allowed to acquire property through the marriage of their sovereign, so have they been allowed to acquire property through his personal relation, as next of kin, to the sovereign of another territory in which the government is hereditary, upon the decease of that sovereign without any nearer relative. The question has been much discussed by writers on the Law of Nations and upon the general principles of Jurisprudence — whether the succession of the next of kin to an intestate person be a law of Nature, or merely an institute of Civil Law (z). It is certain, however, that the death of the ruler of the State, without making any testamentary provision for his succession, even in countries where the power to do so is legitimately vested in him, can give no right to any foreign nation to take possession of the territory ; for in that event, the power of disposition devolves upon the body corporate of the State. James I. of England succeeded to the throne of this country, partly by the nomination of the dying Eliza- beth, and partly by right of his descent. The whole question of succession — Avhether through Annates, relations on the male side, or Cognates^ relations on the female side — is pro- (2) Grotius,\. ii. c. vii. s. iii, p. 277. Grotius is among the supporters of the former opinion, founded on the presumption that the deceased person could not have intended his property to have been lost, but must have wished it to be given to those who were dearest — that is, according to all presumption, those who were nearest — to him. His commentator, Cocceius, thinks that the rule of succession in Europe arises from the necessity of the case ; viz., that all land being occupied by somebody, the relations of the deceased would be without support if they did not suc- ceed to his prospects. Sam. Cocceii Introd. ad lienr. Cocceii Grot, illustr. diff. proem, x. ss. 12 et 13 : " Cum rebus terra? in universum occupatis nihil amplius supersit quod occupari possit, vel non quantum sulHcit ; homines occupatis rebus nati succedunt in occupationem parentum." — Giinther adopts this reasoning, vol. ii. p. 10.3. ruffendorf, 1. iv. c. xi. De Success, ah Intestato. 326 INTERNATIONAL LAW. perly and exclusively a matter to be settled by the constitu- tional law of the country itself. How far, at least, any exception may exist to this rule in the right of Inter- vention which the legitimate apprehension of danger may confer on other nations, will be discussed in the subsequent pages of this work. Nor can it be denied that some of the bloodiest European wars have arisen out of disputed succes- sion to the government of kingdoms. No educated person is ignorant of the wars of England under the Edwards and Henries, for the crown of France, — or of those horrible thirty years of warfare, which originated in the claim of the Elector Palatine of Bohemia, and which desolated Ger- many till the Treaty of Westphalia, — or of the general dis- traction and prolonged disturbance of the peace of Europe which arose out of the disputed succession to the House of Spain, and was closed by the Treaty of Utrecht. The claim of the sovereign of another nation is rarely without the pretext of support from a party in the country which is the object of his ambition. When Philip II. of Spain seized on Portugal, claiming through a young daughter of King Henry, with whom the male line became extinct in 1580, to the exclusion of the House of Braganza, allied to an elder daughter, he was supported by the alleged free choice of the magnates of Portugal. The unfortunate Elector Palatine was supported in his pretensions to the kingdom of Bohemia by the choice and approbation of the States of the realm. A large party, both in Great Britain and Ireland, were favourable to the claims of the Pretender during the reign of the first two Georges. A similar remark is applicable to the Pretender to the thrones of France, Spain, and Portugal in our own times. CCLXXyi. Testamentary disposition has unquestionably been a mode of territorial acquisition by nations, in the persons of their governors. But it can only be so when the kingdom is proprietary — a state of things which it has been already observed cannot be said now to exist DERIVATIVE ACQUISITION. 327 in Europe ; not even, it is presumed, in Russia ; though it might happen that the nation adopted and ratified the will of the deceased sovereign. The famous will of Charles II. of Spain, made (2nd October, 1700) under the superintendence of the Cardinal Portocarrero his minister, and after receiving the advice of the Pope and of the most learned theologians — that will by which he bequeathed dominions upon which the sun never set, to the second son of the Dauphin of France — is a remarkable instance of the exercise of this power, but one which is not likely to be imitated. In truth, the only sound rule upon the whole subject of these modes of acquisition, either testamento or ab intestato, which can find its place in a work of International Juris- prudence, is this, that the voice of the people of the country, concerning whose government the dispute arises, should, through the legitimate channels of its own constitution, decide the question for itself in such a manner as not to threaten the security of other nations. Conquest, fortified by subsequent treaty, gives a valid International title to territory ; but this subject belongs to a later part of this work. The case of the acquisition of a portion of the dominion of Saxony by Prussia («), in 1814, is so anomalous, that it is impossible to class it under any known or legitimate category of International Acquisition. If it belong to any, it is to that of Conquest and Treaty just mentioned; but, in truth, it belongs to the class of transactions of which we must say, Non ragioniam di lor, ma guarda e passa (6), with, however, a strong protest that no axiom of International Law is to be deduced from an act, which seems, upon all the principles of that jurisprudence, indefensible. (a) See Talleyrand's admirable Memoire raisonne on this subject, Trait, de Dip!., De Garden, t. iii. p. 146. (6) Dante, Inferno, iii. 51. 328 INTERNATIONAL LAW CHAPTEK XV. ACQUISITION OF RIGHTS. CCLXXVII. The property of a State may not only be alienated, but may also be subjected to obligations and services in favour of another State ; as the property of an individual may be burdened and encumbered in favour of another individual («). This may, of course, happen in various ways ; but it most frequently occurs when a State, having contracted pecuniary obligations towards another State, has mortgaged its revenues, or pledged a portion of its territory, as a security for the payment of its debts. Thus, among other instances, the United Provinces of the Netherlands hypothecated Ylissingen, Rameken, and Briel to England, in 1585. Denmark, in 1654, hypothecated the province of Holland to Sweden, as a security for the peace then con- cluded (i). Weimar appears to have been pawned, so to speak, to Mecklenburg in 1803(c), and Corsica by Genoa to France in 1768. We are not speaking now, it will be observed, of debts contracted by States to Individuals (a question to be dealt with hereafter), but to other States. CCLXXVIII. It sometimes happens that the debt be- tween the Government of one country and the Government (a) Giinther, vol. ii. pp. 153-161. Vattel, 1. ii. c. ii. s. 80. Hefftds, p. 133, s, 71. Kliiber, vol. i. s. 140. (h) OuntJier, vol. ii. p. 153. Dwnont, C. dipt. t. v. s. i. p. 454. (o) Martens, Rec. vol. viii. s. 64. lb. p. 229. See, too, SchmamSf C. J, G.j vol. ii. pp. 1140, 1150. ACQUISITION OF KIGIITS. 329 of another is made the subject of a treaty. Sometimes the Government of a third Power guarantees the payment of the debt(^). In 1776 Russia guaranteed a loan of 500,000 ducats contracted by the Polish Government. By the 97th article of the Treaty of Vienna (1815), the maintenance of the credit and solvency of the establishment called the Mont- Napoleon, at Milan, was especially provided for. CCLXXIX. States are sometimes placed in such phy- sical relations to each other, that some limitations of the abstract rights of each necessarily flow from their natural relations, or from the reason of the thing. Thus a State is bound to receive the waters which naturally flow within its boundaries from a conterminous State. This obligation be- longs to the class of " servitutes juris gentium naturales^'' and here the provisions of the Digest [e) and Institutes may be said to be identical with those of International Law (/). CCLXXX. A State may voluntarily subject herself to obligations in favour of another State, both with respect to persons and things, which would not naturally be binding upon her. These are " servitutes juris gentium volun- " tari(E'\g). In the language of Jurisprudence, when a thing is subject to the exercise of a right by a person who is not the master ((/) Vattel, 1. ii. c. xvi. ss. 235-261. Vide post, chapter on Teeattes. Kliiher, ss. 155-157, n. d. Giinther, vol. ii. pp. 243-254, (e) " Semper ha3C est servitus inferiorum prasdioriim ut naUira proflu- entem aquam excipiant." — Dig. xxxix. t. iii. 1. s. 22. (/) Heffters, s. 43 : ^^ Worauf sich unbedenklicli aucli die Vorschriften des romischen Weltrechtes anwenden lassen." {g) J. N. Bertius, in diss, de servitute naturaliter constituta ciwi inter divei'sos populos, turn inter ejusdem reipublicae cives {Prolegom. s. 3, in ejusd. Comment, et Opercul. v. ii. t, iii. p. 66), defines set-vitus as "jus in re aliena, alteri a natura constitutum, cujus vi et potestate dominus istius rei ad alterius utilitatem, aliquid pati aut non facere in suo tenetur."— De necessitate ct usu Juris Gentium, etc. Wiekmd et Foerster, Lipsito, s. xvi. p. 37. 330 INTERNATIONAL LAW. or proprietor, it is said to serve {res servit) or yield service to that other person {h). CCLXXXI. The doctrine of Servitus occupies an im- portant place in the Roman Law ; and in some shape, and under some appellation or other, exists of necessity in the jurisprudence of all nations (i). This obligation to service constitutes a right in the obligee or the person to Avhom it is due, and it ranks among the ''jura in re," while it operates as a diminution and limitation of the right of the proprietor to the exclusive and full enjoyment {lihertas rei) of his property (A). According to the Roman Law, the Servitus consisted either — 1, in not doing something {in non faciendo), and was negative {servitus negativa) ; or, 2, in suffering something to be done {in patiendo), and was affirmative {servitus offirma- tiva) : but it could not consist in the obligation to do some- thing {in faciendo). Not that the owner of a thing might not be obliged to do something in relation to that thing, for the benefit of another person ; but that this obligation assumed a technically different character, and was not a ''jus " in re'' {I). (h) Big. viii. passim. Instit. ii. 3. Cod. iii. t. 34. Domat. 1. i. t. 12, s. 1. Saviyny, Recht des Besitzes, flinfter Absclinitt, p. 575. Mackeldey, Lehrhuch des R. R. 8. 274 u. s. w. Schilling, Pandekten-Recht, s. 446 u. s. w. PiicJda, Instit. s. 252. {i) " Aiissi les servitudes ont-elles ^t^ reconnues partout ou les hommes se sont fix6s d'une maniere permanente en formant des associations durables." — Ahrens, Fhilosophie du Droit, p. 324. " When a thing or property was free from all servitm, it was called 7'es optima maxima.^'' — Dig. 1. t. 16, s. 90, 169. Cicero, De Lege Agrar. iii. 2. (7c) " Cum quis jus suur^i deminuit, alterius auxit, hoc est ei servitutem sedibus suis imposuit." — Dig. xxxix. t. 1, s. 5, 9. (/) " Servitutum non ea natura est id aliquid facial quis (veluti viridaria tollat, aut amoeniorem prospectum prsestet, aut in hoc ut in suo pingat :) scd ut aliquid patiatur aut non faciaV^ — Dig. viii. t. i. s. 15. ACQUISITION OF RIGHTS. S3l It is not, however, necessary to examine with greater mi- nuteness the provisions of the Roman Law upon this subject,, though some mention of the general doctrine was a necessary preface to the application of it to the case of States ; for some States, as well as individuals, have been and are entitled ta exercise rights of this description, and others therefore are and have been subject to the obligations which correspond to them. CCLXXXII. The servitutes juris gentium must, how- ever, be almost always the result either of certain prescriptive customs, or of positive convention. The entire liberty which each State naturally possesses over its own property cannot be curtailed upon presumption. The jus in re aliena is a derogation from the general principle of law, and requires, as a special and extraordinary right, the strictest proof of its existence. CCLXXXIII. History furnishes many examples of these servitutes voluntarice, both as to persons and things. As to persons, the stipulations of various Treaties between England and France provide that the Stuart Pretender should not be permitted to reside in France (m). And when Spain confirmed by Treaty the acquisition of Gibraltar to England, she stipulated that neither Moors nor Jews should be allowed to reside there (w). As to places, there are various instances of servitutes both negative and affirmative, but chiefly of the latter description. Of the negative kind was the engagement of France, the subject once of so much anxiety and so many conventions, that the port and fortifications of Dunkirk should be destroyed (o). British and Dutch Commissioners were empowered by Treaty to superintend the execution of these demolitions, and though ejected in time of war, they (ni) Treaty of Utrecht (1713), between France and England, Art. 4. (n) Treaty of Utrecht, between Spain and England, Art. 10. (o) Traite d' Utrecht (1713), Art. 9. Traite de la Haye (1717), Art. 4. 332 INTERNATIONAL LAW. returned with the restoration of peace, and were only finally- withdrawn, in compliance with the provisions of the Treaty of Versailles, 1783 (p). By the Treaty of Paris, 1814 (q), it was stipulated that Antwerp should be an exclusively commercial port ; and the stipulation was renewed by the Treaties of 1831-39, which erected Belgium into a separate kingdom (r). By the same Treaty of 1831 (5), it was stipulated, nega- tively, that the fortresses of Menin, Ath, Mons, Phillppeville, and Marienburg should be demolished before the 1st of December, 1833 ; and affirmatively, that the other Belgian fortresses should be kept in repair by the King of the Belgians. At one time Holland insisted that the Ostend East India Company, founded in 1723, and abolished by the Treaty of Vienna in 1731, was under a servitus non navigandi{t). The Treaty of Vienna (1815), which reinstated the Pope in the possession of the Marches, Camerino, Beneventum, Ponte-corvo, and the Legations of Ravenna, Bologna, and Ferrara, on the right bank of the Po, subjected his Holiness at the same time to the servitus of suffering Austrian garrisons " dans les places {u) de Ferrare et Commachio." 1 To cite one more instance. In 1856 (March 30), by a convention between England, France, and E-ussia, the latter Power declared " that the Aland Islands shall not be " fortified, and that no military or naval establishment shall " be maintained or erected there " {x). (p) Koch, Mist, des Tr. vol. i. pp. 333-4. See, too, the Treaties of Radstadt and Baden between France and the Emperor of Germany, Arts. 6, 8, 9. (q) Art. 15. (r) Art. 14. (s) AH. 1. \t) Klilber, a. 133, n. c. Ompteda, tit. ii. 600. (m) The real meaning of this term underwent much discussion during the recent wars in Italy. {X) Ann. Reg. 1850, p. 321. i EXTINCTION OF DOMINION. 333 CHAPTER XYI. EXTINCTION OF DOMINION (a). CCLXXXIV. As Dominion is acquired by the combi- nation of the two elements of fact and intention, so, by the dissolution of these elements, or by the manifestation of a contrary fact and intention, it may be extinguished or lost (5). In this case the dominion is lost, actually or by presumption, with the consent of the State which loses it. CCLXXXV. The title of Prescription in another State is often, though not necessarily, founded on the presumed dereliction of the possession by the original owner. It must be borne in mind that this presumption, like all others,is liable to berepelled byproof of sufficient strength(c), that is, by evidence of a state of facts wholly inconsistent with such presumption. On the other hand, it should be observed that there is a conduct, and that there are acts on (a) Grotius, 1. ii. c. ix. — Quando imperia vel dojninia desiniint, 1, iii. c. ix. 9. Martens, t. ii. 1. ix. pp. 340-4. Giinther, vol. ii. p. 213. Heffters, 72. Muhlenhriick, 1. ii. c. iii. s. 270. (h) " Fere quibuscimque modis obligamur, iisdem in contraiium actis liberamur ; quiim quibus modis acquirimus, iisdem in contrarium actis amittimus. Ut igitur nulla possessio acquiri, nisi animo et corpora potest, ita nulla amittitur, nisi in qua utrumque in contrarium actum est:'— Dig. L. 17, 153 ; xli. 2, 8. (c) " Quia vero tempus niemoriam excedens quasi infinitum est mora- liter, ideo ejus temporis silentium ad rei derelictae conjecturam semper sufficere videbitur, nisi validissimcs sint in contrarium rationes." — Grotius, De J. ii. 1. ii. c. iv. s. 7. 334 INTERNATIONAL LAW. the part of a State, which must be construed as an abandon- ment of her previous rights. For instance, a State may make herself a party to some convention upon another matter, but in which the possession or right originally belonging to her is indirectly, though of necessity, treated as belonging to the claimant by prescription ; and such convention being concluded without any reservation on the part of the nation, would be very strong evidence of the abandonment of her right. Again, if a nation suffer other nations in their mutual ar- rangements to deal with the right of possession in question as belonging to one of them, and makes no protest in favour of her claims, she must be held to have acquiesced in the transaction. An individual may indicate his acquiescence by his words or by his deeds. *^ Recusari hgereditas non tantum " verbis, sed etiam re potest, et alio quovis indicio volun- " tatis "(. de Jure Fisc. DOMINION. — POSTLIMINIUM. 337 under a condition which has not been fulfilled on the part of the grantee, then redit dominium ipso jure to the grantor. And in this case it appears consonant to justice that the property should be restored to the grantor with its inter- mediate fruits and revenues, and without the burdens or obligations imposed on it during its temporary ownership, there being, as Jurists say, a dominii resolutio ex tunc (p). CCLXXXIX. The doctrine of Postliminium (q), in the case of States, is borrowed from the Roman Law, and belongs to the time of Peace as well as War, though properly and chiefly to the latter, where it will be further discussed. The jus postliminii, in the sense in which it is now about to be used, means the right of being reinstated in property (r) {p) " Amittimiis etiam dominium, quod sub resolvente conditione ac- quisiveramus, si conditio impletur. Hoc auteni duobus modis fieri potest. Aliquando enim ita resolvitur jus nostrum, ut res nunquam nostra fuisse videatur, turn onera ei a nobis imposita evanescunt, et res cum fructibus et omui causa restituenda est. Hsec rescissio accidit, quoties sub casuali conditione res nobis alienata fuerat, veluti si ager sub lege commissoria emptus, ob pretium non solutum inemptus sit. (Exempla extant in fr. iii. 8. iii. D. 18, 2 (de in diem addictio.) ; fr. iii. D. 20, 6 (quibus mod. pign. vel hyp. solv.), c. iv. C. 4, 54 (de pactis inter emt. et venditor.) Redit dominium ipso jure.) Aliis in causis revocatio dominii in preeteritum tralienda non est ; quo casu res sine fructibus, sed cum oneribus ei a nobis impositis restitui debet. (Exempl. in fr. iii. in f. D. 20, 6 (tit. cit.), fr. iii. D. 18, 6 (de rescind, vend.), c. 2, C. 4, 54 (tit. cit.). Dominium ipso jure non redit, sed tenemur ad rem veteri domino tradendam.) Hodierni illam dominii resolutionem ex tunc : banc vero ex nunc appellare con- sueverunt. Usee maxime turn obtinet, cum res sub potestativa conditione nobis abalienata ersiV^—Wartikdniff, Instit. Jur. Rom. Privati, 1. ii. c. ii. tit. viii. s. 378. (q) Grotius, 1. iii. c. ix., De PostUminio. " Dictum est autem postliminium a limine et 2^ost ; unde eum, qui ab hostibus captus, in lines nostros postea pervenit, postliminio reversum recte dicimus. Nam limina sicut in domibus finem quendam faciunt. Sic et imperii finem limen esse veteres voluerunt. Hinc et limes dictus est, quasi finis quidam et terminus; ab eo postliminium dictum, quia eodem limine revertebatur, quo amissus fuerat." — Inetitut. 1. i. tit. xii. Quibus modis JUS jjatrice potestatis soloitur, s. 5. Bynhershoek, Q. J. P. 1. i. c. xvi., Be Jure PosiUminii varia. (r) Grotius, 1. ii. c. x., JDe ohligatione quce ex dominio oritur; or, according to Barbeyrac's most correct translation, '^ De I'obligation que le droit de propriete impose a autrui, par rapport au proprietaire." VOL. I. Z 338 INTERNATIONAL LAW. and rights which have been accidentally lost or illegally taken away. They must, however, have been at one time actually, and not theoretically (s), possessed, — as was rightly determined in the case of Belgium, which has been already mentioned (t). CCXC. When property, or rights, have been so lost and taken away, it should seem to be the better opinion of jurists, that even a bona fide possessor and purchaser must restore them to the rightful owner (m), — and, moreover, with- out compensation for the expenses which he (the bona fide possessor) may have incurred in purchasing it. He is not even, according to many jurists, following the doctrines of the Civil Law, entitled to the svpsrpa, the inventionis prcemia {x), except, indeed, in cases in which the rightful owner himself must have paid for the recovery of the goods of a friend from the possession of an enemy (y). Salvage on recapture is founded on this principle, and is a part of the Maritime Law, not only of our own, but of all civilized nations. Property recovered from robbers by sea or land falls of course under the same principle. CCXCI. Upon the question, however, whether the bona fide possessor is bound to restore {z), not only the possession, but («) Grotius, 1. iii. c. ix., De Postliminio. (t) Wheaton's Hist pp. 547-555. (u) Grotius, 1. ii. c. x. i. 5, De Ohligatione qucB ex dominio oritur : " Nam ad dominii naturam nihil refert ex gentium an ex civili jure oriatur : semper enim secum habet quffi sibi sunt naturalia, inter quae est obligatio cujusvis possessoris ad rem domino restituendam. Et hoc est quod ait Martianus^Mre gentium condici posse res ab bis qui non ex justa causa possident." {x) Grotius, 1. ii. c. x. : " Quid ergo, si tvptrpa (id est, inventionis prsemia) quae dicunt, petat ? Nee hie videtur furtum facere, etsi non probe petat aliquid." — Dig. xlvii. t. ii. 43, 9, De Furtis. (y) Heineccius indeed thinks this practice " ex regula honesti," but not ''ex regula justi;" because no owner ought "res suas bis emere." — Heinec. in Grot. 1. ii. c. x. 9. (s) " Thou shalt not see thy brother's ox or his sheep go astray, and hide thyself from them : thou shalt in any case bring them again unto thy brother. " And if thy brother be not nigh unto thee, or if thou know him not, DOMINION. — POSTLIMINIUM. 339 the intermediate fruits and profits which he has derived from it, there is some difference of opinion. Grotius and Puffendorf (a) hold that he must restore so much of the fruits of the pro- perty as have increased his fortune, though not the value of that which has been consumed by him upon his actual neces- sities. They found this maxim upon a rule to be found in the Digest: "Jure natures aequum est neminem cum alterius detri- " mento et injuria fieri locupletiorem" (b). The rigid adoption of this rule has led them both into considerable perplexity, and into the necessity of allowing many exceptions from it, chiefly founded on the doctrine of obligations from implied contracts (ex quasi contractu (c) ). It is difficult not to agree with Barbeyrac, that the rule cited is not necessarily appli- cable to any cases of this description {d): " Mais " (he says) " pour ne pas I'etendre trop loin, il faut considerer si celui " qui profite aux depens d'un autre n'a pas un droit de faire " ce profit. Car s'il en a un droit, alors on voit bien que c'est " tant mieux pour lui, et tant pis pour I'autre" (e). The maxim cited from the Civil Law may indeed be opposed by another derived from the same source: " Bona fides tantundem pos- " sidenti praistat, quantum Veritas, quoties lex " (that is, some particular law), " impedimento non est " (/), and that the true rule of International Law is, that the peaceable enjoy- nient of an honest possessor is to be considered as a kind of then thou shalt bring it unto thine own house, and it shall be with thee until thy brother seek after it, and thou shalt restore it to him again."—- Deuteronomy xxii. 1, 2. (a) Grotius, 1. ii. c. x. Puffendorf, 1. iv. c. 13. (&) Be divers. Meg. Juris. Leg. ccvi. And so Cicero says : " Detrahere igitur aliquid alteri, et hominem hominis incommodo suum augere com- modum, magis est contra naturam, quam mors, quam paupertas," &c. — De Offic. 1. iii. c. v. (c) Grotius, ib., and Heineccii Pr cslect :—'' 'Et quae sunt alia hujus generis exempla. Innumera enim in jure universo, maxime in materia de quasi contractibus passim occurrunt." {d) It is the doctrine, however, of English Law. (e) Barheyi'cic on Grotius, t. i. 1. ii. c. x. p, 391 (note 4). (/) Dig. 1. 50, 17, De Div. Reg. Jur. Ant. 13(3. z 2 340 INTERNATIONAL LAW. interregnum which has interrupted the power of the true pro- prietor, but ensures to the putative proprietor the fruits of his management while he was in full authority {g). CCXCII. Giinther seems to admit the position of Grotius, but asserts that the honest possessor may set off the costs of the improvements which he has effected, against the emolu- ments which he has received {h). Heffters takes, in effect, the same view of the matter as Barbeyrac, but without re- ferring to him (i), Heffters founds his opinion upon the position, that the silence of the true proprietor, during the time the honest possessor was in authority, ought to secure to the latter his gains; and Barbeyrac acutely observes, what Thomasius, who followed in the wake of Grotius and Puffendorf, is obliged in his commentary on Huber's work (A) (Z)e Jure Civitatis) to admit, "que, quand il *' s'agit de voir si un possesseur de bonne foi s'est enrichi " par la possession de la chose m-eme, ou par la jouissance *"' des revenus qui en proviennent, c'est un examen sujet a " des difficultes hifinies, et dont on ne pent presque venir " k bout." CCXCIIl. From the practice of nations with respect to this matter in time of peace, but little aid is to be borrowed for either argument. The 13th Article, however, of the Peace of Ryswick, in 1697, though it may be said more properly to refer to indemnification due from a wrong-doer to a lawful owner, may be mentioned her»: " Et in quantum, per aucto- " ritatem Domini Reo^is Christianissimi Dominus Rex Magnae *' Britanniae impeditus fuerit, quominus frueretur reditibus, *' juribus et commodis tam principatus sui Aransionensis quam " aliorum suorum Dominiorum, quae post conclusum Tracta- '' turn Neomagensem, usque ad declarationem prsesentis belli (jr) Bm-heyrac on Puffendorf, De Jure Nat. et Gent. 1. iv. c. xiii» s. 3. lUd. on Grotius, De Jure B. et P. 1. ii. c. x. s. 2. (/i) Giinther, vol. ii. p. 214. {i) Heffters, 73, n. 1. (k) Barbeyrac on Grotius, 1. ii. c. x. p. 391 (notis). I 1 DOMINION,— POSTLIMINIUM. 341 " sub dominatioiie prasdicti Regis Christianissimi fuerunt, ** praadictus Dominus Rex Christianisslmus Regi Magnae " Britanniaa restituit et restitui efficiet realiter cum effectu " et cum interesse debito, omnes istos reditus, jura et com- " moda secundum declarationes et verificationes coram dictis " Commissariis faciendas " (Z). CCXCIV. Property may be taken, without consent, from an individual by an act of the law, and a valid title conveyed to another owner ; so by conquest— ^'wre victorice — followed by treaty, property may be taken from one State and con- veyed to another : but this will be discussed at greater length in another part of this work. CCXCV. Property may also become legally extinct by suffering a change of character, by being placed among things extra commercium, as will be explained in the next chapter. (J) ^chmanssj toI. ii. p. 1113, 342 INTERNATIONAL LAW. CHAPTER XVII. SLAVES AND THE SLAVE TRADE. CCXCVI. There is a kind of property which it is equally unlawful for States as for Individuals to possess — property in men. A being endowed with will, intellect, passion, and con- science, cannot be acquired and alienated, bought and sold by his fellow beings, like an inanimate or an unreflecting and irresponsible thing (a). CCXCVII. The Christian world has slowly but irrevoc- ably arrived at the attainment of this great truth ; and its sound has at last gone out into all lands, and its voice into the ends of the world (b). International Law has for some time forbidden the captive of war to be sold into slavery. Of late years it has made a further step ; it now holds that the colour of the man does not affect the application of the principle. The black man is (a) *' Si vinxero hominem liberum ita ut eum possideam, an omnia qu8B is possidebat, ego possideam per ilium ? Respondit si vinxeris hominem liberum eum te possidere non puto ; quod quum ita se habeat multo minus per ilium res ejus a te possidebuntur ; neque enim rerum natura recepit, ut per eum aliquid possidere possim quem civiliter in mea potestate non habeo." — Di(/. xli. 2, 23, 2. (6) " J'ai dit que d'apres les principes de I'ancienne constitution romaine la propriety des objets les plus pr^cieux, c'est-a-dire des choses mancipi, etait censee provenir de I'Etat. Mais les Chretiens n'avaient jamais cru a cette hypothese — dans leurs principes la ten-e appartenait a Dieu aveo tout ce qiCelle contientj' — Troplon/f, de VInJi. du Christ, sur le Droit civil, p. 131. SLAVES AND THE SLAVE TRADE. 343 no more capable of being a chattel than the white man. The negro and the European have equal rights ; neither is among the " res positce in commercio,^^ in which it is lawful for States or individuals to traffic (c). . Let us cast our eyes for a moment over the progress of International Jurisprudence upon this subject, for upon none has its melioration been more striking, or more advantageous to humanity. It may be considered, first, with respect to the Slavery of the White Man ; and, secondly, with respect to the Dark or Coloured Man. CCXCVIII. First, with respect to the White Man. Byn- kershoek (<^), in one of his last and ablest works, maintains, even in 1737, that as the conqueror may lawfully do what he pleases with the conquered, he may lawfully put him to death : but the right he admits has become obsolete. A corollary to this absolute power of life and death over enemies is the right, according to this author, of making them Slaves. A German potentate, he says, who served in the British Army in Ireland in 1690, is said to have ordered prisoners to be transported to America, for the purpose of being sold as Slaves, and to have been only deterred by a threat of the Duke of Berwick, Commander of the French Army in Ireland, that, as a retalia- tory measure, he would send all his prisoners to the galleys in France. This practice he also admits to have become obsolete amongst Christians (e). But the Dutch, having (c) "Eegula ilia juris naturalis, cognationem inter homines quandam esse a natura, ac proinde nefas esse alteram ab altero Isedi." — Grotius, 1. ii. c. XV. 5, i. id) The Quesstiones Juris Puhlici appeared in 1737, when the author was sixty-four years of age ; he died in 1743. The doctrine referred to in the text is to be found in the third chapter of the first book. " Item ea quae ex hostibus capimus Jure gentium statim nostra fiunt : adeo quidem ut et liberi homines in servitutem nostram deducuntur: qui tamen, si evaserint nostram potestatem, et ad suos reversi fuerint, pristinum statum recipiunt." — Instit. 1. ii. t. i. 17. (e) " Sed quia, ipsa servitus inter Christianos fere exolevit ea quoque non utimur in hostes captos." — Ih. " Sic enim jus gentium de servitute captivorum in bello justo, in 344 INTERNATIONAL LAW. themselves no Slaves, except in Asia, Africa, and America, are, he observes, in the habit of selling the Algerines, the Tunisians, and Tripolitans, whom they take in the Atlantic or Mediterranean, to the Spaniards as Slaves. Bynkershoek certainly did not, by his rather faint ac- quiescence in the desuetude of the custom of making slaves, advance the march of this sound principle of International Law. Grotius had long ago declared (/) that Christendom had abolished this pretended right, as directly at variance with the doctrine of the Founder of their Religion, and remarked, with pious and just exultation, that reverence for the law of Christ had produced that effect for which the teaching of Socrates had laboured in vain. To this prohibition to make captives slaves, like the prohibition to poison the enemy's wells, may be applied his emphatic language with respect to another infamy, — the violation of women, — language which should never be forgotten by those who aspire to render any contribution, however humble, to the great fabric of Inter- national Law {g) — *•' Atque id inter Christianos observari par " est, non tantum ut disciplinae militaris partem, sed et ut ^' partem juris Gentium.^^ CCXCIX. The successful efforts made by Christian ecdesia mutatum est, et inter Christianos id non servatur." — Suai-ez, De iey. ac Deo; Legist. 1. ii. c. xix. It is remarkable that the very able dissertations of Suarez, on Natural, Public, and International Law, are not noticed by Grotius. See same reasoning for the enfranchisement of bondmen in England, Stir Thomas Smithy Commonvjealth of England^ p. 137. (/) It is a noble passage, worthy of its illustrious author : — ^' Sed et Christianis in universum placuit, bello inter ipsos orto, captoa servos non fieri, ita ut vendi posaint, ad operas urgeri, et alia pati quae servorum sunt : merito sane : quia ab omnis caritatis commendatore rectius insti- tuti erant, aut esse debebant quam ut a miseris hominibus interficiendis abduci nequirent, nisi minoris seevitiee concessione. Atque hoc a majo- ribus ad posteros pridem transiisse inter eos, qui eandem religionem pro- fiterentur, scripsit Gregoras, nee eorum fuisse proprium qui sub Romano imperio viverent, sed commune cum Thessalis, Illyriis, Triballis, et Bul- garis. Atque ita hoc saltem, quanquam exiguum est, perfecit reverentia Christiance legis, quod, cum Graecis inter se servandum olim diceret Socrates, nihil impetraverat," — L, iii. c. vii. s. 9. (g) Lib. iii. c. iv. s. 19. BOMBARDMENT OF ALGIERS. 345 Powers to emancipate the ichite Christian from the slavery to which the Infidel Powers of the Levant had too frequently consigned them, seem to claim some notice in this place. Till the beginning of the present century specific Treaties were constantly concluded between the European and Bar- bary Powers, binding the latter to abstain from piratical depredations, to restore prisoners, and to conform to the usages of the civilized world. But it was not till after the pacification of the world in 1815 (Ji) that Great Britain be- stirred herself to the accomplishment of that glorious enter- prise which must for ever entitle her to the gratitude of Christendom. Early in the spring of 1816, Lord Exmouth, the British Commander-in-Chief in the Mediterranean, re- ceived, amongst other instructions, the order to procure, if possible, a general abolition of Christian slavery in Barbary. Lord Exmouth, acting in obedience to these instructions, succeeded in extracting a promise from the Beys of Tunis and Tripoli, that they would not, for the future, make slaves of prisoners of war, but would conform to the practice of European nations (z). The Dey of Algiers pretended that he could not join in this promise without the permission of the Sultan, whose subject he was. Shortly afterwards, out- rages were committed at Algiers upon the British Consul, and at Bona upon the British flag, and abominable cruelties perpetrated upon divers crews of fishing-boats from the ports of Italy. The consequence of these atrocities, and of the Dey's refusal to acquiesce in the abolition of Christian slavery, was the ever-memorable bombardment of Algiers by the British fleet under Lord Exmouth, gallantly assisted by a Dutch squadron under Vice- Admiral Capellen, on the 27 th of August, 1816. (7i) Ann. Reg. 1816, vol. Ixxxv. c. ix. p. 97; Appendix, p, 230, etc. (0 De M. et De C. t. iii. p. 263 : " Declaration du Bey de Tripoli, en date du 29 avril 1816, portant que resclavage des prisonniers de guerre est aboli. Dans les memes termes par le Bey de Tunis, 17 avril 1816." 346 INTERNATIONAL LAW. The destruction of nearly half Algiers, and of the whole Algerine navy, achieved a great triumph for civilization and Christianity. The Dey consented — 1. To the abolition for ever of Christian slavery. 2. To deliver to the British Admiral all slaves in his dominions, to whatever nation they might belong, before the noon of the next day. 3. To deliver at the same time all money received for the redemption of slavery since the beginning of 1816. 4. To make full reparation and a public apology to the British Consul, as will be mentioned elsewhere. In 1830 the French took possession of Algiers, and con- cluded with Tunis and Tripoli treaties (9th and 11th August, 1830) for the abolition of Christian slavery, and a conformity to the civilized usages of commerce and war. In January 1846 the Bey of Tunis addressed a circular to the Consuls of Christendom, announcing the abolition of slavery throughout his kingdom — an act which surely shames the slaveholding States of Christendom (A). CCC. Secondly, with respect to the slavery of the Dark or Coloured Man. Is there really any difference in principle between the two cases ? Can it ever have been a sound position of International Law, that a rule of im- mutable justice and eternal right was rendered inapplicable by the complexion of the person, the region in which he dwelt, or the religion which he professed ? At all events, was this ever a sound position of Christian International Law? The question, it must be admitted, has been an- swered in the affirmative by the decision of Courts of Justice, both in England and North America. According to Lord Stowell, trading in Slaves was neither piracy nor legally {I) criminal. It was sactioned by ancient Qi) Be M. et Be C. t. v. p. 443. (/) The Le Louis, 2 Bodson's Adm. Rep, p. 249. It should be ob- served that this judgment was delivered in 1817. It was in 1818 that SLAVES AND THE SLAVE TRADE. 347 admitted practice, by the general tenor of the laws and or- dinances, by the formal transactions of civilized States, and by the doctrine of the Courts of the Law of Nations. All this was undoubtedly true : but might not all these reasons have been urged at one time in favour of the practice of selling Christian captives into Slavery ? Was there not a time when the practice of nations sanctioned the slaughter of captives by sword or poison, and the violation of women in time of war (m) ? Is not, pace tanti viri, the real question whether, z/the Slave Trade be a crime, any usage, however general, can alter its character ? Are not Natural and Re- vealed Law the primary sources (n) of International Juris- prudence ? and though it be true that much which they in the abstract simply permit {o) is limited or disallowed by the mutual practice of nations, could that practice sanction what the Natural and Religious Law had absolutely forbidden (p) ? Could a Municipal Law sanction homicide or adultery ? the Frencli law finally rendered the Slave Trade illegal.— XocA, Hist, des Tr. t. iii. p. 517. See, however, also the case of Madrazzo v. Willis, in the Court of Queen's Bench, Barneivall and Aldersoii's Repoiis, vol. iii. p. 353. See also The Antelope, Wheaton's Beports (Afnerican), vol. x. p. 66. (m) " Stupra in foeniinas in bellis passim legas et permissa et imper- missa ; atque hoc posterius jus est gentium non omnium, sed meliorum." — L, iii. c. iv. 19. " Nee tempore uUo excluditur potestas occidendi tales servos, id es bello captos, quantum ad jus gentium pertinetj etsi legibus civitatum hie magis, illic minus adstringitur." — L. iii. c. iv. s. x. 2. *' Jus gentium, si non omnium, certe meliorum, jam olim est, ne hostem veneno interficere liceat." — L. iii, c. iv. s. 15. It is true that Grotius says: ^' Sicut autem jus gentium permittit multa, eo permittendi modo quem jam explicavimus, quae jure naturae sunt vetita, ita quaedam vetat permissa jure naturae." — L. iii. c. iv. s. xv. ; of. 1. iii. c. ii. 1 ; 1. ii. c. xvii. s. xix. ; 1. iii. c. i. s. i. ; 1. ii, c. iii. s. x. («) See Third Chapter of this work. (o) " Sed multa quae natura permittit, jus gentium ex communi quodam consensu potuit jaroAeiere." — Grotim, 1. ii. c. iii. s. x. 3. (p) " Jeder Handel und Verkehr, welcher den allgemeinen Menschen- rechten zuwiderlauft, ist geachtet. Niemand hegeht ein Unrecht, wer ihn stort oder vernichtet. Dies ist das Gesetz des Sclavenhandels." — Heffters, s. xxxii. 348 INTERNATIONAL LAW. When Grotius treats of the liability which jure gentium the goods of subjects incur of being seized by the enemy of their Sovereign, he observes, that this liability is not imposed by a rule of Natural, but of International Law, which latter can- not, in this* respect, be said to be at variance with, but rather additional to the former (5'), " non autem hoc naturaj re- " pugnat, ut non more et tacito consensu induci potuerit." Can this be predicated of the Slave Trade ? " No nation," Lord Stowell says (r), " can privilege itself to commit a " crime against the Law of Nations by a mere municipal '' regulation of its own." Can nations collectively privilege themselves to commit a crime against the law of nature, and of Nature's God ? That it was a crime, Lord Stowell thought; for in a yet later judgment (*•), the most questionable, perhaps, which he ever delivered, he said, " It is in a peculiar manner " the crime of this country." Mr. Dana, in his learned and elaborate note (t), points out why, speaking technically and with reference to the practice of the Prize and Municipal Court, the case of The Amedee, in which Sir William Grant delivered in 1807 the judgment of the Lords of Appeal in Prize Causes, was not reversed, or rather contradicted, by Lord Stowell in the case of the Le Louis in 1817. But I think that the opinion of Sir William Grant (and a higher judicial authority can scarcely be cited) supports the general proposition that the Slave Trade must now be deemed a violation of International Law. The judgment is as follows : — " 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 (q) L. iii. c. ii. s. ii. 2. (r) The Le Louis, 2 Dodson^s Adm. Rep. p. 251. (5) The Slave Grace, 2 Haggard's Adm. Rep. p. 128. {t) Dana's TVheatm, p. 208. SLAVES AND THE SLAVE TRADE. 349 " intention. The claimant, however, who is an American, " complains of the capture, and demands from us the re- " stitution 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 considerations very different from " those which belong to it n^w. 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, " difficult to consider the 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 contrary to the prin- " ciples 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 speaking, " I mean that this country has no right to control any " foreign legislature that may think fit to dissent from this " doctrine, and permit to its own subjects the prosecution of " this trade ; but we have now a right to affirm that, prima ^^ facie, the trade is Illegal, and thus to throw on claimants " the burden of proof that, in respect of them, by the *^ authority of their own laws it is otherwise. As the case " now stands, 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 350 INTERNATIONAL LAW. " no property such as he claims. There can, therefore, be " no right to restitution. The consequence is, that the " judgment must be affirmed " (m). CCCI. At all events, the judgment of Lord Stowell in the Le Louis was delivered in 1817. Since that period Inter- national Law has, on this subject, advanced towards, if it have not yet reached, the elevation of Natural and Revealed Law. The tide which had begun to flow when that eminent judge adorned the seat of International Justice has ever since set steadily onwards ; and were he now alive, he must admit that the Slave Trade, tried by some of his own criteria, measured by " the legal standard of morality " («;), is noio a violation of International Law, if it be not, strictly speaking. Piracy. By general practice, by treaties, by the law and ordinances of civilized States, as well as by the immutable laws of eternal justice, it is now indelibly branded as a legal as well as a natural crime (or). I much rejoice to reckon among these States the United States of America. This great boon to suffering humanity would almost justify the remark that if, indeed, there were no other way to its attainment than the recent terrible civil war, even that event was not to be regretted. The abolition of slavery was certainly not the alleged cause or declared object of the war, but was due to the belligerent necessities of the Northern States (y). (m) 1 Acton's Admiralty Meports, p. 240. \v) The lA Louis, p. 249. See also Madrazzo v. Willis, 3 Barnwall and Alderson's Rep. p. 353. (x) Koch, Hist, des Tr. torn. iii. pp. 427, 432, 516, 533, 562, 570, con- tains a useful summary of the Slave Trade from its commencement in 1503 to 1815. Colquhoun's Civil Law, p. 390, s. 413 ', p. 423, s. 476. History of the British Slave Trade. (y) Lord Clarendon, in his despatch of the 6th of November 1869, truly observed : " But in answer to this, we ask how stand the actual facts ? The war waged by the North against the South was not a war against slavery, SLAVE TRADE. 351 CCCII. The eight Powers who signed the Treaty of Paris (1814) engaged to exert themselves for the suppression of this grievous sin, and by an additional article at the Congress of Vienna (z) bound themselves to take the most efficacious measures for securing the entire and definitive abolition of " a scourge which has so long desolated Africa, degraded " Europe, and afflicted humanity " («). CCCIII. By the first additional article to the Treaty of but a war to maintain the Union. If the abolition of slavery had been its object, the Border States would have infallibly sided with the South, and the issue of the contest would probably have been very dif- ferent. In his Inaugural Message in March 1861 President Lincoln said : ' I have no i^urpose directly or indirectly to intei'fere with the institution of slavery in the States where it exists. I believe I have no lawful right to do so, and I have no inclination to do so,' And in a letter written and published by him in the second year of the civil war, the same President said: 'My paramount object in this struggle is to save the Union, and is not eithei- to save or destroy slavery. If I could save the Union without freeing any slave, I would do it; and if I could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving others alone, I would also do that. What I do about slavery and the coloured race, I do because I believe it helps to save this Union ; and what I forbear, I forbear because I do not believe it would help to save the Union.' " — Ann. Reg. 1869, pp. 294-295. (z) Be M. et I)e C. t. iii. p. 476. Report of the House of Lords respecting the African Slave Trade, July 23, 1849. Eeport of the Select Committee of the House of Commons on the Slave Trade Treaties, August 12, 1853. " Whereas that crimitial traffic is still carried on." — Treaty of Wash- ington, August 1842, between Great Britain and the United States. " Dont le trafic honteux a, durant des siecles, fait gemir I'humanite." — Martens, s. 150, b. " In voller und gerechter Anerkennung der Gesinnungen und Grund- satze christlicher Menschenliebe, zur ganzlichen Ausrottung dieses ver- brecherischen Handels mitzuwirken, solle der Negerhandel gleich der Seerduherei bestraft " u. s. w. — Resolution of the German Confederation, June 19, 1845. Be M. et Be C. t. v. p. 30. (a) Koch, Hist, des Tr. t. iii. p. 428, mentions that Denmark, as early as 1794, passed an ordinance for the abolition of slavery in her colonies after a lapse of ten years; that it took effect in 1804, but was not noti- fied to other States. 352 INTERNATIONAL LAW. Paris (1814) France/' unreservedly participating in the senti- " ment of England, with respect to a species of commerce *' opposed to the principles of natural justice ^ and to the en- *' lightened opinions (lumieres) of our time," engaged to co- operate heartily in putting down the Slave Trade (b). In 1818 a royal ordinance carried this resolution into practical effect. .By treaties in 1831 and 1833, Great Britain and France mutually conceded to each other the right of search of suspected vessels within certain localities : by these treaties the captured vessel was to be brought in and tried before the court of the country to which it belonged. France would not, however, consent that her subjects should be amenable to a mixed Commission Court, such as, in the case of Sweden, the Netherlands, and Portugal, had been established by Treaty with Great Britain. In May 1845 a fresh convention was entered into between France and Great Britain, by which each country engaged to keep twenty -two cruisers : but at a conference held in London in May 1849 the number was diminished to twelve, with a condition that, if hereafter requisite, the number should again be increased (c). CCCIV. With regard to Spain, it was not till June 1835 that a Treaty was concluded with Great Britain, which reaUy made effectual the engagements of a Treaty in 1817. In 1853, a select committee of the House of Commons re- ported : " The Brazilian Government have rendered any '^ such measure unnecessary, so far as regards Brazil ; but as " regards Cuba, it is a matter of great surprise, that whilst " Spain is at this time indebted to England and France for *' their efforts to form a tripartite convention with the United *' States, in order to protect Cuba from piratical attacks, the *' Government of Spain should not take warning from the *^' fact that one of the reasons alleged by the Government of *^' the United States for not joining that Convention, is the *' continuance of the Slave Trade in that island." {h) Be M. et Be C. t. iii. p. 20. (c) Hertslet^s Treaties, vol, viii. p. 1061-4. SLAVES AND THE SLAVE TKADE, 353 • Mr. Everett, in his letter, dated Washington, 1st De- cember, 1852, to Mr. Cramp ton, the British Minister at Washington, writes : " I will but allude to an evil of the first " magnitude, I mean the African Slave Trade, in the sup- " pression of which England and France take a lively inter- " est, an evil which still forms a great reproach upon the " civilization of Christendom, and perpetuates the barbarism " of Africa ; but for which, it is to be feared, there is no " hope of a complete remedy while Cuba remains a Spanish « colony "(^). CCC V. The Treaties of Portugal with Great Britain of 1810, 1815, 1817 (which last conceded the right of reciprocal search), of 1825, followed by an official note from Portugal in 1826, acknowledged the obligation and necessity of sup- pressing the Slave Trade, but were nevertheless ineffectual for this purpose throughout the Portuguese Colonies. In 1839, a British Act of Parliament was passed, authorizing British cruisers to seize Portuguese vessels suspected to be Slavers. This Act has been vehemently attacked as a violation of International Law (e); it must of course be considered with reference to the previous Treaties, upon which its authority was founded. But . whatever may be the correct decision upon this point, by a Treaty in July 1842, followed by additional articles in October, a mutual right of search and courts of mixed commission have been conceded. Similar conventions exist between the Netherlands and Great Britain, the last being in February 1837. CCCVI. Great Britain has entered into various negotia- tions with the United States of North America, having for their object the suppression of the Slave Trade ; but they have not been successful in inducing the United States to join in a league with other Powers for this object : the (d) Vide post, note. (e) Wheaton's Hist. p. 605. De M. et Be C. t. v. p. 442. VOL.'I. A A 354 INTERNATIONAL LAW. utmost that has been obtained is to be found in the Treaty of Washington, in August 1842, by which each Power is to maintain a naval force on the coast of Africa, and, if both Governments so order, to act in concert with each other, and to use their efforts to induce the African States, that allow Slave Markets, to close them. The question of the Right of FzszY has been a matter of sore contention between Great Britain and the North American United States : the latter has refused to distinguish it from the Right of Search, which, they justly say, is an exclusively belligerent Right. The British Government, on the other hand, has denied the identity of the two Rights, and has claimed merely to ascertain the nationality of ships hoisting, under suspicious circumstances, the flag of the United States, alleging that when once that nationality is ascertained to be that of the United States, they immediately release, whatever be her cargo or destination, the vessel ; and that it is manifest, that if the mere hoisting a particular ensign (/) was to supersede all inquiry, the Slave Trade might be carried on with impunity (y). This subject has since received an adjustment by the Treaty of the 7th of April, 1862, between England and the United States. The chief provisions of this Treaty are, as Mr. Dana observes : " The right to detain, search, seize, and send in " for adjudication, is confined to cruisers of either Power, '* expressly authorized for that purpose ; and is to be exer- " cised only over merchant- vessels, and only within a distance " of two hundred and twenty miles from the coast of Africa, " and to the southward of thirty-two degrees north latitude. (/) This fact appears to be fully admitted in the Treaty of Wash- ington, 9th article : " Whereas, notwithstanding all efforts which may be made on the coast of Africa for suppressing the Slave Trade, the facilities for carrying on that traffic and avoiding the vigilance of crinsei's hy the fraudtdent use of fags, is so great,'' &c. {g) Whenton's Hist. ss. .33, 34, pp. 585, 749. The subject is very elaborately discussed. SLAVES AND THE SLAVE TRADE. 355 " and within thirty leagues from the island of Cuba, and " never within the territorial waters of either contracting " Power. The right to visit is to be exercised when there " is ' reasonable ground ' to suspect a vessel of having been " fitted out for, or engaged in, the trade. The only trade " referred to is the ^ slave trade upon the coast of Africa,' " or the ' African slave trade.' To secure responsibility and " freedom from vexation, special provisions are made as to " exhibiting written authority, with names of the cruiser and " her commander ; entries on log-books ; requiring the board- " ing officers and commanders of authorized cruisers to be ** of a certain rank in the navy; providing exchange of " notifications between the two Powers of the names of " vessels and commanders employed, and as to the course to ** be pursued in case of convoy, etc. ; and stipulations that *^ each Power will make indemnification for losses to vessels " arbitrarily and illegally detained. As to what shall con- " stitute reasonable suspicion, certain articles or arrange- '' ments found on board are specified as authorizing a bringing " in for adjudication, and as affording protection against " claims for damages, and 2^^ prima facie evidence of being " in the trade, and as authorizing condemnation of the vessel, " unless clear and incontrovertible evidence is adduced that " they were engaged in legal business. Mixed tribunals are " constituted for adjudication upon the vessels, but persons " are to be sent home to their respective jurisdictions to be " tried. Vessels condemned by the tribunals are to be " broken up, unless either Government takes them for its " navy, at an appraisement ; and the negroes found on board " are to be delivered to the State whose cruiser made the " capture, and to be by that State set free "(A). CCCYII. On this subject, of Visit, the stipulations in the Treaty of May 1845, between Great Britain and France, two Powers as jealous as any that exist of national honour (h) Dana's Wheaton, p. 203, note. U. S. Laios, xii, 279. A A 2 356 INTERNATIONAL LAW. * and national right, may be cited as most fair, reasonable, and worthy of imitation (z). The Eighth Article of that Treaty is as follows : — " Whereas experience has shown that the traffic in Slaves, " in those parts of the world where it is habitually carried " on, is often accompanied by acts of piracy dangerous to " the tranquillity of the seas and to the safety of all flags : " and considering at the same time that if the flag carried by " a vessel be prima facie evidence of the national character " of such vessel, this presumption cannot be considered as " sufficient to forbid in all cases the proceeding to the veri- ** fication thereof, since otherwise all flags might be exposed " to abuse, by their serving to cover piracy, the Slave Trade, " or any other illegal traffic, it is agreed, in order to prevent ** any difficulty in the execution of the present Convention, " that instructions, founded on the Law of Nations and on " the constant usage of maritime Powers, shall be addressed " to the commanding officers of the British and French " squadrons and stations on the coast of Africa. The two " Governments have accordingly communicated to eaoh other " their respective instructions, which are annexed to this " Convention." Among other instructions to the cruisers were the follow- ing upon the delicate question of visit: — " You are not to capture, visit, or in any way interfere " with vessels of France, and you will give strict instructions " to the commanding officers of cruisers under your orders " to abstain therefrom. At the same time you will remember " that the King of the French is far from claiming that the " flag of France should give immunity to those who have no " right to bear it, and that Great Britain will not allow ves- " sels of, other nations to escape visit and examination by " merely hoisting a French flag, or the flag of any other na- " tion, with which Great Britain has not by existing Treaty (0 Be M. et Be C. t. v. SLAVES AND THE SLAVE TRADE. 357 " the right of search. Accordingly, when from intelligence " which the officer commanding her Majesty's cruiser may " have received, or from the manosuvres of the vessel, or '' other sufficient cause, he may have reason to believe that '^ the vessel does not belong to the nation indicated by her " colours, he is, if the state of the weather will admit of it, " to go ahead of the suspected vessel, after communicating " his intention by hailing, and to drop a boat on board of her " to ascertain her nationality, without causing her detention, " in the event of her really proving to be a vessel of the " nation the colours of which she has displayed, and there- " fore one which he is not authorized to search ; but should " the strength of the wind or other circumstance render such " mode of visiting the stranger impracticable, he is to require " the suspected vessel to be brought to, in order that her " nationality may be ascertained, and he will be justified in " enforcing it if necessary, understanding always that he is " not to resort to any coercive measure until every other " shall have failed ; and the officer who boards the stranger " is to be instructed merely in the first instance to satisfy " himself, by the vessel's papers or other proof, of her nation- " ality, and if she prove really to be a vessel of the nation " designated by her colours, and one which he is not au- " thorized to search, he is to lose no time in quitting her, " offering to note on the papers of the vessel the cause of his " having suspected her nationality, as well as the number of " minutes the vessel was detained (if detained at all) for the " object in question ; such notation to be signed by the board- " ing officer, specifying his rank and the name of her Ma- " jesty's cruiser, and whether the commander of the visited " vessel consent to such notation on the vessel's papers or not " (and it is not to be done without his consent) : all the said " particulars are to be immediately inserted in the log-book " of her Majesty's cruiser, and a full and complete statement " of the circumstances is to be sent, addressed to the Secretary " of the Admiralty, by the first opportunity direct to England, " and also a similar statement to you as senior officer on the 358 INTERNATIONAL LAW. " station, to be forwarded by you to our secretary, accom- " panied by any remarks you may have reason to make " thereon. The commanding officers of her Majesty's vessels *^ must bear in mind that the duty of executing the instruction " immediately preceding, must be discharged with great care " and circumspection. For if any injury be occasioned by ex- " amination without sufficient cause, or by the examination " being improperly conducted, compensation must be made " to the party aggrieved ; and the officer who may cause an " examination to be made without sufficient cause, or who may " conduct it improperly, will incur the displeasure of her " Majesty's Government. Of course, in cases when the sus- " picion of the commander turns out to be well founded, and " the vessel boarded proves, notwithstanding her colours, not " to belong to the nation designated by those colours, the «* commander of her Majesty's cruiser will deal with her as " he would have been authorized and required to do had she " not hoisted a false flag." At the Congress of Vienna in 1815, of Aix-la-Chapelle in 1818, of Verona in 1822, the abolition of the Slave Trade as a principle of Public Law was formally adopted. Since these periods the principle has been carried into execution by Special Treaties (A) between Great Britain and the different States of Christendom, both in the new and the old world, and also with various Heathen potentates on the southern coast of Africa. Many countries have stamped the character of piracy upon this horrible traffic, so far as the authority of their own Municipal Laws may extend. When the Brazilian Empire became separated from Portugal, it acknowledged itself bound by the Treaties of the latter kingdom : but the Treaties favourable to the abolition of the Slave Trade met with much opposition in the new king- {k) " lis [that is, these Congresses] ont, en principe, adopts son aboli- tion ; depuis des trait^s particuliers sont venus donner la vie a la lettre morte du principe, et fonder U droit internationaiy — De M. ct De C. t, v. p. 437 : Traite des Noirs. SLAVES AND THE SLAVE TRADE. 359 dom. In November 1826 the Brazils adopted the Portu- guese Treaty with Great Britain of 1817, and in 1835 two articles were added to it ; but the trade continued never- theless. In August 1845 a British Act of Parliament (8 & 9 Victoria, c. 122) was passed, declaring Brazilian slavers justiciable in the British Courts of Admiralty. Against this Act the Brazilian Government formally pro- tested, as a violation of International Law (Z). But whoever will read the correspondence between Lord Aberdeen, the then English Foreign Minister, with the Brazilian Government in 1845, will be satisfied that the charge is unfounded (m). A great and most beneficial change has since that period taken place in the councils and policy of the Brazilian Empire, such as, if persisted in, as there is every reason to suppose will be the case, leaves nothing to desire on the part of the British Government. In December 1841 Austria, Prussia, and Russia, the only great Powers who had not before that period entered into Conventions on this subject, concluded a Treaty, which was ratified in February 1842, which placed the Slave Trade in the category of Piracy, and by which they bound themselves to exert every effort for the repression of this abominable offence. CCC VIII. If Great Britain was deeply dyed by her assiento contract and her colonial slavery in this accursed commerce, her worst enemies must admit that she has, since the begin- ning of this century, been indefatigable in her efforts to wipe away the stain. She has made it '* her own cause," to borrow the expression of the great foreign publicists of our day (n). Nor can the disinterested character of her righteous exertions be denied, since the statute of the 3rd & 4th William IV. c. 73, by which she has, at no small risk, and with no common {I) Vide post, the case of the Crown v. Da Serva ; the date of the last trial is February 1845. (m) Report from the Select Committee of the House of Commons on the Slave Trade Treaties, August 12, 1853. {n) De M. ct Be C, " sa propre cause/* t. v. p. 440, and elsewhere. 360 INTERNATIONAL LAW. amount of pecuniary sacrifice, abandoned domestic slavery in her colonies. To be cognizant of the Treaties (o) entered into between Great Britain and other States, is to be apprised of all that have been concluded upon this subject ; to know their con- tents is to be acquainted with the international history of the abolition of the Slave Trade. The Catalogue of them is as follows (p) :■ 1814. January 14 — Marcli 30 — August 28 1815. January 22 — February 8 1817. July 28 — September 23 1818. May 4 1822. November 28 — December 10 — December 31 1823. January 25 1824. November 6 1825. February — April 18 1826. October 2 Treaty of peace with Denmark. „ „ France. „ „ Spain. „ „ Portugal. Declaration signed at the Congress of Vienna. Treaty with Portugal. „ Spain. „ Netherlands. Declaration signed at the Congress of Verona. Treaty with Spain (supplementary article to the Treaty of September 23, 1817). Treaty with the Netherlands (additional article to the Treaty of May 4, 1818). Treaty with the Netherlands. „ Sweden. „ Buenos Ayres or Rio de la Plata. ■ „ Columbia (since divided into three Republics, New Granada, Equator, and Vene- zuela). Treaty with Portugal (engagement of Portugal by an official Note sent to the English am- bassador at Lisbon). (o) " Depuis cette ^poque, les efforts du Cabinet de Saint-James ont 6t6 incessants ; ils ont 6t6 (en point de droit du moins) couronnes par le succes : si la traite n'a pas entierement disparu, le principe de son aboli- tion, toutefois, a 6t^ g^n^ralement adopts : il est inscrit d^sormais dans le code des nations chretiennes, qui, toutes, ont fletri un trafic reprouv^ par I'humanit^, la morale et la philanthropie, — trafic exerc6 trop souvent avec une cruaut^ inouie et avec un barbare mepris pour la race humaine, — trafic auquel les progres de la civilisation devaient fixer un terme, dut sa suppression devenir, pendant quelque temps, une cause de souffrance pour les colonies dans leur culture et leur prosp^rite."— J9e M. et De C. t. v. p. 436. (p) Be M. et De C. t. v. p. 440. SLAVE TRADE. — TREATIES. 361 1826. November 23 — December 26 1831. November 30 1833. March 22 1834. July 26 — August 4 — December 8 1835. June 28 1837. February 7 — June 5 — June 9 — November 24 1838. February 14 1839. January 19 — March 25 — May 24 — July 13 — December 17 — December 23 1840. September 25 — December 16 1841. February 24 — August 7 — December 20 1842. February 19 — July 3 — August 9 1845. May 29 1846. 1848. April 24 — September 4 — September 5 1849. August 1 1850. April 2 1862. April 7 Treaty with Brazil. „ Mexico. „ France. „ France. „ Denmark (her accession to the con- ventions of 1831 and 1833). Treaty with Sardinia (ditto). „ Ditto (additional article to the Treaty of August 8). Treaty with Spain. „ The Netherlands. „ The Confederation of Peru, Bolivia. Treaty with the Hanseatic Towns (accession to the conventions of 1831 and 1833). Treaty with Tuscany (ditto). „ Two Sicilies (ditto). „ Chili. „ Venezuela. „ Rio de la Plata. „ Uruguay (ratified January 21, 1842). Treaty with the Imaum of Muscat. „ Hayti (accession to the conventions of 1831 and 1833). Treaty vrith Bolivia. „ Texas. „ Mexico. „ Bolivia. „ Austria, Prussia, and Russia (ratified February 19, 1842). (See December 20, 1841.) Treaty with Portugal. „ The United States. „ France. „ The King and the Chiefs of Cape Mount (in Africa). Treaty with Belgium. „ Equator. „ Muscat. „ Arabs in the Persian Gulf. „ New Granada. „ United States. The whole matter was thus summed up in a Report of a Committee of the House of Commons : — " The attention of your Committee has been directed, by 362 INTERNATIONAL LAW. " the instructions of the House, chiefly to the state of the " Slave Trade in the Brazils and in Cuba ; in the Colonial ** Possessions of Portugal^ Mozambique on the East, and " Loanda and Angola on the West Coast of Africa ; and " they have also briefly inquired into the state of the other " parts of the West Coast of Africa, along the principal seats "of the Slave Trade. " The great interest which the people of this country have ^* taken in the abolition of the Slave Trade appears in the " very voluminous details laid annually before Parliament " since the year 1815 ; and the Reports of both Houses of " Parliament in the years 1849-50 have rendered it need- ^' less, in the opinion of your Committee, to pursue the in- " quiry beyond the last three years. " By these Reports, it appears that there were, in 1849-50, " twenty-four treaties in force, between Great Britain and " foreign civilized Powers, for the suppression of the Slave " Trade ; ten of which give the right of search and mixed " courts ; twelve give the right of search and national tri- " bunals ; and two (with the United States and France) " grant no right of search, but do contain a mutual obliga- '^ tion to maintain squadrons on the Coast of Africa. There " were also at that time forty-two treaties for the suppres- " sion of the Slave Trade existing between Great Britain *^ and native chiefs on the Coast of Africa. " Since May 1850 two treaties have been concluded with " civilized Governments, under which captured vessels are " to be adjudicated upon by tribunals of their own countries ; " and twenty-three more treaties with native chiefs of Africa " for the suppression of the Slave Trade." The Treaty of 1862 with the United States could not be included in this recital. CCCIX. Nevertheless, the English Law does not yet hold Slave-trading to he jure gentium piracy, and in the case which is about to be cited gave a very extraordinary proof of the jealousy with which it regards any invasion of the strictest provisions, both of International and Municipal SLAVE TRADE. 363 Law, even when the lives not only of British subjects, but of British officers and seamen, are concerned. " On 26th February, 1845, the Felicidade (q), a Brazilian " schooner fitted up as a slaver, surrendered to the armed " boats of H. M. S. Wasp, She had no slaves on board. " The captain and all his crew, except Majavel and three " others, were taken out of her and put on board the Wasp, " On the 27th February the three others were taken out and " put on board the Wasp also. Cerqueira, the captain, was " sent back to the Felicidade, which was then manned with " sixteen British seamen, and placed rmder the command of " Lieutenant Stupart. The lieutenant was directed to steer " in pursuit of a vessel seen from the Wasp, which even- " tually turned out to be the Echo, a Brazilian brigantine, " having slaves on board, and commanded by Serva, one of ** the prisoners. After a chase of two days and nights, the " Echo surrendered, and was then taken possession of by Mr. " Palmer, a midshipman, who went on board her, and sent " Serva and eleven of the crew of the Echo to the Felicidade, " The next morning Lieutenant iS'^wjoor^ took command of the " Echo, and placed Mr. Palmer and nine British seamen on " board the Felicidade in charge of her and of the prisoners. " The prisoners shortly after rose on Mr. Palmer and his *^ crew, killed them all, and ran away with the vessel. She " was recaptured by a British vessel, and the prisoners brought " to this country to take their trial for murder. The Jury ** found them guilty." — A case was reserved for the opinion of the Judges as to the legality of the conviction. The majority of the Judges who were present at the argu- ment (?•) were of opinion that the conviction was wrong, on the ground of want of jurisdiction in an English Court to try an offence committed on board the Felicidade, and that if the lawful possession of that vessel by the British Crown, ((/) The Queen v. Serva and otiiers, Bemson's Crotvn Cases Reserved, vol. i. (1844-1850) p. 104. (r) Ibid. p. 154. 364 INTERNATIONAL LAW. through its officers, would be sufficient to give jurisdiction, there was no evidence brought before the Court at the trial to show that the possession was lawful. This decision must have been founded on the two proposi- tions, thatf jure gentium, the Slave Trade was not Piracy, and that unless it were so, the British Courts had, under the circumstances, no jurisdiction over an offence committed on board the Felicidade. It is impossible, however, to be much surprised, after this trial, and the facts revealed during its pendency, at the statute of the British Parliament in August 1845. CCCX. The illegality of Slavery, however, according to the Municipal Law, has a very important effect upon the international relations of the State in which such law prevails. If the moveable property of the subjects of a State find its way within the limits and jurisdiction of a Foreign State, it may be claimed by and must be restored to the lawful owners. In parts of the American Continent, though no longer in the United States, slaves are, unhappily, by Municipal Law considered as chattels or moveable property ; a slave escapes or arrives in a country where slavery is illegal ; he is claimed by his master ; must he be restored ? Unquestionably not; upon what ground ? Upon the ground that the status of Slavery is contrary both to good morals and to the funda- mental policy. This has been the doctrine of English Law from the date of the famous case of Somersett the negro, in 1771 ; and such it was declared to be in the more recent case of the Creole, The doctrine is not affected by the judgment of Lord Stowell, whether right or wrong, in the case of the Slave Grace ; for that was founded on the alleged principle that the freedom incident to all who touch British soil might be obliterated in the case of a slave, although a British subject or chattel, who returned to the place in which Slavery was legal ; his or her liberty had been (said that great judge) placed " into a sort of parenthesis " {s), («) Haggard! 8 Admir. Bep. ii. p. 131. FUGITIVE SLAVE. 365 CCCXI. The English cases on this subject (t) are few, but clear and quite decisive on the point. The earliest case in which the doctrine appears to have been judicially laid down was that of Shanley v. Harvey, before Lord Chancellor Northington, in 1762. In that case a bill was filed against Harvey, a negro, and others for an account of the personal estate of a deceased person ; and the question turned upon whether Harvey, to whom had been given a sum of money by the deceased on her death-bed, was a free man : he had been brought to England before this event happened. Lord Northington dismissed the bill with costs, observing, " as soon as a man sets foot on English ground he is free " (u). The case {x) next in date was that of Knight the negro, in 1770, tried before the Scotch Court, in which the same principle of law was acted upon. But the leading case is that of Somersett the negro, in 1771. In this case a habeas corpus was granted against a Captain Knowles, to bring up the body of Somersett, who was in his possession in irons, and the cause of his detention. It appeared that Somersett had been bought in Virginia, brought to England by his master, and, on refusing to return, was sent by his master on board Captain Knowles' ship to be carried to Jamaica and sold as a slave. " The only question (Lord Mansfield said) before us is, " whether the cause on the return (to thewrit oi habeas corpus) " is sufficient ? If it is, the negro must be remanded ; if it is " not, he must be discharged. Accordingly the return states " that the slave departed and refused to serve, whereupon he " was kept to be sold abroad — so high an act of dominion must " be recognized by the law of the country where it is used. The " power of a master over his slave has been extremely different (t) See the argument of Mr. Hargrave, before Lord Mansfield, HoivelFs State Trials, vol. xx. p. 1 ; and the judgment in the case of the Slave Grace. A pamphlet by the author on the Case of the Creole, which is mentioned below, contains a summary of these cases. (m) Edens Chancery Reports^ p. 126. (.r) Fcrgussoti on Divorce, App. 39G. 366 INTERNATIONAL LAW. " in different countries. The state of slavery is of such a nature ** that it is incapable of being introduced on any reasons, moral *' or political, but only by positive law, which preserves its force " long after the reasons, occasion, and time itself from whence '* it was ever created is erased from memory. It is so odious " that nothing can support it but positive law. Whatever '^ inconveniences therefore may follow from the decision, I " cannot say this case is allowed or approved of by the law of " England, and therefore the black must be discharged " (y). In 1824 {z) this doctrine was upheld to its fullest extent by the Court of Queen's Bench. A British merchant, of the name of Forbes, was proprietor of a cotton plantation near the river St. John, in the Spanish province of East Florida, on which he employed one hundred Slaves, whom he had legally purchased. In 1815 thirty-eight of these Slaves escaped from their master, and took refuge on board a British man-of-war, commanded by Sir George Cockburn, who, with Sir Alexander Cochrane, was at that time in com- mand of a squadron on the North American station. Spain was in amity with Great Britain, and Mr. Forbes prayed Sir G. Cockburn " to order the said thirty-eight slaves to be " forthwith delivered to him, their lawful proprietor." The Spanish Governor of East Florida made also an application to the same effect. But the Admiral replied, that the Slaves having reached the deck of a King's ship, were become free agents, and that he had no power or right to exercise any control over them. The proprietor, Mr. Forbes, afterwards brought an action against Sir Alexander Cochrane and Sir George Cockburn, in the Court of Queen's Bench at West- minster. The action altogether failed. Upon the trial, Mr. Justice Holroyd said : " Now it appears, from the facts " of the case, that the plaintiff had no right in these persons, " except in their character of Slaves, for they were not serving {y) The Negro case, HoivelVs State Trials, vol. xx. p. 82. (s) The following remarks on the English and French Law on this subject are taken from the pamphlet on tlie Creole, already referred to FUGITIVE SLAVE. 367 " him under any contract ; and, according to the principles of " the English law, such a right cannot be considered as war- " ranted by the general law of nature. I do not mean to say " that particular circumstances may not introduce a legal re- " lation to that extent ; but assuming that there may be such " a relation, it can only have a local existence, where it is " tolerated by the particular law of the place, to which law all " persons there resident are bound to submit. Now, if the " plaintiff cannot maintain this action under the general Law " of Nature, independently of any positive institution, then his *' right of action can be founded only upon some right which " he has acquired by the law of the country where he is *' domiciled Here the plaintiff, a British subject, *' was resident in a Spanish colony, and perhaps it may be in- " ferred, from what is stated in the special case, that by the " law of that colony Slavery was tolerated. I am of opinion *^ that, according to the principles of the English law, the *' right of Slaves, even in a country where such rights are '' recognized by law, must be considered as founded not upon *^ the Law of Nature, but upon the particular law of that ^* country. And, supposing that the law of England would *' give a remedy for the violation of such a right by one British *' subject to another (both being resident in, and bound to obey " the laws of that country), still the right of these Slaves, " being founded upon the law of Spain as applicable to the " Floridas, must be co-extensive with the territories of that " State. I do not mean to say, that if the plaintiff, having the " right to possess these persons as his Slaves there, had taken " them into another place, where, by law. Slavery also pre- " vailed, his right would not have continued in such a place, " the laws of both countries allowing a property in slaves. " The law of Slavery is, however, a law in invitum ; and when " a party gets out of the territory where it prevails, and out " of the power of his master, and gets under the protection " of another Power, without any wrongful act done by the '* party giving that protection, the right of the master, which ** is founded on the Municipal Law of the particular place 368 INTERNATIONAL LAW. " only, does not continue, and there is no right of action ** against a party who merely receives the Slave in that " country, without doing any wrongful act." And the same learned judge further observed : " In this " case the Slaves belonged to the subject of a foreign State. '^ The plaintiff, therefore, must recover here upon what is *' called the comitas inter communitates ; but it is a maxim " that cannot prevail in any cases where it violates the law *^ of our own country, the Law of Nature, or the Law of « God." Chief Justice Best expressed himself, during the trial of the same cause, in the following emphatic language : — *' Slavery is a local law, and therefore, if a man wishes to '* preserve his Slaves, let him attach them to him by affection, " or make fast the bars of their prison, or rivet well their " chains, for the instant they get beyond the limits where " Slavery is recognized by the local law, they have broken " their chains, they have escaped from their prison, and are " free. These men, when on board an English ship, had all " the rights belonging to Englishmen, and were subject to " all their liabilities. If they had committed any offence, " they must have been tried according to English laws. If " any injury had been done to them they would have had a *' remedy by applying to the laws of this country for redress. " I think that Sir G. Cockburn did all that he lawfully " could do to assist the plaintiff; he permitted him to en- ^* deavour to persuade the Slaves to return, but he refused " to apply force. I think that he might have gone further, " and have said that force should not be used by others ; for " if any force had been used by the master or any person in " his assistance, can it be doubted that the Slaves might " have brought an action of trespass against the persons " using that force ? Nay, if the Slave, acting upon his " newly recovered right of freedom, had determined to " vindicate that right, originally the gift of nature, and had '' resisted the force, and his death had ensued in the course of ** such resistance, can there be any doubt that every one who FUGITIVE SLAVE. 369 " had contributed to that death would, according to our laws, " be guilty of murder? That is substantially decided by " Somersett's case, from which it is clear, that such would " have been the consequence had these Slaves been in Eng- ^' land ; and, so far as this question is concerned, there is no " difference between an English ship and the soil of Eng- ^' land ; for are not those on board an English ship as much " protected and governed by the English laws as if they " stood upon English land? If there be no difference in ^* this respect, Somersett's case has decided the present : " he was held to be entitled to his discharge, and, con- " sequently, all persons attempting to force him back into *^ Slavery would have been trespassers, and if death had " ensued in using that force, would have been guilty of " murder. It has been said that Sir G. Cockburn might *' have sent them back. He certainly was not bound to " receive them into his own ship in the first instance ; hut " having done so, he could no more have forced them back " into Slavery than he could have committed them to the deep. " There may possibly be a distinction between the situation " of these persons and that of Slaves coming from our own " islands, for we have unfortunately recognized the existence " of Slavery there, although we have never recognized it in " our own country. The plaintiff does not found his action " upon any violation of the English laws, but he relies " upon the comity of nations. I am of opinion, however, '' that he cannot maintain any action in this country by the " comity of nations. Although the English law has recognized " Slavery, it has done so within certain limits only ; and I " deny that in any case an action has been held to be main- " tainable in the municipal courts of this country, founded " upon a right arising out of Slavery. " When they got out of the territory where they became " Slaves to the plaintiff, and out of his power and control, " they were, by the general Law of Nature, made free, " unless they were Slaves by the particular law of the place " where the defendant received them. They were not VOL. I. B B 370 INTERNATIONAL LAW. " Slaves by the law which prevailed on board the British " ship of war. I am therefore of opinion, that the defen- " dants are entitled to the judgment of the Court." CCCXII. This doctrine, it is right to say, however agree- able to the genius, is not peculiar to the free constitution of Great Britain. In the year 1738, this generous maxim of French juris- prudence was put to its severest ^test in the case of " Jean " Borcaut," a "negre Creole," which will be found reported in the thirteenth volume of the " Causes celebres," the substance of which was as follows : — When France became possessed of colonies in the West Indies, she shared the guilt of Christian Europe in permitting Slavery in her colonies. The first edict by which it was authorized was issued in 1615 ; but, nevertheless, till 1716 the slaves of French colonists became free when they touched the soil of France. A royal ordonnance of that date, the provisions of which were ex- plained and confirmed by one issued in 1738, permitted, under certain provisions ensuring their good treatment and restricting the time of their Slavery, Slaves from the French colonies to be brought by their masters into France without acquiring their freedom. One of the conditions, however, was, that the master should duly register at the first port the arrival of the Slave, the probable time of his stay, &c., &c., according to certain prescribed formalities ; in any case where these conditions had not been literally and strictly fulfilled, the ancient law of France resumed its operation. There had been some omission of these prescribed formalities of registry in the case of the slave Jean Borcaut, who ac- cordingly claimed, and after a trial before " I'Audience " d'Amiraute " obtained, his liberty. In the report of the trial will be found the plaidoyers for the negro, for the Crown, and for the master : and in the speech of the advocate for the master there is this remarkable passage : — " On ne connoit point, il est vrai, cCesclave en France, et " quiconque a mis le pied dans ce Royaume est gratijie de la " liherte. FUGITIVE SLAVE. 371 " Mais quelle est I'application, et quelle est la distinction " du principe ? " Le principe est vrai dans le cas oii tout autre esclave " qu'un esclave negre arrivera dans ce Royaume. " PaQ" exemple, qu\n etranger, qu'un negociant franqois (( dj-fij^e dans ce Royaume avec des sauvages qu'il pretendra " etre ses esclaves; qu\n Espagnol^ qii'un Anglois vienne en ce " Royaume avec des esclaves negres dependans des colonies de " 5a nation ; voila le cas dans lequel par la hi, par le privilege " de la franchise de ce Royaume, la cliaine de Vesclavage se " hrisera^ et la liherte sera acquise a de pareils esclaves. " Voila, le cas dans lequel il faut appliquer Tart. 6 du " Tit. 1, liv. i. des Instituts de LoyseL Voila les cas ou " il faut dire av.ec M. de Rene Chopin, que I'entree dans la " ville de Paris assure le maintien, et devient I'asile de la " liberte. " Lutetiam velut sacro-sanctam civitatem omnibus prcsbere " libertatis atrium quoddam asiliumque immunitatis ^\a). Another instance may be added of the jealousy with which France regarded this partial abrogation of hei* general law in favour of liberty. In 1758, " Francisque," a negro slave bought by his master in Hindostan, was brought by him to France. Fran- cisque claimed his liberty: his master contended that he had carefully fulfilled the formalities prescribed by the " Code " noir ; " it was answered that this law only affected African and American Slaves, and could not be extended to the East Indies. The Slave obtained his liberty {b). The foi'ce of these examples is not Weakened by the reflection that they are furnished by what was at the time an undeniably despotic State. Such was the law in favour of liberty, passed even by an absolute monarchy during what would now be designated the comparatively dark ages. CCCXIII. The same doctrine wae maintained by Poland («) Causes celehres^ torn. xiii. p. §62. {h) Dmisart, Decisions nmivelles, torn. iii. p. 406, tit Negre, n. 45. B B 2 372 INTERNATIONAL LAW. during the period of her existence as an independent king- dom. Wicquefort (c), in that part of his treatise on the func- tions of ambassadors in which he discusses the privileges of their residence, tells the story of a certain Pole who, having left his country and gone into Muscovy, had there sold himself into Slavery, but afterwards, being in Holland, he fled to the house of the Polish Ambassador : " Les Moscovites " en firent tant de bruit, que les estats de Hollande, apres " avoir fait occuper toutes les avenues de la maison, y firent " entrer qu^lques oflficiers et soldats pour faire la recherche " du fugitif. lis n'y trouv^rent personne, et cependant ils " firent cet affront au ministre public du roy de Pologne. Le " Polonois n'estoit point esclave ne du Czaar ; et s'il I'estoit " devenu en allant demeurer en Moscovie,27 recouvra sa liberie " naturelle en mettant le pie dans un pais qui ne nourrit point " (Cesclaves, et ou on ne devroit point sgavoir ce que c'est que " de servitude ou dJesclavage. Les JuriscoJisultes franqois " disent, que Vair de France est si ban et si benin, que des ^' qu^un esclave entre dans le Ro'iaume, mesme a la suite d'un " ambassadeurf il ne respire que liberte, et la recouvre aussi- " tostr CCCXIV. The last occasion upon which an international question of this kind was raised happened in 1841. K brig belonging to a subject of the United States, called tke Creole, of Richmond in Virginia, sailed on the 27th of October, 1841, with a cargo of merchandise, and one hundred and thirty-five slaves, from the Hampton Roads, for New Orleans. During the passage, the Slaves mentioned killed a slave-owner, who resisted their attempt to free themselves, wounded the captain, and compelled the rest of the crew to take the vessel into the port of Nassau in New Providence Island, in possession of the British Crown. On their arrival, the American Consul requested that a guard might be placed to prevent the escape of persons charged with a piratical act : (c) V Amhassadeur et ses Fonctiom, par M. de Wicquefort^ t. i. p. 418. I FUGITIVE SLAVE. 373 the request was acceded to. An investigation was made into the circumstances by two British magistrates, the result of which was, that nineteen persons were imprisoned as being connected with the murder, the remainder being allowed to stay or depart as they pleased. The British authorities further refused to deliver up the nineteen until they should have received instructions to that effect from England. The claim of the Government of the N. A. United States, that the coloured persons, as the slaves were called, should be restored to their master, was not acceded to on the part of the British Government {d). It would only have been necessary to cite, in answer to such demands, the language of Mr. Justice Story : " So the state of Slavery " will not he recognized in any country whose institutions " and policy prohibit Slavery " (e). Bodinus, in his first book, " De Republica " (/), testi- fies that such had been from early times the law and custom of France. He illustrates it by two examples. The first was the case of a Spanish Ambassador who brought with him a Slave in his retinue. The Slave, in spite of all remonstrance, claimed and obtained his free- dom on entering the French dominions. In the second instance, a Spanish merchant happened to touch at Toulon on his w^ay to Genoa, with a domestic Slave among his servants, when " hospes, re intellecta, servo persuasit ut " ad libertatem provocaret ; " the merchant complained that he had bona fide purchased the slave, that he was not bound by the law of France, that he was not resident there, but happened only to touch at a French port on his passage to Genoa, and that at least he ought to be remunerated for the purchase-money of the slave ; but he found that his remon- {d) See pamphlet on the case of The Creole^ already referred to, and opinion of the Law Lords in the House of Lords, February 1842. (e) Story s Conjiict of Laivs, p. 97. See also Mr. Wheaton's Treatise on Intenintional Lav), vol. i. p. 146, exception 2. (/) L. i. de Rep. p. 41. Bod. de Rep. libri sex : Paris, 1586. 374 INTERNATIONAL LAW. stranoe was fruitless, and made a private bargain with his slave for the continuance of his services. CCCXV. The Constitution of the United States re^ cognized the relation of Master and Slave where it existed by the local law of a particular State, but the Convention inserted, at the instance of the Southern States, the following clause : — " No person held to service or labour in one State, under " the law thereof, escaping into another, shall in consequence " of any law or regulation therein be discharged from such " service or labour, but shall be delivered up on claim of " the party to whom such service or labour may be due." Subsequent Acts were passed to give effect to this clause, and the Supreme Court held that laws ma(^ by the States to prevent, or even to assist, the arrest and recovery of fugitive slaves were unconstitutional and void (^). But the law was regarded with increasing disgust by the inhabitants of the free-labour States, and in 1858 Mr,, afterwards President, Lincoln said : " I believe this Government cannot permanently endure " half slave and half free. I do not expect the Union to be " dissolved ; I do not expect the house to fall ; but I do " e:3^pect that it will cease to be divided. It will become " all one thing, or all the other. Either the opponents of " slavery will arrest the further spread of it, and place it " where the public mind shall rest in the belief that it is in " the course of ultimate extinction, or its advocates will push " it forward till it shall become alike lawful in all the States, " old as well as new. North as well as South " (h). In 1865 the atatus of Slavery was formally abolished in the United States. CCCXVI, I may now, therefore, with increased confi- (ff) Prigg v. CommonweaUh of Pennsylvaniay Peters^s R. xvi. 539- 632. (h) The Neutrality of Great Britain during the American Civile War, by M. Bernard, Professor of International Law at Oxford, pp. 24-27. FUGITIVE SLAVE. 375 (lence repeat the opinion expressed in the former edition of this work, that, on the whole, it seems not unreasonable to hope, that before many more years have elapsed, both Municipal and International Law will be brought into harmony with the Law of Nature ; and that, to the question of the abolition both of Slavery and the Slave Trade, the emphatic language of Grotius may be applicable — " Imrnano " generi placuW^ (i). (i) L. ii. c. X. 2, 1. 37 G INTERNATIONAL LAW. CHAPTER XVIII. KIGHT OF JURISDICTION OVER PERSONS. CCCXVII. We have now to consider the right incident to a State of absolute and uncontrolled power of jurisdiction over all Persons, and over all Things, within her territorial limits, and, as will be seen in certain specific cases, without them. CCCXVIII. First, as to the Right of Territorial Juris- diction over Persons : they are either 1. Subjects, or 2. Foreigners commorant in the land. CCCXIX, 1. With regard to the jurisdiction and au- thority of States over their own proper subjects, no doubt can be raised ; under the term subject may be included both native and naturalized citizens. With respect to native citizens, the right of which we are speaking is mani- festly essential to the independence of the State. " Sane <' (Grotius observes) ex quo civiles societates institute) sunt, " certum est rectoribus cujusque speciale quoddam in suos ** jus quassitum " (a). The native citizens of a State are those born within its dominions (i), even including, according to the law of Eng- land (c), the children of alien friends. So are all those born on board the ships of the navy, or within the lines of the army, or i^ the house of the Ambassador, or of the Sove- (rt) L. ii. c. XXV. 8. {h) Gimthcr^ vol. ii. p. 261. (c) Stephen^ s {Blachstone' s) CotmnentarieSy vol. ii. p. 4. Calvin^'s cuae, 7 CoJfe'fi RepwU^ 18 a. RIGHT OF JURISDICTION OVER PERSONS. 377 reign (d) if he should happen to be sojourning in a foreign country. Every State has an undoubted claim upon the services of all its citizens. Every State has, strictly speaking, a right of prohibiting their egress from their own country (e), a right still exercised by some of the continental Powers of Europe. These rights are subject to no control or directions as to their exercise from any foreign State. CCCXX. Every State has a right of recalling {jiis avocandi) its citizens from foreign countries (/), especially for the purpose of performing military services to their own country. Great difficulty, however, necessarily arises in the enforcement of this right. No foreign nation is bound to publish, much less enforce, such a decree of revocation. No foreign State can legally be invaded for the purpose of forcibly taking away subjects commorant there. The high seas, however, are not subject to the jurisdiction of any State; and a question therefore arises whether the State seeking its recalled subjects can search for them in the vessels of other nations met with on the high seas ? This question, answered in the affirmative by Great Britain, and in the negative by the United States of North America, has led to very serious quarrels between the two nations (^) — quarrels which it may be safely predicted will not arise again. For I cannot think that it would be now contended that the claim of Great Britain was founded upon Inter- national Law. In my opinion it was not. {d) Vide post. (e) " Solet hie illud qiiaeri; an civibus de civitate abscedere liceat, venia non impetrata. Scimus populos esse ubi id non liceat, ut apud Moschos : nee negamus talibus paetis iniri posse societatem civilem, et mores vim pacti accipere." — Grot. 1. ii. c. v. 24. Wheaton, Elem. torn. i. p. 135. (/) Gunther, vol. ii. p. 309. Heffters, s. 59. (g) See correspondence between Mr. Webster and Lord Ashburton. Wheatoii's Hist. p. 737, &c. Vide post, as to jurisdiction over sliips of war, and merchant vessels in foreijrn harbours. 378 INTERNATIONAL LAW. CCCXXI. 2. It has been said that these rules of law (/i) are applicable to naturalized as well as native citizens. But there is a class which cannot be, strictly speaking, included under either of these denominations, namely, the class of those who have ceased to reside in their native country, and have taken up a permanent abode (domicilium sine anirno revertendi) in another (i). These are domiciled inhabitants ; but they have not put on a new citizenship through some formal mode enjoined by the law of the new country. They are de facto though not de jure citizens of the country of their domicil (A). CCCXXII. It was a great maxim of the constitutional policy of ancient Rome not to allow her citizenship to be shared with that of any other State (/). A diiferent custom prevailed in Greece and in other States; but the Roman citizen who accepted another citizenship became ipso facto disfranchised of his former rights. CCCXXIII. It is sometimes said that a different rule pre- vails in modern times, and that a man can be at one and the same time the citizen of two States (m). In truth, however, this must depend upon the civil policy and domestic regula- tions of each State. But it is true, as a general proposition, that a man can have only one allegiance (n). The State (A) Story, Conjlict of Laivs, s. 48, c. iii. ,• tb. a. 540, c. xiv. FcbUx^ 1. i. t. i. s. 2, Du Changement de Nationalite. HeffterS) s. 58. Colquhoun's avU Laiv, s. 393, vol. i. p. 377 ; ih. s. 389, p. 373. Giinther, vol. ii. p. 267. ({) Vide post, chapters on Domicil, under Comity. Vattel, 1. i. c. xix. s. 211, &c. (k) See a later part of this work, on Comity, for further remarks on Domicil. (J) Vide Cicer. Orat. pro Balbo, passim, especially s. 12. See ZoucMs remarks thereupon, p. 2, s. ii. xiii. De Jure Feciali. (m) Heffters (s. 59) maintains this ground in opposition to Zouche, cited above. Giinther, vol. ii. p. 325, Einheimischen. (n) The law is laid down with great perspicuity by Zouche. Speaking of a decision of the French tribunal on a question of Domicil, and BIGHT OF JURISDICTION. — DOMICILED PERSONS. 379 may, as Russia has done, forbid her subjects to be domiciled elsewhere, or may permit it as England has done ; but in either case, if a collision between the two allegiances, so to speak, should arise, the latter would be obliged to yield to the former. For instance, if the two countries were at war, the citizen who was taken in arms on behalf of the country of his naturalization against the country of his birth would, strictly speaking, be guilty of treason. In these times, pro- bably, most States would take into consideration the length of time during which the new domicil had been acquired, whether offences against the original State were to be punished, or her protection invoked by her long-absent citizen. CCCXXIV. All strangers commorant in a land owe obedience, as subjects for the time being (subditi temporanei), to the laws of it. The limitation sometimes incident to this proposition will be stated in a subsequent section, in which the right of protecting subjects in a foreign land is discussed. CCCXXV. Naturalized foreigners are in a very different position from merely commorant strangers {o). It has been the policy of wise States, it was especially the policy of Rome, to open wide the door for the reception and naturali- zation of foreigners {jp). vindicating it from the charge of private partiality, lie says : " Fortassis vero id respexerunt, quod qiiamvis ineolatus et Domicilium in extemo regno sufficiunt ad constituendum aliquem suhditum Jurisdictioni et prce- standis muneribus ohnoxium non tamen sit satis ad constituendum Civem, ut eorum privilegioruni civilium sit particeps quae in regno natis com- petunt nisi specialis allectio supervenerit." — De Judicio inter Gentes, pars ii. s. ii. 14. (o) Gunther, vol. ii. pp. 267, 316, n. e. (p) " Illud vero sine uUa dubitatione maxime nostrum fundavit impe- rium, et populi Homani nomen auxit, quod princeps ille, creator hujus urbis, Romulus fcedere Sabino docuit, etiam bostibus recipiendis augeri banc rempublicam oportere : cujus auctoritate et exemplo nunquam est intermissa a majoribus nostris largitio et communicatio civitatis." — Cic^ pro L. Corn. Balho. " Male qui peregrinos urbibus uti prohibent, eosque exterminant, ut Pennus apud patres nostros, Papius nuper." — De Of, 1. iii. e. xi. 380 INTERNATIONAL LAW. Naturalization is usually called a change of nationality. The naturalized person is supposed, for the purposes of protection and allegiance at least, to be incorporated with the naturalizing country. This proposition is, generally speaking, sound; but it must admit of one qualification similar to that already men- tioned with respect to the domiciled subject, if the naturalized person should have been the original subject of a country which did not allow him to shake off his allegiance (exuere patriam). In this event, if he should find himself placed in a situation — the breaking out of war, for instance— in which his duties to the country of his birth and of his adoption are at variance, the former country would not regard him as a lawful enemy, but as a rebel ; nor could the jus avocaiidi already spoken of be legally denied to her by the adopting or naturalizing country, though the enforcement of the right could not be claimed. Banishment itself does not destroy the orio^inal tie of alleo:iance. The Letter of Sir L. Jenkins, from Nimeguen, to Sir William Temple, at the Hague, contains the opinion of a most careful, learned, and practical jurist upon this question. " My Lord, " To the question you were pleased to send me, about the three " Scotchmen, and the objection of the States to your memorial^ that after " a sentence of banishment, the allegiance of a subject is extinguished; " I have this with submission to oifer, that there are several things in " the Practice of Nations (which is the law in the question) that make '' it impossible for subjects, in my poor opinion, to renounce or divest " themselves of the allegiance they were born under. " For instance, no subject of our master's (we'll put the case at home) " can by the Law go out of his dominions without his leave ; nor is " this leave, whether it be expressed or by implication (as in the case " of merchants and sea-faring men), granted, but there is a time always " supposed for his return ; I mean when the King had need of his " service ; and in the case of every man of quality it is always prefixed. " Besides there is no doubt, and we see it is a frequent practice in Eng- *' land, France, &c., to call back the subjects from foreign services and " residences within a time prefixed, and that upon pain of death ; in ^' which case, if they return not, the pain is well executed upon them, " (provided they lie not under any impediment), if they afterwards f^dl " into the hands of their master : and 1 think the Court of Constable I JURISDICTION OVER NATURALIZED PERSONS. 381 " and Marshal in England would be the proper judicature in such a " case. " 2. Though my Prince should give his leave to settle myself for " instance, in Siveden, and that I should purchase and have land given " me in Siveden, upon condition, and by the tenure of following the *' King in his wars ; if my king should afterwards have a war with " Sweden, that king cannot command me to follow him against my " natural and original master. The reason of it is, he cannot command "me to expose myself more than his own natural-born subjects do; " which yet would be my case, if I should appear with him in the field " against my Natural Liege Lord ; into whose hands, if I should happen " to fall alive, he would have a right to punish me as a traitor and a " rebel, and put me to the torture and ignominy of his laws at home, " which he cannot pretend to do when he takes those that are not his " born subjects, nor inflict anything upon them but what is agreeable to " the permissions of war. " 3. Nay, which is more, in the case of Reprisals, if I live in Sweden^ " a Burgher, Officer, or what you please, and a Dane, for instance, hath " Letters of Reprisals against the English nation, if my goods fall into " the Dane's hands, they are lawful prize, though I be never so much *' habituated in Siveden ; unless it proves, that I am so transplanted " thither cum pannis, thai I have neither goods nor expect i)iQm.m England, " and have resolved never to return thither; which is an exception that " some learned men allow of, but not all : these things show that tlie " quality of a natural-born subject is tied with such indissoluble bonds *' upon every man, that he cannot untie all by any means. '' I am, &c., "L. JENKINS "(y). CCCXXVI. A change (r) of nationality is effected by the operation of the law upon the acts of the individual. The wife by her marriage acquires the nationality of her husband ; the naturalization of the husband carries with it, ipso facto, that of the wife. " C'est la consequence du lien " intime qui unit les epoux, consacre par toutes les legisla- " tions, et passe ainsi en principe du droit international " (5). {q) Life of Jenkins, vol. ii. p. 713. (r) Vide post, chapters on Domicil, under Comity. F(Blix, 1. i. t. i. s. 2. My obligations to this work are very great, though in the present instance there is a departure from the division of the sub- ject adopted by its erudite author; of whose untimely death, during the progress of this work, I have heard with sincere regret. (.s) Ecolix, ib. s. 40. 382 INTERNATIONAL LAW. Upon the same principle, the naturalization of the father carries with it that of his minor children ; and M, J^celix is of opinion that the naturalization of a widow has the same effect upon her minor children (^). It is clear that in neither case are children, majors by the law of the land of their birth, affected by the act of their parents. CCCXXVII. A collective naturalization of all the inha- bitants is effected when a country or province becomes incor- porated in anothercountryby conquest, cession, or free giii{ii). Under the old law of France, the Dutch and Swiss and other nations had, by virtue of Treaties, the rights of natives {indigenatus) ; and by the Bourbon Family Compact of 1761, a similar privilege was conceded to Spanish subjects. CCCXXVIII. The laws of France since 1790 have con- tained a variety of provisions upon the means of acquiring and losing naturalization (^x). By the law now in force, a Frenchman loses his native character by naturalization, or by accepting office without the permission of the State, in a foreign country, or by so establishing himself abroad as to evidence an intention of never returning to his country. He may, however, at any time recover his native character by renouncing his foreign office and domicil, and making due application to the State (y)» (0 Fcslix, 1. i. t. i. s. 41. (m) Giinther, vol. ii. p. 268, n. e. (x) FcbUx, 1. i. t. i. s. 2. {y) Code civil, 1. i. t. i. c. ii. (Be la Privation des Droits civils) s. 17 : '^ La qualite de Fran9ais se perdra : — 1. Par la naturalisation acqiiise en pays etranger; 2. Par I'acceptation, non autoris^e par le roi, de fonc- tlons publiques confer<§es par un gouvernement etranger ; 3. Enfin, par tout 6tablissement fait en pays etranger, sans esprit de retour. " Les etablissemens de commerce ne pourront jamais etre consideres comme ayant 6td faits sans esprit de retOur. 18. " Le Fran9ais qui aura perdu sa qualite de Fran^ais pourra tou- jours la recouvrer en rentrant en France avec I'autorisation du roi, et en declarant qu'il veut s'y fixer, et qu'il renonce a toute distinction con- traire a la loi fran^aise." NATURALIZATION. 383 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 con- ferring these rights upon an individual who has been pre- viously authorized, after ten years' residence within the empire, to exercise a profession. Mere admission into the military service does not bring with it naturalization. Emi- gration 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. 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 any stranger who satisfies them as to his good conduct and his means of existence. Certain exceptions are made with regard to Jews, to subjects of another State be- longing to the Germanic Confederation, to minors, and to persons incapable of disposing of themselves. The same rule as in Austria applies to the emigrant. The wife of a Prussian citizen acquires citizenship by her marriage (2"). In Bavaria, by the law of 1818, th.^ jura indigenatus are acquired in three ways : — 1. By the marriage of a foreign woman with a native. 2. By a domicil taken up by a stranger in the kingdom, who at the same time gives proof of his freedom from per- sonal subjection to any foreign State. 3. By royal decree. The Bavarian citizenship is also lost in three ways : — 1. By the acquisition, without the special permission of the king, of jura indigenatus in another kingdom. 2. By emigration. 3. By the marriage of a Bavarian woman with a stranger. (z) Fcelix, 1. i. t. i. s. 2. 384 INTERNATIONAL LAW. In the kingdom of Wurtemherg, a stranger must belong to a commune in order to acquire citizenship, unless he be nominated to a public function. The citizenship is lost by- emigration authorized by the Government, or by the ac- ceptance of a public office in another State. CCCXXIX. In the kingdom of the Netherlands the power of conferring naturalization rests with the Crown by the 9th and 10th articles of the Fundamental Law of 1815. CCCXXX. In Russia, naturalization is eifected by taking an oath of allegiance to the Emperor ; but naturalized strangers may, at any time, renounce their naturalization and return to their country. In the TJnited States of North America, the constitution confers on Congress the power to establish a uniform rule of naturalization («) ; and it has been held by the tribunals of the highest authority in that country, that the power so vested in Congress is exclusive, and that it cannot be exer- cised by any one of the Federal States. In 1868 the United States passed an Act of Naturaliza- tion, in which, among other things, it was enacted, " That " all naturalized citizens of the United States, while in " foreign States, shall be entitled to and shall receive pro- " tection of persons and property that is accorded to native- " born citizens in like situations and circumstances. ** And whenever it shall be duly made known to the Pre- '' sident that any citizen of the United States has been " arrested, and is detained by any foreign Government in " contravention of the intent and purposes of this Act, upon " the allegation that naturalization in the United States " does not operate to dissolve his allegiance to his native (a) Vide suprh, ch, v. cxix. 1 Kent, p. 422, pt. 2, 1. xix. (5). 2 Ih. p. 50, uniform rule of naturalization established by Act of 1802. 2 Dallas, Rep. 370. 3 Washington Circuit Rep. 313. 2 Wheaton's Rep. 2G9. 5 JVheaton's Rep. 49. 2 Kent, 63. NATURALIZATION. 385 " Sovereign, or if any citizen shall have been arrested and " detained, whose release upon demand shall have been un- " reasonably delayed or refused, the President shall be and *' hereby is empowered to suspend in part or wholly com- " mercial relations with the said Government, or, in case no " other remedy is available, order the arrest, and to detain " in custody, any subject or citizen of the said foreign Go- " vernment who may be found within the jurisdiction of i the " United States, except Ambassadors and other public " Ministers, and their domestics and domestic servants, and " who has not declared his intention to become a citizen " of the United States ; and the President shall, without " delay, give information to Congress of any such proceed- " ings under this Act " (&). CCCXXXI. In Great Britain, the Law relating to Naturalization is governed by a recent statute (c), which provides for the status of Aliens in the United Kingdom, and contains provisions which enable, for the first time, a British subject to renounce allegiance to the Crown, and also to resume his British nationality ; also with respect to the National status of married women and children. The statute also gives power to the British Colonies to legislate with respect to naturalization, such legislation, however, being subject to be confirmed or disallowed by the Crown. This important statute will be found printed at length in the Appendix to this volume. It may be well to observe that a foreigner naturalized in a British colony is generally entitled to the protection of the British Government beyond the precincts of that colony, (6) Ann. Beg. 1868, p. 250. This strange reprisal, after the fashion of the First Napoleon, of seizing and imprisoning innocent foreign subjects, is novel in modem public law. It would be equivalent to a declaration of war against the State to which the subject belonged. No State has a right to dissolve the relations of native allegiance between a foreign subject and his State without that State's consent. (c) 33 Vict. ch. xiv., An Act to amend the Law relating to the legal condition of Aliens and British Subjects, May 12, 1870. VOL. I. C C 386 INTERNATIONAL LAW. but not if he be at the time of invoking such protection in the State in which he was born. CCC XXXII. A great difficulty has arisen with respect to the legal status of liberated Africans, who reside and trade and acquire property in the British territory at Sierra Leone; but who, not being naturalized subjects, frequently commit with impunity the offence of buying and selling slaves without the boundary of the territory. An ordinance passed the legis- lature of Sierra Leone (June 8, 1852) " to secure and confer *^ upon liberated Africans the civil and political rights of " natural-born British subjects ; " but it was disallowed by the Crown of England, as it would appear, upon the ground that, by the instrumentality of Treaties more amply worded with the African chiefs, the provisions of the stat. 6 & 7 Victoria, c. 98, might be made applicable to liberated Africans, though not British subjects, within the Queen's territories {d). CCCXXXIII. The Right of Jurisdiction (e). Civil and Criminal, over all Persons and Things within the territorial limits, which is incident to a State relatively to its own subjects and their property, extends also, as a general rule, io foreigners commorant in the land(/ ). This subject has been (d) See Pnpe7's relative to the rights of liberated Africans, and the pre- vention of Slave-dealing at Sierra Leotie ; laid before Parliament, August 12, 1853, p. 30, &c. (e) " Ad gubernationem populi moraliter necessarium est, ut qui ei vel ad tempus se admiscent, quod fit intrando territorium, ii conformes se reddant ejus populi institutis." — Grotius, 1. ii. c. ii. s. v. p. 191. "Pro subjectis imperii habendi sunt omnes qui intra terminos ejusdem reperiuntur, sive in perpetuum sive in tempus commorantur." — Iluberus, de Cmfictu Legum, 1. i. t. iv. s. ii. "In regard to foreigners resident in a country, although some jurists deny the right of a nation generally to legislate for them^ it would seem clear upon general principles that such a right did exist." — Story, Con- flict of Laws, 8. 641. Wheaton, Elhn. t. i. p. 2, c. ii. pp. 137-8. See Correspondence betiveen some of the Continental Poioers and Great Britain respecting the Foreign Refugees in London, presented to both Houses of Parliament by command of her Majesty, 1852. Be delictis Peregrinorum, eaque puniendi ratione (Diss. Jurid. Inaug.) : Homan, Groning. 1823, p. 33, &c. (/) The Peninsular and Oriental Company v. Shand, ♦S Moore's P. C. Pep. N. S. pp. 390-1. RIGHT OF JURISDICTION OVER FOREIGNERS. 387 already touched upon under the title of Eight to Self- Preservation, and will be again considered in the chapter on Extradition. CCCXXXIV. With respect to the administration of Criminal Law, it must be remembered that every individual, on entering a foreign territory, binds himself by a tacit con- tract to obey the laws enacted in it for the maintenance of the good order and tranquillity of the realm {g), and it is manifestly not only the riglit, but the duty 0^*^. State to protect the order aiid safety of the society en^iHisted to its charge, equally against the offences of the foreigner as of the native (Ji). This proposition, it should be observed, must not be confounded with another, namely, the alleged right or duty of a State to punish a citizen for an offence committed without its territory, — this is a proposition of Municipal, the {g) " Quare etiamsi peregrinus cum cive paciscatur, tenebitur, illis legi- bus, quia qui in loco aliquo contraliit, tanquam suhditus temjjorarius legi- bus loci subjicitur." — Orotius,\. ii. c. xi. 5, 2. " Quia actiones peregrinorum quamdiu in alieno territorio versantur, vel commorantur, subjacent legibus loci in quo sunt, si peregrini in ter- ritorio alieno delinquunt juxta leges loci puniendi sunt." — Wolff, Jus Gent. s. 301. Vattel, 1. c. 8, 101. Rocco, Deir TJso delle Leggi delle Due Sicilie, p. 161. Martens, s. 99. Kluber, s. 62. Masse, Le Droit commerc, etc. : Devoir des Strangers, t. ii. p. 53, (h) Martens, a. 97. Tittman, Die Strafrechtspjlege in vblkerrechtlicher Rucksicht, 11 (Dres- den, 1817). Feuerhach, Lehrhuch, 31. Portalis : " Chaque Etat a le droit de veiller a sa conservation, et c'est dans ce droit que reside la souverainet(5. Or comment un Etat pourrait- il se conaerver et maintenir, s'il existait dans son sein des homrnes qui pussent impunement enfreindre sa police et troubler sa tranquillity' ? Le pouvoir souverain ne pourrait remplir la fin pour laquelle il est etabli, si des hommes <5trangers ou nationaux etaient independants de ce pouvoir. II ne pent etre limite, ni quant aux cboses, ni quant aux personnes. II n'est rien s'il n'est tout. La qualite d'etranger ne saurait etre une excep- tion legitime pour celui qui s'en prevaut contre la puissance publique, qui rggit le pays dans lequel il reside. Habiter le territoire, c'est se soumettre a la souverainet^." — Code civ. : suivi de Texpose des Motifs, t. ii. p. 12. CO 2 388 INTERNATIONAL LAW. other is one of International Law. The strict rule of Public Law undoubtedly is, that a State can only punish for offences committed within the limits of its territory : this is," at least, the natural and regular consequence of the territorial principle. Nevertheless it is a pretty general maxim of European Law, that offences committed against their own country, by citizens in a foreign country, are punishable by their own country when they return within its confines. It is, however, clearly within the competence of the State, within whose territories the offence has been committed, to punish the offender, and especially if the offence has not been of a public character against the foreign State, but of a private character against a brother citizen of the offender. But in cases of a public character, a double offence is committed; one against the State of which the offender is a subject, another against the general law of the land within which the offence is devised and perpetrated. There is a maleficiorum concursus. Whether the State of the offender will punish him after he had been punished by the State within whose limits he committed the offence, is, as indeed the whole question is, a matter of Public rather than of International Law (z). The French Law, as a general maxim, holds that penal justice is confined within territorial limits, but with the following exceptions (J) : — I. If the offence be against the (i) H. A. M. Van Asch Van Wi/ck, De delictis extra Regni territoriuni admissis. Cf. prcssert. cap. i. s. 4, cap. ii. s. 3, cap. iii. s. 3. (Utrecht, 1839.) (J) " 5. Tout FranQais qui se sera rendu coupable, hors du territoire de France, d'un crime attentatoire a la surete de I'Etat, de contrefaction du sceau de I'Etat, de monnaies nationales ayant cours, de papiers nationaux, de laillets de banque autorises par la loi, pourra etre poursuivi, jug^ et puni en France, d'apres les dispositions des lois franfaises " (1.7,24). " 6. Cette disposition pourra etre 6tendue aux etrangers qui, auteurs ou complices des memes crimes, seraient arretes en France, ou dont le gouvernement obtiendrait I'extradition " (I. 24). " 7. Tout Fran9ais qui se sera rendu coupable, hors du territoire du royaume, d'un crime contre un Fran^ais, pourra, a son retour en France, y etre poursuivi et juge, s'il n'a pas ete poursuivi et jug^ en pays stran- ger, et si le Fran9ais offense rend plainte contre lui " (I. 24). French Code. •' Code d^ Instruction criminelle,^^ p. 1. RIGHT OF JURISDICTION OVER FOREIGNERS. 389 welfare and safety of the State, whether it has been com- mitted by a Frenchman or a foreigner. II. With respect to private offences in cases where the following conditions are combined : — • 1. That the offence be of sufficient gravity to constitute a crime. 2. That it has been committed by a Frenchman against a Frenchman. 3. That the offender has returned to France. 4. That he has been indicted in France by the injured party. In the United States of North America, and in the British dominions, the rule of confining penal justice to the terri- tory in which the offence has been committed (k) has been most rigidly adhered to. But the latter country has so far relaxed the severity of her adherence to this strict rule of International Law as to allow crimes of murder and man- slaughter committed out of England, when both the offender and the offended are subjects of the British Crown, and when this fact has been averred in the indictment, to be tried in England. Whether they must be British-^or/z subjects appears to be a doubtful point; but, in spite of one decision in the affirmative, the better construction of the statutes affecting this matter would appear to be, that a foreigner, owing allegiance in return for protection, would be within the scope of their provisions (Z). All indictable offences committed within the Admiralty Jurisdiction, that is, on the high seas, are offences of the same (k) "Delicta puniuntur juxta mores loci commissi delicti, et non loci ubi de crimine cognoscitur." — Bartolus, ad §Jinal. lex saccularii citat. oh. in 1. 1., cmictos populos ; C. de mmmo trinit. in I. questionem ; and Henry an Foreign Laiv, p. 47. (/) Statutes relating to offences committed by British subjects in foreign States : ^ 33 Hen. VIII. c. 23, repealed by 9 Geo. IV. c. 31, ss. 7, 8 ; latter sec- tion applies to cases where tbe death, or the cause of the death only, happens in England. Cases under 33 Henry VIII. c. 23 : Governor WalVs case, 28 State Trials, p. 51, a.d. 1802. Bex V. Lepardo, ] Taunton's Rep. p. 26 j Russell and Ryan's Croim 390 INTERNATIONAL LAW. uature, and liable to the same punishment, as if they had been committed on land (m). These Statutes were necessary because, by the Common Laic, the grand jury are sworn to in- quire only for the body of the county, and cannot, without the help of an Act of Parliament, inquire of a fact done out of that county for which they are sworn (n). CCCXXXV. The exercise of Civil Jurisdiction over foreigners will be chiefly considered under the subsequent title of Comity (o). Cases Reserved, p. 134, a.d. 1807. Offender Lepardo discharged because he was a foreigner. Rex V. Sawyer, Russell andR. p. 294, a.d. 1815. Cases under 9 Geo. IV. c. 31 : Rex V. Helsham, 4 Carrington and Payne^s Rep. p. 294. Rex V. M. A, de Mattos, 7 Carrington and Payne, p. 458. See remarks of Solicitor-General as to preceding case, and Mr. Justice Vaughan's charge to the jury. In Regina v. Leiuis, the prisoner and deceased being foreigners, the latter died at Liverpool from injuries inflicted by the prisoner on board a foreign ship on the high seas. Held that^the prisoner had committed no offence cognizable by the law of this country. The object of 9 Geo. IV. c. 31, s. 8, is to remove difficulties of trial in cases of homicide which would have been cognizable by our law if the death had occurred where the blow was struck, and not to give jurisdiction by reason of the death ensuing in England, where otherwise there would be none. — 5. Weekly Reporter, p. 572. See 7 Cox's Criminal Law Cases, p. 277 ; 2 Dearsly ^ BelVs Rep. p. 182. (m) Statutes relating to offences on the high seas, or in slavers, &c. :— 15 Rich. II. c. 3. 28 Hen. VIII. c. 15, s. 1. 46 Geo. III. c. 54. 9 Geo. IV. c. 31, s. 32. 4 & 5 W. IV. c. 36, 8. 22. Statutes relating to offences committed out of England, in particular places : — 10 & 11 W. in. c. 25. 59 Geo. III. c. 75. in) Stephen's Blackstone, vol. iv. p. 370. (Bk. vi. ch. 18.) Russell on Crimes, ed. Greaves (1843), vol. i. p. 549, &c. (Bk. iii. ch. 1, 8. 6.) (o) The Merchant Shipping Act cannot be applied by an English Court to a collision between a British and Foreign vessel in the Atlantic. —The Chancellor, 14 Moore, P. C. Rep. p. 202. RIGHT OF CIVIL JURISDICTION OVER FOREIGNERS. 391 It will be sufficient to remark here that the Right of Jurisdiction and authority over a merely commor ant foreigner, though he be svhditus temporarius, does not extend to com- pelling him to render civil or military services ; or to the power of trying or punishing a foreigner for an oifence com- mitted in a foreign land. This remark applies even where the offence has been committed against the State in which the foreign offender is now commorant ; and much more forcibly against an extravagant pretension sometimes put forth, to the effect that the general powers of a State extend to punish all wrongdoers wheresoever the wrong may have been done (/>). So long as there are different States with different laws, no single State can have a right to punish, by its own laws, citizens of another State, for offences committed in places over which it has no jurisdiction ; or to punish according to what it may conceive to be the law of the place where the offence was committed. This assumed Jurisdiction is doubly reprehensible: — First, as being a usurpation of the Rights of another State ; and Secondly, as being a violation of what Heffters justly calls a ruling maxim (Jierrschende Grundsatz) of all constitutional States, — that no man can be withdrawn from the tribunal to which he is naturally and legally subject, and compelled to plead before another {q). (p) Lord Stowell, speaking of slavery, says that it has been suggested to the Court " that this trade, if not the crime of Piracy, is nevertheless crime, and that every nation, indeed every individual, has not only a right, but a duty, to prevent in every place the commission of crime. It is a sphere of duty (he adds) sufficiently large that is thus opened out to communities and their members." — The Le Louis, 2 JDodson^s Adm. Rep. p. 248. {q) Hefters, s. 36, n. 4. 392 INTERNATIONAL LAW. CHAPTER XIX. EXCEPTIONS TO THE TEKRITORIAL RIGHT OF JURIS- DICTION. CCCXXXVI. We have now to consider certain excep- tions to the sound and important rule laid down in the last chapter, which is built upon the maxim of the Roman Law, '* extra territorium jus dicenti impune non paretur^^ (a). The First class of exceptions to this rule is founded upon long usage and the reason of the thing, and relates princi- pally to the status of Christians in Infidel countries. So early, indeed, as the sixth century, a derogation from the rule of European International Law began to develop itself. After the fall of the Eastern Empire, the Code of the Visigoths, not the least remarkable monument of the Middle Ages, conceded to foreign merchants the privilege of being tried by judges selected from among their own country- men (Jb), But after the Ottoman power became established in Europe, Christian nations trading with the territories subject to that Power, obtained from it, at different periods. {a) Dig. ii. 1, 20. (&) Miltitz, Manud des Consuls, i. 1. i. ch. iv. s. 2, p. 161, 1. ii. cli. i. s. 1, p. 4, n. 2. "Dum transmarini negotiatores inter se causam haberent nuUus de sedibus nostris eos audire praesumat, nisi tantummodo suis legibus audi- antur apud telonarios suos." These Telonarii were in fact Pr (stores Peregrini. Montesquieu^ Esp. des Lois, 1. xxi. ch. 19. Amasis (579 a. j. c.) is said to have permitted the Greeks established at Naucratis in Egypt to choose magistrates from their own nation for the decision of disputes among themselves (Herod, ii. 179). EIGHT OP JURISDICTION.— INFIDEL COUNTRIES. 393 a concession of exclusive authority over their own subjects, nearly identical with that which the Christian jus com- mune (c) had conceded to foreign ships of war in their ports. The vital and ineradicable differences {d) which must always separate the Christian from the Mahometan or In- fidel, the immiscible character which their religion impresses upon their social habits, moral sentiments, and political in- stitutions, necessitated a departure from the strict rule of Territorial Jurisdiction, in the case of Christians who founded commercial establishments in Ottoman or Infidel dominions. With reference to this subject, however, it was observed by their Lordships of the Privy Council that, "though " the Ottoman Porte could give, and has given, to the " Christian Powers of Europe authority to administer " justice to their own subjects according to their own laws, " it neither has professed to give, nor could give, to one such " Power any jurisdiction over the subjects of another Power. " But it has left those Powers at liberty to deal with each " other as they may think fit, and if the subjects of one " country desire to resort to the tribunals of another, there " can be no objection to their doing so, with the consent of " their own Sovereign, and that of the Sovereign to whose " tribunals they resort. " There is no compulsory power in an English Court in " Turliey over any but English subjects ; but a Kussian or " any other foreigner may, if he pleases, voluntarily resort " to it with the consent of his Sovereign, and thereby submit " himself to its jurisdiction " (e). (c) See this phrase frequently in the letters of Sir L. Jenkins, which contain responsa upon questions of Puhlic and International Law.— Ze/e, vol. ii. pp. 719-20. {d) Vide anU, p. 86. Vide post, Consuls. (e) The Laconia, 2 Moore, P. C. Hep. N. S. p. 185. The peculiar chai-acter of the British settlement in India, as distinguished from the ordinary case of the occupation of a barbarous country by Euro- peans, is clearly stated in the following judgment of the same tribunal: — "Where Englishmen establish themselves in an uninhabited or barbarous 394 INTERNATIONAL LAW. CCCXXXVII. France, as early as the beginning of the sixteenth century, stipulated that her subjects throughout those districts, generally known as the Echelles du Levant, should be Q^oixx^vvQij justiciable in criminal and civil matters before their own tribunals, and according to their own laws (/); and this privilege has been continued by a series of subsequent capitulations or diplomas of concession. CCCXXXVIII. The concessions by the Porte to the British Crown {g) began in the reign of Queen Elizabeth. country, they carry with them not only the laws, but the sovereignty of their own State ; and those who live amongst them, and become members of their community, become also partakers of, and subject to, the same laws. " But this was not the nature of the first settlement made in India — it was a settlement made by a few foreigners for the purpose of trade in a very populous and highly civilized country, under the government of a powerful Mahometan ruler, with whose sovereignty the English Crown never attempted nor pretended to interfere for some centuries afterwards. " If the settlement had been made in a Christian country of Europe, the settlers would have become subject to the laws of the country in which they settled. It is true that in India they retained their own laws for their own government within the factories which they were permitted by the ruling powers of India to establish ; but this was not on the ground of general international law, or because the Crown of England or the laws of England had any proper authority in India^ but upon the principles explained by Lord Stowell in a very celebrated and beautiful passage in the case of The Indian Chief (3 Roh. Adm. Rep. p. 28). " The laws and usages of Eastern countries, where Christianity does not prevail, are so at variance with all the principles, feelings, and habits of European Christians, that they have usually been allowed by the in- dulgence or weakness of the potentates of those countries to retain the use of their own laws, and their factories have for many purposes been treated as part of the territory of the sovereign from whose dominions they come. But the permission to use their own laws by European settlers does not extend those laws to natives within the same limits, who remain to all intents and purposes subjects of their own sovereign, and to whom European laws and usages are as little suited as the laws of the Mahometans and Hindoos are suited to Europeans. These prin- ciples are too clear to require any authority to support them, but they are recognized in the judgment to which we have above referred." Adv.-Gm. of Bengal \. R. S. Dossee, 2 Moore, P. C. Rep. N. S. pp. 59, 60. (/) Ortolan, Dipl de la Mer, t. i. pp. 311-14. Ig) Miltitz, t. ii. 779, &c. (1. iii. c. 1, s. v. par. 29). RIGHT OF JURISDICTION. — INFIDEL COUNTRIES. 395 A Treaty in 1675 (art. 18) recited that British enjoyed the same privilege as French, Venetian, and other subjects. Orders of Council (h) and Acts of Parliament (i) have, at diiferent times, prescribed the manner in which the Crown shall exercise this jurisdiction. The latest and most im- portant statute was passed in the sixth and seventh years of the present Queen, and enables her to exercise any power or jurisdiction which she now has, or hereafter may have, within any country out of her dominions, in the same manner as if her Majesty had acquired such power and jurisdiction by the cession or conquest of territory. Generally (A), it may be said, that the Consuls of Christian Powers residing in Turkey, and the Mahometan countries of the Levant, exercise an exclusive^ Criminal and Civil Jurisdiction over their fellow-countrymen. The Criminal Jurisdiction is usually limited to the infliction of a pecuniary fine ; in graver cases, the Consul exercises the functions of a ju^e d' instruction, collecting evidences of the crimes, and transmitting them to the tribunals of their own country (/). CCCXXXIX. The Order of her Majesty in Council, amending and repealing former Orders, concerning the juris- diction over British subjects in the Ottoman dominions, was passed March 9, 1865, and rules issued for the execution of this Order on May 4, 1865. A Supreme Consular Court is established at Constanti- nople, and Provincial Consular Courts are created, with rules for the exercise of Civil and Criminal jurisdiction. An Order in Council also provides for the exercise of Civil and Criminal jurisdiction over British subjects in the dominions of the Sultan of Zanzibar. An Order in Council was also issued March 9, 1865, and Qi) Hertslet's Treaties, vol. vi. Orders in 1830, 1839, 1843. (0 6 & 7 W. IV. 6 & 7 Vict. c. 94. {h) Wheaton, EUm. i. 136. (Z) The laborious and valuable work of Miltitz, cited above, contains a mine of historical information upon this subject. 396 INTERNATIONAL LAW. rules for the execution of it May 4, 1865, concerning British subjects in China and Japan. A Supreme Court at Shanghai, and Provincial Courts, are established by it. Regulations are made for restraint of British subjects in the cases of war, insurrection, and rebel- lion (m). Punishment is provided for levying war or taking part in any operation of war against the Emperor of China or the Tycoon of Japan. Penalties are enacted for the violation of Treaties with these Sovereigns, and punishment is pro- vided for piracy (n). Jurisdiction is conferred over offences committed by British subjects on board Chinese or Japanese vessels, on board British vessels, on board vessels not entitled to hoist the flag of any State, within 100 miles of the coast of China (o). CCCXL. The whole question of Consular Jurisdiction vdll be discussed in a later part of this work, under the title Consuls. CCCXLI. The Second class of recognized exceptions, which entitle foreigners who are the subjects of them, to be considered as morally without^ though physically within, the territorial limits, relate to Foreign Sovereigns passing through or temporarily residing in the territory of another State : they are held not to be amenable to the jurisdiction, civil or criminal, of its tribunals. They represent the nation of which they are sovereigns, and being permitted to enter a foreign State are entitled, by International Law, to be con- sidered, both as to their own person and effects, and as to those of their attendants, as being still within their own dominions (p). Thirdly. The same immunity is applicable to the Am- bassador or duly accredited Public Minister of a foreign (m) S. vi. regs. 81, 82. ' j In) S. X. regs. 98, 99. (o) S. xii. reg. 101. {p) Vide post, chapters on the subject of Sovereigns and Ambassa- DOES. EXCEPTIONS TO RIGHT OF JURISDICTION. 397 State, as will be considered more at length in a later part of this work. Fourthly. If a foreign army be permitted to pass through, or be stationed in, the territories of another State, the persons composing that army, or being within its lines, are entitled to exterritorial privileges. Fifthly. All ships, public or private, upon the high seas, are subject only to the jurisdiction of the country to which they belong {q). This last subject requires a fuller discussion. CCCXLII. The nature and extent of these exterri- torial privileges mil be discussed at length hereafter ; it is enough, therefore, to have given a brief summary of them in this place. Those entitled to such privileges retain the domicil of their own country, with all the incidental rights affecting their persons or property (r). This rule may not in every conceivable case exclude the possibility of a domicil in the country where the privileged person is residing — a domicil for certain purposes, at least. For instance, it is possible that an ambassador may be sent to the place of his native (^), or of a subsequently acquired {t) domicil ; but the general rule is as has been stated {ii). (q) Wheaton^ EUm. i. 119, citing Casaregis Discurs. pp. 136-174 "Exceptis tamen ducibus et generalibus alicujus exercitiis, vel classis maritimi, vel ductoribus alicujus navis militaris, nam isti in suos milites, genteui et naves, libere jurisdiction em sive voluntariam, sive contentiosam, sive civilem, sive criminalem, quod occupant tanqumn in suo propria ex- ercere possunt," See the case of the Cagliari, Dana's Wheaton, 688-9. Ann. Reg. 1858, pp. 63-181. As to yachts, or hdtiments de plaisance, see a form of International " declaration " as to their exemption from payment of duties, Martens, emit, par Saimcer, t. xvii. 258. (r) Hefters, s. 42. Vide post, vol. ii., chapters on Sovereigns and Ambassadoes. (s) As in the case of M. Kossi. — Guizofs Mem. t. vii. p. 393. (t) Hefters, s. 42, i. n. 3, citing Treaty of Westphalia, v. 28: "Nisi forte in quibusdam locis ratione bonorum et respectu territorii vel domi- cilii aliis statibus reperiantur subjecti." (u) Bynkershoek, De Foro Leg. c. xi. 5, c. xviii. 6. 398 INTERNATIONAL LAAV. When a person is admitted to exterritorial (x) privileges, the things that belong to him, and the persons that form part of his household or suite, are, generally speaking, sheltered under the same immunities. These privileges exempt them from liability to the civil or criminal tribunals. It is, however, possible, that even privileged persons, by mixing themselves up with the trade or commerce of the country, or by becoming owners of immovable property therein, might of necessity be in some measure amenable to the civil tribunals. The privilege does not extend to real or immovable pro- perty. This, like the property of a native, is subject to the municipal law of the land (y). The privileged person is free from the payment of taxes or duties of any kind ; but not from paying the tolls upon the public ways over which he travels, or any public impost attached to the use of a public institution or thing. CCCXLIII. The important exception (z) to the rule of International Law respecting territorial jurisdiction afforded in the instance of Foreign Ships lying in the harbours and ports of another State, requires a twofold consideration — as to 1. Foreign Ships of War. 2. Foreign Ships of Commerce. {x) See vol ii. pt. vi. for privileges of ambassadors. (y) Hefters, s. 42, vi. Wiquefort, Z'Ambassadeur, i. 28, p. 422. Bynkershoek, de Foro Leg. c. xv. 6, c. xvi. Merlin, Rep. Ministre public, s. 4, 5, Art. 6, 8. It has been recently decided, that personal property situated in Great Britain, of a person dying domiciled abroad, does not pay legacy duty to the Crown. — Vide jyost, chapter on Domicil, in vol. iv. (2) Grotius. Vattel, 1. i. c. xix. s. 216. Giinther, ii. 257-8, note. Martens. Ortolan, Diplomatie de la Mer, 1. ii. ch. 9, 10, 13. The Schooner Exchange v. M^Faddon and others^ 7 Crunches (American) Repoi-ts, pp. 135-147. Wheaton, Mem., pp. 124-134. Kenfs Commentaries, i. 157, note e (ed. 1851). Heffters, s. 78. EXCEPTIONS TO RIGHT OF JURISDICTION. 399 CCCXLIV. First, with respect to Foreign Ships of War («). — Long usage and universal custom entitle every such ship to be considered as a part of the State to which she belongs, and to be exempt from any other jurisdiction ; whether this privilege be founded upon strict International Right, or upon an original concession of Comity, with respect to the State in its aggregate capacity (Z>), which, by inveterate practice, has assumed the position of a Right (c), is a con- sideration of not much practical importance. But it is of some importance, for, if the better opinion be, as it would seem to be, that the privilege in question was originally a concession of Comity, it may, on due notice being given, be revoked by a State, so ill advised as to adopt such a course, which could not happen if it were a matter of Natural Right. But, unquestionably, in the case of the Foreign Ship of War, (a) Kluher, s. 55 (5) : " Bei KriegsschifFen in fremden Seegebiet, welchen nach allgemeinem Herkommen die Ausiibimg der Gericlit- barkeit nach den Gesetzen ihres Staates iiber ibre Gerichtpflicbtigen zukommen." '' Si les enfants sont n^s dans un vaisseau de la nation \_ship of wai-l, ils peuvent etre reputes nes dans le territoire, car il est naturel de considerer les vaisseaux de la nation comme des portions de sou territoire, sui'tout quand ils voguent sur une mer libre, puisque I'Etat conserve sa juridiction dans ces vaisseaux. Et comme, suivant I'usage communement re9u, cette juridiction se conserve sur le vaisseau, meme quand il se trouve dans les parties de la mer soumises a une domination ^trangere, tous les enfants nes dans les vaisseaux d'une nation seront census nes dans son territoire. Par la meme raison, ceux qui naissent sur un vaisseau etranger seront reputes n(5s en pays etranger, a moins que ce ne fut dans le port meme de la nation ; car le port est plus particulierement du territoire, et la mere, pour etre en ce moment dans le vaisseau etranger [tbis must mean mer- chant ship] n'est pas bors du pays."— Fa«e/, 1. c. xix. s. 216. In another place, speaking of what is contained under the word do- maine d'une nation, he says, " et par ses possessions, il ne faut pas seulement entendre ses terres, mais tms les droits dont elle iouit." — L. ii. ch. vii. s. 80. It is remarkable that Vattel should not furnish more authority on this point than is to be found in the passages cited above. (b) Vide ant^, p. 182. (c) lb. p. 183. 400 INTERNATIONAL LAW. as of the Foreign Sovereign and Ambassador, every State which has not formally notified its departure from this usage of the ci\ilized world, is under a tacit convention to accord this privilege to the Foreign Ship of War lying in its harbours (d). CCCXLY. The authority of so great a jurist as Dr. Story, delivering the sentence of the Supreme Court of the United States, is of great weight in this matter. He expresses his opinion as follows : " In the case of the Exchange (e), the grounds of the ex- " emption of public ships were fully discussed and expounded. *' It was there shown that it was not founded upon any notion " that a foreign Sovereign had an absolute right, in virtue of " his sovereignty, to an exemption of his property from the " local jurisdiction of another Sovereign, when it came within " his territory ; for that would be to give him sovereign " power beyond the limits of his own empire. But it stands " upon principles of public comity and convenience, and " arises from the presumed consent or licence of nations, that " foreign public ships coming into their ports, and demeaning " themselves according to law, and in a friendly manner, shall " be exempt from the local jurisdiction. But as such consent " and licence is implied only from the general usage of nations, " it may be withdrawn upon notice at any time, without just " offence ; and if, afterwards, such public ships come into our " ports, they are amenable to our laws in the same manner as " other vessels. To be sure, a foreign Sovereign cannot be " compelled to appear in our courts, or be made liable to "^ their judgment, so long as he remains in his own dominions ; " for the sovereignty of each is bounded by territorial limits. " If, however, he comes personally within our limits, although " he generally enjoy a personal immunity, he may become " liable to judicial process in the same way, and under the (d) Vide post, Ambassadoes. Vattel, 1. iv. c. vii. s. 92. (e) The Schooner Exchange v. M'Faddon and others, 7 Cranch^s {Ameincan) Reports, p. 1151. EXCEPTIONS TO RIGHT OF JURISDICTION. 401 *' same circumstances, as the public ships of the nation. But " there is nothinor in the Law of Nations which forbids a " foreign Sovereign, either on account of the dignity of his " station, or the nature of his prerogative, from voluntarily " becoming a party to a suit in the tribunals of another " country, or from asserting there any personal, or proprietary, " or sovereign rights, which may be properly recognized and " enforced by such tribunals. It is a mere matter of his own " good will and pleasure ; and if he happens to hold a private " domain within another territory, it may be that he cannot " obtain full redress for any injury to it, except through the " instrumentality of its Courts of Justice. It may therefore " be justly laid down as a general proposition, that all persons " and property within the territorial jurisdiction of a Sove- " reign, are amenable to the jurisdiction of himself or his " Courts : and that the exceptions to this rule are such only " as, by common usage and public policy, have been allowed, " in order to preserve the peace and harmony of nations, and " to regulate their intercourse in a manner best suited to their " dignity and rights. It would, indeed, be strange, if a " Mcence, implied by law from the general practice of nations, " for the purposes of peace, should be construed as a licence " to do wrong to the nation itself, and justify the breach of " all those obligations which good faith and friendship, by " the same implication, impose upon those who seek an " asylum in our ports " (/). CCCXLVI. The privilege is extended, by the reason of the thing, to boats, tenders, and all appurtenances of a ship of war, but it does not cover offences against the territo- rial law committed upon shore, though the commanders of vessels are entitled to be apprised of the circumstances attending and causes justifying the arrest of any one of their crew, and to secure to them, through the agency of diplomatic or consular ministers, the administration of justice {g). (/) The Santissima Trinidad, 7 Wheaton's (American) Reports, pp. 352-3-4. {g) Ortolan, Di})!. de la Mer, vol. i. pp. 291-2. VOL. I. D D 402 INTERNATIONAL LAW. CCCXLVII. Bynkerslwek maintains that the property of a sovereign cannot be distinguished from that of a private individual, and that the tribunals of his country have laid down the law to that effect (Ji) ; and by way of confirmation of this doctrine, he cites a case in which certain Spanish men- of-war were seized in 1668, in the Port of Flushing, as a reimbursement for certain debts of the Spanish Crown. It appears that, on the remonstrance of the Spanish ambas- sador, they were set free, with an intimation to the Spanish Crown that, if the debts of the Dutch subjects were not dis- charged, reprisals might not improbably be granted to them. Whether the proposition of Bynkershoek, with respect to the debts of Sovereigns, be a sound maxim of International Law, will be considered in a later part of this work ; but even assuming for the present a premiss which will be here- after disputed, it is manifestly neither a logical nor a moral consequence, that because the private property of the sove- reign may be seized, therefore the public ships of the nation over which he rules may be also apprehended. The case cited appears to be a solitary instance of a national vio- lation of the general International rule, as to the immunity of foreign ships of war. CCCXLVIII. In the case of the Prins Frederih, brought into the British High Court of Admiralty, the question was raised, whether a foreign ship of war was liable to be sued for salvage. Lord Stowell said : " I have considered the " evidence respecting the Dutch line-of-battle ship belonging (K) " Saepe cum injuria subditorum ordines decreverunt, quod e re- publica esse videretur. Quo refero banc speciem : Anno 1668, privati quidam Regis Hispanici creditores tres ejus Eegni naves bellicas, quge portum Flissingensem subiverant, arresto detinuerant, ut inde ipsis satis- fieret, Rege Hispan. ad certum diem per epistolam in jus vocato ad Judices Flissingenses, sed ad legati Hispanici expostulationes Ordines Generales 12 Dec. 1668 decreverunt, Zelandiae Ordines curare vellent, naves illee continuo dimitterentur liberae, admoneretur tamen per litteras Hispanise Regina, ipsa curare vellet, ut illis creditoribus, in causa justis- sima, satisiieret, ne repressalias, quas imploraverant, largiri tenerentur." — Bynkershoek, De Foro Ler/atorum, c. iv. EXCEPTIONS TO RIGHT OF JURISDICTION. 403 " to his Majesty the King of the Netherlands, armee enjlute, " and carrying a valuable cargo of spices, &c., from Batavia " to the Texel, called the Prins Frederik, which was brought '' into Mounfs Bay by the assistance of persons belonging to " the British brig Howe, of the port of Penzance. These " persons have since arrested this ship and cargo, by a war- " rant issued from the High Court of Admiralty, in a cause " of salvage, on account of essential services rendered to " them in a situation of imminent danger I think " that the first application for a recompense, in the nature of " salvage, ought, in the case of a ship of war belonging to " a foreign State, to have been made to the representative of " that State resident in this country. In the present case " no doubt can be entertained, that just attention would have " been paid to the application, and due care taken, after " proper information obtained, to have answered the claim in " some form or other, as substantial justice might appear to " require ; for it is not reasonable to suppose, that private *^ individuals in this country should go unrewarded, for " services performed to the ships of foreign Governments, " when they would have been liberally rewarded for similar " services performed for such ships belonging to their own. " At the same time, the valuation of those services is j)roper " to be obtained, at least, in the first instance, from those " Governments themselves ; and it is not till after their denial " of justice that recourse should be had elsewhere. Instead " of this, the application is made direct to the captain of this " ship, who treats it with undue disregard and defiance. I " say undue, because at any rate some salvage was due ; and " if he personally was not liable, he ought, at least, to have " informed them where the demand was to be made. On his " refusal, a warrant of detainer is sued out of the Court of " Admiralty, and this begets a delicate question of juris- " diction in International Law, which the Court was disposed " to treat with all necessary caution. The vessel is said to " have been detained, under the authority of this warrant, " for six months. D D 2 404 INTERNATIONAL LAW. " Why she was not released upon bail, on an application *' to the Court, I know not ; the Court would certainly have *' decreed it, if any such application had been made, but ** without prejudice to the depending question of jiirisdic- " tion " (i). The question was eventually settled by arrangement ; but during the course of the argument, the Queen's Advocate of that day insisted forcibly upon the general principle of In- ternational Law, which exempted all foreign ships of war from all private claims (^). CCCXLIX. The privilege or right does not extend in time of war to prize ships or prize goods captured by vessels fitted out in a neutral port in violation of its neutrality (Z) ; and it has been asserted on high authority, that, according to the law of the United States of North America, a writ of habeas corpus may be lawfully awarded to bring up a sub- ject illegally detained on board a foreign ship in American waters {m). The same doctrine would probably be held by the Courts of Great Britain. CCCL. It is important to observe that, if any ques- tion arise as to the nationality of a ship of war, the com- mission is held to supply adequate proof. In a part of the judgment already cited. Dr. Story observes : " In general " the commission of a public ship, signed by the proper " authorities of the nation to which she belongs, is complete " proof of her national character. A bill of sale is not *' necessary to be produced. Nor will the courts of a foreign (t) The Prim Frederikj 2 Dodson^s Adm. Be^. pp. 482, 484-5. (k) lb. p. 457, &c. (I) The Exchanges. M^Faddon and others, 7 Craneh^s Reports, 116. The Arroyante BarcehneSy 7 Wheatori's Reports, 496. The Monte Allegro, ih. 520. Vattel, 1. i. c. xix. s. 216. (m) Opiiiions of the American AUomies- General, vol. i. pp. 25, 55, 57. Kent, Comment. 158, note. See Be M. et Be C. Tr., Index, xxxvi., tit. Nationalite, for catalogue of Treaties on this subject. OHolan, 1. 302, &c. 1 EXCEPTIONS TO EIGHT OF JURISDICTION. 405 " country inquire into the means by which the title to the " property has been acquired. It would be to exert the " right of examining into the validity of the acts of the " foreign sovereign, and to sit in judgment upon them in " cases where he has not conceded the jurisdiction, and " where it would be inconsistent with his own supremacy. " The commission, therefore, of a public ship, when duly " authenticated, so far at least as foreign courts are con- " cerned, imports absolute verity, and the title is not exa- " minable. The property must be taken to be duly acquired, *' and cannot be controverted. This has been the settled '' practice between nations ; and it is a rule founded in " public convenience and policy, and cannot be broken in " upon, without endangering the peace and repose, as well of " neutral as of belligerent sovereigns. The commission in " the present case is not expressed in the most unequivocal " terms ; but its fair purport and interpretation must be " deemed to apply to a public ship of the Government. If " we add to this the corroborative testimony of our own, " and the British Consul at Buenos Ayres, as well as that of " private citizens, to the notoriety of her claim of a public " character ; and her admission into our own ports as a public " ship, with the immunities and privileges belonging to such " a ship, with the express approbation of our own Govern- " ment, it does not seem too much to assert, whatever may " be the private suspicion of a lurking American interest, " that she must be judicially held to be a public ship of the " country whose commission she bears " (n). CCCLI. Secondly, with respect to merchant or private ves- sels, the general rule of Law is, that, except under the provi- sions of an express stipulation, such vessels have no exemption from the territorial jurisdiction of the harbour or port, or, so to speak, territorial waters {mer littorale), in which they lie (o). {n) The Santissima Trindidad, 7 WTteaton's (American) Meporfs, pp. 335-6-7. " Schip is tQTntoivJ'—Philipson, ZwoUe, 1864. (o) Wheatm, Mem. t. i. pp. 119-20. Wheaton^ Hist. p. 739, Letter of Mr, Webster to Lord Ashburton, 406 INTERNATIONAL LAW. The doctrine is clearly expounded by the American Chief Justice Marshall, as follows : — " When private individuals of one nation spread them- ** selves through another, as business or caprice may direct, " mingling indiscriminately vidth the inhabitants of that ♦' other, or when merchant vessels enter for the purposes of " trade, it would be obviously inconvenient and dangerous to " society, and would subject the laws to continued infraction, " and the Government to degradation, if such individuals or " merchants did not owe temporary and local allegiance, and *' were not amenable to the jurisdiction of the country. " Nor can the foreign sovereign have any motive for wishing " such exemption. His subjects thus passing into foreign *' countries are not employed by him, nor are they engaged " in national pursuits. Consequently, there are powerful " motives for not exempting persons of this description from " the jurisdiction of the country in which they are found, " and no one motive for requiring it. The implied licence, " therefore, under which they enter, can never be construed *' to grant such exemption " (p). CCCLII. The jurisprudence of France upon this sub- ject requires special notice (^q). That jurisprudence recognizes a distinction between — 1. On the one hand, acts relating solely to the internal dis- cipline of the ship, or even to offences committed by one of the crew against another, but which do not affect generally the peace and good order of the port. 2. On the other hand, offences and crimes (crimes ou delits) committed by a stranger against one of the crew, or by one of the crew against the other, in a manner to disturb the peace and good order of the port. Facts belonging to this latter class, as well as civil contracts , (jy) The Schooner Exchange v. M^Faddon and others, 7 Cranch's {American) Rep. p. 144. ((/) Masse, Le Droit comm. t. i. pp. 61-65. OHokm, Dipl. de la Mer, t. i. pp. 292-310. EXCEPTIONS TO RIGHT OF JURISDICTION. 407 between the crew and persons who do not belong to the crew, are clearly cognizable by the territorial tribunals. The following instances illustrate the practical application of these principles of jurisprudence. In 1806, The Newton, an American merchantman, being in the port of Antwerp, a quarrel arose between two of the crew, who were in a boat belonging to the vessel, and cog- nizance of the dispute was claimed by the local authorities and by the American Consul. At the same time a quarrel arose between certain of the crew of The Sally y an American merchantman lying in the port of Marseilles. In this case a severe wound had been inflicted by an officer of The Sally upon one of the men for disobedience to orders. In this case a similar conflict as to jurisdiction took place. The superior tribunal (Je Conseil dUEtat) decided in both cases in favour of the jurisdiction of the American Consul (r). In 1837, the Swedish vessel Forsattning was anchored in the Loire, in the Paimboeuf roads, and on board this vessel the crime of poisoning was committed. The Court at E-ennes had some doubt as to the competence of the American au- thority on these three grounds : — (1) that the vessel was a merchantman ; (2) that she was anchored in French waters ; (3) that there was no reciprocity between France and Sweden on the subject; and consulted the Government, which sent an answer, drawn up under the joint authority of the garde des sceaiix and the ministre des affaires etrangeres, to the effect that the criminal was to be delivered up to the proper au- thority on board of his own ship (5). These examples support the former of the two propositions of French jurisprudence stated above. The latter, which sustains the territorial jurisdiction, is illustrated by a case which happened in 1845. In the winter of that year the Tribunal correctionnel at (r) Ortolan^ uhi supra, and Appendix, annexe H, for judgment at length and see Appendix to this work. (5) Remie de Legist, et de Jurisprud. f^vrier 1843, tome xvii. p. 143, Masse, Le Droit comm, t. ii, p. 63, 408 INTERNATIONAL LAW. Marseilles cleclared itself competent to punish the captain of an English merchantman for an attack upon the master of a French vessel in the port (t). In harmony with these prin- ciples, the French Law gives power to French consuls to adjudicate on disputes arising on board French merchantmen when lying in foreign ports, but when at anchor in a foreign roadstead this power is given to French men-of-war, if there be any present, and if not to French consuls ; with an express reservation, however, of the rights of the local authorities. The power given to their own officers they consider as belonging to the category of droits de police, incident to every State over its merchant vessels ; the power of the local authority as belonging to the distinct category of droits de juridiction {u). CCCLIII. These droits de police et de juridiction over merchantmen in foreign parts have been the subject of various Treaties, and, though diifering in various respects from each other, make on the whole an approach to a pretty general adoption of the principles laid down in the preceding paragraphs. M. Ortolan (ar) considers the eleventh article of the Treaty between France and the United States of North America (November 14, 1788), and the twenty-sixth article of the Treaty between Denmark and the Republic of Genoa (July 30, 1789), as containing maxims of International Law on this subject worthy of general adoption (y). M M. Masse {z), no mean authority, thinks, with M. Ortolan; that the distinction between the two kinds of offences is rightly taken and ought to be generally observed. He admits, however, that it is not generally in force, but that the simpler distinction between men-of-war and merchant- {t) OHolan, ih. p. 297. (w) OHolan, t. i. p. 300. (x) lb. pp. 391-2. {y) See Appendix to this work ; et post, Consuls. (2) Le Droit comm. t. ii. pp. 63'4. ^ r RIGHT OF JURISDICTION. — CRIMES ON HIGH SEAS. 409 men obtains ; oiFences on board the former being left to the jurisdiction of the ship, on board the latter to the local or territorial authority («). CCCLIV. Great Britain has made arrangements with certain foreign Powers for the recovery of seamen who desert from the ships of such Powers in British ports, and for the recovery of seamen deserting from British ships when in the ports of such Powers ; and the hands of the British Exe- cutive have been strengthened by an Act of Parliament for such purpose ; and it is competent to the Queen to declare by Order in Council that deserters from foreign ships may be apprehended and given up. Upon the publication of this order, justices of the peace must aid in the recovery of such deserters, and a penalty is imposed upon persons who harbour them ih). CCCLV. In one event the difference between the mer- cantile and military marine does not affect the question of jurisdiction ; that is, when the offence has been committed on board a vessel navigating the open sea. In this case all authorities combine with the reason of the thing, in declaring that the territory of the country to which the vessel belongs is to be considered as the place of the offence, and in pro- nouncing that the offender must be tried before the tribunals of his country (c). It matters not whether the injured person or the offender belong to a country other than that of the vessel. The rule is applicable to all on board. (a) Klilher, s. 53. Wlieaton, Elem. t. i. p. 126. Casaregis Disc. 136, n. 9. (6) 15 Victoria, c. 26. (c) Vattel, 1. i. c. xix. s. 216. Fcslix, a. 506. Ortolan, t. i. p. 282. Wheaton, Elem. t. i. p. 134. Kentj Comm. i. See, too, as affecting merchant vessels, The French Ordonnanee, 29th October, 1833, Art. 15, cited by Ortolan^ i. 283, n. Cuae of The Cagliari, Dana's Wheatorif pp. 688-9. 410 INTERNATIONAL LAW. The principle of this rule has been carefully preserved in the conventions between France and England, which have made the Slave Trade illegal, so far as relates to their re- spective subjects (c?). The English law provided originally for the trial of such offences by the general jurisdiction of the High Court of Admiralty; but during and subsequent to the reign of Henry VIII., various statutes have been passed, appointing and regulating the tribunals which have cognizance of this crime, the last of which was passed in the reign of the late King William lY. (e). Particular provisions are contained in a recent statute as to the extradition of fugitive criminals, where the crime has been committed on board a vessel on the high seas, which vessel afterwards comes into a British port(/). (d) Art 7 of the Convention of 30th November, 1831. (e) 4 & 5 William IV. c. 36, s. 22, the Central Criminal Court Act, Mussell on Crimes, vol. i. pp. 104, 552-5. (/) 33 & 34 Victoria, c._52, s. 16. RIGHT OF JURISDICTION. — PIRATES. 411 CHAPTER XX. RIGHT OF JURISDICTION. — PIRATES. CCCLVI. To whatever country the Pirate may have originally belonged, he h justiciable everywhere («) ; hie de- testable occupation has made him hostis hum ani generis, and he cannot upon any ground claim immunity from the tribunal of his captor. " With professed Pirates " (Lord Stow ell says) " there is no state of peace. They are the enemies of every *^ country, and at all times ; and therefore are universally " subject to the extreme rights of war" (^). The Pirate has, in fact, no national character. No captures made by them affect ownership, the rule of law being that " a piratis capta " dominium non mutant." Piracy is an assault upon vessels navigated on the high seas, committed animofurandi, whether the robbery or forcible depredation be effected or not, and whether or not it be accompanied by murder or personal injury. If a ship belonging to an independent nation, and not a professed buccanier, practises such conduct on the high (a) Vide anU. Grotius, 1. iii. c. iii. 1, 2, 3 ; 1. iii. c. ix. 16 ; 1. ii. c. xviii. 1, 2, 3 ; 1. ii, c. xxi. 5 ; 1. ii. c. 17, 19-29 ; 1. ii. c. xiii. 15 ; 1. ii. c. xvii. 20. Bynhet'shoek, Quest. J. P., De Piratica, etc. 1. i. c. xvii. xv. injme. Loccen^ De Jure Marit. 1. ii. c. iii. Ortolan, t. i. c. xii. p. 249. Des Pirates. Dig. L. 16, 118, xlix. 15, 19, 2 ; 15, 21, 2. Ken£s Comm, i. 186. Cicero, De Of. 1. iii. 29, in fine x "Nam pirata non est in perduellionum niimero definitus, sed communis hostis omnium, cum hoc nee fides debet, nee jusjurandum esse commune." (h) The Le Louis, 3 Dodson's Adm. Rep. pp. 244, 246. 412 INTERNATIONAL LAW. seas, she is liable to the pains and penalties of Piracy. The law is very clearly stated by Sir L. Jenkins in a letter of advice to Mr. Secretary Williamson (1675). " His Majesty had, when I came from home, a controversy '* with France, in a case not much unlike yours. A French '' merchantman had gone out from Rochel to the West Indies, *' and had committed many robberies and great cruelties ^' upon those of his crew in the voyage. He, in his return, " put in at Kingsale for refreshment ; his company accuse *' him ; he flies, his ship and goods are confiscated as the " goods of Pirates. This sentence was opposed by the " French Ambassador, M. Colbert, and the cause desired to *' be remanded to the natural judge (as was pretended), in *' France. This produced several memorials and several ^^ answers, in which my little service was commanded ; and ** the King and his Council were pleased to adjudge, he was *^ sufficiently founded in point of jurisdiction, to confiscate *' that ship and goods, and to try capitally the person him- ** self, had he been in hold ; the matter of Renvoy being a " thing quite disused among princes ; and as 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 are taken " (c). Dr. Story, in his judgment in United States v. Smithy says : " There is scarcely a writer on the Law of Nations '' who does not allude to Piracy as a crime of a settled and " determined nature ; and whatever may be the diversity of '' definitions in other respects, all writers concur in holding " that robbery or forcible depredations upon the sea, animo *' fur audi, is Piracy " {d). The same very learned and able judge guards, however. (c) Life of Jenkins, vol. ii. p. 714. {d) 5 Wheaton's (American) Reports, p. 163 : the note («) to this page contains a most learned and careful accumulation of all the authorities on the subject of Piracy. I EIGHT OF JURISDICTION. — PIRATES. 413 carefully against the notion, that a mere excess of power by a lawfully commissioned ship would place her in the cate- gory of a Pirate. As to the tribunal, the mode of trial, and the punishment, it is of course competent to each country to make its own regulations. By the laws of most States Piracy is punishable by death {e). CCCLVII. It has been observed in a former chapter that the municipal laws of a State, or of a number of States, cannot constitute that offence to be Piracy which is not so characterized by International Law ; and memorable in- stances of the scrupulous severity with which this doctrine is upheld by Great Britain were adduced in the cases of the Le Louis, and of the Queen v. Da Serva and others (/). Piracy has indeed become infrequent in its former haunts, and, both in the Mediterranean and the West Indian Seas, appears to be nearly extinct ; but in the waters of China and the Eastern Archipelago (^) it is continually carried on ; and even if it were not, the law relating to it would form an important chapter in International Jurisprudence, as will be seen in the observations which follow upon the different kinds of privateers. CCCLVIII. That law has been laid down with great learning and care by the Judges of the British Admiralty Courts, which are, it will be remembered, also Courts of International Law. In a charge given at a session of Admiralty within the Cinque Ports, Sept. 2, 1668, Sir Leoline Jenkins expressed himself as follows : — " There are some sorts of felonies and offences, which " cannot be committed any where else but upon the sea. (c) See generally, 1 Kent, Comm. p. 187, for N. American U. S. Law. 1 Russell on Crimes, cli. viii. p. 94, for English Law. Ortolan, 1. ii. c. xii. for French Law ; and Valin, ii. p. 236 : " Quant a la peine due aux pirates et fourbans, elle est du dernier supplice suivant Vopinion commune^^ &c. (/) Vide anth, p. 390. ((j) The Sei-hassan, 2 W, Bobinson's Adm. Reports, pp. 354-358. 414 INTERNATIONAL LAW. " within the jurisdiction of the Admiralty. These I shall " insist upon a little more particularly, and the chiefest in " this kind is Piracy, " You are therefore to inquire of all Pirates and sea-rovers-^ " they are in the eye of the law hostes humani generis , " enemies not of one nation or of one sort of people only, " but of all mankind. They are outlawed, as I may say, by " the laws of all nations, that is, out of the protection of all " princes and of all laws whatsoever. Everybody is com- " missioned, and is to be armed against them, as against " rebels and traitors, to subdue and to root them out. "That which is called robbing upon the highway, the " same being done upon the water is called Piracy. Now '* robbery, as 'tis distinguished from thieving or larceny, " implies not only the actual taking away of my goods, " while I am, as we say, in peace, but also the putting me " in fear, by taking them away by force and arms out of my " hands, or in my sight and presence ; when this is done " upon the sea, without a lawful commission of war or *' reprisals, it is downright Piracy. " And such was the generosity of our ancient English, " such the abhorrence of our laws against Pirates and sea- " rovers, that if any of the King's subjects robbed or mur- " dered a foreigner upon our seas or within our ports, though *^ the foreigner happened to be of a nation in hostility against " the King, yet if he had the King's passport, or the Lord " Admiral's, the offender was punished, not as a felon only, " but this crime was made high treason, in that great Prince " Henry the Fifth's time ; and not only himself, but all his " accomplices, were to suffer as traitors against the crown " and dignity of the King " (A). And in a subsequent charge given at the Admiralty Sessions held at the Old Bailey, Sir Leoline Jenkins said : " The next sort of offences pointed at in the statute, are " robheries ; and a robbery, when 'tis committed upon the iji) Life of Sir L. Jenkins, vol. i. p. Ixxxvi. RIGHT OF JURISDICTION. — PIRATES. 415 '' sea, is what we call Piracy. A robbery, when 'tis com- " mitted upon the land, does imply three things : — 1. That " there be a violent assault. 2. That a man's goods be " actually taken from his person, or possession. 3. That he " who is despoiled be put in fear thereby. " When this is done upon the sea, when one or more ** persons enter on board a ship, with force and arms, and " those in the ship have their ship carried away by violence, " or their goods taken away out of their possession, and are " put in a fright by the assault, this is Piracy {i)\ and he that '* does so is a Pirate^ or a rohher^ within the statute. " Nor does it differ the case, though the party so assaulted " and despoiled should be a foreigner, not born within the " King's allegiance ; if he be de amicitia Regis, he is eo " nomine under the King's protection ; and to rob such a one " upon the sea is Piracy. " Nor will it be any defence to a man, who takes away by '* force another's ship or goods at sea, that he hath a com- " mission of war from some foreign prince, unless the person " he takes from be a lawful enemy to that prince. 'Tis a " crime in an Englishman to take commission from any " foreign prince, that is in open war with another prince " or State. ^Tis felony in some cases, 'tis always punishable " as a great misprision, since his Majesty hath forbid it by " various proclamations. Yet if a man do take such a com- " mission, or serve under it, then 'tis no robbery to assault, " subdue, and despoil his lawful enemy, nor yet to seize and " carry away a friend, supposed to be an enemy, provided he " do bring that friend, without pillaging or hurting him, or " taking any composition from him, to judgment, in some " port of that prince, whose commission he bears. 'Tis not " only Piracy, when a man robs without any commission at " all, but 'tis Piracy, when a man, having a commission, d^- " spoils and robs those which his commission warrants him (?) Farinac, torn. vii. Qu. 166, de Furtis n. 7. Vide Novell. 134, cap. ult. Farin. ih. n. 29, de Poena, ih. c. 167, part i. n. 32, 3 Jac. c. iv. 416 INTERNATIONAL LAW. " not to fight or meddle with ; such, I mean, as are de Li- " geantia vel Amicitia Domini Nostri Regis, and also de " Ligeantia vel Amicitia of that prince or State that hath ** given him his commission. " You are therefore to inquire, if any persons have com- " mitted robbery upon the sea, entering with force and arms " into any ship or vessel belonging to the King's subjects, *' or to the subjects of any prince or State in amity with " the King, and not in war with any prince that hath given " a commission to such aggressor. Or if, after such en- ** tering and boarding the ship or vessel, they have felo- ** niously carried and sailed away with the ship itself, or *' taken away any merchandises, or goods, tackle, apparel, " or furniture out of it, thereby putting the master of " such ship and his company in fear. " You are carefully to present such persons, their names, ** surnames, and additions, their places of abode and occu- " pation, the ships and the goods they have spoil'd and " robb'd ; the persons they have so assaulted and despoiled; *^ the kinds, quantities, values of the goods they have taken *^ away ; the names and burdens of the ships or vessels they " committed the Piracy in ; and where those vessels, the " goods, and the Pirates themselves now are ; together with " the time, place, manner, and circumstances, as distinctly as " you can, " You are to inquire of all such as have been accessaries *^ to such robbers, in aiding, abetting, comforting, or re- " ceiving them {k). For there may be accessaries in this as " well as in other felonies, and they are punishable here ; " Piracy being now made/e/owy by a Statute Law, and when " any offence is felony, either at the Common Law or by " Statute, all accessories, both before and after, are inciden- " tally included " (/). In 1696 Sir Charles Hedges, Judge of the High Court of (Jc) Jac. Gotliofred. de famosis Latrotiihus invesUgandis, p. 23. (/) Life of Sir L. Jenkins, vol. i. p. xciv. RIGHT OF JURISDICTION. — PIRATES. 417 Admiralty, during the course of his charge to the Grand Jury, made the following observations : — " The King of England hath not only an empire and " sovereignty over the British Seas, but also an undoubted " jurisdiction and power, in concurrency with other princes " and States, for the punishment of all piracies and robberies " at sea, in the most remote parts of the world ; so that if " any person whatsoever, native or foreigner. Christian or In- " fidel, Turk or Pagan, with whose country we have no war, ^^ with whom we hold trade and correspondence, and are in " amity, shall be robbed or spoiled in the Narrow Seas ; the " Mediterranean, Atlantic, Southern, or any other seas, or " the branches thereof, either on this or the other side of the " line, it is Piracy within the limits of your inquiry and the " cognizance of this Court (m) Since foreigners " look upon the decrees of our courts of justice as the sense " and judgment of the whole nation, our enemies will be ^^ glad to find an occasion to say, that such miscreants as " are out of the protection of all laws and civil government, " are abetted by those who contend for the sovereignty of ^' the seas. The barbarous nations will reproach us as being *' a harbour, receptacle, and a nest of pirates; and our " friends will wonder to -hear that the enemies of mer- " chants and of mankind should find a sanctuary in this '' ancient place of trade. Nay, we ourselves cannot but **' confess, that all kingdoms and countries who have suiFered *' by English pirates, may, for want of redress in the ordinary " course, have the pretence of justice, and the colour of the " laws of nations to justify their making reprisals upon our " merchants, wheresoever they shall meet them upon the " seas in) It should be considered likewise, on " the other side, that he who brings a notorious fir ate, or " common malefactor, to justice, contributes to the safety (w) " Trial of Joseph Daivson and others" Ho^oelVs State Trials (a.d. 1696), vol. xiii.'p. 455. {n) Ibid. p. 456. VOL. I. E E 418 INTERNATIONAL LAW. " and preservation of the lives of many, both bad and " good ; of the good, by means of the assurance of pro- " tection ; and of the bad too, by the terror of justice. " It was upon this consideration that the Koman Emperors " in their edicts made this piece of service for the public good " as meritorious as any act of piety, or religious worship. " Our own laws demonstrate how much our legislators, *' and particularly how highly that great prince King Henry " the Fifth, and his parliament, thought this nation concerned " in providing for the security of traders, and scouring the ** seas of rovers and freebooters. Certainly there never was " any age wherein our ancestors were not extraordinarily " zealous in that affair, looking upon it, as it is, and ever " will be, the chief support of the navigation, trade, wealth, " strength, reputation, and glory of this nation " (o). CCCLIX. In 1718, the Judge of the Vice-Admiralty Court at Charlestown, in South Carolina, laid down the law as to Piracy as follows : — " Now (p) as this is an offence that is destructive of all " trade and commerce between nation and nation, so it is " the interest of all sovereign princes to punish and suppress " the same. '* And the King of England (q) hath not only an empire " and sovereignty over the British sea, but also an undoubted " jurisdiction and power, in concurrency with other princes " and States, for the punishment of all piracies and robberies " at sea, in the most remote parts of the world. " Now as to the nature of the offence : Piracy is a robbery '^ committed upon the sea, and a pirate is a sea-thief. " Indeed, the word * pirata,' as it is derived from irsipav, " ' transire, a transeundo mare,' was anciently taken in a good (o) " Trial of Joseph Daivson and others/' HowelVs State Trials (a.d. 1696), vol. xiii. p. 456. (/)) " Trials of Major Bonnet and others for Piracy (a.d. 1718)," HoweWs State Trials, vol. xv". pp. 1234-37. {q) See " Sir Charles Hedges'' Charge at the Trial of Datuson, i^-c," State Trials, vol. xiii. p. 455. RIGHT OF JURISDICTION. — PIRATES. 419 " and honourable sense (r), and signified a maritime knight, " and an admiral or commander at sea ; as appears by the " several testimonies and records cited to that purpose, by " that learned antiquary Sir Henry Spelman in his Glos- " sarium.' And out of him the same sense of the word is " remarked by Dr. Cowel, in his Interpreter (*) ; and by " Blount in his Law Dictionary (t). But afterwards the " word was taken in an ill sense, and signified a sea rover " or robber ; either from the Grreek word irslpa, deceptio, " dolus, deceit (m) ; or from the word Trsipav, transire, of their " wandering up and down, and resting in no place, but " coasting hither and thither to do mischief ; and from this " sense, ol Kara OdXaaaav xaKovpyoi, sea-malefactors, were " called TTuparai, pirates." This learned Judge also cited various authorities from the Civil Law, and from jurists, from the Statute and Common Law, and commentators thereon, the most important ot which will be found in the note {x) ; and he observed that (r) ^'Pirata pro milite maritimo, a-rh rov Trtipdv^ i.e. transire vel per- vagari. Asser. Menevens. Epist. in vit. ^Ifredi : Eex TElfredus juasit cymbas et galeas, i.e. longas naves, fabricari per regnum, ut navali praelio hostibus adventantibus obviaret. Impositisque piratis in illis, vias maris custodiendas comraisit. Hoc sensii arehipiratam dici censeo pro nauta- rum prasfecto, vel quern liodie admirallum nuncupamus. In quadam enim Charta Ilegis Edgari Coenobio Glastoniensi confecta, an. Dom. 971, testium imus Martusin arcliipiratam se nominat. Annal. Gisburnenses, in Will. Rufo, cap. 1 : Robertas vero comes (Normanias) attemptavit venire in Angliam cum magno exercitu ; sed a piratis regis, qui curam maris a rege (Willielmo) susceperant, repulsus est." — Spelman, Glossar. in voce " Pirata," p. 460. Vide etiam Selden, Mare Claus. 1. ii. c. x. p. 257. Ungl. et Godolph. Admir. Jurisd. c. iii. p. 25. (s) In the word " Pirata." (t) In the word " Pirate." (w) See Ridley'' s View of the Civil Law, p. ii. e. i. s. 3, p. 127. {x) 3 Inst. c. xlix. p. 113. And on Littleton, f. 391, a. And see BridaVs Jus. Criminis, pp. 70, 71. Coke, 3 Inst. c. xlix. p. 113. Molloy, de Jure Marit. 1. i. c. iv. s. 1, p. 51. See Laios of Oleron, c. 47, in Godolph. in p. 211. Molloy, ih. s. xii. p. 57. "In odium piratarum, praeter alias poena?, statutum est ut eorum E B 2 420 INTERNATIONAL LAW. Piracy remained a felony by the Civil Law (y) ; and therefore, though the Statute of 28 Hen. VIII. gave a trial by the course of the Common Law, yet it altered not the nature of the offence ; and the indictment must mention the same to be done " super altum mare," upon the high sea, and must have both the words " felonice " and " piratice " (z), and therefore that even a pardon of all felonies did not extend to this offence, but ought to be specially named. In 1802 Lord Stowell addressed the Grand Jury as follows : — " You are called upon to discharge the office of grand " jurors for the jurisdiction of the Admiralty of England — *' an office of great extent in point of local authority, and of *' great importance to its operation. It extends over all " criminal acts done by the King's subjects upon the sea, " in every part of the globe. You have to inquire of such " acts committed, wherever the ocean rolls ; and in the " beneficial intercourse which now connects all the nations of " the world, and of which your own country enjoys so fair a nayigia cuivis deripere liceat." — Zouch, JDe Jure Nautico, pt. i. s. x. p. 400. " A piratis aut latronibus capti liberi permanent." — Diff. xlix. t. xv. xix. s. ii. " Qui a latronibus captus est, servus latronum non est : nee post- liminium illi necessarium est." — lb. 24. " Et quae piratse aut latrones nobis eripuerunt non opus habent postliminio, quia jus gentium illis non concessit ut jus Domini mutare possint. Itaque res ab illis captae ubicunque reperiuntur vindicari pos- sunt." — Grot, de Jur. Bel. ac Pac. 1. iii. c. ix. s. xvi. p. 561. See 27 Edw. III. c. xiii. p. 128. 1 Croke, p. 685, Anonym. Hohart, pp. 78, 79, Sir JR. Bingley's Case, and Edmian and SmitJCs Case, 29 Car. II. .3 Kehle, p. 744, pi. 11. Hale, PL Cr. p. 77. Molloy, p. 56. Haivkins, PL Cr. 1. 1. c. xxxvii. s. ii. p. 98. 28 Hen. VIII. c. xv. s. ?>. (y) Coke, p. 112. Hale, p. 77. Molloy, b. i. c. iv. s. xxv. xxvi. p. 62. (z) Leach's Hawk. PL Cr. b. i. c. 37, s. 15. RIGHT OF JURISDICTION. — PIRATES. 421 " portion, it is not needful that I should enlarge upon the " necessity of preventing, by a vigilant civil discipline, all " disorders which, by obstructing its peace and freedom, " might endanger its existence "(a). CCCLX. The English High Court of Admiralty is held before a judge who is the lieutenant of the Lord High Ad- miral, and it is a court, as appears from the foregoing extracts from the charges of judges, of criminal as well as civil jurisdiction. The authority of this Court is supported by various statutes, but the offences cognizable by it have been by recent statutes (^) made also triable by a Central Criminal Court in London, of which the Judge of the Admiralty is made, with other judges, a member, and also power has been given (c) to any judge of assize, oyer and terminer, or gaol delivery, without the issuing of a special commission required by an earlier statute (o?), to inquire of and determine all offences committed at sea or within the Admiralty jurisdiction. The jurisdiction of the High Court of Admiralty however still remains, fortified indeed in some respects by a very recent statute (e), and it has been recently exercised in a most important case of piracy, called " The Magellan Pirates.'''' Towards the latter end of 1851, there was an insurrection in some of the dominions belonging to the State of Chili. General Cruz was at the head of this insurrection, failed, and retired into the country. There was a Chilian convict settlement, at a place called Punta Arenas, the garrison of which consisted of 160 soldiers and 450 male convicts. An officer in that garrison raised an insurrection, and murdered the governor. In conjunction with those who conspired with him, he seized a British vessel, called The Eliza Cornish, and (a) '■^ Trial of William Codling and others,'' HowelV s State Trials (1802), vol. xxviii, p. 178. (6) 4 & 5 William IV. c. 36. 7 & 8 Victoria, c. 2. (c) 7 & 8 Victoria, c. 2. (d) 28 Henry VIII. c. 15. (e) 13 & 14 Victoria, c. 26 (15 June, 1850). 422 INTERNATIONAL LAW. also an American vessel, called The Florida. They murdered the master, and Mr. Deane, part-owner of Tke Eliza Cornish, and also the owner of The Florida, These facts comino- to o the knowledge of Admiral Moresby, the commander-in-chief of that station, he despatched the Virago, a British steamer, under the command of Captain Houlston Stewart, to the Straits of Magellan. On January 28, 1852, a vessel which proved to be The Eliza Cornish, was descried working out of the Straits ; chase was made, and a shot fired across her bow, which brought her to. She was boarded, and seized by orders of Captain Stewart. She was at that time in the possession of a large number of the persons who had raised the insurrection at Punta Arenas ; there were found on board her 128 men, 24 women, and 18 children. The guns were loaded, and the men were armed ; they were under the command of a man named Bruno Brionis, who held a com- mission from Cambiaso, the leader of the insurrection. These men were afterwards delivered up to the Chilian authorities at Valparaiso. Captain Stew^art proceeded in search of Cambiaso and the other insurgents, and he secured 56 at Wood's Bay. On Feb. 15th, Captain Stewart discovered The Florida in possession of a large number of insurgents ; it was said that these insurgents had, whilst at sea, risen against Cambiaso and five others, and, with the aid of the American master and crew, brought the vessel to the port where Captain Stewart had found her. On board The Florida was found treasure which had been plundered from The Eliza Cornish. All the persons on board The Florida, not American, were given up to the Chilian authorities. Upon this state of facts, Captain Stewart and the officers and crew of H.M.S. Virago, applied to the Court of Admi- ralty for a certificate, according to a provision of a recent statute, in order that they might obtain the payment of bounty for capturing these pirates in the Straits of Magellan. The Judge (/) of the High Court of Admiralty said : — (/) Dr. Lushington. EIGHT OF JURISDICTION. — PIRATES^ 423 " As to the general character of these transactions, I really " entertain no doubt that they were piratical acts, in no " de2:ree connected either with insurrection or rebellion. In " one sense they were acts of wanton cruelty in the murder " of foreign subjects, and in the indiscriminate plunder of " their property. I am of opinion that the persons who did " these acts were guilty of piracy, and were to be deemed " pirates unless some of the other objections which have been " urged ought to prevail. It has been said that these acts " were not committed on the high seas, and therefore this " murder and robbery not properly or legally piratical. But " in this case the ships were carried away and navigated by " the very same persons who originally seized them. I con- " sider the possession at sea to have been a piratical pos- " session, and the carrying away the ships on the high seas '' to have been piratical acts" (g). With respect to the general character of piratical acts the learned Judge observed : — " I apprehend that in the administration of our criminal " law, generally speaking, all persons are held to be pirates {g) A question arose as to the construction of 13 & 14 Vict. c. 26 (which had repealed 6th Geo. IV. c. 49). 16 Jurist, p. 1145, The Magellan Pirates, contains a report of this pre- liminary objection. The second section of the Act enacts " That whenever any of her Majesty's ships or vessels of war, or hired armed vessels, or any of the ships or vessels of war of the East India Company, or their boats, or any of the officers and crews thereof, shall, after the said first day of June, attack or be engaged with any persons alleged to be pirates afloat or ashore, it shall be lawful for the High Court of Admiralty of England, and for all courts of Vice- Admiralty in any dominions of her Majesty beyond the seas, including those courts of Vice- Admiralty within the territories under the government of the East India Company, to take cognizance of and to determine whether the persons or any of them so attacked or engaged were pirates, and to adjudge what was the total number of pirates so engaged or attacked, specifying the number of pirates captured, and what were the vessels and boats engaged." At the hearing of the case the learned judge said: ''It appears to me, that in affixing a construction to this statute, I am entitled to hold that the intention of the legislature was, that acts of piracy might constitute pirates." 424 INTERNATIONAL LAW. *' who are found guilty of piratical acts, and piratical acts " are robbery and murder upon the high seas. I do not " believe that, even where human life was at stake, our " courts of common law ever thought it necessary to extend " their inquiry further. If it was clearly proved against the " accused that they had committed robbery and murder " upon the high seas, they were adjudged to be pirates, and " suffered accordingly. It was never deemed necessary to '' inquire whether the parties so convicted had intended to " rob or to murder on the high seas indiscriminately. Though " the 'municipal law of different countries may and does " differ in many respects as to its definition of piracy, yet I " apprehend that all nations agree in this, that acts such as " robbery and murder on the high seas are piratical acts, and " contrary to the law of nations. It does not follow that, " because rebels and insurgents may commit against the " ruling powers of their own country acts of violence, they " may not commit piratical acts against the subjects of other " States, especially if such acts are in no degree connected " with the insurrection or rebellion. Even an independent " State may be guilty of piratical acts. What are many '* of the African tribes at this moment ? Is it not no- " torious that tribes now inhabiting the African coast of " the Mediterranean will send out their boats and catch " any ships becalmed upon their coasts ? Are they not " pirates because, perhaps, their sole livelihood may not *' depend upon piratical acts ? I am aware that it has " been said that a State cannot be piratical, but I am " not disposed to assent to such dictum as a universal pro- " position" (h), CCCLXI. Special provisions are contained in the Order in Council of March 9, 1865, with respect to the punishment (h) The Shipping and Mercantile Gazette of Wednesday, 27th July, 1853. RIGHT OF JURISDICTION.— ^PRIVATEERS. 425 of piracy where the British subject is, in China or Japan, or in the Ottoman dominions (z). It should be here observed that in time of war vessels sailing under letters of marque or a national commission, and within the terms of that commission, are not and never have been considered as pirates by International Law (Ji). And even if they exceed the limits of their commission and commit unwarrantable acts of violence, if no piratical inten- tion can be proved against them, they are responsible to and punishable by the State alone from which their commission has issued (Z). A vessel which takes commissions from hoth belligerents is guilty of piracy, for the one authority conflicts with the other. But a nicer question has arisen with respect to a vessel which sails under two or more commissions granted by allied Powers against a common enemy. The better opinion seems to be that such practice is irregular and inexpedient, but does not carry with it the substance or the name of Piracy. " The law " ( Sir Leoline Jenkins says in the letter already cited) " distinguishes between a pirate who is a highwayman " and sets up for robbing, either having no commission at " all, or else hath two or three, and a lawful man-of-war that " exceeds his commission." {%) Sec. X. rules 98-9. The recent Extradition Statute, 33 & 34 Vict. c. 52, s. 16, contains special provisions with respect to the surrender of fugitive criminals who have committed crimes on the high seas. See the Act in the Appendix to this volume. {h) Vattel, 1. iii. c. xv. s. 229. Kluher, s. 260. {I) Wheaton, Elem. i. 141. Bynherslioek, Q. J. P. i. c. xvii. : " Qui autem nullius principis auc- toritate sive mari sive terra rapiunt piratorum proedonumque vocabulo in- telliguntur. Unde, ut piratee puniuntur, qui ad hostem depraedandum enavigant sine mandato prsefecti maris et non praestitis quae porro prse- stari desiderant. . . . Sed Pirata quis sit, nee ne, inde pendet an man- datum praedandi habuerit, si habuerit et arguatur id excessisse non continue eum habuerim pro Pirata." 426 INTERNATIONAL LAW. The question remains, what is the character affixed by the law to the vessel of a neutral State armed as a privateer, with a commission from the belligerent ? That such a vessel is guilty of a gross infraction of International Law (m), that she is not entitled to the liberal treatment of a vanquished enemy, is wholly unquestionable ; but it would be difficult to maintain that the character of piracy has been stamped upon such a vessel by the decision of International Law. M. Ortolan admits that this position cannot be, though he desires that it should be maintained (n). At the same time States have covenanted that they will prevent their subjects, under heavy penalties, from accepting such com- missions, as is seen in the Treaty of 1786 (26th September) between Great Britain and France {o) ; and have even cove- (ni) See the law laid down to this effect in the following American cases, viz. : — " Trial of Gidemi Henjield, for illegally enlisting in a French Privateer.''^ In the Circuit Court of the United States for the Pennsylvanian District. Philadelphia, 1793, p. 49. " Trial of John Etienne Guinet, et al.^ for fitting out and arming a French armed vessel^ In the Circuit Court of the United States for the Penn- sylvanian District. Philadelphia, 1795, p. 93. '* Trial of Francis Villato, for entering on board a French Privateer." In the Circuit Court of the United States for the Pennsylvanian District. Philadelphia, 1797, p. 185. " Trial of Isaac Williams, for accepting a Commission tn a French armed vessel and serving i?i same against Great Britain.^' In the Circuit Court of the United States for the Connecticut District. Hartford, 1799, p. 652, — State Trials of the United States {hy Wharton), published at Philadelphia, 1849. (n) Ortolan, pp. 260-1 : " Mais qu'il y ait la un veritable crime de pira- terie de droit des gens, c'estqui n'est pas encore universellement reconnu." (o) Art. III. : "On est aussi convenu, et il a ete arrets, que les sujets et habitans des royaumes, provinces et Etats de leurs Majestes, n'exerce- ront a I'avenir aucuns actes d'hostilit^ ni violences les uns contre les autres, tant sur mer que sur terre, fleuves, rivieres, ports et rades, sous quelque nom et pretexte que ce soit ; en sorte que les sujets, de part et d'autre, ne pourront prendre aucune patente, commission, ou in- struction pour armemens particuliers, et faire la course en mer, ni lettres vulgairement appelees de represailles, de quelques princes ou Etats, ennemis de I'un ou de I'autre, ni troubler, molester, empecher ou en- dommager, en quelque mauiere que ce soit, en vertu ou sous pretexte RIGHT OF JURISDICTION. — PRIVATEERS. 427 nanted that it shall be considered by their municipal law as Piracy. Among the articles of the French Ordonnance de la Marine, collected by Yalin, is the following : — " Defendons a tons nos sujets de prendre commissions " d'aucuns Rois, Princes ou Etats etrangers, pour armer des " vaisseaux en guerre, et courir la mer sous leur banniere, " si ce n'est par notre permission, a peine d'etre traites " comme pirates" (/?). Treaties between France and Hol- land, in 1662, and between France and the United States of North America, in 1778, declare such privateering carried on by the subjects of either nation to be Piracy {q). A similar Treaty was entered into between the North American United States and Prussia (r) in 1785. A Treaty between de telles patentes, commissions ou lettres de represailles, les sujets et habitans susdits du roi de la Grande-Bretagne, on du Iloi Tres-Chr^tien, ni faii-e ces sortes d'armemens, ou s'en servir pour aller en mer. Et seront a cette fin toutes et quantes fois, qu'il sera requis de part et d'autre, dans toutes les terres, pays, et domaines quels qu'ils soient, tant de part que d'autre, renouvelees et publiees, des defenses etroites et expresses d'user, en aucune maniere, de telles commissions ou lettres de represailles, sous les plus grandes peines qui puissent etre ordonnees contre les in- fracteurs, outre la restitution et la satisfaction entiere, dont lis seront tenus envers ceux auxquels ils auront caus6 quelque dommage." — Mai'tens, Bee. de Tr. vol. iv^. pp. 156-7. {p) L. iii. t. ix. art. iii. t. ii. p. 235. {q) " Aucun sujet du Roi Tres-Chretien ne prendra de commission de lettres de marque pour armer quelque vaisseau ou vaisseaux, a I'eiFet d'agir comme corsaire contre les dits Etats-Unis ou quelques-uns d'entr'eux, ou contre les sujets, peuples ouliabitans d'iceux, ou contre leur propriete, ou celle des habitans d'aucun d'entr'eux, de quelque prince que ee soit, avec lesquels les dits Etats-Unis seront en guerre. De meme, aucun citoyen, sujet ou habitant des susdits Etats-Unis et de quelqu'un d'entr'eux, ne demandera ni n'acceptera aucune commission ou lettre de marque pour armer quelque vaisseau ou vaisseaux, pour courre sus aux sujets de S. M. T. C, ou quelqu'un d'entr'eux, ou leur propriety, de quelque prince ou Etats que ce soit, avec qui sa dite Majeste se trouvera en guerre; et si quelqu'un de I'une ou de I'autre nation prenoit de pareilles commissions ou lettres de marque, il sera puni comme pirate.'''' —Martens, Rec. de Tr. (1778), vol. ii. p. 597 {Art. xxi.). (r) Art. XX. ''Aucun citoyen ou sujet de I'une des deux parties contractantes n'acceptera d'une puissance avec laquelle I'autre pourroit etre en guerre, ni commission ni lettre de marque pour armer en course 428 INTERNATIONAL LAW. Denmark and the Republic of Genoa, concluded on the 30th July, 1789, contained a similar provision (s). And all the Treaties contracted by France with the American Re- publics contain a provision, of which the 16th article of the Treaty with Venezuela (25tli March, 1843) may serve as a sample : — " 16. S'il arrive que I'une des deux parties contractantes " soit en guerre avec quelque autre pays tiers, I'autre partie " ne pourra, dans aucun cas, autoriser ses nationaux a prendre " ni accepter des commissions ou lettres de marque, pour " agir hostilement contre la premiere, ou pour inquieter le " commerce et les proprictes de ses sujets ou citoyens " (t). CCCLXII. Soon after the abdication of James II. an In- ternational question of very great importance arose, namely, what character should be ascribed to Privateers commissioned by the monarch, who had abdicated, to make war against the adherents of William III., or rather against the En2:lish contre cette derniere, sous peine d'etre puni comme pirate. Et ni I'un ni I'autre des deux Etats ne louera, pretera ou donnera une partie de ses forces navales ou militaires a I'ennerni de I'autre pour I'aider a agir oiFen- sivement ou d^fensivement contre I'Etat qui est en guerre." — (10 Sept. 1785.) Martens, Bee. de Tr. iv. p. 45. («) "Les sujets de part et d'autre ne pourront prendre ni recevoir patentes, instructions, ni commissions pour armemens particulierS; et pour I'aire la course en mer, ni lettres patentes appelees vulgairement lettres de represailles d'aucun prince, ou Etat ennemi de I'une ou de I'autre partie contractante. lis ne devront jamais, en quelque maniere que ce puisse etre, faire valoir des semblables patentes, commissions, ou lettres de represailles d'une puissance tierce, pour troubler, molester, empecher, ou endommager les sujets respectifs, ni faire de tels armemens et courser, sous peine d'etre regardes et traites comme pirates. " A cette fin les hautes parties contractantes promettent reciproquement de faire publier, le cas avenant, des defenses a leurs sujets, sous les plus rigoureuses peines, d'exercer de pareilles pirateries, et si au m^pris de ces memes defenses quelqu'un n'en commet pas moins de semblables contra- ventions, il sera puni des peines prescrites suivant I'ordonnance emanee, et il indemnisera et dedommagera entierement celui ou ceux, sur lesquels ilauroitfait des prises." — Martens, Rec. de Tr. (1789), vol. iv. pp. 447-8 {Art. xii.). {t) Martens, Rec. de Tr. (1843), vol. xxxiv. p. 170. See Manning^ 8 Law of Nations, for other Treaties on this subject, p. 1 11. RIGHT OP JURISDICTION. — PRIVATEERS. 429 while under his rule? The question in fact involved a discussion of the general principle, whether a deposed sove- reign, claiming to be sovereign dejure, might lawfully com- mission privateers against the subjects and adherents of the sovereign de facto on the throne ; or whether such pri- vateers were not to be considered as Pirates, inasmuch as they were sailing animo furandi et deprcedandi, without any national character. The question, it should be observed, did not arise in its full breadth and importance until James II. had been expelled from Ireland as well as England, until, in fact, he was a sovereign, claiming to be such de jure, but confessedly without territory. It appears that James, after he was in this condition, continued to issue letters of marque to his followers. The Privy Council of William III. desired to hear civilians upon the point of the piratical character of such privateers. The arguments on both sides are contained in a curious and rather rare pamphlet, pub- lished by one (u) of the counsel (Dr. Tindal) for King William, in the years 1693-4 {x). The principal arguments for the piratical character of the privateers appear to have been — 1. That International Law is chiefly built upon the general good of all the societies which are members of the universal community. 2. That long custom, in things indifferent, is not binding upon nations after they have publicly declared that they in- tend no longer to be bound by them, — instanced in the case of resident ambassadors, whom a nation might, without violation of Law, refuse to receive. 3. That nothing can more diminish from the sacredness of the Law of Nations than to allow it no other foundation than the practice of the generality of sovereigns, who often (w) The other was Dr. Littleton. (x) An edition was printed in 1734 at London, " for the proprietors," after his death, to which I have referred, — ^^ An J^ssay concerning theLaws of Nations and the Rights of SovereignSf hy Mattheio Tyndal, LL.D.''^ 430 INTERNATIONAL LAW. sacrifice the happiness of their own nation to the gratification of their passions. 4. That the Laws of Nations relate to their mutual com- merce and correspondence, which cannot be maintained but by having recourse to those who have the power of making Peace and War, and all Contracts for the nations which they represent, whose acts are the acts of the whole body, and bind the members as much as if each particular person had assented. That, on account of this -power, the governors of each society are allowed Q,QY\mx\. prerogatwes\>j other nations over whom they have no authority and who are no otherwise concerned with them, but as they have the power of making contracts for the nation which they govern ; that therefore de facto Governors are recognized, as Cromwell had recently been, by other States. 5. That the leagues which princes make with one another do not oblige them to one another longer than they are in possession of their Government, because they are made on account of the power which each nation has to afford mutual assistance and benefit to another, and this reason still con- tinues, though the person who was entrusted with authority to make them be different, the former person being then no further concerned therein than according to the Civil Law a proctor would be with a cause after the revocation of his proxy. 6. That though the sovereign of a country in which a deposed prince took refuge, might accord to him what national privileges he pleased, yet that he could not accord to him international privileges, which belong to those who have summum imperium, and not to a titular prince who in the eye of International Law is regarded as a private person. That such titular prince was in fact a subject — suhditus tem- porarius — of the sovereign. What right could he claim by the Law of Nations, when no nations were in any way con- cerned with his actions ? Because, as to foreign nations, they had only recognized him as having power to make national contracts, which power and the consequent privileges he had RIGHT OF JURISDICTION. — PRIVATEERS. 431 ceased to have. As to his own nation, that had entrusted its aifairs to other hands, and was no more concerned with him than a foreign State. 7. That a necessary consequence of his being reduced to the status of a private person, and of not having any of the privileges which belong to those who possess summum im" perinm, was an incapacity of granting commissions to private men-of-war to disturb the trade of any nation. 8. That therefore they who acted under such commission may be dealt with as if they acted under their own authority or the authority of any private person, and therefore might be treated as pirates. 9. That If such a titular prince might grant commissions to seize the ships and goods of all or most trading nations, he might derive a considerable revenue as a chief of such freebooters, and that it would be madness in nations not to use the utmost rigour of the law against such vessels. 10. That if he could grant a commission to take the ships of a single nation, it would in effect be a general licence to plunder, because those who were so commissioned would be their own judges of whatever they took, whether it were lawful prize or not, because. In another prince's territories, whither the pretended prize must be brought, the titular and ousted prince could erect no court of judicature to judge according to Maritime and International Law concerning the property so taken. He could neither enforce the attend- ance of witnesses, nor the restitution of ships unjustly taken, nor provide any of the essential requisitions of justice. His own residence in the country is precarious, and at any moment he might be banished from it. 11. The sovereign into whose ports the pretended prizes would be taken, would have no legal right to adjudicate upon them, and assuming that he had the right — what if he refused to exercise it ? 12. That the reason of the thing which pronounced that Robbers and Pirates, when they formed themselves into a civil society, became just enemies, pronounced also that a 432 INTERNATIONAL LAW. king without territory, without power of protecting the inno- cent or punishing the guilty, or in any way of administering justice, dwindled into a Pirate if he issued commissions to seize the goods and ships of nations; and that they who took commissions from him must be held by legal inference to have associated sceleris causa, and could not be considered as members of a civil society. 13. Lastly, that besides all these reasons the persons being Englishmen were morally incapable to take, from any king whatever, a commission to attack, in a hostile manner, the goods and ships of their fellow-subjects. The argument on the other side is thus stated by the author : — " The occasion of sending for the civilians, after some of " them that were consulted had given their opinions in ** writing, was, as the Lords told Sir Thomas Pinfold and " Dr. Oldys (who had declared that they were not pyrates, " without offering to shew the least reason why they were " of that mind) to hear what reason they had to offer for " their opinion. " Then Sir Thomas Pinfold said, it was impossible they " should be pyrates, for a pyrate was hostis humani generis, *^ but they were not enemies to all mankind ; therefore they " could not be pyrates. Upon which all smiled, and one of " the Lords asked him. Whether there ever loas any such " thing as a pyrate, if none could be a pyrate hut he that teas " actually in war with all mankind'^ To which he did not " reply, but only repeated what he had said before. Hostis " humani generis is neither a definition, nor so much as a " description of a pyrate, but a rhetorical invective to show " the odiousness of that crime. As a man, who, tho' he " receives protection from a government, and has sworn to " be true to it, yet acts against it as much as he dares, may " be said to be an enemy to all governments, because he de- " stroyeth, as far as in him lieth, all government and all " order, by breaking all those ties and bonds that unite '* people in a civil society under any government : so a man " that breaks the common rules of honesty and justice, which EIGHT OF JURISDICTION. — PRIVATEERS. 433 '^ are essential to the well-being of mankind, by robbing but *' one nation, may justly be termed hostis humani generis ; " and that nation has the same right to punish him, as if he " had actually robbed all nations. " Dr. Oldys said, that the late king, being once a king, " had, by the Laws of Nations, a right to grant commissions ; " and that, tho' he had lost his kingdoms, he still retained a " right to the privileges that belong to Sovereign Princes. " It was asked him by one of the Lords, whether he could " produce an author of any credit, that did affirm, that he " who had no kingdom, nor right to any, could grant com- " missions ; or had a right to any of those privileges, that " belong to Sovereign Princes ? And that no king would " suffer those privileges to be paid to Christina, when she " ceased to be Queen of Sweedland\ and that it was the " judgment of all the lawyers that ever mentioned that point, " that she had no right to them ; and he did hope, that " those who had sworn to their present majesties, did not " believe the late king had still a right : and that that point " was already determined, and would not be suffered to be " debated there. To which he answered, that King James '' was allowed very lately the rights of a King, and that " those who acted by his commission in Ireland were treated " as enemies ; and people that followed his fortune, might " still suppose he had a right, which was enough to excuse " them from being guilty of pyracy. " One of the Lords then demanded of him. If any of their " majesties subjects, by virtue of a commission from the late " king, should by force seize the goods of their fellow-subjects " by land, whether that would excuse them from being guilty " at least of robbery ? If it would not from robbery, why " should it more excuse them from pyracy ? To which he "made no reply. Then the Lords asked Sir Thomas Pinfold " and Dr. Oldys, Whether it were not treason in their ma- " jesties subjects, to accept a commission from the late king " to act in a hostile manner against their own nation ? Which " they both owned it was (and Sir Thomas Pinfold has since, VOL. I. F F 434 INTERNATIONAL LAW. " as I am informed, given it under his hand, that they are " traytors). The Lords farther asked them. If the seizing " the ships and goods of their majesties subjects were treason, " why they would not allow it to be pyracy ? Because " pyracy was nothing else but seizing of ships and goods by ** no commission ; or what was all one, by a void or null one, " and said, that there could be no commission to commit " treason, but what must be so : to which they had nothing " to reply, only Dr. Oldys pretended to quote a precedent, " which he said came up to the present case, about Antonio " king of Portugal^ who, as he said, after he had lost his " kingdom, gave commissions to privateers to seize upon all " Spanish vessels, whom, as the Spaniards met with, they " hanged as pyrates; (so far his precedent is against him;) " but an author (without naming him) was of opinion, as he " said. That if Antonio had ever been a rightful king, that " then the Spaniards ought not to have treated those who " acted by his commission, as pyrates. This was all that was " said by the Doctor in behalf of the late king's privateers ; " upon which I must beg leave to make a few reflections. " As to those privileges which were allowed the late King " in Ireland, they were not allowed him upon the account of " any right, nor was it an owning that he had any right to " that kingdom, but barely as he was in possession ; for then " he had Rempuhlicam Curiam, 8fc., and consequently a " right to be treated as an enemy ; and not only he, but " whoever had been in possession would have a right to have " been used after the same manner ; and is no more than " what is practised in all civil wars, where there are just " forces on either side. These privileges being allowed him " when he was a public person, and in possession of a king- " dom, could be no just reason to induce any to imagine, that " they would be permitted him when he was reduced to a " private condition ; much less is it such a presumption as is " sufficient to excuse them, who acted by his commission, " from suifering as pyrates. The very accepting a commis- " sion from him, after he was reduced to a private condition. RIGHT OF JURISDICTION. — PRIVATEERS. 435 " to act against their own nation, was a demonstration that " the government was no longer in his, but other hands, who " could not reasonably be presumed would allow that he had " still any right, or they that acted by his commission should '' be dealt with, as if he still had a right ; but that they '* should be used, as if they acted by no commission, or Avhat '^ is all one, a null or invalid one. Their pretending to be- '' lieve he has still a right, is no more an excuse in the case " of pyracy, than of treason, which every traytor may pre- " tend to. " As to the story of Antonio, the Doctor is (to suppose " no worse) abominably mistaken in the very foundation ; ** for they that suffered by the Spaniards as pyrates, were " French, who had not their commissions from Antonio, " but from their own king, as Albericus Gentilis, who *' mentions this story, Lib. i. cap. 4, says, At ipsa Historia " vincat eos non fuisse Piratas, per literas quas Regis sui " ostendebant, cui Regi serviebant, non Antonio, etsi rnaxime *^ pro Antonio, quod illos non tangebat. And Conestaggius, " who is the historian he refers to, and who has given " an excellent account of that war, says it was the royal " navy of France (which is very improbable did act by any " authority but that of the French king's) set out, as he " words it, Regiis sub Auspiciis, with which the Spanish fleet " engaged, and had the good fortune, after a long and bloody " fight, to rout it, and took above five hundred prisoners, of " which almost the fifth part were persons of quality, whom " the Spanish admiral was resolved to sacrifice as pyrates, " because the French king, without declaring war, had sent " them to the assistance of Antonio : against which pro- " ceedings the ofiicers of the Spanish fleet murmured, and " represented to their admiral, that they were not pyrates, " because they had the French king's commission ; but *' what they chiefly insisted on, was the ill consequence it " would be to themselves, who, if they fell into the hands '*' of the French, must expect the same usage. As to the " French king's assisting Antonio without declaring war, F F 2 436 INTERNATIONAL LAW. " they supposed, that before the sea fight, the two Crowns " might be said to be in a state of war, by reason of frequent ** engagements they had in the Low Countries. This is " the account Cone star/ c/ius gives of it, which, how little it ** is to the purpose the Doctor quoted it for, is so visible, " that there is no need of any words to shew it. But granting " (as the Doctor supposeth) that Antonio never had any " right, or, at least, the Spaniards would never allow he had " any, yet it is evident from the historian, that they allowed " him, during possession, the same privileges as the late King " had during the war in Ireland : and if the Spaniard, by " the law of nations, after Antonio was driven from his king- " dom, might treat those that acted by his commission as " pyrates, why may not the English deal after the same man- " ner with those that act by the late King's commission, " since they look on him to be in the same condition as the ** Spaniards did on Antonio, without a kingdom, or right " to one ? What difference can this make, that one had " never a right, and the other, tho' he had once a right, has " lost it? " These two civilians, I believe, are the only persons, pre- " tending to be lawyers, w^ho are of opinion, that a king " without a kingdom, or right to one, has, by the Law of " Nations, a right to grant commissions to privateers, espe- " cially if they are subjects (as they have acknowledged it) " to that king, against whom they, by their commissions, are " to act " (y). This account is certainly tinged by the reporter's hatred of Jacobites, and very probably the arguments of Pinfold and Oldys are not fully reported ; but after every deduction has been made in their favour, the reason of the thing must be allowed to preponderate greatly towards the position of Tin- dal, that these Privateers were jure gentium Pirates {z). (y) TindaVs Essay, pp. 43, 8. (2) The law respecting Privateers is discussed in the third volume of these Commentaries. EXTRADITION. — OBLIGATION TO SURRENDER. 437 CHAPTER XXL RENVOI. — EXTRADITION. CCCLXIII. The subject of this chapter seems to re- quire a threefold division ; for we have to consider — 1. The Right of a State to dismiss foreigners commorant in her territories — sometimes called the right of Renvoi. 2. The Obligation of a State, under the general law, to surrender foreign subjects — or the Law of Extradition. 3. The Obligation of a State to surrender foreign subjects, in compliance with the provisions of Treaties of Extradition, CCCLXIV. Every State is held to lie under an obliga- tion to take charge of its natural subjects ; it cannot there- fore refuse to receive back citizens who have miojrated in quest of food or employment into foreign countries. Corre- spondent with this obligation on the part of the State of the citizen, is the right of the State into which he has migrated to send the foreign citizen back to his own home. This right is usually known in Law by the term Droit du Renvoi (a). At the same time it must be observed, that it (a) Kenfs Comtnent vol. i. p, 36, and note. Sir L. Jenkins, speaking of the demand made by the French Crown on behalf of a French subject, charged in an English port with having committed piracy on the high seas, says : " The matter of Menvoy being a thing quite disused among princes, and as every man by the usage of our European nations is justiciable in the place where the crime is committed, so are pyrates, being reputed out of the protection of all laws and privileges, and to be tried in what ports soever they are taken." — Vol. ii. p. 714. Martens, 1. iii. c. iii. s. 91. This right is now seldom exercised but in time of war. During the present war (1870) the French Government have expelled resident Germans. 438 INTERNATIONAL LAW. ceases, where the citizen has been naturalized by express laiv, in the foreign country. And the right can hardly be held to exist where the naturalization has been effected by tacit per- mission. Martens thinks it would be desirable to define, by the terms of a positive treaty negotiated with every country, the cases in which the tie between the citizen and his native Government shall be held to be so severed as to destroy the obligation of receiving him again ; and he observes, that the Law does not consider the character of the native subject, in this sense and for this purpose, as indelible. This suggestion of Martens is founded upon the practice of many of the German States, who appear also to have con- sidered the question with respect to the transmission, through intermediate States, of persons from the country in which they have been sojourning to the country of their birth {b), CCCLXV. The right of a State to dismiss foreigners from its territories having been discussed, the obligation of a State to deliver up or surrender the subject of a foreign State on the demand of that State, is next to be con- sidered (c). With respect to citizens, not being fugitives from justice, but who are needed for the exigencies of their original country. (b) Martens, 1. iii. c. iii. s. 91. " En effetjle gouvernement de chaque £tat a toujours le droit de con- traindre les strangers qui se trouvent sur son territoire a en sortir, en les faisant conduirejusqu'aux frontieres. Ce droit est fonde sur ce que I'etranger ne faisant pas partie de la nation, sa reception individuelle sur le territoire est de pure faculty, de simple tolerance, et nuUement d'obli- gation. L'exercice de ce droit pent etre soumis, sans doute, a certaines formes par les lois interieures de chaque pays ; mais le droit n'en existe pas moins, universellement reconnu et pratique. En France, aucune forme sp^ciale n'est prescrite aujourd'hui en cette matiere ; l'exercice de ce droit d'expulsion est totalement abandonn^ au pouvoir executif.'' — OHolan, Diplom. de la Me?-, 1. ii. c. xiv. p. 323. (c) Dissertatio de Deditione Profufforum : Hmricus Provo Kluit, Utrecht, 1829. The Laiv of Extradition, by Charles Egan : London, 1846. 1 Ke^\£s Comment. 36, note. Ortolan, Dipl. de la Mer, 1. i. c. xiv. EXTRADITION. — FOREIGN CRIMINALS. 439 it has been already stated that International Law affords no pretext for their delivery. With respect to fugitives from justice, the doctrine of the Roman Law was explicit on this point, ordering that every criminal should be remitted to his forum criminis : but the reason is given by Paul Voet : — " Jure tamen civili notandum, remissionibus locum fuisse " de necessitate, ut reus ad locum ubi deliquit, sic petente " judice, fuerit mittendus, quod omnes judices uni subessent '^ imperatori. Et omnes provinciae Romanae unitse essent " accessorie, non principaliter " (d) " Moribus *' nihilominus (non tamen Saxonicis) totius fere Cliristi- " anismi, nisi ex humanitate, non sunt admissae remissi- " ones, quo casu, remittenti magistratui cavendum per lit- " teras reversoriales, ne actus jurisdictioni remittentis ullum " pariat prasjudicium. Id quod etiam in nostris Provinciis *' Unitis est receptum. Neque enim Provinciae Foederatas " uni supremo parent " (e). CCCLXVI. Though the reason for this remission of criminals arose from the peculiar condition of universality incident to the Roman Empire, there is not wanting the authority of great jurists (/) to support as maxims of (d) P. Voet, De Stat s. xi. c. i. p. 297 (ed. 1715). Id. p. 358. (e) lb. s. xi. c. i. n. 6, p. 297 (ed. 1715). Id. p. 358 (ed. 1661). (/) Grotius, 1. ii. c. xxi. s. 3, 4, 6 : " Veniamus ad quaestionem alte- ram de receptu adversus poenas. Pcenas, ut ante diximus, naturaliter ciiivis, cui nihil simile objici potest, exigere licet. Institutis civitatibus id quidem convenit, ut singulorum delicta, quae ipsorum coetum proprie spectant, ipsis ipsarumque rectoribus pro arbitrio punienda aut dissimu- landa relinquerentur. " At non etiam jus tam plenum illis concessum est in delictis, quse ad societatem liumanam aliquo modo pertinent, quae persequi ita civitatibus aliis earumve rectoribus jus est, quomodo in civitatibus singulis de qui- busdam delictis actio datur popularis : multoque minus illud plenum arbitrium habent in delictis, quibus alia civitas aut ejus rector pecu- liariter Isesus est, et quo proinde nomine ille illave ob dignitatem aut securitatem suam jus habent pa3U9e exigendee, secundum ea quce ante 440 INTERNATIONAL LAW. International Law, both 'the following propositions upon this question of Extradition : — 1. That States are under an obligation to refuse an asylum to fugitive criminals ; 2. That they are bound, if satisfied by examination of the prima facie guilt of the fugitive, to surrender him for trial to the country in which he committed the crime. CCCLXVII. Nevertheless, the usage of nations has not accepted these propositions ; nor is the opposite view without the support of eminent jurists, such as PufFendorf {g), John Voet (h\ Martens (e), and others {k). diximus. Hoc ergo jus civitas, apud quam noceus degit, ejusve rector impedire non debet. " Cum vero non soleant civitates permittere ut civitas altera armata intra fines suos poenae expetendse nomine veniat, neque id expediat, sequitur ut civitas, apud quam degit qui culpae est compertus, alterum facere debeat, aut ut ipsa interpellata pro merito puniat nocentem, aut ut eum permittat arbitrio interpellantis j hoc enim illud est dedere, quod in historiis saepissime occurrit Neque obstant ilia adeo prae- dicata supplicum jura et asylorum exempla. Hasc enim illis prosunt qui immerito odio laborant, non qui commiserunt quod societati humanse aut hominibus aliis sit injuriosum." JRutherforth follows Grotiuss opinion, 1. ii. c. ix. s. 12. So also Jfeineccius in his Prcelectiones. Vattel^ 1. ii. c. vii. pp. 75-6-7. Burlamaqid, pt. iv. c. iii. ss. 23-29. (g) Puffendorf, 1. viii. c. iii. ss. 23-4. (A) Voet, Be Statutis, 297. So too Kliiber, t. i. c. ii. s. QG. (i) Martens, 1. iii. ch. iii. s. 101. De V Extradition d'un Criminel. Story, Conjlict of Laivs, ss. 626, 627, 628, pp. 878-9-80. As to the opinion of American lawj^ers, most of the reasoning on each side will be found very fully collected in the case of In the matter of Washburn, 4 John, Ch. R. 106 ; that of Commomvealth v. Deacmi, 10 Serg. Sf Raiol. 123; Holmes v. Jennison, 14: Peter's R. 540-598; and that of Rex v. Ball, 1 Amer. Jurist, 997. The latter case is the decision of Mr. Chief Justice Reid of Canada. See also 1 Amer. State Papers, 175 ; Commonwecdth v. De JLongchamps, 1 Dcdl. Ill, 115 ; JJ^ States v. Davis, 2 Summer R. 482, 486. 1 Kent, Comment, pp. 35-38. Merlin, Questions du Droit, tit. Etrangek ; Repert. du Droit, tit. SouvERAiNBxi:. (Ji) " ProlJecto populum cogere ut huuc illumve prehendat nobisque EXTRADITION.— FOREIGN CRIMINALS. 441 France, Russia, England and the North American United States, have constantly, either by diplomatic acts or decisions of their tribunals, expressed their opinion, that upon principles of International Law, irrespective of Treaty, the surrender of a foreign criminal cannot be demanded (/). Mr. Chancellor Kent, however, expresses himself very strongly upon this subject ; and, according to him, " It is "^ the duty of Government to surrender up fugitives on demand, " after the civil magistrate shallhave ascertained the existence " of reason able ground for the charge, and sufficient to put the " accused on his trial. For the guilty party cannot be tried " and punished by any other jurisdiction than the one whose " laws have been violated; therefore the duty of surrendering " him applies as well to the case of the subjects of the State " surrendering as to the case of the subjects of the Power de- " manding the fugitive " (m); and it must be admitted that the Enolish courts, even before the Treaties and Statutes here- inafter mentioned, appear to have held the doctrine that In- ternational Comity was sufficiently stringent to compel the surrender of the criminal. In the 29th year of Charles II., we find the following decision in the Kin^ v. Hutchinson: remittat, nihil aliud est, nisi ilium cogere, ut faciat aliquid, ad quod jure obstringi non potest. " Si quseritur, quid peragatur a civitate, quae consentit in deditionera profugi, respondemus earn tantum alteri auxilium ferre in exercitio juris, quod in profugum habet. Auxiiium ferre est actus benevolentiae et comitatis, ad quern prsestandum nemo perfecte est obligatus." — Rluit, de Deditione Profugorum, c. i. s. 1. Tittman, in Strqfrechtspf. p, 27 : " Wenn das dieser Person schuldgege- bene Verbrechen mebr aus einer Verletzung des politischen Systemes, als des Eechtes jenes Staates bestebt, deun in solcben Fallen ist das Straf- recbt an sich selbst noch zweifelhaft."— /J. c. ii. s. 10, p. 81, note. (l) Kluit, de Deditime Profuyorum, c. iv. ss. 1, 3. Heffters, 1. i. Ixiii. p. 119. Mecht der Auslieferungen. Fcdix, 1. ii. t. ix. c. 7. Coke's Institutes, iii. 180. {m) 1 Kefnfs Commentaries, p. 37. But see Storij on the Constitution of the United States, s. 1808, and note 2 tbereon ; Sto7-i/ on the Coti^ict of Laivs, s. 628, and Coke's ord Inst. 380, 442 INTERNATIONAL LAW. " On Habeas Corpus it appeared the defendant was com- " mitted to Newgate on suspicion of murder in Portugal, " which by Mr. Attorney, being a fact out of the King's " dominions, is not triable by commission, upon 35 Henry « VIII. c. 2, § 1, n. 2, but by a Constable and Marshal ; " and the Court refused to bail him," &c. (w). In 1749, the Barons of the Exchequer said: " The Go- " vernment may send persons to answer for a crime where- " ever committed, that he may not involve his country ; and " to prevent reprisals " (o). In 1811, Mr. Justice Heath, sitting in the Common Pleas, observed: " It has generally been understood that whereso- " ever a crime has been committed, the criminal is punish- " able according to the lex loci of the country, against the law " of which the crime was committed ; and by the comity of " nations, the country in which the criminal has been found " has aided the police of the country against which the ** crime was committed, in bringing the criminal to punish- '* ment. In Lord LoughhorouglVs time the crew of a Dutch " ship mastered the vessel, and ran away with her, and " brought her into Deal, and it was a question whether we " could seize them, and send them to Holland ; and it was " held we might " {p). When the Scotch demanded the Extradition of Bothwell, Queen Elizabeth promised either to surrender him or send him out of her kingdom. It is well known that Charles II. pursued the murderers of his father with unrelenting severity. He entered into a Treaty with Denmark (February 13, 1660), by the 5th (n) 3 Kehle's Rep. 785. (o) East India Company v. Campbell, 1 Vesey's (Sen.) Hep. 247. (p) Mure V. Kaye, 4 Taunton's Bep. 43. Aa to the power of transmitting criminals from England, in which country they were apprehended, to Ireland, in which country they had committed the offence, see Case of Lundy, 2 Ventris^s Hep. p. 314, Case in the 2nd year of AVill. and Mary ; and Kiny v. Kimherky, 2 Strangers Rep. 848, Case in the 3rd year of Geo. II. EXTRADITION. — FOREIGN CRIMINALS. 443 article of which the Extradition of any of the regicides, who might take shelter in that country, was stipulated for, and three of the regicides, who had fled to Holland, were sur- rendered to him by De Witt, at that time Grand Pensioner. Napper Tandy, and some of his comrades concerned in the Irish rebellion of 1795-8, were arrested in Hamburg, and delivered up to the English authorities, an act which was greatly resented by Buonaparte {q). There are two circumstances to be observed, which occur in these and in all other cases of Extradition : — 1. That the country demanding the criminal must be the country in which the crime is committed ; 2. That the act done, on account of which his Extradition is demanded, must be considered as a crime by both States. It may be further remarked (r), that the obligation to deliver up native subjects would now be denied by all States, even by those which carry the general doctrine of Extra- dition as to criminals to the farthest limit ; and that it is generally admitted that Extradition should not be granted in the case of political offenders, but only in the case of individuals who have committed crimes against the Laws of Nature, the laws which all nations regard as the foundation of public and private security (s). The result of the whole consideration of this subject is. (g-) Martens, Erzcihlungen merkwurdiger Falle des neueren Europ. Volkerrechts, ii. 282. Case of James Napper Tandy and another j HowelVs State Trials, vol. xxvii. p. 1191. (r) Many States are by the positive laws of their own constitution prevented from delivering up citizens to foreign Powers, e. g. Prussia, Bavaria, Wiirtemberg, Baden, Hesse, Oldenburg, Brunswick, and Altenburg. Vide Heffters, uhi supra. Fcelix. Saalfeld, s. 40. Kliiber, t. i. c. ii. s. 63. (s) Vattel, 1. i. s. 233. Ffeliv, uhi snpra. 444 INTERNATIONAL LAW. that the Extradition of criminals is a matter of Comity, not of Right, except in the cases of special convention {t). CCCLXVIII. It may happen that two nations make a request {reclamation) for the delivery of the same oiFender. The only course which the State harbouring the offender is obliged to pursue, in such a. case, is, not to show partiality to either requesting State. According to Martens, the request of the State which claims the offender as attached to her service, e.g. as an officer, or a public functionary, is preferable to the request of the country against which, or more especially in which, the crime has been committed ; while, on the other hand, the request of the latter State is preferable to that of the State which claims the offender merely as an individual subject. It is hardly necessary to discuss this nice point of International casuistry, as it is clear that the wisest conduct which a State can adopt is to refuse the request of both applicants (w). {€) Kara tov koivov a-cavriov av9p'))iriov vo^wv, o*; Ktirai tov ^tvyovra Sixf-'yl^'ai. — Demosth. contra Aristocr. 648. (m) Edinburgh Revieiu, No. Ixxxiii. pp. 129, 139, 141. In the case of the Creole^ all the judicial authorities in the House of Lords expressed the same opinion. February 1842, Hans. Pari. l)eb. Oases in the American courts : — In the matter of Washburn, 4 Johnson^s Chancery Reports, 106. Commonwealth v. Deacon, 10 Serg. 6f Rawl. 123. Rex V. Ball, American Jurist, 297. United States v. Davis, 2 Su7nner^s Rep. 486. Judge Story's decision. Holmes v. Jenison, 14 Peter's Reports, 540. Ex parte Holmes, 12 Vertnonfs Rep. 630. Case of Jose Ferreire Jos Santos, 2 Brochenbourgh's Reports, 492. The result of these cases (for a reference to which I am indebted to a note in Mr. Chancellor Kenfs Commentaries, yoI. i. pp. 36, 37), seems to be, that the constitution of the United States confers no authority on their public officers or courts to deliver up a fugitive criminal. See, too, Opinions of the {American) Attornies- General, vol. i. pp. 384, 392, affirming the same proposition, and correcting a former opinion (vol. i. p. 46) ; Story^s Commmt. on the Constitution, vol. iii. pp. 675, 676 j On the Conjlict of Laivs, ss. Q,'2Q, 627 ; also Commonwealth v. De Long- champs, 1 Dallas, 111, 115. "Uifferend survenu en 1747, entre la Cour de Suede et celle de la Grande-Bretagne au sujet de I'extradition d'un negociant nomme Springer, accuse de haute trahison et refugie dans I'hotel du ministre d'Angleterre." Marten-i, Causes cclebrcs, dixieme Cause. Vide post, Ambassadoks. EXTRADITION. 445 CCCLXIX. The right of a State to demand that rebel- lious subjects shall not be allowed to plot against it in the territory of another State, has been already discussed (x) ; it cannot, when stretched to its utmost limit, be extended beyond the point of requiring the foreign State to send the fugitive in safety elsewhere ; and this demand can only be legally made, when the State has confessed or demonstrated its inability to restrain the fugitive, from carrying on plots against the country, from which he has fled. This very important subject recently underwent a memo- rable discussion in the House of Peers. In a debate which arose upon the question of foreign refugees, most of the Lords, who were either then discharging, or who had dis- charged judicial functions in the highest tribunals of the realm, delivered their opinions upon this nice question of International Law. Lord Lyndhurst introduced the subject by referring to the great irritation which prevailed at Vienna, and throughout the Austrian dominions, with respect to the alleged conduct, in London, of certain refugees from the Lombardic dominions of Austria. It will be very difficult to abridge without in- juring the clear exposition both of our National and Interna- tional Law laid down by that eminent and learned nobleman. He stated that Law, with respect both to British subjects and to foreign refugees, in these words : " I will first take the case of a British subject. If a num- " ber of British subjects were to combine and conspire toge- " ther to excite revolt among the inhabitants of a friendly " State — of a State united in alliance with us — and these " persons, in pursuance of that conspiracy, were to issue mani- " festoes and proclamations for the purpose of carrying that "object into effect; above all, if they were to subscribe " money for the purpose of purchasing arms to give effect to " that intended enterprise, I conceive, and I state with con- " fidence, that such persons would be guilty of a misdemea- " nour, and liable to suffer punishment by the laws of this (x) See chap. x. 446 INTERNATIONAL LAW. " country, inasmuch as their conduct would tend to embroil " the two countries together, to lead to remonstrances by the " one with the other, and ultimately, it might be, to war. I " think my noble and learned friends who are now assembled ** here, and who perform so important a part in the delibera- " tions of this House, will not dissent from the opinion I " state with respect to British subjects. Now with respect " to foreigners. Foreigners residing in this country, as long " as they reside here under the protection of this country, are " considered in the light of British subjects, or rather subjects " of her Majesty, and are punishable by the criminal law " precisely in the same manner, to the same extent, and under " the same conditions, as natural-born subjects of her Ma- '* jesty. In cases of this kind, persons coming here as re- " fugees from a foreign State, in consequence of political acts " which they have committed, are bound by every principle " of gratitude to conduct themselves with propriety. This " circumstance tends greatly to aggravate their offence, and " no one can doubt that they are liable to severe punishment. " I will put the case in another shape. The offence of en- " deavouring to excite revolt against a neighbouring State is " an offence against the Law of Nations. No writer on the " Law of Nations states otherwise. But the Law of Nations, " according to the decision of our greatest judges, is part of " the Law of England. I need say no more with reference " to the nature of the offence imputed to those individuals — " I need say no more than that they are subject to be *' punished by the laws of this country for offences of this " description. But there is a question connected with this " subject of considerable difficulty, and that relates to the " evidence by which a party can be convicted. Here, I " admit, there is a very serious difficulty. It is not sufficient " that the offence should be notorious to the world. You " must have such evidence to support the particular charge " as shall be admissible before our tribunals " (y). (y) Vide The Times, 5th March, 1853. Hansard's Pari. Deb. vol. cxxiv. p. 104G. EXTRADITION. 447 In the course of the debate, the Prime Minister stated that the Government had resolved, if any event occurred which gave just grounds of complaint to a foreign Government against a refugee in this country, to take upon themselves the prosecution of such an individual, and not to throw the burden of it upon the foreign minister. The principal occasions upon which such a course has been pursued are the two following : In 1799, certain English subjects were prosecuted for publishing a libel upon Paul I., Emperor of Russia. The Attorney- General in that case said that he had been commanded to file an information in order to vindicate the character of the Emperor of Russia — a prince in amity with this country, defamed in a libel, contrary to the laws and usual policy of nations, which protect not only the magis- tracies, but the individuals of each other, from insult and reproach. Lord Kenyon tried the case, and, though Erskine defended the prisoners, the jury found them guilty. They were punished by fine and imprisonment (z). Lord George Gordon was found guilty of libelling Marie Antoinette, the consort of a Sovereign an ally of this kingdom. In 1803, Jean Peltier, a French refugee, was prosecuted for a libel on Napoleon Buonaparte, then First Consul of the French Republic : Lord Ellenborough tried the case, and, in spite of an extraordinary speech delivered by Mackintosh, the jury found Peltier, his client, guilty ; but as war, soon after this trial, was renewed between Great Britain and France, the defendant was never called upon to receive judgment («). In 1858 a conspiracy against the life of Napoleon III., planned in London, excited much debate on the Continent and in England on the state of our Criminal Law with respect to crimes committed by foreigners commorant here against foreign Sovereigns and allies. An attempt to alter or amend the existing law was fatal to the Government of Lord Palmerston, which introduced a Bill for that purpose. (z) State Trials {Howell), vol. xxvii. pp. 627-630. (rt) Ih. vol. xxviii. pp. 530-619. 448 INTERNATIONAL LAW. All the legal authorities — and they were of a very high order — in the House of Lords expressed their clear opinion that the foreigner was as amenable as a British subject to our jurisdiction for offences committed in this country, and that to conspire the murder of a foreign Sovereign or his consort was an offence cognizable by our law (b). In the same year one Bernard was tried on a charge of being an accessory before the fact to a plot for assassinating the Emperor of the French, which caused the murder of one of his guards. He was acquitted, whether justly or not is not to be considered in this place (c). CCCLXX. The delicate question of the protection afforded to native offenders, by the residence of persons en- titled to the privilege of exterritoriality , will be considered hereafter. CCCLXXI. We have now to consider {d) the prin- cipal Treaties upon the subject of Extradition, which form an important part of Positive International Law between the contracting parties, and cannot but have, from their number,' and from the variety of States which have entered into them, an important general bearing upon this question of Interna- tional Jurisprudence. CCCLXXII. In France (e), the matter of Extradition has been frequently the subject of domestic legislation and of treaty with other Powers. With regard to the former, some doubt seems to exist as to the present legal effect of enactments and provisions made before the year 1831 (/). The first Treaty, by which France promised and stipulated for Extradition, was concluded between that country and Spain, in 1765 {g). The second was entered into with the (6) See Hansard's Pari JDeb. for 1858. Ann. Beg. 1858, pp. 32-4. (c) Ann. Reg. 1858, p. 310. {(I) De M. et De C. Tr., Index, tit. Extradition. (e) FcbUx, 1. ii. t. ix. c. 7. (/) lb. pp. 586, 592, s. 612 and note. {g) It does not appear in the general collections. EXTRADITION. — TREATIES. 449 Duchy of Wurtemberg, in the same year (h). According to the terms of the latter Treaty, the subjects of Extradition are to be " brigands, malfaiteurs, voleurs, incendiaires, meur- *^ triers, assassins, vagabonds." In 1783 (i), France became a third party to a Treaty concluded between Spain and Portugal in 1778 (J), the sixth Article of which stipulates for the mutual Extradition of natives accused of counterfeiting coin, contrabandists, and deserters. The stipulations with respect to deserters were renewed by the sixteenth Article of a Treaty between France and Spain, made in 1786 (k). By a Treaty concluded between France and Switzerland in August 1798 (fourteenth Article), and renewed in September 1803 (eighteenth Article), it is stipulated (/), — " Si les individus qui seroient declares juridiquement " coupables de crimes d'Etat, assassinats, empoisonnemens, " faux sur des actes publics, fabrication de fausse monnoye, " vols avec violence ou effraction, ou qui seroient poursuivis " comme tels en vertu de mandats decernes par autorite " legale, se refugioient d'un pays dans I'autre, leur extradi- " tion sera accordee d la premiere requisition. Les choses " voices dans Fun des deux pays, et deposees dans I'autre, " seront fidelement restituees, et chaque Etat supportera, " jusqu'aux frontieres de son territoire, les frais d'extradition " et de transport. Dans le cas de delits moins graves, mais " qui peuvent emporter peine afflictive, chacun des deux " Etats s'engage, independamment des restitutions a operer, " h punir lui-meme le delinquant ; et la sentence sera com- ** muniquee ^ la legation frangoise en Suisse, si c'est un " citoyen fran9ois, et reciproquement a I'envoye helvetique " a Paris, ou, a son defaut, au land-amman de la Suisse, (A) Martens, Rec. de Traites, t. i. p. 310. (i) Ih. t. ii. p. 612. (/) lb. p. 625. ih) Ih. t. iv. p. 187. [l) Ih. t. vi. p. 406; t. viii. p. 132 ; Art xviii. Renewed on the 18tli of .July, 1828, according to Falix, 585. VOL. I. G G 450 INTERNATIONAL LAW. " si la punition pesoit sur un citoyen de la Suisse." It provides also for the Extradition of public functionaries or receivers of public moneys pursued for carrying away the property of the State. Stipulations to the same effect were inserted in the Treaty of Amiens in 1802 (Article Twenty), between England and France (m) ; and also in a Treaty between the same parties in February 1843 (n). Treaties between France and England, in August 1787 and March 1815 (Articles Eight and Nine), contain re- ciprocal stipulations for the surrender of persons accused of offences cognizable in courts of law within their respective possessions in the East Indies (o). In November 1834 France entered into a Treaty of Ex- tradition with Belgium, containing similar stipulations ; but each Government reserved to itself the right of excepting from the operation of the Treaty special and extraordinary cases (/?). By this Treaty Belgium is not bound to surrender a French subject for an offence committed by him in Bel- gium ; and the same rule applies to France {q). By a Treaty between France and Sardinia, in May 1838, it is stipulated that persons ** mis en accusation ou con- " damnes " in their respective countries, for any of the offences specified in the Treaty with Belgium which has been just mentioned, shall be subject to Extradition. The operation of the Treaty is limited to French subjects in Sardinia, and to Sardinian subjects in France or Corsica (r). But this Treaty (m) Martens, JRec. de Traites, t. vii. p. 412. (n) Vide post. (p) Martens, Rec. de Traites, t. iv. pp. 280-285. Ip) lb. t. XX. (Nouv. Bee. t. xii.) Art. ii. p. 733: " Chacun des deux gouvememens entend cependant se reserver le droit de ne pas consentir a I'extradition dans quelques cas sp^ciaux et extraordinaires rentrant dans la categorie des faits prevus par I'article precedent. "■ 11 sera donne connaissance, au gouvernement qui reclame I'extradi- tion, des motifs de refus." (q) Hevue Strangere, t. ix. p. 1032. (r) See M. Fcelix, 1. ii. tit. ix. ch. vii. p. 588, who has the following EXTRADITION. — TREATIES. 451 does not contain the reservation specified in the Treaty with Belgium. France has also Treaties of Extradition with Sweden and Norway, of December 1843 (js) ; with the United States of North America^ of November 1843, promulgated April 1844 (#); with the Grand Duchy of Baden, of June 1844 (w); with Luxemburg, of September 1844 (y) ; and with Bavaria, of March 1846 (w;). France has particular Treaties upon the subject of Ex- tradition of deserters, with Wurtemherg, of December 1765; with the North American United States, of November 1788 {x), and of June 1823 {y) (Article Ninth); with Sar- dinia, of June 1782, and of August 1820 (z); with the Netherlands, of October 1821 («); with Bavaria, oi M-dij 1827 (h) ; and with Prussia, of July 1828. CCCLXXIII. It appears to have been the usage of the kingdom of the Two Sicilies (c) to concede Extradition ; but they had a positive Treaty, of July 1818, on the subject, with the Pope, for the surrender of all delinquents, with power for an armed force of the one country to make arrests within the territory of the other (d). note: '^ Bulletin des Lois, 1838, ix. Bull. 616, No. 7716; Collection de M. Duvergier, 1838, p. 734 ; V. un cas d' application de ce Traite dans la Gazette des Tribunaux du 21 Janvier 1843." (s) Collection de M. Duvergier, 1843, p. 69. (This reference and the three next are from M. Fcelix.) (t) Ibid. 1844, p. 436. (w) Ibid. 1844, p. 640. (v) Ibid. 1846. (id) Martens, t. iv. p. 417. (:r) Bull, des Lois, Bull. 614, No. 15,077. (This reference and the six next are from M. Falix.) (y) lb. Bull. 425, 1820, No. 9971. Martens, Nouv. Supplement, t. ii. p. 42. (s) Bull, des Lois, 1821, Bull. 486, No. 11,576. (a) lb. 1827, Bull. 162, No. 6054. Martens, t. vii. p. 132. (b) Bull, des Lois, 1828. (c) Fcelix, p. 592. (d) Martens, Nouv. Rec. t. v. p. 281. G G 2 452 INTERNATIONAL LAW. The kingdom of the Tioo Sicilies had a Treaty, of May 1819, with Sardinia (e), for the delivery of individuals condemned to the galleys, or to temporary or perpetual labour. The Papal States had the Treaty above mentioned with Sardinia. CCCLXXIV. Holland has Treaties, of April 1718, and of December 1756, with Austria and France {f) ; with Hanover, of 1815 {g)\ and express Treaties for the surrender of deserters, mth France , of October 1821 ; with Sweden and Norway, of May 1827 ; and with Nassau, of August 1828 {h), CCCLXXV. Sardinia provides, by the eleventh Article of her Penal Code, that no Extradition shall take place except under the authority of the king. She has or had Treaties for Extradition of malefactors with France, Austria, Tuscany, Modena, Parma, Placentia, Morocco, Massa, Car- rona {i). CCCLXXVI. Austria (j), which incorporates into its own code the power and obligation of Extradition, has Trea- ties for the surrender of individuals accused of crimes or misdemeanours (crimes ou delits communs) with Sardinia, (April 1792, June 1838) (It) ; with Parma, Placentia, Guar- lotten (July 1818); with Modena (October 1818, 1834); with the Swiss Cantons, excepting Claris, Zug, Bale, Ap- (e) Martens, N&uv. Bee. t. v. p. 398. (/) lb. Guide diplomatique, pp. 133, 138, and 771. ig) Fcelix, 8. 619, p. 593 (notis). (h) Martens, Nouv. Ree. t. vii. p. 682. (») Ih. t. Yii. p. 214. 0') Fcslix, pp. 692, 693^ 594. I)e Puttlingen, Die gesetzliche Behandlimg der Auslcinder in Oester- reich. Kliiher, Oefentliches Beclit des deutschen Bundes und der Bundesstaaten, 88. 197, 347. (Jc) Martens, Nouv. Rec., Supplement, t. ii. p. 81. • FcbUx, 8. 621, p. 594. EXTRADITION. — TREATIES. 453 penzell, the Grisons, Geneva (1828) (Z) ; and with Tuscany (October 1829) (m). CCCLXXVII. The Extradition of persons accused of high treason is stipulated for in Treaties with Russia and Prussia as to Polish subjects (January 1834) ; with all the States of the Germanic Confederation (August 1836) ; and with the Two Sicilies (^n), CCCLXXVIII. For the Extradition of deserters, Aus- tria has Treaties with Russia (April 1808, May 1815, July 1822) (o); with the minor Italian States; with the Pope (June 1821); with Sardinia (February 1826); with the Germanic Confederation (February 1831, May 1832). CCCLXXIX. Prussia punishes oifences committed by her subjects in foreign lands against her own laws only {p) ; but has incorporated in her criminal code the obligation of the proper magistrate to enforce the Extradition which has been the subject of Treaties with other nations ; certain pre- cautions being taken, such as taking security for obtaining a return for the Act of Comity granted by her {reversalia de oh servanda reciproco (q) ). She has Treaties of Extradition for persons charged with crimes or misdemeanours with Mecklenburg- Schwerin, of February 1811, and 1831 (r); with Russia, of May 1816, and March 1830 (5); and with Belgium, of July 1836 (t). In 1832, 1834, and 1836 Prussia entered into Treaties for the surrender of political offenders with the Germanic Con- federation, Austria, and Russia (m); in 1833 and 1837 (v), (/) Martens, Nouv. Bee. t. vii, p. 646. (m) Martens, t. xv. p. 44. (w) F(slix, 8. 621, p. 594. (o) Martens, Nouv. Recueil, t. iv. p. 282 ; t. yi. p. 120. Fcelix, 8. 621, p. 595. {p) Ih. 8. 560, p. 547. Iq) Fcelix, s. 622, p. 595. (r) Martens, Nouv. Rec. t. ix. p. 216. (s) Ih. t. iv. p. 293 ; t. Yiii. p. 244. {t) Ih. t. XV. p. 98. (u) Ih. t. XV. p. 44. \v) Fcelix, 8. 622, p. 596. 454 INTERNATIONAL LAW. into Treaties with the Germanic Confederation for the sur- render of contrabandists, provided that they were not sub- jects of the State in which they were arrested. Prussia has stipulated for the Extradition of deserters with Denmark, Brazil, France, Luxemburg, and the Germanic Confederation (ar). Bavaria, Oldenburg, 8axe-Altenburg, Brunswick, Hanover, and the Elector of Hesse, have or had the same principles, generally speaking, inserted in their domestic Codes and foreign Treaties. CCCLXXX. Switzerland has concluded Treaties with France (y), Austria (z), and Baden (a), for the Extradition of persons accused of crimes or misdemeanours ; but in none of these Treaties is any mention made of the surrender of Swiss citizens ; and it is expressly refused in the third Article of the Treaty with Austria. Spain and Portugal (b) recognize the Extradition of persons charged with crimes or misdemeanours, as a principle of International Law ; but have no other Treaties on the sub- ject than that already mentioned, with France, of 1778 and 1783(6"). CCCLXXXI. Denmark has Treaties for the Extra- dition of malefactors with Brunswick, of May 1732, July 1744, February 1759, and November 1767 (d); with Sweden, of December 1809 (e), in the Ninth and separate Article of which it is stipulated : — " Les devoirs du bon voi- " sinage imposant aux hautes parties contractantes I'obli- ** gation reciproquement salutaire de contribuer, en autant (a-) Faliv, s. 622, pp. 596, 597. (y) Vide supra. (a) Vide supra. (a) Vide supra. (b) Martens, Nouv. Rec. t. vii. p. 646 ; t. ix. p. 22. Foilix, p. 605, and note. (c) Vide supra. (d) M. Kluit, passim. FcbUx, s. 635, p. 606. (e) Martens, Nouv. Bee. i. i. p. 223. EXTRADITION. — TREATIES. 455 " qu'il est en leur pouvoir, au maintien des loix criminelles " des deux pays, elles sont convenues d'un article separe " qui sera a regarder comme s'il etoit insere mot a mot dans *' le present traite, et par lequel 1' extradition reciproque des " malfaiteurs et deserteurs sera stipulee et reglee." Denmark has a similar Treaty with Norway, of March 1823 (/), which contains provisions similar to those in the Treaty with Sweden. Denmark has Treaties, for the Ex- tradition of deserters, with Spain, of July 1767 (^); with Sweden, in the Treaty already mentioned ; with Mecklenburg Strelitz and Schwerin, of February and April 1823 (Ji) ; with Hamburg, of May 1832 (z). CCCLXXXII. Sweden appears to have only two Treaties on this subject : — 1. The Treaty already mentioned, with Denmark; 2. A Treaty with. Russia of November 1810(A), by the seventh Article of which it is stipulated : " La tran- " quillite et la surete des paisibles habitans de ces frontieres, " etant trop exposees par la grande facilite aux malfaiteurs " de se soustraire a leurs justes punitions, en passant sur le " territoire de I'autre puissance, il est convenu que tout meur- " trier, incendiaire, brigand ou voleur qui, apres avoir commis " un crime dans une des paroisses limitrophes, s'evadera sur le " territoire etranger, sera saisi et livre a son gouvernement " aussitot que requisition en aura ete faite ; mais en cas que " I'accuse soit sujet de I'Etat ou il se sera refugie apres " avoir commis le crime sur le territoire etranger, il sera juge " et puni par son propre gouvernement, avec la meme " rigueur que s'il s'etoit rendu coupable envers celui-ci." In both these Treaties, the surrender of deserters is conceded. Norway appears to have only the Treaty already men- tioned, with Denmark (Z). (J) Martens, Nouv. Rec. t. vii. p. 14. {g) lb. t. i. p. 459. (A) lb. t. vii. pp. 5, 16. (i) lb. t. vi. p. 259. (k) lb. t. i. p. 313, t. iv. p. S3. (l) Vide supra. 456 INTERNATIONAL LAW. CCCLXXXIII. Russia has the Treaties already men- tioned (w), for the Extradition of malefactors and deserters, with Austria, Prussia, and Sweden ; for the Extradition of deserters, with the kingdom of the Two Sicilies, of January 1787 (w); with Portugal, of December 1787 (o), and December 1798 (p); with Saxony, of October 1806(<7). CCCLXXXIV. The Sublime Porte is accustomed to surrender malefactors who are not subjects (r) ; but has re- fused to surrender political criminals. She appears to have no Treaty on the subject of Extradition. CCCLXXXV. Greece allows by her domestic law the Extradition of Turkish subjects for crimes or misdemeanours committed in her territory, but does not allow Greek subjects to be surrendered to Turkish authority for offences committed in the Turkish dominions (5). CCCLXXXVI. England holds, and has always held, as a general principle, the doctrine of refusing to surrender any persons who may have taken refuge in her dominions {t). The recent deviations from this principle are bounded by the letter of the Treaty which constitutes the particular case of exception ; and by no Treaty has she departed from her rule of refusing the Extradition of political refugees (w). By the Treaty of Amiens, England, for the first time, covenanted with France for the Extradition of fugitives charged with forgery, fraudulent bankruptcy, or murder, committed in their respective territories (y) ; but this Treaty was for a limited period. (m) Vhi supra. (n) Martens, Recueil, t. iv. p. 229, (0) lb. t. iv. p. 315 {Art. xix.). {p) lb. t. vi. p. 537 (Art. xix.). Iq) Martens, Nouv. Recueil, t. i. p. 153. (r) FcbUx, s. 639, p. 607, and note. Is) Fe notice of the private law of States, espe- cially of England and the United States of America, with respect to this subject seems proper in this place, though the fuller consideration of it belongs to a later part of this work, in which the duties and rights of Neutrals in time of War are discussed. The United States of America began their career as an independent country under wise and great auspices, and it was the firm determination of those who guided their nascent energy to fulfil the obligations of International Law as re- cognized and established in the Christian commonwealth of which they had become a member. They were sorely tried at the breaking out of the war of the first French Revolution, for they had been much indebted to France during their conflict with their mother country, and were much embarrassed by certain clauses relating to Privateers in their Treaty with France of 1778 ; but in 1793, under the Presidency of Washington, they put forth a proclamation of neutrality, and, resisting both the threats and the blandishments of their recent ally, took their stand upon sound principles of International Law, and passed their first Neutrality Statute of 1794. The same spirit induced the Government of these States at that important crisis when the Spanish colonies in America threw off their allegiance to the mother country to pass the amended Foreign Enlistment Statute of 1818; in accordance with which, during the same year, the British statute, after a severe struggle and mainly by the great power of Mr. Can- ning, was carried through Parliament. Public feeling, however, was generally averse to it, and a notion that it assisted the despotic Powers of Europe in VOL. I. H H 466 INTERNATIONAL LAW. repressing the efforts of their subjects to obtain constitutional liberty prevailed. It is a very remarkable fact that no public prosecution of an offender against the provisions of the statute appears to have been formally conducted, by order of the Government, in a court of justice, until the period of the recent American civil war ; that is, nearly fifty years after the passing of the Act. Public opinion upon the subject had then undergone a revolution. The statute when put to a practical test was found to be badly con- structed, and to bear in its loose phraseology and disjointed sentences (/) marks of the compromise which had enabled it to become law (^). In substance, though not without variations judicially considered important, it agreed with the American statute, which it was designed to follow. The machinery has been much improved in the statute of this year, which is better calculated to strengthen the hands of the Executive {h). The American statute has not as yet been altered (i). (f) Mr. Baron Channell, in the case of the Alexandra, said: "The Foreign Enlistment Act, particularly the seventh section, is very imper- fectly worded. There is no doubt that it was in a great measure, but with what appear to me important variations, penned from an Act of the United States, passed in Congress, first in the year 1794, and re-enacted by Congress in the year 1818 Faulty and imperfect as may be the wording of the seventh section of the Foreign Enlistment Act (and more imperfect or faulty wording I can scarcely conceive), if, notwithstanding all this, the words of the seventh section, read with reference to the other part of the Act, do, by a reasonably fair interpretation of our statute and the evidence, embrace the case of the Alexandra, then in my judgment it scarcely becomes necessary to consider what have been the decisions of the courts in America upon Acts of Congress in the main much the same, but in not unimportant respects different from our own Act." — JRep. of the Alexandra, by Eyre and Spottiswoode, 1864, p. 551. {g) Queen v. Carlin, ship Salvador. Judgment of the Privy Council, by Lord Cairns, June 28, 1870. Qi) The English and American statutes are printed in the Appendix to this volume. (i) See a very elaborate note, by Mr, Dana, on the statute, with refer- ence to the legislative, executive, and judicial proceedings upon it, in his edition of Wheaton, p. 536 (439). In 1866 a new Neutrality Bill was INTERVENTION. 467 It appeared from evidence laid before the English " Neu- " trality Laws Commission," appointed by the Queen in 1867 (the recommendations of whose Report are mainly in- corporated in the present and recent statute), that European States generally were furnished by their municipal law with the means of fulfilling their international obligations in this respect. The question of contraband merchandise sent to the market of a belligerent, and subject to capture on its road, does not properly belong to this chapter, but to another part of these Commentaries (A). CCCXCIII. Having made these observations with re- spect to the Intervention of subjects unauthorized by the State to which they belong, we must now consider Intervene Hon properly so called ; that is, by the State herself. The reason of the thing and the practice of nations appear to have sanctioned this Intervention in the following cases : — I. Sometimes, but rarely, in the domestic concerns and internal rights of Self-Government, incident, as we have seen, to every State. II. More frequently, and upon far surer grounds, with presented to the House of Representatives by tlie Committee of Foreign Affairs. It was tbe fruit of the existing irritation about the Alaba?na. It never became law. It " proposed to modify the American neutrality laws so as to make them more in conformity with the British Foreign Enlistment Act (59 Geo. III. c. 69), but with one notable difference. That Act pro- hibits the arming or equipment of any ship within the United Kingdom, with intent that it shall be employed in the service of any foreign State or with intent to commit hostilities against any State with whom her Majesty shall not then be at war; but, by way of retort for the alleged delinquencies of the British Government in the case of the Alabama, the Neutrality Bill provided that ' the neutrality laws shall not be so con- strued as to prohibit the sale of vessels, ships, or steamers, or materials and munitions of war, the growth or product of this country, to the Go- vernment or citizens of any country not at war with the United States.' So that the framers of this measure proposed to legalize the very thing from which, owing to a clandestine evasion of the Act, America had herself suffered, and of which she so loudly complained against Great Britain."— ^m. Beg. 1866, p. 277. (k) See vol. iii. pt. x. eh. i. H H 2 468 INTERNATIONAL LAW. respect to the territorial acquisitions or foreign rela- tions of other States, when such acquisitions or rela- tions threaten the peace and safety of other States. In the former case the just grounds of Intervention are — 1 . Self-Defence, when the Domestic Institutions of a State are inconsistent with the peace and safety of other States. 2. The Rights and Duties of a guarantee. 3. The Invitation of the Belligerent Parties in a civil war. 4. The Protection of Reversionary Right or Interest. In the latter case the just grounds of Intervention are — 5. To preserve the Balance of Power ; that is, to prevent the dangerous aggrandisement of any one State by external acquisitions. 6. To protect Persons, subjects of another State, from per- secution on account of professing a Religion not recog- nized by that State, but identical with the Religion of the Intervening State. These grounds, either separately or in conjunction, will be found in the following pages to have been deliberately and solemnly proclaimed as justifying causes of Foreign In- tervention. CCCXCIV. The First Limitation of the general right, incident to every State, of adopting whatever form of government, whatever political and civil institutions, and whatever rules she may please, is this : No State has a right to establish a form of government which is built upon professed principles of hostility to the government of other nations (Z). CCCXCV. It may be admitted that Venice in 1298, Great Britain in 1649, France in 1789 and after the accession of the Cavaignac Administration in 1848, and after the last revolution in 1851, and after the defeat of Sedan in this year 1870, were entitled, upon the principles (J) Kent's Comment, i. 21, ko. INTERYENTION. — INTERNAL AFFAIRS. 469 of National Independence, and without the Intervention of Foreign States, to make the great changes in their respective constitutions which were eiFected at those periods, because such changes concerned themselves alone. CCCXCVI. Why, then, cannot the same remark be applied to the French Revolution in the year 1792? The answer is to be found in the Decree promulgated by the Convention on the 19th of November, 1792. The Moniteur of that day records it in these words: " Lepeaux propose et la Convention adopte la redaction " suivante : " La convention nationale declare qu'elle accordera secours " a tous les peuples qui voudront recouvrer leur liberte, et " elle charge le pouvoir executif de donner des ordres aux " generaux des armees fran9aises pour secourir les citoyens " qui auraient ete, ou qui seraient vexes, pour la cause de la " liberte. " La convention nationale ordonne aux generaux des '^ armees fran9aises de faire imprimer et afficher le present " decret dans tous les lieux ou ils porteront les armes de la " republique. " Sergint. Je demande que ce decret soit traduit et im- " prime dans toutes les langues. — Cette proposition est " adoptee." This decree was treated by Great Britain (w), which, up to (ni) " The decisive proof upon the subject was to be found, not in loose recollection or in vague reports, but in the Journals of the House. — The speeches with which the King had opened and concluded each ses- sion of Parliament afforded an authentic record of the language of Go- vernment respecting the origin, grounds, and progress of the war. There were, besides, upon the Journals, many declarations which this House had made at different periods, and sometimes at the express suggestion of Ministers themselves, and with the avowed intention of obviating mis- representations. " This then was his defence of Parliament against the imputation of having varied its language or disguised its objects— of having engaged in the war for the restoration of monarchy in France, or of having pur- 470 INTERNATIONAL LAW. the period of its promulgation, had remained strictly neutral, as a declaration of war, of the worst and most hateful kind, against all nations ; nor indeed is it possible to conceive a grosser violation of the particular principle of International Law (n) which we are discussing, than is to be found in this barbarous and unprecedented proclamation — the herald of that long, bloody, terrible, and universal war, which shook not only Europe, but the world, to its centre, and of which the wounds are not yet healed. CCCXCVII. It is impossible to deny that the procla- mation put forward by the De Lamartine Administration, after the expulsion of Louis-Philippe, partook of the same character, though in a mitigated degree. According to that proclamation, " Les traites de 1815 " TL existent plus en droit aux yeux de la Republique Fran- " 9aise : toutefois les circonscriptions territoriales de ces " traites sont un fait qu'elle admet comme base et comme " point de depart dans les rapports avec les autres nations "(o). CCCXCVIII. In cases like the foregoing, the Right of Self-Defence justifies other nations in intervening and de- manding, and' if necessary by force of arms compelling, the abolition of a Government avowing a principle of hostility to the existing Governments of all other nations. sued it, at any period, with any other view than that of obtaining a secure and honourable peace for his country." — Speech of Lord Gren- ville in the House of Peers, on the motion of the Duke of Bedford for the dismissal of Ministers, 22nd March, 1798. Pub. by J. Wright, 169 Piccadilly. See also M. Lanfreifs Hist, de Napoleon I, t. ii. pp. 63, 4, 6. (ji) Fa^eZ justifies by anticipation the conduct of Great Britain in de- claring war after the promulgation of this decree. " Done toutes les nations sont en droit de r^primer par la force celle qui viole ouvertement les lois de la soci^t^ que la nature a etablies entre elles, ou qui attaque directement le bien et le salut de cette societe." — Prelim, s. 22. " Les nations ont le plus grand int^ret a faire universellement respecter le droit des gens, qui est la base de leur tranquillite. Si quelqu'un le foule ouvertement aux pieds, toutes peuvent et doivent s'^lever contre lui ; et r^unissant leurs forces pour chatier cet ennemi commun, elles s'acquit- teront de leurs devoirs en vers elles -memes et envers la society humaine, dont elles sont membres." — L. i. c. 23, s. 283. (o) '^ Manifeste aux Puissances, 4 mars : " Trois Mois au Pouvoir de M, de Lamartine, p. 75. INTEEVENTION.— INTERNAL AFFAIES. 471 But this, like the other grounds of Intervention, is very liable to be abused. The most flagrant instances of such abuse are to be found in the Partitions of Poland (/?). The de- tailed history of these public crimes is without the province of this work. But no treatise on International Law may pass over, wholly without comment, these grievous acts of national wickedness. The first spoliation was effected in September 1772, by Catherine II., Empress of Russia, Marie-Therese, Empress of Austria, and Frederick II., King of Prussia. In the manifesto of the two latter may be read the mi- serable pretexts under which this crime was sought to be veiled. Austria claimed territory, alienated from her to Poland several centuries ago, her first date being 1324 A.D., because, among other reasons, by the Canon Law alienations of territory by a crowned head were as invalid as the acts of a minor. Prussia took up her history not earlier than 1107 A.D., and recited various subsequent losses of property by the Margraves of Brandenburg, which Poland had ac- quired at a time when the Margraves were too feeble to resist, but to which property it was alleged that the Mar- graves had never formally renounced their claim. It is manifest that the original sin of the spoliation was greatly enhanced by these pretended reasons for it ; every one of them aimed a deadly blow at some sound principle of that faith which ought to bind together the nations of the (p) Mackintoshes Works, vol. ii. p. 330 j and Edinburgh Revieiv, vol. xxxvi. p. 463. Ferrand, Histoire des trois Demembrements de la Pologne. Hulhih-e, Histoire de VAnarchie de Pologne. Flassan, Histoire de la Diplomatie frangaise, t. vi. Dohm, Denkwiirdigkeiten meiner Zeit. Von Raumer, Polens Untergang ; Histor. Taschenbuch, t. iii. Koch, Histoire abregee de Traites de Pair, continuee par Schoell (ed. Bruxelles), t. iv. pp. 266-284, c. 60, ib. pp. 296, 304, 307-13, c. 62. Koch, Tableau des Revolutions de V Europe, t. ii. pp. 168, 224, 284. Gentz, Fragmente aus der neuesten Geschichte des politischen Gleich- geioiehts in Europa. Schriften, Band iv. ss. 51-59. Wheatan's Hist. pp. 267-281. Allge. Gesch. B. xxiii. k. 11. 472 INTERNATIONAL LAW. globe. Russia, by far the boldest, and, if the expression were allowable, the most honest criminal, seized upon her prey at once, scorning all subterfuges, and making openly her might her right. These three spoliators, however, were not the only offenders against International Law. France and England beheld with silence and indifference this violation of all the safeguards of national liberty and independence : they cannot be acquitted of all blame ; they contracted, in some de- gree at least, the guilt of the bystander who tamely and silently suffers a deed of wrong to be perpetrated in his presence. In 17 90, Poland, availing herself of the occupation afforded by a Turkish war to Catherine II. (who had never ceased to treat her as a province of Russia), contracted an alliance with Prussia, whereby that Power undertook to aid Poland against the attempt of any foreign nation to interfere with her internal government or affairs (q). Under cover of this alliance, in 1791 Poland gave herself a new constitution, rendering her crown hereditary in the Electoral House of Saxony, abolishing that source of her misery the liberum vetOy and effecting a reformation, of which Mr. Burke said : " So far as it has gone, it probably is the " most pure and defecated public good which ever has been " conferred on mankind " (r). But the French Revolution broke out, and Prussia not only forgot her pledge, but joined with Russia and Austria in plundering, for the second time, the country which had relied upon her honour. The second spoliation of Poland took place in 1793; the third, after the insurrection of the illustrious Kosciusko in 1795. The fate of Poland was again discussed at the Treaty of Vienna (1815); but after some remonstrance on the part of the British and French plenipotentiaries (5), and the delivery (q) Martens, Rec. de Traites, t. iv. p. 472. (r) Appeal from the Neiv to the Old Whiys. (.i\. r. it : Tovq dWovg i,Sn -napa- KaXiofifv, Kai TOVQ ravra didd^ovTag tKTrefiTTiijfiev irptafSeig iravTaxol, tig UtXoTTOvvricrov, tig 'PoSov, tig Xiov wg (BaaiXta Xtyoj — ovSt yap twv kKeiv({j avpi^f povTMv d) ; and it may be said, that from the reign of Charlemagne, to the invasion of Italy by Charles VIII. of France, towards the close of the fifteenth century, the state of the civilized world was not such as to call into any general operation this principle of International Law (q). To repel this invasion, the ingenious and refined Italians strove to induce the European Powers to adopt that policy of preventing the undue aggrandisement of any one Power, by which they had, for some time, maintained the equilibrium of the petty States of their own Peninsula. During the century which followed (r), and from the time that the liberties of the German Protestants were secured, under the guarantee of France and Sweden, by the Peace of Westphalia in 1648, this principle of International Law has been rooted in the usage and practice of the whole civilized world. The preservation of the Balance of Power has been the professed object of all, and the real (o) Polybius, 1. i. C. 83 : Tore de icai ixaWov t^iXon/itiro imTHaiikvuQ avj-Kptpeiv kavTi^ Koi vpog rriv tv 2ik«X/^ SvvaoTtiav kcii Tvpog Tr)v 'PujfiaicDV (piXiav TO ab)Zi(r6ai KapxvSoviovg, 'Iva firj TravTuTraoiv i^y to irpoTeOev ukovitI avvTiXilaOat toIq ixrxvovaiv, ttcivv (ppovijxioi^ kui %'ovv(.x<'K XoyiZofxtvogy k.t.X. Hume's Essays, vol. ii. p. 323, Essay vii. On the Balance of Power. (p) See Koch, Tableau des Revolutions, t. i. pp. 314-15, &c. {q) Koch, as to English Conquests in France, t. i. p. 314. {r) Wheaton's Hist. p. 81. I I 2 484 INTERNATIONAL LAW. end of most of what may be called the Cardinal Treaties. The recital and analysis of the events which led to them be- long to the history of the progress, rather than to a treatise on the principles, of International Jurisprudence. It will be sufficient for our present purpose to notice briefly those Treaties in which this feature is most conspicuous. CCCCIII. In the year 1519 (.s), enormous territorial possessions rendered the Emperor Charles V. more powerful than any sovereign who had existed in Christendom since the reign of Charlemagne ; a natural apprehension was felt by the other States of Europe, which the personal character of Charles was well calculated to foment {t). No better occa- sion could arise for the practical application of that refined and sagacious policy, which had so lately crossed the Alps. France took upon herself the task of adjusting the equilibrium of power in Europe ; Francis I. actually concluded, for this object, a Treaty of Alliance with the Turks, the first Treaty contracted by an European Sovereign, and by which the Porte may be said to have been introduced into the political system of the West, and to have become a consenting party to a branch of positive International Law. The next step taken by France, was to constitute herself protectress of the minor German States ; and in the intensity of her zeal to effect her object, she availed herself of the tremendous weapon which the Religious war of the Reformation offered to her grasp. The all-important succour which Queen Elizabeth of Eng- land afforded to the revolted Netherlands, was a natural con- sequence both of the political and religious condition of her kingdom (m). But the effects, which this maxim of preserving the liberty of all States by preventing the undue aggrandisement of one, produced upon the policy of France, are such as must have baffled all previous calculation. Then was unfolded that (s) Koch, i. 317. (t) lb. i. 318. (u) Sidly^s memorable proposition to Queen Elizabeth, Koch, i. 519. INTERVENTION. — BALANCE OF POWEE. 485 remarkable page of history, in which Roman Catholic France was seen, under the governments of Richelieu and Mazarin, repressing with one hand, and that a hand of iron, the Cal- vinistic subjects of her own land ; while with the other she supported the Protestants of Germany in their long and suc- cessful opposition to the aggressions of the Imperial power. To preserve the Balance of Power was the real object of the terrible and desolating war of the Thirty Years. The creation of the Federal System of the Germanic Empire, and the recognition of the two new independent States — the United Netherlands, and the Swiss Cantons — guaranteed by France and Sweden in the Treaties of Westphalia (1648) and the Pyrenees (1659), were intended and supposed to form an effectual barrier to the undue preponderance of Austria, and to have secured the equilibrium, and thereby the peace of Europe. The independence and liberties thus secured to the States of Southern Europe were, about the same time, guaranteed, by the Treaties of Copenhagen (1658) and Oliva (1660), to the States of Northern Europe (a,-), which composed, in some sort, a distinct system. The equilibrium of power in the North, which had been endangered by the ambition of Sweden, was adjusted by the Treaties between Sweden, Denmark, Poland, and the Elec- {x) JBynkershoeJc considers this forcible pacificatioD of the North to have been an infringement of International Law : " Ut iniquum est (he say) principem invitum ad helium cogere, ita et ad pacem. Cum tamen Ordines Generales sibi a Francis metuerent, et Franciae quoque magnitude liminibus Anglicis videretur officere, Anglise et Sueciae reges, itemque Ordines Generales, 23 Jan. 1668 iniverunt foedus, quo inter alia cautum est, ut Hispani, quos inter et Francos helium erat, quasdam conditiones, illo fcedere prsescriptas, tenerentur accipere, et, iis acceptis, si FranciaD Rex pergeret regi Hispanise helium facere, se armis intercessuros, coactis sic ad pacem Franciae et HispaniaB regibus. Eursus, cum publico non expediret, Sueciae regem etiam Daniam habere, Sueciae regem cum Dano pacem facere coegerunt Franci, Angli et Ordines Generales 21 May 1659, erepto sic Daniae rege mediis ex faucibus Orci, in quas se praecipitaverat, vicino potentiore in se concitato. His injuriis praetexitur studium con- servandae pacis," &c. — Qucest. Jur. Pub. 1. i. c. xxv. s. 10. 486 INTERNATIONAL LAW. torate of Brandenburg, under the guaranteeship of Austria, France, England, and the United Provinces. Before the close of the century in which these Treaties were made, the aggrandisement and ambition of France united against her the same Powers which had formerly, for like causes existing elsewhere, leagued themselves with her ; and to these Powers were now added Great Britain and the United Provinces. The principal object of the Treaty of Utrecht (1713), Rastadt and Baden (1714), was to secure Europe against the universal dominion of France. By the fundamental articles of this Treaty, the second great landmark of modern history, it was declared that the kingdoms of France and Spain should never be united under one sceptre; and that the Spanish Netherlands should be transferred to the House of Austria, to which Milan and Naples, with less reason, were also assigned (y). The avowed object of the memorable wars which preceded this Treaty, and of the convention itself, was the restoration of the Balance of Power in Europe (z). This Treaty may in some desrree be said to have " called in the New World to o " balance the Old " (a) ; the balance being partly adjusted by the cession and transference, from one European Power to another, of colonial possessions in other parts of the globe {b) ; in other words, positive International Law was carried beyond the limits of Europe. This Treaty was made, to borrow its own language (c), "ad " conservandum in Europa equilibrium;" indeed, the recog- nition of the system of balance may be dated from this epoch : and — if we except a partial deviation from it by the Treaty of Vienna in 1738, which seated a younger branch of the {y) Koch, ii. 7, 27. (z) TVheaton, Hist. p. 125. (a) Mr. Canning's Speech on sending the troops to Portugal. — Speeches, vol. vi. p. 61. (b) Wheaton, Hist. p. 87. ((•) Koch, ii. 92. INTERVENTION. — BALANCE OF POWER. 487 Spanish monarchy upon the throne of the Two Sicilies — it continued to govern the territorial arrangements of the South of Europe, till the first French Eevolution, and is mentioned in every treaty of peace till that of Luneville, in 1800. So late as 1846-7 {d) the Treaty of Utrecht was invoked by England, when protesting against the ill-omened mar- riage of the Due de Montpensier ; and though the doctrine of non-revival, by express mention in subsequent Treaties, may be held to have annulled the binding force of its specific provisions, the principle of European policy, namely, that the Crowns of France and Spain shall never rest upon the same head, is put on record for ever by a Treaty of this description. CCCCIV. From the date of the Treaty of Utrecht to the present day, the progress and fate of this principle of International Law have undergone great vicissitudes. The most convenient way of drawing attention to them is to divide the period which has elapsed between 1713 and 1854 into five Historical Epochs, namely — 1. The interval between the Treaty of Utrecht and the breaking out of the first French Revolution (1713- 1789). 2. The interval between the first French Revolution and the Treaty of Vienna (1789-1815). 3. The interval between the Treaty of Vienna and the Treaty of Paris (1815-1856). 4. The interval between the Treaty of Paris and the Treaty of Prague (1856-1806). 5. The interval between the Treaty of Prague and the present time (1866-1870). 1. In the first interval (1713-1789) various causes, na- tural and moral, conspired to disturb the equilibrium esta- {d) MacldntosKs Works (Speech, Feb. 19, 1816), who thinks that the Treaty of Utrecht is not now in force ; but see a pamphlet on the Mont- pensier Marriage, written, it is believed, by Lord William Hervey, secretary to the English embassy at Paris, 1846-7 : and see this subject discussed in a later part of this work, under Treaties. 488 INTERNATIONAL LAW. blished at Utrecht. The rapid and immense aggrandisement of Russia {e), emerging from Asia into Europe after the victories of Peter the Great — the depression of Sweden — the creation of the essentially military kingdom of Prussia, intervening between the Northern and Southern systems of European States, rivalling the power of Austria and causing the strange phenomenon of a union between the Houses of Hapsburg and Bourbon, dividing as it were Germany into two parts, and preparing in the opinion of many the dissolu- tion of the Germanic Confederation — the increasing mari- time preponderance of Great Britain : — these were natural causes which deranged the Balance of Power established at Utrecht, while they inflicted no open violence upon the principles of International Law. But the wars of the Austrian and Bavarian successions, and above all the first spoliation of Poland — all these transactions in which " Violence Proceeded, and oppression, and sword-law, Through all the plain " (/)— shook to its very centre the system of International Justice. They introduced the worst of all periods which, since the in- troduction of Christianity , this system has experienced, viz. — 2. The period from 1789 to 1815. The aggressions of Re- volutionary France during this epoch were repeatedly justi- fied by reference to the rapine committed by Russia, Austria, and Prussia upon Poland ((/). The bitter and degrading humiliations which the two latter Powers underwent before, by the heroic exertions of their people, they shook off the yoke of Napoleon, the bloody fields of Eylau and Smo- lensko, and the terrible necessity which destroyed the second capital of Russia— these were the legitimate fruits of the evil doctrine promulgated by those Powers, when they in- vaded and partitioned the kingdom of Poland. The Treaty of Paris and the Congress of Vienna (1814-15) (e) Koch, ii. 92-95. (/) Milton, Par. Lost, b. xi. 11. 671-3. (g) Gentz, vol. iv. p. 50, «&;c. INTERVENTION. — BALANCE OF POWER. 489 concluded the war for the independence of Europe ; and again the attempt of one nation to exercise universal dominion over others — an attempt of a far more formidable character than any which had occurred during the preceding periods — was defeated. The main object of this Treaty (h) was to restore the equilibrium of Europe ; but many of the means by which this end was sought or was said to be effected, appear indefensible upon the true and sound principles of International Law. A terror of the consequences of the French Revolution, and of the dominion of Buonaparte, seems to have generated in the great Powers of Europe the baneful notion that the creation of large kingdoms, by the absorption of small independent States, was the best secu- rity against a recurrence of the evils which Europe had endured for nearly a quarter of a century (2). To effect this purpose, States were, in several instances, treated simply as containing so many square miles and so many inhabitants, little or no regard being paid to national feelings, habits, wishes, or prejudices. The annexation of Norway to Sweden, of Genoa to Sardinia, of Venice to Aus- tria, and the diminution of the territory of Saxony, were among the instances of grievous violations of International Justice afforded by this Treaty, and for which the preservation of the Balance of Power was the pretext and excuse {k) ; but the true and legitimate application of that principle would have been a league of protection of the greater with the smaller (h) " Les Puissances alliees reimies dans Tintention de mettre un terme aux malheurs de I'Europe, et de fonder sou repos surune juste repartition des forces entre les Etats qui la composent." — Convention signee a Paris, le 23 avril 1814, Be M. et Be C. t. iii. p. 8. (*) Getitz, uhi supra. (Ji) '■'• His injuriis (says Bynkershoek, speaking of what he conceived to be infringements of International Law on the pretext of preserving the general safety of States) prsetexitur studium conservandae pacis, quod et ipsum proetexitur injuriis, longe adhuc majoribus, quae potissimum ab aliquot retro annis invaluerunt, quum nempe principes mutuis pactis, de aliorum principum regnis et ditionibus ex animi sententia statuunt, atque si de re sua statuerent. Has injurias peperit, et adhuc parit, Ratio quam vocant, StatHs^ — Qimst. Jur. Pub. lib. i. c. xxv. s. 10. 4y0 INTERNATIONAL LAW. States. The policy which seeks to establish one principle of International Law upon the ruin of others, has been, and always must be, a policy as fatal to the lasting peace of the world, as the attempt to promote one moral duty, at the ex- pense and by the sacrifice of others, is and must be fatal to the peace of an individual : " populus jura natura3 gentium que " violans, sua? quoque tranquillitatis in posterum rescindit " munimenta " (/). CCCCV. 3. During the period from the Treaty of Vienna to the Treaty of Paris (1815-1856), the principle of the Balance of Power has been, upon several occasions of great importance, most formally and distinctly recognized as an essential part of the system of International Law. In the earlier part of this period the abuse of the prin- ciple which tainted so injuriously the Treaty of Vienna, continued in full operation. An alliance was formed be- tween Great Britain, Russia, Austria, and Prussia, to which, at the Congress of Aix-la-Chapelle, in 1818, France became also a party ; the object of this alliance was never perhaps very clearly defined ; but some of the contracting parties, at least, considered it to be a system of Intervention, not merely to guard against the unlawful aggrandisement of any one State, but also to prevent the happening of such internal changes in any existing State, as these Powers might consider to be of a revolutionary character, and therefore as eventually unsafe to neighbouring States. Great Britain, however, appears never to have put this construction on the object of the coalition ; (I) "Maleautem a Carneade stultitiae nomine justitiatraducitur. Nam sicut, ipso fatente, stultus non est civis qui in civitate jus civile sequitur, etiamsi ob ejus juris reverentiam quaedam sibi utilia omittere debeat : ita nee stultus est populus, qui non tanti facit suas utilitates, et propterea communia populorum jura negligat ; par enim in utroque est ratio. Nam sicut civis qui jus civile perrumpit utilitatis preesentis causa, id convellit quo ipsius posteritatisque suae perpetuae utilitates continentur: sic et poimlusjura naturce gentiumque violans, sue? quoqm tranquillitatis in pos- terum rescindit munimenta.^' — Grotius, Prolegomena, 18. See Mahly's opinion that Treaties of Partition are contrary to Inter- national Law, t. ii. pp. 64-5, 149-160. INTERVENTION. — BALANCE OF POWER. 491 at all events, she expressed her emphatic dissent from it, upon the first occasion of its practical application in the re- solutions of Austria, Russia, and Prussia, at the Congresses of Troppau and Laybach. Great Britain protested then, while her foreign affairs were under the administration of Lord Castlereagh, against the measures adopted by those Powers with respect to the revolution at Naples in 1820, and still more against the principles upon which they were said to be founded. She protested also, under the same administration, against the proceedings of the Congress of Vienna in 1822, at which the armed intervention of France in the internal affairs of Spain was sanctioned by Russia, Austria, and Prussia. Subsequently, under the wise and vigorous administration of Mr. Canning, Great Britain pro- tested against any Intervention of the European Powers in the contest between Spain and her American Colonies, de- claring that she would consider any such Intervention by force or menace as a reason for recognizing the latter without delay (m) ; and at the same time the United States of Ame- rica announced, that they would consider any such Inter- vention as an unfriendly manifestation towards themselves. A few years later Mr. Canning, in the House of Com- mons, defended the Government for not having resisted, by war, the entrance of the French army in Spain, which he admitted that the disturbance of the balance of power caused by this event would have justified ; and, alluding to the recognition of the American Colonies, which had then taken place, made his proud and legitimate boast, " I called " the New World into existence, to redress the balance of " the Old." It was at this epoch that the American President Munroe promulgated, in his annual address, an opinion which after- wards obtained celebrity under the name of the " Munroe " Doctrine." An erroneous conception as to this opinion or (m) Vide post. 492 INTERNATIONAL LAW. doctrine has very generally prevailed; but in 1862 Mr. Everett wrote a paper in the " New York Ledger " (w) which appears to put a proper construction on the opinion itself, and to give a correct version of the transaction in which it originated. In 1823 President Munroe said, in his annual address, as follows : — '* The late events in Spain and Portugal show that Europe " is still unsettled. Of this important fact no stronger " proof can 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 " may be carried on the same principle is a question in " which all independent Powers whose Governments differ " from theirs are interested — even those most remote, and " surely none more so than the United States. Our policy " in regard to Europe, which was adopted at an early age of " the wars which have so long agitated that quarter of the " globe, nevertheless remains the same ; which is, not to in- " terfere in the internal concerns of any of its Powers ; to " consider the Government de facto as the legitimate Go- " vernment for us ; to cultivate friendly relations 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, in regard " to those continents, circumstances are eminently and con- " spicuously different. It is impossible that the allied " Powers should extend their political system to any portion " of either continent without endangering our peace and *^ happiness ; nor can any one believe that our Southern ** brethren, if left to themselves, would adopt it of their own " accord. It is equally impossible, therefore, that we should " behold such interposition in any form with indifference. " If we look to the comparative strength and resources of (n) Afterwards printed in a separate form by the Loyal Publication Society, N. 34— 2%e Munroe Doctrine, Sept. 2, 1863. INTERVENTION. — BALANCE OF POWER. 493 " Spain, and those new Governments, and their distance " from each other, it must be obvious that she can never " subdue them. It is still the true policy of the United " States to leave the parties to themselves, in the hope that " other Powers will pursue the same course " (o). Mr. Canning had stated that if a Congress of European Powers assembled to deal with the affairs of Spanish Ame- rica, he should insist on the United States being repre- sented ; and, in answer to the statement of their Minister at St. James's, that it was a traditional rule of the United States not to interfere with European politics, had replied that such a policy, however generally and formerly sound, was inapplicable to the present circumstances. " The question was a new and complicated one in modern " affairs. It was also full as much American as European, " to say no more. It concerned the United States under " aspects! and interests as immediate and commanding as it " did or could any of the States of Europe. They were the " first Power established on that continent, and confessedly " the leading Power. They were connected with Spanish " America by their position, as with Europe by their rela- " tions ; and they also stood connected with these new States " by political relations. Was it possible that they could " see with indifference their fate decided upon by Europe ? " Could Europe expect this indifference ? Had not a new " epoch arrived in the relative position of the United States '^ towards Europe, which Europe must acknoAvledge ? Were " the great political and commercial interests which hung *' upon the destinies of the new continent to be canvassed and ^' adjusted in this hemisphere without the co-operation or even " knowledge of the United States ? Were they to be can- " vassed and adjusted, he would even add, without some " proper understanding between the United States and Great " Britain, as the two chief commercial and maritime States (o) Ann. Reg. 1823, pp. 193-4. 494 INTERNATIONAL LAW« " of both worlds ? He hoped not, he would wish to per- " suade himself not." It was in consequence of this urgent pressure that Presi- dent Munroe uttered the language which has been cited from his address. I may observe, in passing, that the doc- trine contained in it, whatever that be, has not been corro- borated by an act of the legislature of the United States. But the doctrine does not, as has been sometimes supposed, deny the right of European countries to rule their colonies in America, or their right of further colonization in America. It protests against war being waged in America by European Powers to preserve the equilibrium of States in Europe. It was considered at the time as proclaiming a policy iden- tical with that of Mr. Canning, and was hailed with every expression of joy by the liberal statesmen of the British Parliament. The indirect consequence was to redress in some respects the European Balance of Power, and to justify the language already cited of Mr. Canning on this subject. CCCCVI. It is true that the military Intervention of Great Britain in the affairs of Portugal in 1826 took place in order to discharge the obligations of Treaties, and, at the request of Portugal herself, to protect her against the hostile aggressions of Spain ; and not in order, directly at least, to restore the Balance of Power. But the Interven- tion of Great Britain, Austria, Russia, Prussia, and France in the Belgian {p) Revolution of 1830, had, as has been already seen, for one of its avowed objects, the establishment of a just Balance of Power, and the security of the general peace. On the 19th of February, 1831, the intervening Powers signed a Protocol, in which the enunciation of this principle occupied a very conspicuous place. " Les Plenipotentiaires des Cours d'Autriche, de France, " de la Grande-Bretagne, de Prusse, et de Russie, s'etant {p) Hansard, Pari. Deh. vol. xxviii. pp. 1133-1163. Martens, Nouv. Mee. t. i. p. 70. IxVTERVENTION. — BALANCE OF POWER. 495 " assembles, ont porte toute leur attention sur les interpre- " tations diverses donnees au Protocole de la Conference de '• Londres, en date du 20 decembre 1830, et aux princi- " paux Actes dont il a ete suivi. Les deliberations des " Plenipotentiaires les ont conduits a reconnaitre unanime- " ment, qu'ils doivent a la position des cinq Cours, comme a " la cause de la paix generale, qui est leur propre cause, et " celle de la civilisation europeenne, de rappeler ici le grand " principe de droit public, dont des Actes de la Conference " de Londres n'ont fait qu'offrir une application salutaire et " constante. " D'apres ce principe d^un ordre superieur, les Traites ne " perdent pas leur puissance, quels que soient les changemens " qui interviennent dans I'organlsation interieure des peuples. " Pour juger de I'application que les cinq Cours ont faite de " ce meme principe, pour apprecier les determinations qu'elles " ont prises relativement a la Belgique, il suffit de se reporter " a I'epoque de I'annee 1814. " A cette epoque les Provinces Beiges etaient occupees " militairement par 1' Autriche, la Grande-Bretagne, la Prusse, " et la Russie ; et les droits que ces Puissances exer9aient " sur elles furent completes par la renonciation de la France " a la possession de ces m^mes Provinces. Mais la renoncia- " tion de la France n'eut pas lieu au profit des Puissances " occupantes. EUe tint a une pensee d'un ordre plus eleve. " Les Puissances, et la France elle-meme, egalement desin- " teressees alors comme aujourd'hui dans leurs vues sur la " Belgique, en garderent la disposition et non la souverainete, " dans la seule intention de faire concourir les Provinces " Beiges a Vetahlissement d'un juste equilihre en Europe, et au " maintien de la paix generale. Ce fut cette intention qui " presida a leurs stipulations ulterieures ; ce fut elle qui unit " la Belgique a la Hollande ; ce fut elle qui porta les Puis- " sauces a assurer des lors aux Beiges le double bienfait " d'institutions libres, et d'un commerce fecond pour eux en " richesse et en developpement d'industrie. " L'union de la Belgique avec la Hollande se brisa. Des 496 INTERNATIONAL LAW. " communications officielles ne tarderent pas a convaincre " les cinq Cours, que les moyens primitivement destines a " la maintenir ne pourraient plus ni la retablir pour le mo- " ment, ni la conserver par la suite ; et que desormais, au " lieu de confondre les affections et le bonheur des deux " Peuples, elle ne mettrait en presence que les passions et les " haines, elle ne ferait jaillir de leur choc que la guerre avec " tons ses desastres. II n'appartenait pas aux Puissances " de juger des causes qui venaient de rompre les liens " qu'elles avaient formes. Mais quand elles voyaient ces " liens rompus, il leur appartenait d'atteindre encore Pobjet " qu'elles s'etaient propose en les formant. II leur appar- " tenait d'assurer, a la faveur de combinaisons nouvelles, " cette tranquillite de I'Europe, dont I'union de la Belgique " avec la HoUande avait constitue une des bases. Les " Puissances y etaient imperieusement appelees. Elles " avaient le droit, et les evenemens leur imposaient le devoir, " d'empicher que les Provinces Belies, devenues independantes, *^ ne portassent atteinte a la securite generale, et a Vequilihre " europeen " (^q). The Kingdom of Belgium was thus founded upon the principle of maintaining the Balance of Power in Europe. In this year (1870) it was thought necessary by the British Government to enter into further separate Treaties with France and Prussia, then, as now, at war with each other, by which Treaties England undertook, in the event of either of these two Powers attacking Belgium, to become the ally of the other Power for the purpose of defending Bel- gium (r). The Duchy of Luxemburg belonged to the King of Holland as Grand Duke, and formed part of the old German Confederation, which was destroyed by Prussia at the close of the war in 1866 between that country and Austria. In (y) Protocols of Conferences in London relative to the Affairs of Belgium, art. i. 1830-31, pp. 69-60 ; and State Papers, vol. xviii. p. 779, &c. (r) Vide antb, p. 129. INTERVENTION. — BALANCE OF POWER. 497 1867, after a Conference between England, France, Austria, Prussia, Kussia, and Holland, to which Italy was afterwards admitted, and in which Belgium was also repre- sented, a Treaty was concluded, by the provisions of which the sovereignty of Luxemburg was preserved to the King Grand Duke and his successors; the Grand Duchy w^as neutralized in a manner presently to be stated ; the fortifi- cations were to be destroyed and not restored ; the Prussian troops were to evacuate the place, and no military establish- ment to be kept up there. The neutralization article was as follows : — Art. 2. " The Grand Duchy of Luxemburg, within the " limits determined by the Act annexed to the Treaties " of the 19th of April, 1839, under the guarantee of the " Courts of Great Britain, Austria, France, Prussia, and " Russia, shall henceforth form a perpetually neutral State. " It shall be bound to observe the same neutrality towards " all other States. "The high contracting parties engage to respect the " principle of neutrality stipulated by the present article. " That principle is and remains placed under the sanc- " tion of the collective guarantee of the Powers signing " parties to the present Treaty, with the exception of Bel- " gium, which is itself a neutral State " {s). During the present war (1870) the neutrality of Belgium and Luxemburg has been hitherto respected by both bel- ligerents. The intervention of France, Great Britain, and Kussia in the Greek Revolution of 1828, as has been already observed, was not originally founded upon the plea of preserving the Balance of Power, but was placed upon other grounds. In April 1834 a Quadruple Alliance was formed be- tween France, England, Portugal, and Spain, by which the two former undertook to assist the two latter Powers in fulfilling a mutual agreement to expel Don Miguel, the (s) Ann. Reg. 1867, p. 225. VOL. I. K K 498 INTERNATIONAL LAW. Pretender to the throne of Portugal, and Don Carlos, the Pretender to the throne of Spain, from the territories of the two kingdoms. " In consequence of this agreement" (it is said in the preamble of this Treaty of the Quadruple Alliance), " their " Majesties the Regents have addressed themselves to their " Majesties the King of the United Kingdom of Great " Britain and Ireland, and the King of the French ; and " their said Majesties, considering the interest they must" " always take in the security of the Spanish monarchy, and " being further animated by the most anxious desire to assist " in the establishment of peace in the Peninsula, as well as " in every other part of Europe ; and his Britannic Ma- " jesty considering, moreover, the special obligations arising " out of his ancient alliance with Portugal ; their Majes- " ties have consented to become parties to the proposed " engagement." In August 1834 a Treaty of additional articles was con- cluded, Avhereby France undertook to prevent the importa- tion of supplies and ammunition to the party of Don Carlos in Spain ; and Great Britain undertook to supply arms to the Spanish Government, and assist it with naval forces. Great Britain relaxed the provisions of her Foreign En- listment Act, and permitted, by an Order in Council, her subjects to engage in the service of the Spanish Government, and a corps of volunteers was raised and commanded by a British officer. The independent existence of the Turkish Empire at Constantinople has become, in the opinion of all the prin- cipal European Powers, necessary to the preservation of the Balance of Power : — so great, and so little to be foretold, have been the vicissitudes of the kingdoms of the world, and especially of Europe, since the sixteenth century. It is not true that Christian Europe requires, as has been sometimes said, as a condition of her security, the existence of a Mahometan Power within her boundaries ; but that the preservation and maintenance of the general peace demands INTERVENTION. — BALANCE OF POWER. 499 that the Ottoman dominions should not be absorbed into the territories of any of the existing European communities {t). It is conceivable that Constantinople may again become the seat of a Christian Greek Government, capable of maintain- ing the position and supporting the character of an inde- pendent kingdom; and were such an event to occur, the Balance of Power might be at least as well secured as by the present state of things. The same remark applies to the Pachalic of Egypt, holden under the suzerainete of the Porte (m), which could not be included in the possessions of any other European Sovereign without danger to the secu- rity of other European States. During the epoch now under discussion, there have been several Interventions by the European Powers in the affairs of Turkey. After the battle of Navarino, and the recognition of the independence of Greece, war still continued between Russia and Turkey, and was not altogether concluded until the framing of the Treaty of Adrianople in 1829. Before the Porte had recovered from her losses and dis- asters, she was threatened with a more alarming danger, from the ambitious rebellion of Mehemet Ali, Pacha of Egypt. After the battle of Koniah in 1833, in which the Turkish were utterly defeated by the Egyptian forces, under Ibrahim Pacha, Constantinople itself was in imminent peril, and the Porte requested the Intervention of Austria, France, and England. While these Powers undertook a negotiation to prevent the further advance of Ibrahim, Russia landed an army on the Asiatic side of the Bosphorus, between Ibrahim and the capital. A treaty of peace between the Sultan and (t) The Porte concluded, on Slst January, 1790, a Treaty against Austria and Russia with Prussia, in whidi that Power " a cause du pre- judice que les ennemis, en passant le Danube, ont apport^ a la balance du pouvoir desire et necessaire, promet de declarer la guerre de toutes sea forces aux Russes et aux Autrichieus," kc.—Koch, Hist, des Tr. t. iv. p. 419. (m) Vide ante, p. 129, s. xcix. K K 2 500 IN^rEllNATIONAL LAW. tlie Pacha was conohided at Keelayah, under the mediation of France and England, in 1833, and a separate Treaty entered into between Russia and the Porte at Unkiar Skelessi in the same year, by which, among other things, it was covenanted that Russia should assist the Porte with a naval and military force, when requested to do so, and that the Porte should, by way of reciprocity, close the Dardanelles against foreign ships at the request of Russia. France protested against this Treaty as producing a change in the relations between the Ottoman Empire and Russia which affected the interests of the other Euroj)ean States. The duration of this Treaty was limited to eight years ; before that period had elapsed, war again broke out between the Sultan and the Pacha of Egypt, who gained a decisive victory over the Turkish troops at Nezib. Shortly afterwards the Avhole Turkish fleet deserted to the Pacha. These events, disturbing the security of the Levant, and endangering the general peace, the alarm engendered by the spirit of the Treaty of Unkiar Skelessi, and the exclusive interference of Russia, determined the Western Powers to intervene in this war of the two great divisions of the Ottoman Empire. Their Intervention was expressly and carefully founded upon the grounds, that the present state of things disturbed the Balance of Power, and thereby the peace of Europe, and that the Sultan had requested their Intervention. A Convention was ultimately concluded at London on the 14th of July, 1840, between the great European Powers, exclusive of France. By this Convention the Sultan conferred on Mehemet Ali and his descendants in the direct line, the Pachalic of Egypt for his life, with the title of Pacha of Acre, and the command of the fortress of St. Jean d'Acre. It was further stipulated that Mehemet Ali and his descen- dants should pay a certain annual tribute to the Sultan ; — that the Turkish fleet should be immediately restored ; — that the Treaties and Laws of the Ottoman Empire should be applicable to Egypt in the same manner as to every other part of the Ottoman Empire ; — that the military and naval INTERVENTION. — BALANCE OF POWER. 501 forces of the Pacha should be considered as part of the forces of the Ottoman Empke, and maintained for the service of the State. In 1847, England, France, and Spain intervened in the internal affairs of Portugal, at the request of the Queen of that country, and put down by force the rebellion that harassed her subjects ; but at the same time guaranteed to the insurgents, under certain conditions, an amnesty for political offences, and certain improvements in the Consti- tutional Government. In this mediation England took the leading part (x). In 1848, France and England endeavoured jointly to mediate in the disturbances which agitated every kingdom in the Italian peninsula; and in 1849, the Government of England asserted her right of intervening, by the expression of opinion at least, in the civil contest between Austria and Hungary (y). In 1851 the Governments of France and England ad- dressed notes, the former to the Powers who had signed the Treaty of Vienna, the latter to the Germanic Confederation, protesting against the suggested incorporation of Austrian provinces, not being German, into the Germanic Confede- ration. Such an event, it was urged, though unconnected with any acquisition of new territory, would clearly affect the Balance of Power (^). Upon the same principle, on the 2nd of August, 1850, Austria, France, England, Prussia, Russia, and Sweden, put forth a Protocol, respecting the succession to the Danish monarchy, in which " the maintenance of the integrity " of that monarchy was said " to be connected with the general " interests of the Balance of Europe, and of high importance (a) Ann. Reg. 1849, p. 346, June 12 & 13. (y) Ih. 1848-9, vol. xc. p. 171 ; vol. xci. chap. vi. (z) See these notes in extenso, Ann. des Deux Mondes (1851-2), French memorandum, p. 953 ; English note {Lord Cowlmj)^ p. 959, " qu'il prevoit en nieme temps qu'un pareil changement derawjerait requilibre (jenerair &c. "• 502 INTERNATIONAL LAW. " to the preservation of peace ; " and therefore, at the request of the King of Denmark, they put forth a declaration to the above eifect («). The same Powers, on the 8th of May, 1852, concluded a Treaty, binding themselves to recognize Prince Christian of Sleswig-Holstein and his heirs male as the lawful successors to the throne of Denmark (b). In 1851, the doctrine of Intervention was vigorously en- forced on the South American Continent, in a manner well deserving attentive consideration (c). That portion of South America which is politically and geographically designated as the States of De La Plata, on account of the position they occupy in the great basin of this river, consists of the Argentine Confederation (then under the dominion of General Rosas), the Oriental Republic of Uruguay, and Paraguay. Paraguay and Uruguay (d) touch the confines of the empire of Brazil. Rosas had for some time threatened directly the independence of Paraguay (formerly a province of the Vice-Royalty of Buenos Ayres), which he claimed as a province of the Argentine Confederation, while at the same time he manifested an intention of indirectly do- mineering over Uruguay, the capital of which, Monte Video, had been for a long time assailed by General Oribe, his ally. The Emperor of Brazil, greatly preferring Paraguay and Uruguay, as at present governed, for his neighbours, to those countries under the domination of Rosas, suddenly, and without any concert with the European Powers, inter- vened with an armed force in the quarrel between Monte Video and the Argentine Republic, and destroyed in a moment the power of Rosas, which had for many years embarrassed the diplomacy of England and France (e). (a) Ann. Meg. for 1852, p. 440. (6) Ann. des Deux Mondes (1851-2), pp. 960-1. (c) lb. (1861-2), pp. 27, 865, 881, 978. (d) Vide ante, p. 163. (e) Ann. des Deux Mondes (1850), p. 1052, Question de la Plate ; ih. 1851), pp. 27, 865, &c. INTERVENTION. — BxVLANCE OF POAVEK. 503 Brazil has entered into five Treaties with the Oriental Republic of Uruguay, forming, in fact, a code or system of general relations between the two States, but especially regulating the mode of Intervention accorded to Brazil in the affairs of Uruguay (/). In 1852-3 {cj), this doctrine of Intervention to prevent the undue aggrandisement of any one State by the absorption of the territories of another, was applied upon a very im- portant occasion by England and France to the American Continent and the West Indies. These two Governments invited the North American United States to accede to a tripartite Treaty, the object of which was, to bind the three Governments to renounce both now and hereafter all in- tention of appropriating the Island of Cuba, or, in other words, to express their determination to abide by the status quo in the West Indies (Ji). The North American United States refused to be parties to this Treaty ; but the right of Intervention, on the part of England and France, was steadily proclaimed, both on account of their own interests, and on account of those of friendly States in South America, as to the " present distribution of power " (i) in the Ame- rican seas. In 1854 a war was waged by England, France, and Turkey against Russia for the avowed purpose of pre- serving the Balance of Power, and for preventing on that account the absorption of European Turkey into the terri- tories of Russia. The following is the text of the convention concluded between England, France, and the Porte, signed March 13th, 1854:— (/*) See these treaties in extenso, Ann. des Deux Mondes (1851-2), pp. 979-986. (g) See Correspondence hetween tlie United States, Spain, France^ and England concerning alleged ^Jrojects of Conquest and Annexation of the Island of Cuba, presented to the House of Commons, April 11, 1853. (h) Lord Coioleys despatch to Lord John Utissell, January 24, 1853. (ij Letter of Lord John Eussell to Mr. Campbell, Fehvmij 16, 1853. 504 INTERNATIONAL LAW. "As her Majesty the Queen of Great Britain and " Ireland, and his Majesty the Emperor of the French, '' have been requested by his Highness the Sultan to assist " him in repelling the attack which has been made by his " Majesty the Emperor of All the Russias on the territory " of the Sublime Porte — an attack by which the integrity " of the Ottoman Empire and the independence of the " Sultan's throne are endangered — and as their Ma- " jesties are perfectly convinced that the existence of the " Ottoman Empire in its present extent, is of essential " importance to the balance of power among the States of " Europe, and as they have in consequence agreed to afford " his Highness the Sultan the assistance which he has " requested to this end, — their aforesaid Majesties and his " Highness the Sultan have deemed it proper to conclude a " Treaty, so as to attest their intentions in conformity with " the above, and to settle the manner in which their afore- " said Majesties shall lend their assistance to his Highness." The ground of a religious protectorate, upon which Russia defended her aggression upon the Porte, will presently be considered. By Article VII. of the Treaty of Paris, March 30, 1856, England, Austria, France, Russia and Prussia — after declaring " the Sublime Porte admitted to participate " in the advantages of the public law and system (concert) " of Europe " — " engage each on his part to respect the " independence and the territorial integrity of the Ottoman ** Empire ; guarantee in common the strict observance of *' that engagement, and will in consequence consider any " act tending to its violation as a question of general inter- " est " (A). In the preceding year, 1855 (November 21), in a Treaty between England, France, and the King of Sweden and Norway, it is recited that these Powers, " being anxious to " avert any complication which might disturb the existing ik) Ann. liey. 1836, p. 313. INTERVENTION. — BALANCE OF POWER. 505 " Balance of Power in Europe, have resolved to come to " an understanding with a view to secure the integrity " of the United Kingdoms of Sweden and Norway, and " have named their Plenipotentiaries to conclude a Treaty '^ for that purpose " {I). In I860, after the war between France and Italy against Austria had ceased, and after the stipulations between France and Austria by the Treaty of Zurich (November 1859) had become impracticable, Tuscany, Parma, Modena, and the Legations having by the vote of their national as- semblies united themselves to Sardinia, France obtained, in an evil hour for herself, the cession of Savoy and Nice as an alleged compensation to the Balance of Power said to be disturbed by the increase of territory obtained by Sardinia in Italy. England intervened by a strong remonstrance, which cannot be read without profit at the present time (1870). " Her Majesty's Government," Earl Russell wrote to Earl Cowley, the English Ambassador at Paris, " must be " allowed to remark that a demand for cession of a neigh- " hour's territory, made by a State so powerful as France, " and whose former and not very remote policy of territorial " aggrandisement brought countless calamities upon Europe, '* cannot well fail to give umbrage to every State interested " in the Balance of Power and in the maintenance of the '* general peace. Nor can that umbrage be diminished by ** the grounds on which the claim is founded ; because, if a " great military Power like France is to demand the terri- " tory of a neighbour upon its own theory of what constitutes " geographically its proper system of defence, it is evident " that no State could be secure from the aggressions of a " more powerful neighbour ; that might, not right, would " henceforward be the rule to determine territorial pos- " session ; and that the integrity and independence of the (l) Ann. Reg. 1856, p. 323. 506 INTERNATIONAL LAW. " smaller States of Europe would be placed in perpetual " jeopardy "(w). It is true that, by the Treaty between France and Sar- dinia which recorded this cession, it was provided that the consent of the inhabitants should be previously ob- tained (?z), and that a plebiscite — to use the new and ominous expression on this subject — of the ceded countries gave a coloui* to the cession; but the value of an expression of opinion of this kind depends entirely upon the freedom with which it was uttered. It is difficult, having regard to the circumstances, to maintain that this essential element of va- lidity was present when this plebiscite was arranged. It has been said that it was in an evil hour for France that this territorial acquisition was made, and surely the truth of this remark cannot be gainsaid in the autumn of 1870, when Prussia justifies, in some degree at least, her acquisition of Alsace and Lorraine — perhaps the severest blow ever dealt to France — by a reference to this unhappy precedent. But the mischief of this example was earlier felt. The spoliation of Denmark, Hanover, Nassau, and free Frankfort in 1866 has been already mentioned (o). No event for many years has given so rude a shock to the liberties of States, and the principle of the Balance of Power, intended to be, and valu- able only as, the outwork of those liberties. England at least desired — the apology for her is indeed unsatisfactory — to intervene, and would have done so with the alliance of (w) Ann. Reg. 1860, pp. 257-8. (oi) "It is understood between their Majesties that this annexation shall be effected without any constraint of the wishes of the population, and that the Goveniments of the Emperor of the French and the King of Sardinia will concert together as soon as possible upon the best means of appreciating and verifying the manifestation of these wishes." — Art. 1, Treaty of Annexation of Savoy and Nice to France ^ Ann. Meg. 1860, p. 240. It was also stipulated, by Art. 11, that the Emperor of the French was " to come to an understanding " with the Powers represented at the Congress of Vienna and the Swiss Confederation on this subject. (o) Vide ante, p. 49 and note {/), and p. 149. INTERVENTION. — BALANCE OF POWER. 507 France. But France stood aloof — partly hampered by her own precedent, partly, it is to be feared, waiting for an op- portunity of repeating it — and not until 1870 did she inter- vene by war to redress the Balance of Power upon an immediate ground which did not justify the intervention. An intervention in the affairs of Mexico {p) took place in 1861, by England, France, and Spain, founded, apparently, upon the same principles — namely, of demanding payment for debts long due to their subjects, satisfaction for outrages committed on them, and some security against their re- currence. The object of the Convention, signed at London, October 31, 1861, by the three Powers, was "to demand " more efficacious protection for the persons and properties " of their subjects, as well as a fulfilment of the obligations " contracted towards their Majesties ; and they engaged not " to seek for themselves, in the employment of the con- " templated coercive measures, any acquisition of territory, " or any special advantage, nor to exercise in the internal " affairs of Mexico any influence of a nature to prejudice " the right of the Mexican nation to choose and constitute " the form of its government." The debt to France was very small, the debt to England was very large, and had been repeatedly guaranteed by Mexican Governments; and the revenues of the Customs had been formally pledged for their discharge. A serious difference of opinion began to show itself between the Commissioners of the three Powers at the first conference, which was held at (^q) Vera Cruz. The Treaty of Soledad (r). (p) Dana's Wheaton^ p. 126. Lawrence's Wheaton (French ed.), vol. ii. p. 339, See Hec. gen. de Traites, 'par Samioer (contin. de Martens), t. iv. 2*^ partie, p. 143 : '^ Convention conclue a Londres, le 31 octobre 1861, entre I'Espagne^ la France, et la Grande- Bretagne, pour combiner une action commune contre le Mexique." {q) lb. p. 145 : " Proclamation adressee a Vera-Cruz, le 10 Janvier 1862, par les representants de I'Espagne, de la France, et de la Grande- Bretagne au peuple mexicain." (r) " Convention preliminaire entre le Mexique d'une part, et I'Espagne, 508 INTERNATIONAL LAW. February 1862, between the English, Spanish, and French Commissioners and the Minister of the Mexican Republic, was not ratified by the Emperor, and at the Last conference of the three Powers at Orizaba (April 1862) this difference so increased as to dissolve the alliance. England and Spain then withdrew from common action with France. This difference was, in truth, one of principle, which affected the whole object of the expedition. The Queen of England had said, in her speech to Parliament, — " The wrongs committed by various parties and by suc- " cessive Governments in Mexico upon foreigners resident " within the Mexican territory, and for which no satisfactory " redress could be obtained, have led to the conclusion of a " convention between her Majesty, the Emperor of the " French, and the Queen of Spain, for the purpose of " regulating a combined operation on the coast of Mexico, " with a view to obtain that redress which has hitherto been « withheld " (s). The English intervention was strictly limited to these objects, which it accomplished; while France thought it necessary to go further, in order to obtain, as she said, security against the recurrence of the evils complained of; la France, et la Grande-Bretagne d'autre part, relative aux reclamations des sujets respectifs signee a la Soledad le 19 f^vrier 1862. " Art. 1. Le gouvernement constitutionuel qui est actuellement au pouvoir dans la r^publique mexicaine ay ant informe les commissaires des Puissances alliees qu'il n'a pas besoin de I'assistance ofFerte par elle avec tant de bienveillance au peuple mexicain, parce que ce peuple contient en lui-meme des Elements suffisants de force pour se preserver de toute r^volte interieure, les Allies auront recours a des traites pour pr^-enter toutes les reclamations qu'ils sont charges de faire au nom de leurs nations respectives. " Art. 2. Dans ce but, et les repr^sentants des Puissances alliees protes- tant qu'ils n'ont nullement I'intention de nuire a la souverainete ou a rint^grite de la republique mexicaine, des negociations seront ouvertes a Orizaba, ou les commissaires des Puissances alliees et les ministres de la republique se rendront, a moins que des d^l^gues ne soient nommes par les deux parties d'un consentement mutuel." — lb. p. 147. (s) Ann. Reg. 1802, p. 5. INTERVENTION. — BALANCE OF POWER. 509 but the Emperor Napoleon desired, as he afterwards announced, to support the position of the Latin race in America, to prevent the United States from acquiring more Mexican territory, and to establish an empire which might be favourable to France, and aid, as it was supposed, in assisting the development of French commerce with Cen- tral America. England, and subsequently Spain, declined altogether to assist in the furtherance of any of these schemes. The United States had been invited to join the original convention, but had refused to do so, not because they were at that time distracted by civil war, but, as it should appear from their public statements, partly because it was contrary to their traditional policy to enter into European alliances, but principally because they could not endure the creation of a new monarchy on the American continent. They even refused to acknowledge the de facto sovereignty of Maximilian, at a time when it certainly existed, and was recognized by every other country ; or even to recognize as a belligerent the party in the State which supported him, or the blockade which he instituted; while at the same time they were loud and earnest in their demand that their own blockade of the revolted Southern States should be recognized, to an extent and with a strictness which, if it did not exceed, went to the very utmost limit of the severest application of International Law upon the subject. It will hardly be denied by any dispassionate historian or jurist that they allowed their dislike of a monarchy and of European intervention in American affairs to make them disregard, upon the subject of de facto sovereignties and belligerent rights, the principles of Inter- national Law which their executive and their judicial tribunals had always maintained. The failure of the French attempt, the withdrawal of their forces from the Mexican territory, and the murder of the ill-fated and deserted Maxi- milian, and the reconstruction of a Mexican Republic, are well-known portions of contemporary history, which are without the province of this work. 510 INTERNATIONAL LAW. The Balance of Power has been more disturbed by the aggressions of Prussia and Austria upon Denmark, and of Prussia upon her weaker neighbours, than by any triumph of the system of standing armies since Napoleon the First was at Berlin, for I pass over all mention of the war which is now (1870) distracting Europe, further than to observe that if France had accepted the invitation of England in 1864, and taken joint action with her for the protection of Denmark, in all probability Christendom and civilization would have been spared the disgrace and curse which now afflict them (t), CCCCVII. The general subject of the Balance of Power should not be altogether dismissed without the remark that the maintenance of this doctrine does not require that all existing Powers should retain exactly their present terri- torial possessions, but rather that no single Power should be allowed to increase them in a manner which threatens the (t) "Le d^membrement du Danemark, tolere par nous malgr<5 les ofFres formelles de concours que nous faisait alors TAngleterre, pour em- pecher une iniquite si dangereuse, les encouragements que la Prusse a re9U8 de nous dans ses desseins declares contre I'Autriche, sont des faits qu'on peut abandonner au jugement severe de I'^quitable post(§rite." — La France nouvelle, par M. Prevost-Paradol (dernier cliapitre) . Earl Russell's answer to Count Bismark, August 1864 : " Her Majesty's Government are also bound to remark, when the satisfaction of national feelings is referred to, that it appears certain that a considerable number — perhaps two or three hundred thousand — of the loyal Danish population are transferred to a German State; and it is to be feared that the complaints hitherto made respecting the attempts to force the language of Denmark upon the German subjects of a Danish Sovereign will be succeeded by complaints of the attempt to force the language of Germany upon the Danish subjects of a German Sovereign. "Her Majesty's Government had hoped that at least the districts to the north of Flensburg would, in pursuance of a suggestion made by the Prussian Plenipotentiary in the Conference of London, have been left under the Danish Crown. "If it is said that force has decided this question, and that the supe- riority of the arms of Austria and Prussia over those of Denmark was incontestable, the assertion must be admitted. But in that case it is out of place to claim credit for equity and moderation, ' — Ann. JRey. 1864, pp. 237, 238. INTERVENTION.— -BALANCE OF POWER. 511 liberties of other States (u). The doctrine, properly under- stood, does not imply a pedantic adherence to the particular system of equilibrium maintained by existing arrange- ments, but it is opposed to such an alteration of the ba- lance as tends to seriously disturb the relations of existing States (x). CCCCVIII. Another ground of Intervention (y) in the (w) Bolinghroke's Works, vol. ii. p. 439. {x) " Sunt profecto eruntque semper hujus librae lances impares : verum est politicorum curare ne aliqua ex parte nimium iuvergat clis- crimen. Quod ubi recte providetur, etsi eveniant rerum conversiones salva manet doctrina equilibrii, nomen ergo hoc sensu melius interpre- taberis prout Ancillon System der Gegenkrdfte und der Wechselwirkung, quam cum aliis System des Gleichgeiuichts." — Kl'mkhammer, ubi suin-a, p. 61. Lord Bacon says : " Kings have to deal with their neighbours. — First, for their neighbours there can no general rule be given (the occasions are 80 variable), save one which ever holdeth : which is, that princes do keep due sentinel, that none of their neighbours do overgrow so (b)^ increase of territory, by embracing of trade, by approaches, or the like) as they become more able to annoy them than they were ; and this is generally the work of standing counsels to foresee and to hinder it. During that trium- virate of kings. King Henry VIII. of England, Francis I.. King of France, and Charles V., Emperor, there was such a watch kept that none of the three could win a palm of ground, but the other two would straightways balance it, either by confederation, or, if need were, by a war ; and would not in any wise take up peace at interest : and the like was done by that league (which Guicciardini saith was the security of Italy) made between Ferdinando, King of Naples, Florenzius Medicea, and Ludovicus Sforza, potentates, the one of Florence, the other of Milan. Neither is the opinion of some of the schoolmen to be received, that a war cannot justly be made but upon a precedent injury or provo- cation ; for there is no question but a just fear of an imminent danger, though there be no blow given, is a lawful cause of a war." — Bacon, Essay on Empire. In 1848 M. Guizot, in the Chamber of Deputies, said : " Je crois, comme M. Thiers, que la France doit avoir constamment I'ceil ouvert sur I'equilibre qui s'etablit, et qui so deplace de jour en jour en Europe entre les grands systemcs de gouvernement, entre les gouvernemeuts absolus et les gouvernements constitutionnels. . . . Savez-vous ce qu'il y a de plus dangereux, de plus fatal pour le regime constitutionnel, pour ce cote du grand equilibre europeen ? Ce sont les tentatives infructueuses ou mal- heureuses." — Guizot, Hist, parlementaire de France, t. v. p. 558. (?/) Ilejjiers, pp. 92-95. 512 INTERNATIONAL LAW. internal affairs of another kingdom has been asserted ; namely, when the alterations and changes made in the constitution of that kingdom affect the Reversionary Rights of the Inter- vening Power ; for instance, when a recognized feudal rela- tion, or the contingent and eventual Right of Succession, secured by Treaty to the Intervening kingdom, is cut off by the alterations and changes so made (2). In the year 1849, Austria is supposed to have meditated an Intervention in the affairs of Tuscany upon this ground(«). By the Treaty of Vienna, in 1735, it was provided that the Duke of Lorraine should succeed to the last male heir of the Medici, the childless Gaston. This was a part of the negotiations by which Charles VI. sought to secure the undisputed recognition of Maria Theresa as successor to his dominions. The arrangement, guaranteed by almost all the European Powers, was as follows : — " Le Grand-Duche " de Toscane, apres la mort du present possesseur, appar- " tiendra a la maison de Lorraine, pour I'indemniser des " Duchez qu'elle possede aujourd'huy. " Toutes les Puissances qui prendront part a la pacifica- ^' tion, luy en garantiront la succession eventuelle " (h). The " maison de Lorraine " was despoiled of its Tuscan possessions by the Treaty of Luneville in 1801 ; but they were restored to it by the Treaty of Vienna in 1815. By the 100th Article of the final Act of the Congress^ it is pro- vided that " *S'. A. L et R. VArchiduc Ferdinand d'Autriche " est retabli, tant pour lui que pour ses heritiers et suc- " cesseurs, dans tons les droits de souverainete et propriete " sur le Grand-Duche de Toscane et ses dependances ainsi " que S. A. I. les a possedes anterieurement au Traite de " Luneville. Les stipulations de Particle 11 du Traite de " Vienne du 3 octobre 1735, entre I'Empereur Charles VI " et le Roi de France, auxquelles accederent les autres (z) Martens, p. 190, cases cited in note. (a) See an article iu the Glohe, April 4, 1849. (/>) Wenck. Jur. Gent, t. i. p. 3. INTERVENTION. — REVERSIONARY RIGHTS. 513 " Puissances, sont pleinement retablies en faveur de S. A. I. " et ses descendants ainsi que les garanties resultantes de " ces stipulations " (c). In this latter Treaty of Vienna the name of the reigning Grand Duke is substituted for that of his House, and the House, as distinguished from the issue of Ferdinand, is nowhere mentioned. A presumption unfavourable to the claim of Austria arises from this marked difference in the language of the two Treaties ; and the presumption is certainly much strength- ened by the language of the 98th and 99th Articles of the Treaty of 1815 (J), which renewed and confirmed in express terms the Rights of He version {les droits de succession et reversion) of Austria to the Duchies of Modena, Reggio, and Mirandola, and to the Principalities of Massa and Car- rara, and the Rights of Reversion of Austria and Sardinia to the Duchies of Parma, Placentia, and Guastalla. (c) Martens, Ree. de Tr. t. x. p. 424. {d) '^ Art. XOVIII.— S. A. R. I'Archiduc rran9ois d'Est, ses h^ritiers et successeurs, possederont en toute propriety et souverainete les duchds de Modene, de Reggio, et de Mira^idole, dans la nieme 6tendue qu'ils etaient a I'epoque dii traite de Campo-Formio. " S. A. R. rArchiducliesse Marie Beatrix d'Est, ses h^ritiers et suc- cesseurs, possederont en toute souverainete et propriety le duch^ de Massa et la principaute de Carrara^ ainsi que les fiefs imperiaux dans la Lunigiana. Oes derniers pourront servir a des echanges ou autres arrange- ments de gre a gre avec S. A. I. le Grand-Due de Toscane, selon la con- venance reciproque. " Les droits de succession et reversion etablis dans les branches des archiducs d'Autriche, relativement aux duclies de Modene, de Reggio, et Mirandole, ainsi que des principautes de Massa et Carrara^ sont con- serves. " Art. XCIX. — Sa Maje8t(§ I'lmperatrice Marie-Louise poss^dera en toute propriete et souverainete les duches de Parme, de Plaisance, et de Guastalla, a I'exception des districts enclaves dans les Etats de S. M. I. et R. Apost. sur la rive gauche du P6. " La reversibilite de ces pays sera determinee de commun accord entre les cours d'Autriche, de Russie, de France, d'Espagne, d'Angleterre, et de Prusse, toutefois ayant dgard aux droits de reversion de la maison d'Autriche et de S. M. le Roi de Sardaigne sur les dits pays." — Martens, Rec. de Tr. t. x. p. 423. VOL. I. L L 514 INTERNATIONAL LAW. It may well have been foreseen, that the addition of Tus- cany to Austria would cause a very material alteration in the Balance of Power, and would threaten the security of other States, while the absorption of the minor principalities into the kingdoms of Austria and Sardinia would produce no such effect. It is evident that any question with respect to the Rever- sionary Rights of Foreign Princes over a State which has long occupied an independent position in the society of nations, may be fraught with the greatest difficulties both in speculation and practice (e). Take the case of Tuscany for an example, on the supposi- tion that the claim of Austria was well founded on the letter of the Treaty (/). Suppose that a State, having occupied for (e) " C'est incontestable qu'une nation change a son grg ses lois fon- daraentales." — Mabli/, t. ii. p. 188. (/) " La nation pent, par la meme raison, faire renoncer une branche qui s'etablit ailleurs, une fille qui epouse un prince etranger. Ces re- nonciationS; exigees ou approuvees par I'Etat, sont tres-valides, puisqu'elles sont equivalentes a une loi que I'Etat ferait pour exclure ces memes per- sonnes qui ont renonce, et leur posterit(5. Ainsi la loi d'Angleterre a rejet(5 pour toujours tout bdritier catholique romain. ^ Ainsi la loi de Kussie, faite au commencement du regno d'ELiSABETH, exclut-elle tres-prudem- ment tout heritier qui possdderait une autre monarchie ; ainsi la loi de Portugal rejette-t-elle tout etranger qui serait appel^ a la couronne par le droit du sang.' — {Espiit des Lois, 1. xxvi. c. xxiii., ou Ton pent voir de tres-bonnes raisons politiques de ces dispositions.) Des auteurs celebres, tres-savants d'ailleurs et tres-judicieux, ont done manqu^ les vrais principes en traitant des renonciations. lis ont beaucoup parle des droits des enfans nds ou a naitre, de la transmission de ces droits, etc. II fallait considerer la succession moitis comme une propriete de la famille re- gnante que comme une loi de I'Etat. De ce principe lumineux et incon- testable d^coule avec facilite toute la doctrine des renonciations. Celles que I'Etat a exigees ou approuvees sont valides et sacr^es ; ce sont des lots fmidamentales : celles qui ne sont point autoris^es par I'Etat ne peu- vent etre obligatoires que pour le prince qui lesafaites; ellesne sauraient nuire a sa post^ritd ; et lui-meme pent en revenir, au cas que I'Etat ait besoin de lui et I'appelle, car il se doit a un peuple qui lui avait commis le soin de son salut. Par la meme raison, le prince ne peut legitime- ment renoncer a contre-temps au dommage de I'Etat, et abandonner dans le danger une nation qui s'etait remise entre ses mains." — Vattel, 1. i. c. 6, 8. 62. INTERVENTION. — REVERSIONARY RIGHTS. 515 a long period the position of a free and independent nation in the society of other States, thinks fit to secure its consti- tution, and to pass a fundamental law, similar to that by which Great Britain excluded James II. and his descendants from her throne, that no Prince of a certain race shall be henceforth their ruler ; or a fundamental law, similar to that which was established by Russia in the reign of her Eliza- beth, that the crown of their country shall never be worn by the Sovereign of another country ; can it be denied that the exercise of such a power is inherent in the nature of an independent State ? Third Powers, indeed, must recollect that the obligation of Treaties is as important a maxim of International Law as the free agency of independent States ; but with respect to the nation herself, it remains certainly very difficult to reconcile her character of independence with the impossibility of exercising one of the most import- ant attributes belonging to it. It is to be hoped that the notion and the term of " Patri- " monial States " are banished for ever from the theory and practice of International Law {g), and that the attempt will never again be made to give to the Sovereign of one inde- pendent State the Reversionary Right of succeeding to the throne of another. CCCCIX. There yet remains (h) to be discussed the ques- tion of Intervention on the ground of Religion — a question which has assumed, from the events which have since hap- pened, the character of importance and magnitude which, the possible consequences duly considered, it will be difficult to exaggerate. {g) Rotteck, St aats- Lexicon, " Garantie " (vol. vi. p. 264), mentions the Bourbon family compact of 1761 as a proof of imperfect acquaintance with the true principles of International Law, inasmuch as by it the people were treated *' als das hlosse Pertinenzstiick des regierenden ITauses" See, too, Ompteda, vii. n, a. (h) Most of the remarks in the text which follow on this subject will be found in a pamphlet (1853), entitled Hussia arid Turkey, &c., by the author of this work. L L 2 516 INTERNATIONAL LAW. ** So familiar, and as it were so natural, to man, is the " practice of violence, that our indulgence allows the slightest " provocation, the most disputable right, as a sufficient " ground of national hostility. But the name and nature " of a holy war demands a more vigorous scrutiny ; nor can " we hastily believe, that the servants of the Prince of " Peace would unsheath the sword of destruction, unless the " motive were pure, the quarrel legitimate, and the neces- '' sity inevitable " (i). This opinion of the celebrated historian of Christian Con- stantinople — whatever may have been the spirit in which it was uttered — appears to rest upon a foundation of truth. It was intended, we need not stop to inquire with what justice (A), to censure the earliest European invasion of the dominions of the Turk, the first religious war waged by Christian Princes against the disciples of Mahomet. The Emperor of Russia maintained that the war in 1854 between Russia and the Porte was a Religious war (Z). If there be any truth in the doctrines laid down in the preceding pages of this work, there certainly are principles of International Laxo by which this position of Russia must be tried, and which are not perhaps either difficult to discover, or hard to apply. We have seen upon what principles other kinds of Inter- vention have been justified. The question of Religious In- tervention naturally divides itself into two parts : — (i) Gibbon's Decline and Fall of the Roman Empire, vol. ii. c. Ix. (h) Fleiiry, Hist, eccles. t. xii. sixieme Discours, 111: " Je ne vols point que I'on ait mis alors eu question si cette guerre etoit juste : tons les Chretiens d'Orient et d'Occident le supposoient ^galement. Toutefois la difference de religion n'est pas une cause suffisante de guerre," &c. " Les prinnes chretiens ont cru de tout terns etre en droit de proteger les Chretiens strangers opprimes par leurs souverains." On this ground he says, Theodosius the younger refused to deliver up a Persian Christian to the King of Persia; and the Patriarch of Jerusalem sent through Peter the Hermit letters of entreaty for aid to Pope Urban. (/) Correspondence respecting the Rights and Privileges of the Latin and Greek Churc/ies in Turkey, presented to both Houses of Parliament by command of her Majesty, 1854. INTERVENTION ON RELIGIOUS GROUNDS. 517 First, whether identity of religious faith, with a certain number of the subjects of another State, whose rulers pro- fess a different faith, has ever been holden, or ought in principle to be holden, as warranting the Intervention of a Foreign State on behalf of those subjects with whom it has the impalpable but stringent bond of a common religion. Secondly, if Intervention be justifiable on this ground, Avhat kind of Intervention? — that of remonstrance, carried, if necessary, to the length of a refusal to maintain any inter- course with the oppressor of your brethreu in the faith ? or the ultima ratio, the commencement of actual hostilities against the State which denies your title to interfere with her jurisdiction over her citizens ? With respect to any right of Intervention on the ground of similarity of religious faith, there is, in limine, a distinction, perhaps, not unimportant to be taken. Intervention may be, and has been, claimed by one Christian State, in the affairs of another on behalf of a particular body of Christians, profess- ing a form of Christianity identical with that of the Inter- vening State, but different from that of the State of which they are subjects. Again, Intervention may be claimed in the affairs of an Infidel State on behalf either of Christians generally, or ©f a particular body of Christians. This latter kind of Intervention is that which was claimed by liussia as to the jurisdiction of the Porte over the Christian subjects in her dominions — a species of Intervention which Kussia, by virtue of her Protectorate of the Greek Church, had been accustomed to exercise, and which she then declared she desired to exercise merely for the purpose of securing to the Greek Church rights conceded to her ah antiquo by the Porte. CCCCX. It would seem that three propositions were, by implication, maintained in this claim : — 1. That the demand was sanctioned by the analogy derivable from tllfe precedents of Christian Intervention in other Christian States on behalf of particular bodies of Christians. 518 INTERNATIONAL LAW. 2. That the Mht of Christian Intervention on religious grounds in a Mahometan State rests upon an obviously stronger foundation. 3. That the rights which the Russian Intervention were intended to secure were rights granted by the Porte, ab antiquo, to the Greek Church. CCCCXI. As to the first of these propositions : — The practice (if it can be called such) of Intervention by one Christian State on behalf of the subjects of another Christian State upon the ground of religion, dates from the period of the Reformation. It could scarcely, indeed, have had an earlier origin. The abstract principle of this kind of Inter- vention has derived positive force from being embodied in various important Treaties. The Treaties having for their object to secure the peace- able profession of religion are of two kinds — first, those which concern the exercise of religion (devotio dornestica) of native subjects of the Intervening State commorant in a foreign land ; secondly, those which concern the religion of foreigners not its subjects. The great Treaty of Westphalia, in its general language respecting Germany, established, as a maxim of public law, that there should be an equality of rights between the Roman Catholic and Protestant religions ; a maxim renewed and fortified by the Germanic Confederation of 1815. In these instances, it is true, the several States to which the stipula- tion related were all members of one Confederation, though individually independent of each other. But the precedent does not stop here ; for, passing by the Interventions of Elizabeth, Cromwell, and even Charles II., on behalf of foreign Protestants, and going back no later than 1690, we find in that year Great Britain and Holland intervening in the affairs of Savoy, and obtaining from that kingdom a per- mission that a portion of the Sardinian subjects might freely exercise their religion {m). (m) SchmausSy vol. i. p. 1093. INTERVENTION ON EELIGIOUS GROUNDS. 519 In the negotiations which preceded the Treaty of Utrecht (1714), our Queen Anne stipulated with France that, in return for the permission accorded to French subjects to sell their immovable property in the North American Colonies recently conquered by Great Britain, his Most Gracious Majesty should release from the galleys the French Protes- tants who had been confined there solely on account of their religion. Further than this, we learn from Lord Boling- broke's letters {n), foreign interference could not be ex- tended ; — he suggests, indeed, that France might be tempted to retort, and require some mitigation of the heavy penalties under which the Irish Roman Catholic subjects of Queen Anne were then suffering. Sweden interfered in 1707 on behalf of the Protestants of Poland. The Treaties of Velau(o), 1657, of 01iva(;?), 1660, of Nimeguen (//), 1679, of Ryswick(r), 1698, of Utrecht (.5), 1714, of Breslau(f), 1742, may all be enumerated as in- stances of Koman Catholic Intervention on behalf of Koman Catholic subjects, in countries ceded to Protestant sove- reigns — an Intervention which, it should be remembered, was almost invariably invoked by the inhabitants within the country. It appears, therefore, that Intervention by one Christian State on behalf of the subjects of another upon the ground of Religion has, as a matter of fact, in certain circum- stances, been practised, and cannot be said, in the abstract, to be a violation of International^^ Law. But what kind of Intervention ? By remonstrance, by stipulation, by a con- dition in a Treaty concluding a war waged upon other grounds. (n) Bolinghroke' s Letters, vol. iv. pp. 121, 171- -2, 459. (0) Art. xvi. \p) Art. ii. {q) Art. ix. (r) Art. iv. (*•) Art. xxiii. it) Art. vi. 520 INTERNATIONAL LAW. It may, perliaps, be justly contended that the principle might be pushed further ; and that in the event of a perse- cution of large bodies of men, on account of their religious belief, an armed Intervention on their behalf might be as warrantable by International Law, as an armed Intervention to prevent the shedding of blood and protracted internal hostilities. It is, however, manifestly unsafe to contemplate these ex- treme cases of exception from the sound general rule of non- interference in the domestic legislation of Foreign States. The duty of such non-interference is clear ; it should not be turned into a doubt. Therefore it is that no writer of authority upon International Law sanctions such an Intervention, ex- cept in the extreme case of a positive persecution inflicted avowedly upon the ground of religious belief. Vattel, him- self a Protestant, was not at all disposed to underrate the right of Intervention of Foreign Powers on behalf of their co-religionists in other countries: his opinion, therefore, which is in accordance with that which has been here expressed, deserves the most respectful consideration (w). It would be difficult to find any writer upon International Law who has ever expressed a different opinion ; though not uncommonly they close their remarks on this subject by observing on the manner in which the exceptional use of Intervention upon religious grounds has been abused in practice. Thus the accurate and careful Martens observes : '* Toutes les guerres auxquelles la religion a servi de " motif on de pretexte ont fait voir, 1° que jamais la religion " n'a ete le seul motif pour lequel les Puissances etrangeres " sont entrees en guerre ; 2° que lorsque la politique " s'accorde avec les interets de leur religion, elles ont effec- *' tivement soutenu la cause de celle-ci ; 3° mais que tou- ** jours le zele religieux a cede aux motifs de politique ; (w) " Du droit de surety, et des efFets de la souverainet^ et de I'in- d^pendance des nations." — Vattel, Droit des Gens, t. i. p. 311, ss. 57, 59, 62. INTERVENTION ON RELIGIOUS GROUNDS. 521 ^ et que plus d'une fois meme celle-ci a entrame a des " demarches directement opposees aux interets de leur " religion " (x). So much for the doctrine of Intervention in matters of religion between Christian States. CCCCXII. We now arrive at the consideration of the second proposition, which relates to Chiistian Intervention upon the same subject with Mahometan States. The con- verse of this, viz., Mahometan Intervention with Christian States, has, it is believed, never yet arisen in practice, but it would be subject on principle to the same law (y). Is the rule of law altered by the fact that the persons in whose behalf the right of Intervention is claimed, are the subjects of a Mahometan or Infidel State ? The true answer seems to be that the rule is not changed, but that there is a much wider field for the application of the exceptional principle of interference. For some time after the conquest of Constantinople (1453) grave doubts were entertained by the nations of Christendom as to the lawfulness of any pacific intercourse with the Sul- tan. It was not till after the Treaty of Constantinople in 1720 that the Russian minister was permitted to reside at Constantinople ; and direct relations between Roman Catholic Sovereigns and the Porte can scarcely be said to have an earlier date than the end of the eighteenth century (z). Even after the lapse of nearly four centuries, at the Congress of Vienna, 1815, the Ottoman Empire was not represented, nor was it included in the provisions of positive public law con- tained in the Treaty which was the result of the Congress. The admission of the representative of the Porte to the con- gress which preceded the Treaty of Paris in 1856, and the {x) Martens, Precis du Droit des Gens, t. i. p. 261. (?/) There is an article in the Treaty of Constantinople, between Russia and the Porte in 1779, in which llussia stipulates that the Porte shall perform certain religious ceremonies on behalf of the Khan of Tartary. (s) Miltitz, Manuel des Consuls, t. ii. p. 1571. 522 INTERNATIONAL LAW. recognition of her new position in this respect, carrying with it the duties and rights arising from the Public Law of Europe, was a matter of solemn record in a protocol of that Treaty (a). CCCCXIII. With respect to the third proposition : From the period of the permanent settlement of the Turk in Europe, all the Christian Powers have endeavoured to obtain, and have by degrees succeeded in obtaining, a cri- minal and civil jurisdiction over their own subjects in Turkey through the medium of Consuls. Moreover, Roman Catholic Powers have obtained certain privileges, both with respect to the access of their own subjects to the Holy Places of Palestine, and with respect to the Latin Church there. At first these privileges were granted to some favoured European Powers, and especially to France, under whose flag other Christian Powers sought protection (6). The Treaty recently referred to by French authorities, between Sultan Achmet and Henry IV. of France, concluded in 1604 (c), is the model Treaty, so to speak, upon this subject {d), (a) Protocol 2. — '' The fourth point is read throughout, and Count Wa- lewski remarks thereupon that it will be proper to record the entrance of Turkey within the Public Law of Europe. The Plenipotentiaries agree that it is important to record this new fact by a special stipulation in- serted in the general Treaty." It was embodied in art. vii. of the Treaty of Paris. See Appendix. (b) In 1534, Francis I. made an alliance with the Sultan Soliman against Charles V., and from that time a close intercourse has subsisted between France and the Porte. Vide post, Comity. (c) Schmauss, t. i. p. 430. {d) " Art. IV. — Que de V^netiens en Anglois en la les Espagnols, Portugais, Cattelans, Ragusois, G^nevois, Anconitains, Florentins et g^neralement toutes autres nations quelles qu'elles soient, puissent libre- ment venir trafiquer par nos Pais, sous I'aveu et seurete de la Banniere de France, laquelle ils porteront comme leur sauve-garde, et de cette fa^on ils pourront aUer et venir trafiquer par les lieux de notre Empire comme ils y sont venus d'Anciennete, ob^issant aux Consuls Francois qui resident et demeurent par nos Havres et Echelles ; voulons et entendons qu'en usant ainsi ils puissent trafiquer avec leurs vaisseaux et gallions sans etre inqui^tes, et ce seulement tant que ledit Empereur de France consei-vera notre amitie et ne contreviendra a celle qu'il nous a promise. INTERVENTION ON RELIGIOUS GROUNDS. 523 To this Treaty succeeded one in 1673; but a later and more important Treaty was in 1740. It related to the two subjects: 1. The Holy places. 2. The general protection of the Christian Keligion. With respect to the Holy Places there are various specific provisions (e). With respect to the general question of the Christian worship and religion, the provisions are as follow : — " Les deuxOrdresdeReligieux Francois qui sont aGalata, " savoir les Jesuites et les Capucins, y ayant deux Eglises, " qu'ils ont entre leurs mains ab antiquo, resteront encore " entre leurs mains, et ils en auront la possession et jouis- " sance : Et comme I'une de ces Eglises a ete brulee, elle " sera rebatie ayec permission de la justice, et elle restera " comme par ci-devant entre les mains des Capucins, sans " qu'ils puissent etre inquietes a cet egard. On n'inquietera " pas non plus les Eglises que la Nation Fran9oise a a " Smyrne, a Syde, a Alexandrie, et dans les autres a " Echelles ; et Ton n'exigera d'eux aucun argent sous ce " pretexte " (/). " On n'inquietera pas les Fran9ois quand dans les bornes " de leur Etat ; ils liront I'Evangile dans leur Hopital de « Galata " (ff). Voulons et commandons aussi que les sujets dudit Empereur de France, et ceux des Princes ses amis, Allies, et Confoederes, puissent sous son aveu et protection venir librement visiter les Saints Lieux de Jerusalem, sans qu'il leur soit fait ou donne aucun empechement. De plus pour I'honneur et amitie d'icelui Empereur nous voulons que les Religieux qui demeurent en Jerusalem et servent I'Eglise de Coumame (c'est-a-dire le saint sepulcre de Notre Seigneur Jesus-Christ) y puissent demeurer, aller et venir seurement et sans aucun trouble et detourbier, et y soient bien reQus^ proteges, aides et secourus en la consideration susdite." — Traits entre Henri IV, Roy de France, et le Sultan Achmet, de Fan 1604, Schmauss, t. i. p. 430. (e) Capitulations ou Traites anciens et nouveaux, entre la Cour de France et la Porte ottomane, renouveles et augmentes I'an de J.-C. 1740, et de I'Egire 1153, art. i. xxxii.»xxxiii. xxxiv. Ixxxii. — Wenck^ Cod. Jur. Gent. t. i. p. 538. (/) Wenck. Cod. Jur. Gent, t. i. p. 555 : Capitulations, &c., art. xxxv. {g) lb. art. xxxvi. p. 556. 524 INTERNATIONAL LAW. An unquestionable authority upon the nature and charac- ter of the French Protectorate in the East, appears to be furnished by the Diplomatic Memoirs of Monsieur de Saint- Priest. He was ambassador from the Court of France at Constantinople from 1768 to 1785 ; he describes the Protec- torate exercised by the monarchs of France over the Koman Catholics of the Levant, in these words : — " On a decore le zele de nos Rois de I'expression de pro- " tection de la Religion Catholique en Levant ; mais elle est " illusoire, et sert a egarer ceux qui n'approfondissent pas la " chose. Jamais les Sultans n'ont eu seulement I'idee que " les Monarques Fran9ois se crussent autorises a s'immiscer " de la Religion des sujets de la Porte. — * II n'y a point de " * Prince, dit fort sagement un de nos predecesseurs, M. le " * Marquis de Bonnat, dans un Memoire sur cette matiere, " ' quelque etroite union qu'il ait avec un autre Souverain, qui " ' lui permette de se meler de la Religion de ses sujets. Les " * Turcs sont aussi delicats que d'autres la-dessus.' " II est aise de comprendre que la France n'ayant jamais " traite avec la Porte qu'a titre d'amitie, n'a pu lui imposer des " obligations odieuses de leur nature. Aussi le premier point " de mes instructions me prescrivoit d'eviter tout ce qui pour- " roit causer de Tombrage a la Porte en donnant trop d'ex- *' tension aux capitulations en matiere de la Religion " (Ji). The true doctrine of International Law upon this subject could not be more fairly or more correctly expressed than in the important citation which has just been made. And it must be remembered, that no single Treaty can be pointed out between the Porte and France, any more than be- tween the Porte and Russia, in which that doctrine has ever been, in the slightest degree, violated. The Russian Protectorate of the Greek Church, which has Qi) Moniteur, 3rd June, 1853. — V Univers, 4th June, 1853. It is also referred to by M. Drouyn de Lhuys in his second circular. Vide ante, papers referred to, note (/J, p. 516. France has subsequently explained with distinctness that she only cltdms a protectorate over French Eoman Catholic subjects. INTERVENTION ON RELIGIOUS GROUNDS. 525 been claimed, must be of comparatively recent date. It was not till about the year 1677 that the Russians and the Turks were brought into actual contact with each other. In 1854 Count Nesselrode referred to the Treaty of Kaynardgi (1774) as containing the record of the Right of Intervention now claimed by Russia, and also to the Treaty of Adrianople (1829) as confirmatory of the stipulations. Here, then, we have tangible, accessible references, and not shadowy allu- sions to undefined, unrecorded concessions. The earlier Treaty of Belgrade (1739) might have also been referred to. It is of great importance to study the ipsissima verba of these Treaties, and see whether their letter or their spirit sustained the Russian demand. The eleventh article of the Treaty of Belgrade, concluded between the Empress Anne of Russia and the Sultan Mah- mud (z), relates to the free access of Russia to the Holy Places. Austria concluded at Belgrade, at the same time, a Treaty containing similar provisions. The Treaty of Kaynardgi (or Koutchouk-Kainardji), to which the Emperor of Russia has especially referred as the foundation of his claim, was concluded in the year 1774, between Russia and the Porte. The articles of it which refer ^0 the present subject are here given at length. Art. VII. (k) Art. VII. " La Fulgida Porta promette una "La Sublime Porte promet de ferma protezione alia religione prot^ger constamment la religion Christiana, e alle chiese di quella ; chretienne et ses eglises j et aussi permette ancora a' Ministri dell' elle permet aux Ministres de la {i) Acta Pads Belgradi inter Annam Hussies Impei'atricem et Sultanum Ottom. Mahmud. Traduction du Traite de Paix de Belgrade entre la Russie et la Porte, art. xi. (k) Articoli della perpetua Pace tra 1' Impero di tutte le Russie e la Porta Ottomanna, conchiusa nel campo presso la citta di Chiusciuc Cainargi, distante 4 leghe della citta di Silistria, Traite de Paix per- petuelle et d'aniitie entre I'Empire de Russie et la Porte ottomane, conclu lo 10 juillet dans la tente du Oommandant-en-chef le Feld- mareclial comte de Roumanzow, pres du village de Kutschouc Kaynardgi- sur la rive droite du Danube. — Martens, Pec. de Tr. t. ii. (1771-1779) pp. 286-7. 526 INTERNATIONAL LAW. Imperial Corte di Russia di fare in ogni occorrenza varie rappresen- tanze alia Porta a favore della Botto mentovata eretta chiesa in Constantinopoli, accennata nell' Art. XIV, non meno che di quei che la servono, e promette ricevere queate rimostranze con attenzione, come fatte da persona considerata d' una vicina e sinceramente mica Potenza." AET. XIV. "L'altissima Corte di Russia potra a norma delle altre Potenze, a riserva della chiesa domestica, edificarne una nella parte di Galata nella strada detta Bey-Uglu, la qual chiesa sara pubblica, chiamata Russo-Greca, e questa sempre si manterra sotto la protezione del Ministro di questo Impero, e an- dera illesa da ogni molestia ed oltraggio." Art. VIII. "Si permettera liberamente a' sudditi dell' Impero Russo, tanto ecclesiastici quanto secolari, il vi- sitare la S. Citta di Gerusalemme, ed altri luoghi degni di esser visi- tati, e non si dimandera mai da tali viandanti e viaggiatori, ne in Gerusalemme, ne in altri luoghi, ne anche nelle vie da chicchesia, nes- sun caraccio, taglia, o tributo, o quaJche altra tassa. Ma oltre a cio saranno muniti co' convenienti passaporti, o firmani, i quali si danno ai sudditi delle altre Potenze. E nel tempo ch' essi saranno nell' Impero Ottomanno, non si fara loro nessun torto, ne alcun ol- traggio, ma saranno difesi con tutto il rigore delle leggi." Cour Imp^riale de Russie de faire dans toutes les occasions des repre- sentations, tant en faveur de la nouvelle dglise a Constantinople dont il sera mention a I'Article XIV., que pour ceux qui la des- servent, promettant de les prendre en consideration, comme faites par une personne de confiance d'une Puissance Toisine et sincerement amie" (/). Aet. XIV. "^ Vexemple des autres Puis- sances, on permet a la haute Cour de Russie, outre la chapelle batie dans la maison du Ministre, de con- struire dans un quartier de Galata, dans la rue nommee Bey-Oglu, une eglise publique du rit grec, la- quelle sera toujours sous la pro- tection des Ministres de cet Em- pire et a I'abri de toute gene et de toute avanie" (m). Art. VIII. " n sera libre et permis aux sujets de I'Empire de Russie, tant 8t5culiers qu'eccl^siastiques, de vi- siter la sainte ville de Jerusalem et autres lieux dignes d'attention. II ne sera exige de ces pelerins et voyageurs par qui que ce puisse etre, ni a Jerusalem, ni ailleurs, ni sur la route, aucun charatsch, con- tribution, droit ou autre imposition; mais ils seront munis de passeports et firmans, tels qu'on en donne aux sujets des autres Puissances amies. Pendant leur sejour dans I'Empire ottoman, il ne leur sera fait le moindre tort ni oiFense, mais au contraire ils seront sous la pro- tection la plus rigide des loix." (I) Martens, Pec. de Tr. t. ii. (1771-1779), pp. 296-7. (m) Ih. pp. 300, 301. INTERVENTION ON RELIGIOUS GROUNDS. 527 In 1854 the Treaty of Adrianople (1829) was referred to by Russia as confirming the rights conceded by this Treaty of Kaynardgi. That Treaty contains no new provision whatever on the subject of religion. There are special provisions relating to Moldavia and Wallachia, both in the body of the Treaty and in an annexed Treaty ; but the only religious stipulation is for the free enjoyment and exercise of their religion (?z). The substance of the provisions of the Treaties just cited appears to be — 1. That Pilgrims, Ecclesiastics, and Travellers may visit, safely and untaxed, Jerusalem and the Holy Places. 2. That certain new Chapels may be built in a particular quarter of Constantinople — a Vexemple des autres Puissances — besides the Ambassadorial Chapel, then existing : there is similar provision in the French Treaty of 1740. 3. That the Sublime Porte, not the Emperor of Russia, shall continue to protect the " Christian Religion : " — the interference of the Emperor being, in the same clause, impli- citly limited to the making representations in favour of a particular church and its clergy, to which the Porte, on the ground of friendship alone, engages to listen. CCCCXIV. Not only the language of the Treaties which have been concluded on this subject between Russia and the Porte, must be considered — but also the absence both of such Treaties themselves, and the absence of such provisions in Treaties, when the circumstances might well seem to call for them. In other words, the demand of Russia must be negatively, as well as affirmatively, examined. Let the cases of Servia and of Greece be considered. The Christian Servians, who had made common cause with Russia in her wars with the Porte, and had been in- cluded in the Treaty of Bucharest in 1812, applied in vain, though after suffering atrocious cruelties, to the Congress of (n) Art. V. — " Elles jouiront du libre exercice de leur culte/' &c. 528 INTERNATIONAL LAW. Vienna, even to mediate on their behalf, and yet in that Congress Russia was pre-eminently powerful. The Intervention of the great Christian Powers, among whom was Russia, for the pacification of Greece (1826), was placed, as we have seen (o), with careful precision upon the necessity of putting an end to a contest which injured the commerce and disturbed the repose of Europe, and upon the request of the Greeks for the mediation of the European Powers. In that Treaty, no allusion to the Russian Pro- tectorate of the Greek Church is to be found. If these premises be correct the conclusion seems inevi- table ; but it must be left to the impartial jurist to decide whether the evidence, both negative and affirmative, was favourable to or conclusive against the demand of Russia ; whether it had a foundation in precedent or whether it was altogether new ; whether, in fact, it was not a pretext for an invasion of the Turkish dominions with the intention of acquir- ing a porjtion of them, if not Constantinople itself. We have seen the grounds upon which the European allies of Turkey founded their right of intervention on her behalf. We must pass over the history of what is popularly called the Crimean War which ensued ; and, confining ourselves to the question of intervention on behalf of subjects of a foreign Power, co- religionists of the intervening Power, we have to notice next in order the memorandum (December 28, 1854) com- municated by the Plenipotentiaries of Austria, France, and England to Prince GortschakofF, the Russian Minister. The fourth article referred to these former Treaties be- tween Russia and the Porte, and especially to the Treaty of Koutchouk-Kainardji, "the erroneous interpretation of " which had been the principal cause of the existing war ; " and pointed out that Russia in renouncing " the pretension " of covering by her official Protectorate the Christian (o) Vide ante, p. 115. INTERVENTION ON RELIGIOUS GROUNDS. 529 " subjects of the Porte," would also renounce any privileges arising from these Treaties (p). In the Conference of Vienna {q), March 15, 1855, between the same Powers and Russia and Turkey, the first protocol recited this fourth article as one of the four bases of the Conference. At the subsequent Congress of Paris (April 16, 1856), between the same Powers, Aali Pasha, the representative of the Porte, stated " that a new Hatti-SherifF " had renewed the religious privileges granted to the non- " Mussulman subjects of the Porte, had prescribed new " reforms, that this Act had been published, and that the '^ Sublime Porte, in proposing to communicate it to the " Powers by means of an official note, would in that matter " have complied with the requirements in regard to the " fourth point " (r). The ninth article of the Treaty of Paris, March 30, 1856, between the same Powers, was as follows : *' His Imperial Majesty the Sultan, having, in his " constant solicitude for the welfare of his subjects, issued a " firman which, while ameliorating their condition without " distinction of religion or of race, records his generous " intentions towards the Christian population of his Empire, '* and wishing to give a further proof of his sentiments in " that respect, has resolved to communicate to the Con- " tracting Parties the said firman emanating spontaneously " from his sovereign will. The Contracting Powers recog- " nize the high value of this communication. It is clearly " understood that it cannot in any case give to the said " Powers the right to interfere, either collectively or sepa- ** rately, in the relations of his Majesty the Sultan with {p) Be Martens, t. xliv. p. 632. {q) lb. 635. (r) Protocols of Conferences held at Paris relative to the general Treaty of Peace, presented to Parliament, 1856. — A7m. Reg. 1856, p. 311. De Martens, t. xliv. p. 707. The firman referred to will be found (dated Feb. 18, 1856), ih. p. 508., and Ann. Reg. 1856, p. 337. VOL. I. MM 630 INTERNATIONAL LAW. " his subjects, nor in the internal administration of his « Empire "(s). CCCCXV. The peculiar International Status of the Pa- pacy, combining the position of a temporal sovereign with that of a spiritual Patriarch of the Western Church, was largely discussed in the second volume of the former edition of these Commentaries. This is not the place to notice the various changes which this status has undergone since the creation of the Kingdom of Italy, or the events which, while these pages are being written, appear likely to render the temporal sovereignty of the Pope a matter of past history. The intervention of foreign States in the Papal dominions has generally been founded on the application or permission of the Pope, a remark which seems to take this occurrence out of the category of the question now under discussion — namely, the intervention of Foreign Powers to protect co- religionists, the subjects of another State, contrary to the wish, or without the permission, of the Government of that State. But it must be observed that the grounds upon which France has defended the occupation (t), by her soldiers, of the Pontifical States, would go far to warrant Russia iu protecting, by an armed force in the dominions of the Porte, the Patriarch of Constantinople. In November 1866 Baron Ricasoli issued a circular to the Italian prefects, in which he said: " The Roman " question still remains to be solved, but after the fulfilment " of the September Convention that question cannot and " must not be the motive for agitation. The sovereignty of " the Pope is placed by the September Convention in the " position of all other sovereignties (m). Italy has promised " France and Europe to remain neutral between the Pope " and the Romans, and to allow this last experiment to be " tried of the vitality of an ecclesiastical Principality with- (s) Treaty of Paris, March 30, 1856. (t) Emperor Napoleon's speech to the Chambers, March 1, 1860. — Ann. Reg. p. 215. (w) Ann. Reg. 1864, p. 242. INTERVENTION ON RELIGIOUS GROUNDS. 531 " out parallel in the civilized world. Italy must keep her ^^ promise, and await the certain triumph of her rights " through the eflScacy of the principle of nationality " {x). The events now (October 1870) happening at Rome are the natural fruit of this policy. (x) Ann. Eeg. 1866, p. 262. THE END OF VOLUME I. M M 2 APPENDIX. CONTENTS OF APPENDIX, I. Page 14. PAGB Sources of International Law — Extracts from Suarez, Domat, Merlin, Vattd 537 II. Page 30. International Jurisprudence of Ancient Eome 639 III. Page 45. Extract from the Speech of Lord Grenville upon the motion for an Address to the Crown, approving of the Convention with Russia, 1801, as to effect of embodying a Principle of General Law in a Treaty . 544 IV. Page 385. Naturalization Act as to Aliens and British subjects, 33 Vict. c. 14 (1870) 546 Treaty of Naturalization with the United States, 1870 .... 556 V. Pages 22 and 264. Eight of Acquisition — Oflficial Proclamation of the Annexation of Oude, February 7, 1856 558 VI. Page 293. Prescription — Extract from DoneUus 561 |Vn. Page 466. Intervention — 16 & 17 Vict. c. 107, s. 150: as to Prohibition to export or carry coastwise Arms — Form of Proclamation .... 562 59 Geo. III. e. 69: Foreign Enlistment Act — Form of Proclamation, 1819 563 Judgmentof Privy Council: ^hi^ Salvador 673 American Foreign Enlistment Act, with notes 577 33 & 34 Vict. e. 90 : Foreign Enlistment Act, 1870 . . . . 582 .■^' 536 CONTENTS OF APPENDIX. VIII. Page 392. PAO£ Exceptions to Right of Jurisdiction. French Decision as to Jurisdiction of Masters of Foreign Merchantmen over offences committed by their Crew on board the Vessel in French Ports, 1806 694 16 Vict. c. 26 : Act for the Apprehension of Foreign Seamen Deserters, 1862 596 IX. Page 437. Extradition: 33 & 34 Vict. e. 62 (1870) 696 X. Page 463. Protocol, No. 23, to Treaty of Paris, 1856, as to having recourse to good oflSces of a friendly Power before making "War . . . . 609 Treaty of Paris, March 30, 1856, and Annexes 612 Hatti-Sheriff referred to in Treaty, as to the condition of Christian and non-Mussulman subjects of the Porte, February 18, 1866 . . . 622 XI. Page 481. Intervention — Balance of Power — ^Extract from Finelon . . 627 APPENDICES. APPENDIX I. Page 14. SOURCES OF INTERNATIONAL LAW. {Extract from Suarez^ De Legihus et Deo Legislatore, lib. ii. c. xxix. n. 9.) Having distinguished jus gentium from jus natures, he proceeds to say of the former : " Ratio hujus juris est, quia humanum genus, " quamvis in varios populos et regna divisum, semper habeat " aliquam unitatem, non solum specificam, sed etiam quasi politicam " et moralem, quam indicat naturale prseceptum mutui amoris et " misericordi^, quod ad omnes extenditur, etiam extraneos et cujus- " cunque nationis. Quapropter licet unaquasque civitas perfecta, *' respublica aut regnum sit in se communitas perfecta, et suis mem- " bris constans ; nihilo minus quselibet illarum est etiam membrum " aliquo modo hujus universi, prout genus humanum spectat. Nun- " quam enim illge communitates adeo sunt sibi sufficientes sigillatim, " quin indigeant aliquo mutuo juvamine et socio tate ac communica- " tione, interdum ad melius esse majoremque utilitatem, interdum " vero et ob moralem necessitatem. Hac ergo ratione indigent " aliquo jure, quo dirigantur et recte ordinentur in hoc genere com- " municationis et societatis. Et quamvis magna ex parte hoc fiat " per rationem naturalem, non tamen sufficientur et immediate " quoad omnia; ideoque specialia jura potuerunt usu earundem " gentium introduci." (Extract from the Traite des Loix, hy Domat, chap. xi. s. 89.) " Comme tout le genre humain compose une societe universelle, " divisee en diverses nations, qui ont leurs gouvernemens separez, " et que les nations ont entr'elles de differentes communications, ila " ete necessaire qu'il y eut des loix qui reglassent I'ordre de ces " communications, et pour les princes entr'eux et pour leurs sujets, " ce qui renferme I'usage des ambassades, des negociations, des " Traites de Paix, et toutes les manieres dont les princes et leurs " sujets entretiennent les commerces et les autres liaisons avec leurs " voisins. Et dans les guerres memo il y a des loix qui reglent les " manieres de declarer k guerre, qui moderent les actes d'hostilite, 538 APPENDIX I. " qui maintiennent I'usage des mediations, des treves, des suspen- " sions d'armes, des compositions, de la siiret^ des otages, et d'autres " semblables. " Toutes ces choses n'ont pii etre reglees que pur quelques loix ; " et comme les nations n'ont aucune autorit^ pour s'en imposer " les unes aux autres, il y a deux sortes de loix, qui leur servent de ** regies. L'une des loix naturelles de I'humanit^, de I'hospitalit^, de " la fidelity, et toutes celles qui dependent de ces premieres, et qui " reglent les manieres dont les peuples de difFerentes nations doivent " user entr'eux en paix et en guerre. Et I'autre est celle des " r^glemens dont les nations conviennent par des Traites, ou par des " usages, qu'elles etablissent et qu'elles observent reciproquement. " Et les infractions de ces loix, de ces traites, et de ces usages sont " reprim^es par des guerres ouvertes, et par des represailles, et par " d'autres voyes proportionnees aux ruptures et aux entreprises. " Ce sont ces loix communes entre les nations qu'on pent appeler " et que nous appelons commun^ment le droit des gens ; quoique ce " mot soit pris en un autre sens dans le droit remain, ou Ton com- " prend sous le droit des gens les contrats meme ; comme les ventes, " les louages, la soci^t^, le dep6t, et autres, par cette raison qu'ils " sont en usage dans toutes les nations." {Extract from Merlin, Repertoire de Jurisprudence, vol. v. p. 291.) " Le droit primitif defi gens est aussi ancien que les hommes, et il " est par essence aussi invariable que le droit naturel ; les devoirs " des enfans envers leurs peres et leurs meres, I'attachement des " citoyens pour leur patrie, la bonne foi dans les conventions, n'ont " jamais du souiFrir aucun changement ; et ces devoirs, s'ils n'ont pas " ete toujours remplis, ont toujours du I'etre. " Quant au droit des gens secondaire, il s'est forme, comme on I'a *' ddja dit, par succession de temps. Ainsi, les devoirs reciproques " des citoyens ont commence lorsque les hommes ont bati des villes " pour vivre en society ; les devoirs des sujets envers I'lStatont com- " mence lorsque les hommes de cliaque pays qui ne composaient " entre eux qu'une meme famille soumise au seul gouvernement " paternel, ont etabli au-dessus d'eux une puissance publique qu'ils " ont deferee ^ un ou ^ plusieurs d'entre eux. " L'ambition, I'interet, et les autres sujets de discorde entre les " puissances voisines, ont donn^ lieu aux guerres et aux servitudes " personnelles ; telles sont les sources funestes d'une partie de ce " second droit des gens. " Les difFerentes nations, quoique la plupart divisees d'interets, " sont convenues entre elles tacitement d'observer, tant en paix " qu'en guerre, certaines regies de bienseance, d'humanite et de "justice, comme de ne point attenter a la personne des ambassadeurs " ou autres personnes envoy ees pour faire des propositions de paix " ou de treve ; de ne point empoisonner les Fontaines ; de respecter APPENDIX II. 539 " les temples; d'epargner les femmes, les vieillards, et les. enfans; " ces usages et plusieurs autres semblables, qui par succession des " temps ont acquis force de loi, out forme ce qu'on appelle le droit *' des gens ou le droit commun aux divers peuples." {Extract from Vattel, Prelim, s. 6.) " II faut done ajDpliquer aux nations les regies du droit naturel, ' pour decouvrir quelles sont leurs obligations, et quels sont leurs ' droits ; par consequent le droit des gens n'est originairement autre ' cliose que le droit de la nature applique aux nations. Mais comme ' I'application d'une regie ne peut etre juste et raisonnable, si elle ' ne se fait d'une maniere convenable au sujet, il ne faut pas croire ' que le droit des gens soit precisement et partout le meme que le ' droit naturel, aux sujets pres, en sorte que Ton n'ait qu'a substi- ' tuer les nations aux particuliers. Une society civile, un ]Etat, est ' un sujet bien different d'un individu humain ; d'ou resultent, en ' vertu des lois naturelles meme, des obligations et des droits bien ' diiferents en beaucoup de cas ; la meme regie generale, appliquee ' a deux sujets, ne pouvant operer des decisions semblables, quand ' les sujets different; ou une regie particuliere, tres-juste pour un ' sujet, n'etant point applicable a un second sujet de toute autre ' nature. II est done bien des cas, dans lesquels la loi naturelle ne ' decide point d'Etat a Etat, comme elle deciderait de particulier a ' particulier. II faut savoir en faire une application accommodee ' aux sujets; et c'est I'art de I'appliquer ainsi, avec une justesse ' fondle sur la droite raison, qui fait du droit des gens une science ' particuliere." APPENDIX II. Page 30. INTERNATIONAL JURISPIIUDENCE OF ANCIENT ROME. I. Grotius is literally inaccurate, as Ompteda remarks, in citing Cicero for a direct assertion that the science of International Jurisprudence was, in the abstract, an excellent thing. But unquestionably, in the passage upon which Grotius relies for this assertion. International Jurisprudence is recognized as a science, and acquaintance with it as the accomplishment of a statesman. Cicero (a), speaking of Pompey, says that he possessed " prasstabilem " scientiam in foederibus, pactionibus, conditionibus populorum, " regum, exterarum nationum in universo denique belli jure et " pacis," and it would not be easy to give a juster, better, more complete recognition, or a fuller description of the science of which we are treating. In Sallust, the expression jus gentium is (a) Orat. pro Lege Manil. 540 APPENDIX II. certainly to be found used in the sense of International Law, and also in some passages of Livy. For instance, when Sallust tells us that Marius, in putting to death the Numidians who had suiTen- dered {in deditionem acceptos), acted contra jus helliy he speaks of it as a violation of a recognized rule of International Law, appli- cable now, as then, to a state of war. And Bocchus is made by the same author to claim the part of Numidia conquered from Jugurtha as '■^ jure belli suam factamy Again, Jugurtha maintains that the Senate had no right to prevent him from attacking Ad- herbal, who had attempted his (Jugurtha's) life " Populum Eo- " manum neque recte, neque pro bono facturum, si ab jure gentium " sese prohibuerit " (h). In the most barbarous times, ambassadors are said to be "jure gentium sancti"(c). In both these instances the meaning would be correctly rendered by the words Law of Nations, There is another passage in the " Bellum Jugurthinum " in which the Law of Nations, with respect to the privilege of the ambassa- dor's suite, is clearly distinguished from the Law of Nature : " Fit " reus magis ex aequo bonoque, quam ex jure gentium Bomilcar, " comes ejus qui Romam fide publica venerat." The expression of Lucan, as to the violation of the Laws of Embassy by the Egyp- tians, is very strong : " Sed neque jus mundi valuit, neque foedera sancta Gentibus."— Xe6. x. 471-472. With respect to the use of this expression jus gentium, in the compilations of Justinian, it appears generally to be used to signify, sometimes what is called in modern times the Law of Nature, sometimes a positive Law universally instituted by all civilized nations. So, in the Digest (rf), acceptilatio, or the release of a debt, is said to be juris gentium ; and in modem times English Judges have said that questions relating to marriage are juris gentium. Gains and other Roman jurists made a twofold partition of Jus : into 1. Jus Gentium vel Naturae ; 2. Jus Civile. Ulpian and others made a threefold partition : 1. Jus Gentium; 2. Jus Civile; 3. Jus Naturale — meaning by this to include the interests common both to man and beast. Savigny rightly rejects this last partition, and adheres to the first (e). There are, however, passages in which jus gentium clearly does mean International Law. Thus, in the Digest, we read : " Si quis " legatum hostium pulsasset, contra jus gentium id commissum " esse existimatur, quia sancti habentur legati. Et ideo, quum " legati apud nos essent gentis alicujus, quum bellum eis indictum ** sit, responsum est, liberos eos manere ; id enim juri gentium con- " veniens esse. Itaque eimi, qui legatum pulsasset, Quintus Mucius (6) Sail. Bell. Jugurth. 225. (c) Liv. xxxix. 25. \d) Lib. xlvi. t. iv. (e) System des Jt, R. i. (Beylage I.). See, too, Cic. de Off. 1. i. 3-5. APPENDIX II. 541 " dedi hostibus, quorum erant legati, solitus est respondere ; quern " hostes si non recepissent, qu^situm est, an civis Romanus ma- " neret quibusdam existimantibus manere, aliis contra, quia quern " semel populus jussisset dedi, ex civitate expulisse videretur, sicut " faceret, quum aqua et igne interdiceret. In qua sententia videtur " Publius Mucins fuisse. Id autem maxime quaesitum est in Hos- " tilio Mancino, quern Numantini sibi deditum non acceperunt, de " quo tamen lex postea lata est, ut esset civis Romanus, et Pras- " turam quoque gessisse dicitur " (/). In the Institutes it is said : " Sed naturalia quidem jura, quae " apud omnes gentes perseque servantur, divina quadam provi- " dentia constituta, semper firma atque immutabilia permanent ; ea " vero quae ipsa sibi quajque ci vitas semper constituit, seepe mutari " sclent, vel tacito consensu populi, vel alia lege postea lata " (g). Here jus gentium and jus naturale, as the Law of Nature, are clearly synonymous. But in Gains we find this remarkable passage : after having said that only Roman citizens were competent to enter into a contract in the form spondes ? spondeo, he continues, " Unde dicitur, uno casu hoc verbo peregrinum quoque obligari " posse, velut si Imperator noster Principem alicujus peregrini " populi de pace ita interroget, Pacem futuram spondes ? vel ipse " eodem modo interrogetur. Quod nimium subtiliter dictum est ; " quia si quid adversus pactionem Jiat, non ex stipulatu agitur, " sed jure belli res vindicatur''^ (Ji). The reader who is anxious to prosecute his inquiries further into this not uninteresting subject, would do well to consult the follow- ing, among other treatises : 1. Warnkonig, " Vorschule der Institutionen und Pandekten," 83. 2. Savigny, "System des Romischen Rechts," i. 112; and Bey- lage I. to that volume. II. — 1. Observations upon the "Collegium Fecialium " and the " Jus Feciale." 2. The institution of the " Recuperatores," and the doctrine of the " Recuperatio." 1. Varro gives the following definition of the term : " Feciales, " quod fidei publicae inter populos pr^erant ; nam per hos fiebat " ut justum conciperetur belhim, et inde desitum ut foedere fides " pacis constitueretur. Ex his mittebantur antequam conciperetur, " qui res repeterent, et per hos etiam nunc fit foedus, quod Jidus " Ennius scribit dictum " («). The Roman institution of the Feciales was perhaps derived originally from the Egyptians, though directly from the Greeks (/) Big. Hb. 1. t. vii. s. 17. (g) Inst, de Jur. Nat. Gent, et Civ. 1. i. t. ii. s. 11. (A) The passage is cited by Savigny, System des R. R., vol. iii. (note c), p. 310. (t) Varro, Be Lingua Latina, 1. v. s. 86, p. 34 (Leipsic, 1833). 542 APPENDIX IT. through the medium of their colonies settled in Italy ; but it is a memorable characteristic of the Romans, that the founding of an institution having for its object the establishment and maintenance of fixed relations both in war and peace with neighbouring States, should have been almost coeval with the origin of their empire. The Feciales, occupying a middle station between priests and ministers of state, regulated, with as much precision as the heralds of the middle ages, and according to a certain ritual, the forms and usages relating to the treatment of ambassadors, the concluding of treaties, the promulgation and conduct of war (k). In these, as in all important concerns, the sanctions of religion were invoked to strengthen the obligations of morality. Cicero says : " Belli quidem " ajquitas sanctissim^ feciali populi jure preescripta est " (/) : and the facts recorded in history appear to waiTant this description. If a dispute arose between Rome and another independent State, Feciales were sent to demand reparation. If the attempt failed, war was declared according to minute and particular formalities. It is not within the scope of this work to show how the decay and decline of this remarkable institution accompanied the cor- ruption and overthrow of the republic (m). 2. We know from other sources, besides the certain testimony of etymology, that in the very earliest ages both of Greece and Rome tiie stranger and the enemy were synonymous terms (e'x^po'c, hostis) (n). To the necessity which dawning civilization soon pro- duced, of maintaining a friendly intercourse with the inhabitants of neighbouring States, as well as to some peculiarities in the condition of the founders of Rome, we owe the institution of the Recuperator es, and the doctrine of the Recuperatio (o). For in order to satisfy this necessity, treaties were entered upon, in which the administration of justice to the individual subjects of the contracting parties within the dominions of either was mutually guaranteed. Therefore Grotius correctly observes: " Tenetur {i. e. rex aut populus) etiam dare operam ut damna " resarciantur : quod officium Romse erat recuperaiorum. Gallus " JElius apud Festum, Reciperatio cum inter est populum et reges " nationesque ac civitates peregrinas, lex convemt, quomodo per " reciperatorem reddantur res reciperenturque, resque privatas inter " se prosequantur.^^ Sell, to whose very learned work I have already referred, cites the passage from Festus, but makes no mention of Grotius — at least, I can find none. (k) Sell, pp. 23-74. Grotius, he J. B. et P. 1. ii, c. i. s. 22, p. 168. (/) Cic. Be Off. 1. i. (m) Ompteda, VolkerrechtSj s. 34, p. 146. (n) Sell, pp. 2-3, and notes. (o) lb. 339. APPENDIX II. 543 The Eecuperatores (jy) were judges chosen for the purpose of de- ciding questions at issue between the native and the alien ally. Such a treaty, indeed, implied that the parties to it were free and independent States. For as soon as the one became actually subject to the other, the existence of such a treaty was useless, as the conquered might, and generally was compelled to, adopt the laws of the conqueror. Equally useless would such a treaty be in the case of two nations subsisting in so intimate an union as to be, as it were, citizens of one State. And if we bear in mind that in either of these contingencies a Recuperatio could have no place, and remember how rapidly the march of the Eoman empire reduced foreign countries within one or other of them, we shall not be surprised that the traces of the proper and primary application of this peculiar branch of jurisprudence become fainter as we advance in the history of Eome, and at last disappear altogether from her records (g). But when the Recuperatio was no longer strictly applicable, according to the letter of its original institution, because the sub- ject, namely, two independent States, was wanting, the principle of this jurisprudence was transferred, by the practical wisdom of Rome, to the arbitration of disputes arising between Eomans and the inhabitants of their colonies, and also of the provinces which it pleased them to leave with the appearances of independent States. Livy records a very striking instance of its application, at the request of the legate from Spain to the Senate of Eome. " Ilispaniae deinde utriusque legati aliquot populorum in senatum " introducti. li, de magistratuum Eomanorum avaritia superbia- " que conquest!, nisi genibus ab senatu petierunt, ne se socios " foedius spoliari vexarique, quam hostes, patiantur. Quum et alia " indigna quererentur, manifestum autem esset pecunias captas, " L. Canuleio pra2tori, qui Hispaniam sortitus erat, negotium " datum est, ut in singulos a quibus Hispani pecunias peterent, " quinos recuperatores ex ordine senatorio daret, patronosque quos " vellent, sumendi potestatem faceret. Vocatis in curiam legatis " recitatum est senatus consultum, jussique nominare patron os : " quatuor nominaverunt, M. Porcium Catonem, P. Cornelium Cn. " F. Scipionem, L. ^milium L. F. Paullum, C. Sulpicium Galium. " Cum M. Titinio primum, qui praetor A. Manlio, M. Junio con- " sulibus, in citeriore Hispania fuerat, recuperatores sumserunt. " Bis ampliatus, tertio absolutus est reus Ad recuperatores " adducti a citerioribus populis P. Furius Philus, ab ulterioribus " M. Matienus. Ille, Sp. Postumio, Q. Mucio consulibus, triennio " ante, hie biennio prius, L. Postumio, M. Popillio consulibus, " prsetor fuerat. Gravissimis criminibus accusati ambo ampliati- (/;) " rem praeclaram vobisque ah hoc retinendam recuperatores," &c. — Cic. Or at. pro Cacina, ss. 22, 24-25. {q) Sell, pp. 339-40. 544 APPENDIX III. " que : quum dicenda de integro caussa esset, excusati exsilii caussa " solum vertisse " (r). While the Eecuperatio existed in its primitive state, it presented a perfect picture of international arbitration upon the claims of individuals the subjects of diiferent States, that is, upon questions of Private International Law. The better opinion seems to be, that it took no cognizance directly of questions of Public International Law, which belonged to the province of the Feciales. The reader is referred to the following works for fuller informa- tion on this subject : — 1. Alexandri ab Alexandro Geniales Dies, vol. ii. 1. v. c. 3, " Quonam modo per Feciales inirentur foedera, aut bella indicerentur, " et quid ab exteris servatum est," ed. Lugd. Bat. 1673. 2. Sell, Die Recuperatio der Romer, ed. Braunschweig, 1837 (s). APPENDIX III. Page 45. {Extract from the Speech of Lord Grenville upon the Motion for an Address to the Grown, approving of the Convention with Russia in 1801, as to the effect of embodying a Principle of General Law in a Treaty.) " But, among the numerous instances in which such a revisal of the " present Treaty appears to be essential to the public interests, there " is none of such extensive importance as that to which I must next " entreat the particular attention of the House. " On comparing together the different sections of the third article " of this convention, one great distinction between them cannot fail to " be remarked, even by the most superficial observer. The two first " sections and the fifth, those which relate to the coasting and " colonial trade, and to the proceedings of our maritime tribunals, " are in their frame and operation manifestly prospective. They " provide only for the future arrangement of the objects which they " embrace ; and they profess to extend no further than to the reci- " procal conduct of Great Britain and Russia towards each other. " The third and fourth sections, on the contrary, those which " treat of contraband of war and of blockaded ports, do each of them " expressly contain, not the concession of any special privilege " henceforth to be enjoyed by the contracting parties only, but the (r) Liv. xliii. 2. Sell, pp. 365-6. (s) " Das die in Privatsachen richtenden Beeuperatores jemals in irgend einer rein oiFentlichen Sache entschieden hiitten, gleichviel ob die be- treifenden Staaten unabhangig, einem Bunde angehorig, oder eineni dritten untergeben waren, lasst sich durch keine Zeugnisse der alten belegen ; wohl aber sind dergleichen aufzufinden, aus deren das Gegen- theil hei'vorgeht." — Sell, p. 57. See, too, p. 84. APPENDIX III. 545 ^* recognition of a universal and pre-existing right, which, as such, " cannot justly be refused to any other independent State. " This third section, which relates to contraband of war, is in all " its parts strictly declaratory. It is introduced by a separate *' preamble, announcing that its object is to prevent ' all ambiguity " ' or misunderstanding as to what ought to he considered as contra- *' band of war.' " Conformably with this intention, the contracting parties declare " in the body of the clause what are the only commodities which " they ' acknowledge as such.^ And this declaration is followed by " a special reserve, that it ' shall not prejudice their particular *' ' Treaties with other Powers.' " If the parties had intended to treat of this question only as it " related to their own conduct towards each other, and to leave it " in that respect on the same footing on which it stood before the " formation of the hostile league of 1800, all mention of contraband " in this part of the present convention would evidently have been " superfluous ; nothing more could in that case be necessary than " simply to renew the former treaties, which had specified what " articles of commerce the subjects of the respective Powers might *' carry to the enemies of each other ; and, as we find that renewal " expressly stipulated in another article of this same convention, we " must, in common justice to its authors, consider this third section " as introduced for some distinct and separate purpose. It must, " therefore, unquestionably be understood in that larger sense which " is announced in its preamble, and which is expressed in the words " of the declaration which it contains. It must be taken as laying " down a general rule for all our future discussions with any Power " whatever, on the subject of military or naval stores, and as esta- " biishing a principle of law which is to decide universally on the *' just interpretation of this technical term of contraband of war. " Nor indeed, does it less plainly appear from the conclusion, " than it does from the preamble, and from the body of this section, " that it is meant to bear the general and comprehensive sense " which I have here stated. The reservation which is there made " of our special treaties with other Powers is manifestly incou- " sistent with any other more limited construction. " For if the article had really no other object in its view, than " to renew or to prolong our former engagements with the Northern " Crowns, what imaginable purpose can be answered by this con- " eluding sentence ? Was it necessary to declare that a stipulation " extending only to Kussia, to Denmark, and to Sweden, should " not prejudice our treaties with other Powers? How should " it possibly have any such effect ? How can our treaties with " Portugal or with America be affected by the renewal of those " engagements which had long ago declared what articles might " be carried in Russian or Danish ships ? But the case would " indeed be widely different under the more enlarged construction VOL. I. N N 546 APPENDIX IV. " which evidently belongs to this stipulation. The reserve was not ** only prudent, but necessary, when we undertook to lay down a " universal principle, applying alike to our transactions with every *' independent State. In recognizing a claim of pre-existing right, " and in establishing a new interpretation of the law of nations, it ** was unquestionably of extreme importance expressly to reserve " the more favourable practice which our subsisting treaties had " established with some other Powers. "And that which was before incongruous and useless would " therefore, under such circumstances, become, as far as it extends, " an act of wise and commendable forethought. " On the whole, therefore, I have no doubt that neutral nations " will be well warranted in construing this section as declaratory " of a universal principle, and applicable to every case where con- " traband of war is not defined by special treaty. Nor could we, " in my opinion, as this treaty now stands, contend in future wars " with any shadow of reason, much less with any hope of success, " against this interpretation, however destructive it must be of all " our dearest interests. Least of all can \ve resist it, when we are *' reminded, that in a succeeding article of this very convention we " have bound ourselves by the most distinct engagement, to regard " all its principles and stipulations as permanent, and to observe " them as our constant rule in matters of commerce and navigation; " expressions exactly corresponding with those by which the parties " to the two neutral leagues asserted both the permanence and the " universality of the principles which were first asserted by those " confederacies, and which the present convention so frequently re- " cognizes and adopts. " It is, therefore, highly necessary that your Lordships should *' carefully examine what is this general interpretation which the " contracting parties have thus solemnly declared ; what sense it is " that they have thus permanently afiixed to a term so frequently *' recurring in the practice and law of every civilized nation, and so " intimately connected with the exercise of our naval rights as that " of contraband of war." APPENDIX IV. Page 385. 33 Vict, c. 14. — An Act to amend the Law relating to the legal condition of Aliens and British Subjects. [12th May, 1870.] " Whereas it is expedient to amend the law relating to the legal ** condition of aliens and British subjects : " Be it enacted by the Queen's most Excellent Majesty, by and *' with the advice and consent of the Lords Spiritual and Temporal, APPENDIX IV. 547 " and Commons, in this present Parliament assembled, and by the " authority of the same, as follows : " 1. This Act may be cited for all purposes as * The Naturalization Short title. " ' Act, 1870.' " Status of Aliens in the United Kingdom. "2. Real and personal property of every description may be Capacity " taken, acquired, held, and disposed of by an alien in the same of an alien " manner in all respects as by a natural-born British subject ; and ^^ ^^ P^°" " a title to real and personal property of every description may be ^^^ ^' " derived through, from, or in succession to an alien, in the same " manner in all respects as through, from, or in succession to a natural- " born British subject : Provided, — " (1.) That this section shall not confer any right on an alien to " hold real property situate out of the United Kingdom, " and shall not qualify an alien for any office or for any " municipal, parliamentary, or other franchise : " (2.) That this section shall not entitle an alien to any right or " privilege as a British subject, except such rights and " privileges in respect of property as are hereby expressly " given to him : " (3.) That this section shall not affect any estate or interest in " real or personal property to which any person has or may " become entitled, either mediately or immediately, in " possession or expectancy, in pursuance of any disposi- " tion made before thepassingof this Act, or in pursuance " of any devolution by law on the death of any person " dying before the passing of this Act. " 3. Where Her Majesty has entered into a convention with any Power of " foreign State to the effect that the subjects or citizens of that natural- " State who have been naturalized as British subjects may divest ^^^^. aliens " themselves of their status as such subjects, it shall be lawful for ^hp^^^f^ " Her Majesty, by Order in Council, to declare that such convention of their " has been entered into by Her Majesty ; and from and after the status in " date of such Order in Council, any person being originally a sub- certain " ject or citizen of the State referred to in such Order, who has been cases. " naturalized as a British subject, may, within such limit of time as " may be provided in the convention, make a declaration of alienage, " and from and after the date of his so making such declaration " such person shall be regarded as an alien, and as a subject of the " State to which he originally belonged as aforesaid. " A declaration of alienage may be made as follows ; that is to " say, — If the declarant be in the United Kingdom in the presence *' of any justice of the peace ; if elsewhere in Her Majesty's dominions " in the presence of any judge of any court of civil or criminal juris- " diction, of any justice of the peace, or of any other officer for the " time being authorized by law in the place in which the declarant N K 2 548 APPENDIX IV. How British- born sub- ject may cease to bo such. Alien not entitled to jury de medietate linguae. Capacity of British subject to renounce allegiance to Her Majesty, " is to administer an oath for any judicial or other legal purpose. If " out of Her Majesty's dominions in the presence of any officer in " the diplomatic or consular service of Her Majesty. " 4. Any person who by reason of his having been born within " the dominions of Her Majesty is a natural-born subject, but who " also at the time of his birth became under the law of any foreign " State a subject of such State, and is still such subject, may, if of " full age and not under any disability, make a declaration of alien- " age in manner aforesaid, and from and ai'ter the making of such " declaration of alienage such person shall cease to be a British sub- " ject. Any person who is born out of Her Majesty's dominions of *' a father being a British subject may, if of full age, and not under ** any disability, make a declaration of alienage in manner aforesaid, " and from and after the making of such declaration shall cease to be " a British subject. " 5. From and after the passing of this Act, an alien shall not be " entitled to be tried by a juiy de medietate linguEe, but shall be " triable in the same manner as if he were a natural-born subject. " Expatriation, " 6. Any British subject who has at any time before, or may at " any time after the passing of this Act, when in any foreign State " and not under any disability, voluntarily become naturalized in " such State, shall from and after the time of his so having become " naturalized in such foreign State, be deemed to have ceased to be " a British subject and be regarded as an alien; Provided, — " (1.) That where any British subject has before the passing of " this Act voluntarily become naturalized in a foreign " State and yet is desirousof remaining a British subject, " he may, at any time within two years after the passing " of this Act, make a declaration that he is desirous of " remaining a British subject, and upon such declaration " hereinafter referred to as a declaration of British nation- " ality being made, and upon his taking the oath of " allegiance, the declarant shall be deemed to be and to " have been continually a British subject; with this quali- " fication, that he shall not, when within the limits of the " foreign State in which he has been naturalized, be " deemed to be a British subject, unless he has ceased to " be a subject of that State in pursuance of the laws " thereof, or in pursuance of a treaty to that effect : " (2.) A declaration of British nationality may be made, and the " oath of allegiance be taken as follows ; that is to say, — " If the declarant be in the United Kingdom in the pre- " sence of a justice of the peace ; if elsewhere in Her " Majesty's dominions in the presence of any judge of " any court of civil or criminal jurisdiction, of any justice APPENDIX IV. 549 "of the peace, or of any other officer for the time being " authorized by law in tlie place in which the declarant *• is to administer an oath for any judicial or other legal " purpose. If out of Her Majesty's dominions in the " presence of any officer in the diplomatic or consular " service of Her Majesty. " Naturalization and resumption of British Nationality. " 7. An alien who, within such limited time before making the " application hereinafter mentioned as may be allowed by one of Certificate '' Her Majesty's Principal Secretaries of State, either by general of natural- " order or on any special occasion, has resided in the United King- ^^^ti^*^- " dam for a term of not less than five years, or has been in the " service of the Crown for a term of not less than live years, and " intends, when naturalized, either to reside in the United Kingdom, " or to serve under the Crown, may apply to one of Her Majesty's " Principal Secretaries of State for a certificate of naturalization. " The applicant shall adduce in support of his application such " evidence of his residence or service, and intention to reside or " serve, as such Secretary of State may require. The said Secre- '' tary of State, if satisfied with the evidence adduced, shall take the " case of the applicant into consideration, and may, with or without " assigning any reason, give or withhold a certificate as he thinks " most conducive to the public good, and no appeal shall lie from " his decision, but such certificate shall not take effect until the " applicant has taken the oath of allegiance, " An alien to whom a certificate of naturalization is granted shall " in the United Kingdom be entitled to all political and other rights, " powers, and privileges, and be subject to all obligations, to which a " natural-born British subject is entitled or subject in the United '* Kingdom, with this qualification, that he shall not, when within " the limits of tl^e foreign State of which he was a subject previously " to obtaining his certificate of naturalization, be deemed to be a " British subject unless he has ceased to be a subject of that State " in pursuance of the laws thereof, or in pursuance of a treaty to " that effect. " The said Secretary of State may in manner aforesaid grant a " special certificate of naturalization to any person with respect to " whose nationality as a British subject a doubt exists, and he may " specify in such certificate that the grant thereof is made for the *' purpose of quieting doubts as to the right of such person to be av " British subject, and the grant of such special certificate shall not " be deemed to be any admission that the person to whom it was " granted was not previously a British subject. " An alien who has been naturalized previousl]^ to the passing of " this Act may apply to the Secretary of State for a certificate of " naturalization under this Act, and it shall be lawful for the said 550 APPENDIX IV. Certificate of re-ad- mission to British nation- ality. Form of oath of allegiance. Secretary of State to grant such certificate to such naturalized alien upon the same terms and subject to the same conditions in and upon which such certificate might have been granted if such alien had not been previously naturalized in the United Kingdom. " 8. A natural-born British subject who has become an alien in pursuance of this Act, and is in • this Act referred to as a statutory alien, may, on performing the same conditions and adducing the same evidence as is required in the case of an alien applying for a certificate of nationality, apply to one of Her Majesty's Principal Secretaries of State for a certificate hereinafter referred to as a certificate of re-admission to British nationality, re-admitting him to the status of a British subject. The said Secretary of State shall have the same discretion as to the giving or withholding of the certificate as in the case of a certificate of naturalization, and an oath ef allegiance shall in like manner be required previously to the issuing of the certificate. " A statutory alien to whom a certificate of re-admission to British nationality has been granted shall, from the date of the certificate of re-admission, but not in respect of any previous transaction, resume his position as a British subject ; with this qualification, that within the limits of the foreign State of which he became a subject he shall not be deemed to be a British subject unless he has ceased to be a subject of that foreign State according to the laws thereof, or in pursuance of a treaty to that effect. " The jurisdiction by this Act conferred on the Secretary of State in the United Kingdom in respect of the grant of a certificate of re-admission to British nationality, in the case of any statutory alien being in any British possession, may be exercised by the governor of such possession ; and residence in such possession shall, in the case of such person, be deemed equivalent to residence in the United Kingdom. " 9. The oath in this Act referred to as the oath of allegiance shall be in the form following ; that is to say, " ' I do swear that I will be faithful and bear 'true allegiance to Her Majesty Queen Victoria, her heirs and * successors, according to law. So help me GOD.' National status of married women and infant children. " National status of married women and infant children, " 10. The following enactments shall be made with respect to the " national status of women and children : " (1.) A married woman shall be deemed to be a subject of the *' State of which her husband is for the time being a " subject: " (2.) A widow being a natural -born British subject, who has " become an alien by or in consequence of her marriage, " shall be deemed to be a statutory alien, and may as " such at any time during widowhood obtain a certificate APPENDIX IV. 551 " of re-admission to British nationality in manner pro- " vided by this Act : " (3.) Where the father being a British subject, or the mother " being a British subject and a widow, becomes an alien " in pursuance of this Act, every child of such father or " mother who during infancy has become resident in the " country where the father or mother is naturalized, and " has, according to the laws of such country, become " naturalized therein, shall be deemed to be a subject of " the State of which the father or mother has become a " subject, and not a British subject : " (4.) Where the father, or the mother being a widow, has " obtained a certificate of re-admission to British nation- " ality, every child of such father or mother who during " infancy has become resident in the British dominions " with such father or mother, shall be deemed to have " resumed the position of a British subject to all intents: "(5.) Where the father, or the mother being a widow, has " obtained a certificate of naturalization in the United " Kingdom, every child of such father or mother who " during infancy has become resident with such father or " mother in any part of the United Kingdom, shall be " deemed to be a naturalized British subject. " Supplemental Provisions. " 11. One of Her Majesty's Principal Secretaries of State may Eegula- by regulation provide for the following matters : — tions as to " (1.) The form and registration of declarations of British ^fgistra- " nationality : " (2.) The form and registration of certificates of naturalization " in the United Kingdom : " (3.) The form and registration of certificates of re-admission " to British nationality : " (4.) The form and registration of declarations of alienage : " (5.) The registration by officers in the diplomatic or consular " service of Her Majesty of the births and deaths of " British subjects who may be born or die out of Her " Majesty's dominions, and of the marriages of persons " married at any of Her Majesty's embassies or lega- " tions : " (6.) The transmission to the United Kingdom for the purpose " of registration or safe keeping, or of being produced as " evidence of any declarations or certificates made in " pursuance of this Act out of the United Kingdom, or " of any copies of such declarations or certificates, also of " copies of entries contained in any register kept out of tion. tions as to evidence 552 APPENDIX IV. " the United Kingdom in pursuance of or for the purpose " of carrying into effect the provisions of this Act : " (7.) With the consent of the Treasury the imposition and appli- *' cation of fees in respect of any registration authorized " to be made by this Act, and in respect of the making " any declaration or the grant of any certificate autho- " rized to be made or granted by this Act. " The said Secretary of Sfcite, by a further regulation, may " repeal, alter, or add to any regulation previously made by him in ** pursuance of this section. " Any regulation made by the said Secretaiy of State in pur- " suance of this section shall be deemed to be within the powers " conferred by this Act, and shall be of the same force as if it had *' been enacted in this Act, but shall not so far as respects the " imposition of fees be in force in any British possession, and shall *' not, so far as respects any other matter, be in force in any British " possession in which any Act or ordinance to the contrary of or " inconsistent with any such direction may for the time being be in " force. Regula- a 22. The following repTilations shall be made with respect to " evidence under this Act : — " (1.) Any declaration authorized to be made under this Act may " be proved in any legal proceeding by the production of *' the original declaration, or of any copy thereof certified " to be a true copy by one of Her Majesty's Principal " Secretaries of State, or by any person authorized by *' regulations of one of Her Majesty's Principal Secretaries " of State to give certified copies of such declaration, and " the production of such declaration or copy shall be " evidence of the ■ person therein named as declarant " having made the same at the date in the said declara- " tion mentioned : " (2.) A certificate of naturalization may be proved in any legal " proceeding by the production of the original certificate, " or of any copy thereof certified to be a true copy by " one of Her Majesty's Principal Secretaries of State, or " by any person authorized by regulations of one of Her *' Majesty's Principal Secretaries of State to give certified " copies of such certificate : " (3.) A certificate of re-admission to British nationality may be *' proved in any legal proceeding by the production of the " original certificate, or of any copy thereof certified to be " a true copy by one of Her Majesty's Principal Secre- " taries of State, or by any person authorized by regula- " tions of one of Her Majesty's Principal Secretaries of " State to give certified copies of such certificate : " (4.) Entries in any register authorized to be made in pursuance " of this Act shall be proved by such copies and certified APPENDIX IV. 553 " in such manner as may be directed by one of Her " Majesty's Principal Secretaries of State, and the copies " of such entries shall be evidence of any matters by this " Act or by any regulation of the said Secretary of State " authorized to be inserted in the register : " (5.) The Documentary Evidence Act, 1868, shall apply to any " regulation made by a Secretary of State, in pursuance " of or for the purpose of carrying into effect any of the " provisions of this Act. " Miscellaneous, Saving of " 13. Nothing in this Act contained shall affect the grant of l<^tters of " letters of denization by Her Majesty. denization. " 14. Nothing in this Act contained shall qualify an alien to be Saving as .. ,-, r T> -4.- X. X.- to British "the owner of a British snip. shies " 15. Where any British subject has in pursuance of this Act ^. ^. ' « " become an alien, he shall not thereby be discharged from any aiie2iance " liability in respect of any acts done before the date of his so prior to " becoming an alien. expatria- " 16. All laws, statutes, and ordinances which may be duly made tion. *' by the legislature of any British possession for imparting to any " person the privileges, or any of the privileges, of naturalization, to Power of *' be enjoyed by such person within the limits of such possession, colonies to " shall within such limits have the authority of law, but shall be legislate " subject to be confirmed or disallowed by Her Majesty in the same ^^^^ ^^' " manner, and subject to the same rules in and subject to which ^"^^^ ^?- " Her Majesty has power to confirm or disallow any other laws, tion. " statutes, or ordinances in that possession. " 17. In this Act, if not inconsistent with the context or subject- Definition " matter thereof, — of terms. " 'Disability ' shall mean the status of being an infant, lunatic, " idiot, or married woman : " * British possession ' shall mean any colony, plantation, island, " territory, or settlement within Her Majesty's dominions, and " not within the United Kingdom, and all territories and " places under one legislature are deemed to be one British " possession for the purposes of this Act : " 'The Governor of any British possession ' shall include any " person exercising the chief authority in such possession : " ' Officer in the diplomatic service of Her Majesty ' shall mean " any ambassador, minister or charge d'affaires, or secretary of " legation, or any person appointed by such ambassador, " minister, charge d'affaires, or secretary of legation to execute " any duties imposed by this Act on an officer in the diplomatic " service of Her Majesty : *' ' Officer in the consular service of Her Majesty ' shall mean " and include consul-general, consul, vice-consul, and consular Acts. 554 APPENDIX IV. " agent, and any person for the time being discharging the " duties of consul-general, consul, vice-consul, and consular " agent. " Repeal of Acts mentioned in Schedule. Repeal of « jg. The several Acts set forth in the first and second parts of " the schedule annexed hereto shall be wholly repealed, and the " Acts set forth in the third part of the said schedule shall be " repealed to the extent therein mentioned; provided that the repeal " enacted in this Act shall not affect — " (1.) Any right acquired or thing done before the passing of " this Act : " (2.) Any liability accruing before the passing of this Act : " (3.) Any penalty, forfeiture, or other punishment incurred or to " be incurred in respect of any offence committed before " the passing of this Act : *' (4.) The institution of any investigation or legal proceeding or " any other remedy for ascertaining or enforcing any " such liability, penalty, forfeiture, or punishment as " aforesaid." SCHEDULE. Note. — Eeference is made to the repeal of the '• whole Act " where portions have been repealed before, in order to preclude henceforth the necessity of looking back to previous Acts. This Schedule, so far as respects Acts prior to the reign of G-eorge the Second, other than Acts of the Irish Parliament, refers to the edition prepared under the direction of the Record Commission, intituled " The Statutes " of the Realm ; printed by Command of His Majesty King George the '• Third, in pursuance of an Address of the House of Commons of Great " Britain. From original Records and authentic Manuscripts." Part I. ACTS WHOLLY REPEALED, OTHER THAN ACTS OF THE IRISH PARLIAMENT. Date. Title. 7 Jas. 1. c. 2. - An Act that all such as are to be naturalized or re- stored in blood shall first receive the sacrament of the Lord's Supper, and the oath of allegi- ance, and the oath of supremacy. 11 Will. 3. c. 6. {a) - An Act to enable His Majesty's natural-bom subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens. 13 Geo. 2. 0. 7. - An Act for naturalizing such foreign Protestants and others therein mentioned, as are settled or shall settle in any of His Majesty's colonies in America. (a) 11 & 12 Wm. 3. (Ruff.) APPENDIX IV. 555 Date. Title. 20 Geo. 2. c. 44. - An Act to extend tlie provisions of an Act made in the thirteenth year of His present Majesty's reign, intituled "An Act for naturalizing " foreign Protestants and others therein " mentioned, as are settled or shall settle in " any of His Majesty's colonies in America/' to other foreign Protestants who conscientiously scruple the taking of an oath. 13 Geo. 3. c. 25. - An Act to explain two Acts of Parliament, one of the thirteenth year of the reign of His late Majesty, "for naturalizing such foreign Protes- " tants and others, as are settled or shall settle " in any of His Majesty's colonies in America," and the other of the second year of the reign of His present Majesty, ''for naturalizing such " foreign Protestants as have served or shall " serve as officers or soldiers in His Majesty's " Royal American regiment, or as engineers in " America." 14 Geo. 3. c. 84. - An Act to prevent certain inconveniences that may happen by bills of naturalization. 16 Geo. 3. c. 52. - An Act to declare His Majesty's natural-born subjects inheritable to the estates of their ances- tors, whether lineal or collateral, in that part of Great Britain called Scotland, notwithstand- -ing their father or mother were aliens. 6 Geo. 4. c. 67. - An Act to alter and amend an Act passed in the seventh year of the reign of His Majesty King James the First, intituled " An Act that all " such as are to be naturalized or restored in '* blood shall first receive the sacrament of the *' Lord's Supper and the oath of allegiance and " the oath of supremacy." 7 & 8 Vict. c. 66. - An Act to amend the laws relating to aliens. 10 & 11 Vict. c. 83.- An Act for the naturalization of aliens. Part II. ACTS OF THE IRISH PARLIAMENT WHOLLY REPEALED. Date. Title. 14 & 15 Chas. 2. c. 13. An Act for encouraging Protestant strangers and others to inhabit and plant in the kingdom of Ireland. 2 Anne, c. 14. - An Act for naturalizing of all Protestant strangers in this kingdom. 19 & 20 Geo. 3. c. 29. An Act for naturalizing such foreign merchants, traders, artificers, artizans, manufacturers, work- men, seamen, farmers, and others as shall settle in this kingdom. 23 & 24 Geo. 3. c. 38. An Act for extending the provisions of an Act passed in this kingdom in the nineteenth and twentieth years of His Majesty's reign, in- tituled '' An Act for naturalizing such foreign 556 APPENDIX IV. Date Title. " merchants, traders, artificers, artizaus, manu- " facturers, workmen, seamen, farmers, and " others as shall settle in this kingdom." 36 Geo. 3. c. 48. - An Act to explain and amend an Act, intituled ♦' An Act for naturalizing such foreign mer- *' chants, traders, artiticers, artizans, manu- " facturers, workmen, seamen, farmers, and " others who shall settle in this kingdom." Part III. ACTS PARTIALLY REPEALED. Extent of repeal. 4 Geo. 1. c. 9. - An Act for reviving, con- So far as it makes per- CAct of Iiish tinuing, and amending petual the Act of Parliament.) several statutes made 2 Anne, c. 14. in this kingdom here- tofore temporary. 6 Geo. 4. c. 50. - An Act for consolidating The whole of sect. 47. and amending the laws relative to Jurors and Juries. 3 & 4 Will. 4. c. 91, An Act consolidating and The whole of sect. 37, amending the laws re- lating to Jurors and Juries in Ireland. TllEATY OF NATURALIZATION WITH THE UNITED STATES. {Convention between Her Majesty and the United States of Ainerica relative to Naturalization. Signed at London^ May 13, 1870.) [Ratifications exchanged at London, August 10, 1870.] " Her Majesty the Queen of the United Kingdom of Great Britain " and Ireland, and the President of the United States of America, " being desirous to regulate the citizenship of British subjects who " have emigrated, or who may emigrate, from the British dominions " to the United States of America, and of citizens of the United " States of America who have emigrated, or who may emigrate, from " the United States of America to the British dominions, have re- " solved to conclude a convention for that purpose, and have named " as their plenipotentiaries, that is to say : — " Her Majesty the Queen of the United Kingdom of Great Britain " and L-eland, the Right Honourable George William Frederick, " Earl of Clarendon, Baron Hyde of Hindon, a Peer of the United " Kingdom, a Member of her Britannic Majesty's Most Honourable " Privy Council, Knight of the Most Noble Order of the Garter, " Kjiight Grand Cross of the Most Honourable Order of the Bath, " Her Britannic Majesty's Principal Secretary of State for Foreign "Affairs; APPENDIX IV. 657 " And the President of the United States of America, John " Lothrop Motley, Esquire, Envoy Extraordinary and Minister " Plenipotentiary of the United States of America to Her Britannic " Majesty ; " Who, after having communicated to each other their respective " full powers, found to be in good and due form, have agreed upon " and concluded the following articles : — " AiiTiCLE I. — British subjects who have become, or shall become, " and are naturalized according to law within the United States of " America as citizens thereof, shall, subject to the provisions of " Article II., be held by Great Britain to be in all respects and for " all purposes citizens of the United States, and shall be treated as " such by Great Britain. " Reciprocally, citizens of the United States of America who have " become, or shall become, and are naturalized according to law " within the British dominions as British subjects, shall, subject to " the provisions of Article II., be held by the United States to be in " all respects and for all purposes British subjects, and shall be " treated as such by the United States. " Article II. — Such British subjects as aforesaid who have be- " come and are naturalized as citizens within the United States, shall " be at liberty to renounce their naturalization and to resume their " British nationality, provided that such renunciation be publicly " declared within two years after the twelfth day of May, 1870. " Such citizens of the United States as aforesaid who have become " and are naturalized within the dominions of Her Britannic Majesty " as British subjects, shall be at liberty to renounce their natural- " ization and to resume their nationality as citizens of the United " States, provided that such renunciation be publicly declared within " two years after the exchange of the ratifications of the present con- " vention. " The manner in which this renunciation may be made and " publicly declared shall be agreed upon by the Governments of the " respective countries. " Article HI. — If any such British subject as aforesaid, na- " turalized in the United States, should renew his residence within " the dominions of Her Britannic Majesty, Her Majesty's Government " may, on his own application and on such conditions as that Go- " vernment may think fit to impose, re-admit him to tlie character " and privileges of a British subject, and the United States shall not, " in that case, claim him as a citizen of the United States on account " of his former naturalization. " In the same manner, if any such citizen of the United States " as aforesaid, naturalized within the dominions of Her Britannic " Majesty, should renew his residence in the United States, the " United States Government may, on his own application and on " such conditions as that Government may think fit to impose, re- " admit him to the character and privileges of a citizen of the United 558 APPENDIX V. " States, and Great Britain shall not, in that case, claim him as a " British subject on account of his former naturalization. " Article IV. — The present convention shall be ratified by Her " Britannic Majesty and by the President of the United States, by " and with the advice and consent of the Senate thereof, and the " ratifications shall be exchanged at London as soon as may be " within twelve months from the date hereof. " In witness whereof the respective plenipotentiaries have signed " the same, and have affixed thereto their respective seals. " Done at London the thirteenth day of May, in the year of our " Lord 1870. (L.S.) " CLARENDON. (L.S.) " JOHN LOTHROP MOTLEY." APPENDIX V. Pages 22 & 264. THE ANNEXATION OF OUDE (a). The following is the official proclamation of the annexation of Oude :— " By a treaty concluded in the year 1801, the Hon. East India " Company engaged to protect the Sovereign of Oude against every " foreign and domestic enemy, while the Sovereign of Oude, upon *' his part, bound himself to establish ' such a system of administra- " * tion, to be carried into effect by his own officers, as should be " * conducive to the prosperity of his subjects, and calculated to " * secure the lives and properties of the inhabitants.' " The obligations which the treaty imposed upon the Hon. East " India Company have been observed by it, for more than half a " century, faithfully, constantly, and completely. " In all that time, though the British Government itself has been " engaged in frequent wars, no foreign foe has ever set his foot on " the soil of Oude ; no rebellion has ever threatened the stability of " its throne. British troops have been stationed in close proximity " to the King's person ; and their aid has never been withheld when- " ever his power was wrongfully defied. " On the other hand, one chief and vital stipulation of the treaty " has been wholly disregarded by every successive ruler of Oude ; " and the pledge, which was given for the establishment of such a " system of administration as should secure the lives and properties " of the people of Oude, and be conducive to their prosperity, has " from first to last been deliberately and systematically violated. (a) Ann. Reg. 1856, p. 248. See also Johnson v. M^Kintosh, 8 WTieaton^s (American) Beports, p, 543 — a case as to grants of land by Indian tribes, in which the law relative to Grant and Conquest is much discussed. APPENDIX V. 559 " By reason of this violation of the compact made, the British " Government might long since have justly declared the treaty void, " and might have withdrawn its protection from the rulers of Oude. " But it has hitherto been reluctant to have recourse to measures " which would be fatal to the power and authority of a Royal race, " who, whatever their faults towards their own subjects, have ever " been faithful and true to their friendship with the English nation. " Nevertheless, the British Government has not failed to labour " during all that time, earnestly and perseveringly, for the deliverance " of the people of Oude from the grievous oppression and misrule " which they have suffered. " Many years have passed since the Governor- General, Lord " William Bentinck, perceiving that every previous endeavour to " ameliorate the condition of the people of Oude had been thwarted '* or evaded, made a formal declaration to the Court of Lucknow, " that it would become necessary that he should proceed to assume " the direct management of the Oude territories. " The words and the menace which were employed by Lord *' William Bentinck were eight years ago repeated in person by Lord " Hardinge to the King. The Sovereign of Oude was on that day " solemnly bid remember that, whatever might now happen, ' it " ' would be manifest to all the world that he had received a friendly " ' and a timely warning.' " But the friendly intentions of the British Government have been " wholly defeated by the obstinacy, or incapacity, or apathy of the " Viziers and Kings of Oude. Disinterested counsel and indignant " censure, alternating through more than 50 years with repeated " warning, remonstrance, and threats, have all proved ineffectual and " vain. The chief condition of the treaty remains unfulfilled ; the " promise of the King rests unperformed ; and the people of Oude " are still the victims of incompetency, corruption, and tyranny " without remedy or hope of relief. " It is notorious throughout the land that the King, like most " of his predecessors, takes no real share in the direction of public " affairs. " The powers of government throughout his dominions are for the " most part abandoned to worthless favourites of the Court, or to " violent and corrupt men, unfit for their duties and unworthy " trust. " The collectors of the revenue hold sway over their districts with " uncontrollable authority, extorting the utmost payment from the " people, without reference to past or present engagements. " The King's troops, with rare exceptions undisciplined and " disorganized, and defrauded of their pay by those to whom it is " entrusted, are permitted to plunder the villages for their own sup- " port, so that they have become a lasting scourge to the country " they are employed to protect. " Gangs of freebooters infest the districts. Law and justice are 560 APPENDIX V. " unknown, armed violence and bloodshed are daily events, and " life and property are nowhere secure for an hour. *' The time has come when the British Government can no longer " tolerate in Oude these evils and abuses, while its position under " the treaty serves indirectly to sustain or continue to the Sovereign " that protection which alone upholds the power whereby such evils " are inflicted. " Fifty years of sad experience have proved that the treaty of " 1801 has wholly failed to secure the happiness and prosperity of " Oude ; and have conclusively shown that no effectual security can " be had for the release of the people of that country from the " grievous oppression they have long endured, unless the exclusive " administration of the territories of Oude shall be permanently " transferred to the British Government. *' To that end it has been declared, by the special authority and " consent of the Hon. the Court of Directors, that the treaty of *' 1801, disregarded and violated by each succeeding Sovereign of " Oude, is henceforth wholly null and void. " His Majesty Wajid Ali Shah was invited to enter into a new " engagement, whereby the government of the territories of Oude " should be vested exclusively and for ever in the Hon. East India " (Company, while ample provision should be made for the dignity, " affluence, and honour of the King and of his family. " But His Majesty the King refused to enter into the amicable " agreement which was offered for his acceptance. " Inasmuch, then, as His Majesty Wajid Ali Shah, in common " with all his predecessors, has refused, or evaded, or neglected to " fulfil the obligation of the treaty of 1801, whereby he was bound " to establish within his dominions such a system of administration " as should be conducive to the prosperity and happiness of his sub- " jects ; and inasmuch as the treaty he thereby violated has been " declared to be null and void ; and inasmuch as His Majesty has " refused to enter into other agreements which were offered to him " in lieu of such treaty ; and inasmuch as the terms of that treaty, " if it had still remained in force, forbade the employment of British " officers in Oude, without which no efficient system of administra- " tion could be established there, it is manifest to all that the British " Government had but one alternative before it. " Either it must altogether desert the people of Oude and de- " liver them up helpless to oppression and tyranny, which, acting " under the restrictions of treaty, it has already too long appeared " to countenance ; or it must put forth its own great power on " behalf of a people for whose happiness it more than 50 years ago ** engaged to interpose, and must at once assume to itself the exclu- " sive and permanent administration of the territories of Oude. " The British Government has had no hesitation in choosing the " latter alternative. " Wherefore proclamation is hereby made that the government of APPENDIX VI. 561 ^' the territories of Oude is henceforth vested exclusively and for " ever in the Hon. East India Company. " All Amils, Nazims, Chuckledars, and other servants of the " Durbar, all officers civil and military, the soldiers of the State, " and all the inhabitants of Oude, are required to render henceforth " implicit and exclusive obedience to the officers of the British " Government. " If any officer of Durbar, Jageerdar, Zemindar, or other person, " shall refuse to render such obedience, if he shall withhold the pay- " ment of revenue, or shall otherwise dispute or defy the authority " of the British Government, he shall be declared a rebel, his person " shall be seized, and his jageers or lands shall be confiscated to the " State. " To those who shall immediately and quietly submit themselves " to the authority of the British Government, whether Amils, Public " Officers, Jageerdars, Zemindars, or other' inhabitants of Oude, " full assurance is hereby given of protection, consideration, and " favour. " The revenue of the districts shall be determined on a fair and " settled basis. " The gradual improvement of the Oude territories shall be " steadily pursued. " Justice shall be measured out with an equal hand. " Protection shall be given to life and property, and every man " shall enjoy henceforth his just rights without fear of molestation. " By order of the Most Noble the Governor- General of India in *' Council. " S. E. EDMONSTONE." APPENDIX VL Page 293. PRESCRIPTION. {Extract from the Commentaries of Donellus. (lib. iv. c. iv. p. 334.) De usucapionihus longi temporis prcescriptiombus, &c.) " PosTREMO etiam privata traditione res aliena) invitis dominis ad " nos transeunt jure civili, si usus et justa possessio diuturnior ac- " cesser! t. Sic enim res quseruntur jure civili per usum et posses- " sionem. Hanc acquisitionem nunc referimus inter eos modos " quibus invito domindo acquisitio contingit : et recte. Nam et res " ita habet, ut quamvis dominus, nolit rem suam usucapi ab eo, qui " earn bona fide possidet, tamen per statutum tempus possessa, pos- " sessori acquiratur, ut postea dicetur. Juris quidem interpretatione "- usucapio alienationis species habetur ; quasi existimetur alienare, " qui patitur usucapi (I. alienationis. D. de verb, significat.). Qua " ratione et inter genera alienationis usucapio recenseri solet in " ratione dominii amittendi, de quo suo loco, sed ductum hoc est ex VOL. I. O O 562 APPENDIX VII. " eo, quod videtur, et quod ut plurimum accidit : qiiando quidem " existimatiir unusquisque scire res suas, et a quo possideantur, et " cum sciet, posse iuterrumpere usucapionem rem suam repetendo. " Verum hoc non semper ita fit. Quid enim, si heres ignoret res " aliquas hereditarias, qua} ab alio possidentur ? Quid si sciat *' dominus rem suam ab aliquo possideri, sed non audeat cum eo " contendere judicio, quia ejus potentiam metuat ? Quid, si ideo " non interpellet possessorem, quia in jui-e errans putet nihilominua " sibi jus suum semper salvum manere ? In quibus omnibus nemo " dicet, si res usucapitur aliter quam invito domino, possessor! " acquiri. Constat tamen acquiri. Hoc ergo sentio, etsi ita res " possideatur invito domino, tamen si possideatur per legitimum " tempus, impleri usucapionem proinde et acquisitionem invito ** domino : quae ideo ad hunc locum pertinet " (a). APPENDIX VII. Page 466. RIGHT OF JURISDICTION OVER PERSONS AND THINGS. "16 & 17 Vict. c. 107. — An Act to amend and consolidate the ." Laws relating to the Customs of the United Kingdom and of the " Isle of Man, and certain Laws relating to Trade and Naviga- *' tion and the British Possessions. [20th August, 1853.] " Sec. 150. — The following goods may, by Proclamation or " Order in Council, be prohibited either to be exported or carried " coastwise : — arms, ammunition, and gunpowder, military and " naval stores, and any articles which Her Majesty shall judge *' capable of being converted into or made useful in increasing the " quantity of military or naval stores, provisions, or any sort of " victual which may be used as food by man, and if any goods so " prohibited shall be exported from the United Kingdom, or carried " coastwise or be water-borne to be so exported or carried, they " shall be forfeited." In accordance with the provisions of this Statute, soon after the breaking out of the war with Russia (Saturday, February 18, 1854), the Queen issued the following Proclamation : — " By the Queen — A Proclamation. " Victoria E. " Whereas, by the Customs Consolidation Act, 1853, certain ** goods may be prohibited either to be exported or carried coast- " wise ; and whereas we, by and with the advice of our Privy " Council, deem it expedient and necessary to prohibit the goods *' hereinafter-mentioned either to be exported or carried coast- " wise ; we, by and with the advice aforesaid, do hereby order " and direct that, from and after the date hereof, all Arms, Am- (a) Hugonis Donelli Comment, de Jure Civili (Franco. 1589), lib. iv. c. iv. p. 334. APPENDIX VII. 563 " MUNITION, and Gunpowder, Military and Naval Stores, and the " following articles — being articles which we have 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, fire bars, and every article or any other " component part of an engine or boiler, or any article whatsoever " which is, or can, or may become applicable for the manufac- " ture of marine machinery, shall be and the same are hereby " prohibited either to be exported from the United Kingdom or " carried coastwise. " Given at our Court at Buckingham Palace, this eighteenth *' day of February, in the year of our Lord One thousand eight " hundred and fifty-four, and in the seventeenth year of our " reign. " God save the Queen." " o2th George III. c. 69. — An Act to prevent the Enlisting or British " Engagemmt of His Majesty's Subjects to serve in Foreign Foreiga " Service, and the fitting out or equipping, in His Majesty's I^^hst- ^^ Dominions, Vessels for warlike Purposes, without His Ma- "^®^^^ct. ^^ jesty's Licence (a). [3rd July, 1819.] " Whereas the enlistment or engagement of His Majesty's subjects " to serve in war in foreign service, without His Majesty's licence, " and the fitting out and equipping and arming of vessels by His " Majesty's subjects without His Majesty's licence, for warlike " operations in or against the dominions or territories of any " foreign prince, state, potentate, or persons exercising or assuming " to exercise the powers of government in or over any foreign " country, colony, province, or part of any province, or against the " ships, goods, or merchandise of any foreign prince, state, potentate, " or persons as aforesid, or their subjects, may be prejudicial to " and tend to endanger the peace and welfare of this kingdom : " And whereas the laws in force are not sufficiently effectual for " preventing the same : Be it therefore enacted by the King's most " excellent Majesty, by and with the advice and consent of the " Lords Spiritual and Temporal, and Commons, in this present " Parliament assembled, and by the authority of the same, that " from and after the passing of this Act, an Act passed in the ninth 9 a. 2, c. " year of the reign of His late Majesty King George the Second, 30. " intituled ' An Act to prevent the listing His Majesty's subjects to '' ' serve as soldiers without His Majesty's licence ; ' and also an Act " passed in the twenty-ninth year of the reign of His said late ^^ ^- ^' ^• " Majesty King George the Second, intituled ' An Act to prevent (a) " Non est singulis concedendum quod per magistratum fieri potest." — J)ig. 4-6, de Reg. Jur, o o 2 564 APPENDIX VII. Irish Act, 11 G. 2. Irish Act, 19 G. 2. Kecited Acts re- pealed. Subjects enlisting or engaging to enlist or serve in foreign service, military or naval, guilty of misdemea- nor. " * Hia Majcsty*s Subjects from serving as Officers under the French *' * King ; and for better enforcing an Act passed in the Ninth Year " * of His present Majesty's Keign, to prevent the enlisting His " * Majesty's Subjects to serve as Soldiers without His Majesty's " * Licence ; and for obliging such of His Majesty's Subjects as shall " * accept Commissions in the Scotch Brigade in the Service of the " * States General of the United Provinces, to take the Oaths of " * Allegiance and Abjuration;' and also an Act passed in Ireland " in the eleventh year of the reign of His said late Majesty King " George the Second, intituled * An Act for the more effectual " * preventing the enlisting of His Majesty's Subjects to serve as " * Soldiers in Foreign Service without His Majesty's Licence ; ' and " also an Act passed in Ireland in the nineteenth year of the reign " of His said late Majesty King George the Second, intituled * An " ' Act for the more effectual preventing His Majesty's Subjects " * from entering into Foreign Service, and for publishing an Act of " * the Seventh Year of King William the Third, intituled " An Act " ' to prevent Foreign Education ; " ' and all and every the clauses and " provisions in the said several Acts contained, shall be and the same " are hereby repealed. *' 2. And be it further declared and enacted that if any natural- " born subject of His Majesty, his heirs and successors, without " the leave or licence of His Majesty, his heirs or successors, for " that purpose first had and obtained, under the sign manual of " His Majesty, his heirs or successors, or signified by Order in " Council, or by proclamation of His Majesty, his heirs or succes- " sors, shall take or accept, or shall agree to take or accept, any " military commission, or shall otherwise enter into the military " service as a commissioned or non-commissioned oflicer, or shall " enlist or enter himself to enlist, or shall agree to enlist or to enter " himself to serve as a soldier, or to be employed or shall serve in " any warlike or military operation, in the service of or for or under " or in aid of any foreign prince, state, potentate, colony, province, " or part of any province or people, or of any person or persons " exercising or assuming to exercise the powers of government in or " over any foreign country, colony, province, or part of any province " or people, either as an officer or soldier, or in any other military " capacity; or if any natural-born subject of His Majesty shall, " without such leave or licence as aforesaid, accept, or agree to take " or accept any commission, warrant, or appointment as an officer, " or shall enlist or enter himself, or shall agree to enlist or enter " himself, to serve as a sailor or marine, or to be employed or " engaged, or shall serve in and on board any ship or vessel of war, " or in and on board any ship or vessel used or fitted out, or " equipped or intended to be used for any warlike purpose, in the " service of or for or under or in aid of any foreign power, prince, " stiite, potentate, colony, province, or part of any province or " people, or of any person or persons exercising or assuming to APPENDIX VII. 565 " exercise tlie powers of government in or over any foreign country, " colony, province, or part of any province or people ; or if any " natural-born subject of His Majesty shall, without such leave and " licence as aforesaid, engage, contract, or agree to go, or shall go " to any foreign state, country, colony, province, or part of any " province, or to any place beyond the seas, with an intent or in " order to enhst or enter himself to serve, or with intent to serve in " any warlike or military operation whatever, whether by land or " by sea, in the service of or for or under or in aid of any foreign " prince, state, potentate, colony, province, or part of any province " or people, or in the service of or for or under or in aid of any " person or persons exercising or assuming to exercise the powers " of government in or over any foreign country, colony, province, " or part of any province or people, either as an officer or a soldier, " or in any other military capacity, or as an officer or sailor, or " marine, in any such ship or vessel as aforesaid, although no " enlisting money or pay or reward shall have been or shall be " in any or either of the cases aforesaid actually paid to or received " by him, or by any person to or for his use or benefit ; or if any All per- *' person whatever, within the United Kingdom of Great Britain sons re- " and Ireland, or in any part of His Majesty's dominions elsewhere, ^^^^"^g ^^ " or in any country, colony, settlement, island, or place belr^nging to ofj^fjfj^"^ " or subject to His Majesty, shall hire, retain, engage, or procure, to enlist " or shall attempt or endeavour to hire, retain, engage, or procure, guilty of " any person or persons whatever to enlist, or to enter or engage to the like " enlist, or to serve or to be employed in any such service or 0"^iice. " employment as aforesaid, as an officer, soldier, sailor, or marine, " either in land or sea service, for or under or in aid of any foreign " prince, state, potentate, colony, province, or part of any province " or people, or for or under or in aid of any person or persons *' exercising or assuming to exercise any powers of govt.rnment as " aforesaid, or to go or to agree to go or embark from any part " of His Majesty's dominions, for the purpose or with intent to be " so enlisted, entered, engaged, or employed as aforesaid, whetlier " any enlisting money, pay, or reward shall have been or shall be " actually given or received, or not ; in any or either of such cases, " every person so offending shall be deemed guilty of a misde- " meaner, and upon being convicted thereof, upon any information " or indictment, shall be punishable by fine and imprisonment, or " either of them, at the discretion of the court before which such " offender shall be convicted. " 3. Provided always, and be it enacted, that nothing in this -^^t not to " Act contained shall extend or be construed to extend to render ^^'^^"'^ ^<> " any person or persons liable to any punishment or penalty under gjiif^^ted or " this Act, who at any time before the first day of August one serving be- " thousand eight hundred and nineteen, within any part of the fore the " United Kingdom, or of the Islands of Jersey, Guernsey, Alderney, times here- " or Sark, or at any time before the first day oi' November one thou- i" j^'^'*^^' 566 APPENDIX VII. ** sand eight himdrcd and nineteen, in any part or place out of the " United Kingdom, or of the said Islands, shall have taken or " accepted, or agreed to take or accept any railitjiry commission, or " shall have otherwise enlisted into any military service as a com- " missioned or non-commissioned officer, or shall have enlisted, or " entered himself to enlist, or shall have agreed to enlist or to enter " himself to serve as a soldier, or shall have served, or having so " served shall, after the said first day of August one thousand eight " hundred and nineteen, continue to serve in any warlike or mili- *' tary operation, either as an officer or soldier, or in any other " military capacity, or shall have accepted, or agreed to take or " accept any commission, warrant, or appointment as an officer, or " shall have enlisted or entered himself to serve, or shall have " served, or having so served shall continue to serve, as a sailor, *' or marine, or shall have been employed or engaged, or shall have " served, or having so served shall, after the said first day of " August, continue to serve in and on board any ship or vessel of " war, used or fitted out, or equipped or intended for any warlike " purpose ; or shall have engaged, or contracted or agreed to go, or " shall have gone to, or having so gone to shall, after the said first " day of August, continue in any foreign state, country, colony, " province, or part of a province, or to or in any place beyond the " seas, unless such person or persons shall embark at or proceed " from some port or place within the United Kingdom or the " Islands of Jersey, Guernsey, Alderney, or Sark, with intent to " serve as an officer, soldier, sailor, or marine, contrary to the pro- " visions of this Act, after the siiid first day of August, or shall " embark or proceed from some port or place out of the United " Kingdom or the Islands of Jersey, Guernsey, Alderney, or Sark " with such intent as aforesaid, after the said first day of November, " or who shall, before the passing of this Act, and within the said " United Kingdom, or the said Islands, or before the first day of " November one thousand eight hundred and nineteen, in any port " or place out of the said United Kingdom, or the said Islands, *' have hired, retained, engaged, or procured, or attempted or en- " deavoured to hire, retain, engage, or procure any person or persons " whatever, to enlist or to enter, or to engage to enlist or to serve, *' or be employed in any such service or employment as aforesaid, *' as an officer, soldier, sailor, or rnarine, either in land or sea service, "or to go, or agree to go or embark for the purpose or with the " intent to be so enlisted, entered, or engaged, or employed, contrary " to the prohibitions respectively in this Act contained, anything in " this Act contained to the contrary in anywise notwithstanding ; " but that all and every such persons and person shall be in such " state and condition, and no other, and shall be liable to such fines, " penalties, forfeitures, and disabilities, and none other, as such " person or persons was or were liable and subject to before the " passing of this Act, and as such person or persons would liave APPENDIX VII. 567 been in, and been liable and subject to, in case this Act and the said recited Acts by this Act repealed had not been passed or made. " 4. And be it further enacted, that it shall and may be lawful for any justice of the peace residing at or near to any port or place within the United Kingdom of Great Britain and Ireland, where any offence made punishable by this Act as a misdemeanor shall be committed, on information on oath of any such oiFence, to issue his warrant for the apprehension of the offender, and to cause him to be brought before such justice, or any justice of the peace ; and it shall be lawful for the justice of the peace before whom such offender shall be brought, to examine into the nature of the offence upon oath, and to commit such person to gaol, there to remain until delivered by due course of law, unless such offender shall give bail, to the satisfaction of the said justice, to appear and answer to any information or indictment to be preferred against him, according to law, for the said offence ; and that all such offences which shall be committed within that part of the United Kingdom called England, shall and maybe proceeded and tried in His Majesty's Court of King's Bench at Westminster, and the venue in such case laid at Westminster, or at the assizes or session of Oyer and Terminer and gaol delivery, or at any quarter or general sessions of the peace in and for the county or place where such offence was committed; and that all such offences which shall be committed within that part of the United Kingdom called Ireland, shall and may be prosecuted in His Majesty's Court of King's Bench at Dublin, and the venue be laid at Dublin, or at any assizes or session of Oyer and Terminer and gaol delivery, or at any quarter or general sessions of the peace in and for the county or place where such offence was committed ; and all such offences as shall be committed in Scotland, shall and may be pro- secuted in the Court of Justiciary in Scotland, or any other Court competent to try criminal offences committed within the county, shire, or stewartry within which such offence was committed ; and where any offence made punishable by this Act as a misdemeanor shall be committed out of the said United Kingdom, it shall be lawful for any justice of the peace residing near to the port or place where such offence shall be committed, on information on oath of any such offence, to issue his warrant for the apprehension of the offender, and to cause him to be brought before such justice, or any other justice of the peace for such place ; and it shall be lawful for the justice of the peace before whom such offender shall be brought, to examine into the nature of the offence upon oath, and to commit such person to gaol, there to remain till delivered by due course of law, or otherwise to hold such offender to bail to answer for such offence in the Superior Court competent to try and having jurisdiction to try criminal offences committed in such port or place ; and all such offences committed at any place out of Justices to issue war- rants for the appre- hension of offenders. Where offences shall be tried. 568 APPENDIX VII. the said United Kingdom shall and may be prosecuted and tried in any Superior Court of His Majesty's dominions competent to try and having jurisdiction to try criminal offences committed at the place where such offence shall be committed {b). " 5. And be it further enacted, that in case any ship or vessel in any port or place within His Majesty's dominions shall have on board any such person or persons who shall have been enlisted or entered to serve, or shall have engaged or agreed or been pro- cured to enlist or enter or serve, or who shall be departing from His Majesty's dominions for the purpose and with the intent of enlisting or entering to serve, or to be employed, or of serving or being engaged or employed in the service of any foreign prince, state, or potentate, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise the powers of government in or over any foreign colony, province, or part of any province or people, either as an officer, soldier, sailor, or marine, contrary to the provisions of this Act, it shall be lawful for any of the principal officers of His Majesty's customs, where any such officers of the customs shall be, and in any part of His Majesty's dominions in which there are no officers of His Majesty's customs, for any governor or persons having the chief civil command, upon information or oath given before them respectively, which oath they are hereby respectively authorized and empowered to administer, that such person or persons as aforesaid is or are on board such ship or vessel, to detain and prevent any such ship or vessel, or to cause such ship or vessel to be detained and prevented from proceeding to sea on her voyage with such persons as aforesaid on board : Provided, nevertheless, that no principal officer, governor, or person shall act as aforesaid, upon such information upon oath as aforesaid, unless the party so informing shall not only have deposed in such information that the person or persons on board such ship or vessel hath or have been enlisted or entered to serve, or hath or have engaged or agreed or been procured to enlist or enter or serve, or is or are departing as aforesaid, for the purpose and with the intent of enlisting or entering to serve or to be employed, or of serving, or being engaged or employed in such service as aforesaid, but shall also have set forth in such information upon oath the facts or circumstances upon which he forms his knowledge or belief, ena- bling him to give such information upon oath ; and that all and every person and persons convicted of wilfully false swearing in any such information upon oath shall be deemed guilty of and suffer the penalties on persons convicted of wilful and corrupt perjury. (h) 16 & 17 Vict. c. 107, 8. 309, as to how claim or appearance is to he entered to an information. APPENDIX VII. 569 " 6. And be it further enacted, that if any master or other person Penalty on having or taking the charge or command of any ship or vessel, in i^^sters of any part of the United Kingdom of Great Britain and Ireland, ^aSa; on' or in any part of His Majesty's dominions beyond the seas, shall board per- knowingly and willingly take on board, or if such master or other sons en- person having the command of any such ship or vessel, or any listed con- owner or owners of any such ship or vessel, shall knowingly If^^*^/? engage to take on board any person or persons who shall ^q^ ^^^ ' have been enlisted or entered to serve, or shall have engaged or each per- agreed or been procured to enlist or enter or serve, or who shall son. be departing from His Majesty's dominions for the purpose and with the intent of enlisting or entering to serve, or to be employed, or of serving, or being engaged or employed in any naval or military service, contrary to the provisions of this Act, such master or owner or other person as aforesaid shall forfeit and pay the sum of fifty pounds for each and every such person so taken or en- gaged to be taken on board ; and moreover every such ship or vessel, so liaving on board, conveying, carrying, or transportino^ any such person or persons, shall and may be seized and detained by the collector, comptroller, surveyor, or other officer of the customs, until such penalty or penalties shall be satisfied and paid, or until such master or person, or the owner or owners of such ship or vessel, shall give good and sufficient bail, by recognizance before one of His Majesty's justices of the peace, for the payment of such penalty or penalties. "7. And be it further enacted, that if any person, within any part Penalty on of the United Kingdom, or in any part of His Majesty's dominions persons beyond the seas, shall, without the leave and licence of His Majesty ^^^ ^^ ._ for that purpose first had and obtained as aforesaid, equip, furnish, g^jg <.q ^\^ fit out, or arm, or attempt or endeavour to equip, furnish, fit out, in military or arm, or procure to be equipped, furnished, fitted out, or armed, operations or shall knowingly aid, assist, or be concerned in the equipping, J^^^. ^"^ furnishing, fitting out, or arming of any ship or vessel, with intent p°J^^^^ . or in order that such ship or vessel shall be employed in the without service of any foreign prince, state, or potentate, or of any foreign licence, colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of government in or over any foreign state, colony, province, or part of any province or people, as a transport or store ship, or with intent to cruize or commit hostilities against any prince, state, or potentate, or against the subjects or citizens of any prince, state, or potentate, or against the persons exercising or assuming to exercise the powers of government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, province, or part of any province or country, with ^ . . whom His Majesty shall not then be at war ; or shall, within the commis- United Kingdom, or any of His Majesty's dominions, or in any sions for settlement, colony, territory, island, or place belonging or subject ships. 670 APPENDIX VII. Penalty for aiding the warlike equipment of vessels of foreign states, &c. " to His Majesty, issue or deliver any commission for any ship or " vessel, to the intent that such ship or vessel shall be employed as " aforesiiid, every such person so offending shall be deemed guilty of " a misdemeanor, and shall, upon conviction thereof, upon any in- " formation or indictment, be punished by fine and imprisonment, " or either of them, at the discretion of the Court in which such *' offender shall be convicted ; and every such ship or vessel, with " the tackle, apparel, and furniture, together with all the materials, " arms, ammunition, and stores, which may belong to or be on board " of any such ship or vessel, shall be forfeited ; and it shall be law- " ful for any officer of His Majesty's customs or excise, or any officer " of His Majesty's navy, who is by law empowered to make seizures, *' for any forfeiture incurred under any of the laws of customs or " excise, or the laws of trade and navigation, to seize such ships and " vessels aforesaid, and in such places and in such manner in which " the officers of His Majesty's customs or excise and the officers of " His Majesty's navy are empowered respectively to make seizures " under the laws of customs and excise, or under the laws of trade " and navigation ; and that every such ship and vessel, with the *' tackle, apparel, and furniture, together with all the materials, arms, " ammunition, and stores which may belong to or be on board of such " ship or vessel, may be prosecuted and condemned in the like man- *' ner, and in such Courts as ships or vessels may be prosecuted and " condemned for any breach of the laws made for the protection of " the revenues of customs and excise, or of the laws of trade and " navigation. *' 8. And be it further enacted, that if any person in any part of " the United Kingdom of Great Britain and Ireland, or in any part " of His Majesty's dominions beyond the seas, without the leave and " licence of His Majesty for that purpose first had and obtained as " aforesaid, shall, by adding to the number of the guns of such " vessel, or by changing those on board for other guns, or by the " addition of any equipment for war, increase or augment, or procure " to be increased or augmented, or shall be knowingly concerned in " increasing or augmenting the warlike force of any ship or vessel of " war, or cruizer, or other armed vessel which at the time of her " arrival in any part of the United Kingdom, or any of His Majesty's " dominions, was a ship of war, cruizer, or armed vessel in the " service of any foreign prince, state, or potentate, or of any person " or persons exercising or assuming to exercise any powers of " government in or over any colony, province, or part of any pro- *' vince or people belonging to the subjects of any such prince, state, " or potentate, or to the inhabitants of any colony, province, or part " of any province or country under the control of any person or " persons so exercising or assuming to exercise the powers of govern- " ment, every such person so offending shall be deemed guilty of a " misdemeanor, and shall, upon being convicted thereof, upon any " information or indictment, be punished by fine and imprisonment, APPENDIX VII. 571 or either of them, at the discretion of the Court before which such offender shall be convicted. " 9. And be it further enacted, that offences made punishable by the provisions of this Act, committed out of the United Kingdom, may be prosecuted and tried in His Majesty's Court of King's Bench at Westminster, and the venue in such case laid at West- minster in the county of Middlesex. " 10. And be it further enacted, that any penalty or forfeiture inflicted by this Act may be prosecuted, sued for, and recovered by action of debt, bill, plaint, or information, in any of His Ma- jesty's Courts of Record at Westminster or Dublin, or in the Court of Exchequer, or in the Court of Session in Scotland, in the name of His Majesty's Attorney-General for England or Ireland, or His Majesty's Advocate for Scotland respectively, or in the name of any person or persons whatsoever ; wherein no essoign, protection, privilege, wager of law, nor more than one imparlance shall be allowed ; and in every action or suit the person against whom judgment shall be given for any penalty or forfeiture under this Act shall pay double costs (c) of suit ; and every such action or suit shall and may be brought at any time within twelve months after the offence committed, and not afterwards ; and one moiety of every penalty to be recovered by virtue of this Act shall go and be ap- plied to His Majesty, his heirs or successors, and the other moiety to the use of such person or persons as shall first sue for the same, after deducting the charges of prosecution from the whole. "11. And be it further enacted, that if any action or suit shall be commenced, either in Great Britain or elsewhere, against any person or persons for anything done in pursuance of this Act, all rules and regulations, privileges and protections, as to maintaining or defending any suit or action, and pleading therein, or any costs thereon, in relation to any acts, matters, or things done, or that may be done by any officer of customs or excise, or by any officer of His Majesty's navy, under any Act of Parliament in force on or immediately before the passing of this Act, for the protection of the revenues of customs and excise, or prevention of smuggling, shall apply and be in full force in any such action or suit as shall be brought for anything done in pursuance of this Act, in as full and ample a manner to all intents and purposes as if the same privi- leges and protections were repeated and re-enacted in this Act. " 12. Provided always and be it further enacted, that nothing in this Act contained shall extend or be construed to extend, to subject to any penalty any person who shall enter into the military service of any prince, state, or potentate in Asia, with leave or licence, signified in the usual manner, from the Governor-General in Council, or Vice-President in Council, of Fort William in Bengal, or in conformity with any orders or regulations issued or sanc- tioned by such Governor-General or Vice-President in Council." Offences committed out of the kingdom may be tried at West- minster. How penalties shall be sued for and re- covered. Double costs. Limitation of actions. Former rules esta- blished by law to be applied to actions com- menced in pursu- ance of this Act. Penalties not to ex- tend to persons entering into mili- tary ser- vice in Asia. (c) Repealed by 5 «& 6 Vict. c. 97. 572 APPENDIX VII. Proclamation tamed by Her Majesty on the breaking out of the civil war ill the United States of America. " By the Queen. — A Proclamation. "Victoria R. " Whereas we are happily at peace with all sovereigns, powers, and " States : "And whereas hostilities have unhappily commenced between the " Government of tlie United States of America and certain States " styling themselves the Confederate States of America : " And whereas we, being at peace with the Government of the " United States, have declared our royal determination to maintain " a strict and impartial neutrality in the contest between the said " contending parties : " We therefore have thought fit, by and with the advice of our " Privy Council, to issue this our Royal Proclamation : " And we do hereby strictly charge and command all our loving " subjects to observe a strict neutrality in and during the aforesaid " hostilities, and to abstain fi-om violating or contravening either the " laws and statutes of the realm in this behalf, or the law of nations " in relation thereto, as they will answer to the contrary at their " peril : " And whereas in and by a certain statute made and passed in the " 59th year of His Majesty King George III , intituled * An Act to " * prevent the Enlisting or Engagement of His Majesty's Subjects " * to serve in Foreign Service, and the fitting out or equipping in ** * His Majesty's Dominions Vessels for warlike Purposes, without ** ' His Majesty's Licence,' it is amongst other things declared and " enacted as follows {the 2nd Section is here given at length). " And it is in and by the said Act further enacted, that {the 1th " Section is here given at length). " And it is in and by the said Act further enacted, that {the Sth ** Section is here given at length), " Now, in order that none of our subjects may unwarily render ** themselves liable to the penalties imposed by the said statute, we " do hereby strictly conmiand that no person or persons whatsoever " do commit any act, matter, or thing whatsoever contrary to the " provisions of the said statute, upon pain of the several penalties by " the said statute imposed, and of our high displeasure. "And we do hereby further warn all our loving subjects, and all " persons whatsoever entitled to our protection, that if any of them " shall presume, in contempt of this our Royal Proclamation, and of " our high displeasure, to do any acts in derogation of their duty as " subjects of a neutral sovereign, in the said contest, or in violation or " contravention of the law of nations in that behalf ; as for example, " and more especially by entering into the military service of either of " the said contending parties, as commissioned or non-commissioned APPENDIX VII. 573 *' officers or soldiers ; or by serving as oJSicers, sailors, or marines on " board any ship or vessel of war, or transport, of or in the service of " either of the said contending parties ; or by serving as officers, " sailors, or marines on board any privateer bearing letters of marque " of or from either of the said contending parties ; or by engaging to " go or going to any place beyond the seas, with intent to enlist or " engage in any such service, or by procuring or attempting to pro- " cure within Her Majesty's dominions at home or abroad others to " do so ; or by fitting out, arming, or equipping any ship or vessel " to be employed as a ship of war, or privateer, or transport, by either " of the said contending parties ; or by breaking or endeavouring to " break any blockade lawfully and actually established by or on behalf " of either of the said contending parties ; or by carrying officers, " soldiers, despatches, arms, military stores, or materials, or any article " or articles considered and deemed to be contraband of war, accord- " ing to the law or modern usage of nations, for the use or service of " either of the said contending parties ; all persons so offending will " incur and be liable to the several penalties and penal consequences " by the said statute or by the law of nations in that behalf imposed " or denounced. " And we do hereby declare that all our subjects and persons " entitled to our protection who may misconduct themselves in " the premises will do so at their peril and of their own wrong ; " and that they will in nowise obtain any protection from us " against any liabilities or penal consequences, but will, on the " contrary, incur our high displeasure by such misconduct. " Given at our Court, at the White Lodge, Richmond Park, this *' 13th day of May, in the year of our Lord One thousand eight " hundred and sixty-one, and in the 24th year of our reign. " God save the Queen." Judgment of the Lords of the Judicial Committee of the Privy Council on the Appeal of our Sovereign Ijady the Queen v. James Carlin {ship '■ Salvador''), from the Vice-Admiralty Court of the Bahamas ; delivered 28th June, 1870. Present: — Lord Cairns, Sir James W. Colvile, the Judge of THE High Court of Admiralty, Sir Robert Phillimore, Sir Joseph Napier. " This is an appeal from the decision of the Vice- Admiralty Court " of the Bahamas, upon an information filed on behalf of the Crown " before that Court under the Foreign Enlistment Act, with regard " to the ship Salvador, and seeking her confiscation. " The clause in the Foreign Enlistment Act which has to be con- " sidered is the seventh. It has frequently been remarked that the " interpretation of that clause is attended with some difficulty, *' mainly owing to the great quantity of words which are used in 574 APPENDIX VII. " the clause ; but endeavouring for the moment to set aside the ver- ** bijige of the clause, it is obvious that, in order to constitute an *' offence under it, five propositions must be established. In the " first place, the ship, which in other respects is found to be acting " within the meaning of the clause, must be acting without the " leave and licence of the Sovereign of this country. That is the " first element of the charge under the clause. The second is this, " the ship must be equipped, furnished, fitted out or armed, or there " must be a procuring, or an attempt or endeavour to equip, furnish, " fit out, or arm the ship. The third is that the equipping, furnish- " ing, fitting out, or arming of the ship must be done with the in- *' tent or in order that the ship or vessel shall be employed in the " service of some ' foreign prince, state, or potentate, or some foreign " ' colony, province, or part of any province or people, or of any " ' person or persons exercising, or assuming to exercise any powers " ' of government in or over any foreign state, colony, province, or " * part of any province or people.' " Then the fourth element in the charge is this, there must be an " intent to employ the ship in one of two capacities, either ' as a " ' transport or store-ship against any prince, state, or potentate ; ' or " ' with intent to cruise or commit hostilities against any prince, " * state, or potentate.' I pause for the purpose of observing that *' the words are not very happily chosen which represent her as " being employed ' as a transport or store-ship against any prince, " * state, or potentate ; ' but it is clear, open as the words may be to " criticism, that the intent is that the ship should be employed in ** one of the two capacities I have mentioned, and not only so, but " employed ' against,' that is in the way of aggression against some " foreign prince, potentate, or state. This should be done, as I have " already said, against some prince, state, or potentate, ' or against the subjects or citizens of any prince, state, or potentate, or against ** * the persons exercising or assuming to exercise the powers of C( ( ' government in any colony, province, or part of any province or country, or against the inhabitants of any foreign colony, pro- " * vince, or part of any province or country.' And the fifth element " is that this foreign state or potentate, and so on, should be one " with whom the Sovereign of this country should not then be at " war. " Those are the five elements which go to make up the whole " charge under the seventh clause. " Now, with regard to the first which I have mentioned, the " absence of leave and licence on the part of Her Majesty, no ques- " tion arises. " With regard to the second, namely, that there must be an " equipping, furnishing, fitting up, or arming, or a procuring, or an " attempt to do so, no question can arise in this case when we read " the evidence of Mr. Dumaresq, the Receiver-General and Treasurer " of the Island, who states the condition in which he found the ship. APPENDIX VII. 575 " and the preparations made on board of Ler, which seem to their " Lordships to amount to a fitting out or arming, or an attempt to " do so, within the meaning of this clause. The learned Judge of " the Vice- Admiralty Court seems to have entertained no doubt " himself upon this part of the case. " I pass over the third element which I mentioned, for the mo- " ment, in order to say that upon the fourth and fifth heads to which " I have referred there can also be no doubt entertained, as it seems " to their Lordships ; and here, again, no doubt was entertained by " the learned Judge of the Court below. It is quite clear that the " ship was intended to be used as a transport or store-ship against a " prince, state, or potentate with whom Her Majesty is not now at war. " She was to be used obviously as a transport or store-ship for the " purpose of conveying to Cuba men and materials ; and in that " way to do the duty of a transport ship, and so to inflict injury " upon the Spanish Government, who at that time were, and are " now, the lawful authority having the dominion over Cuba. Here, *' again, no doubt was entertained by the learned Judge in the " Court below, and no doubt could be entertained by any one who " looks at the evidence of Mr. Dumaresq, to whom I have already " adverted, and also the evidence of Mr. Butler, at page 24, both of " whom state what the report was which was made to themselves by " Carlin, the master of this vessel, as to her conduct when she went " to the coast of Cuba, — how she landed all the men she had on " board, plainly for the purpose of taking part in the insurrection *' which was going on in Cuba, — how they abandoned the ship when " they saw a Spanish ship of war in sight, — how they were pre- " pared to set fire to their ship if the Spanish ship approached them, <' — and how afterwards, when they found that they were unnoticed, " they took possession of the Salvador again, and brought her " back to Nassau. " That leaves uncovered only the third element of charge in this " clause, and it is upon that alone that the learned Judge of the " Vice- Admiralty Court entertained any doubt. " The third element is, that the ship must be employed in this " way in the service of some * foreign prince, state, or potentate, or " ' of any foreign colony, province, or part of any province or people, " ' or of any person or persons exercising or assuming to exercise any " * powers of government in or over any foreign state, colony, pro- " ' vince, or part of any province or people.' It is to be observed " that this part of the section is in the alternative. The ship may " be employed in the service of a foreign prince, state, or potentate, " or foreign state, colony, province, or part of any province or people ; " that is to say, if you find any consolidated body in the foreign " state, whether it be the potentate, who has the absolute dominion, " or the Government, or a part of the province or of the people, or " the whole of the province or the people acting for themselves, that " is sufficient. But by way of alternative, it is suggested tliat there 676 APPENDIX VII. " may be a case where, although you cannot say that the province " or the people, or a part of the province or people are employing " the ship, tliere yet may be some person or persons who may be " exercising, or assuming to exercise powers of government in the *' foreign colony or state, drawing the whole of the material aid for " the hostile proceedings from abroad; and therefore, by way of *' alternative, it is stilted to be sufficient if you find the ship pre- *' pared or acting in the service of ' any person or persons exercising " ' or assuming to exercise any powers of government in or over any " * foreign state, colony, province, or part of any province or people; ' " but that alternative need not be resorted to if you find the ship is " fitted out and armed for the purpose of being employed in the " service of any foreign state or people, or part of any province or " people. " Upon that the observation of the learned Judge was this: — " * We have no evidence of the object of the insurrection, who are " * the leaders, what portion of Cuba they have possession of, in what ** * manner this insurrection is controlled or supported, or in what " * manner they govern themselves. How, therefore, can I say that " * they are assuming the powers of government in or over any part " * of the island of Cuba ? ' " Now, it appears to their Lordships that the error into which the " learned Judge below fell, was in confining his attention to what " I have termed the second alternative of this part of the clause, and " in disregarding the first part of the alternative. It may be (it is " not necessary to decide whether it is so or not) that you could not " state who were the person or persons, or that there were any per- *' son or persons exercising, or assuming to exercise powers of " government in Cuba, in opposition to the Spanish authorities. " That may be so : their Lordships express no opinion upon that ** subject, but they will assume that there might be a difficulty in " bringing the case within that second alternative of the clause ; but " their Lordships are clearly of opinion that there is no difficulty in " bringing the case under the first alternative of the clause, because " their Lordships find these propositions established beyond all " doubt, — there was an insurrection in the island of Cuba ; there " were insurgents who had formed themselves into a body of people " acting together, undertaking and conducting hostilities ; these in- " surgents, beyond all doubt, formed part of the province or people ** of Cuba ; and beyond all doubt the ship in question was to be " employed, and was employed, in connection with and in the ser- " vice of this body of insurgents. " Those propositions being established, as their Lordships think " they clearly are established, both by the evidence of Mr. Dumaresq " and Mr. Butler, to which I have already referred, and further, by ** the evidence of the three witnesses, Loinaz at page 36, Wells at " page 7, and Mama at page 25, their Lordships think that the " requisitions of the 7th clause in this respect are entirely fulfilled, APPENDIX VII. 577 " and that the case is made out under this head, as it is upon all " other heads of the clause. " Their Lordships, therefore, will humbly recommend to Her " Majesty that the decision of the Vice- Admiralty Court should be " reversed, and that judgment should be pronounced for the Crown, " according to the prayer of the Information. " It has been intimated to their Lordships, that on the 7th of " February there was a decree by their Lordships for the appraise- " ment and sale of the vessel. She has been sold, and the net pro- " ceeds, £163 45. 8d., paid into Her Majesty's Commissariat chest " in the Bahamas. The Colonial Government, it appears, have " incurred expenses to the amount of ^145 5s. 10c?. in keeping the " vessel while she was under arrest, and they claim to be reimbursed " those expenses out of the proceeds of the sale. That, of course, " will be proper, and if it is necessary to make that part of this " Order, it will be done." In 1863 and 1864, in the case of the Alexandra, this statute was much discussed in the Exchequer Chamber and the House of Lords. The case was separately printed by Messrs. Eyre and Spottiswoode. and will also be found in the usual Reports. Enlistment Act. Act of Congress, with Notes {extracted from Dunlop's Digest of the American General Laws of the United States, ed. 1856.) Foreign " Chap. 88. — An Act (a) in addition to the ' Act for the punishment of " ' certain crimes against the United States^'' and to repeal the Acts " therein mentioned. [April 20, 1818.1 ^^^^ " That if any citizen of the United States shall, within the terri- aa^l im- " tory or jurisdiction thereof, accept and exercise a commission to prisonment " serve a foreign prince, state, colony, district, or people in war, by acceptine^^ " land or by sea, against any prince, state, colony, district, or commis- " people with whom the United States are at peace, the person so sions with- " offending shall be deemed guilty of a high misdemeanor, and shall i^ tlie " be fined not more than two thousand dollars, and shall be im- F^!^^ n " prisoned not exceeding three years. to^serve ^ ' " Sec. 2. That if any person shall, within the territory or juris- foreign " diction of the United States, enlist or enter himself, or hire or states. {a) This Act re-enacts the Acts of 1794, ch. 50, 1797, ch. 58, and of 1817, ch. 58, with some addition, and by adding the words " colony, district, or people." — 7 Wheat. 489, The Gran Tara. The object of the laws was to put an end to the slave trade, and to prevent the introduction of slaves from foreign countries. — 11 Peters, 73, United States v. the ship Garonne, United States v. Skiddy. Slaves of Louisiana taken hy their owners to France in 1835, and brought back with their own consent, is not a case within the Acts. — 11 Peters, 73, United States v. Skiddy. VOL. I. P P 578 APPENDIX VII, For any person in the United States enlisting others, &c., to serve a foreign state, &c. Fitting out or attempting to fit out. " retain another person to enlist or enter himself, or to go beyond " the limits or jurisdiction of the United States with intent to be " enlisted or entered in the service of any foreign prince, state, " colony, district, or people, as a soldier, or as a marine or seaman, " on board of any vessel of war, letter of marque, or privateer, every " person so offending shall be deemed guilty of a high misdemeanor, " and shall be fined not exceeding one thousand dollars, and be ** imprisoned not exceeding three years : Provided that this Act " shall not be construed to extend to any subject or citizen of any " foreign prince, state, colony, district, or people, who shall trans- " iently be within the United States, and shall on board of any *' vessel of war, letter of marque, or privateer, which, at the time of " its arrival within the United States, was fitted and equipped as " such, enh'st or enter himself, or hire or retain another subject " or citizen of the same foreign prince, state, colony, district, or " people (b), who is transiently within the United States, to enlist " or enter himself to serve such foreign prince, state, colony, " district, or people, on board such vessel of war, letter of marque, ** or privateer, if the United States shall then be at peace with such " foreign prince, state, colony, district, or people. " Sec. 3. That if any person shall within the limits of the United " States fit out and arm, or attempt (c) to fit out and arm, or procure " to be fitted out and armed, or shall knowingly be concerned in the " furnishing, fitting out, or (d) arming of any ship or vessel with [b) The intent must he a fixed one, and not contingent, and formed within the United States, and before the vessel leaves the United States. —4 Peters, 445, 466, United States v. Quincij; 3 Dal. 307, Muodie v. The Alfred. The law does not prohibit the sailing of armed vessels belonging to our citizens, out of our ports, on bond, &c., that they will not be employed to commit hostilities against powers at peace with us. — 6 Peters, 466 ; Johnson, J. The indictment charged the fitting out of the Bolivar with intent that she should be employed in the service of a foreign people, that is to say, in the service of the United Provinces of Rio de la Plata; held, that, although the United Provinces were recognized by the United States, the charge, under the inuendo, was sufficiently laid. — 6 Peters, 445, 467, United States v. Quincy. (c) An effort to fit out will satisfy the law. — 6 Peters, 445-464. The vessel was fitted out and repaired at Baltimore, and, with some warlike munitions on bond given, sailed for St. Thomas, where she was fully armed and cruised under a Buenos Ayrean commission. This was held to he an attempt. — 6 Peters, 445, United States v. Quincij. (d) Either will constitute the offence. — 6 Peters, 445, 464, United States V. Quincy. It is not necessary to charge the fitting and arming. The owner is liable under the Act, if he authorized and superintended the fitting and arming, without being personally present. It is not essential that the fitment should have been completed. It is not necessary that even equipment of a slave voyage should have been APPENDIX VII. 579 intent (e) that such ship or vessel shall be employed in the service of any foreign prince or state (/), or of any colony, district, or people, to cruize or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people {g) with whom the United States are at peace, or shall issue or deliver a commission within the territory or jurisdiction of the United States for any ship or vessel, to the intent that she may be employed as aforesaid, every person so oiFending shall be deemed guilty of a high misdemeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years ; and every such ship or vessel, with her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building and equipment thereof, shall be forfeited, one half to the use of the informer, and the other half to the use of the United States. " Sec. 4. That if any citizen or citizens of the United States shall, without the limits thereof, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall know- ingly aid or be concerned in the furnishing, fitting out, or arming, any private ship or vessel of war, or privateer, with intent that such ship or vessel shall be employed to cruize or commit hostili- ties upon the citizens of the United States, or their property, or shall take the command of, or enter on board of any such ship or vessel for the intent aforesaid, or shall purchase any interest in any such ship or vessel, with a view to share in the profits thereof, such person so offending shall be deemed guilty of a high misde- meanor, and fined not more than ten thousand dollars, and im- prisoned not more than ten years ; and the trial for such offence, if committed without the limits of the United States, shall be in the district in which the offender shall be apprehended or first brought. The vessel, &c., for- feited. Half to the informer. For citi- zens fitting out or arming, &c,, or aiding. To be tried where ap- prehended, or first brought. taken on hoard in the port of the United States. In this case part of the equipment of the General Winder for a slaving voyage was shipped on another vessel for St. Thomas, and then transhipped to the General Winder. The particulars of the fitting out need not be set out in the indict- ment ; they are minute acts, incapable of exact specification, 473, 475. The indictment should allege that the vessel was built, fitted, &c,, within the jurisdiction of the Unifed States, 476, 477, and "with intent to employ the vessel" in the slave trade j and alleging that "the intent" was "that the vessel should be employed in the slave trade " was not sufficient, 476. — 12 IVheat. 460, United States v. Gooding. (e) Although the arms and ammunition were cleared as cargo, and the men enlisted as for a mercantile voyage. — 7 Wheat. 471, 486, TJie Gran Para. (f) That is, a Government acknowledged by the United States. — 6 Peters, 467. (g) Note (6), sec. 2. p p 2 580 APPENDIX VII. Augment- ing in tho United States the force of foreign- armed vessels. Setting on foot within the United States any military expedition against a friendly power. District Courts to have cog- nizance of. The Pre- sident may employ the forces or the militia for sup- pressing such ex- peditions. " Sec. 5. That if any person shall, within the territory or juris- diction of the United States, increase or augment, or procure to be increased or augmented, or shall knowingly be concerned in increasing or augmenting the force of any ship of war, cruizer, or other armed vessel, which, at the time of her arrival within the United States, was a ship of war, or cruizer, or anned vessel, in the service of any foreign prince or state, or of any colony, dis- trict, or people, or belonging to the subjects or citizens of any such prince or state, colony, district, or people, the same being at war with any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, by adding to the number of the guns of such vessel, or by changing those on board of her for guns of a larger calibre, or by the addition thereto of any equipment solely applicable to war, every person so offending shall be deemed guilty of a high misdemeanor, shall be fined not more than one thousand dollars, and be imprisoned not more than one year. " Sec. 6. That if any person shall, within the territory or juris- diction of the United States, begin or set on foot, or provide or prepare the means for, any military expedition or enterprise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or people with whom the United States are (at) peace, every person so offending shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and im- prisoned not more than three years (h). " Sec. 7. That the District Courts shall take cognizance of com- plaints, by whomsoever instituted, in cases of captures made within the waters of the United States or within a marine league of the coasts or shores thereof. " Sec. 8. That in every case in which a vessel shall be fitted out and armed, or attempted to be fitted out and armed, or in which the force of any vessel of war, cruizer, or other armed vessel shall be increased or augmented, or in which any military expedition or enterprise shall be begun or set on foot, contrary to the provisions and prohibitions of this Act ; and in every case of the capture of a ship or vessel within the jurisdiction or protection of the United States as before defined, and in every case in which any process issuing out of any Court of the United States shall be disobeyed or resisted by any person or persons having the custody of any vessel of war, cruizer, or other armed vessel of any foreign prince or state, or of any colony, district, or people, or of any subjects or citizens of any foreign prince or state, or of any colony, district, or people, in every such case it shall be lawful for the President of the United States, or such other person as he shall have empowered for that purpose, to employ such part of the land or naval forces (h) Fenian invaders of Canada have been tried and punished under this section by United States Court, 1870. APPENDIX VII. 581 of the United States, or of the militia thereof, for the purpose of taking possession of and detaining any such ship or vessel, with her prize or prizes, if any, in order to the execution of the pro- hibitions and penalties of this Act, and to the restoring the prize or prizes in the cases in which restoration shall have been adjudged, and also for the purpose of preventing the carrying on of any such expedition or enterprise from the territories or juris- diction of the United States against the territories or dominions of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace. " Sect. 9. That it shall be lawful for the President of the United States, or such person as he shall empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia thereof, as shall be necessary to compel any foreign ship or vessel to depart the United States in all cases in which, by the laws of nations or the treaties of the United States, they ought not to remain within the United States. " Sec. 10. That the owners or consignees of every armed ship or vessel sailing out of the ports of the United States, belonging wholly or in part to citizens thereof, shall enter into bond to the United States, with sufficient sureties, prior to clearing out the same, in double the amount of the value of the vessel and cargo on board, including her armament, that the said ship or vessel shall not be employed by such owners to cruize or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace. '* Sec. 11. That the collectors of the customs be, and they are hereby respectively authorized and required to detain any vessel manifestly built for warlike purposes, and about to depart the United States, of which the cargo shall principally consist of arms and munitions of war, when the number of men shipped on board or other circumstances shall render it probable that such vessel is intended to be employed by the owner or owners to cruize or commit hostilities upon the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or people with whom the United States are at peace, until the decision of the President be had thereon, or until the owner or owners shall give such bond and security as is required of the owners of armed ships by the preceding section of this Act. " Sec. 12. That the Act passed on the 5th day of June, 1794, entitled * An Act in addition to the Act for the Punishment of ' certain Crimes against the United States,' continued in force, for a limited time, by the Act of the 2nd of March, 1797, and per- petuated by the Act passed on the 24th of April, 1800, and the Act passed on the 14th day of June, 1797, entitled ' An Act to ' prevent Citizens of the United States from privateering against ' Nations in Amity with, or against the Citizens of, the United May em- ploy the forces or the militia to compel the depar- ture of vessels. Owners, &c., of armed vessels sailing to give bond not to com- mit hosti- lities, &c. Collectors to detain vessels built for warlike purposes and about to depart when pro- bably they are in- tended against a friendly power. 5 Juno 1794, c. 50; U June 1797, c. 1 ; 24 April 1800,0.35, and 3 March 582 APPENDIX VII. 1817,c.68, repealed. Not to prevent the pu- nishment of treason, &c. " * States,' and the Act passed the 3rd day of March, 1817, entitled '' * An Act more effectually to preserve the neutral Relations of the " * United States,' be and the same are hereby severally repealed : " Provided, nevertheless, that persons having heretofore offended " against any of the Acts aforesaid may be prosecuted, convicted, " and punished as if the same were not repealed ; and no forfeiture " heretofore incurred by a violation of any of the Acts aforesaid " shall be affected by such repeal. " Sec. 13. That nothing in the foregoing Act shall be construed " to prevent the prosecution or punishment of treason, or any piracy " defined by the laws of the United States." Short title of Act. Applica- tion of Act. Com- mencement of Act. Penalty on enlistment in service of foreign State. * 33 & 34 Vict. c. 90. — An Act to regulate the conduct of " Her Majesty'^s Subjects during the existence of hostilities between " foreign States with which Her Majesty is at peace. [9th August, "*1870.] " Wliereas it is expedient to make provision for the regulation of the " conduct of Her Majesty's subjects during the existence of hostili- '* ties between foreign States with which Her Majesty is at peace : "Be it enacted by the Queen's most Excellent Majesty, by and " with the advice and consent of the Lord's Spiritual and Tem- '* poral, and Commons, in this present Parliament assembled, and by " the authority of the same, as follows : " Preliminary. " 1. This Act may be cited for all purposes as * The Foreign En- " ' listment Act, 1870.' "2. This Act shall extend to all the dominions of Her Majesty, " including the adjacent temtorial waters. " 3. This Act shall come into operation in the United Kingdom " immediately on the passing thereof, and shall be proclaimed in " every British possession by the governor thereof as soon as may be ** after he receives notice of this Act, and shall come into operation " in that British possession on the day of such proclamation, and " the time at which this Act comes into operation in any place is, " as respects such place, in this Act referred to as the commencement " of this Act. " Illegal Enlistment. " 4. If any person, without the licence of Her Majesty, being a " British subject, within or without Her Majesty's dominions, accepts " or agrees to accept any commission or engagement in the military " or naval service of any foreign State at war with any foreign State " at peace with Her Majesty, and in this Act referred to as a friendly " State, or whether a British subject or not within Her Majesty's " dominions, induces any other person to accept or agree to accept APPENDIX VII. 583 '^ any commission or engagement in the military or naval service of " any such foreign State as aforesaid, — " He shall be guilty of an offence against this Act, and shall be " punishable by fine and imprisonment, or either of such " punishments, at the discretion of the court before which the " offender is convicted ; and imprisonment, if awarded, may " be either with or without hard labour. "5. If any person, without the licence of Her Majesty, being a Penalty on " British subject, quits or goes on board any ship with a view of leaving " quitting Her Majesty's dominions, with intent to accept any com- -jyr®^ , , , " mission or engagement in the military or naval service of any dominions " foreign State at war with a friendly State, or, whether a British with intent " subject or not, within Her Majesty's dominions, induces any other to serve " person to quit or to go on board any ship with a view of quitting ^ foreign " Her Majesty's dominions with the like intent, — ^'^^^^• " He shall be guilty of an offence against this Act, and shall be " punishable by fine and imprisonment, or either of such " punishments, at the discretion of the court before which " the offender is convicted ; and imprisonment, if awarded, " may be either with or without hard labour. " 6. If any person induces any other person to quit Her Majesty's Penalty on " dominions or to embark on any ship within Her Majesty's do- embarking "minions under a misrepresentation or false representation of the P^^^sons " service in which such person is to be engaged, with the intent or ^^^ resen-**^ " in order that such person may accept or agree to accept any com- tations as " mission or engagement in the military or naval service of any to ser\ace. " foreign State at war with a friendly State, — " He shall be guilty of an offence against this Act, and shall be " punishable by fine and imprisonment, or either of such " punishments, at the discretion of the court before which " the offender is convicted ; and imprisonment, if awarded, " may be either with or without hard labour. " 7. If the master or owner of any ship, without the licence of Penalty on " Her Majesty, knowingly' either takes on board, or engages to take on taking " board, or has on board such ship within Her Majesty's dominions illegally " any of the following persons, in this Act referred to as illegally ^^^^^^^ " enlisted persons ; that is to say, — ^^ board " (1.) Any person who, being a British subject within or without ship. " the dominions of Her Majesty, has, without the licence " of Her Majesty, accepted or agreed to accept any com- " mission or engagement in the military or naval service " of any foreign State at war with any friendly State : " (2.) Any person, being a British subject, who, without the " licence of Her Majesty, is about to quit Her Majesty's " dominions with intent to accept any commission or " engagement in the military or naval service of any " foreign State at war with a friendly State : " (3.) Any person who has been induced to embark under a mis- 584 APPENDIX VII. " representation or false representation of the service in " which such person is to be engaged, with the intent or " in order that such person may accept or agree to accejjt " any commission or engagement in tlie military or " naval service of any foreign State at war with a friendly " State : " Such master or ovmer shall be guilty of an offence against this " Act, and the following consequences shall ensue ; that is to say, — " (1.) The offender shall be punishable by fine and imprisonment, " or either of such punishments, at the discretion of the " court before which the offender is convicted ; and im- " prisonment, if awarded, may be either with or without " hard labour ; and " (2.) Such ship shall be detained until the trial and conviction " or acquittal of the master or owner, and until all " penalties infIicted«on the master or owner have been " paid, or the master or owner has given security for the " payment of such penalties to the satisfaction of two " justices of the peace, or other magistrate or magistrates " having the authority of two justices of the peace : and " (3.) All illegally enlisted persons shall immediately on the " discovery of the offence be taken on shore, and shall " not be allowed to return to the ship. " Illegal Shipluilding and Illegal Expeditions. Penalty on " 8. If any person within Her Majesty's dominions, without the illegal " licence of Her Majesty, does any of the following acts ; that is to «hip . " say,-— • ^d iT^ I " ^^'^ Builds or agrees to build, or causes to be built, any ship with expedi-^^ " intent or knowledge, or having reasonable cause to be- tions. " lieve, that the same shall or will be employed in the " military or naval service of any foreign State at war " with any friendly State : or " (2.) Issues or delivers any commission for any ship with intent " or knowledge, or having reasonable cause to believe that " the same shall or will be employed in the military or " naval service of any foreign State at war with any " friendly State : or " (3.) Equips any ship with intent or knowledge, or having " reasonable cause to believe, that the same shall or will " be employed in the military or naval service of any " foreign State at war with any friendly State : or " (4.) Despatches, or causes or allows to be despatched, any ship " with intent or knowledge, or having reasonable cause to " believe, that the same shall or will be employed in the " military or naval service of any foreign State at war with " any friendly State : " Such person shall be deemed to have committed an offence ** against this Act, and the following consequences shall ensue : APPENDIX VII. 585 " (1.) The offender shall be punishable by fine and imprisonment, " or either of such punishments, at the discretion of the " court before which the offender is convicted ; and im- " prisonment, if awarded, may be either with or without " hard labour. " (2.) The ship in respect of which any such offence is committed, " and her equipment, shall be forfeited to Her Majesty : " Provided that a person building, causing to be built, or equipping . " a ship in any of the cases aforesaid, in pursuance of a contract " made before the commencement of such war as aforesaid, shall not " be liable to any of the penalties imposed by this section in respect " of such building or equipping if he satisfies the conditions folio w- " ing ; that is to say, — " (1.) If forthwith upon a proclamation of neutrality being issued " by Her Majesty he gives notice to the Secretary of State " that he is so building, causing to be built, or equipping " such ship, and furnishes such particulars of the contract " and of any matters relating to, or done, or to be done " under the contract as may be required by the Secretary " of State : " (2.) If he gives such security, and takes and permits to be taken " such other measures, if any, as the Secretary of State " may prescribe for ensuring that such ship shall not be " despatched, delivered, or removed without the licence " of Her Majesty until the termination of such war as " aforesaid. " 9. Where any ship is built by order of or on behalf of any presump- " foreign State when at war with a friendly State, or is delivered to tion as to " or to the order of such foreign State, or any person who to the evidence " knowledge of the person building is an agent of such foreign State, |^ ^^^® °^ " or is paid for by such foreign State or such agent, and is employed \ ^^^ " in the military or naval service of such foreign State, such ship " shall, until the contrary is proved, be deemed to have been built " with a view to being so employed, and the burden shall lie on the " builder of such ship of proving that he did not know that the ship " was intended to be so employed in the military or naval service of " such foreign State. " 10. If any person within the dominions of Her Majesty, and Penalty on " without the licence of Her Majesty, — aiding the " By adding to the number of the guns, or by changing those on warlike " board for other guns, or by the addition of any equipment for war, ^{Qj^^^a-n " increases or augments, or procures to be increased or augmented, or ships " is knowingly concerned in increasing or augmenting the warlike " force of any ship which at the time of her being within the dominions " of Her Majesty was a ship in the military or naval service of any " foreign State at war with any friendly State, — " Such person shall be guilty of an offence against this Act, and " shall be punishable by fine and imprisonment, or either of " such punishments, at the discretion of the court before which 5se APPENDIX VII. Penalty on fitting out naval or military expedi- tions with- out licence. Punish- ment of acces- sories. Limitation of term of imprison- ment. Illegal prize brought into British ports re- stored. " the offender is convicted ; and imprisonment, if awarded, " may be either with or without hard labour. " 11. If any person within the limits of Her Majesty's dominions, and without the licence of Her Majesty, — " Prepares or fits out any naval or military expedition to proceed against the dominions of any friendly State, the following conse- quences shall ensue : " (1.) Every person engaged in such preparation or fitting out, or " assisting therein, or employed in any capacity in such " expedition, shall be guilty of an offence against this Act, " and shall be punishable by fine and imprisonment, or " either of such punishments, at the discretion of the court " before which the offender is convicted ; and imprisonment, " if awarded, may be either with or without hard labour. " (2). All ships, and their equipments, and all arms and munitions " of war, used in or forming part of such expedition, shall be " forfeited to Her Majesty. " 12. Any person who aids, abets, counsels, or procures the com- mission of any offence against this Act shall be liable to be tried and punished as a principal offender. " 13. The term of imprisonment to be awarded in respect of any offence against this Act shall not exceed two years. " Illegal Prize. " 14. If, during the continuance of any war in which Her Majesty may be neutral, any ship, goods, or merchandise captured as prize of war within the territorial jurisdiction of Her Majesty, in violation of the neutrality of this realm, or captured by any ship which may have been built, equipped, commissioned, or despatched, or the force of which may have been augmented, contrary to the provisions of this Act, are brought within the limits of Her Majesty's dominions by the captor, or any agent of the captor, or by any person having come into possession thereof with know- ledge that the same was prize of war so captured as aforesaid, it shall be lawful for the original owner of such prize, or his agent, or for any person authorized in that behalf by the Government of the foreign State to which such owner belongs, to make application to the Court of Admiralty for seizure and detention of such prize, and the court shall, on due proof of the facts, order such prize to be restored. " Every such order shall be executed and carried into effect in the same manner, and subject to the same right of appeal, as in case of any order made in the exercise of the ordinary juris- diction of such court ; and in the meantime and until a final order has been made on such application the court shall have power to make all such provisional and other orders as to the care or custody of such captured shif), goods, or merchandise, and (if the same be of perishable nature, or incurring risk of deterioration) for the APPENDIX VII. 587 " sale thereof, and with respect to the deposit or investment of the " proceeds of any such sale, as may be made by such court in the " exercise of its ordinary jurisdiction. " General Provision. " 15. For the purposes of this Act, a licence by Her Majesty shall Licence by " be under the sign manual of Her Majesty, or be signified by Order .^ ^' " in Council or by proclamation of Her Majesty. Snted. " Legal Procedure. " 16. Any offence against this Act shall, for all purposes of and Jurisdic- *' incidental to the trial and punishment of any person guilty of any ^^^'^ ^"^ " such offence, be deemed to have been committed either in the place ^^g^ces^ " in which the offence was wholly or partly committed, or in any \^y persons " place within Her Majesty's dominions in which the person who against " committed such offence may be. Act. " 17. Any offence against this Act may be described in any indict- Venue in " ment or other document relating to such offence, in cases where respect of " the mode of trial requires such a description, as having been com- oflfences by " mitted at the place where it was wholly or partly committed, or ^ I " it may be averred generally to have been committed within Her ~f: r' q- " Majesty's dominions, and the venue or local description in the " margin may be that of the county, city, or place in which the trial " is held. " 18. The following authorities, that is to say, in the United Power to " Kingdom any judge of a superior court, in any other place within ^'^oj^ " the jurisdiction of any British court of justice, such court, or, if fojfjpiai^ " there are more courts than one, the court having the highest " criminal jurisdiction in that place, may, by warrant or instrument " in the nature of a warrant in this section included in the term '■'■ ' warrant,' direct that any offender charged with an offence against '' this Act shall be removed to some other place in Her Majesty's " dominions for trial in cases where it appears to the authority " granting the warrant that the removal of such offender would be " conducive to the interests of justice, and any prisoner so removed " shall be triable at the place to which he is removed, in the same " manner as if his offence had been committed at such place. " Any warrant for the purposes of this section may be addressed " to the master of any ship or to any other person or persons, and " the person or persons to whom such warrant is addressed shall " have power to convey the prisoner therein named to any place or " places named in such warrant, and to deliver him, when arrived " at such place or places, into the custody of any authority de- " signated by such warrant. " Every prisoner shall, during the time of his removal under any " such warrant as aforesaid be deemed to be in the legal custody of " the person or persons empowered to remove him. " 19. All proceedings for the condemnation and forfeiture of a Jurisdic- 588 APPENDIX VII. tion in re- spect of forfeiture of ships for offences against Act. Regula- tions as to proceed- ings jigainst the offender and against the ship. Officers authorized tx) seize offending ships. Powers of officers authorized to seize ships. " ship, or ship and equipment, or arms and munitions of war, in " pursuance of this Act shall require the sanction of the Secretary " of State or such chief executive authority as is in this Act men- " tioned, and shall be had in the Court of Admiralty, and not in " any other court ; and the Court of Admiralty shall, in addition to " any power given to the court by this Act, have in respect of any " ship or other matter brought before it in pursuance of this Act ail " powers which it has in the case of a ship or matter brought before " it in the exercise of its ordinary jurisdiction. " 20. Where any offence against this Act has been committed by " any person by reason whereof a ship, or ship and equipment, or " arms and munitions of war, has or have become liable to for- " feiture, proceedings may be instituted contemporaneously or not, " as may be thought fit, against the offender in any court having " jurisdiction of the offence, and against the ship, or ship and equip- " ment, or arms and munitions of war, for the forfeiture in the "Court of Admiralty; but it shall not be necessary to take pro- " ceedings against the offender because proceedings are instituted " for the forfeiture, or to take proceedings for the forfeiture because " proceedings are taken against the offender. "21. The following officers, that is to say, — " (1.) Any officer of customs in the United Kingdom, subject " nevertheless to any special or general instructions from " the Commissioners of Customs or any officer of the " Board of Trade, subject nevertheless to any special or " general instructions from the Board of Trade ; " (2.) Any officer of customs or public officer in any British " possession, subject nevertheless to any special or general " instructions from the governor of such possession ; " (3.) Any commissioned officer on full pay in the military service " of the Crown, subject nevertheless to any special or " general instructions from his commanding officer ; " (4.) Any commissioned officer on full pay in the naval service " of the Crown, subject nevertheless to any special or " general instructions from the Admiralty or his superior " officer, " may seize or detain any ship liable to be seized or detained in " pursuance of this Act, and such officers are in this Act referred to *' as the ' local authority ; ' but nothing in this Act contained shall " derogate from the power of the Court of Admiralty to direct any " ship to be seized or detained by any officer by whom such court " may have power under its ordinary jurisdiction to direct a ship " to be seized or detained. " 22. Any officer authorized to seize or detain any ship in respect " of any offence against this Act may, for the purpose of enforcing " such seizure or detention, call to his aid any constable or officers " of police, or any officers of Her Majesty's army or navy or marines, " or any excise officers or officers of customs, or any harbour-master APPENDIX VII. 589 or dock-master, or any officers having authority by law to make seizures of ships, and may put on board any ship so seized or detained any one or more of such officers to take charge of the same, and to enforce the provisions of this Act, and any officer seizing or detaining any ship under this Act may use force, if necessary, for the purpose of enforcing seizure or detention, and if any person is killed or maimed by reason of his resisting such officer in the execution of his duties, or any person acting under his orders, such officer so seizing or detaining the ship, or other person, shall be freely and fully indemnified as well against the Queen's Majesty, her heirs and successors, as against all persons so killed, maimed, or hurt. " 23. If the Secretary of State or the chief executive authority is satisfied that there is a reasonable and probable cause for believ- ing that a ship within Her Majesty's dominions has been or is being built, commissioned, or equipped contrary to this Act, and is about to be taken beyond the limits of such dominions, or that a ship is about to be despatched contrary to this Act, such Secre- tary of State or chief executive authority shall have power to issue a warrant stating that there is reasonable and probable cause for believing as aforesaid, and upon such warrant the local au- thority shall have power to seize and search such ship, and to detain the same until it has been either condemned or released by process of law, or in manner hereinafter mentioned. " The owner of the ship so detained, or his agent, may apply to the Court of Admiralty for its release, and the court shall as soon as possible put the matter of such seizure and detention in course of trial between the applicant and the Crown. " If the applicant establish to the satisfaction of the court that the ship was not and is not being built, commissioned, or equipped, or intended to be despatched, contrary to this Act, the ship shall be released and restored. " If the applicant fail to establish to the satisfaction of the court that the ship was not and is not being built, commissioned, or equipped, or intended to be despatched, contrary to this Act, then the ship shall be detained till released by order of the Secretary of State or chief executive authority. " The court may in cases where no proceedings are pending for its condemnation release any ship detained under this section on the owner giving security to the satisfaction of the court that the ship shall not be employed contrary to this Act, notwithstanding that the applicant may have failed to establish to the satisfaction of the court that the ship was not and is not being built, com- missioned, or intended to be despatched contrary to this Act. The Secretary of State or the chief executive authority may like- wise release any ship detained under this section on the owner giving security to the satisfaction of such Secretary of State or chief executive authority that the ship shall not be employed Special power of Secretary of State or chief exe- cutive au- tliority to detain ship. 590 APPENDIX VII. Special power of local au- thority to detain ship. " contrary to this Act, or may release the ship without such security " if the Secretary of State or chief executive authority think fit so " to release the same. " If the court be of opinion that there was not reasonable and " probable cause for the detention, and if no such cause appear in " the course of the proceedings, the court shall have power to de- " clare that the owner is to be indemnified by the payment of costs " and damages in respect of the detention, the amount thereof to be " assessed by the court, and any amount so assessed shall be payable " by the Commissioners of the Treasury out of any moneys legally " applicable for that purpose. The Court of Admiralty shall also " have power to make a like order for the indemnity of the owner, " on the application of such owner to the court, in a summary " way, in cases where the ship is released by the order of the " Secretary of State or the chief executive authority, before any " application is made by the owner or his agent to the court for " such release. " Nothing in this section contained shall affect any proceedings " instituted or to be instituted for the condemnation of any ship " detained under this section where such ship is liable to forfeiture, " subject to this provision, that if such ship is restored in pursuance " of this section all proceedings for such condemnation shall be " stayed ; and where the court declares that the owner is to be " indemnified by the payment of costs and damages for the detainer, " all costs, charges, and expenses incurred by such owner in or about " any proceedings for the condemnation of such ship shall be added " to the costs and damages payable to him in respect of the detention " of the ship. " Nothing in this section contained shall apply to any foreign " non-commissioned ship despatched from anypart of Her Majesty's " dominions after having come within them under stress of weather " or in the course of a peaceful voyage, and upon which ship no " fitting out or equipping of a warlike character has taken place in " this country. " 24. Where it is represented to any local authority, as defined " by this Act, and such local authority believes the representation, " that there is a reasonable and probable cause for believing that a " ship within Her Majesty's dominions has been or is being built, " commissioned, or equipped contrary to this Act, and is about to " be taken beyond the limits of such dominions, or that a ship is about " to be despatched contrary to this Act, it shall be the duty of such *' local authority to detain such ship, and forthwith to communicate " the fact of such detention to the Secretary of State or chief execu- " tive authority. " Upon the receipt of such communication the Secretary of State " or chief executive authority may order the ship to be released if " he thinks there is no cause for detaining her, but if satisfied that " there is reasonable and probable cause for believing that such " ship was built, commissioned, or equipped or intended to be APPENDIX VII. 591 " despatched in contravention of this Act, he shall issue his warrant " stating that there is reasonable and probable cause for believing as " aforesaid, and upon such warrant being issued further proceedings " shall be had as in cases where the seizure or detention has taken " place on a warrant issued bj the Secretary of State without any " communication from the local authority. " Where the Secretary of State or chief executive authority orders " the ship to be released on the receipt of a communication from the " local authority without issuing his warrant, the owner of the ship " shall be indemnified by the payment of costs and damages in respect " of the detention upon application to the Court of Admiralty in a " summary way in like manner as he is entitled to be indemnified " where the Secretary of State having issued his warrant under this " Act releases the ship before any application is made by the owner " or his agent to the court for such release. "25. The Secretary of State or the Chief executive authority may. Power of " by warrant, empower any person to enter any dockyard or other Secretary " place within Her Majesty's dominions and inquire as to the desti- °^ ^ta.to or " nation of any ship which may appear to him to be intended to be !^fUQj,ify " employed in the naval or military service of any foreign State at ^o grant " war with a friendly State, and to search such ship. search " 26. Any powers or jurisdiction by this Act given to the Secretary warrant. " of State may be exercised by him throughout the dominions of Exercise of " Her Majesty, and such powers and jurisdiction may also be exer- powers of " cised by any of the following officers, in this Act referred to as ^f s'tate"or *' the chief executive authority, within their respective jurisdictions ; ehief " that is to say, — executive " (1.) In Ireland by the Lord Lieutenant or other the chief authority. " governor or governors of Ireland for the time being, or " the chief secretary to the Lord Lieutenant : " (2.) In Jersey by the Lieutenant Governor : " (3.) In Guernsey, Aldemey, and Sark, and the dependent islands " by the Lieutenant Governor. " (4.) In the Isle of Man by the Lieutenant Governor : " (5.) In any British possession by the Governor. " A copy of any warrant issued by a Secretary of State or by any " officer authorized in pursuance of this Act to issue such warrant " in Ireland, the Channel Islands, or the Isle of Man shall be laid " before Parliament. "27. An appeal may be had from any decision of a Court of Appeal " Admiralty under this Act to the same tribunal and in the same f^oinCourt " manner to and in which an appeal may be had in cases within the ^ ■,. ^^' " ordinary jurisdiction of the court as a Court of Admiralty. " 28. Subject to the provisions of this Act providing for the Indemnity " award of damages in certain cases in respect of the seizure or de- *° officers. " tention of a ship by the Court of Admiralty no damages shall be " payable, and no officer or local authority shall be responsible, " either civilly or criminally, in respect of the seizure or detention " of any ship in pursuance of this Act. 592 APPENDIX VIT. Indemnity to Secre- tary of State or chief exe- cutive au- thority. Interpreta- tion of terms. " Foreign State:" " Military service:" Naval *' United Kingdom:" " British " The Se- cretary of State:" " Gover- nor:" " Court of Admi- ralty:" « Ship:" " 29. The Secretary of State shall not, nor shall the chief executive " authority, be responsible in any action or other legal proceedings " whatsoever for any warrant issued by him in pursuance of this " Act, or be examinable as a witness, except at his own request, in " any court of justice in respect of the circumstances which led to " the issue of the warrant. " Interpretation Clause. " 30. In this Act, if not inconsistent with the context, the following " terms have the meanings hereinafter respectively assigned to " them ; that is to say, — " ' Foreign State ' includes any foreign prince, colony, province, " or part of any province or people, or any person or persons " exercising or assuming to exercise the powers of government " in or over any foreign country, colony, province, or part of " any province or people : *' * Military service ' shall include military telegraphy and any " other employment whatever, in or in connection with any " military operation : " ' Naval service ' shall, as respects a person, include service as " a marine, employment as a pilot in piloting or directing the " course of a ship of war or other ship when such ship of war " or other ship is being used in any military or naval operation, " and any employment whatever on board a ship of war, trans- " port, store ship, privateer or ship under letters of marque ; '^ and as respects a ship, include any user of a ship as a trans- " port, store ship, privateer or ship under letters of marque : " * United Kingdom ' includes the Isle of Man, the Channel " Islands, and other adjacent islands : " ' British possession ' means any territory, colony, or place being " part of Her Majesty's dominions, and not part of the United " Kingdom, as defined by this Act : " * The Secretary of State ' shall mean any one of Her Majesty's " Principal Secretaries of State : " * The Governor ' shall as respects India mean the Governor- " General or the governor of any presidency, and where a " British possession consists of several constituent colonies, " mean the Governor-General of the whole possession or the " Governor of any of the constituent colonies, and as respects " any other British possession it shall mean the officer for the " time being administering the government of such possession ; " also any person acting for or in the capacity of a governor " shall be included under the terai ' Governor : ' " * Court of Admiralty ' shall mean the High Court of Admiralty " of England or Ireland, the Court of Session of Scotland, or " any Vice- Admiralty Court within Her Majesty's dominions : " * Ship ' shall include any description of boat, vessel, floating " battery, or floating craft ; also any description of boat, APPENDIX VII. 593 " vessel, or other craft or battery, made to move either on " the surface of or under water, or sometimes on the surface of " and sometimes under water : " ' Building ' in relation to a ship shall include the doing any act " Build- " towards or incidental to the construction of a ship, and all ing:" " words having relation to building shall be construed accord- " ingly : " * Equipping ' in relation to a ship shall include the furnishing " Equip- *^ a ship with any tackle, apparel, furniture, provisions, arms, P^^g- " munitions, or stores, or any other thing which is used in " or about a ship for the purpose of fitting or adapting her *' for the sea or for naval service, and all words relating to " equipping shall be construed accordingly : " * Ship and equipment ' shall include a ship and everything in or " belonging to a ship : " Ship and equip- Master ' shall include any person having the charge or command ^^° of a ship. " Repeal of Acts, and Saving Clauses, "31. From and after the commencement of this Act, an Act passed in the fifty-ninth year of the reign of His late Majesty King George the Third, chapter sixty-nine, intituled ' An Act to * prevent the enlisting or engagement of His Majesty's subjects to ' serve in foreign service, and the fitting out or equipping, in His '■ Majesty's dominions, vessels for warlike purposes, without His ' Majesty's licence,' shall be repealed : Provided that such repeal shall not affect any penalty, forfeiture, or other punishment in- curred or to be incurred in respect of any offence committed before this Act comes into operation, nor the institution of any investi- gation or legal proceeding, or any other remedy for enforcing any such penalty, forfeiture, or punishment as aforesaid. " 32. Nothing in this Act contained shall subject to forfeiture any commissioned ship of any foreign State, or give to any British court over or in respect of any ship entitled to recognition as a com- missioned ship of any foreign State any jurisdiction which it would not have had if this Act had not passed. " 33. Nothing in this Act contained shall extend or be construed to extend to subject to any penalty any person who enters into the military service of any prince. State, or potentate in Asia, with such leave or licence as is for the tim.e being required by law in the case of subjects of Her Majesty entering into the military service of princes, States, or potentates in Asia." " Master." Repeal of Foreign Enlist- ment Act, 59 G. 3, c. 69. Saving as to commis- sioned foreign ships. Penalties not to ex- tend to persons entering into mili- tary ser- vice in Asia. 69 G. 3, c. 69, s. 12, VOL. I. Q Q 594 APPENDIX VIII. APPENDIX VIII. Page 392. (^Extract from Ortolan^ Diplomatie de la Mer, t. ii. p. 441.) " Avis du Conseil d'etat sur la Competence en matiere de Delits " commis a hord des Vaisseaux neutres, dans les Points et Hades " de France. [20 novembre 1806.] " Le Conseil d'iltat qui, d'apres le renvoi h lui fait par Sa Ma- " jeste, a entendu le rapport de la section de legislation sur celui *' de grand-juge ministre de la justice, tendant a regler les limites " de la juridiction que les Consuls des Stats-Unis d'Amerique, " aux ports de Marseille et d' An vers, reclament, par rapport iiux " delits commis a bord des vaisseaux de leur nation, etant dans les " ports et rades de France ; — Considerant qu'un vaisseau neutre " ne pent etre indefiniment considere comme lieu neutre, et que la " protection qui lui est accord^e dans les ports fran^ais ne saurait " dessaisir a la juridiction territoriale, pour tout ce qui touche aux " interets de I'Etat ; — Qu'ainsi, le vaisseau neutre admis dans un " port de I'Etat, est de plein droit soumis aux lois de police qui " r^gissent le lieu ou il est re9u ; — Que les gens de son equipage " sont egalement justiciables des tribunaux du pays pour les delits " qu'ils y commettraient, meme a bord, en vers des personnes etran- " geres k I'equipage, ainsi que pour les Conventions civilcs qu'ils " pourraient faire avec elles ; — Mais, que si jusque-L\, la juridic- " tion territoriale est hors de doute, il n'en est pas ainsi a I'egard " des delits qui se commettent a bord du vaisseau neutre, de la part " d'un homme de I'equipage ; — Qu'en ce cas, les droits de la Puis- " sance neutre doivent etre respectes, comme s'agissant de la disci- " pline interieure du vaisseau, dans laquelle I'autorite locale ne doit " pas s'ing^rer, toutes les Ibis que son secours n'est pas reclame, " ou que la tranquillite du port n'est pas compromise ; — Est d'avis " que cette distinction, indiquee par le rapport du grand-juge et *' conforme a I'usage, est la seule regie qu'il convienne de suivre en " cette matiere ; — Et applic^uant cette doctrine aux deux especes " particuli^res pour lesquelles ont reclame les Consuls des liitats- " Unis ; — Considerant que dans I'une de ces affaires, il s'agit d'une " rixe passee dans le canot du navire americain La Newton, entre " deux matelots du meme navire, et dans I'autre d'une blessure " grave faite par le capitaine en second du navire La Sally, a I'un " de ses matelots, pour avoir dispose du canot sans son ordre ; " Est d'avis qu'il y a lieu d'accueillir la reclamation, et d'interdire " aux tribunaux fran^ais la connaissance des deux affaires pre- " citees." APPENDIX VIII. 595 " 15 Vict. c. 26. — An Act to enable Her Majesty to carry into effect " Arrangements made with Foreign Powers for the Appr^ehension " of Seamen who desert from their Ships. [17th June, 1852.] " Whereas aiTangements have been made with certain foreign " Powers for the recovery of seamen deserting from the ships of " such Powers when in British ports, and for the recovery of sea- " men deserting from British ships when in the ports of such " Powers : And whereas it is expedient to enable Her Majesty to " carry such arrangements into eifect, and likewise to enable Her " Majesty to carry into ' effect any similar arrangements of a like " nature which may be made hereafter : Be it enacted by the " Queen's most Excellent Majesty, by and with the advice and " consent of the Lords Spiritual and Temporal, and Com.mons, in " this present Parliament assembled, and by the authority of the *' same, as follows : " 1. Whenever it is made to appear to Her Majesty that due HerMa- " facilities are or will be given for recovering and apprehending jestymay " seamen who desert from British merchant ships in the terri- ]^J Order " tories of any foreign Power, Her Majesty may, by Order in J.^ Council " Council stating tlmt such facilities are or will be given, declare that^de- " that seamen, not being slaves, who desert from merchant ships serters " belonging to a subject of such Power, when within Her Majesty's from " dominions or the territories of the East India Company, shall be foreign " liable to be apprehended and carried on board their respective ^^V^ ™^y " ships, and may limit the operation of such Order, and may render i^en^d ^' " the operation thereof subject to such conditions and qualitications, and given " if any, as may be deemed expedient. up, " 2. Upon such publication as hereinafter mentioned of any such Uponpub- " Order in Council, then, during such time as the same remains in lication of " force, and subject to such limitations and qualifications, if any, as Oj'^er in " may be therein contained, every justice of the peace or other j^^s^jces " officer having jurisdiction in the case of seamen who desert from jghall aid " British merchant ships in Her Majesty's dominions or in the in recover- " territories of the East India Company shall, on application being i°g de- '^ made by a Consul of the foreign Power to which such Order in ^^^'^^^A^ " Council relates, or his deputy or representative, aid in appre- ^j^- ^ ^^ " bending any seaman or apprentice who deserts from any mer- foreign " chant ship belonging to a subject of such Power, and may for Powers, " that purpose, upon complaint on oath duly made, issue his war- and may " rant for the apprehension of any such deserter, and, upon due apprehend „ „ , ^^^ . 11-*' 1 1 1 1 ^1 them, and " proof of the desertion, order him to be conveyed on board the ^^^^ ^j^^^^ " vessel to which he belongs, or to be delivered to the master or on board. " mate of such vessel, or to the owner of such vessel or his agent, to " be so conveyed ; and thereupon it shall be lawful for the person " ordered to convey such deserter, or for the master or mate of Q Q 2 596 APPENDIX VIII. Penalty on persons harbour- ing 8uch deserters. Orders to be pub- lished in the Lon- don Ga- zette. Orders may be re- voked or altered. Short title. 8 ch vessel, or the owner or his agent (as the case may require), to convey him on board accordingly. " 3. If any person protects or harbours any deserter who is liable to be apprehended under this Act, knowhig or having reason to believe that he has deserted, such person shall ibr every offence be liable to a penalty not exceeding ten pounds, and every such penalty shall be recovered, paid, and applied in the same manner as penalties for harbouring or protecting deserters from British merchant ships. " 4. Every Order in Council to be made under the authority of this Act shall be published in the London Gazette as soon as may be after the making thereof. "5. Her Majesty may by Order in Council from time to time revoke or alter any Order in Council previously made under the authority of this Act. " 6. This Act may be cited as the * Foreign Deserters Act, 1852.'" APPENDIX IX. Page 437. 33 & 34 Vict. c. 52. — An Act for amending the law relating to " the extradition of criminals, [August 9, 1870.] Whereas it is expedient to amend the law relating to the sur- render to foreign States of persons accused or convicted of the commission of certain crimes within the jurisdiction of such States, and to the tiial of criminals surrendered by foreign States to this country : " Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Short title. Where ar- rangement for sur- render of criminals made, Order in Council to apply Act. " Preliminary. " 1. This Act may be cited as ' The Extradition Act, 1870.' "2. "Where an arrangement has been made with any foreign State with respect to the surrender to such State of any fugitive criminals. Her Majesty may, by Order in Council, direct that this Act shall apply in the case of such foreign State. "Her Majesty may, by the same or any subsequent Order, limit the operation of the Order, and restrict the same to fugitive criminals who are in or suspected of being in the part of Her Majesty's dominions specified in the Order, and render the opera- tion thereof subject to such conditions, exceptions, and qualifica- tions as may be deemed expedient. "Every such Order shall recite or embody the terms of the APPENDIX IX. 597 " arrangement, and shall not remain in force for any longer period " than the arrangement. " Every such Order shall be laid before both Houses of Parliament " within six weeks after it is made, or, if Parliament be not then " sitting, within six weeks after the then next meeting of Parlia- " ment, and shall also be published in the London Gazette. " 3. The following restrictions shall be observed with respect to Kestric- " the surrender of fugitive criminals: tions on " (1.) A fugitive criminal shall not be surrendered if the offence surrender " in respect of which his surrender is demanded is one of of^i"*^^!- a political character, or if he prove to the satisfaction of nals. " the police magistrate or the court before whom he is " brought on Habeas corpus, or to the Secretary of State, " that the requisition for his surrender has in fact been " made with a view to try or punish him for an offence " of a political character : " (2.) A fugitive criminal shall not be surrendered to a foreign " State unless provision is made by the law of that State, " or by arrangement, that the fugitive criminal shall not, " until he has been restored or had an opportunity of " returning to Her Majesty's dominions, be detained or " tried in that foreign State for any offence committed " prior to his surrender other than the extradition crime " proved by the facts on which the surrender is grounded: " (3.) A fugitive criminal who has been accused of some offence " within English jurisdiction not being the offence for " which his surrender is asked, or is undergoing sentence " under any conviction in the United Kingdom, shall not " be surrendered until after he has been discharged, " whether by acquittal or on expiration of his sentence " or otherwise : " (4.) A fugitive criminal shall not be surrendered until the expi- " ration of fifteen days from the date of his being com- " mitted to prison to await his surrender. "4. An Order in Council for applying this Act in the case of any Provisions " foreign State shall not be made unless the arrangement — of arrangc- " (1.) provides for the determination of it by either party to it ^^^^ for " after the expiration of a notice not exceeding one year; ^"^^^^ ^^• " and, " (2.) is in conformity with the provisions of this Act, and in " particular with the restrictions on the surrender of " fugitive criminals contained in this Act. " 5. When an Order applying this Act in the case of any foreign Puhliea- " State has been published in the London Gazette, this Act (after " the date specified in the Order, or, if jio date is specified, after the " date of the publication) shall, so long as the Order remains in *' force, but subject to the limitations, restrictions, conditions, ex- " ceptions, and qualifications, if any, contained in the Order, apply tion and effect of Order. 598 APPENDIX IX. Liability of criminal to sur- render. Order of Secretary of State for issue of warrant^in United ' Kingdom if crime is not of a political claaracter. Issue of warrant by police ma- gistrate, justice, etc. in the case of such foreign State. An Order in Council shall be conclusive evidence that the arrangement therein referred to complies Avith the requisitions of this Act, and that this Act applies in the case of the foreign State mentioned in the Order, and the validity of such Order shall not be questioned in any legal proceedings whatever. " 6. Where this Act applies in the case of any foreign State, every fugitive criminal of that State who is in or suspected of being in any part of Her Majesty's dominions, or that part which is specified in the Order applying this Act (as the case may be), shall be liable to be apprehended and siurendered in manner provided by this Act, whether the crime in respect of which the surrender is sought was committed before or after the date of the Order, and whether there is or is not any concurrent jurisdiction in any court of Her Majesty's dominions over that crime. " 7. A requisition for the surrender of a fugitive criminal of any foreign State, who i* in or suspected of being in the United King- dom, shall be made to a Secretary of State by some person recog- nized by the Secretary of State as a diplomatic representative of that foreign State. A Secretary of State may, by order under his hand and seal, signify to a police magistrate that such requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal. " If the Secretary of State is of opinion that the offence is one of a political character, he may, if he think fit, refuse to send any such order, and may also at any time order a fugitive criminal accused or convicted of sucli offence to be discharged from custody. " 8. A warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the United Kingdom, may be issued — " 1. by a police magistrate on the receipt of the said order of the " Secretary of State, and on such evidence as would in his " opinion justify the issue of the warrant if the crime had " been committed or the criminal convicted in England; "and " 2. by a police magistrate or any justice of the peace in any part " of the United Kingdom, on such information or com- " plaint and such evidence or after such proceedings as " would in the opinion of the person issuing the warrant " justify the issue of a warrant if the crime had been com- " mitted or the criminal convicted in that part of the " United Kingdom in which he exercises jurisdiction. Any person issuing a warrant under this section without an order from a Secretarj^ of State shall forthwith send a report of the fact of such issue, together with the evidence and information or com- plaint, or certified copies thereof, to a Secretary of State, who may if he think fit order the warrant to be cancelled, and the person who has been apprehended on the warrant to be discharged. APPENDIX IX. 599 " A fugitive criminal, when apprehended on a warrant issued " without the order of a Secretary of State, shall be brought before " some person having power to issue a warrant under this section, " who shall by warrant order him to be brought and the prisoner " shall accordingly be brouglit before a police magistrate. " A fugitive criminal apprehended on a warrant issued without " the order of a Secretary of State shall be discharged by the " police magistrate, unless the police magistrate, within such reason- " able time as, with reference to the circumstances of the case, he " may fix, receives from a Secretary of State an order signifying " that a requisition has been made for the surrender of such " criminal. " 9. When a fugitive criminal is brought before the police Hearing of " magistrate, the police magistrate shall hear the case in the same case and " manner, and have the same jurisdiction and powers, as near as *^^y/<;nceoi • • "DOiltlCfli " may be, as if the prisoner were brought before him charged with eharacter " an indictable offence committed in England. of crime. " The police magistrate shall receive any evidence which may be " tendered to show that the crime of which the prisoner is accused or " alleged to have been convicted is an offence of a political character " or is not an extradition crime. " 10. In the case of a fugitive criminal accused of an extradition Committal '' crime, if the foreign warrant authorizing the arrest of such criminal or dis- " is duly authenticated, and such evidence is produced as (subject to charge of " the provisions of this Act) would, according to the law of England, P^^^^'^^r. *' justify the committal for trial of the prisoner if the crime of which " he is accused had been committed in England, the police magis- " trate shall commit him to prison, but otherwise shall order him to " be discharged. " In the case of a fugitive criminal alleged to have been convicted " of an extradition crime, if such evidence is produced as (subject " to the provisions of this Act) would, according to the law of " England, prove that the prisoner was convicted of such crime, the " police magistrate shall commit him to prison, but otherwise shall *' order him to be discharged. " If he commits such criminal to prison, he shall commit him to " the Middlesex House of Detention, or to some other prison in " Middlesex, there to await the warrant of a Secretary of State for " his surrender, and shall forthwith send to a Secretary of State a " certificate of the committal, and such report upon the case as he " may think fit. "11. If the police magistrate commits a fugitive criminal to Surrender " prison, he shall inform such criminal that he will not be surren- of fugitive " dered until after the expiration of fifteen days, and that he has a S.^"^^/^'^ ^' right to apply for a writ of Habeas corpus. warrant of " Upon the expiration of the said fifteen days, or, if a writ of gperetary " Habeas corpus is issued, after the decision of the court upon the of State. " return to the writ, as the case may be, or after such further period 600 APPENDIX IX. Discharge of persons appre- hended if not con- veyed out of United Kingdom within two months. Execution of warrant of police magis- trate. Deposi- tions to be evidence. 6 & 7 Vict. c. 76. Authenti- cation of deposi- tions and warrants. 29 & 30 Vict. c. 121. as may be allowed in either case by a Secretary of State, it shall be lawful for a Secretary of State, by warrant imder his hand and seal, to order the fugitive criminal (if not delivered on the decision of the court) to be surrendered to such person as may in his opinion be duly authorized to receive the fugitive criminal by the foreign State from which the requisition for the surrender proceeded, and such fugitive criminal shall be surrendered accordingly. " It shall be lawful for any person to whom such warrant is di- rected and for the person so authorized as aforesaid to receive, hold in custody, and convey within the jurisdiction of such foreign State the criminal mentioned in the warrant ; and if the criminal escapes out of any custody to which he may be delivered on or in pursuance of such warrant, it shall be lawful to retake him in the same manner as any person accused of any crime against the laws of that part of Her Majesty's dominions to which he escapes may be retaken upon an escape. " 12. If the fugitive criminal who has been committed to prison is not surrendered and conveyed out of the United Kingdom within two months after such committal, or, if a writ of Habeas corpus is issued, after the decision of the court upon the return to the writ, it shall be lawful ibr any judge of one of Her Majesty's Superior Courts at Westminster, upon application made to him by or on behalf of the criminal, and upon proof that reasonable notice of the intention to make such application has been given to a Secretary of State, to order the criminal to be discharged out of custody, unless sufficient cause is shown to the contrary. "13. The warrant of the police magistrate issued in pursuance of this Act may be executed in any part of the United Kingdom in the same manner as if the same had been originally issued or subsequently indorsed by a justice of the peace having jurisdiction in the place where the same is executed. " 14. Depositions or statements on oath, taken in a foreign State, and copies of such original depositions or statements, and foreign certificates of or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Act. " 15. Foreign warrants and depositions or statements on oath, and copies thereof, and certificates of or judicial documents stating the fact of a conviction, shall be deemed duly authenticated for the purposes of this Act if authenticated in manner provided for the time being by law or authenticated as follows : — " (1.) If the warrant purports to be signed by a judge, magis- " trate, or officer of the foreign State where the same was " issued ; " (2.) If the depositions or statements or the copies thereof pur- " port to be certified under the hand of a judge, magis- " trate, or officer of the foreign State where the same APPENDIX IX. 601 " were taken to be the original depositions or statements, " or to be true copies thereof, as the case may require ; and " (3.) If the certificate of or judicial document stating the fact of " conviction purports to be certified by a judge, magis- " trate, or officer of the foreign State where the conviction " took place ; and " if in every case the warrants, depositions, statements, copies, " certificates, and judicial documents (as the case may be) are " authenticated by the oath of some witness or by being sealed with " the official seal of the minister of justice, or some other minister of " state : And all courts of justice, justices, and magistrates shall " take judicial notice of such official seal, and shall admit the docu- " ments so authenticated by it to be received in evidence without " further proof. " Crimes committed at sea. " 16. Where the crime in respect of which the surrender of a Jurisdic- " fugitive criminal is sought was committed on board any vessel on ^'*^^ ^^ ^° " the high seas which comes into any port of the United Kingdom, committed " the following provisions shall have effect : ,^^ sea. " 1. This Act shall be construed as if any stipendiary magistrate " in England or Ireland, and any sheriff or sheriff substi- " tute in Scotland, were substituted for the police magis- " trate throughout this Act, except the part relating to the " execution of the warrant of the police magistrate : " 2. The criminal may be committed to any prison to which the " person committing him has power to commit persons " accused of the like crime : " 3. If the fugitive criminal is apprehended on a warrant issued " without the order of a Secretary of State, he shall be " brought before the stipendiary magistrate, sheriff, or " sheriff substitute who issued the warrant, or who has " jurisdiction in the port where the vessel lies, or in the " place nearest to that port. " Fugitive Criminals in British Possessions. " 17. This Act when applied by Order in Council shall, unless it Proeeed- " is otherwise provided by such Order, extend to every British pos- i^S? ^^ ^^ " session in the same manner as if throughout this Act the British ?^ -'^^, '^ possession were substituted for the United Kingdom or England, jn British " as the case may require, but with the following modifications ; posses- " namely, sious. " (1.) The requisition for the surrender of a fugitive criminal who " is in or suspected of being in a British possession may " be made to the governor of that British possession by " any person recognized by that governor as a consul- " general, consul, or vice-consul, or (if the fugitive cri- " minal has escaped from a colony or dependency of the 602 APPENDIX IX. Saving of laws of British posses- sions. " foreign State on behalf of which the requisition is made) " as the governor of such colony or dependency : " (2.) No warrant of a Secretary of State shall be required, and " all powers vested in or acts authorized or required to be " done under this Act by the police magistrate and the " Secretaiy of State, .or either of them, in relation to the " surrender of a fugitive criminal, may be done by the " governor of the British possession alone : " (3.) Any prison in the British possession may be substituted " for a prison in Middlesex : " (4.) A judge of any court exercising in the British possession " the like powers as the Court of Queen's Bench exercises " in England may exercise the power of discharging a " criminal when not conveyed within two months out of " such British possession. " 18. If by any law or ordinance, made before or after the passing " of this Act by the Legislature of any British possession, provision " is made for carrying into effect within such possession the surrender " of fugitive criminals who are in or suspected of being in such Bri- " tish possession. Her Majesty may, by the Order in Council apply- " ing this Act in the case of any foreign State, or by any subsequent " Order, either " suspend the operation within any such British possession of this " Act, or of any part thereof, so far as it relates to such " foreign State, and so long as such law or ordinance con- " tinues in force there, and no longer; " or direct that such law or ordinance, or any part thereof, shall " have effect in such British possession, with or without " modifications and alterations, as if it were part of this Act. Criminal surren- dered by foreign State not triable for previous crime. As to use of forms in second schedule. Eevoca- tion, &c., of Order in Council, " General Provisions. "19. Where, in pursuance of any arrangement with a foreign State, any person accused or convicted of any crime which, if com- mitted in England, would be one of the crimes described in the first schedule to this Act is surrendered by that foreign State, such person shall not, until he has been restored or had an opportunity of returning to such foreign State, be triable or tried for any offence committed prior to the surrender in any part of Her Majesty's dominions other than such of the said crimes as may be proved by the facts on which the surrender is grounded. " 20. The forms set forth in the second schedule to this Act, or forms as near thereto as circumstances admit, may be used in all matters to which such forms refer, and in the case of a British possession may be so used, mutatis mutandis, and when used shall be deemed to be valid and sufficient in law. "21. Her Majesty may, by Order in Council, revoke or alter, subject to the restrictions of this Act, any Order in Council made in pursuance of this Act, and all the provisions of this Act with APPENDIX IX. 603 " respect to the original Order shall (so far as applicable) apply, " mutatis mutandis, to any such new Order. " 22. This Act (except so far as relates to the execution of " warrants in the Channel Islands) shall extend to the Channel " Islands and the Isle of Man in the same manner as if they were part " of the United Kingdom ; and the royal courts of the Channel " Islands are hereby respectively authorized and required to register " this Act. "23. Nothing in this Act shall affect the lawful powers of Her " Majesty or of the Governor-General of India in Council to make " treaties for the extradition of criminals with Indian native States, " or with other Asiatic States conterminous with British India, or to " carry into execution the provisions of any such treaties made either " before or after the passing of this Act. " 24. The testimony of any witness may be obtained in relation " to any criminal matter pending in any court or tribunal in a foreign " State in like manner as it may be obtained in relation to any civil " matter under the Act of the session of the nineteenth and twen- " tieth years of the reign of Her present Majesty, chapter one " hundred and thirteen, intituled ' An Act to provide for taking " * evidence in Her Majesty's Dominions in relation to civil and " ' commercial matters pending before foreign tribunals ; ' and all " the provisions of that Act shall be construed as if the term civil " matter included a criminal matter, and the term cause included " a proceeding against a criminal : Provided that nothing in this " section shaU. apply in the case of any criminal matter of a political " character. " 25. For the purposes of this Act, every colony, dependency, and " constituent part of a foreign State, and every vessel of that Btate, " shall (except where expressly mentioned as distinct in this Act) be " deemed to be within the jurisdiction of and to be part of such " foreign State. "26. In this Act, unless the context otherwise requires, — " The term ' British possession ' means any colony, plantation, " island, territory, or settlement within Her Majesty's dominions, " and not within the United Kingdom, the Channel Islands, " and Isle of Man ; and all colonies, plantations, islands, terri- " tories, and settlements under one legislature, as hereinafter " defined, are deemed to be one British possession : *' The term ' legislature ' means any person or persons who can " exercise legislative authority in a British possession, and " where there are local legislatures as well as a central legisla- " ture, means the central legislature only : " The term 'governor' means any person or persons administering " the government of a British possession, and includes the " governor of any part of India : " The term ' extradition crime ' means a crime which, if com- " mitted in England or within EngUsh jurisdiction, would be " one of the crimes described in the first schedule to this Act : Applica- tion of Act in Channel Islands and Isle of Man. Saving for Indian treaties. Power of foreign State to obtain evidence in United Kingdom. Foreign State in- cludes de- pen- dencies. Definition of terms. " British posses- sion : " " Legislt tare:" " Gover- nor : " " Extradi- tion crime:" 604 APPENDIX IX. * Convic- tion:" ♦'Fugitive criminal:" '• Fugitive criminal of a foreign State:" " Secretary of State:' " Police magis- trate:" " Justice of the peace:" " War- rant." The terms ' conviction 'and * convicted ' do not include or refer " to a conviction which under foreign law is a conviction for " contumacy, but the term * accused person ' includes a person " so convicted for contumacy : The term * fugitive criminal ' means any person accused or *' convicted of an extradition crime committed within the juris- " diction of any foreign State who is in or is suspected of being "in some part of Her Majesty's dominions; and the term " ' fugitive criminal of a foreign State ' means a fugitive " criminal accused or convicted of an extradition crime com- " mitted within the jurisdiction of that State : The term * Secretary of State ' means one of Her Majesty's " Principal Secretaries of State : The term * police magistrate ' means a chief magistrate of the " metropolitan police courts, or one of the other magistrates of " the metropolitan police court in Bow Street : The term ' justice of the peace ' includes in Scotland any sheriff, " sheriffs substitute, or magistrate : The term ' warrant,' in the case of any foreign State, includes " any judicial document authorizing the arrest of a person " accused or convicted of crime. Repeal of Acts in third sche- dule. ' " Repeal of Acts. " 27. The Acts specified in the third schedule to this Act are " hereby repealed as to the whole of Her Majesty's dominions; and " this Act (with the exception of anything contained in it which " is inconsistent with the treaties referred to in the Acts so repealed) " shall apply (as regards crimes committed either before or after the " passing of this Act), in the case of the foreign States with which " those treaties are made, in the same manner as if an Order in " Council referring to such treaties had been made in pursuance of " this Act, and as if such Order had directed that every law and " ordinance which is in force in any British possession with respect " to such treaties should have effect as part of this Act. " Provided that if any proceedings for or in relation to the sur- " render of a fugitive criminal have been commenced under the said " Acts previously to the repeal thereof, such proceedings may be " completed, and the fugitive surrendered, in the same manner as if " this Act had not passed." APPENDIX IX. 605 SCHEDULES. FIRST SCHEDULE. LIST OP CEIMES. The following- list of crimes is to be construed according to the law existing in England, or in a British possession, (as the case may be,) at the date of the alleged crime, whether by common law or by statute made before or after the passing of this Act : Murder, and attempt and conspiracy to murder. Manslaughter. Counterfeiting and altering money and uttering counterfeit or altered money. " Forgery, counterfeiting, and altering, and uttering what is forged or counterfeited or altered. Embezzlement and larceny. Obtaining money or goods by false pretences. Crimes by bankrupts against bankruptcy law. Fraud by a bailee, banker, agent, factor, trustee, or director, or member, or public oiRcer of any company made criminal by any Act for the time being in force. » Rape. Abduction. Child stealing. Burglary and housebreaking. Arson. Robbery with violence. Threats by letter or otherwise with intent to extort. Piracy by law of nations. Sinking or destroying a vessel at sea, or attempting or conspiring to do so. Assaults on board a ship on the high seas with intent to destroy life or to do grievous bodily harm. Revolt or conspiracy to revolt by two or more persons on board a ship on the high seas against the authority of the master. SECOND SCHEDULE. Form of Order of Secretary of State to the Police Magistrate. To the chief magistrate of the metropolitan police courts or other magistrate of the metropolitan police court in Bow Street [or the stipendiary magistrate at ]. Wheeeas, in pursuance of an arrangement with , referred to in an Order of Her Majesty in Council dated the day of , a requisition has been made to me, , one of Her Majesty's Principal Secretaries of State, by , the diplomatic representative of , for the surrender of , late of , accused [or convicted] of the commission of the crime of within the jurisdiction of ,__^ : Now I 606 APPENDIX IX. hereby, by this my order under my hand and seal, signify to you that such requisition has been made, and require you to issue your warrant for the apprehension of such fugitive, provided that the con- ditions of The Extradition Act, 1870, relating to the issue of such warrant, are in your judgment complied with. Given under the hand and seal of the undersigned, one of Her Majesty's Principal Secretaries of State, this day of lo Form of Warrant of Apprehension hy Order of Secretary of State. Metropolitan \ To"'cou^?r' To all and each of the constables of the metropolitan borough of ] ' police force [or of the county or borough of ]. to wit. j Whereas the Right Honourable one of Her Majesty's Principal Secretaries of State, by order under his hand and seal, hath signified to me that requisition hath been duly made to him for the surrender of late of accused [or convicted] of the commission of the crime of within the jurisdiction of : This is therefore to command you in Her Majesty's name forthwith to apprehend the said pursuant to The Extradition Act, 1870, wherever he may be found in the United, Kingdom or Isle of Man, and bring him before me or some other [*magistrate sitting in this court], to show cause why he should not be surrendered in pursuance of the said Extradition Act, for which this shall be your warrant. Given under my hand and seal at [*Bow Street, one of the police courts of the metropolis] this day of 18 J. P. * Note. — Alter as required. Form of Warrant of Apprehension without Order of Secretary of State. Metropolitan \ KrcouSit"or l"^^ ^^^ ^'^^ ^^^^ ^^ *^® Constables of the metropolitan borough" / "^ ] I police force [or of the county or borough of ]. to wit. / "Whereas it has been shown to the undersigned, one of Her Majesty's justices of the peace in and for the metropolitan police district [or the said county or borough of ] that late of is accused [or convicted] of the commission of the crime of within the jurisdiction of : This is therefore to command you in Her Majesty's name forthwith to apprehend the said and to bring him before me or some other magistrate sitting at this court [or one of Her Majesty's justices of the peace in and for the county [or borough] of ] to be further dealt with according to law, for which this shall be your warrant. Given under my hand and seal at Bow Street, one of the police courts of the metropolis, [or in the county or borough aforesaid] this day of 18 . A^PPENDrX IX. 607 Form of Warrant for bringing Prisoner hefore the Police Magistrate. County [or bo rough of] to wit. To constable of the police force of and to all other peace officers in the said county [or borough] of Whereas late of accused [or alleged to be con- victed of] the commission of the crime of within the juris- diction of has been apprehended and brought before the undersigned, one of Her Majesty's justices of the peace in and for the said county [or borough] of : And whereas by The Extradi- tion Act, 1870, he is required to be brought before the chief magistrate of the metropolitan police court, or one of the police magistrates of the metropolis sitting at Bow Street, within the metropolitan police district [or the stipendiary magistrate for ] : This is therefore to com- mand you the said constable in Her Majesty's name forthwith to take and convey the said to the metropolitan police district [or the said ] and there carry him before the said chief magistrate or one of the police magistrates of the metropolis sitting at Bow Street within the said district [or before a stipendiary magistrate sitting in the said ] to show cause why he should not be surrendered in pur- suance of The Extradition Act, 1870, and otherwise to be dealt with in accordance with law, for which this shall be your warrant. Given under my hand and seal at in the county [or borough] aforesaid, this day of - 18 . J. P. Metropolitan police district Form of Warrant of Committal. To one of the constables of the metropolitan [or the county V police forcc, [or of the police force of the county or '"'TtTw?t''* ) borough of ], and to the keeper of the Be it remembered, that on this day of in the year of our Lord late of is brought before me the chief magistrate of the metropolitan police courts [or one of the police magistrates of the metropolis] sitting at the police court in Bow Street, within the metropolitan police district, [or a stipendiary magistrate for ' ,] to show cause why he should not be sur- rendered in pursuance of The Extradition Act, 1 870, on the ground of his being accused [or convicted] of the commission of the crime of within the jurisdiction of , and forasmuch as no sufficient cause has been shown to me why he should not be surrendered in pursuance of the said Act : This is therefore to command you the said constable in Her Majesty's name forthwith to convey and deliver the body of the said into the custody of the said keeper of the at , and you the said keeper to receive the said into your custody, and him there safely to keep until he is thence delivered pursuant to the provisions of the said Extradition Act, for which this shall be your warrant. Given under my hand and seal at Bow Street, one of the police courts of the metropolis, [or at the said ] this day of 18 ' . ■^ J. P. 608 APPENDIX IX. Forvi of Warrant of Secretary of State for Surrender of Ftifftttve. To the keeper of and to Whereas late of accused \_or convicted] of the commission of the crime of within the jurisdiction of , was delivered into the custody of you the keeper of by warrant dated " pursuant to The Extradition Act, 1870: Now I do hereby, in pursuance of the said Act, order you the said keeper to deliver the body of the said into the custody of the said , and I command you the said to receive the said into your custody, and to convey him within the jurisdiction of the said , and there place him in the custody of any person or persons appointed by the said to receive him, for which this shall be your warrant. Given under the hand and seal of the undersigned, one of Her Majesty's Principal Secretaries of State, this day of THIRD SCHEDULE. Tear and Chapter. . Title. 6 & 7 Vict. c. 75. - An Act for giving effect to a convention be- tween Her Majesty and the King of the French for the apprehension of certain offenders. 6 & 7 Vict. c. 76. - An Act for giving effect to a treaty between Her Majesty and the United States of America for the apprehension of certain offenders. 8 & 9 Vict. c. 120. - An Act for facilitating execution of the treaties with France and the United States of America for the apprehension of certain offenders. 25 & 26 Vict. c. 70. - An Act for giving effect to a convention between Her Majesty and the King of Denmark for the mutual surrender of criminals. 29 & 30 Vict. c. 121. - An Act for the amendment of the law relating to treaties of extradition. APPENDIX X. 609 APPENDIX X. Page 463. Twenty-four Protocols preceded the signing of the Treaty of Paris. The Twenty-third — often cited on account of " the wish" that an attempt at friendly arbitration should be made before having recourse to war — is as follows : — (Translation.) " Protocol No. 23— Meeting of A;pril 14, 1856. " Present: ThePlenipotentiariesof Austria, France, Great Britain, " Prussia, Russia, Sardinia, Turkey. " The Protocol of the preceding sitting and its Annex are read " and approved. " Count Walewski remarks that it remains for the Congress to " decide upon the draft of Declaration, of which he indicated the " bases in the last meeting, and he demands of the Plenipotentiaries " who had reserved to themselves to take the orders of their respective " Courts in regard to this matter, whether they are authorized to " assent to it. " Count Buol declares that Austria is happy to concur in an Act " of which she recognizes the salutary influence, and that he has " been furnished with necessary powers to adhere to it. " Count OrlofF expresses himself in the same sense : he adds, " however, that, in adopting the proposition made by the first Pleni- " potentiary of France, his Court cannot bind itself to maintain the " principle of the abolition of privateering and to defend it against *' Powers who might not think proper to accede to it. " The Plenipotentiaries of Prussia, of Sardinia, and of Turkey, " having equally given their assent, the Congress adopts the draft " annexed to the present Protocol, and appoints the next meeting for " the signature of it. " The Earl of Clarendon having demanded permission to lay " before the Congress a proposition which it appears to him ought " to be favourably received, states that the calamities of war are still " too present go every mind not to make it desirable to seek out " every expedient calculated to prevent their return ; that a stipu- " lation had been inserted in Article VII. of the Treaty of Peace, " recommending that in case of difference between the Porte and " one or more of the other signing Powers, recourse should be had " to the mediation of a friendly State before resorting to force. " The first Plenipotentiary of Great Britain conceives that this " happy innovation might receive a more general application, and " thus become a barrier against conflicts which frequently only break " forth because it is not always possible to enter into explanation " and to come to an understanding. " He proposes, therefore, to agree upon a resolution calculated to " afford to the maintenance of peace that chance of duration liere- VOL. I. K R 610 APPENDIX X. " after, without prejudice, however, to the independence of Govern- *' ments. " Count Walewski declares himself authorized to support the idea " expressed by the first Plenipotentiary of Great Britain ; he gives the " assurance that the Plenipotentiaries of France are wholly disposed " to concur in the insertion in the Protocol of a wish which, being " fully in accordance with the tendencies of our epoch, would not " in any way fetter the free action of Governments. " Count Buol would not hesitate to concur in the opinion of the " Plenipotentiaries of Great Britain and of France, if the resolution " of the Congress is to have the form indicated by Count Walewski, *' but he could not take, in the name of his Court, an absolute en- " gagement calculated to limit the independence of the Austrian " Cabinet. " The Earl of Clarendon replies that each Power is and will be " the sole judge of the requirements of its honour and of its interests ; " that it is by no means his intention to restrict the authority of the " Governments, but only to afford them the opportunity of not " having recourse to arms whenever differences may be adjusted by " other means. " Baron ManteufFel gives the assurance that the King, his august " master, completely shares the ideas set forth by the Earl of " Clarendon ; that he therefore considers himself authorized to " adhere to them, and to give them the utmost development which " they admit of " Count OrlofF, while admitting the wisdom of the proposal made " to the Congress, considers that he must refer to his Court respect- " ing it, before he expresses the opinion of the Plenipotentiaries of " Russia. " Count Cavour, before he gives his opinion, wishes to know " whether, in the intention of the author of the proposition, the wish " to be expressed by the Congress would extend to military inter- " ventions directed against de facto Governments, and quotes, as an " instance, the intervention of Austria in the Kingdom of Naples in " 1821. " Lord Clarendon replies that the wish of the Congress should " allow of the most general application ; he observes that if the good " offices of another Power had induced the Government of Greece " to respect the laws of neutrality, France and England would very " probably have abstained from occupying the Pirasus with their " troops. He refers to the efforts made by the Cabinet of Great " Britain in 1823, in order to prevent the armed intervention which " took place at that time in Spain. " Count Walewski adds, that there is no question of stipulating *' for a right or of taking an engagement ; that the wish expressed " by the Congress cannot in any case oppose limits to the liberty of " judgment of which no Power can divest itself in questions affect- " ing its dignity ; that there is therefore no inconvenience in attach- APPENDIX X. 611 " ing a general character to the idea entertained by the Earl of " Clarendon, and in giving to it the most extended application. " Count Buol says that Count Cavour, in speaking in another " sitting of the occupation of the Legations by Austrian troops, for- " got that other foreign troops have been invited into the Roman " States. To-day, while speaking of the occupation by Austria of " the Kingdom of Naples in 1821, he forgets that that occupation " was the result of an understanding between the Five Great Powers " assembled at the Congress of Lay bach. In both cases, he attri- " butes to Austria the merit of an initiative and of a spontaneous " action which the Austrian Plenipotentiaries are far from claiming " for her. " The intervention, adverted to by the Plenij)otentiary of Sar- " dinia, took place, he adds, in consequence of the discussions of the " Congress of Lay bach; it therefore comes within the scope of the " ideas expressed by Lord Clarendon. Similar cases might perhaps " recur, and Count Buol does not allow that an intervention carried " into effect in consequence of an agreement come to between the " Five Great Powers, can become the object of remonstrances of a " State of the second order. " Count Buol approves the proposition in the shape that Lord " Clarendon has presented it, as having a humane object ; but he " could not assent to it if it were wished to give to it too great an " extension, or to deduce from it consequences favourable to de facto " Governments, and to doctrines which he cannot admit. " He desires besides that the Conference, at the moment ofter- " minating its labours, should not find itself compelled to discuss " irritating questions, calculated to disturb the perfect harmony " which has not ceased to prevail among the Plenipotentiaries. " Count Cavour declares that he is fully satisfied with the expJa- " nations which he has elicited, and he accedes to the proposition " submitted to the Congress. " Whereupon the Plenipotentiaries do not hesitate to express, " in the name of their Governments, the wish that States between " which any serious misunderstanding may arise, should, before ap- " pealing to arms, have recourse, as far as circumstances might allow, " to the good offices of a friendly Power. " The Plenipotentiaries hope that the Governments not repre- " sented at the Congress will unite in the sentiment which has in- " spired the wish recorded in the present Protocol." (The Signatures follow.) 612 APPENDIX X. (Translation.) " General Treaty between Her Majesty^ the Emperor of Austria, the " Emperor of the French, the King of Prussia, the Emperor of " Russia, the King of Sardinia, and the Sultan. Signed at Paris, " March 30, 1856. [^Ratifications exchanged at Paris, April 27, " 1856]. " In the Name of Almighty God. " Their Majesties the Queen of the United Kingdom of Great ** Britain and Ireland, the Emperor of the French, the Emperor of " all the Russias, the King of Sardinia, and the Emperor of the " Ottomans, animated by the desire of putting an end to the calami- " ties of war, and wishing to prevent the return of the complications ** which occasioned it, resolved to come to an understanding with " His Majesty the Emperor of Austria as to the bases on which •' peace might be re-established and consolidated, by securing, " through effectual and reciprocal guarantees, the independence and " integrity of the Ottoman Empire. " For this purpose their said Majesties named as their Pleni- " potentiaries, that is to say : " Her Majesty the Queen of the United Kingdom of Great Britain " and Ireland, the Earl of Clarendon and Baron Cowley ; His Ma- *' jesty the Emperor of Austria, the Count of Buol-Schauenstein " and Baron de Hiibner; His Majesty the Emperor of the French, " Count Colonna Walewski and Baron de Bourqueney ; His " Majesty the Emperor of all the Russias, Count OrlofFand Baron " de Brunnow ; His Majesty the King of Sardinia, the Count of " Cavour and the Marquis de Villa-Marina; and His Majesty the " Emperor of the Ottomans, Mouhammed Emin Aali Pasha and " Mehemmed Djemil Bey ; which Plenipotentaries assembled in " Congress at Paris. " An understanding having been happily established between " them, their Majesties the Queen of the United Kingdom of Great " Britain and Ireland, the Emperor of Austria, the Emperor of the " French, the Emperor of all the Russias, the King of Sardinia, and " the Emperor of the Ottomans, considering that, in the interest of " Europe, His Majesty the King of Prussia, a signing party to the " Convention of the I3th of July, 1841, should be invited to par- " ticipate in the new arrangements to be adopted, and appreciating " the value that the concurrence of His said Majesty would add to " a work of general pacification, invited him to send Plenipotentiaries " to the Congress. " In consequence, His Majesty the King of Prussia named as his *' Plenipotentiaries, that is to say : " The Baron de Manteuffel and the Count of Ilatzfeldt Wilden- " burg -Schoen stein. " The Plenipotentiaries, after having exchanged their full powers, " found in good and due form, have agreed upon the following " Articles : — I APPENDIX X. 613 " Art. I. — From the day of the exchange of the ratifications of the " present Treaty, there shall be peace and friendship between Her " Majesty the Queen of the United Kingdom of Great Britain and " Ireland, His Majesty the Emperor of the French, His Majesty the " King of Sardinia, His Imperial Majesty the Sultan, on the one " part, and His Majesty the Emperor of all the Eussias, on the other " part ; as well as between their heirs and successors, their re- " pective dominions and subjects, in perpetuity. " Art. II. — Peace being happily re-established between their said " Majesties, the territories conquered or occupied by their armies " during the war shall be reciprocally evacuated. " Special arrangements shall regulate the mode of the evacuation, " which shall be as prompt as possible. " Art. hi. — His Majesty the Emperor of all the Eussias engages " to restore to His Majesty the Sultan the town and citadel of Kars, " as well as the other parts of the Ottoman territory of which the " Eussian troops are in possession. " Art. IV. — Their Majesties the Queen of the United Kingdom of " Great Britain and Ireland, the Emperor of the French, the King " of Sardinia, and the Sultan, engage to restore to His Majesty the " Emperor of all the Eussias, the^ towns and ports of Sebastopol, " Balaklava, Kamiesch, Eupatoria, Kertch, Jenikale, Kinburn, as " well as all other territories occupied by the allied troops. " Art. V. — Their Majesties the Queen of the United Kingdom of " Great Britain and Ireland, the Emperor of the French, the Em- " peror of all the Eussias, the King of Sardinia, and the Sultan, *' grant a full and entire amnesty to those of their subjects who may " have been compromised by any participation whatsoever in the " events of the war in favour of the cause of the enemy. " It is expressily understood that such amnesty shall extend to " the subjects of each of the belligerent parties who may have con- " tinned, during the war, to be employed in the service of one of " the other belligerents. " Art. VI. — Prisoners of war shall be immediately given up on " either side. *' Art. VII. — Her Majesty the Queen of the United Kingdom of " Great Britain and Ireland, His Majesty the Emperor of Austria, " His Majesty the Emperor of the French, His Majesty the King of " Prussia, His Majesty the Emperor of all the Eussias, and His ** Majesty the King of Sardinia, declare the Sublime Porte admitted " to participate in the advantages of the public law and system " (concert) of Europe. Their Majesties engage, each on his part, to " respect the independence and the territorial integrity of the Otto- " man Empire ; guarantee in common the strict observance of that " engagement ; and will, in consequence, consider any act tending " to its violation as a question of general interest. " Art. VHL — If there should arise between the Sublime Porte " and one or more of the other signing Powers, any misunderstand- 614 APPENDIX X. " ing wliich might endanger the maintenance of their relations, the " Sublime Porte, and each of such Powers, before having recourse *' to the use of force, shall afford the other contracting parties the " opportunity of preventing such an extremity by means of their " mediation. " Art. IX. — His Imperial Majesty the Sultan, having, in his " constant solicitude for the welfare of his subjects, issued a firman " which, while ameliorating their condition without distinction of " religion or of race, records his generous intentions towards the " Christian population of his Empire, and wishing to give a further " proof of his sentiments in that respect, has resolved to communicate " to the Contracting Parties the said firman emanating spontaneously " from his sovereign will. " The Contracting Powers recognize the high value of this com- " munication. It is clearly understood that it cannot, in any case, *' give to the said Powers the right to interfere, either collectively " or separately, in the relation of His Majesty the Sultan with his " subjects, nor in the internal administration of his Empire. " Art. X The Convention of the 13th of July, 1841, which " maintains the ancient rule of the Ottoman Empire relative to the " closing of the Straits of the Bosphorus and of the Dardanelles, has " been revised by common consent. " The Act concluded for that purpose, and in conformity with that " principle, between the High Contracting Parties, is and remains " annexed to the present Treaty, and shall have the same force and " validity as if it formed an integral part thereof. " Art. XI. — The Black Sea is neutralized : its waters and its " ports, thrown open to the mercantile marine of every nation, are " formally and in perpetuity interdicted to the flag of war, either of " the Powers possessing its coasts, or of any other Power, with the " exceptions mentioned in Articles XIV. and XIX. of the present " Treaty. " Art. XII. — Free from any impediment, the commerce in the ^' ports and waters of the Black Sea shall be subject only to regula- " tions of health, customs, and police, framed in a spirit favourable " to the development of commercial transactions. " In order to afford to the commercial and maritime interests of " every nation the security which is desired, Eussia and the Sublime " Porte will admit Consuls into their ports situated upon the coast " of the Black Sea, in conformity with the principles of International '' Law. " Art. XIII. — The Black Sea being neutralized according to " the terms of Article XI., the maintenance or establishment upon its " coast of military-maritime arsenals becomes alike unnecessary and " purposeless ; in consequence. His Majesty the Emperor of all the *' Russias and His Imperial Majesty the Sultan engage not to establish *' or to maintain upon that coast any military-maritime arsenal. " Art. XIV. — Their Majesties the Emperor of all the Kussias APPENDIX X. 615 " and the Sultan having concluded a Convention for the purpose of " settling the ibrce and the number of light vessels, necessary for the " service of their coasts, which they reserve to themselves to main- " tain in the Black Sea, that Convention is annexed to the present " Treaty, and shall have the same force and validity as if it formed " an integral part thereof. It cannot be either annulled or modified " without the assent of the Powers signing the present Treaty. " Art. XV. — The Act of the Congress of Vienna having esta- " blished the principles intended to regulate the navigation of rivers " which separate or traverse different States, the Contracting Powers " stipulate among themselves that those principles shall in future be " equally applied to the Danube and its mouths. They declare that " this arrangement henceforth forms a part of the public law of " Europe, and take it under their guarantee. " The navigation of the Danube cannot be subjected to any im- " pediment or charge not expressly provided for by the stipulations " contained in the IblloAving Articles : in consequence, there shall " not be levied any toll founded solely upon the tact of the naviga- " tion of the river, nor any duty upon the goods which may be on " board of vessels. The regulations of police and of quarantine to " be established for the safety of the States separated or traversed by *' that river shall be so framed as to facilitate, as much as possible, " the passage of vessels. With the exception of such regulations, no " obstacle wdiatever shall be opposed to free navigation. " Art. XVI. — With the view to carry out the arrangements " of the preceding Article, a Commission, in which Great Britain, " Austria, France, Prussia, Russia, Sardinia, and Turkey, shall each *' be represented by one delegate, shall be charged to designate and " to cause to be executed the works necessary below Isatcha, to clear " the mouths of the Danube, as well as the neighbouring parts of " the sea, from the sands and other impediments which obstruct " them, in order to put that part of the river and the said parts of " the sea in the best possible state for navigation. " In order to cover the expenses of such works, as well as of the " establishments intended to secure and to facilitate the navigation " at the mouths of the Danube, fixed duties, of a suitable rate, " settled by the Commission by a majority of votes, may be levied, " on the express condition that, in this respect as in every other, the " flags of all nations shall be treated on the footing of perfect equality. " Art. XVII. — A Commission shaU be established, and shall " be composed of delegates of Austria, Bavaria, the Sublime Porte, " and Wurtemberg (one for each of those Powers), to whom shall be " added Commissioners from the three Danubian Principalities, " whose nomination shall have been approved by the Porte. This " Commission, which shall be permanent : 1. Shall prepare regula- " tions of navigation and river police ; 2. Shall remove the impedi- " ments, of whatever nature they may be, which still prevent the " application to the Danube of the arrangements of the Treaty ol 616 APPENDIX X. " Vienna • 3. Shall order and cause to be executed the necessiiry " works throughout the whole course of the river ; and 4, Shall, " after the dissolution of the European Commission, see to maiii- " taining the mouths of the Danube and the neighbouring parts of " the sea in a navigable state, " Art. XVIII. — It is understood that the European Com- " mission shall have completed its task, and that the River Com- " mission shall have finished the works described in the preceding " Article, under Nos. 1 and 2, within the period of two years. The " signing Powers assembled in Conference having been informed of " that fact, shall, after having placed it on record, pronounce the " dissolution of the European Commission, and from that time the " permanent River Commission shall enjoy the same powers as those " with which the European Commission shall have until then been " invested. " Art. XIX. — In order to ensure the execution of the regula- " tions which shall have been established by common agreement, in " conformity with the principles above declared, each of the Con- " tracting Powers shall have the right to station, at all times, two " light vessels at the mouths of the Danube. " Art. XX. — In exchange for the towns, ports, and territories " enumerated in Article IV, of the present Treaty, and in order more " fully to secure the freedom of the navigation of the Danube, His " Majesty the Emperor of all the Russias consents to the rectification " of his frontier in Bessarabia. " The new frontier shall begin from the Black Sea, one kilometre " to the east of the Lake Bourna Sola, shall run perpendicularly to *' the Akerman road, shall follow that road to the Veil de Trajan, " pass to the south of Bolgrad, ascend the course of the River Yal- " puck to the Height of Saratsika, and terminate at Katamori on the " Pruth. Above that point the old frontier between the two Empires " shall not undergo any modification. " Delegates of the Contracting Powers shall fix, in its details, the " line of the new frontier. " Art. XXI. — The territory ceded by Russia shall be annexed to *' the Principality of Moldavia under the suzerainty of the Sublime " Porte. " The inhabitants of that territory shall enjoy the rights and pri- " vileges secured to the Principalities; and, during the space of " three years, they shall be permitted to transfer their domicile ** elsewhere, disposing freely of their property. " Art. XXII, — The Principalities of Wallachia and Moldavia ^* shall continue to enjoy under the suzerainty of the Porte, and " imder the guarantee of the Contracting Powers, the privileges and " immunities of which they are in possession. No exclusive pro- " tection shall be exercised over them by any of the guaranteeing " Powers. There shall be no separate right of interference in their *' internal affairs. APPENDIX X. 617 " Art. XXIII. — The Sublime Porte engages to preserve to the " said Principalities an independent and national administration, as " well as full liberty of worship, of legislation, of commerce, and " of navigation. " The laws and statutes at present in force shall be revised. In " order to establish a complete agreement in regard to such revision, " a Special Commission, as to the composition of which the High " Contracting Powers will come to an understanding among them- " selves, shall assemble, without delay, at Bucharest, together with " a Commissioner of the Sublime Porte. " The business of this Commission shall be to investigate the " present state of the Principalities, and to propose bases for their " future organization. " Art. XXIV. — His Majesty the Sultan promises to convoke " immediately in each of the two Provinces a Divan ad hoc, com- " posed in such a manner as to represent most closely the interests " of all classes of society. These Divans shall be called upon to " express the wishes of the people in regard to the definitive organi- " zation of the Principalities. " An instruction irom the Congress shall regulate the relations " between the Commission and these Divans. " Art. XXV. — Taking into consideration the opinion expressed by " the two Divans, the Commission shall transmit, without delay, to " the present seat of the Conferences, the result of its own labours. " The final agreement with the Suzerain Power shall be recorded " in a Convention to be concluded at Paris between the High Con- " tracting Parties; and a hatti-sherif, in conformity with the sti- " pulations of the Convention, shall constitute definitively the " organization of those Provinces, placed thenceforward under the '* collective guarantee of all the signing Powers, " Art. XXVI. — It is agreed that there shall be in the Princi- " palities a national armed force, organized with the view to maintain " the security of the interior, and to ensure that of the frontiers. " No impediment shall be opposed to the extraordinary measures of " defence w^hich, by agreement with the Sublime Porte, they may " be called upon to take in order to repel any external aggression. " Art. XXVII. — If the internal tranquillity of the Principalities " should be menaced or compromised, the Sublime Porte shall " come to an understanding with the other Contracting Powers " in regard to the measures to be taken for maintaining or re- " establishing legal order. No armed intervention can take place " without previous agreement between those Powers. " Art. XXVIII. — The Principality of Servia shall continue to " hold of the Sublime Porte, in conformity with the Imperial " Hats which fix and determine its rights and immmiities, placed " henceforward under the collective guarantee of the Contracting " Powers. *' In consequence, the said Principality shall preserve its inde- 618 APPENDIX X. " pendent and national administration, as well as full liberty of " worship, of legislation, of commerce, and of navigation. " Art. XXIX. — The right of garrison of the Sublime Porte, " as stipulated by anterior regulations, is maintained. No armed " intervention can take place in Servia without previous agreement " between the High Contracting Powers. " Art. XXX. — His Majesty the Emperor of all the Russias and " His Majesty the Sultan maintain, in its integrity, the state of their " possessions in Asia, such as it legally existed before the rupture. " In order to prevent all local dispute the line of frontier shall be " verified, and, if necessary, rectified, without any prejudice as " regards territory being sustained by either party. " For this purpose a Mixed Commission, composed of two Russian " Commissioners, two Ottoman Commissioners, one English Com- " missioner, and one French Commissioner, shall be sent to the spot " immediately after the re-establishment of diplomatic relations " between the Court of Russia and the Sublime Porte. Its labours " shall be completed within the period of eight months after the " exchange of the ratifications of the present Treaty. " Art. XXXI. — The territories occupied during the war by the " troops of their Majesties the Queen of the United Kingdom of *' Great Britain and Ireland, the Emperor of Austria, the Emperor " of the French, and the King of Sardinia, according to the terms of " the Conventions signed at Constantinople on the twelfth of March, " one thousand eight hundred and fifty-four, between Great Britain, " France, and the Sublime Porte ; on the fourteenth of June of the " same year between Austria and the Sublime Porte ; and on the " fifteenth of March, one thousand eight hundred and fifty-five, " between Sardinia and the Sublime Porte ; shall be evacuated as " soon as possible after the exchange of the ratifications of the " present Treaty. The periods and the means of execution shall " form the object of an arrangement between the Sublime Porte " and the Powers whose troops have occupied its territory. " Art. XXXII. — Until the Treaties or Conventions which ex- " isted before the war between the belligerent Powers have been " either renewed or replaced by new Acts, commerce of importation " or of exportation shall take place reciprocally on the footing of the " regulations in force before the war ; and in all other matters their " subjects shall be respectively treated upon the footing of the most " favoured nation. " Art. XXXIII. — The Convention concluded this day between " their Majesties the Queen of the United Kingdom of Great Britain " and Ireland, the Emperor of the French, on the one part, and His " Majesty the Emperor of all the Russias, on the other part, re- " specting the Aland Islands, is and remains annexed to the present " Treaty, and shall have the same force and validity as if it formed " a part thereof. " Art. XXXIV.— The present Treaty shall be ratified, and the APPENDIX X. 619 " ratifications shall be exchanged at Paris in the space of four weeks, " or sooner if possible. " In witness whereof the respective Plenipotentiaries have signed " the same, and have affixed thereto the seal of their arms. " Done at Paris, the thirtieth day of the month of March, in the " year one thousand eight hundred and fifty-six." (The Signatures follow.) Additional and Transitory Article. " The stipulations of the Convention respecting the Straits, signed " this day, shall not be applicable to the vessels of war employed by " the belligerent Pov/ers for the evacuation, by sea, of the territories " occupied by their armies ; but the said stipulations shall resume " their entire effect as soon as the evacuation shall be terminated. " Done at Paris, the thirtieth day of the month of March, in the " year one thousand eight hundred and fifty-six." (The Signatures follow.) Conventions Annexed to the preceding Treaty. " 1. — Convention between Her Majesty, the Emperor of Austria, the " Emperor of the French, the King of Prussia, the Emperor of " Russia, and the King of Sardinia, on the one part, and the " Sultan, on the other part, respecting the Straits of the Dar- " danelles and of the Bosphorus. Signed at Paris, March 30, " 1856. [Ratifications exchanged at Paris, April 27, 1856.] " In the Name of Almighty God. " Their Majesties the Queen of the United Kingdom of Great '* Britain and Ireland, the Emperor of Austria, the Emperor of the " French, the King of Prussia, the Emperor of all the Eussias, " signing parties to the Convention of the thirteenth day of July, " one thousand eight hundred and forty-one ; and His Majesty the " King of Sardinia ; wishing to record in common their unanimous " determination to conform to the ancient rule of the Ottoman " Empire, according to which the Straits of the Dardanelles and of " the Bosphorus are closed to foreign ships of war, so long as the " Porte is at peace ; " Their said Majesties, on the one part, and His Majesty the " Sultan, on the other, have resolved to renew the Convention con- " eluded at London on the thirteenth day of July, one thousand " eight hundred and forty-one, with the exception of some modi- " fications of detail which do not affect the principle upon which it " rests. " In consequence their said Majesties have named for that purpose " as their Plenipotentiaries, that is to say : — " Her Majesty the Queen of the United Kingdom of Great Britain " and Ireland, the Earl of Clarendon and Baron Cowley ; His 620 APPENDIX X. " Majesty the Emperor of Austria, the Count of Buol-Schauenstein " and Bai'on de Hiibner ; His Majesty the Emperor of the French, *' Count Colonna Walewski and Baron de Bourqueney; His Majesty " the King of Prui^sia, the Baron de ManteufFel and the Count of " Hatzfeldt Wildenburg-Schoenstein ; His Majesty the Emperor of " all theRussias, Count OrlofTand Baron de Brunnow; His Majesty " the King of Sardinia, the Count of Cavour and the Marcjuis de " Villa-]\Iarina ; and His Majesty the Emperor of the Ottomans, " Mouhammed Emin Aali Pasha and Mehemmed DjemilBey; who, " after having exchanged their full powers, found in good and due " form, have agreed upon the following Articles : — " Art. I. — His Majesty the Sultan, on the one part, declares that " he is firmly resolved to maintain for the future the principle in- " variably established as the ancient rule of his Empire, and in " virtue of which it has, at all times, been prohibited for the ships " of war of foreign Powers to enter the Straits of the Dardanelles " and of the Bosphorus ; and that, so long as the Porte is at peace, " His Majesty will admit no foreign ship of war into the said " Straits. " And their Majesties the Queen of the United Kingdom of Great " Britain and Ireland, the Emperor of Austria, the Emperor of the " French, the King of Prussia, the Emperor of all the Eussias, and " the King of Sardinia, on the other part, engage to respect this " determination of the Sultan, and to conform themselves to the " principle above declared. " Art. II. — The Sultan reserves to himself, as in past times, to " deliver firmans of passage for light vessels under flag of war, " which shall be employed, as is usual, in the service of the missions " of foreign Powers. " Art. III. — The same exception applies to the light vessels under " flag of war which each of the Contracting Powers is authorized to " station at the mouths of the Danube in order to secure the execu- " tion of the regulations relative to the liberty of that river, and " the number of which is not to exceed two for each Power. " Art. IV. — The present Convention, annexed to the General " Treaty signed at Paris this day, shall be ratified, and the ratifica- " tions shall be exchanged in the space of four weeks, or sooner if ** possible. " In witness whereof the respective Plenipotentiaries have signed " the same, and have affixed thereto the seal of their arms. " Done at Paris, the thirtieth day of the month of March, in the " year one thousand eight hundred and fifty-six." (The Signatures follow.) APPENDIX X. 621 " 2. — Convention letween the Emperor of Russia and the Sultan, " limiting their Naval Force in the Black Sea. Signed at Jhris, " March 30, 1856. \_Ratifications exchanged at Paris, April 27, " 1856.] " In the Name of Almighty God. " His Majesty the Emperor of all the Eussias, and His Imperial " Majesty the Sultan, taking into consideration the principle of the " neutralization of the Black Sea established by the preliminaries " contained in the Protocol No. 1, signed at Paris on the twenty- " fifth of J'ebruary of the present year, and wishing, in consequence, " to regulate by common agreement the number and the force of " the light vessels which they have reserved to themselves to main- " tain in the Black Sea for the service of their coasts, have resolved " to sign, with that view, a special Convention, and have named for " that purpose : " His Majesty the Emperor of all the Eussias, the Count Orloif " and Baron de Brunnow ; and His Majesty the Emperor of the " Ottomans, Mouhammed Emin Aali Pasha and Mehemmed Djemil " Bey; who, after having exchanged their full powers, found in " good and due form, have agreed upon the following Articles : — " Art. I. — The High Contracting Parties mutually engage not to " have in the Black Sea any other vessels of war than those of " which the number, the force, and the dimensions are hereinafter " stipulated. " Art. II. — The High Contracting Parties reserve to themselves " each to maintain in that sea six steam-vessels of fifty metres in " length at the line of floatation, of a tonnage of eight hundred tons " at the maximum, and four light steam or sailing vessels of a " tonnage which shall not exceed two hundred tons each. " Art. HI. — The present Convention, annexed to the General " Treaty signed at Paris this day, shall be ratified, and the ratifica- " tions shall be exchanged in the space of four weeks, or sooner, if " possible. " In witness whereof the respective Plenipotentiaries have signed " the same and have affixed thereto the seal of their arms. " Done at Paris, the thirtieth day of the month of March, in the " year one thousand eight hundred and fifty-six." (The Signatures follow.) " 3. — Convention between Her Majesty, the Emperor of the French, " and the Emperor of Russia, respecting the Aland Islands. " Signed at Paris, March 30, 1856. \_Ratifications exchanged " at Paris, April 27, 1856.] " In the Name of Almighty God. " Her Majesty the Queen of the United Kingdom of Great Britain " and Ireland, His Majesty the Emperor of the French, and His 622 APPENDIX X. " Majesty the Emperor of all the Russias, wishing to extend to the " Baltic Sea the harmony so happily re-established between them " in the East, and thereby to consolidate the benefits of the general " peace, have resolved to conclude a Convention, and have named " for that purpose : " Her Majesty the Queen of the United Kingdom of Great Britain " and Ireland, the Earl of Clarendon and Baron Cowley ; His " Majesty the Emperor of the French, Count Colonna Walewski " and Baron de Bourqueney ; and His Majesty the Emperor of all " the Russias, Count OrlofF and Baron de Brunnow ; who, after " having exchanged their full powers, found in good and due form, " have agreed upon the following Articles : — ^' Art. I. — His Majesty the Emperor of all the Russias, in order " to respond to the desire which has been expressed to him by their " Majesties the Queen of the United Kingdom of Great Britain and " Ireland, and the Emperor of the French, declares that the Aland " Islands shall not be fortified, and that no military or naval esta- " blishment shall be maintained or created there. " Art. II. — The present Convention, annexed to the General " Treaty signed at Paris this day, shall be ratified, and the ratifica- " tions shall be exchanged in the space of four weeks, or sooner, if " possible. " In witness whereof, the respective Plenipotentiaries have signed " the same, and have affixed thereto the seal of their arms. " Done at Paris, the thirtieth day of the month of March, in the " year one thousand eight hundred and fifty-six." (The Signatures follow.) The firman referred to in the Ninth Article of the Treaty of Paris is as foUow^s. See also De Martens. " Firman and Haiti- Sheriff hy the Sultan, governing the Condition " of non-Mussulman and Christian Subjects of the Porte. — " February 18, 1856. " Let it be done as herein set forth. To you my Grand Vizier, " Mehemed Emin Aali Pasha, decorated with my Imperial Order " of the Medjidiye of the first class, and with the Order of Personal " Merit ; may God grant to you greatness and increase your power. " It has been my most earnest desire to ensure the happiness of " all classes of the subjects whom Divine Providence has placed " under my Imperial sceptre, and since my accession to the throne " I have not ceased to direct all my efforts to the attainment of that " end. " Thanks to the Almighty, these unceasing efforts have already *' been productive of numerous useful results. From day to day " the happiness of the nation and the wealth of my dominions go on " augmenting. APPENDIX X. 623 " It being now my desire to renew and enlarge still more the " new institutions ordained with the view of establishing a state of *' things conformable with the dignity of my Empire and the position " which it occupies among civilized nations ; and the rights of my " Empire having, by the fidelity and praiseworthy efforts of all my " subjects, and by the kind and friendly assistance of the Great " Powers, my noble allies, received from abroad a confirmation " which will be the commencement of a new era ; it is my desire to " augment its wellbeing and prosperity, to effect the happiness of " all my subjects, who in my sight are all equal and equally dear to " me, and who are united to each other by the cordial ties of pa- " triotism, and to ensure the means of daily increasing the prosperity " of my Empire. " I have therefore resolved upon, and I order the execution of, the " following measures. The guarantees promised on our part by the " Hatt-i-Humaion of Gul Hane, and in conformity with the Tanzi- " mat, to all the subjects of my Empire, without distinction of classes " or of religion, for the security of their persons and property, and " the preservation of their honour, are to-day confirmed and consoli- " dated, and efficacious measures shall be taken in order that they " may have their full and entire effect. All the privileges and " spiritual immunities granted by my ancestors, ah antiquo, and at " subsequent dates, to all Christian communities or other non-Mus- " sulman persuasions established in my Empire imder my protection, " shall be confirmed and maintained. Every Christian or other non- " Mussulman community shall be bound, within a fixed period, and " with the concurrence of a commission composed ad hoc of mem- " bers of its own body, to proceed, with my high approbation and " under the inspection of my Sublime Porte, to examine into its " actual immunities and privileges, and to discuss and submit to my " Sublime Porte the reforms required by the progress of civilization " and of the age. The powers conceded to the Christian Patriarchs " and Bishops by the Sultan Mahomet II. and his successors shall " be made to harmonize with the new position which my generous " and beneficent intentions ensure to these communities. The prin- " ciple of nominating the Patriarchs for life^ after the revision of the " rules of election now in force, shall be executed comformably to " the tenour of their firmans of investiture. The Patriarchs, the " Metropolitans, Archbishops, Bishops, and Eabbins shall take an " oath on their entrance into office according to a form agreed upon " in common by my Sublime Porte and the spiritual heads of the " different religious communities. The ecclesiastical dues, of what- " ever sort or nature they be, shall be fixed, abolished, and replaced " by fixed revenues for the Patriarchs and heads of communities, " and by the allocation of allowances and salaries equitably propor- " tioned to the importance of the rank and the dignity of the " different members of the clergy. The property, real or personal, " of the different Christian ecclesiastics shall remain intact ; the 624 APPENDIX X. ** temporal administration of the Clu-iatian or other non-Mussulman " communities, shall, however, be ])lace(l under the safeguard of an " assembly to be chosen from among the members, both ecclesiastics " and laymen, of the said communities. In the towns, small bo- " roughs, and villtiges where the whole population is of the same " religion, no obstacle shall be offered to the repair, according to ** their original plan, of buildings set apart for religious worship, for " schools, for hospitals, and for cemeteries. The plans of these " different buildings in case of their new erection must, after having " been approved by the Patriarchs or heads of communities, be sub- " mitted to my Sublime Porte, which will approve of them by my *' Imperial order, or make known its observations upon them, within " a certain time. Each sect, in localities where there are no other " religious denominations, shall be free from every species of restraint " as regards the public exercise of its religion. In the towns, small " boroughs, and villages where different sects are mingled together, " each community inhabiting a distinct quarter shall, by conforming *' to the above-mentioned ordinances, have equal power to repair and " improve its churches, its hospitals, its schools, and its cemeteries. *' When there is question of the erection of new buildings, the " necessary authority must be asked for, through the medium of the " Patriarchs and heads of communities, from my Sublime Porte, " which will pronounce a sovereign decision according that autho- " rity, except in the case of administrative obstacles. The inter- " vention of the administrative authority in all measures of this " nature will be entirely gratuitous. My Sublime Porte will take " energetic measures to ensure to each sect, whatever be the number " of its adherents, entire freedom in the exercise of its religion. " Every distinction or designation tending to make any class what- " ever of the subjects of my Empire inferior to another class on " account of their religion, language, or race, shall be for ever effaced " from the Administrative Protocol. The laws shall be put in force *' against the use of any injurious terms, either among private indi- " viduals, or on the part of the authorities. As all forms of religion " are and shall be freely professed in my dominions, no subject of my " Empire shall be hindered in the exercise of the religion that he " professes, nor shall be in any way annoyed on this account. No " one shall be compelled to change their religion. The nomination " and choice of all functionaries and other employes of my Empire " being wholly dependent upon my sovereign will, all the subjects " of my Empire, without distinction of nationality, shall be adnii.ssi- " ble to public employments, and qualified to fill them according to " their capacity and merit, and conformably with the rules to be " generally applied. All the subjects of my Empire, without dis- " tinction, shall be received into the Civil and Military Schools of " the Government, if they otherwise satisfy the conditions as to age " arid examination, which are specified in the organic regulations " of the said schools. Moreover, every community is authorized to APPENDIX X. 625 " establish public schools of science, art, and industry. Only the " method of instruction and the choice of professors in schools in " this class shall be under the control of a mixed Council of Public " Instruction, the members of which shall be named by my sovereign " command. All commercial, correctional, and criminal suits be- " tween Mussulmans and Christian or other non-Mussulman subjects, " or between Christians or other non-Mussulmans of different sects, *' shall be referred to mixed tribunals. The proceedings of these " tribunals shall be public ; the parties shall be confronted, and shall " produce their witnesses, whose testimony shall be received, with- ** out distinction, upon an oath taken according to the religious law " of each sect. Suits relating to civil affairs shall continue to be " publicly tried, according to the laws and regulations, before the " mixed provincial councils, in the presence of the governor and " judge of the place. Special civil proceedings, such as those re- " lating to successions or others of that kind, between subjects of " the same Christian or other non-Mussulman faith, may, at the " request of the parties, be sent before the councils of^ the Patriarchs " or of the communities. Penal, correctional, and commercial " laws, and rules of procedure for the mixed tribunals, shall be " drawn up as soon as possible, and formed into a code. Trans- " lations of them shall be published in all the languages current in " the Empire. Proceedings shall be taken with as little delay as " possible for the reform of the penitentiary system as applied to " houses of detention, punishment, or correction, and other establish- " ments of like nature, so as to reconcile the rights of humanity " with those of justice. Corporal punishments shall not be ad- " ministered, even in the prisons, except in conformity with the " disciplinary regulations established by my Sublime Porte, and " everything that resembles torture shall be entirely abolished. " Infractions in the law in this particular shall be severely repressed, " and shall besides entail, as of right, the punishment, in conformity " with the Civil Code, of the authorities who may order and of the " agents who may commit them. The organization of the police in " the capital, in the provincial towns, and in the rural districts, shall " be revised in such a manner as to give to all the peaceable sub- " jects of my Empire the strongest guarantees for the safety both of " their persons and property. The equality of taxes entailing the " equality of burdens, as equality of duties entails that of rights, " Christian subjects and those of other non-Mussulman sects, as " it has been already decided, shall, as well as Mussulmans, be sub- " ject to the obligations of the law of recruitment. The prin- " ciple of obtaining substitutes, or of purchasing exemption, shall " be admitted. A complete law shall be published, with as little " delay as possible, respecting the admission into and service in " the army of Christian and other non-Mussulman subjects. Pro- " ceedings shall be taken for a reform in the constitution of the " Provincial and Communal Councils, in order to ensure fairness in VOL. I. S 8 626 APPENDIX X. " the choice of the deputies of the Mussulman, Christian, and other " connnuiiities, and freedom of voting in the Councils. The Sub- " lime Porte will take into consideration the adoption of the most *' effectual means for ascertaining exactly and for controlling the " result of the deliberations, and of the decisions arrived at. As the *' laws regulating the purchase, sale, and disposal of real property " are common to all the subjects of my Empire, it shall be lawful " for foreigners to possess landed property in my dominions, con- " forming themselves to the laws and police regulations, and bearing " the same charges as the native inhabitants, and after arrangements *' have been come to with foreign Powers. The taxes are to be " levied under the same denomination from all the subjects of my *' Empire, without distinction of class or of religion. The most " prompt and energetic means for remedying the abuses in collecting " the taxes, and especially the tithes, shall be considered. The " system of direct collection shall gradually, and as soon as possible, " be substituted for the plan of farming, in all the branches of the " revenues of the State. As long as the present system remains " in force, all agents of the Government and all members of the " Medjlis shall be forbidden, under the severest penalties, to become " lessees of any farming contracts which are announced for public " competition, or to have any beneficial interest in can-ying them *' out. The local taxes shall, as far as possible, be so imposed as " not to affect the sources of production, or to hinder the progress " of internal commerce. Works of public utility shall receive a " suitable endowment, part of which shall be raised from private " and special taxes levied in the provinces, which shall have the " benefit of the advantages arising from the establishment of ways " of communication by land and sea. A special law having been " already passed, which declares that the Budget of the revenue *' and expenditure of the State shall be drawn up and made knoAvn " every year, the said law shall be most scrupulously observed. " Proceedings shall be taken for revising the emoluments attached to " each office. The heads of each community, and a delegate de- " signated by my Sublime Porte, shall be summoned to take part " in the deliberations of the Supreme Council of Justice on all " occasions which might interest the generality of the subjects of " my Empire. They shall be summoned specially for this purpose " by my Grand Vizier. The delegates shall hold office for one " year ; they shall be sworn on entering upon their duties. AH the *' members of the Council, at the ordinary and extraordinary meet- " ings, shall freely give their opinions and their votes, and no one " shall ever annoy them on this account. The laws against cor- *' ruption, extortion, or malversation shall apply, according to the " legal forms, to all the subjects of my Empire, whatever may be " their class and the nature of their duties. Steps shall be taken " for the formation of banks and other similar institutions, so as to " effect a reform in the monetary and financial system, as well as to APrENDix XI. 627 " create funds to be employed in augmenting the sources of the " material wealth of my Empire. Steps shall also be taken for the " formation of roads and canals to increase the facilities of com- " munication, and increase the sources of the wealth of the country. " Everything that can impede commerce or agriculture shall be " abolished. To accomplish these objects means shall be sought to " profit by the science, the arts, and the funds of Europe, and thus " gradually to execute them. Such being my wishes and my com- " mands, you, who are my Grand Vizier, will, according to custonj, " cause this Imperial firman to be published in my capital, and in " all parts of my Empire ; and you will watch attentively and take " all the necessary measures that all the orders which it contains be " henceforth carried out' with the most ric^orous punctuality." — Ann. Beg. 185G, pp. 337-41. APPENDIX XL Page 481. {Extract from (Envres de Fenelon^ t. xxii. p. 30G, li VExamen de Conscience. SujypUment. Sur la Necessite de former des Al- liances, tant offensives que defensives, contre une Puissance etran- gere qui aspire manifestement a la Mouarcliie universelle.) *' Les Etats voisins les uns des autres ne sont pas seulement obliges " a se traiter mutuellement selon les regies de justice et de bonne " foi ; ils doivent encore, pour leur surete particuliere, autant que " pour I'interet commun, faire une espece de societe et de republique " generale. " II faut compter qu'a la longue la plus grande puissance pre- " vaut toujours, et renverse les autres, si les autres ne se reunissent " pour faire le contre-poids. II n'est pas permis d'esperer parmi les " hommes, qu'une puissance supcrieure demeure dans les bornes " d'une exacte moderation, et qu'elle ne veuille dans sa force, que " ce qu'elle pourroit obtenir dans la plus grande foiblesse. Quand " meme un prince seroit assez parfait pour faire un usage si mer- " veilleux de sa prosperite, cette merveille finiroit avec son regne. " L'ambition naturelle des souverains, les flatteries de leurs con- " seillers, et la prevention des nations entieres, ne permettent pas de " croire qu'une nation qui pent subjuguer les autres, s'en abstienne " pendant des siecles en tiers. Un regne oil eclateroit une justice si *' extraordinaire, seroit I'ornement de I'histoire, et un prodige qu'on " ne pent plus revoir. " 11 faut done compter sur ce qui est reel et journalier, qui est " que chaqiie nation cherche a prevaloir sur toutes les autres qui " Tenvironncnt. Chaque nation est done obligee a veiller sans cesse, " pour prevenir I'excessif agrandissement de chaque voisin pour sa " surete propre. Empecher le voisin d'etre trop puissant, ce n'est s s 2 628 APPENDIX XI. " point faire iin mal ; c'est se garantir de la servitude et en garantir " ses autres voisins; en im mot, c'est travailler a la libert6, a la " tranqnillit6,ausalut public; car I'agrandissement d'une nation au- " dela d'une certaine borne, change le syst6me general de toutes les " nations qui ont rapport k celle-la. Par exemple, toutes les suc- " cessions qui sont entries dans la maison de Bourgogne, puis celles " qui ont ^leve la maison d'Autriche, ont change la face de toute " I'Europe. Toute I'Europe a dfi craindre la monarchic universelle " ROUS Charles-Quint, surtout apr^s que Fran9ois ler eut etc defait " et pris a Pavie. II est certain qu'une nation qui n'avoit rien a " demeler directement avec I'Espagne, ne lassoit pas alors d'etre en " droit, pour la liberty publique, de pr^venir cette puissance rapide " qui sembloit prete h tout engloutir. " Les particuliers ne sont pas en droit de s'opposer de memo k " I'accroissement des richesses de leurs voisins, parce qu'on doit " supposer que cet accroissement d'autrui ne peut etre leur ruine. " II y a des lois ^crites et des magistrats pour reprimer les in- " justices et les violences entre les families inegales en biens ; mais, " pour les lEtats, ils ne sont pas de meme. Le trop grand accroisse- *' ment d'un seul peut etre la ruine et la servitude de tous les autres " qui sont ses voisins : il n'y a ni lois ecrites, ni juges etablis pour " servir de barriere centre les invasions du plus puissant. On est " toujours en droit de supposer que le plus puissant, a la longue, se *' prevaudra de sa force, quand il n'y aura plus d'autre force a peu " pres egale qui puisse I'arreter. Ainsi, chaque prince est en droit " et en obligation de prevenir dans son voisin cet accroissement de " puissance, qui jetteroit son peuple, et tous les autres peuples voisins, " dans un danger prochain de servitude sans ressource. " Par exemple, Philippe II, roi d'Espagne, apres avoir conquis " le Portugal, veut se rendre le maitre de I'Angleterre. Je sais bien " que son droit etoit mal fonde, car il n'en avoit que par la reine " Marie sa femme, morte sans enfans. Elizabeth, illegitime, ne " devoit point regner. La couronne appartenoit a Marie Stuart et " a son fils. Mais enfin, suppose que le droit de Philippe II eCit *' ete incontestable, I'Europe entiere auroit eu raison neanmoins de *' s'opposer a son etablisspment en Angleterre ; car ce royaume si " puissant ajout^ a ses £'tats d'Espagne, d'ltalie, de Flandre, des " Indes orientales et occidcntales, le mettoit en etat de faire la loi, " surtout par ses forces maritimes, a toutes les autres puissances de " la chretiente. Alors, summnm jus, summa injuria. Un droit " particulier de succession ou de donation devoit ceder a la loi " naturelle de la surete de tant de nations. En un mot, tout ce " qui renverse I'equilibre, et qui donne le coup decisif pour la " monarchic universelle, ne peut etre juste, quand meme il seroit " fondee sur des lois ecrites dans un pays particulier. La raison en " est que ces lois ecrites chez un peuple ne peuvent prevaloir sur " la loi naturelle de la liberte et de la surete commune, gravee " dans les coeurs de tous les autres peuples du monde. Quand une APPENDIX XI. 629 " puissance monte k un point, que toutes les autres puissances " voisines ensemble ne peuvent plus lui resister, toutes ces autres " sont en droit de se liguer pour prevenir cet accroissement, apres " lequel il ne seroit plus temps de defendre la liberte commune. *' Mais, pour faire legitimement ces sortes de ligues, qui tendent a " prevenir un trop grand accroissement d'un ]5tat, il faut que le cas " soit veritable et pressant ; il faut se contenter d'une ligue de- " fensive, ou du moins ne la faire offensive, qu'autant que la juste " et necessaire defense se trouvera renfermee dans les desseins d'une " agression ; encore meme tliut-il toujours, dans les traites de ligues " oiFensives, poser des bornes precises, pour ne detruire jamais une " puissance sous pretexte de ia moderer. " Cette attention a maintenir une espece d'egalite et d'equilibro " entre les nations voisines, est ce qui en assure le repos commun. " A cet egard toutes les nations voisines et liees par le commerce " font un grand corps et une espece de communaute. Par exemple, " la cliretiente fait une espece de republique generale, qui a ses " interets, ses craintes, ses precautions a observer ; tous les membrea " qui composent ce grand corps se doivent les uns aux autres pour " le bien commun, et se doivent encore a eux-memes, pour la sfirete " de la patrie, de prevenir tout progres de quelqu'un des membres " qui renverseroit I'equilibre, et qui se tourneroit a la ruine inevi- ^' table de tous les autres membres du meme corps. Tout ce qui " change ou altere ce systeme general de I'Europe est trop dan- " gereux, et traine apres soi des maux infinis. " Toutes les nations voisines sont tellement liees par leurs interets " les unes aux autres, et au gros de I'Europe, que les moindres " progres particuliers peuvent alterer ce systeme general^ qui fait " I'equilibre, et qui peut seul faire la surete publique. Otez une " pierre d'une voute, tout I'edifice tombe, parce que toutes les ^' pierres se soutiennent en se contre-poussant. " L'humanite met done un devoir mutuel de defense du salut " commun, entre les nations voisines, centre un Etat voisin qui de- " vient trop puissant ; comme il y a des devoirs miituels entre les ^' concitoyens pour la liberte de la patrie. Si le citoyen doit beaucoup " a sa patrie, dont il est membre, chaque nation doit a plus forte " raison bien davantage au repos et au salut de la republique uni- '' verselle dont elle est membre, et dans laquelle sont renfermees *' toutes les patries des particuliers. " Les ligues defensives sont done justes et necessaires, quand il *' s'agit veritablement de prevenir une trop grande puissance qui *^ seroit en etat de tout envahir. Cette puissance superieure n'est " done pas en droit de rompre la paix avec les autres ]5tats in- " ferieurs, precisement a cause de leur ligue defensive ; car ils sont " en droit et en obligation de la faire. " Pour ime ligue offensive, elle depend des circonstances ;^ il faut " qu'elle soit fondee sur des infractions de paix, ou sur la detention '" de quelques i3ays des allies, ou sur la certitude de quelque autre 630 APPENDIX XI. " ioiulenient semblublc. Encore lueine fiiut-il toujours, coinme je " I'ui deja dit, borner de toLs tniites a des conditions qni enii)t'client " ce c^u'on voit souvent ; c'est qu'une nation se sert de la nccessite *' d'en rabattre line autre qui aspire a la tyrannic universcUe, poiu* " y aspirer elle-mcme a son tour. L'habilete, aussi bien que la " justice et la bonne foi, en faisant des ti-aites d alliance, est de lea " fjiire tres-precis, tres-eloignes de toutes equivoques, et exactement '* bornes a un certain bien que vous en voulez tirer prochainement. " Si vous n'y prenez garde, les engagements que vous })renez se " tourneront contre vous, en abattant trop vos ennemis, et en elevant " trop votre allie ; il vous faudra, ou soutfrir ce qui vous detruit, ou " raanquer ii votre parole ; choses presque cgalement funestes. Con- '' tinuons a raisonner sur ces principes, en prenant I'exemple par- " ticiilier de la chretiente, qui est la plus sensible pour nous. " II n'y a que quatre sortes de systemes. Le premier est d'etre " absolument superieur a toutes les autres puissances, meme reunies : *' c'est I'etat des Komains et celui de Charlemagne. Le second *' est d'etre dans la chretiente la puissance superieure aux autres, ** qui font neanmoins a peu pres le contre-poids en se reunissant, " Le troisieme est d'etre une puissance inferieure a une autre, *' mais qui se soutient, par son union avec tous ses voisins, contre " cette puissance predominante. Enfin, le quatrienie est d'une " puissance a peu pres egale a une autre, qui tient tout en paix par " cette espece d'equilibre qu'elle garde sans ambition et de bonne foi. " L'etat des Romains et de Charlemagne n'est point un etat qu'il " vous soit permis de desirer : 1° Parce que, pour y arriver, il faut " commettre toutes sortes d'injustices et de violences ; il faut pren- " dre ce qui n'est point a vous, et le faire par des guerres abomi- " nables dans leur duree et dans leur etendue. 2° Ce dessein est " tres-dangereux ; souvent les Etats perissent par ces foUes ambi- •* tions. S° Ces empires immenses, qiii ont fait tant de maux en " se formant, en font, bientot apres, d'autres encore plus eifroy- " ables, en tombant par terre. La premiere minorite, ou le pre- " mier regne foible, ebranle les trop grandes masses, et separe des '* peuples qui ne sont encore accoutumes ni au joug ni a I'union *' mutuelle. Alors, quelles divisions, quelles confusions, quelles " anarchies irremediables ! On n'a qu'a se souvenir des maux " qu'ont fait en Occident la chute si prompte de I'empire de " Charlemagne, et en Orient le renversement de celui d'Alexandre, " dont les capitaines iirent encore plus de maux pour partager ses " depouilles, qu'il n'en avoit fait lui-meme en ravageant I'Asie. " Voila done le systeme le plus eblouissant, le plus funeste pour *' ceux memes qui viennent a boiit de I'executer. " Le second systeme est d'une puissance superieure a toutes les " autres, qui font contre elle a peu pres I'equilibre. Cette piiis- *' sjmce superieure a I'avantage, contre les autres, d'etre toute " reunic, toute simple, toute absolue dans ses ordres, toute ■** certaine dans ses mesures. Mais, a la longue, si elle ne cosse de APPENDIX XI. 631 reiinir contre elle les aiitresen excitant la jalousie, il liiut (pfelle succombe. Elle s'epuise : elle est exposee a beaucoup d'accideiis internes et imprevus, on les attacjues du dehors peuvent la ren- verser soudainement. De plus, elle s'use pour rien, et fait des efforts ruineux pour une superiorite qui ne lui donne rien d'effec- tif, et qui Texpose a toutes sortes de deshonneurs et de dangers. De tousles fitats, c'est certainement le plus mauvais; d'autant plus qu'il ne pent jamais aboutir, dans sa plus etonnante prosperite, qu'a passer dans le premier systeme, que nous avons deja reconuu injuste et pernicieux. " Le troisieme systeme est d'une puissance inferieure a une autre, mais en sorte que I'infei-ieure, unie au reste de I'Europe, fait I'equilibre contre la superieure, et la surete de tons les autres moindres Etats. Ce systeme a ses incomraodites et ses incon- veniens ; mais il risque moins que le precedent, parce qu'on est sur la defensive, qu'on s'epuise moins, qu'on a des allies, et qu'on n'est point d'ordinaire, en cet etat d'inferiorite, dans I'aveuglement et dans la presomption insensee qui menace de mine ceux qui prevalent. On voit presque toujours, qu'avec un peu de temps, ceux qui avoient prevalu s'usent et commencent a dechoir. Pourvu que cet Etat inferieur soit sage, modere, ferme dans ses alliances, precautionne pour ne leur donner aucun ombrage, et pour ne rien iaire que par leur avis pour I'interet commun, il occupe cette puissance superieure jusqu'u ce qu'elle baisse. " Le quatrieme systeme est d'une puissjince a peu pres egale a une autre, avec laquelle elle fait I'equilibre pour la surete pu- blique. fitre dans cet etat, et n'en vouloir point sortir par ambi- tion, c'est I'etat le plus sage et le plus heureux. Vous etes I'arbitre commun ; tons vos voisins sont vos amis ; du moins, ceux qui ne le sont pas se rendent par la suspects a tous les autres. Vous ne faites rien qui ne paroisse fait pour vos voisins aussi bien que pour vos peuples. Vous vous fortifiez tous les jours ; et si vous parvenez, comme cela est presque infaillible a la longue, par un sage gouvernement, a voir plus de forces interieures et plus d'alliances au dehors, que la puissance jalouse de la votre, alors il faut s'aiFermir de plus en plus dans cette sage moderation qui vous borne a entretenir I'equilibre et la surete commune. II faut toujours se souvenir des maux que content au dedans et au dehors de son Etat les grandes conquetes ; qu'elles sont sans fruit; et du risque qu'il y a a les entreprendre ; enfin, de la vanite, de I'inutilite, du peu de duree des grands empires, et des ravages qu'ils causent en tombant. " Mais, comme il n'est pas permis d'esperer qu'une puissance superieure a toutes les autres demeure longtemps sans abuser de cette superiorite, un prince bien sage et bien juste ne doit jamais souhaiter de laisser a ses successeurs, qui seront, selon toutes les apparences, moins modercs que lui, cette continuello et violente tentation d'une superiorite trop declaree. Pour le bien meme de 632 APPENDIX XI* ** ses successeurs et de ses peuples, il doit se bomer k une esp^ce " d'(5galit^. II est vrai qu'il y a deux sortes de superiorities ; Tune " extdrieure, qui consiste en ^tendue de terres, en places fortifides, " en passages pour entrer dans les terres de ses voisins, etc. " Celle-la ne fait que causer des tentations aussi funestes a soi- " meme qu'a ses voisins, qu'exciter la haine, la jalousie et les ligues. " L'autre est interieure et solide : elle consiste dans un peuple plus " nombreux, mieux discipline, plus appliqu6 a la culture des terres " et aux arts n^cessaires. Cette superiority, d'ordinaire, est facile " k acquerir, s(ire, k I'abri de I'envie et des ligues, plus propre " meme, que les conqu^tes et que les places, k rendre un peuple " invincible. On ne sauroit done trop chercher cette seconde *< Buperiorite, ni trop eviter la premiere qui n'a qu'un faux eclat." 63S INDEX. bdication, Act of the Emperor Francis in 1806, 135 Accessions, Fluvial, 282 Ackermann, Treaty of, 126 Acquisition, Eight of, 264, 270. Original, 271. Original and derivative, 268. De- rivative, 309 Act, Federal, of 1815, 138 Admiralty, High Court of, 20. Seal of, 60. Jurisdiction of, 389, 409. Account of, 421 Adrianople, Treaty of, 126 Advocationes Hispanicse. See Albericus Gentilis JEschines, 63 (n.) Africa, Mahometan States in, 20 Aguesseau, D', 1 (n.), 76 («.), 77 (n.), 172 Ahrens, Philosophie du Droit, 330 (n.), 463 (n.) Aix-la-Chapelle, Congress of, 335 Aland Isles, Convention as to, 1856, 332, 621 Albericus. See Gentilis Algiers, half destroyed. Christian Slavery abolished, 86, 345. Taken by the French in 1830, with Tunis and Tripoli, con- cluded a Treaty with France for the Abolition of Christian Slavery, 86, 345 Aliens, British Acts relating to, 261, 384, 546 Ambassadors, 10, 21. See Rossi America, Central and South, Republics of, 163. North and South, Civil War, 163 Amphictyonic League, 17 Ancillon, 481 {n.) Andorra, 110 Annuaire des Deux Mondes, 164, 285 (n,), 501 (nn.), 502 (nn.), 503 Annuaire historique, 95 {nS),li7 (w.),153 (w.) Annual Register. Sec Register Aristotle, 9 (n.), 14 («.), 15 (n.), 16 (nn,), 29 («.), 80 (n.) Attorneys-General of the United States, Opinions of, 162, 404, 444 (n.) Austregal Tribunal, 139 Authors referred to in this Work. See Alphabetical List of Ayala, 62 B Bacon, Lord, 11, 62, 463, 511 Balta Liman, Treaty of, 126 Baltic, 215 Barbary States, 85, 119 Barbeyrac, 13 (».), 211 («,), 119 («.), 340 («.) Barbosa, 24 Bartolus, 24 (n.), 388 («.) Belgium, 111, 179,388. Neutrality of, 115. Adjustment of Relations with Holland, 301, 476, 495, 496 Bernard, M., Neutrality of Great Britain during the American Civil War, 160, 371 Bernard, Tried for Conspiring to Assassi- nate Napoleon III., 448 Best, Chief Justice, 368 Blackstone, 76 («.), 298, 376 (n.), 390 Blount, on Sense of Word " Pirata," in his Law Dictionary 419 Blume, Deutsches Privatrecht, 2 («.) Bodinus, De Republica, 373 Boliiigbroke, Lord, Letters of, 519 Bond V. Hopkins, 36 (n.) Borcaut, Jean, Case of, 370 Bothwell, Extradition of, 442 Bowyer, Readings, 36 {n.) Bremen, 110 Brougham, Lord, 455 {n.) Bucharest, Treaty of, 126, 198 Burke, Speech on Impeachment of Warren Hastings, 23 {n.). Treatise on Popery Laws, 26 (to.), 310. Letters on a Regicide Peace, 32 {n.), 310 («.), 44 {n.\ 46 («.). Speech on America, 120. Thoughts on French Revolution, 26 (to ), 170 (to.). Re- 634 INDEX. form of Representation, 171 (w.)> 306 (»i.). Speech on E. I. Company, 280 (n.). On the Doctrine of Prescription, 301. Ap- peal from the New to Old Whigs, 309, 310, 472 BurlaniHqui, 151 (n.), 258, 440 (».) Jiutler, Bishop, 76 (w.) 15ynkershoek, Qusestiones Juris Publici, 30, 31 , 35, 37, 38 («.). 39, 42 (ww.), 44 (n.), 45, 85, 174, 210, 424, 485, 489. Do Pira- tica, 410. De Dominio Maris, 221, 222, 235, 242, 268, 274, 286, 344 (».). De Foro Leg. 397, 398 Cabinet of Scarce and Celebrated Tracts, 14 (w.) Calais, Pas de, 219 Camden, 210 Canada, Union with Nova Scotia and New Brunswick by Act of Parliament, 1867, 166 Canning, Mr., 255 (n.), 260 («.), 480, 481, 491 Canon Law (Passages referred to) : Page of vol. Clement. 1. ii. t. xi. 24 Decret. prima pars, dist. i. c. ix. 24 181 torn. vi. 1. ii. t. 13, c. 1. 297 X. L V. t. 40, c. 26, de V. S. 296 Capellen, Vice-Admiral, assists Lord Ex- mouth at the Bombardment of Algiers, 345 Capua, 7 Carnarvon, Ejirl of. North American Con- deration Bill, 165 Caroline, The, 255 Cases referred to in this Work. See Al- phabetical List of Chambers, the King's, 239 Charlemagne, 80, 483 Charles I., 219 Charles II. of Spain, his Will, 326 Charles II. of England (the King v. Hut- chinson), 441, 442 Charles V., 80, 484 Charles VIII. of France, 483 Charleston, Judge of Vice- Admiralty Court at, lays down the Law as to Piracy, 395 China, Emperor of, 237. Concedes Juris- diction to England over British Subjects in China, 396. See Orders Christianity, Influence of, on International Law, 22, 23, 24, 39, 343, 344 Cicero, 5 (w.), 12 (w.). De Eep. 16 (».), IS, ' 19, 26 (w.), 82, 173, 176. De Fin. 268 («.). Do Ofr. 268, 491. De Rep. 273 (w.). De Lege Agrar. 230 («,). De Off. 339 («.). Orat. pro Balbo, 378 (n.), 379 j (n.). De Off. 411, 482. Orat. pro. Cse- cina, 66, 543. Orat. pro Lego Manil. 639 Clarendon, Earl of, Speech of, in 1863, on Relations between the Porte and Monte- negro, 92 (w.). Despatch of, as to Slavery, 1869, 350 {n.) Clarendon, Lord Chancellor, Account of the Privateers of Ostend, 83 (n.) Clayton-Bulwer Treaty, 51 Clement. See Canon Law Code civil fran9ais (De la Privation des Droits civils), 382 (w.). D'Instruction criminelle, 388 (n.) Codex. See Roman Law Codling, William, Trial of, 421 Coke, Lord, 85 {n.) Coke's Institutes, 441 (w.) Collegium Fecialium, 17 Colquhoun's Civil Law. History of the British Slave Trade, 350 («.) Comity, 11, 182, 183. Held to bo suffici- ently stringent to compel the Surrender of the Criminal, 441 Commentators on International Law, their Authority, 61 Commorant Strangers, 379 Companies, British and Russian Fur, 286 Company, E. I. British, not a State, 167. E. I. C. V. Campbell, 441 (n.) Confederation, Grerman, 135, 149 Confederation,New North German, 135, 150 Conquest, 327 Consolato del Mare, 54 Constantinople, Treaty of, 89 Consular Courts, 395 Consuls, 10 Contiguity, Doctrine of, 282 Convention of July 1840, 130, Separate Act of, 1 3 1 . At St. Petersburg respecting Navigation of the Pacific, 215. Fisheries, 231. Secret, between Versailles and Madrid, of 30th November 1831, 409. As to Alandlsles in 1856, 332, 621. Between England, France, and the Porte, 1854, 503. Of London, 1861, 507. Of Sep- tember, 530 Copenhagen, Court of Admiralty of, 229, 230 Correspondence with the Russian Govern- ment respecting Obstruction to the Navi- gation of the Sulina Channel of the Danube, 199. Between Continental Powers and Great Britain respecting foreign Refugees, 385 (w.). See State Papers INDEX. 635 Cuuncil. See Orders in Cowi'l, Dr., on Sense of Word " Pirata," in his Interpreter, 419 Cranch, American Eeports, 170, 237 Creole, The Case of, 364, 365, 366, 372, 444 Crimea, War in, 1854, 503 Criiiiinal Law, Debates in House of Lords oil, as to Oifences by Foreigners. See 15(Tnard Criminal Law of England as to Offences eoniniittcd against Foreign Sovereigns or their Consorts, Allies of England. See Uernard, 448 CuIki, Correspondence relating to, 162 {n.), 465, 466 D Duhlman, Gcschichte von Diiuemark, 322 Dalkis, 384 Dallas- Clarendon Treaty, 51 Dante, 327 Danube, 199 Davis, Sir John, 72 Davis's Straits, 228, 231 Decretals, 181 (?<.). See Canon Law Demosthenes, 12, 211. Oration against Aristarchus as to reception of Fugi- tives, 443 Denisart, Decisions nouvelles, 371 (w.) Denison's Crown Cases Reserved, 363 (w.) Denmark, 148, 216, 225, 227, 229, 441. For Intervention in Affairs of, see chap, on Intervention, 610 De Rayneval, Inst, du Droit de la Nature et des Gens, 335 (?i.) Dereliction, 307 Deserters, Recovery of Foreign in British Ports, and of British in Foreign Ports, 409 Deuteronomy, chap. xxii. v. 1,2, 338 (?i.) Digest. See Roman Law Divorce. See Fergusson Dodson's Adm. Rep. 38 (w.). See Reports I)(^hm, 471 (w.) Domat, 1 {n.\ 9 («.), 330 (w.) Dominion, 266. Extinction of, 333 Duck, Arthur, 62 Dumont, C. dipl. 328 (w.) Duvergier, Collection de M. 451 («.) Echelles du Levant, 393 Eclipse, The, 239 Eden's Chancery Reports, 365 (m.) Egan, Charles, 438 (w.), 460 Egypt, its Status, 129. Recent Dispute between Viceroy of, and Sidtan, how arranged, 132 Election, sometimes an indirect Mode of acquiring Territory, 322 Elizabeth, Queen, 210 (w.), 219, 226, 442 Ellenborough, Lord, 441 Elliot's American Diplomatic Code, 164 (w.) Emerigon, 70 Enlistment Act, Foreign, 466, and Appendix, 682 Erbreich, 322 Euripides, 17 (w.) Everett, Mr., Letter about Slave Trade, 363 Exchange of Territories, 317 Exchange, Case of The, 398, 400 Exmouth, Lord, ordered to procure a general Abolition of Christian Slavery in Barbary, bombards Algiers, 345 Extradition, Law and Obligation of, 437. Circumstances occurring in cases of, 443. List of Treaties relating thereto, 437- 460. Act relating to, 462 Fijelix, 378 (m.), 381 {n.\ 382 (««.), 383 (w.), 441, 443, 448, 450, 451, 452, 464, 455, 456 Farrinacius, 35 (w.), 415 Fenelon, 481 («.), and Appendix Fergusson on Divorce, 366 (w.) Ferrand, 471 (w.) Ferreira, Pinheiro, 5 Feuerbach, Lehrbuch, 386 (w.) Fisheries, 234 Flassan, 227 0?.), 471 Fleury, 516 («.) Foreigner, Right of Jurisdiction over, 385, 391 Forsattning, The, Swedish Vessel, 407 Foster, 21 («.) Francis I., 484 Frankfort-on-the-Maine, 1 1 Frankfort, Diet at, 1832, 145 Fugitive, Reception of. See Demosthenes, 444 G Gail, 35 Garden, De, Traite de Diplomatic, 188 (w.), 220 {n.\ 242 (w.), 336 (w.), 481 (w.) Gazette, The Shipping and Mercantile (of July 27th, 1853), 424 Ga;g^etteer of the World, 110 Genoa, Delivery of, to Sardinia, 313 636 INDEX. Gentilis, Albericus, 31 (».)» 43 (n.), 84 (;».), 85 (».). 209 («.). 210, 262 (w.) Gentz, Von, 471 (».), 474, 481 (w.), 488 (n.). 489 (w.) Gibbon, 80 (w.), 616 Globe, The (Newspaper), 612 Godolphin, Admir. Jurisdiction, 419 (n.) Gothofred, Jac, De famosis Latronibus in- vestigandis, 416 (n.) Grant, Sir William. 73, 348 Greece, 1 7. Intervention in Affairs of, 476, 478, 481 Greeks, 1 6. Constitution and Territory, 117 Greenland, 228, 230 Grenville, Lord. Speech upon the Motion for an Address to the Throne approving of the Convention with Russia in 1801, 46, 644, 213. Answer to M. Chauvelin, 263. Dismissal of M. Chauvelin, 260. Debate on Blockade of Norway, 312 (%.), 470 {n.) Grotius, De Jure Belli et Pacis (Prolegomena.) Sect. 1 page of this vol »» * • >> i> Grotiup, De Jure Belli et Pacis {continued Li j> 18 „ „ » 19-25 „ „ „ 23 „ „ „ 25 „ „ „ 32 „ „ „ 40 „ „ „ 41 „ „ M 46 „ „ Lib. L c. i. 1 L e. i. 14 L c. iii. 6 I. c. iii. 7 L c. iii. 7, s. 2 L c. iii. 21, ss. 10, 11 L c. iii. 21, s. 3 L c. iii. 21, 22 IL c. i. 22 II. c. ii. 2, s. 5 II. c. ii. 6 lie. ii. 11 IL c. ii. 12 II. c. ii. 12, 14 IL c. ii. 13, s. 6 II. c. iii. 6 IL c. iii. 7, 12 II. c. iii. 8 IL c. iii. 10, s. 3 IL c. iii. 13, 8. 2 II. c. iii. 16 IL c. iii. 16, 17 IL c. iv. II. c. iv. 1 II. c. iv. 6, s. 2 37 1,3,7 466 Praef. 1,3, 61 12 9 30 182 43 13 78, 82 77,81 78, 83 96 94, 98 97 98 642 272 262 190 190 189, 197 262 26 189 238 347 225, 242 211 285 293, 301 304 300 II. c. iv. 4 II. c. iv. 7 IT. c. V. 24, 8. 1 II. c. V. 24, 8. 2 IL c. vi. II. c. vi. 6 II. c. vii. 3 II. c. viii. 36 IL c. viii. 26 IL c. ix. II. c. ix. 3, 8. 1 IL c. ix. 8 II. c. ix. 9 II. c. ix. 10 II. c. ix. 11 II. c. X. II. c. X. 1, 8. 5 II. c. X. 2, 8. 1 IL c. xi. 6, 8. 2 II. c. xiii. 16 II. c. xiv. IL c. xiv. 11, s. 2 II. c. XV. 6, 8. 1 II. c. XV. 7, s. 1 II. c. XV. 8-12 II. c. xvi. 16 II. c. xvii. IL c. xvii. 19 IL c. xvii. 19-29 IL c. xvii. 20 II. e. xviii. 4, s. 2 IL c. xviii. 2 II. c. xviii. 4, s. 6 II. c. xviii. 7, s. 1 II. c. xviii. 1, 2, 3 II. c. XX. 28 II. c. XX. 40 II. c. xxi. II. c, xxi. 5 II. c. xxi. 3, 4, 5 II. c. xxii. 16 IL c. XXV. 8 III. c. i. 1 III. c. ii. 1 III. c. ii. 2, s. 2 III. c. iii. 1, 2, 3 in. c. iv. 10, s. 2 III. c. iv. 15 III. c. iv. 19 III. c. V. 2 III. c. vi. 3 III. c. vii. 6, 8. 2 III. c. vii. 9 III. c. ix. IIL c. ix. 1, 4 III. c. ix. 9 IIL c. ix. 16 333, :v.\:i 38, 377 2U 31(1 272, 27 i 324, s:v.; 1(3 'J 80, 171 41 I 847 411 411 '20 81 8, 47 2.V s. 2 41 : 4;;: ]«;; 376 347 347 348 83, 84, 410 347 347 344, 347 27 39 39 27. 39, 344 337, 338 34 333 411,420 INDEX. 637 jrotius, Do Jure Belli et Pacis {continued) : Lib. XI. c. viii. 2 2 Mare Liberum, 210, 219 Epistolfe, Ep. 546, p. 920, Prsef. Gruizot,Dela Democratic en France, 177 {n.) Hist, parlementaire de France, 611 Memoires, 87, 92, 122, 397 Gulhane, Hatti-Sheriff of, 130 Gunther, 186, 209, 235, 238,276, 285, 310, 317, 319, 320, 322, 323, 324, 328, 330, 333, 340, 376, 377, 378, 379, 382, 398, 404, 481 Iceland, 228 India, 23 Injunction, 463 Institutes. See Eoman^Law Interdict, 463 Intervention justified on the Grround of Self-Preservation. 312. Chapter upon the Doctrine of, 463 Inviolability, Territorial, 187 Ionian Islands, Judgment as to their Status in Admiralty Court, 100 Isoerates, Orat. Archidam. 299 (n.) Haggard's Admiralty Reports, 364 («.) Hale, Pleas of the Crown, 260 {n.) Hamburg, 110 Hannibal, 7 Hansard's Parliamentary Debates, 444 (w.), 446 ill.), 494 {n.) Hanseatic League, 110. Towns, 228 Hatti-Sheriff, 1856, 61 Heath, Mr. Justice, 442 Hedges, Sir Charles, Judge of the High Court of Admiralty in 1696, Charge on Trial of Joseph Dawson, 415 Heffters, 94, 99, 166, 167, 179, 187, 212, 235, 242, 243, 255, 286, 305, 309, 328, 329, 333, 340, 377, 378, 391, 397, 398, 441, 443, 464 Heineecius, 23 {%.), 34 (w.), 267, 310 (w.), 334 (#.), 338 Henry VII., Patent to John Cabot, 2S9 Herodotus, 392 Hertslet's Treaties, 91, 102, 104, 110, 115, 132, 161, 195, 352, 395. For Treaties on Extradition, see Extradition Hindostan, 36 (n.) Hobbes, 2 (w.) Holland, 229, 230 Holstein, Duchy of. See Schleswig Homan, De Delictis Peregrinorum, &c. 386 {%.) Homer, 83 Honduras, British Settlement in, 249. Treaty with G-reat Britain, 51 Hooker, 2 {n.\ 3 {n.\ 4-19 (».), 171 Hovering Acts, 236 Howell's State Trials, the Negro Case, 366, 417 («.), 418 {nil.), 421 {n.). Case of Napper Tandy, 443 {n.) Hubertsburg and Paris, Peace of, 203 Iluberus, De Conflictu Legum, 35, 385 Hume's History, 221. Essays, 483 Hyder Ali, 23 {n.) James I. succeeds to the Throne, partly by the Nomination of Elizabeth, and partly by Right of Descent, 325 James II., Power after Abdication of com- missioning Privateers denied, 428, 436 •Japan. See Orders Jenkins, Sir Leoline, 85 {n.), 220, 222, 239. Letter to Sir "William Temple on Natu- ralization, 380, 393 {71.). Law relating to Piracy : Letter to Mr. Secretary "William- son, 412. Charge within the Cinque Ports relating to ditto, 413 ; at Old Bailey, ditto, 414 {n.), 437 Jonkinson, Mr., afterwards Lord Liverpool, 20 {n.) Johnson, Dr., Thoughts on Transactions relating to the Falkland Isles, 288 {n.), 290 {n.) Johnson's American Reports, 1 79 {n.) Jurisdiction, Territorial, over Persons, either Subjects or Foreigners, 376, 390. Civil, over Foreigners, see Comity. Ex- ceptions to the Territorial Right of, 392, 410. Right of, 412 Jus Feciale, 1 7. Jus Grentium and Jus Civile, 267 ^ Justice, Principles of International, when binding, 23 Justinian, 266, 294 Kaine, Case of, 460 Kaltenborn, "V^olkerrecht, 5 {n.), 9 {n.), 76 {n.), 77 {n.), 184 {n.) Kant, 75 {n.) Kent, Mr. Chancellor, 58, 63, 176, 179, 235, 239, 384, 409, 411, 413, 437, 440, 441, 444, 468 Kenyon, Lord, 447 638 INDEX. Klinkhammcr, 481 Kliiber, 39, 94, 100, 168, 235, 262, 273, 28a, 328, 329, 332, 386, 399, 408, 425, 443, 452 Kluit, 440, 453 (nn.) Koch, 47, 48, 119, 112, 125, 151, 194, 231, 318, 319, 320, 321, 323, 332, 335, 336, 351, 471, 483, 484, 486, 488 Lamartine, M. de, 173, 470 Lamberty, Memoires, Praef. Lanfrey, Hist, de Napoleon I. 470 Lapse of Time, Effect of, 300 Law, International, Private and Public distinguished, 2, 3, 10, 11, 12, 13 Legal Means of two Kinds, via amicabili, via facti, 12. Of War, 13 Leibnitz, 33 Limburg, Duchy of, 147 Lincoln, Mr., Speech of, as to Slavery, 374 Livy, 7 (m.), 9 {n.), 17 {n.), 18 Loccenius, 35 («.) London, Treaty of, 108, 115 Lorenzo el Real, Treaty of, 192 Louis XIV., 221 Louis, The, 38 Louisiana, 320 Lubeck, 110, 228 Lucan, 490 Lushington, Dr., 105, 421, 424 Luxemburg, Duchy of, 146, 497 Lyndhurst, Lord, 445 M Mably, Droit public, 54, 89, 120, 172, 178, 256, 306, 315, 334, 335, 481, 490 Mackeldey, 264 {%.), 330 {n.) Mackintosh, Sir James, 28, 63. Speech on Blockade of Norway, 312, 447, 471, 478, 481, 487 Malet, Sir A., Overthrow of G-ermanic Confederation, 49, 148, 150 Manning, Law of Nations, 464 Mansfield, Lord, 64 Marine Ordinances, Effect of, on Interna- tional Law, 53 Maritime Law, Declaration respecting, 1856,49 Marque, Letters of, 425 Marriage frequently a Mode of acquiring Territory, 323, 324 Murseiilos, Tribunal correctionnel at, 407 Marshall, Chief Justice, Judgment of (in Case of Antelope). 81 («.), 405 Martens, De, and Do Cussy, 121, 123, 124 («».), 137 ('^/.), 138 (w.), 139 (w.), 151 (w.), 191 (w.), 198 (w.), 216 (w.), 231 (w.), 236 in.), 243 (w.), 345 (w.), 346 (w.), 351 (w.), ' 352 {%.), 353 {n.). Traite des Noirs, 358 (w.), 359 (?m.), 360 (w.), 404 (n.), 448 (w.) \ Martens, De, Droit des Gens, 99 (w.), 209 {n.). Des Mers adjacentes, 225, 238, 253, 262, 278, 437, 438. De I'Extra- dition d'un Criminel, 431, 444, 481. Trait^s, 89, 102, 104, 124, 165, 138, 144, 151, 198, 202, 250, 290, 310, 313, 318, 328, 333, 386, 448. 449. Nouvcau Recueil, 454, 472, 494, 507, 513, 520. For Treaties on Extradition, see Extra- dition. Causes celebres, 195, 229, 230, 231, 371, 444. Merkwiirdige Falle, 443 Masse, Le Droit commerciel, 262. Le Devoir des l^^trangers, 386 {n.), 406 (w.), 407 (w.), 408 Mayence, Treaty of, 202 Maximilian, Emperor of Mexico, 509 Merlin, Rep. de Jurispr. 15 (w.), 153 (??.), 398 {n.). Questions du Droit, 439 {n.) Mexico, 1861, 507 Michaelis, Mosaisches Recht, Praef Miltitz, 87 (w.). llf> (^'O- Manuel des Con- suls, 392, 394, 395 (w.), 521 (w.) Milton, 482 (w.), 488 Mirehouse v. Rennell, 36 («.) Mississippi, 33, 34, 203 Moldavia, 124 Molloy, 84 Moniteur, cited, 469, 524 (w.) Montenegro, 123 Montesquieu, 14, 21, 172, 391 (w.), 514 [n.) Morality, International, 25 Morocco, 22 (w.), 122 Miihlenbriick, 264 {n.), 333 {n.) Munroe Doctrine, 492 Munster, Peace of, 194, 276 N Nationality, Change effected in, 381 Naturalization, 381, 385. Laws of France relating thereto, 382 Naturalization, American, Act of, 1868. Remarks on, as being contrary to In- ternational Law, 384 Netherlands, United Provinces of, 151 Neufchatel, Principalities of, 153. Becomes a member of the Helvetic Confederation, 96 (w.) Neutrality Laws Commission, 1867, 467 Newfoundland Fisheries, 231 Newton, The, Case of, 407 ' INDEX. 639 m, 11 («.) ua Treaty, 51 Cession of, 1860, 505 eguen, Treaty of. Art. XIV., referring 'Exchange of Territory, 317 'la Sound, 213. Convention, 215, 290 ray, forcible Annexation of, to Sweden, ipation, 285 tteda (Von), Litteratur des Volkerrechts, («.), 305 (n.), 332 (w.), 542 mheim, 54 (n.), 94 (w.) lers in Council relative to British Sub- jects in Turkey, China, Japan, and Zanzibar, 395. To Piracy. 424 )regon Territory, Maxims of America upon, 270, Question, 286 (n.) )rtolan, Eugene, 190 (n.). Des Moyens d'acquerir le Domaine international, 264, 285, 291, 294, 310, 311, 481. Diplo- matie de la Mer, 61, 285, 242, 394, 398, 401, 404, 406, 407, 408. The French Ordonnance cited by, 409. Des Pirates, 411 («.), 413 (n.), 426 (n.), 438 (n.) )ttoman Empire. See Turkey )ude. Annexation of, 558 \'ipers relative to the Rights of Liberated Africans, &c. 385 («.). See State Papers 'arana, River, States of, 209 l?ardessus, 54 *aris, Treaty of, 25 (w,), 199, 231,320, 321. In 1814, 351. In 1856, 48, 51, 92, 491, 609 ?a.seal, Pensees, 25 (n.) ?aul I., Emperor of Russia, Libel upon, 447 Peltier (Jean), Case of, 447 Philipson, Schip is territoir, 405 (n.) Phillimore (Dr.), 61 (n.). Preface to Sir G. Lee's Reports Phillimore (R.), Pamphlet on Armed In- tervention on the ground of Religion, 126 («.), 515, «&c. Letter to Lord Ash- burton, 259 (n.), 515 (n.) Piracy, Authorities from Civil Law, from Jurists, from Statute and Common Law, and Commentators thereon, cited by Judge of Vice-Admiralty Court, Charleston, List of, 411 (n.) Pirates, Case of Magellan Pirates, 421, 432, 437 Plato, 17 (w.) Plutarch, 17, 211 Poland, Condition of, under the Treaty of Vienna, 94, 95. Election of Duke Jagello and Acquisition of Litthauens, 322. Maintains tlie Freedom of Slaves, 372. Partitions of, 39, 471, 474. Present Condition of, 95 (w.) Polybius, 151 (?;.), 483 Pompey, 18 Pope, the. Grants of, 272, 287, 296. Pro- testing against all Treaties recognizing the Confiscation of Church Property at or since the Reformation, 335. Papacy, peculiar International Status of, 530 Portalis, Code civ. 386 (n.) Porte, Ottoman, 22 (».). Concessions by, to the British Crown, 394. For Interven- tion in the affairs of, see Intervention Portugal : Portuguese Rebels, 255. Cedes to Spain Annobon and Fernando Po, 319. Treaties with Great Britain, acknow- ledging the Necessity of suppressing the Slave Trade, 353. For Intervention in Affairs of, sec Intervention Possession, 264. Three species of, 266 Postliminium, Doctrine of, 301, 337, 338 Pothier, 63, 71 Power, Balance of. See Intervention Prague, Treaty of, 49, 149 Prescription, 293, 308. Immemorial, 295. Abolished in France and Austria in Pri- vate Law, 298. Indispensable in Public Law, 298. International, 300. List of Authors in favour of placing it in the System of International Law, 301 Pretender. The, 256 Prevost-Paradol, "La France nouvelle," 510 Privateer, 425. Law laid down in America, Cases relating thereto. List of, 426 (n.). See James II. Prize Courts, Decisions of, their Effects upon International Law, 54 Proclamations, Effect of, on International Law, 53 Property, 264. May be taken by an Act of Law, by Conquest, may become extinct, 341 Prussia, 39. Acquisition of Part of Saxony by, 327. Of Schleswig-Holstein, 148. Secret Treaty with Bavaria, Baden, Wurtemberg, Hesse-Darmstadt, 1867, 150 Puchta, 2, 3 (n.), 4 (n.), 18 («.), 264 (??.), 330 (n.) Puffendorf, 2 (w.), 177, 191, 210, 224. Jus Nat. et Gent. 293 (n.). De Usucapiono, 303, 311. De Success, ab Intestato. 325, 339. 440 640 INDEX. Punishment, Mistake respecting the Lia- bility of Nations to, 6 Puttlingen (De), 462 Q Queen, The, v. Carlin, 466, 570 Queen, The, v. Clinton, 460 R Eecuperatio, 18 Recuperatores, 18 Eeiffenstuel, 24 (n.) Renvoi, Right of, 437 Reports. See List of, at the beginning of this Volume Review, Edinburgh, 444, 471 Revue ^trangere, 450 Review, Foreign Quarterly, 481 Bhine, its Free Navigation, 199 Ridley, View of Civil Law, 419 Rights, 3. International Public, 10. In- ternational Private, 11,12. Of Neutrals, 12. Of Belligerents, 12. Of Indepen- dence and Equality, 184. To a Free Choice of Government. 184 Rivers. Chap. V., 189 Robbins, Case of, 380 Robinson' s Admiralty Reports. See Reports Rocco, Deir Uso delle Leggi delle Due Sicilie, 387 (n.) Roman Law. Page Digest, Lib. 1. 1. i. 2 2 » I. t. i. 6 3 n 1. 1. i. 9 4 »» Lt. iii. 12 36 u L t. iii. 14 47 Jt L t. iii. 27 36 1, 1. 1. iii. 32 36 1. 1. iii. 41 264 J^ 1. 1. viii. 5 189 t> II. t. i. 20 391 » III. t. iv. 1, ss. 1, 2 2 ni. t. V. 6, s. 9 269 >1 V. t. i. 76 1, 169 IS VII. t. i. 66 1 VIII. t. i. 15 330 ft Vm. t. iv. 13 212 if IX. t. ii. 23 71 Xni. t. i. 8, s. 1 71 » XIIL t. iii. 1 69 ), XVII. t. ii. 23 31 XVIII. t. vi. 70 ,^ XXin. t. iii. 43, s. 1 316 » XXIX. t. ii. 334 Roman Law (continued) : Page Digest, Lib. XXXIX. t. i. 5, 7 330 XXXIX. t. ii. 463 XXXIX. t. iii. 463 XXXIX. t. iii. 1, s. 22 329 XXXIX. t. iii. 2 295, 302 „ XXXIX. t. iii. 24, 26 295 „ XLI. t. i. 9, s. 3 315 XLL t. i. 20, s. 1 316 XLL t. i. 9, 8. 5 316 XLL t. i. 31 316 „ XLI. t. i. 7. 29, 30, 56, 65 282 „ XLI. t. ii. 1, s. 1 268 XLI. t. ii. 1 265 „ XLI. t. ii. 3, s. 1 274 „ XLL t. ii. 8 267, 333 XLL t. ii. 17, s. 1 266 „ XLI. t. ii. 18, s. 2 316 XLL t. ii. 18 265 XLI. t. ii. 23, s, 2 342 XLL t. ii. 34 266 „ XLI. t. ii. 41 265 XLL t. iii. 294 „ XLI. t. iii. 1 302 XLIII. t. vii. 3 294 XLIIL t. xii. 1, s. 7 282 XLIII. t. xvi. 1, s. 9 265 „ XLIIL t, xvi.l,s. 14 269 XLIII. t. xvi. 4 7 XLIII. t. xvii. 2 265 „ XLIII. t. xvii. 3, s. 8 265 XLIII. t. xvii. 265 XLIII. t. XX. 3, s. 4 295 XLIII. t. xxvii. 465 XLIII. t. xxviii. 463 XLVI. t. i. 334 XLVI. t. i. 22 2 XLVL t. iii. 12, s. 4 269 XLVI. t. iii. 79 316 XLVI. t. iv. 540 XLVI. t. vi. 9 187 XLVII. t. ii. 44, 9 338 XLVIL t. ii. 51 71 XLVII. t. iii. 463 XLIX. t. iv. 7 98;' XLIX. t. xiv. 11 336 XLIX. t. XV. 19, s. 2, 41 1, 420 XLIX. t. XV. 21 411 „ . XLIX. t. XV. 24 420 L. t. xvi. 49 187 „ L.t. xvi. 90, 169, 330 L. t. xvi. 118 411 L.t. xvi. 125 336: L.t. xvii. 17 540 L.t. xvi. 178,208,222, 187 L. t. xvii. 136 339 L.t. xvii. 153 333; L. t. xvii. 162 47 INDEX. 64^ lan Law (continued) : Codex, Lib, I I II 11. IIL t IV. t IV. t t. iy. t. xvii. 2, t. iii. 20 t. xxix. xxxiv. i. 2 xlviii. 18 VII. t. XXV. 1 VII. VII. VII. VII. VII. VII. VII. IX. IX. X. t. XXXI. xxxiii. xxxiv. XXXV. xxxviii. xxxix. xli. iii. li. 13 xxxii. 46 Page 62 36 315 2 330 77 70 266 294 294 294 294 294 294 282 62 62 309 Institutiones, Lib. 1. 1. viii. 2 463 „ I. t. xii. 6 337 IL t. i. 1, 2 189 II. t. i. 1, 5 34, 189 IL t. i. 17 343 ILt.i. 20, 21282,284 IL t. i. 42 316 II. t. iii. 330 IL t. vi. 265, 294 III. (de Legit. Aguat.) 26 „ IV. t. iii. (de Lege Aqui.) 71 Romans, Epistle to the, 16 Eome, 17 Eossi, Case of Ambassador accredited to his Native Country, 397 Eottcck, Staats-Ijexicon, 470 Russell on Crimes, 389 (?z.), 409 (%.), 412 Russia, 21. Manifesto of Great Britain to, 45. Claims Sovereignty over Pacific Ocean, 241 Rutherforth, 168 (w.), 285 {n.), 310, 440 (%.) R^-mer's Fcedera, 216, 228 Ryswick, Peace of, in 1697, 340 Rulhi^re, Hist, de Pologne, 471 S ', Saalfeld, 443 {n.) iSallust, 18, 99 {n.) Sally, The, Case of, 409 San Lorenzo el Real, Treaty of, 192 San Marino, 110 Santa Lucia, Dispute between France and ! England respecting, 308 jSavigny, 2, 3 (w.), 5 (w.), 6 (nn.), 25 («.), I 36(%.),42(w.), 171, 264 (??.), 294 (w.), 296 ! {n.), 298, 309 (w.), 310, 330 {n.), 541 I Savoy, Cession of, 1860, 505 ! VOL. 1. T Saxony, 39. King of, publishes a Protest against the Dismemberment of his King- dom, 336 Scheldt, closed to the Belgian Provinces, 195 Schilling, Pandekten-Recht, 330 Schlegel, 216. SUiatsrecht Diinemark, 225 Schleswig, Duchy of, 146. Cession of, in 1864, 148 Schmalzgrueber, 24 (n.), 296 Schmauss, 154 (n.), 276 (n.), 290 (n.), 317 (n.), 320 (w.), 328 {%.), 341 (n.), 518 (n.), 522 (nn.) Scott, Sir William, 59 Sea, North, 216. Narrow, 217. Portions of, 235. Near the Coast, 235. Land- locked, 241, 242. Caspian and Black Sea, 243. The Baltic, 215, 243 Search, Right of, 56, 353 Sedan, Defeat of the French, 1870, 468 Selden, Mare Clausum, 210, 219, 413 (n.) Self-Preservation, 252, 261 Sell,DieRecuperatioderRomer, 542,543, 544 Seneca, 19 (w.) Servia, 127 Servitus, Doctrine of, 330 (as to Places). Negative and Affirmative, 331. Exem- plified by Treaties, 332 Ships, Foreign Ships of War, 398. Foreign Ships of Commerce, 398 Sierra Leone, 386 Slaves and Slave Trade, 342. Abolition of, as a Principle of Public Law, formally adopted at the Congress of Vienna in 1815, Aix-la-Chapelle in 1818, Verona in 1822, 358. Placed in the Category of Piracy in 1842, 359. Catalogue of Treaties relating thereto between Great Britain and other States, 360. Report of Com- mittee of House of Commons upon, 361. Illegality of, according to Municipal Law, 364. English Cases upon, 365, 369. French, 370, 371. Polish, 373 Slave Trade abolished in United States, 1865, 374 Smith (Sir Thomas), Commonwealth of England, 344 (n.) Soledad, Treaty of, 1862, 507 Somersett (The Negro), 365 Sophocles, Antigone, 16 (».) Sound Dues, 216 Sovereigns, 10 Spain, 33. Negotiations with the United States respecting Louisiana, 281. Its Dominions parcelled out in 1700, 316. Treaty with Great Britain relative to the Continuance of the Slave Trade, 352. For Quadruple Alliance in 1834, see In- tervention 642 INDEX, Spelman (Sir Henr}') on the Use of the Word "Pirat In General. Grant... 21 Costs, Law of. Gray ... 3(V County Courts. Davis 5 Equity and Bankruptcy. Davis 5^ Criminal Law. Davis 3."i Oke 23 Curates. Field 39 Deeds. Tudor 1'; Descents. Fearne ... 3S Digest, Bous,' Lords Cases. Clark M Dictionarv, Law. Mozley & Whiteley ... 14 DiA'orcc. Practice. Browning ... 22 Domestic Servants. Baylis 8 Draftsman (The) Kelly (r Drainage. Woolrych... 21 Easements. Latham ... U Ecclesiastical, Practice. Coote 30 Judgments. Burder f. Heath ... 39- Gorlmmr.Bp.of Exeter 39 Hebbertr. Purchas ... 89 Long V. Cape Town ... 39 Martin r. Mackonochie 39 Westerton f. Liddell ... 39- Election, Law. Davis 22 England, Laws of . Blackstone... 4 Stephen ,. 4 English Bar. Pearce ... 3f> Smith ... 33 Equity, Doctrine and Practice of. Goldsmith ... ..". 15 Draftsman. Lewis ... 15 Equity and Law. Chute 17 Pleader. Drewry ... 21 Suit in. Hunter ... 10 See Chancery. Evidence, Circumstantial. Wills 27 County Court. Davis r> Indian. Field ... 33 Law of. Powell ... 40 Wills. Wigram ... 32. Examinations. Preliminary. Ben ham ... IC, Ziy Journals ...31, 34, 35 Intermediate and Final. Mosely 20- Fences. Hunt lo Fisheries, .Sa/mo/z. Bund 12 Oke 23- Foreshores. Hunt 10^ INDEX TO CATALOGUE. Porms, Conveya/icih J. Barry... 14 Crabb... 19 Rouse 11 Coioitij Courts. Davis 5 Magisterial, Oke ... 23 Probate. Chadwick 25 Frauds. Hunt 29 Friendly Societies. Brabrook 11 Gains' Roman Law ... so Game Laws, oke ... 23 TradesLnions. Brabrook 11 Treaties. Hertslet ..27 Trusts, Charitable. Tudor 17 Turnpike Laws. Oke 24 Vendors & Purchasers. Seaborne 14 Water Companies Acts 29 Waters. Hunt 10 Wills. Coote 25 Crabb 19 Rouse ; 11 Tudor IG Wigram... . 32 Collier 5 Winding-up. Grant ... 8 Shelford 7 Window-Lights. Latham 17 Wrongs. Underhill ... 6 LAW WORKS PUBLISHED BY Stephen's Blackstone's Commentaries. Seventh Pidition. i vols. 8vo., U. -is. cloth. MR. SERJEANT STEPHEN'S NEW COMMENTARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. The Seventh Edition. By James Stephen, Esq., LL.D., Judge of County Courts ; late Professor of English Law at King's College, London, and formerly Recorder of Poole. This Edition embraces the Legislation of 1873, including the provisions of the Supreme Court of Judicature Act, 1873. J'rom till' Laic Joiirmil, I'i'h. -Jlst, 1874. *« We entertained no doubt in 1SC8 that the approbation accorded theretofore to the father would not be withheld from the son, whose name had already been connected with the Work, and whose eminence as a lawyer was an absolute guarantee that no falling otf would be detected in knowledge, accuracy, diction or method. The event has shown that this expectation was well founded, and we cordially welcome the Seventh Edition of this noble and famous Work. " It is unnecessary for us on this occasion to repeat the eulogy which six years ago we bestowed, not witliout just reason, on the Commentaries as they then appeared. It has been remarked that Stephen's Commentaries enjoy the special merit of being an educa- tional work, not merely a legal text book. Their scope is so wide that every man, no matter what his position, profession, trade or employment, can scarcely fail to find in them matter of special interest to himself, besides the vast fund of general information upon ■which every Englishman of intelligence may draw with advantage." From the ^'Solicitor's Journal, Feb. 21i-;, 1874. "A Work which has reached a Seventh Edition needs no other testimony to its use- fulness. And when a law book of the size and costliness of these ' Commentaries' passes through many editions, it must be taken as established that it supplies a need felt in all branches of the profession, and probably to some extent, also, outside the profession. It is difficult indeed to name a law book of more general utility than the one before us. It is (as regards the greater part) not too technical for the lay reader, and not too full of detail for the law student, while it is an accurate and (considering its design) a singularly comijlete guide to the practitioner. This result is due in no small degree to the mode in which the successive editions have been revised, the alterations in the law being concisely em- bodied, and carefully interwoven with the pre- vious material, forming a refresTiing contrast to the lamentable spectacle presented by cer- tain works into which successive learned editors have pitchforked headnotes of cases, thereby rendering each edition more uncon- nected and confusing than its predecessor. As the result of our examination we may say tliat the new law has, in general, been accu- rately and tersely stated, and its relation to the old law carefully pointed out." From the Late Time.-!, Jan. ">lsl, 1874. "We have in this Work an old and valued friend. For years we have had the last, the Sixth Edition, upon our shelves, and we can state as a fact that when our text books on particular branches of the Law have failed us, we have always found that Stephen's Commen- taries have supplied us with the key to what we sought, if not the actual thing we required. We think that these Commentaries establish one important proposition, that to be of thorough practical utility a treatise on English Law cannot be reduced within a small compass. The subject is one which must be dealt with comprehensively, and an abridgment, except merely for the purposes of elementary study, is a decided blunder. " Of the scope of the Commentaries we need say nothing. To all who profess acquaintance with the English Law their plan and execution must be thoroughly familiar. The learned Author has made one conspicuous alteration, confining 'Civil Injuries' within the compass of one volume, and commencing the last volume with 'Crimes,' — and in that volume he has placed a Table of Statutes. In every respect the Work is improved, and the present writer can say, from practical experience, that for the Student and the Practitioner there is no better Work published than ' Stephen's Commentaries.'" From the Law Examination Journal, Easter Term, IS 74. " What Bacon's works are to philosophy, Blackstone's Commentaries and Stephen's Commentaries, founded on Blackstone, are to the study of English Law. For a general survey of the entire field of English Law, or, at least, for a comparative survey of diflerent branches of law, Stephen's Commentaries are unrivalled ; and we may observe that these Commentaries should not be used merely as a book of reference, they should be carefully studied." Fulton's Manual of Constitutional History. One vol. post 8vo., Is. Gd. cloth. A MANUAL OF CONSTITUTIONAL HISTORY, founded upon the Works of Ilallam, C'reasy, May and Broom, comprising all flic fimdamental principles and tlie leading cases in Constitutional Law. By Forrest Pulton, LL.B., B.A., University of London, and of the Middle Temple, Esq., Barrister-at-Law. "This work is in size and object in com- petition with Creasy's treatise, but while Sir Edward Creasy is sometimes original, and always philosophical, Mr. Fulton's, for prac- tical information, and for student's purposes, is by far the best Manual of Constitutional History with which we are acquainted." — Irish Law 2'imcs. " Mr. Fulton has compiled a Manual of Con- stitutional History to aid beginners in their studies; the extracts he has given from his authorities appear to be well chosen." — Dailif ^Vl:lCS. o- MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. Collier's Law of Contributories. Post 8vo. cloth. A TREATISE ON THE LAW OF CONTRIBUTORIES under the Joint Stock Companies Winding-up Acts. 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" We are glad to learn that Mr. Davis's work than 3,000 cases are quoted in it, and about 1,000 has been favorably received. 'I'he recent de- sections of statutes. Atorter. Kelly's Conveyancing Draftsman. Post 8vo. THE DRAFTSMAN : contain dents and Forms in Conveyancing; Practical Notes. By James Henht " This is a thoroughly practical book, designed for the solicitor and the student. Mr. Kelly has rightly conceived the duties of a conveyancer ; and his short introductory recommendations should be attentively considered by .nil who are anxious to become safe draftsmen. The author gives a few forms under each heading, confining himself to such as are likely to be of everyday use in the office. This volume ought to be popular, as it combines law and practice,"— /.a:^ Times. " Mr. Kelly's object is to give a few precedents of each of those instiuments which are most com- monly required in a solicitor's oflBce, and for which precedents are not always to be met Avith in the ordinary books on conveyancing. J he idea is a good one, and the precedents contained in the G6\ cloth. ing a Collection of Concise Prece- with Introductory Observations and Kelly. book are, generally speaking, of the character contemplated by the author's design. We have been favourably impressed with a perusal of se- veral of the precedents in this book ; aud practi- tioners who have already adopted forms of their own will probably find it advantageous to collate them with those given by Mr. Kelly. Each set of precedents is prefaced by a few terse and prac- tical observations."- 'So/jciVor.?' Journal. " Such statements of law and facts as are con- tained in the work are accurate." — La'ji Journal. " ft contains matter not found in the more am- bitious works on conveyancing, and we venture to think that the student will find it a useful supple- ment to his reading on the subject of convey- ancing." — LazB Examination Journal, MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. Shelford's Companies. — 2nd Edit, by Pitcaim and Latham. 8vo., 2l5. cloth. SHELFORD'S LAW OF JOINT STOCK COMPANIES; containing- a Digest of the Case Law on that subject ; the Companies Acts, 1862, 1867, and other Acts relating to Joint Stock Companies; the Orders made under those Acts to regulate Proceedings in the Court of Chancery and County Courts, and Notes of all Cases interpreting the above Acts and ^Orders. Second Edition, much enlarged, and bringing the Statutes and €ases down to the date of publication. By David Pitcairn, M.A., Fellow of Magdalen College, Oxford, and of Lincoln's Inn, Barrister at Law; and Francis Law Latham, B.A., Oxon, of the Inner Temple, Barrister-at-Law, author of " A Treatise on the Law of Window Lights." " We may at once state that, in our opinion, the merits of the work ai-e very ftreat, and we confi- dently expect that it will be at least for the present the standard manual of joint stock company law. That great learning and research have been ex- pended by Mr. Pitcairn no one can doubt who reads only a few pages of the book ; the resujt of each case whichnas any bearing upon the subject under discussion is very lucidly and accurately stated. We heartily congratulate him on the appearance of this work, for which we anticiv)ate a great suc- cess. There is hardly any portion of the law at the present day so important as that which re- lates to joint stock companies, and that this work will be the standard authority on the subject we have not the shadow of a doubt."— Xaw Journal. " After a careful examination of this work we are bound to say that we know of no other which surpasses it in two all-important attri- butes of a law book : first, a clear conception on the part of the author of what he intends to do and how he intends to ti-eat his subject; and secondly, a consistent, laborious and intelligent adherence lo his proposed order and methoQ. All decisions are noted and epitomised in their proper places, the practice-decisions in the notes to Acts and Ivules, and the remainder in the introductory account or digest. In the digest .Mr. Pitcairn goes into everything with original research, and nothing seems to escaiie him. It is enough for us that Mr. Fitcairn's performance is able and exhaustive. JSI othing is omitted, and everything is noted at the proper place. In con- clusion we have greatpleasure in recommending this edition to the practitioner. Whoever ))os- sesses it, and keeps it noted up, will be armed on all ])arts and points of the law of joint stock companies."— -S'o/i'fJWri' Journal. " Although nominally a second edition of INIr- Shellbrd's treatise, it is in reality an original work, the form and arrangement adopted by Mr. Shelford have been changed and, we think, im- proved by Mr. Pitcairn. A full and accurate in- dex also adds to the value of the work, the merits of which, we can have no doubt, will be fully re- cognized by the profession." — Laro Magazine. " This book has always been the vade mecum on company law. and will, apparently, long con- tinue to occupy that position. It is perhaps even more useful to the legal practitioner than to the man of business, but still it is the best source of iiiformation to which the latter can go."— /'*«««- cier and Money Market Review. Bainbridge's Law of Mines and Minerals. — 3rd Edit. Svo., 30s. cloth. A TREATISE on the LAW of MINES and MINERALS. By William Bainbridge, Esq., F.G.S., of the Inner Temple, Bairister at Law. Third Edition, carefully revised, and much enlarged by additional matter relating to manorial rights — rights of way and water and other mining- easements— the sale of mines and shares — the construction of leases— cost book and general partnerships — injuries from undermining and inundations — barriers and working out of bounds. With an Appendix of Forms and Customs and a Glossary of English Mining Terms. "When a work has reached three editions, •criticism as to its practical value is superfluous. We believe that this work was the first pub- lished in England on the special subject of mining law— others have since been published — butwe see noieason in looking atthe volume before us to believe that it has yet been super- seded." — Law Magazine. " Mr. Bainbridge was we believe the first to collect and publish, in a separate treatise, the Law of Mines and Minerals, and the work was so well done that his volume at once took its place in the law library as the text book on the subject to which it was devoted. This work must be already familiar to all readers whose practice brings them in any manner in con- nection with mines or mining, and they well know its value. We can only say of this new edition that it is in all respects worthy of its predecessors." — Law Times. " It wouldbeentirely superfluous to attempt a general review of a work which has for so long a period occupied the position of the standard work on this important subject. Those only who, by the nattire of their prac- tice, have learned to lean upon Mr. Bainbridge as on a solid staff', can appreciate the deep re- search, the admirable method, and the grace- ful style of this model treatise."— Z/«ec-Jo«/vd. sewed. "The best test of the value of a book written reader a sort of bird's-eye view of each instru- professedly for practical men is the practical one of the number of editions through which it passes. The fact that this well-known work has now reached its third shows that it is con- sidered by those for whose convenience it was written to fulfil its purpose well." — Laic Mar/azine. ♦'This is the third edition in ten years, a proof that practitioners have used and ap- proved the precedents collected by Mr. Rouse. In this edition, which is greatly enlarged, he has for the first time introduced Precedents of Wills, extending to no less than 116 pages. We can accord unmingled praise to the con- veyancing memoranda showing the practical ef!ect of the various statutory provisions in the different parts of a deed. If the two preceding editions have been so well received, the wel- come given to this one by the profession will be heartier still." — Law Times. " So far as a careful perusal of Mr. Rouse's book enables us to judge of its merits, we think that as a collection of precedents of general utility in cases of common occurrence it will be found satisfactorily to stand the application of the test. The draftsman will find in the Practical Conveyancer precedents appropriate to all instruments of common occurrence, and the collection appears to be especially well supplied with those which relate to copyhold estates. In order to avoid useless repetition and also to make the precedents as simple as possible, Mr. Rouse has sketched out a num- ber of outline drafts so as to present to the ment and show him its form at a glance. Each paragraph in these outline forms refers, by distinguishing letters and numbers, to the clauses in full required to be inserted in the respective parts of the instrument, and which are given in a subsequent part of the work, and thus every precedent in outline is made of itself an index to the clauses which are neces- sary to complete the draft. In order still further to simplify the arrangement of the work, the author has adopted a plan (which seems to us fully to answer its purpose) of giving the variations which may occur in any instrument according to the natural order of its different parts." — Laic Jouinal. " That the work has found favor is proved by the fact of our now having to review a third edition. This method of skeleton precedents appears to us to be attended with important advantages. To clerks and other young hands a course of conveyancing under Mr. Rouse's auspices is, we think, calculated to prove very instructive. To the solicitor, es- pecially the country practitioner, who has often to set his clerks to work upon drafts of no particular difficulty to the experienced practitioner, but upon which they the said clerks are not to be quite trusted alone, we think to such gentlemen Mr. Rouse's collec- tion of Precedents is calculated to prove ex- tremely serviceable. We repeat, in conclusion, that solicitors, especially those practising in the country, will find this a useful work." — Solicitors' Journal. Brabrook's Co-operative and Provident Societies. 12mo., 6s. cloth. THE LAW relating to INDUSTRIAL and PROVIDENT SOCIETIES, including the Winding-up Clauses, wath a Practical Intro- duction, Notes, and Model Rules, to which are added the Law of France on the same subject, and Remarks on Trades Unions. By Edward W. Brabrook, F.S.A., of Lincoln's Inn, Esq., Barrister at Law, Assistant Registrar of Friendly Societies in England. " It maybe usefully consulted by practitioners desirous of learning something more upon the subject than is to be found in works on ])artner- ship and joint stock companies. The book is thoughtfully written, and we recommend it to those who desire to learn something practical about the work which these societies are meant to do and the way in which it is to be done."— Solicitors' Journal. " Mr. Brabrook's little work on these societies is opportune, and the statistics and information contained in it are valuable and interesting. There is a chapter devoted to practical advice. in which are contained many valuable and im- portant hints."— -f-aw Magazine. " Mr. Brabrook brings notmerelyofficialknow- ledge of his legal position as the barrister recently appointed to assist Mr. Tidd Pratt, Registrar of Friendly Societies in England, but the devotion of many years to a practical study of our in- dustrial and provident institutions."— Po.ff _ " The author speaks with practical experience and authority."— Oi^errer. *' The clear exposition made by Mr. Brabrook in this volume supplies all the requisite informa- tion, and persons interested in the subject will do well to consult its pages."— xVcw? of the World. 12 LAW WORKS PUBLISHED BY Bund's Law of Salmon Fisheries. Post 8vo., 15s. cloth. The LAW relating to the SALMON FLSHERIES of ENGLAND and WALES, as amended by the Salmon Fishery Act, 1873, with the Statutes and Cases. By J. W. AVillis-Bund, M.A., LL.B., of Lincoln's Inn, Esquire, Barrister at Law, Vice Cliairman Severn Fishery Board. " Doubtless all the law will be found between " There is happily a good and ample index his covers, and we have not been able to detect at the end of the volume. By means of this any erroneous statements. We can recommend the book as adisquisition, — it is conscientiously executed." — Law Times. " Mr. Bund, whose name is so well known to all who take interest in our Salmon fisheries, has lost no time since the passing of the Act of 1873 in bringing out his work on salmon fishery law. That the book, so far as England and Wales are concerned, is a very complete and exhaustive one, no one who knows Mr. Bund's clearness and power of application will doubt. Mr. Bund has done the work excellently well, and nothing further in this way can be desired." — The Field. "This terse and useful summary gives not merely the Salmon Fishery Act of 1873, but the state of the law as left repealed and un- affected by that act, with statutes and cases arising from them. The whole subject is treated exhaustively, and in a manner most satis- factory." — Standard. we have tested the author on various dilKcult points, and we have always found his opinion sound, and his explanations clear and lucid. This volume must of necessity become a hand-book to salmon-fishers in general, and especially to boards of conservators, who will thereby be much assisted in the formation of the new boards of conservators, under the Act of 1873; also the operation of the Acts of 1861 and 1865, as amended by the Act of 1873."— Land and Water. " The author of the work before us has done much to supply the shortcomings of legisla- tion. He has brought to the subject not only a comprehensive knowledge of this branch of the law, but a practical acquaintance with its administration, and the result is a book of considerable merit." — Public Opinion. " We trust it will meet with the notice which the nature of the subject and the ability- of the author deserve." — J'Jcho. Dixon's Law of Partnership. 1 vol. 8vo., 22s. cloth. A TREATISE on the LAW of PARTNERSHIP. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law. Editor of " Lush's Common Law Practice." "It is with considerable gratification that we find the subject treated by a writer of Mr. Dixon's reputation for learning, accuracy and painstaking. Mr. Lindley's view of the sub- ject is that of a philosophical lawyer, Mr. Dixon's is purely and exclusively practical from beginning to end. We imagine that very few questions are likely to come before the practitioner which Mr. Dixon's book will not be found to solve. Having already passed our opinion on the way in which the work is car- ried out, we have only to add that the value of the book is very materially increased by an excellent marginal summary, and a very co- pious index." — Law Magazine and Review. " Mr. Dixon has done his work well. The book is carefully and usefully prepared." — Solicitors' Journal. " Mr. Dixon enters into all the conditions of partnerships at common law, and defines the rights of partners among themselves ; the rights of the partnership against third per- sons ; the rights of third persons against the nartnership ; and the rights and liabilities of individuals, not actually partners, but liable Mr. Justice Lush's Common Law Practice. — Third Edition by Dixon. 2 vols. 8vo., 465. cloth. LUSH'S PRACTICE of the SUPERIOR COURTS of COMMON LAW at WESTMINSTER, in Actions and Proceedings over ■which they have a common Jurisdiction : with Introductory Treatises re- specting Parties to Actions; Attornies and Town Agents, their Qualifica- tions, Rights, Duties, Privileges and Disabilities ; the Mode of Suing, whether in Person or by Attorney in Forma Pauperis, &c. &c. &c. ; and an Appendix, containing the authorized Tables of Costs and Fees, Forms of Proceedings and Writs of Execution. Third Edition. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister at Law. to be treated by third persons as partners." — The Times. " We heartily recommend to practitioners and students Mr, Dixon's treatise as the best exposition of the law we have read, for the- arrangement is not only artistic, but concise- ness has been studied without sacrifice of clear- ness. He sets forth the principles upon which, the law is based as well as the cases by which its application is sh own. Hence it is something, more than a digest, which too many law books are not : it is really an essay." — Law Times. " He has evidently bestowed upon this, book the same conscientious labour and painstaking industry for which we had to- compliment him some months since when, reviewing his edition of Lush's ' Practice of the Superior Courts of Law,' and, as a re- sult, he has produced a clearly written and well arranged manual upon one of the most impor- tant branches of our mercantile law." — Law Journal. " The matter is well arranged and the work is carefully executed." — Athenaum. ■<> MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 13 Bedford's Intermediate Examination Guide for 1874. 2 vols. 8 vo., 14s. 6d. cloth. The INTERMEDIATE EXAMINATION GUIDE: containing a Digest of the Examination Questions on Common Law, Conveyancing and Equity, with the Answers. By Edward Henslowe Bedford, Solicitor, Temple, Editor of the *' Preliminary," " Intermediate" and "Final," &c. Tot. II. of the above Work, price 4s., mat/ be had separately. (The Work appointed by the Examiner in Equity for 1874 is llaynes' Outlines of Equity.) "The author is well known by his useful liable friend." — Law Times. publications in aid of students, and the present " We think we may fairly say that Mr. Bed- one (Vol. II.) well supports his reputation." — ford's Intermediate Examination Guide will ■Law Magazine. prove very useful to candidates for the Law "The students of the elements of law will In&iitniion."— Law Journal. find in Mr. Bedford's Guide a useful and re- Heales^s History and Law of Pews. 2 vols. 8vo., 1G.9. cloth. The HISTORY and LAW of CHURCH SEATS or PEWS. By Alfred Heales, F.S.A., Proctor in Doctors' Commons. " Great pains have evidently been taken in antiquarian proclivities, will be glad to pos- the compilation of this work, which exhibits sess it. For original research and faithful throughout an immense amount of research labour in verifying references no other writer and a careful arrangement of cases and ex- can lay any claim to come anywhere near tracts," — Law Magazine. Mr. Heales. The author deserves particular "The work deserves a place in all public commendation for the conscientious labour libraries, and doubtless many practitioners, with which he has traced up all his autho- especially those whose law learning has any rities." — Solicitor^ Journal. <]llifford and Stephens's Practice of Referees Court, 1873. Vols. T. and II., roval 8vo., 3^ 10s. cloth. THE PRACTICE of the COURT of REFEREES on PRI- VATE BILLS in PARLIAMENT, with Reports of Cases as to the locus standi of Petitioners during the Sessions 1867-68-69-70-71 and 72. By Frederick Clifford and Pembroke S. Stephens, Barristers- at-Law. " The history and practice of the subject are part of the volume, are given with fulness and detailed tersely and accurately, and in a very accuracy, so iar as we can judge, and are of intelligible manner, in the treatise. To counsel themselves a sufficient recommendation to the or agents engaged in parliamentary practice volume." — Law Journal. the work will prove extremely serviceable." — "Clifford and Stephens, the authority now ^Solicitors' Journal. universally quoted and relied on in this "The reports, forming the most important (Referees) Court." — Daily News. Vol. II, Part II., containing the Cases decided during the Sessions 1871 and 1872, may he had separately, oO*\ seived, Phillips's Law of Lunacy. Post 8vo., 18*. cloth. THE LAW CONCERNING LUNATICS, IDIOTS and PERSONS of UNSOUND MIND. By Charles Palmer Phillips, M.A., of Lincoln's Inn, Esq., Barrister at Law, and one of the Commis- sioners in Lunacy. "Mr. O. P. Phillips has in his very complete, "The work is one on which the author has elaborate and useful volume presented us with an evidently bestowed great pains, and which not excellent view of the present law as well as the only bears the mark of great application and practice relating tolunacy." — Law Magazine and research, but which shows a familiarity with the Review. subject."— Jt«/2ce of the Peace. Fry's Specific Performance of Contracts. 8vo., 16s. cloth. A TREATISE on the SPECIFIC PERFORMANCE of CONTRACTS, including those of Public Companies, with a Preliminary Chapter on the Provisions of the Chancery Amendment Act, 1858. By Edward Fry, B.A., of Lincoln's Inn, Esq., one of Her Majesty's Counsel. The practitioner who uses it as a text book will thus be acceptable to the profession generally." — find in it an adviser who will tell him not only Laio Chronicle. what the law is, but how it may be enforced."— " Mr. Fry's elaborate essay appears to exhaust Law Times. the subject, on which he has cited and brought " Mr. Fry's work presents in a reasonable com- to bear, with great diligence, some 1,500 cases, pass a large quantity of modern learning on the which include those of the 1 atest reports."— X«a» subject of contracts, with reference to the com- Ma-^azine and Review. mon remedy by specific performance, and will 14 LAW WORKS PUBLISHED BY Mozley and Whiteley's Concise Law Dictionary. Preparing for immediate publication. In 1 vol. 8vo. A CONCISE LAW DICTIONARY, containing Short and Simple Definitions of the Principal Terms used in the J^aw. By Hehbekt Newman Mozley, M.A., Fellow of King's College, Cambridge, and of Lincoln's Inn, Esq., and George Crispe Wiiiteley, M.A. Cantab., of the Middle Temple, Esq., Barrister at Law. *«* This work, which has been for some time in preparation, purposesto give short andsimple explana- tions of tfie technical terms and phrases used in tJie Law, including both those found in the older legal works and those of more modern and every day occurrence ; the object being to produce a book which shall be useful, not only to Laic Students and to members of both brandies of the Legal Profession, but also to Magistrates and the general public. Seaborae*s Law of Vendors and Purchasers. Post 8vo., 9s. clodi. A CONCISE MANUAL of the LAW of VENDORS and PURCHASERS of REAL PROPERTY, with a Supplement, including the Vendor and Purchaser Act, 1874, with Notes. By Henry Seaborne. *#* This work is designed to furnish Practitioners with an easy means of reference to the Statutory Enactments and Judicial Decisions regulating the transfer of Real Property, and also to bring these authorities in a compendious shape under the attention of Students. " The value of JMr Seaborne's work consists which may be useful to stuients.'^— Solicitors* in its being the most concise .summary yet pub- Journal. lished of one of the most important branches of " We will do Mr. Seaborne the justice to say the law. The student will find this book a useful that we believe his work will be of some use to introduction to a dry and difficult subject."— articled clerks and others in solicitors' offices. Law Examination Journal. who have not the opportunity or inclination to "The book before us contains a good deal, es- refer to the standard works from which his is pecially of practical information as to the course compiled." — Law Journal. of conveyancing matters in solicitors' offices, Clark's Digest of House of Lords Cases. Roval 8vo., Z\s. 6d. cloth. A DIGESTED INDEX to all the REPORTS in the HOUSE of LORDS from the commencement of the Series by Dow, in 1814, to the end of the Eleven Volumes of House of Lords Cases, with references to more recent Decisions. By Charles Clark, of the Middle Temple, Esq., Barrister at Law, Reporter by Appointment to the House of Lords. Barry's Practice of Conveyancing. 8vo., 18*. cloth. A TREATISE on the PRACTICE of CONVEYANCING. By W. Whittaker Barry, Esq., of Lincoln's Inn, Barrister at Law, lato Holder of the Studentship of the Inns of Court, and Author of ** A Treatise on the Statutory Jurisdiction of the Court of Chancery." " We feel bound to strongly recommend it to been felt. There has been no treatise on the the practitioner as well as the student. I'he Practice of Conveyancing issued for a long time author has proved himself to be a master of the past that is adequate for the present requirements, subject, lor he not only gives a most valuable Air. Barry's work is essentially what it professes supply of practical suggestions, but criticises to be, a treatise on the Practice of Conveyancing, them with much ability, and we have no doubt The treatise, although capable of comiiression, that his criticism will meet with general ap- is the production of a person of great merit and pioval."— Law Magazine. still greater promise."— A'o/jcjVom' Journal. "It contains, in a concise and readable form, " A work the substance of which is so well the law relating to almost every point likely to known to our readers, needs no recommen- arise in the ordinary every day practice of the datiou from us, for its merits are patent to all. conveyancer, with references to the various from personal acquaintance with them. Ihe authorities and statutes to the latest date, and information that the treatise so much admired may be described as a manual of practical con- may now be had in the more convenient form of vevancing."— Z-aa) Journal. a book, Will suffice of itself to secure a large and " I his treatise supi)lies a want which has long eagpr demand for it."— Law Times. Barry's Forms in Conveyancing. 8vo., 2U. cloth. FORMS AND PRECEDENTS IN CONVEYANCING ; with Introduction and Practical Notes. By W. Whittaker Barry, of Lincoln's Inn, Esq., Barrister at Law, Author of "A Treatise on the Practice of Conveyancing." MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 15 Goldsmith's Equity.— Sixth Edition. Post 8vo. 18a-. cloth. THE DOCTRINE AND PRACTICE OF EQUITY: or a concise Outline of Proceedings in the High Court of Chancery, designed principally for the Use of Students. Sixth Edition, according to the recent Statutes and Orders. By Geo. Goldsmith, Esq., M.A., Barrister-at-Law. " A -well-known law student's book, the best, because the most thoroughly complete, yetsim- Ijlified instructor, in the principles and practice of equity that has ever been provided for him ; and that its value has been recognized by those who have made use of it is proved by this— that their commendations have carried it to a sixth edition. The principles of equity are as they were, but the practice has so changed since the publication of the first edition, that every part of this division of the work has required to be rewritten almost as often as a new edition was demanded. Of course, the size of the book has grown also, and from heing-, as we remember it, a, very little book, to be carried in tlie pocket, it has become a portly volunie. and this fairly re- ])resents its increased merits. Mow that every student aspiring to the bar is to be examined be- fore admission, good bo.)ks for instruction in the law will be more tlian ever in request " — Laic Times. " It is difficult to know which to praise most, the e'xcellence and dignity of the style, or the ex- haustiveness of the information furnislied to the reader. I\Ir. Goldsmith's plan corresponds to some extent with that adopted by I\Ir. Haynes in his excelUnt 'Outlines of Equity,' but his work is more complete than that of iNlr. Ilaynes." —Law Examination Journal. " Ihe whole work is elaborated by Mr. Gold- smith with evident care and a determination to deal with all that can come within the scope of tlie title. It is characterized by comprehensiveness and at the same time conciseness, by clearness of diction and attractiveness of style and avoidance of technicalities which might prove embarrassing to the student, aLd a close adherence to the pur- pose ao expressed in the preface. Mr. Gold- smith's volume is marked by as much originality as well can be found in a work of its kind." — Law Journal. " Altogether the author's method and his exe- cution are alike commendable— and we are of opinion that the lawyer, who, as a student, avails himself of the primary intention of Mr. Goldsmith's work by finding in it his first equitj'' reading bi)ok or pri7ner, w\\\ afterwards verify the anticipation of the author by making of it dilectujnvenili or vade mecum in his later prac- tice." — Law Magazine, "nd tiolice. Lewis's Introduction to Equity Drafting. Post Svo., 12s. cloth. PRINCIPLES of EQUITY DRAFTING; with an Appendix of Forms. By Hubert Lewis, B.A., of the Middle Temple, Barrister at Law ; Author of " Principles of Conveyancing," &c. *#* This Work, intended to explain the general principles of Equity Drafting, as well as to exemplify the Pleadings of the Court of Chancery, will, it is hoped, be useful to lawyers resorting to the JVew Equity Jurisdiction of the County Courts. We have little doubt that this work will soon any title, be retained in the new jurisdiction, — without it we fear that equity in the County Courts will be a mass of uncertainty,— with it every practitioner must learn the art of equity drafting, and he will find no better teacher than Mr. Lewis." — Law Times. " 1 his will, we think, be found a very useful work, not only to students for the bar and solicitors practising in the County Courts, as anticipated by the author, but also to the equity draftsman."— -Law Journal. gairi a favorable place in the estimation of the orofession. It is written in a clear attractive style, and is plainly the result of much thoughtful and conscientious labour."— Zari) Magazine and Review. " Mr. Lewis's work is likely to have a much wider circle of readers than he could have anticipated when he commenced it, for almost every page will be applicable to County Court Practice, should the bill, in any shape or under Lewis's Introduction to Conveyancing. 8vo., 185. cloth. PRINCIPLES of CONVEYANCING explained and illus- trated hy Concise Precedents ; with an Appendix on the effect of the Trans- fer of Land Act in modifying and shortening Conveyances. By Hubert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the Middle Temple, Barrister at Law. " We have, indeed, read it with pleasure and profit, and we may say at once that Mr. Lewis is entitled to the credit of having produced a very useful, and, at the same time, original work. This will appear from a mere outline of his plan, which is very ably worked out. The manner in which his dissertations elucidate his subject is clear and practical, and his expositions, with the help of his precedents, have the best of all qualities in such a treatise, being eminently ju- dicious and substantial. Mr. Lewis's work is conceived in the right spirit. Although a learned and goodly volume, it may yet, with perfect propriety, be called a 'handy book.' It is besides a courageous attempt at legal improve- ment; and it is, perhaps, by works of such a character that law reform may be best accom- ,p!ished."— /-ari-' Magazine and Berieii'. " ' How to do it' might well be the motto of the author, and certainly no ordinary lawyer can peruse Mr. Hubert Lewis's book without making himself much more coinpetent to prepare and understand conveyancing than he was before. On the whole we consider that the work is de- serving of high praise, both for design and exe- cution. It is wholly free from the vice of book making, and indicates considerable reflection and learning. Mr. Lewis has, at all events, suc- ceeded in producing a work to meet an acknow- ledged want, and we have no doubt he will find many grateful readers amongst more advanced, not less than among younger, students. In an appendix, devoted to the Land Transfer Act of last session, there are some useful and novel criticisms on its provisions."— -SWictVorj' Journal. -o 16 LAW WORKS PUBLISHED BY Kerr's Action at Law. — Third Edition. 12mo., 9s. cloth. AN ACTION AT LAW : being an Outline of the Jurisdiction of the Superior Courts of Common Law, with an Elementary View of the Proceedings in Actions therein. By Robert Malcolm Kerr, Barrister at Law ; now Judge of the Sherifi''s Court of the City of London. Third Edition. " There is considerable merit in both works (John William Smith's ami Malcolm Kerr's); but the secoud (Kerr) has rather the advantage."— Jurist. " Mr. Kerr's book is more full and detailed than that of Mr.John William Smith, andis therefore better adapted for those who desire to obtain not merely a general notion but also a practical ac- quaintance with Common Law Procedure." — Solicitors^ Journal. Tudor's Leading Cases on Real Property, &c.-- 2nd Edit. One tliick vol. royal 8vo., 42*. cloth. A SELECTION OF LEADING CASES on the LAW RELATING to REAL PROPERTY, Conveyancing, and the Construc- tion of Wills and Deeds; with Notes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister at Law. Author of '* A Selection of Lead- ing Cases in Equity." Second Edition. " The Second Edition is now before us, and law itself applicable to the cases discussed by we are able to say that the same extensive know^ledge and the same laborious industry as have been exhibited by Mr. Tudor on former occasions characterize this later production of his legal authorship ; and it is enough at this moment to reiterate an opinion that Mr. Tudor l)as well maintained the high legal reputation ■which his standard works have achieved in all countries where the English language is spoken, and the decisions of our Courts are quoted." — Laa Magatine and Review. " The work before us comprises a digest of decisions which, if not exhaustive of all tlie principles of our real property code, will at least be found to leave nothing untouclied or unelaborated under the numerous legal doc- trines to which the cases severally relate. To Mr. Tudoi's treatment of all these subjects, so complicated and so varied, we accord our entire commendation. There are no omissions of any important cases relative to the various branches of the law comprised in the work, nor are there any omissions or defects in his statement of the him. We cordially recommend the work to the practitioner and the student alike, but espe- cially to the former." — Solicitors' Journal. " This and the other volumes of Mr. Tudor are almost a law library in liiemselves, and we are satisfied that the student would learn more law from tlie careful reading of them than he would acquire from double tiie time given to the elaborate treatises which learned professors recommend the student to peruse, with entire forgetfulness that time and brains are limited, and that to do what they advise would be the work of a life. Smith and Mr. Tudor will to- gether give them such a knowledge of law as they could not obtain from a whole library of text books, and of law that will be useful every day, instead of law that they will not want three times in their lives. At this well the practising lawyer might beneficially refresh his memory by a draught, when a leisure hour will permit him to study a leading case. No law library should be without tiiis most useful book." — Law Times. Benham's Student's Examination Guide. 12mo. Zs. cloth. THE STUDENT'S GUIDE to the PRELIMINARY EXA- MINATION for ATTORNEYS and SOLICITORS, and also to the Oxford and Cambridge Local Examinations and the College of Preceptors ; to which are added numerous Suggestions and Examination Questions, selected from those asked at the Law Institution. By James Erle Benham, of King's College, London. " The book is artistically arranged. It will become a useful guide and instructor not only to law students but to every student who is preparing for a preliminary examination." — Law Journal. " Tlie book is written in a clear and agreeable style, and will no doubt be found useful by the class of readers for whom it is intended." — Law Magazine and Review. " Mr. Benham has produced a very useful manual. He gives many suggestions on all the subjects of examination and full information thereon." — Law Examination Reporter. " He has succeeded in producing a book whicl) will doubtless prove useful. The sets of examination papers appear to be judiciously selected and are tolerably full." — Irish Law Timet. MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 17 Chute's Equity in Relation to Common Law. Post 8vo., 9s. cloth. EQUITY UNDER THE JUDICATURE ACT, OR THE RELATION OF EQUITY TO COMMON LAW: with an Appendix, containing the High Court of Judicature Act, 1873, and the Schedule of Rules. By Chaloner William Chute, Barrister at Law ; Fellow of Magdalen College, Oxford ; Lecturer to the Incorporated Law Society of Great Britain. "His manner is eminently philosophical, cially valuable in a book of this kind."— J/or??- and proves the capacity of the author for the imj Post. position of a lecturer, while it is just the kind " The book is deserving of praise, both for of teaching by which students are attracted to clearness of exposition and for the interesting the light. Students may here congratulate way in which modern cases are used to illus- themselveson the possibility of finding, within trate the doctrines expounded. As it stands the limits of two hundred pages, many of the it appears to us to be a useful guide to the chief doctrines of Equity, set forth briefly, leading principles of Equity Jurisprudence, lucidly and completely." — Law Journal. The book is written in easy and familiar lan- " We may add that his style presents a very guage, and is likely to prove more attractive agreeable contrast to the general style of law to the student than many formal treatises." books. In conclusion, we would heartily re- — Solicitors' Journal. commend this most instructive and interesting " He thinks clearly, writes very well. As a work to the perusal of the student."— Za?/; small and meritorious contribution to the Examination Journal. history of jurisprudence it deserves to be "The present volume can scarcely fail to welcomed." — Law Times. become a standard work on the subject of " The work is conscientiously done and will which it treats. Mr. Chute has one special be useful to the student at the present junc- virtue for which his readers will be thankful — ture." — Echo. tlie method and arrangement— which are spe- Tomkins and Jencken's Modem Roman Law. 8vo., 14s. cloth. COMPENDIUM of the MODERN ROMAN LAW, Founded upon the Treatises of Puclita, Von Vangerow, Arndts, Franz Mcehler and the Corpus Juris Civilis. By Frederick J. Tomkins, Esq., M.A., D.C.L., Author of the " Institutes of Roman Law," Translator of " Gains," &c., and Henry Diedrich Jencken, Esq., Barristers at Law, of Lincoln's Inn. " Mr. Tomkins and Mr. Jencken could not " To those who think with us that the study liave written such an excellent book as this if of the modern civil law has been too much they had not devoted many laborious days, neglected in the education of solicitors, the ad- probably years, to the study of Roman Law in mirable book whose title we have above an- its entirety, and to research into the laws of nounced will be Indeed invaluable." — Law continental states, for the purpose of learning Eicamination Jownal. what principles of Roman Law are preserved in their jurisprudence." — Law Times. Latham's Law of Window Lights. Post 8vo., 10s. cloth. A TREATISE on the LAW of WINDOW LIGHTS. By Francis Law Latham, of the Inner Temple, Esq., Barrister at Law. '•This is not merely a valuable addition "His arrangement is logical, and he dis- to the law library of the practitioner, it is a cusses fully each point of his subject. The book that every law student will read with work, in our opinion, is both perspicuous and profit. It exhausts the subject of which it able, and we cannot but compliment the author treats." — Law Times. on it." — Law Journal. Tudor's Law of Charitable Trusts. — Second Edition. Post 8vo., 18s. cloth. THE LAW OF CHARITABLE TRUSTS ; with the Statutes to the end of Session 1870, the Orders, Regulations and Instructions, issued pursuant thereto ; and a Selection of Schemes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister-at-Law ; Author of " Leading Cases in Equity ;''" Real Property and Conveyancing;" &c. Second Edition. " No living writer is more capable than compiled." — Solicitors' Journal. Mr. Tudor of producing such a work : his " Mr. Tudor's excellent little book on Cha- Leading Cases in Equity, and also on the ritable Trustr.. It is in all respects the text- Law of Real Property, have deservedly earned book for the lawyer, as well as a hand-book for for him the highest, reputation as a learned. reference by trustees and others engaged in the careful and judicious text-writer. We have management of charities." — Law Times. only to add that the index is very carefully 18 LAW WORKS PUBLISHED BY Phillimore's Commentaries on International Law. 2nd Ed, 4 Vols. 8vo., £6 : 3s. cloth. COMMENTARIES on INTERNATIONAL LAW. By the Rt. Hon. Sir Robert Phillimore, Knt., Member of H.M.'s Most Hon. Privy Council, and Judge of the High Court of Admiralty of England. *«* For the convenience of purchasers, VoL 1, price 25i., Vol. 2, price 28s., Vol. 3, price 365., aruf Vol. i, price 34s. cloth, may be had separatelii to complete sets. Extract from Pamphlet on "American Neutral it fj,'" by Georgk Bemis {Boston, ?7.eriod nf their arti- who will not readily admit that on many intricate cles. Tne style of this book is peculiar: it is an points of law their notions have become much exagKerationof the style adopted by JMr. Haynes clearer than before their acquaintance with it. in his admirable 'tmtlines of Equity.' J'he Both parts are well worked out, and will be found author seems to think the adoption of such a useful ; but in the second division of each chap- atyle the only way to make the study of the law ter the law student will find most valuable in- popular, and we are not prepared to say he is formation, as there Mr, Mosely not only marks •wrong."— Law Magatine and Review. out the course of reading which he recommends " i he design of this little book is to combine for each year, but also carefully analyses the instruction, advice and amusement, if anything cortents of each book, and points out those amusing can be extracted from the routine of a chapters and subjects which it will be most ad- solicitor's office and the studies of articled clerks. vantageous for the student to master at the first The book will certainly be found useful by any reading, and those which he ought to defer till articled clerk, for it contains much information a second perusal and a wider experience have ■which it is sometimes very troublesome to find, made him more competent to understand them. and the facetiousness of "Mr. Mosely's manner 'J'he style is remarkably good, and, considering •will doubtless help to grease the course of a the suhject, free from technical expressions." — rough and uneasy sn\)ect."— Laze Journal. IrishJLarv Times. Rouse's Copyhold Manual. — Third Edition. 12mo., 105. 6d. cloth. THE COPYHOLD ENFRANCHISEMENT MANUAL, giving the Law, Practice and Forms in Enfranchisements at Common Law and under Statute, and in Commutations ; with the Values of Enfranchise- ments from the Lord's various Rights : the Principles of Calculation being clearly explained, and made practical by numerous Rules, Tables and Examples. Also all the Copyhold Acts, and several other Statutes and Notes. Third Edition. By Rolla Rouse, Esq., of the Middle Temple, Barrister at Law, Author of " The Practical Conveyancer," &c. ** This new edition follows the plan of its pre- world will greet with pleasure a new and im- decessor, adopting a fivefold division :— 1. 'I'he jiroved edition of his copyhold manual. The -Law. 2. The Practice, with Practical Sugges- third edition of that work is before us. It is a tions to Lords, Stewards and Cojjyholders. '.i. work of great practical value, suitable to lawyers The Mathematical consideration of the Subject and laymen. We can freely and heartily recom- in all its Details, with Rules, •J'ables and Exam- mend this volume to the practitioner, the steward pics. 4. Forms. 5. I'he Statutes, with Notes. Of and the copyholder." — Law Magazine. these, we can only repeat what we have said before, ** Now, however, that copyhold tenures are that they exhaust the subject ; they give to the being frequently converted into freeholds, Mr. practitioner all the materials required by him to JJouse's treatise will doubtless be productive of conduct the enfranchisement of a copyhold, whe- very extensive benefit; for it seems to us to have ther voluntary or compulsory "—Laxo Times. been very carefully prepared, exceedingly well " When we consider what favor Mr. House's composed and written, and to indicate much ex- Practical Man and Practical Conveyancer have perience in copyhold law on the part of the- found with the profession, we feel sure the legal author." — Solicitor*' Journal. ^ Shelford's Succession, Probate and Legacy Duties. Second Edition. 12mo., 16s. cloth. THE LAW relating to the PROBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOTLAND, including all the Statutes and the Decisions on those Subjects : with Forms and Official Regulations. By Leonard Skelford, Esq., of the Middle Temple, Barrister-at-Law. The Second Edition, with many Alterations and Additions. ** The book is written mainly for solicitors, subject nothing remains but to make known its Mr. Shelford has accordingly planned his work appearance to our readers. Its merits have been •with careful regard to its practical utility and already tested by most of ihem."— iazf limes. daily M.&t.'"— Solicitors^ Journal. " On the whole Mr. Shelford's book appears to *' One of the most useful and popular of his us to be the best and most complete work on this productions, and being no'w the text book on tne extremely intricate subject."— Z^w Magazine. MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 21 Davis's Law of Master and Servant. 12mo., 6s. cloth. THE MASTER AND SERVANT ACT, 1867 (30 & 31 Vict. c. 141), with an Introduction, copious Notes, Tables of Offences, and Forms of Proceedings, prepared expressly for this Work. By James E, Davis, Esq., Barrister at Law, Stipendiary Magistrate, Stoke-upon-Trent. *** Besides the Act and copious Notes, Introduction, and a variety of Forms of Summons, Orders, Convictions, Recognizances, &c., specially prepared for this work. Tables have been framed classifying all the offences within the jurisdiction of Justices. It is hoped that this will be found useful, not only to Magistrates and their Clerks, but to the Legal Profession generally, for in consequence of the new Act not describing the offences, but merely referring to a schedule of seventeen former Acts, it is very difficult to say lohat cases are or are not ivithin the pwview of the new Act. The decisions of the Superior Courts, so far as they are applicable to the present law, are also given. Woolrych's Law of Sewers.- 8vo., 125. cloth. -Third Edition. A TREATISE of the LAW of SEWERS, including the DRAINAGE ACTS. By Humphry W. Woolrych, Serjeant at Law. Third Edition, with considerable Additions and Alterations. " Two editions of it have been speedily ex- hausted, and a third called for. The author is an accepted authority on all subjects of this class." — Lau) Times. " This is a third and greatly enlarged edition of a book which has already obtained an esta- blished reputation as the most complete dis- cussion of the subject adapted to modern times. Since the treatise of Mr. Serjeant Callis in the early part of the 17th century, no work filling the same place has been added to the literature of the Profession. Itisawork of no slight labour to digest and arrange this mass of legislation ; this task, however, Mr, Serjeant Woolrych has undertaken, and an examination of his book will, we think, con- vince the most exacting that he has fully succeeded. No one should attempt to meddle with the Law of Sewers without its help." — Solicitors' Journal. Grant's Law of Corporations in General. Royal 8vo., 265. boards. A PRACTICAL TREATISE on the LAW of CORPORA- TIONS in GENERAL, as well Aggregate as Sole; including Municipal Corporations ; Railway, Banking, Canal, and other Joint-Stock and Trading Bodies ; Dean and Chapters ; Universities ; Colleges ; Schools ; Hospitals ; with quasi Corporations aggregate, as Guardians of the Poor, Church- wardens, Churchwardens and Overseers, etc. ; and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, etc. By James Grant, Esq., of the Middle Temple, Barrister at Law. J. Chitty, jun's. Precedents in Pleading. — Third Edition. Complete in One Vol. Royal 8vo., 385. cloth. J. CHITTY, JuN's. PRECEDENTS in PLEADING; with copious Notes on Practice, Pleading and Evidence. Third Edition. By the late Tompson Chitty, Esq., and by Leofric Temple, R. G. Wil- liams, and Charles Jeffery, Esquires, Barristers at Law. (Part 2 may, for the present, be had separately, price IBs. cloth, to complete sets.) Drewry's Equity Pleader. 12mo., Qs. cloth. A CONCISE TREATISE on the PRINCIPLES of EQUITY PLEADING ; with Precedents. By C. Stewart Drew^ry, of the Inner Temple, Esq., Barrister at Law\ "It will be found of great utility as intro- refresh the memory after the study of the ductory to the more elaborate treatises, or to larger books." — Law Times. 22 LAW WORKS PUBLISHED BY Baxter's Judicature Act and Rules, 1873-4. Post 8vo., 10s. cloth. THE LAW AND PRACTICE OF THE SUPREME COURT OF JUDICATURE, comprising the Supreme Court of Judicature Act, 1873; Supreme Court of Judicature Commencement Act, 1874; Rules of Court, Notes, Statutes referred to, and a very copious Index. By Wynne E. Baxter, Solicitor of the Supreme Court. Scriven's Law of Copyholds. — 5th Edit, by Stalman. Abridged in 1 vol. royal 8vo., £1 : 10s. cloth. A TREATISE ON COPYHOLD, CUSTOMARY FREE- HOLD and ANCIENT DEMESNE TENURE, with the Jurisdiction of ('ourts Baron and Courts Leet. By John Scriven, Serjeant at Law. Fifth Edition, containing references to Cases and Statutes to 1867. By Henry Stalman, of the Inner Temple, Esq., Barrister at Law. No lawyer can see or hear the word 'copy- half a century been not only a standard work hold' without associating with it the name of but one of unimpeachable authority, and in its bcriven, whose book has been always esteemed pages the present generation has learned all that not merely the best but the only one of any is known of copyhold and customary tenures, worth. Until a commutation of the tenure for All that is necessary to say is, that in the pre- a fixed rent-charge, after the manner of a tithe sent edition of Scriven on Copyholds Mr. Stal- tommutation. is compelled by the legislature, man has omitted what it was useless to retain, this treatise will lose none of its usefulness to the and inserted what it was necessary to add. solicitors in the country." — Law Times. Until copyholds have disappeared utterly, it ii *' It would be wholly superfluous to offer one at lease certain that Scriven on Copyholds by word of comment on the general body of the Stalman will hold undisputed sway in the pro- work. Scriven ou Copyholds has for exactly fessiou."— iaw Journal. Davis's Law of Registration and Elections. One small 12mo. vol., 15^. cloth. MANUAL OF THE LAW AND PRACTICE OF ELEC- TIONS AND REGISTRATION. Comprising all the Statutes, with Note* and Introduction, and a Supplement containing the Cases ou Appeal down to 1869, the Rules relating to Election Petitions, and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister at Law, Author of '* Manual of Practice and Evidence in the County Courts," &c. " A work, which, in our judgment, is the han- order to obtain a fair mastery of the whole sub. diest and most useful of the manuals which the jecl, wehave no hesitation in highly recommend Reform Act of 1867 has brought into existence." ing this woxV.''''— Solicitors' Journal. — Lazii Magazine. "No one comes forward with belter credentials " We think this the best of the now numerous than Mr. Davis, and the book before us seems to works on this subject. It has a great advantage possess the qualities essential to a guide to a in its arrangement over those which are merely discharge of their duties I'y the officials. The new editions of works published before the recent scheme of Mr. Davis's work is very simple."— legislation. To read through consecutively, in Law Journal The Supplement may Vc had separately , inice 35. sewed. Browning's Divorce and Matrimonial Causes Practice. Post Svo., 85. cloth. THE PRACTICE and PROCEDURE of the COURT for DIVORCE and MATRIMONIAL CAUSES, including the Acts, Rules, Orders, copious Notes of Cases and Forms of Practical Proceedings, with Tables of Fees and Bills of Costs. By W. Ernst Browning, Esq., Chief Justice of the Leeward Islands. Brandon's Law of Foreign Attachment. 8vo., 14s. cloth. A TREATISE upon the CUSTOMARY LAW of FOREIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. AVith Forms of Procedure. By Wood- THORPE Brandon, Esq., of the Middle Temple, Barrister-at-Law. MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 2a Mr. ©ftr!5 ittagi^terial ffljaorfto* Oke*s Laws as to Licensing Inns, 1874, &c. &c. ; con- taininj^ the Licensing Acts, 1872 and 1874, and the other Acts in force as to Alehouses, Beer-houses, Wine and Refreshment-houses, Shops, «c., where Intoxicating Liquors are sold, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. By George C. Oke, late Chief Clerk to the Lord Mayor of London. Second Edition, by W. C. Glen, Esq., Barrister at Law. Post 8vo., 10s. cloth. '• A new edition of the late Mr. Oke's care- fully prepared manual is rendered necessary by- recent changes in the law, and Mr. Glen has done his work well. He has made the book of 1872 available as a book of reference in 1874. It is very fortunate that there is a well indexed treatise to refer to, for lawyers may have a great deal of business in respect of the last Licensing Act." — Law Journal, Sept. 12th, 1874. " Mr. Oke has brought out by far the best edition of the act, or perhaps we should say a treatise on it. Everything appears to be given which can by possibility be required, and the forms are abundant." — Law Times. " We have to acknowledge a second edition of the late Mr. Oke's Licensing Law, edited by Mr. W. C. Glen. Recent legislation has been added so as to make the work a complete book of reference on the subject of which it treats down to the present time." — Law Times {second notice), "This treatise on the Licensing Laws is accurate and thoroughly practical. Of Mr. Oke's treatment of his subject we can speak with the highest praise. The book will no doubt at once take its place as the recognized guide for those who have to do with licensing law. The table of offences is especially valu- able." — Solicitors' Journal. " The arrangement in chapters by Mr. Oke seems to us better than the plan pursued by the authors of the rival work, and we think that Mr. Glen has done well to leave in many cases a concise statement of the effect of the legislation repealed by the late Act. He also gives a useful list of places beyond the metro- politan district, and in the police district." — iHolicitors' Journal (second notice). " Messrs. Butterworth have judiciously con- fided the task of revision to the pen of Mr. Cunningham Glen ; the whole is comprised in a well got up volume of 353 pages. Both the table of contents and the index are capitally arranged, and afford every facility for refer- ence." — Brexcers' Guardian. *' We can pronounce a favourable opinion Avith a clear conscience, and that verdict is, that for fulness, perspicuity, careful indexing and exhaustive treatment of dubious and de- bateable points, this neatly printed volume is the most comprehensive, convenient and re- liable digest of the often indigestible licensing laws that has yet appeared." — Licensed Vic- tuallers' Gazette. Oke's Magisterial Synopsis ; a Practical Guide for Magistrates, their Clerks, Attornies, and Constables ; Summary Convictions and Indictable Offences, with their Penalties, Punishments, Procedure, &c.,^ being alphabetically and tabularly arranged: with a Copious Index. Eleventh Edition, much enlarged. By George C. Oke, late Chief Clerk to the Lord Mayor of London. In 2 vols. 8vo. 63^. cloth. " The tenth edition of this valuable work was published so recently as 1668, and this fact is more eloquent of the merits of Mr. Oke's labours than any amount of commen- dation from us. It is only necessary that we should notice the appearance of this last (eleventh) edition, 1872, which we do with much pleasure." — Law Times. '•This is the eleventh edition of Mr. Oke's work since 1848, a fact which speaks for itself. The profession and the public have proved by experience the excellence of the book ; and the personal supervision of the author is a guarantee that the present edition is equal to its predecessors. Mr. Oke's labour in prepar- ing it must have been considerable, and the rapid growth of magisterial jurisdiction having rendered it necessary to insert much new mat- ter and to rewrite and condense no sniall por- tion of the old. In the result, in spite of every effort made to keep down the bulk of the volume, it has been absolutely necessary to add 200 pages. The whole Synopsis now consists of nearly 1,600 pages of elaborately arranged and carefully digested information. It is needless to say that we cannot do more than indicate in very general terms the con- tents of this valuable work. Mr. Oke may well be proud of it. The result of his labours is highly creditable to him, and he deserves the thanks of all who in any capacity are en- gaged in the administration of justice." — Solicitors' Journal. Oke's Magisterial Formulist; being a Complete Col- lection of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial Matters, by Magistrates, their Clerks, Attornies and Constables. By George C. Oke, Author of "The Magisterial Synopsis," &.C. Fourth Edition, enlarged and improved. 8vo. 38s. cloth. -6 *i4 LAW WORKS PUBLISHED BY MX' ©ke^s JBlaflistcrial WB^xt^—continncd. Oke's Law of Turnpike Roads ; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors, as to the interference by Railways with Roads, their non-repair, and enforcing contri- butions from Parishes, &c., practically arranged. With Cases, copious Notes, all the necessary Forms, and an elaborate Index, &c. By George C. Oke. Second Edition. 12mo. 16s. cloth. " All Mr. Oke's works are well done, and guidance of magistrates and legal practi- his ' Turnpike Laws ' is an admirable speci- tiouers in country districts." — /Solicitors' men of the class of books required for the Journal. Shelford's Law of Eailways. — Fourth Edition by Glen. In 2 thick vols, royal 8vo., 63s. cloth. SHELFORD'S LAW of RAILWAYS; containing the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland : with copious Notes of Decided Cases upon the Statutes, In- troduction to the Law of Railways, and Appendix of Official Documents. Fourth Edition. By William Cunningham Glen, Barrister-at-Law,. Author of the "Law of Highways," "Law of Public Health and Local Government/' &c. From the La w Magazine. "Though we have not had the opportunity of ^oing conscientiously through the whole of this elaborate compilation, we have been able to de- vote enough time to it to be able to speak in the highest terms of the judgment and ability with which it has been prepared. Its execution quite justifies the reputation which Mr. Glen has already acquired as a legal writer, and proves that no one could have been more properly singled out for the duty he has so well discharged. The work must lake its unt/ne.itionable position as the leading Manual of the Railway Law oj Great Britain, The cases seem to have been examined, and their effect to be stated with much tare and accuracy, and no channel from which informa- tion could lie gained has been neglected. Mr. Glen, indeed, seems to be saturated with know- ledge of his subject. The value of the work is greatly increased by a number of supplemental decisions, which give all the cases up to the time of publication, and by an index which ap- pears to be thoroughly exhaustive." From the Law Times. "Mr. Glen has done wisely in preserving that reputation, and, as far as possible, the text of Shelford— though very extensive alterations and additions have been required. But he has a claim of his own. He is a worthy successor of the original author, and possesses much of the same industry, skill in arrangement and astute- ness in enumerating the points really decided by cited cases. But we have said enough of a work already so well known. It will have a place not in the library of the lawyer alone. It is a book which every railway office should keep on its shelf for reference." From the Law Journal. " Mr. Glen has modestly founded his work as a superstructure on that of Mr. Leonard Sheliord, but he has certainly claims to publish it as a purely independent composition. The toil has teen as great, and the reward ought to be as fomplete, as if INIr. Glen had disregarded all his predecessors in the production of treatises on railway law. Since tba year 1864 he has been unceasingly engaged in collecting materials, and though he has been ready for the printer for some time, and has delayed the appearance of the volumes in the expectation of legislative changes in railway law, yet he has expended full five years of care and attention on his work. Let us hope that he will have no cau.«e to think his labour has been in vain. At any rate we map venture to predict that Mr, Cunningham Glen'\ edition of Hhelford on Railways will be the stan dard work of our day in that department of law." From the Justice of the Peace. " Far be it from us to undervalue Mr. Shelford's labours, or to disparage his merits. But we may nevertheless be permitted to observe that what has hitherto been considered as the ' best work on the subject' (Shelford) has been immeasurably im- proved by the application of Mr. Glen's dilligence and learning. Sufficient, however, has been done to show that it is in every respect worthy of the reputation which the work has always enjoyed. We feel little doubt that the credit of that work will be greatly increased by Mr. Glen's instru- mentality, and that not only will he have ably maintained its reputation by his successful exer- tions, but that he will have added materially t» it." From the Solicitors' Journal. " The practitioner will find here collected together all the enactments bearing on every possible subject which may come before him in connection with railways or railway travelling. Whatever questions may arise the lawyer who has this book upon his shelves, may say to him- self ' If there has been any legislation at all con- nected with this branch of the subject I shall at once find it in Shelford;' and it needs not to be said that on this account the bock will be a very * comfortable' one to possess. The colieciion is equally exhaustive in the matter of rules, orders, precedents and documents of official authority. To sum up our review ; as a collection of statutes and general information the work will prove extremely useful, because in these respects It is so perfectly exhaustive." MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 25 Robson's Bankrupt Law. — Second Edition. 8vo., 34s. cloth, A TREATISE on the LAW of BANKRUPTCY ; containing a full Exposition of the Principles and Practice of the Law, including the Alterations made by the Bankruptcy Act, 1869. With an Appendix com- prising the Statutes, Rules, Orders and Forms. By George Young RoBSON, Esq., of the Inner Temple, Barrister-at-Law. Second Edition. " We are glad to welcome a second edition useful book, which we recommend very of this valuable work, the first edition of heartily to the profession at large." — Solicitors* which we reviewed about two years ago. Jou/tial, While the arrangement and form of the book " We must take advantage of the best guide have remained unaltered, the author has not we can find to help us along in the dark and contented himself with merely adding the dubious ways of Bankruptcy Law ; and Mr. recent decisions to the old text, for the whole Robson is undoubtedly one of the best guides law on the subject, old as well as new, has we can find. It is with great pleasure that evidently been carefully considered in the we learn from the preface to this work that interval between the two editions, and many the first edition of this work was well received, old cases are now noted which were not re- and that it achieved the success it so well de- ferred to in the first edition. We notice also served. Mr. Robson has continued studying as an improvement in printing the Bankruptcy the subject, and has kept himself up in the Act and Rules, that reference is made at the law upon which he writes. He has also added end of each section and rule to the pages of the to this new edition a chapter on ' The Bills of text where the subject of such section or rule Sale Act, 1854,' which cannot but be useful to is discussed. The index to the work, so far as his readers. The book itself is now so well we have been able to examine it, is a remark- known to the profession that we need not ably good one. On the whole we havenohesi- dwell upon its proved merits, its careful pre- tation in saying that the Author has consider- paration, great learning, and skilful arrange- ably improved an originally meritorious and ment." — Laiv Magazine. Coote's Probate Practice. — Seventh Edition. In the Press in 1 vol. 8vo. THE PRACTICE in COMMON FORM of the PROBATE DIVISION of HER MAJESTY'S HIGH COURT of JUSTICE. By Henry Charles Coote, F.S.A., Proctor in Doctors' Commons, &c. Also the Practice of the same Division in Contentious Matters. By Thomas H. Tristram, D.C.L., Advocate, and of the Inner Temple, Barrister-at- Law. Seventh Edition, with great Additions, and including all the Statutes, Rules, Orders, &c., to the present Time; together with a Collection of Original Forms and Bills of Costs. Chadwick's Probate Court Manual. Royal 8vo., 12*. cloth. EXAMPLES of ADMINISTRATION BONDS for the COURT of PROBATE ; exhibiting the Principle of various Grants of Administration, and the correct Mode of preparing the Bonds in respect •thereof; also Directions for preparing the Oaths, arranged for practical utility. With Extracts from the Statutes ; also various Forms of Affirmation prescribed by Acts of Parliament, and a Supplemental Notice, bringing the work down to 1865. By Samuel Chadwick, of Her Majesty's Court of Probate. *' We undertake to say that the possession of part of the law library of the practitioner, for he this volume by practitioners will prevent many has collected precedents that are in constant re- a hitch and awkward delay, provoking to the quirement. This is purely a book of practice, lawyer himself and difficult to be satisfactorily but therefore the more valuable. It tells the explained to the clients."— Z,aw Magazine and reader what to do, and that is the information Review. most required after a lawyer begins to practise." Mr. Chadwick's volume will be a necessary — Law Times. Parkinson's Common Law Chamber Practice. 12mo., 7*. cloth. A HANDY BOOK FOR THE COMMON LAW JUDGES' CHAMBERS. By Geo. H. Parkinson, Chamber Clerk to the Hon. Mr. Justice Byles. *' So much work is now done in Common Law " The practice in Chambers has become suffi- thambers by junior clerks that such a little trea- ciently important to call for a treatise devoted to ■lise is much wanted. Mr. Parkinson has per- it, nor could a more competent man for the task formed his task skilfully and with care."— 5(?/<- have presented himself than Mr. Parkinson."— -citors' Journal. Law Times, 56 LAW WORKS PUBLISHED BY Glen's Poor Law Orders. — Seventh Edition. Post 8vo., 21s. cloth. The GENERAL CONSOLIDATED and other ORDERS of the POOR LAW COMMISSIONERS and the POOR LAW BOARD; with explanatory Notes elucidating the Orders, Tables of Statutes, Cases and Index to the Orders and Cases. By W. C. Glen, Esq., Barrister at Law. Seventh Edition. BuUey and Bund's Bankruptcy Manual: with Supplement. 12mo., Itis. cloth. A MANUAL of the LAW and PRACTICE of BANK- RUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX containing the Statutes, Orders and Forms. By John F. BuLLEY, B.A., of the Inner Temple, Esq., Barrister at Law, and J. W. Willis-Bdnd, M.A., LL.B., of Lincoln's Inn, Esq., Barrister at Law. With Supplement, including the Orders to 30th April, 1870. The Supplement may he had separately^ \s. sewed. " It would be impossible, within our limits, to work iscompleteness, and we thiuk we may assure place before our readers any worthy resume of our readers that work so well done will meet with iJiis complete Manual. The essential merit of the its reward." — Law Masatitie. Coombs' Manual of Solicitors' Bookkeeping. 8vo., 10s. Qd. cloth. A MANUAL of SOLICITORS' BOOKKEEPING : com- prising Practical Exemplifications of a Concise and Simple Plan of Double Entry, with Forms of Account and other Books relating to Bills, Cash, &c., showing their Operation, giving Instructions for Keeping, Posting and Balancing them, and Directions for Drawing Costs, adapted to a large or «mall, sole or partnership business. By W. B. Coombs, Law Accountant and Costs Draftsman. •»* The various Account Boohs described in the ahove System, the forms of which are copyright, may he had from the Publishers at the prices stated in the work, 'page 274. "It adds some excellent instructions for tyro of average skill and abilities, with applica- drawing bills of costs. Mr. Coombs is a tion, could under ordinary circumstances open practical man, and has produced a practical and keep the accounts of a business; and, so far book." — Law Times. as we can judge, the author has succeeded in "He has performed his task in a masterly man- his endeavour to divest Solicitors' Bookkeeping ner) and in doing so has given the why and the of complexity, and to be concise and simple, wherefore of the whole system of Solicitors' without being inefficient." — Laic Journal. Bookkeeping. The volume is the most compre- "This is not merely a valuable addition to hensive we remember to have seen on the sub- the library of every solicitor, it is a book that ject, and from the clear and intelligible manner every articled clerk, now that intermediate in which the wliole has been worked out it will examinations embrace bookkeeping, will be render it unexceptionable in the hands of the read with profit and benefit to himself. It student and the practitioner." — Laio Magazine. may be fairly said to exhaust the subject of "So clear do the instructions appear, that a which it tx^ais."— Solicitors' Journal. Lovesy's Law of Arbitration (Masters and Workmen). 12mo. 4s. cloth. {Dedicated, hy pfej'mission, to Lord St. Leonards.) THE LAW of ARBITRATION between MASTERS and WORKMEN, as founded upon the Councils of Conciliation Act of 1867 <30 & 31 Vict. c. 105), the Masters and Workmen Act (5 Geo. 4, c. 96), and other Acts, with an Introduction and Notes. By C. W. Lovesy, Esq., of tlie Middle Temple, Bajrister at Law, now one of Her Majesty's Judges, British Guiana. ■o MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 27 Hertslet's Commercial Treaties. 12 vols., 8vo., 14Z. 15.*f. boards. HERTSLET'S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c., at present subsisting between Great Britain and Foreign Powers. Compiled from Authentic Documents by Edward Hertslet, Esq., C.B., Librarian an4 Keeper of the Papers of the Foreign Office. *»* Vol 1, 2J}'ice 12s. ; Vol. 2, p7'ice 12s. ; Vol. 3, price 18s. ; Vol. 4, jprice 18s. ; Vol. 5, price 20s.; Vol. 6,2}rice 25,?.; Vol. 7, price 30s.; Vol. 8, price 30.?.; Vol. d,2}rlce 30s.; Vol. 10, price 30s. ; Vol. 11, price 30s.; Vol. 12, price 40.?. ; maf/ be had separately to complete .'sets. Vol. 12 includes an Index of Subjects to the Twelve puMished Volumes, which Index is also sold separately , price 10s. cloth. List ok Subjects: — Aliens — Army — Bankruptcy — Births Abroad — Boundaries — Brokers — Burial Grounds Abroad — Chapels, Chaplains, &c., Abroad — Claims— Coal — Coasting Trade — Colli- sions at Sea — Colonial— Commerce and Navigation (Treaties, &c.)— Consuls — Copyright — Criminals: Murder — Currency — Deaths Abroad — Deserters — Diplomatic — Duties: Vessels and Cargoes — Emigration and Immigration — Enlistments — Extradition — Factories — Fisheries, &c. — Flags — Free Ports — Government — Jurisdiction — Justice — Labourers — Law — Light Dues, &c.— Loans — Lotteries — Maritime Law — Marriages, Births, Deaths, &c. — Mediations, Awards, &c. — Medical — Most Favoured Nation — Navigation— Navy — Neutrality — Offenders (Crimi- nals) — Orders, Medals, &c. — Passenger Vessels, &c. — Passports — Patents — Pensions, &c. — Pilotage: Pilots — Piracy: Pirates — Postal (Treaties, &c.) — Postal (Warrants, Acts, &c.) — Precedence — Privileges : Vessels and Cargoes — Prizes,Seizures,&c.— Property — Quarantine — Reciprocity— Religion : Chapels, &c.— Revenues (Foreign)— Right of Search and Visit- Rivers, Lakes, &r.— Seamen— Shipping Dues, &c.— Shipwrecks— Slave Trade : Slavery, fee- Smuggling— SoundDues—StadeToll— Sugar— Tariffs— Taxes— Telegraph— Territories— Trade — Trade Marks— Trade and Navigation— War, &c.— Wills— ^Wrecks and Salvage— Yachts. Trower's Church Building Laws; with Supplement to 1874. Post 8vo., 9*. cloth. THE LAW of the BUILDING of CHURCHES, PAR. SONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Charles Francis Trower, M.A., of the Inner Temple, Esq., Barrister at Law, late Fellow of Exeter College, Oxford, and late Secretary of Pre- sentations to Lord Chancellor Westbury. " We may pronounce it a useful work. It con- "In a well-arranged volume this gentleman tains a great mass of information of essential im- points out concisely and intelligibly how the diffi- porc, and those who, as parishioners, legal ad- culties which usually beset parties in such mai- visers, or clergymen, are concerned with glebes, ters maybe avoided."— Ox/oni University Herald. endowments, district chapelries, parishes, eeclesi- " On all the topics germane to its title this vo- astical commissions, and such like matters, about lume will be found a handy book of ecclesiastical which the public, and notably the clerical public, law, and should on that account be made widely seem to know but little, but which it is needless known among the clergy."— CAwrc/i Mail. to say are matters of much importance." — Soli- "It is a compact and handy treatise, very clearly citoTs" Journal. written, well arranged, easy of reference, and, be- " His book is just the one we could wish every sides a good table of contents, it has an elaborate ■clergyman to possess, for.if it was in the hands of index. It i.s a book we are glad to have and lo our readers they would be saved the trouble of recommend.'" — Literary Churchman. asking us very many vxestions."—ClericalJournal. Wills on Circumstantial Evidence.— Fourth Edition. 8vo., 10,s. cloth. AN ESSAY on the PRINCIPLES of CIRCUMSTANTIAL EVIDENCE. Illustrated by numerous Cases. By the late William "Wills, Esq. Fourth Edition, edited by his Son, Alfred Wills, Esq., Barrister at Law. 28 LAW WORKS PUBLISHED BY Saunders' Law of Negligence. 1 vol., post 8vo., 9s. cloth. A TREATISE on the LAW applicable to NEGLIGENCE. By Thomas W. Saunders, Esq., Barrister at Law, Recorder of Bath. "The book is admirable; while small in " As a work of reference the book will be very bulk, it contains everything that is necessary, welcome in the office of the solicitor or in the and its arrangement is sucii tliat one can readily refer to it. Amongst those who have done good service, Mr. Saunders will find a place." — Law Magazine. " In the useful little volume now before us he has gathered the whole law of negligence. All his works are distinguished by painstaking and accuracy. This one is rto exception ; and the subject, which is of very extensive interest, ■will insure for it a cordial welcome from tlie profession,'' — Law Times. " The references to the cases are given much more fully, and on a more rational system than is common with text book writers. He has a good index ; he has produced a work which will facilitate reference to tiie authori- ties." — Solicitors' Journal. chambers of the barrister." — Morning Advertiser. " A short and clear treatise like tiie present on the law relating to the subject ought to be welcomed. It is a moderate size volume, and makes references to all the authorities on the question easy." — Standard. " It is a great advantage to tiie legal pro- fession to find all the law of negligence col- lected and arranged in a manual of reasonable size. Such is Mr. Saunders' book." — Public Opinion. " A serviceable and seasonable treatise oi» the law of negligence, by Tiiomas W. Saunders, Esq., Recorder of Bath." — Telegraph. " A careful treatise on a branch of law whicli is daily acquiring importance. The manual before us is a useful treatise." — Echo. Ingram's Law of Compensation.— 2nd Edit, by Elmes. Post 8vo., 12«. cloth. COMPENSATION to LAND and HOUSE OWNERS: being a Treatise on the Law of the Compensation for Interests in Lands, &c. payable by Railway and other Public Companies ; with an Appendix of Forms and Statutes. By Thomas Dunbar Ingram, of Lincoln's Inn, Esq., Barrister at Law. Second Edition. By J. J. Elmes, of the Inner Temple, Esq., Barrister at Law. "We say at once that it is a work of great merit. It is a concise, clear and complete ex- position of the law of compensation applicable to the owners of real property and railway and other companies." — -Law Magatine. " Whether for companies taking land or hold- ing it, Mr. Ingram's volume will be a welcome guide. With this in his hand the legal adviser of a company, or of an owner and occupier whose property is taken, and who demands compen- sation for it, cannot fail to perform his duty rightly." — Law Timet. " I'his work appears to be carefully prepared as regards its matter. This edition is a third larger than the first ; it contains twice as many cases, and an enlarged index. It was much called for, and doubtless will be found very- useful to the practitioner." — Law Magazine, second notice. Cutler's Law of Naturalization. 12mo., 3s. 6d. cloth. THE LAW of NATURALIZATION; as Amended by the Acts of 1870. By John Cutler, B.A., of Lincoln's Inn, Barrister at Law, Editor of " Powell's Law of Evidence," &c. " The author's position as Professor of English Law and Jurisprudence is a guarantee of his legal, competence, whilst his literary abilities have'enabled him to clothe his legal knowledge in language which laymen can understand with- out being misled by it." — John Bull. " Mr. Cutler, in the work before us, lucidly explains the state of the law previous to the recent statute, and shows the alterations pro- duced by it, so that a careful perusal of this book will enable the reader fully to comprehend the present state of the law upon this most im- portant subject." — Justice of the Peace, " This little work will be found of use to our countrymen resident abroad, as well as to foreigners resident in this country." — Public Opinion. " The book is a model of what a treatise of it9 kind should be." — Sunday Times. " A very convenient hand-book to the law of naturalization, as amended by the Acts of i870:'—JVeekly Times. "To anyone not having much previous ac- quaintance with the subject, who wishes for a general sketch of the law affecting aliens, as it was, and as it is now, this book will be useful." — Solicitors' Journal. " It has been carefully compiled, and the authorities referred to are accurately cited." — Pall Mall Gazette. MESSRS. BUTTER WORTH, 7, FLEET STREET, E.C. 2^ Wright's Law of Conspiracy. 8vo., 4s. cloth. THE LAW of CRIMINAL CONSPIRACIES and AGREE> MENTS. By R. S. Wright, of the Inner Temple, Barrister at Law^ Fellow of Oriel Coll., Oxford. "It is with great pleasure that we notice veyed in language equally remote from the- this short hut very able and thorough work. dry and withered style of the ordinary text It shows not merely unsparing and well- book and from the oracular dictum in which directed research, but a power of discrimina- too many ofthe modern school of jurisprudence- tion and analysis of which it is rarely our good enshrine their fine ideas." — Solicitors' Journal. fortune to meet with, and its matter is con- Michael and Will's Law of Gas and Water Supply. Post 8vo., 18.S. cloth. THE LAW of GAS and WATER SUPPLY ; comprising the Rights and Duties as well of Local Authorities as of Private Companies in- regard thereto, and including the Legislation of the last Session of Parlia- ment. By W. H. Michael andJ. Shiress Will, Esqrs., Barristers at Law. " An honest and a successful attempt to deal panies, the public and the profession." — Laze with the laws affecting gas and water supply." Times. — Law Journal. "On the whole, we can thoroughly recom- " Wefeelthoroughlyjustifiedinrecommend- mend the work to those who require guidance ing the volume to the attention of the com- on the subject." — Solicitors' Journal. Hunt on Frauds and Bills of Sale. Post 8vo., 9s. cloth. The LAW relating to FRAUDULENT CONVEYANCES, under the Statutes of Elizabeth and the Bankrupt Acts : m ith Remarks on tht) Law relating to Bills of Sale. By Arthur Joseph Hunt, of the Inner Temple, Esq., Barrister at Law, Author of "The Law relating to Boundaries, Fences and Foreshores.'^ "This work is calculated to be of service reviewing that hook last year we took occasion, to the profession. Mr. Hunt has brought whilepraisingtheindustryandcarewith which, to bear upon the subject a clearness of state- it was compiled, to remark on the obscurity of ment, an orderliness of arrangement and a its style. In this respect its younger rival has- subtlety of logical acuteness which carry him considerahle advantage. Mr. Hunt's book is far towards a complete systematization of as readable as a treatise on so technical a suh- all the cases. Neither has his industry been ject can well he made. Mr. Hunt's arrange- lacking: the cases that have arisen under the ment of his materials follows an orderly and Bankruptcy Act, 1869, and under the Bills of intelligible plan. The index is apparently Sale Act have been carefully and completely carefully prepared, and the table of cases noted up and disposed of by him in their appro- shews that none of the recent cases have been priate places. The index also is both accurate overlooked. Mr. Hunt has produced a really and careful and secures much facility of refer- useful book unencumbered by useless matter, ence to the various matters which are the sub- which deserves great success as a manual of jects of the work." — Law Magazine. the law of fraudulent dispositions of property." "Though smaller in size, Mr. Hunt's book — Laxo Journal. deals with fraudulent conveyances under the "The author has collected with industry Bankruptcy Acts, a subject which Mr. May in and care the authorities bearing on the ques- his work left almost untouched, although his tion he has undertaken to deal with. The book has the undoubted merit of being the matter is conveniently broken up, and the Jirst to break fresh ground in treating fraudu- reader is assisted by a good index." — Solicitors' lent conveyances in a separate volume. In Journal. Smith's Practice of Conveyancing. Post 8vo., Qs. cloth. AN ELEMENTARY VIEW of the PRACTICE of CON- VEYANCING in SOLICITORS' OFFICES ; with an Outline of the Proceedings under the Transfer of Land and Declaration of Title Acts, 1862^, for the use of Articled Clerks. By Edmund Smith, B. A., late of Pembroke College, Cambridge. Attorney and Solicitor. 30 LAW WORKS PUBLISHED BY Glen's Law of Highways. — Third Edition. In the Press. Post 8vo. The LAW of HIGHWAYS: comprising the Highway Acts 1835, 1862 and 1864; the South Wales Highway Act; the Statutes and Decisions of the Courts on the subject of Highways, Bridges, Ferries, &c., including the Duties of Highway Boards, Surveyors of Highways, the Law of Highways in Local Board of Health Districts; Highways affected by Railways, and Locomotives on Highways. With an Appendix of Statutes- in force relating to Highways. By AV. Cunningham Glen, Esq., Barrister at Law. Third Edition. Glen's Law of Public Health. — Seventh Edition. 8vo., 3()s. cloth. THE LAW relating to PUBLIC HEALTH and LOCAT> GOVERNMENT, and Urban and Rural Sanitary Authorities, including the Law relatiniy to the Removal of Nuisances injurious to Health and the Prevention of Disease; with Statutes and Cases. By W. Cunningham Glkn and Alexander Glen, B.A., LL.B., Barristers at Law. Glen's Poor Law Statutes, 1873. 2 vols. 8vo., 21. 12s. 6d. cloth. The STATUTES IN FORCE relatinv., I>if pos(, is. id. CONTENTS. Nrt. 21. ^licliaclmfts, 1874.— I. The Statutes of 1874 (First Notice). II. Digest of Cases. ni. Intcrmedlnte Exiuuinatioii Questions aiul Answers (T.T. 1S74). IV. Final Examination (^lies- lions and Answers (M. T. 1S74). v. Keviows of Hooks. VI. Correspondence and Xoticcs. No. 20. Trinity, 1874. — I. Legislative Prosi)ects of the Session. 11, iJigest of Ciises. III. Inter- niediato E.xanuuation, Easter Tenn, 1874 : Questions and Answers. IV. Final Examination, Trinity Term, 1874: Questions and Answers. \. Keviews. VI. Correspondence and Notices. No. 19. Eiuster, 1S74. — I. Leading Cases (continued). II. Digest of Cases. III. Intermediate Examination, II. T. 1874 : Questions and Answers. IV. Final Examination, E. T. 1874 : Questions and Answers. V. Review. Seventh Edition of Stephen's Blackstone's Commentaries. VI. Cor- respondence and Notices. No. 18. Hilary, 1874.— I. Statutes of 1870 (Second Notice, including the Supreme Court of Judicature Act and subsequent Statutes). II. Digest of Cases. III. Intermediate Examination, ^Michaelmas Term, 1873 : Questions and Answers. IV. Final Examination, Hilary Term, 1874 : Questions and Answers. V. Correspondence and Notices. No. 17. :\!ichaelmas,1873.— I. Leading Cases (Note by the Editor). IL Statutes of 1873 (First Notice). III. Digest of Cases. IV. Intermediate Examination, T. T. 1873 : Questions and Answers. V. Final Examination, M. T. 1873 : Questions and Answers. XI. Notice of Intermediate Examina- tion for 1874. VII. Ileviews of Books. VIII. Law Student's Societies. IX. Correspondence. No. 16. Trinity, 1873. — I. The Study of the Law, concluded. II. Leading Cases— Spencer's Case, continued. III. Digest of Cases. IV. Intermediate Examination, E:ister, 1873 : Questions and Answers. V. Fimil Examination, Trinity, 1873 : Questions and Answers. VI. A lleview — Kelly's Draftsman. VII. Correspondence and Notices. No. 15. Easter, 1873.— I. The Study of tlie Law, continued. II. Analysis of Leading Cases. III. Digest of Cases. IV. Intermediate Examination, H. T. 1873: Questions smd Answers. V. Final Examination, E. T. 1873 : Questions and Answers. VI. Correspondence and Notices. No. 14-. Hilary, 1873.— I. The Study of the Law, continued. IL Digest of Cases. III. Inter- mediate Examination, M. T. 1872 : Questions and Answers. IV. Final Examination, H. T. 1873: 'Questions and Answers. V. Reviews. VI. Answers to Correspondents and Notices. No. 13. INIichaelraas, 1872.— I. Public Prosecutors, concluded. 11. The Statutes of 1872. III. Digest of Cases. IV. Intermediate Examination, Trinity Term, 1872 : Questions and Answers. V. Final Examination, Michaelmas Term, 1872 : Questions and Answers. VI. Reviews. Vll. An- swers to CoiTcspondents and Notices. No. 12. Trinity, 1872.— I. Public Prosecutors, continued. II. Study of the Law, continued. III. Digest of Cases. IV. Intermediate Examination, Easter Term, 1872 : Questions and Answers. V. Final Examination, Trinity Term, 1872 : Questions and Answers. VI. Law Students' Congress, Birmingham: Law Examinations. VII. Review. VIII. Answers to Correspondents. No. 11. Easter, 1872.— I. The Study of the Law. II. Legislative Prospects of the Session. iMarried Women's Property Act Amendment Bill. Imperial Court of Appeal. 111. Digest of Cases IV. Intermediate Examination Questions and Answers. Hilary Term, 1872. V. Final Examination Questions and Answers. Easter Term, 1872. VI. Answers to Correspondents. No, lO. Hilary, 1872.— L Notice of the late Editor. IL The Study of the Law. III. Digest of Ca-ses. IV. Intermediate Examination Questions and Answers. V. Final Examination Questions and Answei-s. VI. Answers to Correspondents. No. 9. illchaelmas, 1871. — I. On Examinations. II. The Subject of Public Prosecutors (con- tinued). III. Digest of Cases. IV. Intermediate Examination Questions on Chltty, "Williams and Smitli, Trinity, 1871, with Answers. V. Final Examination Questions and Answers, Michaelmas Term, 1871. VI. Reviews of Books. VII. Answers to Correspondents. No. 8. Trinity, 1871. — I. On the Necessity of providing a Public Prosecutor: By the Editor, ir. How Sir. JIansfleld Denman passed his " Final :" By E. H. III. Digest of Cases : Note by the Editor. IV. Intermediate Examination Questions and An.swers (Easter, 1871). V. Final Exami- nation Questions and Answers (Trinity, 1871). VI. Correspondence, &c. No. 7. Easter, 1871. — I. Some Remarks on the Married Women's Property Act, 1870 : By the Iklitor. II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Hilary ,1871). IV. Final Examination Questions and Answers (Easter,1871). V. Reviews of New Books. VI. Correspondence. No. 6. Hilary, 1871.— I. Our Jury System: By the Editor. II. Digest of important Legal DecLslons. III. Intenncdlate Examination Questions and Answers (Michaelmas, 1870). IV. Final Examination QuestlonsandAnswcrs (Hilary ,1871). V. RevicAvs of New Books. VI. Correspondence. No. S. Slichaelmas, 1870. — I. On the Legislation of 1870 : By the Editor. IL Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (T. T. 1870). IV. Final Ex- amination Questions and Answers (M.T. 1870). V. Reviews of New Books. VI. Correspondence. No. 4. Trinity, 1870. — I. Leading Article on the Fusion of the Two Branches of the Legal Pro- fession : By the Editor (concluded). II. Digest of important Legal Decisions. III. Intermediate Examination Questions and Answers (Easter, 1870). IV. Final Examination Questions and Answers (Trinity, 1870). V. Reviews of New Books. VI. Correspondence. No. 3. Easter, 1870. — I. On the Fusion of the Two Branches of, the Profession : By the Editor. TI. Digest of Important recent Decisions. III. Intermediate Examination Questions and Answers (11. T. 1870). IV. Final Examination Questions and Answers (E. T. 1870). V. Reviews of New Books. VI. Correspondence. No. 2. Hilary, 1870.— I. Note by the Editor. II. On Attornment in Mortgages. III. Digest of i mportant recent Decisions. IV. Intermediate Examination Questions and Answers (M. T. 1869). V. Final Examination Questions and Answers (H. T. 1870). VI. Correspondence. No. 1. Michaelmas, 18C9. — I. County Courts, their Merits and Defects as Local Tribunals : By the Editor. II. Summary of new Decisions in Banco and at Nisi Prius. III. Analysis of tlie more Important practical Statutes of 32 & 33 Vict. IV. Intermediate Examination Questions and Answers (T. T. 1869). V. Final Examination Questions and Answers (M. T. 1869). VI. Notes on the Examinations. VII. Correspondence. *»* Copies of Vol. I. of the Law i:xAiriN-ATiox JornxAL, contain imj Xos. 1 to 14, tcith full Indexes and Tables of Cares Cited, ma,'; now bf:luvl. price IGs., bound in cloth. MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 35 ■Q Price \s., hy post Is. \d., regularly iniMlshecl as soon as practicable after each Preliminary Examination in Pehruary, May, July and October. COXTENTS. No. 16. October, 1874.— T. Special Examination Notices. TL A Predilection for One'Autlior. III. Accoinnioitation for Law Students in Courts of Justice. IV. The Scliool Board. V. Inequalities of Genius. VI. Mysterious Tcrsonages. VII. Tlie (Questions of the Preliminary Examination of thu •_>«th and 29th of October, with the Answers, VIII. A Criticism of the Questions. IX. Correspondence. No. 15. July, 1874.— I. Special Examination Notices. II. The Incorporation of the Inns of Court 4iud the proposed Law University. III. Orthography of Proper Names. IV. Railing in Courts of Law. V. " Absence of Mind." VI. Erskine Debating Society. VII. The Questions of the Pre- liminary Examination of the 15th and 16th of July, with the Answers. VIII. lleview of the July Examination. IX. Answers to Correspondents. No. 14. May, 1874. — I. Examination Notices. II. The Choice of a Profession and its Influence on the 3Iind. III. A Keflection. IV. "Never say Fail!" V. The Questions of the Preli)ninar\- Examination of the 13th and 14th of Maj-, with the Answers. VI. Suggestions to intending Candi- dates. VII. Answers to Correspondents. No. 13. February, 1874.— I. Special Examination Notices for Easter and Trinity Terms, 1874, II. Quotations by Authors and Advocates. III. " Men of Genius dettcient in Conversation," IV. The Questions of the Preliminary Examination of the 1 1 th and I'ith of February, with the Answers. V. Review of the February Examination, and a few Suggestions. VI. Debating Societies. VI I. Answers to CoiTespondents, &c. No. 12. October, 1873. — I. Special Examination Notices for 1874. II. Eminent Lawyers. III. Rhetoric. IV. A Summary of the Law of Torts : a Review. V. The Questions of the Preliminary Examination of the 29th and SOtli of October, with the Answers. VI. Review of the October Examination, and suggestions as to preparation for the next. VII. Answers to Correspondents, &c. No. 11. July, 1873. — I. Special Examination Notices for Michaelmas Term. II. Psychological Enquiries. III. Our Note-Iiooks, IV. A Few Remarks on the Study of the Latin Language. V. Recollections of Ancient Classical "Writers— co«?/n wed. VI. The Questions of the Preliminary^ Examination of the 16th and 17th of July, with the Answers. VII. Review of the July Examina- tion. VIII. Correspondence, No, lO. May, 1873,-1, Special Examination Notices. II. Ladies as Lawyers ! Ill, Common Sense, IV, The Advantage of Education, V. Reviews of Ncav Books, &c. VI. Part I. Recollec- tions of Ancient Classical Writers, Part II. ^lemoirs of Charles Dickens, Lord Lytton, the late Mr. John Stuart Mill, VII, The Questions of the Preliminary Examination of the 14th and I5th of Ma}% with the Answers. VIII. Review of the May Examination, IX, Correspondence. No. 9. February, 1873. — I, Examination Notices. II, The Amalgamation of the two Branches of the Profession. III. Special Preparation for Examinations. IV, The Power of Imagination! V, Institutes of English Public Law : a Review. VI, Synopsis of leading Authors, Statesmen, Poets and Philosophers. VII. The Questions of the Preliminary Examination of the 12th and 13th Kjf February, with the Answers. VII l. I'eview of the February Examination. IX. Correspondence. No. 8. October, 1872. — I. Special Examination Notices for 1873. II, " Wliat Leads to Success in Life?" III. Bi-ains— Quantity or Quality, IV. A Retrospective Glance. V. Remarks on •"Memory" (continued). VI. Synopsis of leading Authors, Statesmen, Poets, and Philosophers (the List includes Memoirs of Thackeray, Sir G. C. Lewis, Admiral Fitzroy and several others). VII. The Questions of the Preliminary Examination of the 30th and 81st of October, with the Answers. VIII. Review of the October Examination. IX. Correspondence. No, 7. Julj", 1872.— I. Special Examination Notices for Michaelmas Term, 1872, II, "How many Hours a Day do you reconnnend me to study?" Ill, Critical Reviews. IV. A few Remarks uin ut \s., post Is. Id. xamination Journal and Student's '- ^^■ FNHAM. Ill Nos. at. Is,, by post Is. Id., alter i-ontaininir the Questions witli Ansv. , ' Ext.adiuitioiis, Lecture-, E'^says, &c.