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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 long<svi hominis est.''' 
 ^H VOL. ^ 
 
 I 
 
2 INTERNATIONAL LAW. 
 
 III. States, considered in their corporate character, are not 
 improperly said to have internal and external relations (c). 
 
 IV. The internal relations of States are those which sub- 
 sist between ,gc»\e]rnm;ents and their subjects in all matters 
 relating to the public order of the State: the laws and prin- 
 
 iV4pJti^ y/liicii .frCrve^'i?'thies;e internal relations form the subject 
 of public jurisprudence, and the science of the publicist — 
 jus gentis publicum (</). 
 
 V. The internal relations of a State may, generally speak- 
 ing, be varied or modified without the consent of other 
 States — aliis inconsultis (e). 
 
 VI. But in the great community of the world, in the 
 society of societies. States are placed in relations with each 
 
 The expression mnnicipes is identical with mimicipium. — Savigtiy, 
 B. R. ii. 249. 
 
 Dig. lib. xlvi. tit. i.22 : " (De fidejuss.) hsereditas^jemn^e vicefungitur 
 sicuti mtmicipiwn, et curia, et societas." 
 
 Dig. lib. iii. tit. 4: "Quod cujuscunque universitatis nomine vel 
 contra rem agatur." — Lib. i. s. 1, 2. 
 
 Cod. lib. ii. t. 29: *'De jure reipublicae : 30, de administratione re- 
 rumpublicarum j 31, de vendendis rebus civitatis ; 32, de debitoribus 
 civitatum." 
 
 Hohbes, with his usual perspicuity : " Quia civitates semel institiitse 
 induunt proprietates hominum personales."— De Civ. c. 14, ss. 4, 5. 
 
 i\(^ewc?or^ adopted this view. — Ih. 3, 13. 
 
 Wolf J Prcef, : " Enimvero cum gentes sint personse morales ac ideo 
 nonnisi subjecta certorum jurium et obligationum." 
 
 "Puis done qu'une nation doit a sa maniere a une autre nation ce 
 qu'un homme doit a un autre homme," &c. — Vattel, Droit des Gens, 
 liv. ii. ch. 1, 8. 3; ^'Celle qui a tort peche contre && conscience.'''' — Ih. 
 Prelim, s. 21. 
 
 (c) D' Aguesseau, ib. 
 
 Blume, Deutsches PriDotrecJit, s. 19 : " Der Staat . . . als ideale Person 
 wird er zum lebendigen Trager des gesammten ofFentlichen Ilechts." 
 Pachta, Cursus der Institutionen, s. 25, b. 73, 4. 
 
 (d) " The Law which belongeth unto each nation — the Law that con- 
 cerneth the fellowship of all." — IIooker''s Ecclesiastical Polity, b. i. s. 16. 
 
 " Publicum jus est quod ad statum rei Romanas spectat, privatum quod 
 ad singulorum utilitatem." — Ul2nan, Dig. i. t. i. s. 2, De Just, et Jure. 
 
 (e) " Hoc autem non est jus illud gentium proprie dictum : neque enim 
 pertinet ad mutuam inter se societatem, sed ad cuj usque populi tran- 
 quillitatem : unde et ab uno populo aliis incmisultis mutari potuit," &c. 
 — Grotius, de Jure Belli et Pads, lib. xi. ch. 8, s. 2. 
 
INTRODUCTION. 3 
 
 other, as individuals are with each other in the particular 
 society to which they belong (J). These are the external 
 relations of States. 
 
 VII. As it is ordained by God that the individual man 
 should attain to the full development of his faculties through 
 his intercourse with other men, and that so a people should 
 be formed {g), so it is divinely appointed that each individual 
 society should reach that degree of perfection of which it is 
 capable, through its intercourse with other societies. 
 
 To move, and live, and have its being in the great 
 community of nations, is as much the normal condition of a 
 single nation, as to live in a social state is the normal con- 
 dition of a single man. 
 
 VIII. From the nature then of States, as from the nature 
 of individuals, certain rights and obligations towards each 
 other necessarily spring ; these are defined and governed by 
 certain laws (Ji). 
 
 IX. These are the laws which form the bond of justice 
 between nations, " qua3 societatis humanae vinculum conti- 
 "nent" (2), and which are the subject of international juris- 
 prudence, and the science of the international lawyer — -jus 
 inter gentes (J). 
 
 if) "Ex hoc jure gentium introducta bella, discretss gentes, regna 
 condita, dominia distincta."— De^. lib. i. tit. i. s. 5. 
 
 Jus Gentium, however, here as elsewhere in the Roman Law, means 
 Natural Law. — Grot, de J. B. et P. lib. ii. c. viii. tit. i. 26. 
 
 Saviyny, R. R. b. 1, App. 
 
 Taylor'' 8 Civil Law, 128. 
 
 (^) Puchta, CursKs der Insfitidionen, i. s. 25, b. 73. 
 
 " That Law which is of commerce between grand Societies, the Law 
 of Nations and of Nations Christian." — Hooker, ib. 
 
 (h) "Si nulla est communitas quae sine jure conservari possit, quod 
 memorabili latronum exemplo probabat Aristoteles ; certe et ilia qu8B 
 genus humanum aut populos complures inter se coUiget, jure indiget." 
 —Grot. Proley. 23 ; Vattel, PrSlim. s. 11. 
 
 (i) Grot, de Jure B. et P. 1. ii. 26. 
 
 (J) It is to the English civilian Zouch that we owe the introduction 
 of this correct phrase, the forerunner of the terms International Law, 
 now in general use. — See Von Ompteda, Litteratur der Volkerrecht, s. 64. 
 
 UAguesseati afterwards adopted the phrase jus inter gentes. — Tom. i. 
 444, 521 ; Instit. du Droit public, vii. 2^ partie, 1. 
 
 B 2 
 
4 INTERNATIONAL LAW. 
 
 " The strength and virtue of that law (it has been well 
 " said) are such that no particular nation can lawfully preju- 
 " dice the same by any their several laws and ordinances, 
 " more than a man by his private resolutions the law of 
 " the whole commonwealth or State wherein he liveth ; for 
 " as civil law, being the act of the whole body politic, doth 
 " therefore overrule each several part of the same body, so 
 ".there is no reason that any one commonwealth of itself 
 " should to the prejudice of another annihilate that where- 
 " upon the whole world hath agreed" (k). 
 
 X. To clothe with reality the abstract idea of justice, 
 to secure by laAv within its own territories the mainte- 
 nance of riffht aojainst the ao^o-ression of the individual wrong:- 
 doer, is the primary object of a State, the great duty of each 
 separate society. 
 
 To secure bylaw, throughout the world (/), the maintenance 
 of right against the aggression of the national wrong-doer, is 
 the primary object of the commonwealth of States, and the 
 great duty of the society of societies. Obedience to the law 
 is as necessary for the liberty of States as it is for the liberty 
 
 (k) Hooker, ib., b. 1, s. 10. 
 
 ^''Dicitur ergo humana lex quia proxime ab hominibiis inventa et 
 posita est. Dico autem proxime quia primordialiter omnis lex Lumana 
 derivatur aliquo modo a lege eterna." — Snarez, Tractatus de Legibus 
 et Deo legislatore, c. 3, p. 12 (ed. Loud. 1679). 
 
 "Oniues populi qui legibus et moribus reguntur, partim suo proprio, 
 pavtim communi omnium bominum jure utuntur ; nam quod quisque 
 populus ipse sibi jus constituit, id ipsius proprium civitatis est: 
 vocaturque jus civile, quasi jus proprium ipsius civitatis. Quod vero 
 naturalis ratio inter omnes homines constituit, id apud omnes peraeque 
 custoditur: vocaturque jus gentium, quasi quo jure omnes gentes 
 utuntur." — Dig. lib. i. tit. i, s. 2. 
 
 (/) " Dieselbe Kraft, welche das Recht hervortreibt, bildet auch den 
 Stnat, ohne vs^elchen das Pteclit nur ein unvollstiindiges Daseyn, eine 
 prekare Existenz hiitte, ohne den der gemeine Wille, auf dem das 
 Recht beruht, mehr ein Wunsch als ein wirklicher kniftiger Wille sejn 
 wiirde.'* — Puchta, Instit. xi. 27. 
 
 "Dennoch ist seine erste und unabweisliche Aufgabe die Idee des 
 Itechts in der sichtbaren Welt herrschend zu machen."— (Srtw/»?/, 7?. 7?. 
 b. 1, k. ii. s. 0, 2o. 
 
I 
 
 INTRODUCTION. 5 
 
 of individuals. Of both it may be said with equal truth, 
 "legum idcirco omnes servi sumus ut liberi esse pos- 
 " sumus" (m). 
 
 XI. It has been said that States are capable of rights, and 
 liable to obligations ; but it must be remembered that they 
 can never be the subjects of criminal law (ji). To speak of 
 inflicting punishment upon a State, is to mistake both the 
 principles of criminal jurisprudence and the nature of the 
 legal personality of a corporation. Criminal law is con- 
 cerned with a natural person ; a being of thought, feeling, 
 and will. A legal person is not, strictly speaking, a being of 
 these attributes, though, through the medium of representa- 
 tion and of government, the will of certain individuals is 
 considered as the will of the corporation ; but only for certain 
 purposes. There must be individual will to found the juris- 
 diction of criminal law. Will by representation cannot found 
 that jurisdiction. Nor is this proposition inconsistent with 
 that which ascribes to States a capacity of civil rights, and 
 a liability to civil obligations. This capacity and liability^ 
 require for their subject only a will competent to acquire and 
 possess property, and the rights belonging to it. A legal as 
 well as a natural person has this will. The greatest corpo- 
 ration of all, the State, has this will in a still greater degree 
 than the minor subordinate corporations — the creatures of 
 its own municipal law. The attribute of this limited will is 
 consistent with the idea and object of a legal person. But 
 the attribute of the unlimited will, requisite for the com- 
 mission of a crime, is wholly inconsistent with this idea and 
 object. 
 
 The mistake respecting the liability of nations to punish- 
 
 (m) Cic. pro Cluentio, 53. "Der Staat ist die Anstalt zur Beherr- 
 schung des Rechtes in einem bestimmten Volke, daa hochste Rechts- 
 institut dieser Nation." — Kaltenhorn, Volkerrecht, 259. 
 
 {n) Saviyny, B. R., % 94-96, lias some excellent remarks on the ana- 
 logous subject of the capacities and liabilities of corporations in a State. 
 
 See Pinheiro Ferreira's Commentaries mi Vattel, wherever the word 
 ^' punir " occurs. 
 
6 INTERNATIONAL LAW. 
 
 ment, which appears in Grotius and Vattel, arises from 
 
 two causes: First, from an indistinct and inaccurate con^ . 
 
 ception of the true cliaracter of a State ; secondly, from 
 confounding the individual rulers or ministers with that of 
 the nation which they govern or represent. The error 
 may be fairly illustrated by an analogy drawn from muni- 
 cipal law. Lunatics and minors, like corporations, have 
 no natural capacity of acting ; an artificial capacity is there- 
 fore vested in their representatives, their guardians or 
 curators. The lunatics and minors are rendered, by the acts 
 of these representatives, capable of civil rights, and liable 
 to civil obligations ; but the possibility of their being ren- 
 dered liable to punishment for the vicarious commission of 
 crime, is a proposition as yet unknown to any human code 
 of municipal law. Justice and law lay down the rule : 
 " Ut noxa tantum caput sequatur"(a). It does not militate 
 with this doctrine, to maintain that a State may be injured 
 and insulted by another ; may seek redress by war, or may 
 require the deposition of the ruler, or the exile of the repre- 
 sentative of another State ; or may deprive a State of its 
 territory, wholly or in part. These measures may be neces- 
 sary to preserve its own personality and existence, the 
 welfare of other States, and the peace of the world, and on 
 these grounds, but upon no other, they may be defensible. 
 ' These acts, when lawful, are acts, directly or indirectly, of 
 |i self-defence, not of punishment. It has happened, that 
 \ corporations have been subjected to calamities which at first 
 sight resemble punishments (p). Municipalities have been 
 deprived of their legal personality, or have been stripped of 
 
 (o) It is hardly necessary to say, that the awful question of God's 
 dealing with sinful nations does not enter into this discussion. 
 
 "Nunquam curise a provinciarum rectoribus generali condemna- 
 tione mulctentur, cum. utique hoc et sequitas suadeat et regula juris 
 antiqui, ut noxa tantum caput sequatur, ne propter unius fortasse delictum 
 alii dispendiis affligantur." — Nov. Majoriatii, tit. 7 ; Hugo, Jus Civile 
 Antejud. p. 1386, s. 4 : cited Savujny^ R, JR. 2, 321. 
 
 (p) Savigny, M. R. 2, 318. 
 
INTRODUCTION. 7 
 
 their honours and privileges, as regiments have been deprived 
 of their colours. But these acts, duly considered, are acts 
 of policy, not of justice (q). 
 
 We read in Roman history of the punishment inflicted 
 upon the city of Capua, Avhich had revolted from Rome, 
 and become the ally of Hannibal. Keconquered Capua was 
 stained with the blood of her eminent citizens, and disfran- 
 chised of all her corporate privileges (r). But this, and 
 other less remarkable instances of the like kind in Roman 
 history, did not purport to be, and were not judicial applica- 
 tions of criminal law ; but were rather acts of state policy, 
 intended to strike a salutary terror equally into fo3S and 
 subjects (5). 
 
 A very different principle appears in the pages of Roman 
 jurisprudence, in which the obligation arising from the com- 
 mission of a crime — ohligatio ex delicto — is distinguished 
 from the obligation arising from the possession of a benefit 
 obtained by the commission of a crime — ohligatio ex re, ex 
 eo quod ad aliquem pervenit (t). The latter, but not the 
 former obligation may bind a corporate body. 
 
 Under what circumstances States become responsible for 
 the guilty acts of their individual members (w), will be con- 
 sidered hereafter. But even in these cases the State is not 
 
 (q) Livy, lib. xxvi. c. 15 : " De suppUcio Campani," &c. 
 
 C. 17 : *' Quod ad suppUcimn, ad expetendas pamas,^^ &c. 
 
 (f) C. 16: "Cseteruin habitari tautum, tanquam urbem, Capuam, 
 frequentarique placuit: corpus nullum civitatis, nee senatus, nee plebis 
 concilium, nee map^istratus esse -, sine consilio publico, sine imperio, 
 multitudinem, nullius rei inter se sociam, ad consensum inhabilem 
 fore." 
 
 (s) 0. 16 : ' Confessio expressa hosti quanta vis in Romanis ad expe- 
 tendas 2^oinas ab infidelibus sociis, et quam nihil in Annibale auxilii ad 
 receptos in fidem tuendos esset." 
 
 {t) Dig. xliii. t. xvi. s. 4 : " De vi. — Si vi me dejecerit quis nomine 
 municipum in municipes mihi interdictum reddendum Pomponius ait, 
 si quid ad eos pervenit.^' 
 
 (u) " Solere poonee expetendae causa bella suscipi, et supra ostendi- 
 mus et passim docent liistorise : ac plerumque hsec causa cum altera de 
 damno reparando conjuncta est, quando idem actus et vitiosus fuit et 
 
8 INTERNATIONAL LAW. 
 
 punishable, though liable to make compensation for the injury 
 which it lias sanctioned. 
 
 XII. Vattel describes with simplicity and truth the pro- 
 vince of International Jurisprudence : " Le droit des Gens " 
 (he says) " est la science du droit qui a lieu entre les 
 " Nations et les Etats, et des obligations qui repondent a ce 
 
 " droit "(:i-)- 
 
 The same favourite expounder of International Law does 
 not hesitate to class among these obligations binding upon 
 the national conscience, the duty of succouring another 
 nation unjustly invaded and oppressed. The fact that no 
 defensive alliance formally subsists between the two nations 
 cannot, he says, be alleged as an excuse for the neglect of 
 this duty (t/). The nation that renders the succour, is keeping 
 alive that benevolent spirit of mutual assistance, the appli- 
 cation of which she herself may one day need. To perform 
 her duty to another is, in truth, to strengthen the founda- 
 
 damnum reipsa intulit, ex quibus duabus qualitatibus duae diversoe 
 nascuntur obligationes." — Grotius, lib. ii. c. 20, s. 28. 
 
 "Sciendum quoque est, reges, et qui par regibus jus obtinent, jus 
 Latere pcenas poscendi non tantum ob iiijurias in se aut subditos suos 
 commissas, sed et ob eas quae ipsos peculiariter non tangunt, sed in 
 quibusvis personis jus naturae aut gentium immaniter violantibus." — 
 lb. Hb. ii. c. 20, s. 40. 
 
 " Et eatenus sententiam sequimur Innocentii, et aliorum qui bello 
 flgunt, peti posse eos qui in naturam delinquunt : contra quam sentiunt 
 Victoria, Vasquius, Azorius, Molina, alii, qui ad justitiam belli requirere 
 videntur, ut qui suscipit aut laesus sit, in se aut republica sua, aut 
 ut in eum qui bello impetitur jurisdictionem habeat, Ponunt enira illi 
 puniendi potestatem esse eiFectum proprium jurisdictionis civilis, cum 
 nos earn sentiamus venire etiam ac jure naturali, qua de re aliquid 
 diximus libii primi initio. Et sane si illorum a quibus dissentimus 
 admittatur sententia, jam hostis in hostem puniendi jus non habebit, 
 etiam post juste susceptum bellum ex causa non punitiva : quod tamen 
 jus plerique concedunt, et usus omnium gentium confirmat, non tantum 
 poatquam debellatum est, sed et manente bello ; non ex ulla jurisdictione 
 civili, sed ex illo jure naturali quod et ante institutas civitates fuit, et 
 nunc etiam viget, quibus in locis homines vivunt, in familias non in 
 civitates distributi."— /&. lib. ii. c. 20, s. 40 (4). 
 
 C. 21 : "De communieatione^>ce?««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 fitw<j) KaWlov St 
 Kai QfioTfpov tfvfi Kcd TCoXsmv. 
 
 (h) Domed, Traites des Lois, c. xi. s. 30. 
 
 Kaltenborn, Ki-itik des Volkei'rechts, s. 295. 
 
 'Tossunt autem gentium prsecepta ad unum principium revocari, 
 quo quasi fundamento suo nituntur. Oportet enim esse gentes vel 
 respublicas, quae se invicem ut liberas et sui juris nationes agnoscunt. 
 Hac agnitione sine qua jus gentium ne cogitari quidem potest, efficitur, 
 ut illae ohiioXes, pei'sonarum ad instar habeantur, quas non minus quam 
 singuli homines caput habentes, suo jure utuntur, et mutuo juris 
 vinculo inter se junguntur. IIujus vinciili definitio atque ponderatio 
 juris gentium argumentum est." — Doctrina Juris Philosophica, Sfc, 
 Wanikonigy s. 145, p. 189. 
 
10 INTERNATIONAL LAW. 
 
 CHAPTER II. 
 
 PLAN OF THE WORK. 
 
 XIII. A TREATISE on International Jurisprudence ap- 
 pears to admit of the following general arrangement: — 
 
 1. An inquiry into the origin and nature of the Laws 
 which govern international relations {leges). 
 
 2. The Subjects of these laws. The original and imme- 
 diate subjects are States considered in their corporate 
 character. 
 
 3. The Objects of these laws. These objects are Things, 
 Kights, and the Obligations which correspond to them {Res, 
 Jura, Ohligationes), 
 
 4. Certain Subjects of these laws which, though only to 
 be accounted as such mediately and derivatively, yet, for the 
 sake of convenience, require a separate consideration. 
 
 These Subjects of International Law are the following 
 individuals who are said to represent a State : — 
 
 1. Sovereigns. 
 
 2. Ambassadors. 
 
 Also another class of public officers who are not clothed, 
 accurately speaking, with a representative character, but 
 who are entitled to a quasi diplomatic position, namely — 
 
 3. Consuls. • 
 
 4. Lastly, the International Status of Foreign Spiritual 
 Powers, especially of the Pope, requires a distinct considera- 
 tion. 
 
 XIV. Public International Rights, like the Private 
 Rights of an Individual, are capable of being protected and 
 enforced by Legal Means. 
 
PLAN OF THE WORK. U 
 
 ¥ 
 
 These Legal Means are of two kinds, aptly expressed by- 
 jurists as being (1) via amicahili, and (2) via facti. 
 
 - -t^. • 1 -T f 1. Neo;otiation. 
 
 1. Via amicabih. | ^^ Arbitration. 
 
 1. Reprisals. 
 
 2. Via facti. -! 2. Embaro-o. 
 
 { 
 
 3. War. 
 
 When war has actually begun, we enter upon theJM* belli, 
 which is to be considered with reference to 
 
 1. The Rights of Belligerents ; 
 
 2. The Rights of Neutrals— 
 
 " Sequitur enim de jure belli : in quo et suscipiendo, et 
 " gerendo, et deponendo, jus, ut plurimum valet, et fides " («). 
 " For the wars (as Lord Bacon says) are no massacres and 
 " confusions, but they are the highest trials of right " (Z»). 
 
 Grotius points out, with his usual sound and true philo- 
 sophy, the proper place, object, and functions of war in the 
 system of International Law (c) : " Tantum vero abest ut 
 " admittendum sit, quod quidam fingunt, in bello omnia jura 
 " cessare, ut nee suscipi bellum debeat nisi ad juris consecu- 
 " tionem, nee susceptum geri nisi intra juris et fidei modum. 
 " Bene Demosthenes bellum esse in eos dixit, qui judiciis 
 " coerceri nequeunt ; judicia enim vigent adversus eos qui 
 " invalidiores se sentiunt : in eos qui pares se faciunt aut pu~ 
 " tant, hella sumuntur ; sed nimirum ut recta sint, non minori 
 " religione exercenda quam judicia exerceri solent ; " and 
 again, " bellum pads causa suscipitur " {d), 
 
 {a) Cicero de Rep. lib. ii. c. 14 j and lie adds, " horumque ut publici 
 interpretes essent lege sanximus." 
 
 (5) Bacons Works, vol. v. p. 384 (ed. Basil Montagu). 
 
 (c) Grotii Proleg. 25, De Jure Belli et Pads j though he illogically 
 displaces the treatment of it in his great work, beginning, as indeed he 
 admits, with the end of his subject. 
 
 {d) lb. lib. i. c. i. s. 1. 
 
 " Le mal que nous faisons a I'agresseur n'est point notre but : nous 
 agissons en vue de notre salut, nous usons de notre droit ; et I'agresseur 
 est seul coupable du mal qu'il s'attire." — Vattel, liv. ii. c. ii. s. 18. 
 
 Taylor's Civil Law, p. 131. 
 
12 INTERNATIONAL LAW. 
 
 XV. When by use of the Legal Means of War the Righ 
 has been obtained or secured, or the Injury redressed— po^ 
 
 jiiris consecutionem — the normal state of peace is re-esta 
 Wished. 
 
 A consideration of the negotiations which precede, and th( 
 consequences which follow, the Ratification of Peace wil 
 conclude that portion of this work which relates to Publi( 
 International Law. 
 
 XVI. We have hitherto spoken of Public Internationa 
 Law {jus publicum inter gentes — -jus pacts), which governi 
 the mutual relations of States with respect to their Publi( 
 Rights and Duties; but, as States are composed of Indi 
 viduals, and as individuals are impelled by nature anc 
 allowed by usage to visit and to dwell in States in whici 
 they were not born, and to which they do not owe a natura 
 allegiance, and as they must and do enter into transactions 
 and contract obligations, civil, moral, and religious, with th( 
 inhabitants of other States, and as States must take somt 
 cognizance of these transactions and obligations, and as th( 
 municipal law of the country cannot, in many instances at 
 least, be applied with justice to the relations subsisting be- 
 tween the native and the foreigner — from these causes 
 a system of Private International Law, a "jus gentium 
 "privatum^"' has sprung up, which has taken deep roo1 
 among Christian, though it more or less exists among all 
 nations. 
 
 The distinction, however, between the two branches oJ 
 International Jurisprudence is extremely important. It is 
 this : — 
 
 The ohligationes juris privati inter gentes are not — as the 
 obligationes juris puhlici inter gentes are — the result of legal 
 necessity, but of social convenience, and they are called h^ 
 the name of Comity — comitas gentium. 
 
 It is within the absolute competence of a State to refuse 
 l)ermission to foreigners to enter into transactions with its 
 subjects, or to allow them to do so, being forewarned that 
 
I 
 
 PLAN OF THE WORK. 13 
 
 the municipal law of the land will be applied to them (e) ; 
 therefore a breach of comity cannot, strictly speaking, fur- 
 nish a casus belli, or justify a recourse to war, any more 
 than a discourtesy or breach of a natural duty, simply as 
 such, can furnish ground for the private action of one indi- 
 vidual against another (/). 
 
 For a want of Comity towards the individual subjects of a 
 foreign State, reciprocity of treatment by the State whose 
 subject has been injured, is, after remonstrance has been ex- 
 hausted, the only legitimate remedy ; whereas the breach of 
 a rule of Public International Law constitutes a casus belli, 
 and justifies in the last resort a recourse to war. 
 
 It is proposed to treat the subject of Comity or Private 
 International Law next in order to the subject of Public 
 International Law. 
 
 (e) Neyron, Principes du Droit des Gens europeens, 1. clxxi. c. vi. 
 s. 177. 
 
 Barheyracy Ad Grotiiwi, 1, ii. c. ii. s. 13. 
 (/) Vattel, liv. ii. c. i. s. 10. 
 
14 INTERNATIONAL LAW. 
 
 CHAPTER III. 
 
 SOURCES OF INTERNATIONAL LAW. 
 
 XYII. It is proposed in this chapter to trace the source 
 and ascertain the character of those laws which govern the 
 mutual relations of independent States in their intercourse 
 with each other. 
 
 XVIII. International Law has been said, by one pro- 
 foundly conversant with this branch of jurisprudence, to be 
 made up of a good deal of complex reasoning, and, though 
 derived from very simple principles, altogether to comprise 
 a very artificial system («). 
 
 XIX. What are the depositories of this reasoning and 
 these principles ? What are the authorities to which refer- 
 ence must be made for the adjustment of disputes arising 
 upon their construction, or their application to particular 
 instances? What are in fact the fountains of International 
 Jurisprudence — " dijudicationum fontes?" — to borrow the 
 just expression of Grotius. These are questions which meet 
 us on the threshold of this science, and which require as 
 precise and definite an answer as the peculiar nature of the 
 subject will permit (b). 
 
 XX. Grotius enumerates these sources as being "ipsa 
 '* natuj'a, leges divince, mores, et pacta ^^ (c). 
 
 In 1753, the British government made an answer to a 
 memorial of the Prussian government {d) which was termed 
 
 (a) Lord Stowell : the Hurtige Hane, 3 Rohimon, Adm. R. 326. 
 
 (h) Arist. JSth. lib. i. C. 2 : UiiraiSivfikvov yap tanv, Ini Toaovrov 
 TaKpi^tQ 8TnZr]rHV Ka9' iKuarov ykvoq, k(j} bffov rj rov Trpdyfiarog" ^vaiQ Itti- 
 Skx^Taij 7rapa7r\r](nov yap (paiverai, fiaQrjfiaTiKOv re TnOavoXoyovvTog cltto- 
 ikxifjQai, Kai prjTopiKov airoSti^tig aTrairelv. 
 
 (c) Prolegom. : '' By the Law of Nature and Nations and "by the 
 Law Divine, which is the perfection of the other two." — Lord Bacon, Of 
 an Holy War. 
 
 (d) Cabinet of Scarce and Celebrated Tracts, 1 vol. (Edinburgh). 
 
SOURCES OF INTERNATIONAL LAW. 15 
 
 by Montesquieu reponse sans replique (e), and which has 
 been generally recognized as one of the ablest expositions of 
 international law ever embodied in a state paper. In this 
 memorable document, " The Law of Nati(ms " is said to be 
 " founded upon justice, equity, convenience, and the reason 
 " of the thing, and confirmed by long usage." 
 
 XXI. These two statements may be said to embrace the 
 substance of all that can be said on this subject. An attempt 
 must now be made to examine in detail, though not precisely 
 in the same order, each of the individual sources set forth in 
 the foregoino; citations. 
 
 XXII. Moral persons are governed partly by Divine law 
 (le^es divincB), which includes natural law — partly, by posi- 
 tive instituted human law, which includes written and un- 
 written law or custom (^jus scriptum, non scriptum con- 
 suetudo). 
 
 States, it has been said, are reciprocally recognized as 
 moral persons. States are therefore governed, in their 
 mutual relations, partly by Divine, and partly by positive 
 law. Divine Law is either (1) that which is written by the 
 finger of God on the heart of man, when it is called 
 Natural Law; or (2) that which has been miraculously 
 made known to him, when it is called revealed, or Christian 
 law (/). 
 
 XXIII. The Primary Source, then, of International Juris- 
 prudence is Divine Law% Of the two branches of* Divine Law 
 which have been mentioned, natural law, called by jurists 
 jus primarium, is to be first considered. " In jure gen- 
 
 "tium" {g), Gro tins says, "jus naturae includitur;" and, 
 again, "jure />rmo 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 <pvaiv' tan yap, o fiavTtvovrai n Trivreg, ipvcrei koivov 
 ^iKOicv Kat dciKO)'^ Kuv [irjSfpia Koivojvia irpog dWrjXovg y, prjde 
 
 (TVvP'tlKt], 
 
 (i) Soph. Antig. v. 450-7 ; v-^iirohc vofioi, (Ed. Tyr. 866, 
 
 Ik) Cic. Pro Milme, 3; De Rep. 1. iii. c. 22. 
 
 (J) AvTol piv yitp Trap' aiiTolg to SiKaiwg dpicstv ^Jjrowcr/, TTpbg Sk 
 Tovg dWovg ovdev /ifXtt tojv SiKaiojv. — Polit. lib. vii. c. 2. And when 
 he is discussing the different ends of different kinds of oratory, and 
 observing that the speaker in the public assembly dwells on the inex- 
 pediency and not the immorality of a particular course of action : 
 i'og d' oiiK ddiKOV Tovg daTvydruvag KnTnSov'KoTtaOaif Kai Tovg /irjckv 
 d?^iKovvTnc, TToWaKig ovSkv ^povTiZovcnvt — Phet. tom. i. C. 3. 
 
 (wj) Hid. lib. V. 
 
SOURCES OF INTERNATIONAL LAW. 17 
 
 he Lacedaemonians, which is repeated by Pkitarch (?i); 
 d we find Plato demanding (o), with indignation, whether 
 
 t was reasonable to suppose that any society could flourish 
 which did not respect the rights of other societies. We , 
 
 nd Euripides speaking of the natural equality of rights 
 as binding city to city, and ally to ally (p). We find 
 
 IThemistocles claiming the right, " covimuni jure gentium,^ 
 of placing Athens in a state of defence {q). We find 
 that the rights of embassy were respected —that treaties 
 were ratified by solemn sacrifices (r), and placed under 
 ihe especial care of the deities who avenged violated 
 faith. We read of the memorable Amphictyonic league, 
 which constituted the tribunal of public international law 
 for the different States of Greece. These and other historical 
 facts demonstrate that the application of the principles of 
 natural justice to international relations, how^ever imperfectly 
 executed, and though never reduced to a system, was not 
 unknown to Greece (s), 
 
 XXVI. We are led with yet more certainty to this 
 conclusion with respect to Home, by the consideration of two 
 rema-rkable institutions which existed there: — 1. The Col- 
 legium Fecialium, with the Jus Feciale (t), which could not 
 
 (w) Plutarch, Vita Agesilai, 
 
 (o) Xlokiv 'patr]Q civ ddiKOV dvai Kai dXXag iroXsig ETTix^tpeiv iovXovaOai 
 aSiKiog Kai KaradeSovXutaQai, TToXXag de Kai vtp' 'iavry ty^tiv SovXioaafiivtjv j Uwg 
 yap ovK ; t^?j . . . dXXd di) Kai Toce fioi xitpiaai Ka\ Xkyt * coKtiQ dv rj 
 iroXiv, fj oTpaTOTTidoi', rj Xyardg, f] KXtTrrac, f/ dXXo ti tOvog, oa a KOivy iiri 
 n ip^trai ddiKug, Trpd^ai dv ri dvvaaQai tl ddiKoiev aXXrjXovg ', Ol> 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 (</). 
 
 XXXVIIL It is hardly necessary to guard against the sup- 
 position that what has been said applies to the technical and • 
 formal parts of the Roman Code, the " forraularum ductus " 
 just mentioned, or to those which related exclusively to the 
 particular policy of the empire ; but it should be remarked, 
 that an error of this description tinged the early writings 
 upon International Law, and tended to bring the science 
 itself into disrepute (r). It is the "solida et mascula ratio " 
 
 (o) Op. iv. 254. 
 
 (p) Wtsetnati's Excellence/ of the Civil Lmv, p, 110 ; Burke, viii. 185, 
 Letters on a Reg. Feace. 
 
 (q) Wheaton's Hist. pp. 510, 511 ; Waites' American State Papers, 
 X. 135-140 ; Instit. 1. ii. t. i. ss. 1-5. 
 
 (r) Grotius, de J. B. et P. 1. iii. c. ix. s. 1, Ife Postliminio : " Ac- 
 curatius haec res a veteribus Romanis tractata est, sed sa3pe confuse 
 nimis, ita ut quae juris gentium, quseque civilis Romani esse vellent, 
 
I 
 
 ROMAN LAW. 35 
 
 of Bynkershoek which must guide and enforce the appli- 
 cation of it to the affairs of independent nations. 
 
 Besides the actual compilations of Koman Law, the Com- 
 mentaries upon them — for the like reason of their comprehen- 
 siveness, impartiality, wisdom, and enlarged equity — are of 
 great use and constant service in elucidating the rules of 
 justice between nations. 
 
 For instance, every writer on the Law of Embassy relies 
 for the elementary propositions relating to it upon the Com- 
 mentary of Huber on the Civil Law ; and so Lord Stowell, 
 in the case of the Twee Gehrceders, fortified his judgment as 
 to the legal marks of territory, and the evidence by which it 
 
 to be supported, by reference to the opinions of Farrinacius 
 Gail and Loccenius (.?). 
 
 The decisions contained in the Roman Law may often 
 form a safe guide even between nations in whose Municipal 
 Code it has no root ; in the interpretation, for example, 
 of agreements, express or tacit, between European and 
 Asiatic nations, and in the equitable resolution of doubts 
 and difficulties unforeseen and unprovided for by the letter of 
 any compact {t), 
 
 XXXIX. Analogy (u) has great influence in the decision 
 
 lector nequiret distinguere." .... iv. s. 2 : " Sed hsec ratio Roma- 
 norum propria non potuit constituere jus gentium," &c. 
 
 Heineccius, Prcslect. ad Grotiumj Procamium, s. 54, and in his work 
 Jus NaturcB et Gentium, Pi'cefatio, p. 14, shows how the " Glossatores " 
 erred in their application of portions of the Roman law to International 
 questions. 
 
 It will be seen, when the subject of embassies is treated of, into 
 how serious an error the English civilians were led by applying the 
 text of the Eoman law respecting legati as the rule of International 
 law upon the question of the privileges of the ambassador of Mary 
 Queen of Scots. 
 
 (s) 3 Robinson's Adm. Eep. 338, 348, 349. 
 
 (0 The learned judges of the English Privy Council, in deciding 
 questions arising out of the law and customs of Hindostan, have made 
 reference to the analogies furnished by Roman law. — Sootragun Satputty 
 V. Sahitra Dye, 2 Knapp's Privy Council Reports (Lord Wynfoi'd) — a 
 case on the law of Hindoo adoption. 
 
 (u) Bynkershoek, de Foro Leg, c. iii. p. 446. 
 
 " By the ancient law of Europe, such a consequence (i, e. the condem- 
 
 D 2 
 
 I 
 
36 INTERNATIONAL LAW. 
 
 of International as well as of Municipal tribunals ; that is to 
 say, the application of the principle of a rule, which has 
 been adopted in certain former cases, to govern others of a 
 similar character as yet undetermined. Of course the justice 
 and force of this application must chiefly depend, in each 
 case, on the closeness of the parallel between the circum- 
 stances of the precedents appealed to and those of the cases 
 in dispute. 
 
 nation of the ship on account of a contraband cargo) would have en- 
 sued ; nor can it be said that such a penalty was unjust, or not sup- 
 ported by the general analogies of law,''^ — Lord Stoivell, The Maria, 1 
 Roh. Adm. Hep. 90. 
 
 "Is qui jurisdictioni praeest ad similia procedere et ita jus dicere 
 debet"— Dig, 1. i. t. iii. s. 12. 
 
 "Semper quasi hoc legibus inesse credi oportet, ut ad eas quoque 
 personas et ad eas res pertinerent, quae quaudoque similes eruut." — 
 lb. 27. 
 
 " De quibus causis scriptis legibus non utimur, id custodiri oportet, 
 quod moribus et consuetudine inductum est : et si qua in re hoc defi- 
 ceret, tunc quod proxinmm et consequens est," — lb, 32. 
 
 '^ Si quid in edicto positura non inveniatur, hoc ad ejus regulas ej us- 
 que conjecturas et imitationes possit nova instruere auctoritas." — Cod. 
 1. i. t. xvii. 2, 18. 
 
 Savigny, H. H, i. s. 46 ; Auslegung der Gesetze-Analogie. 
 
 Boivyers Readings, p. 88 : " Analogy is the instrument of the pro- 
 gress and development of the law." See some good observations on the 
 use of analogy in the English Law in the cases of Mirehouse v. Reti- 
 tiell, 8 Binghani's Rep, 518 j Bond v. Hopkins, 1 Schoales and Lefroy, 
 Rep. 429. 
 
CONSENT OF NATIONS. 37 
 
 CHAPTER V. 
 
 CONSENT OF NATIONS. 
 
 XL. The next and only other source of International 
 Law is the consent of Nations. The obligations of Natural 
 and Revealed Law exist independently of consent of men or 
 nations, and although the latter acknowledge no one superior 
 upon earth, they, nevertheless, owe obedience to the laws 
 which they have agreed to prescribe to themselves, as the 
 rules of their intercourse both in peace and war (a). 
 
 How and where is this consent expressed? It is not 
 indeed to be found in any one written code : but this may be 
 the case with the Municipal or Common Law of any country, 
 as it was till lately with the institutions of every European 
 nation, and as it is now with those of Great Britain. 
 
 XLI. This consent is expressed in two ways : — 1. It 
 is openly expressed by being embodied in positive con- 
 ventions or treaties. 2. It is tacitly expressed by long 
 usage, practice, custom, — " Jus moribus et tacito pacto in- 
 " troductum " (b), — according to Grotius ; or, in the precise 
 language of Bynkershoek, '^Ipsum jus gentium, quod oritur e 
 " pactis tacitis et praesumptis quae ratio et usus inducunt " (c). 
 
 (a) "Quiim enim gentes nulla superiore in terris contineantur, sunt 
 illis pro legibus, quae ipsi sibi dixere ; vel scriptis tabulis vel moribus in- 
 troductis, qui ssepe scripturis istis comprobantur." — Leibnitz, Disser- 
 tatio 11, " De actorum publicorum usu atque de principiis juris 
 natura et gentium," &c., a. i. p. 310. 
 
 " Sed sicut cuj usque civitatis jura utilitatem suae civitatis respiciunt, 
 ita inter civitates aut omnes, aut plerasque, ex consensu jura qusedam 
 nasci potuerunt ; et nata apparent, quae utilitatem respieerent non coetuum 
 singulorum, sed magnse illius universitatis. Et boc jus est quod jus 
 gentium dicitur, quoties id nomen a jure naturali distinguimus." — Grot. 
 De J. B. et P. Troleg. s. 17. 
 
 (6) Grotii Proleg. s. 1, De Jure B. et P. 
 
 (e) Qucsstiones Juris Publici, 1. iii. c. x. Again he says, '*Ut in 
 omni argumento, quod de jure gentium est, ratio et usus faciunt utram- 
 que paginam." — lb. c. v. 
 
 I 
 
38 INTERNATIONAL LAW. 
 
 XLII. Customs and usages which have long subsisted be- 
 tween nations constitute a law to them: " Nee negamus," says 
 Grotius, " mores vim pacti accipere " {d). Each State has a 
 right to count upon the presumption of their continuance : 
 in no instance are they to be lightly departed from by any 
 single nation ; never without due notice conveyed to other 
 countries, and then only in those cases in which it may be 
 competent to a nation so to act. 
 
 For instance, a State may refuse — though it would be a 
 defeazance of comity bordering upon hostility — to receive 
 the resident Ambassador of another State ; but if it does 
 receive him, it must accord to him the full privileges of his 
 station : they are secured to him by the universal consent of 
 all nations, which it is not competent to any individual 
 nation at her pleasure to abrogate or deny. 
 
 So in the case of the Louis, Lord Stowell reversed the 
 sentence of a Vice-Admiralty Court, which had condemned 
 a French ship for being employed in the slave trade, and 
 resisting the search of a British cruiser, saying, " That 
 " neither a British Act of Parliament, nor any Commission 
 *' founded on it, can affect any right or interest of foreigners, 
 " unless they are founded upon principles, and impose regula- 
 " tions that are consistent with the Law of Nations. That 
 ** is the only Law which Great Britain can apply to them ; 
 " and the generality of any terms employed in an Act of 
 " Parliament must be narrowed in construction by a religious 
 '* adherence thereto " (e). 
 
 (d) Lib. ii. c. v. s. 24, p. 259. " It is my duty not to admit that, 
 because one nation has thought proper to depart from the common 
 usage of the world, and to meet the notice of mankind in a new and 
 unprecedented manner, I am, on that account, under the necessity of 
 acknowledging the efficacy of such a novel institution, merely because 
 general theory might give it a degree of countenance, independent of 
 all practice, from the earliest history of mankind." — Flad Oyen, 1 Rob. 
 139-14G. See, too, Vattel, ii. 1. iv. c. vii. s. 106. 
 
 Bynkershoeh, de Foro Legatorum, c. v. ad Jin., speaking of the attempt 
 to subject a foreign prince to a municipal tribunal by seizing some 
 trifling property of his as it passed through the kingdom, says, "Nee 
 quicquam magis erit conixA prcssumtam si non testatum mcntem gentium." 
 
 (e) 2 Dodsoii's Admiralty Reports, p, 239. 
 
CUSTOM. 39 
 
 The force of International Custom is emphatically ex- 
 l^ressed by Grotius in the phrase often repeated by him, 
 *^ Placuit gentibus " (/) ; and still more in the phrase, 
 " Cliristianis in universum placuW^g). Bynkershoek speaks 
 of " Ilia perpetuo usu inter diversos sui juris populos 
 " observata consuetudo," and repeatedly of the " Gentium 
 ** usus " as one of the two pillars of International Law. 
 
 Prince Talleyrand, in his note (19th December, 1814) to 
 the Congress of Vienna, expostulated upon the violation 
 of International Law contained in the arrangements which 
 sanctioned the fresh partition of Poland, and the annexation 
 of parts of Saxony to Prussia. He said that such arrange- 
 ments would tend to establish the principle, " That the 
 " nations of Europe are united to each other by no other moral 
 " ties than those which unite them to the islanders of the 
 " Pacific; that they live among each other under the pure law 
 " of nature, and that what is called the Public Law of Europe 
 " does not exist ; since although all the civil societies of the 
 " earth are, wholly or partially, governed by usages which 
 " constitute laws, the customs which are established between 
 " the nations of Europe, and which they have universally, 
 " constantly, and reciprocally observed for three centuries, 
 " do not form a law for them ; in one word, that there is no 
 " other law but that of force " (A). 
 
 XLIII. Lord Stowell frequently expressed his entire 
 concurrence with the ojiinions of preceding jurists as to 
 the great and inestimable influence of Custom upon the 
 Rights and Duties of Nations. Speaking of the condemna- 
 tion of a ship in a neutral country, he says : " It has been 
 " contended that such a sentence is perfectly legal, both on 
 
 (/) De J. B. et P. 1. ii. c. xviii. 4, s. 5 j 1. iii. c. vi. 3 ; c. vii. 5, s, 2. 
 
 {g) Lib. iii. c. vii. 9, s. 1. '^Hoc saltern . , . perfecit revereutia 
 fCliristiaiKfi legis." — lb. 
 
 As to preserving women from violence : " Atque id inter Christianos 
 [observari par est non tantum ut disciplinse militaris partem, sed et ut 
 Z7'teni Juris gentium.'''' — Lib. iii. c. v. xix. s. 2 ; cf. The Flad Oyen, 1 
 \Roh. Adm. Rep. 141 {Lord Stowell). 
 
 (h) Wheaton^s History of the Lmo of Nations, p. 429. 
 
 Kliiber, Acten des Wiener Congresses, band vii. s. 48. 
 
40 INTERNATIONAL LAW. 
 
 " principle and authority. It is said that, on principle, the 
 " security and consummation of the capture is as complete in 
 " a neutral port as in the port of the belligerent himself. On 
 " the mere principle of security it may perhaps be so ; but 
 " it is to be remembered that this is a matter not to be 
 ** governed by abstract principles alone ; the use and practice 
 " of nations have intervened, and shifted the matter from its 
 " foundations of that species : the expression which Grotius 
 " uses on these occasions (^Placuit gentihus) is, in my opinion, 
 " perfectly correct, intimating that there is a use and practice 
 " of nations, to which we are now expected to conform " (J). 
 
 In another case (J), he says : " This is a position in which 
 '* I am justified by the general practice of mankind, and the 
 " practice of mankind forms one great branch of the law of 
 *' nations." Throughout his celebrated judgment in The 
 Maria (k) he relies invariably upon " the law and practice of 
 *' nations." And again, in The Santa Cruz, after having ob- 
 served that there is no statute of the British Parliament upon 
 the subject of Prize which directly applies to recapture, he 
 continues : " But there is a law of habit, a law of usage, a 
 *' standing and known principle^ on the subject in all civilized 
 " and commercial countries : it is the common practice of 
 " European States in every war to issue proclamations and 
 " edicts on the subject of Prize ; but till they appear. Courts 
 " of Admiralty have a law and a usage on which they 
 ** proceed, from hahit and ancient practice, as regularly as 
 " they afterwards conform to the express regulations of their 
 *^ prize acts "(Z). 
 
 Similar expressions abound in the luminous expositions of 
 International Law which these judgments afford. 
 
 («) The Henrick and Maria, 4 Rob. Adm. Rep. pp. 54, 55. 
 
 0") The Progress, 7 Roh. Adm. Rep. 220. 
 
 (k) 1 Robinson's Adm. Rep. 350, 362, &c. See, too, Flad Oym, lb. 
 140, 141. 
 
 {I) 1 Robinson^ 8 Adm. Rep. p. 61. 
 
 The Mercurius, 1 Rob. Adm. Rep. p. 82 : " Under the modern law of 
 nations." The 3Iaria, lb. 371 a: "According to the modern under- 
 standing of the law of nations." 
 
 The Santa Cruz, 1 Rob. Adm. Rep. p. 65 ; The Elsebe, 4 lb. p. 421. 
 
CUSTOM. 41 
 
 XLI V. The Law of Nations has received continual acces- 
 sions and improvements since the first cultivation of it in the 
 Christian world ; not only have evil customs been abrogated, 
 but the rigour of many ancient customs has been softened and 
 relaxed in their application, without any departure from the 
 principle on which they were founded. This effect is happily 
 described by Lord Stowell ; when speaking of contraband 
 articles found on board a neutral vessel, he says, " I do not 
 " know that under the 'present practice of the Law of 
 " Nations, a contraband cargo can affect the ship. By the 
 " ancient laic of Europe, such a consequence would have 
 " ensued ; nor can it be said that such a penalty was unjust, 
 " or not supported by the general analogies of lata, for the 
 " owner of the ship has engaged it in an unlawful commerce. 
 " But in the modern practice of the Courts of Admiralty 
 *^ of this country, and I believe of other nations also, a 
 '* milder ride has been adopted^'' (m). On the other hand, 
 usage has decided that many things are contraband in naval 
 war concerning which there had formerly been much dis- 
 pute. Yalin says honestly and boldly in his Commentaries, 
 " De droit ces choses sont de contrabande aujourd'hui et 
 " depuis le commencement de ce siecle, ce qui n'etait pas 
 " autrefois neanmoins " {ii). There must be, however, a 
 reciprocity (o) in the conduct of the nation demanding from 
 another nation the privilege of these mitigations introduced 
 by usage into the ancient Law; and a nation may be estopped 
 by its usage from claimiug the benefit of a principle of the 
 Law of Nations which would operate in its favour. 
 
 XLV. Such is the influence of universal usage, that it 
 will in some measure affect even the stipulations of a treaty 
 made long prior to the commencement of that usage, and at 
 a time when the law, which has been since settled, was in a 
 state of fluctuation and controversy (p). 
 
 (m) The Ringende Jaeoh^ 1 Moh. Adm. Hep. p. 90. 
 (n) Ordonnance de la Marine, 1. iii. t. ix. art. xi. 
 (o) The Santa Cruz, 1 Roh. Adm. Bep. pp. 49, 64. 
 {p) The Maria, 1 Roh. Adm. Rep. pp. 371-373. 
 
42 INTERNATIONAL LAW. 
 
 In 1654, a treaty was entered into between England 
 and Portugal, by which, among other things, both countries 
 mutually bound themselves not to suffer the ships and goods 
 of tlie other taken by enemies, and carried into the ports of 
 the other, to be conveyed away from the original owners or 
 proprietors. " Now, I have no scruple in saying " (observes 
 Lord Stowell, in 1798), " that this is an Article incapable of 
 " being carried into literal execution, according to the modern 
 " understanding of the Law of Nations, for no neutral 
 " country can interpose to wrest from a belligerent prizes 
 " lawfully taken " (q). This is, perhaps, the strongest 
 instance that could be cited, of what civilians call the 
 " consuetudo ohrogatoria " (r). 
 
 XL VI. So the establishment of Courts of the Law of 
 Nations in all civilized countries in time of war, is an insti- 
 tution introduced by civilized usage, and binding upon all 
 civilized countries. 
 
 Neutral Nations in time of War have now no right (5), 
 when they are injured, to exact compensation from the 
 countrymen of the aggressors (^), though the Barbary States 
 were said by Lord Stowell to do so, "under a Law of Nations 
 " now peculiar to themselves " (ii). Neither in time of 
 Peace are Nations entitled to have recourse to Reprisals, 
 until reparation for the injury sustained has been formally 
 asked and denied, both of the proper tribunal, and of the 
 government, in re minime duhia. 
 
 These points, however, wiU receive a fuller discussion in 
 another part of this work. 
 
 (q) The Santa Cruz, 1 Roh. Adm. Rep. pp. 49, 04. See also vol. ii. 
 p. 732, of 8ir Leoline Jenkins's Works. 
 
 (r) Savigny, System des Romischen RecMsj b. i. 195. 
 
 Rynkershoek, de Foro Legat. c. xix. s. 7. 
 
 (s) Bynkershoek, Ohsa-vationes Juris Romani, c. ii. vol. ii. : '' Propul- 
 satio vis atque injuriae quo sensu juri gentium tribuatur." 
 
 (t) The Maria, 1 Rob. Adm. Rep. p. 373 ; The WaUingham Packet, 
 lb. p. 83 ; The Sni^Je and others, Edwards's Adm. Rep. p. 412. 
 
 (m) The Kinder Kinder, 2 Rob. Adtn. Rejh p. 88. 
 
HISTORY. 
 
 CHAPTER VL 
 
 43 
 
 HISTORY. 
 
 XL VII. Such being the influence of usage upon Inter- 
 national Law {a), it becomes of importance to ascertain where 
 the repositories, and what the evidence, may be of this great 
 source of International Law. 
 
 XLVIII. (1.) In the enumeration of these, History, unless 
 the term be too general, necessarily takes the first place. It 
 supplies, according to Grotius, both example and authorita- 
 tive judgments — of which the latter owe their weight to the 
 general acceptance which they have obtained, whilst the 
 former are more or less valuable according as they are more 
 or less derived from epochs and Nations more or less entitled 
 to universal respect (Z>). 
 
 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 "</ew5," and as having ^^justum imperium.'^- He did 
 not receive the same distinction for his destruction of the 
 pirates who infested the Mediterranean : " Tantum discri- 
 " men," Grotius observes (5-), "est inter populum quantumvis 
 " sceleratum, et inter eos, qui, cum populus non sint, sce- 
 " leris causa coeunt." 
 
 In the time of Charles the Second of England, Molloy 
 wrote as follows : " Pirates that have reduced themselves 
 *' into a Government or State, as those of Algiers, Salley, 
 " Tripoli, Tunis, and the like, some do conceive ought not 
 " to obtain the rights and solemnities of war, as other towns 
 " or places; for though they acknowledge the supremacy of the 
 " Porte, yet all the power of it cannot impose on them more 
 " than their own wills voluntarily consent to." He there men- 
 tions that Louis IX. treated them as a nest of wasps (r), and 
 unworthy of the rights of civilized war ; " notwithstanding," 
 he adds, " this Tunis and Tripoli, and their sister Algiers, do 
 " at this day (though nests of pirates) obtain the rights of 
 " legation : so that now (though indeed pirates), yet having 
 " acquired the reputation of a Government, they cannot 
 " properly be esteemed pirates, but enemies " (5). Bynker- 
 shoek (t), some years afterwards, expressed yet more strongly 
 
 (y) Ijib. iii. c. iii. s. 2. 
 
 (r) " Bngia ed Algieri, infami nidi di corsari." — Tasso. 
 
 (s) Molloy, 8. 4, p. 33. 
 
 (f) " Quod autem Alhericus Gentilis {Advoc. Hispan. 1. i. c. xv.) aliique 
 eos qui Harbor i in Africa vocantur, jure pirataruni censent, et eorum 
 occupatione dominium mutari negant, nulla ratione defendi potest — 
 Algerienses, Tripoli tani, Tunitani, Zaleenses piratse non sunt, sed civitates, 
 quve certara sedem atque ibi iraperium habent, et quibuscum nunc pax 
 est nunc belluni, non secus ac cum aliis gentibus^ quique propterea 
 
I 
 
 BARBARY STATES. 85 
 
 the same opinion. And in the year 1801, Lord Stowell fully 
 adopted this position, and asserted that the African States 
 had long ago acquired the character of established Govern- 
 ments, with whom we have regular treaties acknowledging 
 and confirming to them the relations of legal communities (u); 
 and he remarked that, although their notions of International 
 justice differ from those which we entertain, we do not on 
 that account venture to call in question their public acts — 
 that is to say, that although they are perhaps on some points 
 entitled to a relaxed application of the principles of Inter- 
 national Law, derived exclusively from European custom, 
 they are nevertheless treated as having the rights and duties 
 of States by the civilized world (x). 
 
 ceterorum principum jure esse videntur." — Bynkershoek, Qn<sst. J. P. 
 
 b. i. c. 17. 
 
 («) The Helena, 4 Hob. A dm. Rep. p. 5. Life of Sir Leoline Jenkins, 
 vol. ii. p. 794. 
 
 (x) It is well known that, for some time, the lawfulness of any deal- 
 ings, much more any treaty, between the Christi'an and the Turk 
 was denied. Albericus Gentilis discusses (Z)e Jure Belli, lib. iii. c. xix.), 
 " Si foedus recte contrahitur cum diversse religionis hominibus, quaes- 
 tio partim theologica, partim civilis." He treats it, however, for the 
 most part, theologically, and arrives at the conclusions that commerce 
 is lawful between Christian and Heathen States, but not in alliance 
 against another Heathen State ; and, a fortiori, not against another 
 Christian State. Nevertheless, in a former chapter he had said, with a 
 liberality scarcely known to the age in which he lived, " Keligionis jus 
 hominibus cum hominibus proprie non est: itaque nee jus laeditur 
 hominum ob diversam religionem ; itaque, nee belliim causa religionis. 
 Religio erga Deum estj jus est divinum, id est, inter Deum et 
 hominem ; non est jus humanum, id est, inter hominem et hominem: 
 nihil igitur quseritat homo violatam sibi ob aliam religionem." — Lib. i. 
 
 c. ix. 
 
 Grotius, Be J. B. et P. lib. ii. c. xv. 8-12 : " De foederibus frequens 
 est qusestio, licitene ineantur cum his qui a vera religione alieni sunt : 
 quae res in jure naturae dubitationem non habet; nam id jus ita omnibus 
 hominibus commune est, ut religionis discrimen non admittat. Sed de 
 jure divino quaeritur." 
 
 Lord Coke said there were four kinds of Leagues : 1st, Foedus Pacts ; 
 2nd, Foedus Congratulationis ; 3rd, Foedus Cotnmutationis Mei'cium: 
 these three might exist between a Christian and an Infidel State, but 
 the 4th, Foedtis Mutui Auxilii, could not. — Uh Lnstit. 155. 
 
 Ward's Law of Nations, ii. 321 (O/* Treaties with Powers not Christian), 
 
86 INTERNATIONAL LAW. 
 
 These observations were always applicable in some depjree 
 to the relations of the Ottoman Porte itself with other 
 Governments. The Ottoman Empire extends, whether in 
 Asia, Africa, or Europe, over a vast variety of distinct nations 
 and separate races. Hardly have those separate races which 
 profess the Mahometan religion coalesced into one nation. 
 But the Christian, whether of the Greek or the Roman 
 Catholic Faith, has never entirely lost those distinctions of 
 origin, manners, institutions, and, above all, of religion, 
 which eternally separate him from the Turk. These dis- 
 tinctions have always been and must always be indelible. 
 The Mahometan and the Christian may live under the same 
 government (y), but they will remain distinct nations. The 
 two streams are immiscible in their character, and will never 
 " flow the same." 
 
 It is unnecessary to consider the relations of the Algerine 
 State with Europe. The gallant exploit of Lord Exmouth 
 in 1815, and the bombardment of Algiers, compelled the 
 Dey not only to set free his slaves and to abolish all Chris- 
 tian slavery, but also to promise a compliance with the 
 usages of civilized States (z). Nevertheless, Algerine piracy 
 was not entirely suppressed till 1830-1838, when the French 
 took possession of Algiers and a portion of the adjoining 
 territory. It is unnecessary to consider whether, in these 
 circumstances, this act was entirely justifiable, whether a 
 conquest of the territory was the only or right means of 
 avenging an insult (a). The conquest has, I think, been of 
 service to Christendom, and generally to the civilized world. 
 It should be observed, however, that, in spite of the remon- 
 strance of England, no attention whatever was paid by 
 France to the rights and interests of the Porte as Suzerain 
 of the Dey (b). The subsequent incorporation of all the 
 
 (y) See Lord Stowell's Judgment on The Indian Chief, 3 Mobinson's 
 Admiratty Reports, p. 29. 
 (s) Ann. Beg. 1816, p. 97. 
 (o) Ann. ^eg. 1830, p. 238. 
 (h) M. Guizot is silent on this point, and I cannot agree with the pro- 
 
OTTOMAN EMPIRE. 87 
 
 Algerine territory in 1841-1847 was another act of con 
 quest which the necessity of maintaining the former con 
 quest was alleged to justify (c). 
 
 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 
 Sultan. 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 (d^). 
 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 
 contained in the Treaty which was the result of the Congress. 
 Nevertheless, the International intercourse between the 
 
 position which precedes his historical reference to the fact of the capture 
 of Algiers. The doctrine of national instincts of aggrandisement is, pace 
 tanti vi?'i, most unsound, and has been very mischievous to France. 
 
 (cl " L'immohilite ext^rieure n'est pas toujours la condition obligee 
 des Etats, de grands mterets nationaux peuvent couseiller et autoriser 
 la guerre ; c'est une honnete erreur, mais une erreur de croire que, pour 
 etre juste, toute guerre doit etre purement defensive j il y a eu et il y 
 aura, entre les Etats divers, des conflits naturels et des changements 
 territoriaux legitimes ; les instincts d'agrandissement et de gloire ne 
 sont pas, en tout cas, interdits aux nations et a leurs chefs. Quand le 
 roi Charles X, en 1830, declara la guerre au dej d'Alger, ce n'etait 
 point la, de notre part, une guerre defensive, et pourtant celle-la etait 
 legitime ; outre I'affront que nous avions a venger, nous donnions enfin 
 satisfaction a un grand et legitime interet, fran9ais et europeen, en 
 d^livrant la Mediterran^e des pirates qui I'infestaient depuis des 
 siecles." — Gtdzot, Memoires pour servir d. THistoire de mon Temps, tome 
 iv. pp. 9, 10. 
 
 The same author writes (tome vii. ch. xli. pp. 125-6) : " Quant a 
 la necessite de soumettre completement les Arabes et d'etablir la domi- 
 nation fran9aise dans toute I'etendue de I'Algerie, j'etais de I'avis du 
 general Bugeaudj la question n'etait plus, comme de 1830 a 1838, 
 entre I'occupation restreinte et I'occupation etendue ; la situation de la 
 France dans le nord de I'Afrique avait change ; les faits s'etaient ddve- 
 loppes et avaient amene leurs consequences -, la conquete effective de 
 toute I'Algdrie 6tait devenue la condition de notre etablissement a Alger 
 et sur la cote." 
 
 (d) 2 Miltitz, Manuel des Cotistds, p. 1571. 
 
88 INTERNATIONAL LAW. 
 
 Sultan and other Powers was then, and had been for a long 
 time, upon a much stricter footing of legality, than had sub- 
 sisted between those powers and the African or Barbary States. 
 
 Long before the Treaty of Vienna (1815) the Crescent 
 had ceased to be an object of terror to Christendom ; and a 
 principle of International Policy with respect to the Ottoman 
 Power, directly the reverse of that which had formerly pre- 
 vailed, had taken root in Europe — namely, the principle 
 that the preservation and independence of the Ottoman Power 
 was necessary for the safety of European Communities {e). 
 
 LXVI. The Treaties affecting the relations of Russia 
 with the Porte are the following : — 
 
 Adrianople 1681 
 
 Carlowitz 1699 
 
 Constantinople 1700 
 
 Constantinople ...... 1709 
 
 Peace of Pruth 1711 
 
 Constantinople 1712 
 
 Adrianople 1713 
 
 Constantinople 1720 
 
 (By this treaty a Russian Minister was per- 
 mitted to reside at Constantinople.) 
 
 Belgrade 1739 
 
 Kaynardgi ....... 1774 
 
 Explained 1779 
 
 Constantinople 178-3-4 
 
 Szistowe, Gallacz, Yassy . . . 1790-1-2 
 
 Constantinople 1809 
 
 Bucharest 1812 
 
 Ackerman 182Q 
 
 Adrianople 1829 
 
 Unkiar Skelessi 1833 
 
 London 1840 
 
 Dardanelles 1841 
 
 Balta Liman 1846 
 
 Balta Liman 1849 
 
 LXVII. But the general Treaties between the Ottoman 
 
 (e) The question of the Religious Protectorate claimed by Christian 
 Powers with respect to the Christian subjects of the Sultan, both in 
 Europe and Asia, will be discussed hereafter. 
 
 Vide ante, ch. ri. Treaties. 
 
THE PORTE. 89 
 
 Porte and the European States appear to be best arranged 
 as follows : — 
 
 1. From the conquest of Constantinople to the Treaty of Carlowitz, 1699. 
 
 2. From the Treaty of Carlowitz, 1699, to the Treaty of Belgrade, 1739. 
 
 3. From the Treaty of Belgrade, 1739, to the Treaty of Bucharest, 1812. 
 
 4. From the Treaty of Bucharest, 1812, to the Treaty of the Dardanelles 
 
 in 1841. 
 
 5. From the Treaty of the Dardanelles, 1841, to the present time. 
 
 6. The Treaty of Paris, 1856. 
 
 LXVIII. By the Treaty of Vienna in 1731 Great Britain 
 made common cause with Austria against every enemy but 
 the Turk (/). 
 
 The Peace of Szistowe (1791), between Austria and the 
 Porte, and the Peace of Jassy (1792), between Russia and 
 the Porte, were concluded under the mediation of the triple 
 alliance of Great Britain, Prussia, and Holland. 
 
 In 1798, when Napoleon invaded Egypt, Russia and the 
 Porte concluded an alliance confirming the Treaty of Jassy, 
 and mutually guaranteeing the integrity of their dominions. 
 To this Treaty Great Britain acceded in 1799: it expired 
 in 1806, and was renewed in 1809 by the Treaty of Con- 
 stantinople, by the eleventh article of which Great Britain 
 acknowledged that the strait of the Dardanelles was mare 
 clausum under the dominion of the Porte. 
 
 The Treaty of Bucharest, in 18 12, put an end to the hosti- 
 lities which had raged between Russia and the Porte since 
 1809. This Treaty greatly advanced the boundary of Russia. 
 It contained stipulations confirming those of former Treaties 
 in favour of the national privileges of Moldavia andWallachia, 
 and it contained some conditions in favour of the Christian 
 Servians, which, in 1813, were violated with circumstances 
 of great barbarity ; but the Servians applied in vain to the 
 Congress of Vienna for mediation or succour. 
 
 In 1819 the Porte recognized the Protectorate of Great 
 Britain over the Ionian Islands {g). 
 
 (/) Mahly, Droit public de V Europe, ii. 226. 
 
 {g) The subsequent surrender of this Protectorate in 1863 is considered 
 in the next chapter. Martens, Nouv. Rec. de Traites, xiii. (5 Supp.) 
 
90 INTERNATIONAL LAW. 
 
 In 1828 the Great Powers interfered with the Porte on 
 behalf of the Greeks, whose independence they established 
 after the battle of Navarino. 
 
 In 1829 the Treaty of Adrianople was concluded between 
 Russia and the Porte, by which the power of the latter was 
 much increased, especially with regard to the mouths of the 
 Danube, in a manner scarcely consistent with the Public Law 
 of Europe (A). In 1833, the Treaty of Unkiar Skelessi was 
 concluded between Russia and the Porte, the avowed object 
 of which was to protect the Porte against the rebellion of the 
 
 380. The Treaty containing this recognition sets forth the titles of the 
 Sultan, and the style of the Porte's negotiations with Christian States : — 
 '* Nous, par la gmce du souverain maitre des empires et du fondateur 
 immuable de I'^difice solide du califat, par I'influence merveilleuse du 
 modele des saints, du soleil des deux mondes, notre grand prophete 
 Mahomet Mustapha, ainsi que par la cooperation de ses disciples et 
 successeurs, et de toute la suite des saints, sultan, fils de sultan, em- 
 pereur, fils d'empereur, Mahmoud-IIan, vainqueur, fils d' Ahmed-Han, 
 vainqueur, dont les nobles diplomes sont decores du titre souverain de 
 sultan des deux hemispheres; dont les ordonnances portent le noni 
 ^clatant d'empereur des deux mers, et dont les devoirs attaches a notre 
 dignity imp(5riale consistent dans I'administration de la justice, les soins 
 d'un bon gouvernement, et I'assurance de la tranquillite de nos peuplea ; 
 seigneur et gardien des plus nobles villes du monde, vers lesquelles se 
 dirigent les voeux de tons les peuples, des deux saintes villes de la Mecque 
 et de M^dine, du sanctuaire interieur du pays saint ; calife supreme des 
 contr^es et provinces situees dans I'Anatolie et la Romelie, sur la mer 
 Noire et sur la mer Blanche, dans I'Arabie et la Chaldee ; entin, glorieux 
 souverain de nombreuses forteresses, chateaux, places et villes, nous 
 declarons : — 
 
 ''Que, vu la parfaite union et I'^ternelle amiti^ qui regnent entre 
 notre Sublime Porte, d'eternelle dur^e, et le plus glorieux de tons les 
 grands princes qui croient en Jesus-Christ, le modele de tons les per- 
 sonnages d'un rang 6lev6 de la nation du Messie, le mediateur des 
 interets politiques des peuples, revetu des ornemens de la majeste et de 
 la gloire, et convert des marques de la grandeur et de la celebrit<5, 
 Sa Majesty notre tres-estimable, ancien, intime, sincere, et constant 
 ami, le roi (padischah) des royaumes unis d'Angleterre, d'Ecosse, et 
 d'Irlande, et d'une grande partie des pays qui en dependent, George III 
 (dont la fin puisse etre heureuse !), 
 
 " L'une et 1' autre cour ont le d^sir et I'intention la plus sincere 
 d'afiermir les bases de leur amitid, et de resserrer de plus en plus les 
 liens de la bonne intelligence et de I'intimitd qui les unit." 
 
 (A) Vide post. 
 
THE PORTE. 91 
 
 Pasha of Egypt. The casus foederis contemplated by this 
 Treaty having arisen, the other European Powers interposed, 
 on the double ground of protecting the Porte against Egypt, 
 and of preventing the protectorate of the Porte from being 
 exclusively vested in and exercised by Russia. 
 
 A convention between all the European Powers, except 
 France, took place in London, July 15, 1840, for the pacifi- 
 cation of the East, to which the Porte also was a party. 
 The maintenance of the integrity and independence of the 
 Ottoman Empire as a security for the Peace of Europe was 
 the avowed principle of this convention. 
 
 The language of the preamble of the Treaty is as follows : 
 
 " In the name of the most merciful God. 
 
 " His Highness the Sultan having addressed himself to 
 
 '< their Majesties the Queen of the United Kingdom of Great 
 
 " Britain and Ireland, the Emperor of Austria, King of 
 
 " Hungary and Bohemia, the King of Prussia, and the 
 
 " Emperor of all the Bussias, to ask their support and assist- 
 
 " ance in the difficulties in which he finds himself placed by 
 
 " reason of the hostile proceedings of Mehemet Ali, Pacha of 
 
 "Egypt; — difficulties which threaten with danger the 
 
 " integrity of the Ottoman Empire, and the independence of 
 
 " the Sultan's throne ; their said Majesties, moved by the 
 
 " sincere friendship which subsists between them and the 
 
 " Sultan ; animated by the desire of maintaining the integrity 
 
 " and independence of the Ottoman Empire as a security for 
 
 " the peace of Europe ; faithful to the engagement which they 
 
 " contracted by the collective note presented to the Porte by 
 
 " their representatives at Constantinople, on the 27th of July, 
 
 " 1839 ; and desirous, moreover, to prevent the effusion of 
 
 " blood, which would be occasioned by a continuance of 
 
 " the hostilities which have recently broken out in Syria 
 
 " between the authorities of the Pacha of Egypt and the 
 
 "subjects of the Sultan; their said Majesties and his 
 
 " Highness the Sultan have resolved, for the aforesaid pur- 
 
 " poses, to conclude together a Convention " (i). 
 
 (?■) Ilertslefs Treaties, vol. v. p. 644. 
 
92 INTERNATIONAL LAW. 
 
 By the Treaty of the Dardanelles (July 10th, 1841) the 
 five great European Powers admitted the exclusive authority 
 of the Porte over these straits, and incorporated this principle 
 of Law into the wTitten Law Qus pacticium) of Europe {k). 
 
 Lastly, the important Treaty of Paris, 1856 (as has been 
 mentioned in a former chapter), placed the independence and 
 integrity of the Ottoman Empire under the guarantee of 
 England, Austria, and France. 
 
 Some of these Treaties, and the events which led to them, 
 will be noticed more at length hereafter. But it is clear, 
 even from this slight and cursory notice, that the Porte must 
 now be considered as subject, with only such exceptions as 
 the reason of the thing may dictate, not only to the principles 
 of general International Law, but to the particular provisions 
 of the European Code (J). The Haiti- Slierif o^ 1856, rela- 
 tive to the Hierarchy of the Greek Church and non-Mus- 
 sulman subjects generally, will be considered hereafter (m). 
 The peculiar relations which subsist between the Porte and 
 Egypt will be considered in the next chapter. 
 
 {k) Wheaton's Hist. 289, 555-585. 
 
 (7) Speech of the Earl of Clarendon {Secretary of State for Foreign 
 Affairs), in the House of Lords, April 1853, on the interference of the 
 Continental Powers in the relations subsisting between the Porte and 
 Montenegro. See also the Debates in both Houses of Parliament 
 upon the subject of Russian intervention in Turkey on the ground of 
 an alleged Religious Protectorate of the Greek Church. — Hansard's Pari. 
 Deb. 1853 j Eoch. iv. 349. Vide post, chapter on " Intervention.'"' I say 
 this non obstante the opinion expressed by M. Guizot, Mem. vi. eh. 
 xxxvii. pp. 257, 8. 
 
 (m) Ann. Meg. 1866; State Papers, 337. Vide post, chapters on " Inter- 
 vention," and on '* International Status of Foreign Spiritual Powers." 
 
DIFFERENT KINDS OF STATES. 93 
 
 CHAPTER II. 
 
 DIFFERENT KINDS OF STATES. 
 
 LXIX. Having considered the general attributes and 
 characteristics required by International Law for the consti- 
 tution of a State, it becomes necessary to apply these tests to 
 the different forms of States which are found to exist, in order 
 to fix the position of each in the Commonwealth of Nations. 
 This part of the subject appears to admit of the following 
 principal division : — 
 
 First. One or more States under One Sovereign. 
 
 Secondly. Several States under a Federal Union. 
 
 LXX. I. — As to one or more States under one Sovereign. 
 It is proposed to consider this first branch of the principal 
 division under the following heads : — 
 
 1. Single States, under one Sovereign. 
 
 2. Several States perpetually united {reali unione) under 
 one Sovereign. 
 
 3. The peculiar case of Poland. 
 
 4. Several States temporarily united under one Sovereign 
 (personali unione). 
 
 5. A State under the Protectorate of another, or of others, 
 but retaining its International personality. 
 
 6. A State under such Protectorate so as to have forfeited 
 its International personality. — The Ionian Islands. 
 
 7. The European Free Towns or Republics. 
 
 8. The peculiar case of Belgium. 
 
 9. The peculiar case of Greece. 
 
 10. States paying tribute, as standing in a Feudal relation 
 to other States. — The Turkish Provinces. 
 
 11. The peculiar case of Egypt. 
 
 LXXI. First. — With respect to a Single State, under One 
 Sovereign, like Spain or Portugal as at present constituted, 
 
94 INTERNATIONAL LAW. 
 
 no doubt can be raised as to such a State being the proper 
 subject of International Law. 
 
 LXXII. Secondly. — Where several States, perpetually 
 under one Sovereign {reali unione), have retained certain (a) 
 rights and privileges as far as their International Relations 
 are concerned, but have lost all separate and distinct exist- 
 ence as far as their External Relations are concerned, they are 
 not, properly and strictly speaking, subjects of International 
 Law — at least, they can only be so mediately and indirectly, 
 and not directly and immediately. For instance, a State 
 which entered into any negotiations with Hungary or Ire- 
 land as independent States (even while they possessed a 
 separate legislature) would have been guilty of a gross 
 violation of International Law towards Austria or Great 
 Britain. 
 
 LXXIII. Thirdly. — The particular State of Poland requires 
 a distinct and separate consideration. The various partitions 
 of that unhappy country are not now under discussion ; it is 
 with the condition of Poland under the Treaty of Vienna, and 
 the Russian manifesto of 1832, that we are at present con- 
 cerned. The union established between Russia and Poland 
 by the Congress of Vienna was of an wholly anomalous 
 kind. By the first act of that Congress the Duchy of Warsaw, 
 with the exception of certain districts, was united to the 
 Russian Empire, and was irrevocably bound by its constitu- 
 tion to belong to the Emperor of Russia, and his heirs in all 
 perpetuity. The Emperor undertook to confer on this State, 
 which was to be under a separate and distinct government, 
 
 (a) Grotius, Be J. B. et P. lib. i. c. iii. s. 21 ; lib. ii. c. ix. s. 9: — 
 " Quod si quando uniantur duo populi non amittentur jura sed com- 
 
 municabuntur Idemque censendum est de regnis quae non 
 
 foedere, aut eo duntaxat quod regem communem habeant sed vera uni- 
 tate junguntur." 
 
 Vattel, I. liv. i. c. 1. 
 
 Oppenheim, System des Volkerrechts, zweiter Theil, kap. vi. s, 4. 
 
 Wheaton, Elements du Droit international, p. 20. 
 
 Elilber, Europdisches Volkerrecht (ed. 1851), erster I'heil, kap. i. 
 s. 27. 
 
 Ileffter, Europ. Volkerrecht, s. 20. 
 
I 
 
 DIFFERENT KINDS OF STATES. 95 
 
 such powers of internal administration as he might think fit. 
 The Emperor was to take the title of King of Poland. The 
 Poles, whether subjects of Austria, Prussia, or Russia, were to 
 obtain representative institutions, regulated according to the 
 manner which might seem expedient to the respective Govern- 
 ments. In conformity with these stipulations, the Emperor 
 Alexander granted a constitutional charter to the Kingdom 
 of Poland, November 15 (27), 1815. This charter declared 
 that The Kingdom of Poland was united to Russia by its 
 constitution — that the sovereign authority in Poland was to 
 be exercised in conformity therewith — that the coronation 
 of the King of Poland was to take place in the Polish 
 capital, where he was bound to take an oath to observe the 
 charter. Poland was to have a perpetual representation, 
 composed of the King and the two chambers forming the 
 Diet, in which body the power of legislation and taxation 
 was to be vested. A distinct Polish army, coinage, military 
 orders, were to be preserved in the kingdom. But in 1832, 
 the Emperor Nicholas established what was called an 
 organic statute for Poland, the principal features of which 
 were, that the Kingdom of Poland was henceforth to be 
 perpetually united to, and form an integral part of, the 
 Russian Empire ; the Polish Diet was to be abolished ; the 
 Polish army absorbed into the Russian ; the administration 
 of Poland carried on under a Russian Council of State, called 
 the Section for the Offices of Poland. The Governments of 
 England and France protested against this act as a 
 violation of the spirit, if not of the letter, of the Treaty of 
 Vienna (Z>). 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 (</). 
 The formidable use which can be made of this treaty has 
 
 1866, p. 380, by Sir Alexander Malet, late H.M. Envoy Extraordinary 
 and Minister Plenipotentiary at Frankfort. 
 
 (c) Ann. Reg. 1866, p. 247. See also Ann. Reg., 1868, p. 220. 
 
 {d) See Sir Alexander MaleVs Overthrow of the Germanic Confederation, 
 pp. 37&-7. 
 
SWISS CONFEDERATION. 151 
 
 been speedily shown in the existing war between Prussia 
 and France. 
 
 CXII. II. — The second class of Federal States em- 
 braces those which (e), by the terms of their confederation, 
 vest the adjustment of their external relations in a Supreme 
 Federal Power. ( Unio civitatum — Etat compose — Bundes- 
 staat — unirte Staaten — Staaten - Vereine). The Achaaan 
 League and the united provinces of the Netherlands furnish 
 memorable illustrations of such a confederation (/). 
 
 CXIII. To this denomination belongs, at the present day, 
 the Confederation of the Swiss Cantons (y). The Tliirteen 
 Cantons of Switzerland had for some time previous to the 
 Treaty of Westphalia been de facto independent {fi), but that 
 Treaty formally recognized their existence as Independent 
 
 (e) " In these days, their union is so entire and perfect, that they 
 are not only joined together in bonds of friendship and alliance, but 
 even make use of the same laws, the same weights, coins, and measures, 
 the same magistrates, counsellors, and judges; so that the inhabitants 
 of this whole tract of Greece seem in all respects to form hut one single 
 city, except only that they are not enclosed within the circuit of the 
 same walls ; in every other point, both through the whole Republic and 
 in every separate State, we find the most exact resemblance and con- 
 formity." — Hampton's Polyhius^ vol. i. p. 224. 
 
 Polyh., Hist. 1. ii. c. iii. ; Bynkershoek, Qucsst. Jur. Puhl. 1. ii. c. xxiv. 
 
 Burlamaqid, Principes du JDroit politique, pt. ii. ch. i. s. 43. 
 
 The Federalist (American). 
 
 (/) Manuel du Droit public de la Suisse. 
 
 Ilandhuch der SchweizeriscJien Staaten. 
 
 Wheaton, Elem. du Droit intern. 1. i. pp. 72, 73. 
 
 Wheaton, Hist. pp. 492-496. 
 
 (y) See Martens, Nouv. Rec. t. ii. p. 68 ; t. iv. pp. 161, 273 ; t. vii. p. 173 j 
 and De M. et De C. t. iii. pp. 14, 38, 89, 197, 242, for the following 
 treaties relating to the Swiss Confederation : " 1814. Paix de Paris, 
 Art. vi. 3. La Suisse independante continuera de ae gouverner par 
 elle-meme." " 1814, 16 aout. Les Dix-neuf Cantons, Traite d'alliance 
 pour la conservation de leur liberte et independance." " 1815, 7 aout. 
 Acte de Confederation entre les Vingt-deux Cantons helvetiques, signe 
 a Zurich." " 1815, 20 novembre. Acte signe a Paris par les plenipo- 
 tentiaires d'Autriche, de France, de la Grande-Bretagne, de Prusse, et de 
 Russie, par lequel la neutralite de la Suisse a etc reconnue." 
 
 {h) Koch, Hist, des Tr. i. iii. 
 
152 INTERNATIONAL LAW. 
 
 States. The effects of the French Revolution in 1789 were 
 severely felt in Switzerland. The Cantons, in consequence 
 of the separation of various districts, were increased, first 
 to the number of nineteen, and finally to the number of 
 twenty-two. Their internal dissensions brought about an 
 Act of Mediation under Buonaparte in 1803, and subjected 
 them to the invasion of the Allied Powers in 1813. 
 
 In 1815 the claims of the conflicting Cantons were ad- 
 justed, and the Confederation re-modelled at the Congress 
 of Vienna; and in the same year (August 7) the number 
 of the Cantons was increased to twenty-two by the Federal 
 Act, signed at Zurich, and their neutrality was recognized 
 (November 20) by an Act signed by the Allied Powers at 
 Paris. 
 
 CXIV. According to the Federal Act of 1815, the Swiss 
 Confederation consists of the union of twenty-two Cantons. 
 The object of their union is declared to be the preservation 
 of their libeity and independence, security against foreign 
 invasion, and the maintenance of internal public tranquillity 
 and order. They mutually guarantee their respective terri- 
 tories and constitutions. Their Diet is formed by a Congress 
 of Deputies, one being delegated from each Canton, and 
 each having equally a single voice in the deliberations of 
 this common senate. It assembles every year, alternately, 
 at Berne, Zurich, and Lucerne — these being the Cantons 
 ( Vorort) in which the executive power of the Confederation 
 resides when the Diet is not actually sitting. The Diet 
 has the exclusive power of declaring war, of entering into 
 treaties of peace, commerce, and alliance with Foreign 
 States. These negotiations, however, require the assent of 
 three-fourths of the Diet, though in other matters a simple 
 majority suffices for the validity of the resolution. 
 
 It is competent, however, to each Canton separately to 
 conclude with Foreign Powers treaties which have for their 
 object regulations of revenue and police ; provided always 
 that they do not conflict with the Federal Convention, the 
 Existing Alliances, or the Constitutional Rights of other 
 
SWISS CONFEDERATION, 153 
 
 "Cantons. The Confederation has a common army and 
 treasure, supported by levies of men and contributions of 
 money, according to fixed proportions, from each Canton. 
 
 The Diet is responsible for the internal and external 
 security of the Confederation. It appoints the commanding 
 officers, and directs the operations of the Federal army, 
 and moreover nominates the Federal Ministers at Foreign 
 Courts. 
 
 CXY. Since the year 1830 the separate constitutions of 
 each of the Cantons has received a more or less democratic 
 modification, but the attempts to alter the principle of the 
 Federal Act of 1815 have failed. Bale, Unterwalden,, and 
 Appenzell have been subdivided, and the subdivisions added 
 to the number of the Confederated Cantons, which is thereby 
 increased to twenty-five ; but the number of votes in the Diet 
 is still limited to twenty-two, each division of these three 
 Cantons enjoying only half a vote. Before the French Revo- 
 lution, it was competent to each Canton to enter into a special 
 alliance both with another Canton and with a Foreign 
 State (z) ; but it is clear, from what has been stated, that no 
 individual member of this Federal Body, since the Federal 
 Act of 1815, has the character and position — or, as civilians 
 say, the 'persona standi — of a separate independent nation. 
 
 CXVI. This subject should not be dismissed without the 
 observation, that one of the Swiss Cantons, Neufchatel, 
 a few years ago bore the title of a Principality, and was 
 placed in some, though it may be doubtful in what, degree 
 under the Suzerainete of the King of Prussia (Jt). 
 
 {i) Merlin, Repertoire de Jurisprudence, tit. " Ministre public." 
 
 Wheaton, Elem. i. pp. 73, 74. Annuaire des Deux Mondes, 1850, 
 p. 294 ; 1851-2, p. 188. 
 
 (k) " Extrait du manifeste publie par TAmbassadeur du Eoy de Prusse 
 au sujet des affaires de Neufchatel, 1707." — Schmauss, ii. p. 1205. 
 
 "Articles generaux dresses et proposes au nom, etc., de la Princi- 
 paute de Neufchatel et de Valangin — agrees et accordes par TAmbas- 
 sadeur de S. M. le Roy de Prusse, 1707."— 76. p. 1209. 
 
 " Memoire, etc., 1707."— 76. pp. 1211, 1212. 
 
 " Articles accordes par le Roy de Prusse, Frederic I, a la ville de 
 
154 INTERNATIONAL LAW. 
 
 After the death of Marie de Longueville, Duchess of 
 Nemours, in 1707, the States of Neufchatel transferred the 
 fief of their principality to the King of Prussia, as the repre- 
 sentative of the House of Chalons, with a reservation of their 
 liberties and of their Treaties of Alliance with the Swiss 
 Cantons. 
 
 The ninth article of the Treaty of Utrecht recognized this 
 act of the States of Neufchatel, and so the relations between 
 Prussia and Neufchatel continued till 1805, when Prussia 
 ceded the Principality to Napole on. It was restored, how- 
 ever, at the Peace of Paris, to Prussia, from whom, in 1814, 
 it received a new constitutional form of government. But 
 Neufchatel was subsequently admitted into the new Helvetic 
 Confederation, its relations to which were defined by the 
 9th article (/) of the Acte (April 7, 1815) which reunited 
 Neufchatel, Geneva, and Valais to the Helvetic Confedera- 
 tion, and declared that " The sovereign State of Neufchatel 
 " is received as a Canton into the Swiss Confederation. 
 " This reception takes place under the express condition that 
 " the fulfilment of all the duties which devolve upon the 
 " State of Neufchatel as a member of the Confederation, the 
 " participation of that State in deliberations on the general 
 " affairs of Switzerland, the ratification and performance of 
 '^' the resolutions of the Diet, shall exclusively concern the 
 " Government residing in Neufchatel, without requiring any 
 " further sanction or assent." 
 
 CXVII. In 1847-8, Switzerland, like the rest of Europe, 
 was agitated by a civil war, vdth respect to which the 
 States of Neufchatel resolved to maintain a strict neutrality. 
 
 Neufchatel, 1707." — Sch?nauss, ii. p. 1213, in which the King of Prussia 
 is described (p. 1217) as "Prince Souverain de Neufchatel et Valengin." 
 
 In the Treatij of Utrecht (1713) the authority of the King of 
 Prussia is fully recognized. — lb. p. 1361, and p. 1369, art. ix. of that part 
 of the treaty which concerns the relations of France and Prussia. 
 The King of Prussia is acknowledged "pro supremo Domino Princi- 
 patus Neo-Castn et Vallen(/i<s" 
 
 (I) Martens, t. iv. pp. 168, 170. Aufnahmsurkunde des Cantons 
 Neuenburff. 
 
SWISS CONFEDERATION. 155 
 
 The King of Prussia supported them in this resolution ; but 
 the extreme party constituting the then majority in the 
 Swiss Diet declared that this resolution was inconsistent 
 with the terms of the stipulation by which Neufchatel was 
 incorporated into the union (m). After undergoing the evils 
 of a revolutionary war, Neufchatel returned to its ancient 
 relations w4th Prussia {n). But in 1857 Prussia renounced 
 her rights over this Principality, which became a member of 
 the Helvetic Confederation. 
 
 (m) Annuaire historique universel, 1848-9, ch. yiii. p. 515 ; Suisse, 
 lb. 1850, ch. vii. p. 487. 
 
 (n ) " Neufchatel ist seit dem Wiener Congress-Abschied ein soiive- 
 rainer (monarchisclier) Schweizer Canton." — Note of Morstadt (1851) to 
 his edition of Kliibei'^s Volkerrecht. 
 
 Annuaire des Deux Mondes, 1850, p. 301. 
 
 Vide ante, p. 95 and note e. 
 
156 INTERNATIONAL LAW 
 
 CHAPTER V. 
 
 UNITED STATES OF NORTH AMERICA, 
 
 CXVIII. The United States of North America («) 
 furnish the greatest example which the world has yet seen 
 of a Federal Government. 
 
 The constitution of the United States of North America 
 differs materially from that of the Germanic Confederation : 
 the latter was a league of Sovereign States for their common 
 defence against external and internal violence ; the former 
 is a Supreme Federal Government— it is, in fact, a Compo- 
 site State, the constitution of which affects not only members 
 of the union, but all its citizens, both in their individual and 
 in their corporate capacities (b). 
 
 According to the language of the charter or act of the 
 Constitution, it was established by ^^the people of the 
 " United States, in order to form a more perfect union, 
 " establish justice, ensure domestic tranquillity, provide for 
 " the common defence, promote the general welfare, and 
 " secure the blessings of liberty to them and their posterity." 
 The Legislative power of the union is vested in a Congress, 
 consisting of a Senate, the members of which are chosen by 
 the local legislatures of the several States, and of a House 
 of Representatives, chosen by the people in each State. 
 
 The Executive power is lodged in a President, chosen by 
 electors appointed in each State according as the legislature 
 thereof may direct. The powers of Congress and of the 
 President, so far as they affect the International relations 
 
 (a) Wheatori's International Law ; Story's Commentaries on the 
 Constitution of the United States ; Kent's Commentaries on American 
 Law. 
 
 (6) Texas v. White^ 7 Wallace's R^orts in the Supreme Court, 560. 
 
UNITED STATES OF NORTH AMERICA. 157 
 
 of the United States with other countries, are expressed in 
 the following articles of the Constitution, which was finally 
 ratified by the thirteen States in 1790 (c) : — 
 
 Art. I.— Sect. 8. 
 
 CXIX. "1. To lay and collect taxes, duties, imposts, 
 and excises, to pay the debts and provide for the common 
 defence and general welfare of the United States ; but all 
 duties, imposts, and excises shall be uniform throughout the 
 United States. 
 
 " 2. To borrow money on the credit of the United States. 
 
 "3. To regulate commerce with foreign nations, and 
 among the several States, and with the Indian tribes. 
 
 "4. To establish an uniform rule of naturalization, and 
 uniform laws on the subject of bankruptcies throughout the 
 United States. 
 
 " 10. To define and punish piracies and felonies com- 
 mitted on the high seas, and offences against the law of 
 nations. 
 
 "11. To declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water " (c?). 
 
 Sect. 10. 
 
 " 1. No State shall enter into any treaty, alliance, or con- 
 federation ; grant letters of marque and reprisal ; coin money; 
 emit bills of credit ; make anything but gold and silver coin 
 a tender in payment of debts ; pass any bill of attainder, 
 ex post facto law, or law impairing the obligation of contracts, 
 or grant any title of nobility. 
 
 " 2. No State shall, without the consent of the Congress, 
 lay any imposts or duties on imports or exports, except what 
 may be absolutely necessary for executing its inspection 
 laws ; and the nett produce of all duties and imposts, laid 
 by any State on imports or exports, shall be for the use of 
 
 (c) The articles of the Confedet-ation were finally ratified in 1781. 
 It was superseded by the Constitution in 1790. 
 
 (d) Story- s Commentaries on the Constitution of the United States, 
 pp. xxi., xxii. of "The Constitution." 
 
158 INTERNATIONAL LAW. 
 
 the treasury of the United States ; and all such laws shall 
 be subject to the revision and control of the Congress. No 
 State shall, without the consent of Congress, lay any duty 
 of tonnage, keep troops or ships of war in time of peace, 
 enter into any agreement or compact with another State or 
 with a Foreign Power, or engage in war, unless actually 
 invaded, or in such imminent danger as will not admit of 
 
 delay" (4 
 
 Art. II.— Sect. 2. 
 
 *^2. The President shall have power, by and with the 
 advice and consent of the Senate, to make treaties, provided 
 two-thirds of the senators present concur; and he shall 
 nominate, and by and with the advice and consent of the 
 Senate shall appoint ambassadors, other public ministers and 
 consuls, judges of the Supreme Court, and all other officers 
 of the United States whose appointments are not herein 
 otherwise provided for, and which shall be established by 
 law : but the Congress may by law vest the appointment of 
 such inferior officers as they think proper in the President 
 alone, in the Courts of Law, or in the heads of depart- 
 ments " (/). 
 
 Sect. 3. 
 
 " 1. He shall from time to time give to the Congress 
 information of the state of the Union, and recommend to 
 their consideration such measures as he shall judge necessary 
 and expedient. He may, on extraordinary occasions, convene 
 both Houses, or either of them ; and in case of disagreement 
 between them with respect to the time of adjournment, he 
 may adjourn them to such time as he shall think proper. 
 He shall receive ambassadors and other public ministers. He 
 shall take care that the laws be faithfully executed, and 
 shall commission all the officers of the United States " {g). 
 
 Art. III.— Sect. 1. 
 *• 1. The judicial power of the United States shall be 
 vested in one Supreme Court, and in such Inferior Courts 
 
 («) Story, p. xxiv. (/) Ih. p. xxvi. (g) lb. 
 
UNITED STATES OF NORTH AMERICA. 159 
 
 as the Congress may from time to time ordain and establish. 
 The judges, both of the Supreme and Inferior Courts, shall 
 hold their offices during good behaviour, and shall, at stated 
 times, receive for their services a compensation, which shall 
 not be diminished during their continuance in office" (A). 
 
 Sect. 2. 
 
 " 1. The judicial power shall extend to all cases, in law 
 and equity, arising under this Constitution, — the laws of the 
 United States, and treaties made, or which shall be made, 
 under their authority; to all cases affecting ambassadors, 
 other public ministers, and consuls ; to all cases of admiralty 
 and maritime jurisdiction ; to controversies to which the 
 United States shall be a party; to controversies between 
 two or more States, between a State and citizens of another 
 State, between citizens of different States, between citizens 
 of the same State claiming lands under grants of different 
 States, and between a State, or the citizens thereof, and 
 foreign States, citizens, or subjects {i). 
 
 "2. In all cases affecting ambassadors, other public 
 ministers, and consuls, and those in which a State shall be a 
 party, the Supreme Court shall have original jurisdiction. 
 In all the other cases before mentioned, the Supreme Court 
 shall have appellate jurisdiction, both as to law and fact, 
 with such exceptions and under such regulations as the 
 Congress shall make " (J). 
 
 Art. IV.— Sect. 2. 
 " 1. The citizens of each State shall be entitled to all 
 privileges and immunities of citizens in the several States " (/e). 
 
 Sect. 3. 
 
 "1. New States may be admitted by the Congress into 
 
 this union, but no new State shall be formed or erected 
 
 within the jurisdiction of any other State, nor any State be 
 
 formed by the junction of two or more States, or parts of 
 
 (h) Stonj, p. xxvii. (i) lb. (J) lb. p. xxviii. (k) lb. 
 
160 INTERNATIONAL LAW. 
 
 States, without the consent of the legislatures of the States 
 concerned, as well as of the Congress " (/). 
 
 It is remarkable that no provision on this subject is to be 
 found in the Articles of the Confederation finally ratified in 
 1781. The contingency of the establishment of new States 
 within the limits of the Union seems to have been wholly 
 overlooked by the framers of the instrument of the Confede- 
 ration. Under the provisions of the present article vast 
 regions first organized as territories have subsequently been 
 admitted as States into the Union, upon an equality with 
 the original States (m). 
 
 With respect to a " territory " not yet admitted into the 
 category of a State, the Supreme Court has laid down the 
 law as follows : — 
 
 " The United States, under its present Constitution, 
 " cannot acquire territory to be held as a colony to be 
 " governed at its will and pleasure. But it may acquire 
 " territory, which, at the time, has not a population that fits 
 " it to become a State, and may govern it as a territory until 
 " it has a population which, in the judgment of Congress, 
 " entitles it to be admitted as a State of the Union. During 
 " the time it remains a territory. Congress may legislate 
 " over it within the scope of its constitutional powers in 
 " relation to citizens of the United States, and may establish 
 " a Territorial Government ; and the form of this local 
 ''' Government must be regulated by the discretion of 
 " Congress, but with powers not exceeding those which 
 " Congress itself, by the Constitution, is authorized to 
 " exercise over citizens of the United States, in respect to 
 " their rights of person or rights of property. The territory 
 
 (/) Story, p. xxix.— See opinions of the Attorney-General of the 
 United States (published at Washington, 1841), vol. i. p. 311, as to the 
 conditions under which the State of Illinois entered the Union. 
 
 Resolution du Congres des Etats-Unis pour I'admission du Texas au 
 nomhre desEtats de I'Union du 22 d^cembre 1845.— VideDeM. et C. 599. 
 
 (m) Story, b. iii. c. xxx. 
 
 T}ie Neutrality of Great Britain during the Amei'ican Civil War. M. 
 Bernard, 1870. 
 
I 
 
 UNITED STATES OF NORTH AMERICA. 161 
 
 " thus acquired is acquired by the people of the United 
 " States for their common and equal benefit; and every 
 ** citizen has a right to take with him into the territory any 
 " article of property, including his slaves, which the 
 ^' Constitution recognizes as property, and pledges the 
 " Federal Government for its protection " («). 
 
 This last proposition has been much controverted ; though 
 happily, since the abolition of slavery, that controversy has 
 ceased to be important. 
 
 "2. The Congress shall have power to dispose of and 
 make all needful rules and regulations respecting the terri- 
 tory or other property belonging to the United States ; and 
 nothing in this .Constitution shall be so construed as to 
 prejudice any claims of the United States, or of any parti- 
 cular State " (o). 
 
 Sect. 4. 
 
 " 1. The United States shall guarantee to every State in 
 this Union a republican form of government, and shall 
 protect each of them against invasion ; and on application 
 of the legislature, or of the executive (when the legislature 
 cannot be convened), against domestic violence " (p). 
 
 Art. VI. 
 " 2. This Constitution, and the laws of the United States 
 which shall be made in pursuance thereof, and all treaties 
 made, or which shall be made, under the authority of the 
 United States, shall be the supreme law of the land ; and 
 the judges in every State shall be bound thereby, anything 
 in the constitution or laws of any State to the contrary 
 notwithstanding " (5-). 
 
 Art. XI.— Amendments. 
 
 " The judicial power of the United States shall not be 
 construed to extend to any suit in law or equity commenced 
 or prosecuted against one of the United States by citizens 
 
 (n) Bred Scott v. Sandfordf Howard's R. xix. 395. 
 (0) Story, p. xxix. {p) lb. (q) lb. p. xxx. 
 
 VOL. I. M 
 
162 INTERNATIONAL LAW. 
 
 of another State, or by citizens or subjects of any Foreign 
 State "(r). 
 
 CXX. It is clear from this account of the Constitution 
 of the United States of North America that the whole 
 Federal Body is responsible for the International acts, so to 
 speak, of each State, and of the individuals composing 
 them. For example, if the government of either of the 
 Carolinas inflict an injury upon a foreign nation, that nation 
 must direct its complaints to, and seek its redress from, the 
 Federal Government. 
 
 The proposition that each State of the Union is separately 
 responsible for its own misconduct, but that the attempt by 
 a Foreign State to enforce its claims for redress against an 
 individual State would be resisted by the whole Federal 
 Body, is a proposition wholly untenable in reason or law. 
 Joint responsibility must accompany joint protection ; there- 
 fore the strengthening of the hands of the American Execu- 
 tive has been desired by her ablest statesmen and jurists, as 
 well as by Foreign Powers, in order that she may be the 
 more readily able to fulfil her International obligations (s). 
 
 (r) Story, p. xxxiii. 
 
 («) Wheaton, £lem. vol. i. p. 74: "Puisqiie les relations de ces 
 Etats avec des Etats strangers, en paix et en guerre, sont maintenues 
 par le gouveraement f«lderal, tandis qu'il est express^ment defendu 
 aux Etats Isolds de I'Union d'exercer ces actes de souverainete exterieure, 
 il est Evident que la souverainete exterieure de la nation reside exclu- 
 sivement dans le gouvemement federal. L'ind^pendance de chaque 
 Etat se trouve done sous ce rapport confondue dans la souverainete du 
 gouvemement federal, et Ton pent par suite qualifier I'Union am^ri- 
 caine de Bundesstaat." 
 
 Opinions of the Attorney- General of the United States, vol. i. 
 Letter of the Attorney- General, dated November 20, 1821, p. 392. 
 "The people of the United States seem to have contemplated the 
 National Government as the sole and exclusive organ of intercourse 
 with foreign nations. It ought, therefore, to be armed with power to 
 satisfy all fair and proper demands which foreign nations may make on 
 our justice and courtesy ; or, in other words, with power to reciprocate 
 with foreign nations the fulfilment of all the moral obligations, perfect 
 and imperfect, which the Law of Nations devolves upon us as a nation. 
 In this respect, our system appears to be crippled and imperfect." 
 
 See the correspondence relating to the project of annexing Cuba to 
 
CENTRAL AND SOUTH AMERICAN REPUBLICS. 163 
 
 This desired result seems to have been in some degree 
 attained during the interval between the first and the present 
 edition of these Commentaries. 
 
 The recent civil war between the Southern and Northern 
 States, and the conquest of the latter after a fierce and 
 desperate contest, has not so affected the permanent In- 
 ternational relations of the Confederation with Foreign 
 States as to require any special notice in this place. 
 Whether a correct view of the constitution and of the facts 
 of the case was, or was not, taken by the Southern States^ 
 who maintained that they formed part of the Union upon 
 conditions expressed in the terms of the great Charter of 
 the Constitution, and that the violation of them justified 
 their secession ; or by the Northern States, who maintained 
 that this secession was unjustifiable in fact and an act of 
 treason in law — whether the employment of armies by the 
 Northern States to coerce the Southern States, and compel 
 them to remain in an Union which they desired to leave, was, 
 or w^as not, in accordance with the principle of freedom upon 
 which the United States justified their secession from Great 
 Britain (t), are not subjects to be discussed even indirectly 
 in this chapter. 
 
 Many interesting and important questions of International 
 Law were indeed discussed during the progress of the civil 
 war, which must be considered under their proper heads in 
 other parts of this work. 
 
 CXXI. The Central and South American Republics^ 
 since the establishment of their independences, have under- 
 gone, and will probably yet undergo, frequent divisions and 
 subdivisions. The existing Federal Republics are those of 
 Mexico (m), of the United States of Rio de la Plata, or the 
 
 the United States, laid before Parliament April 11, 1853, and espe- 
 cially the English Foreign Secretary's {Lord Juhn EusseWs) letter of 
 February 16, 1853. 
 
 {t) President Buchanan, in the annual address of 1860, expressed his 
 clear and strong opinion in the negative. — Ann. Reg. 1860, pp. 283-4. 
 But see President Johnson's address, 1866, Ann. Reg. p. 293. 
 
 (m) I have not thought it necessary to notice the short-lived and unfor- 
 tunate Empire of Mexico. 
 
 K 2 
 
164 
 
 INTERNATIONAL LAW. 
 
 Argentine Republic, and of the United States of Guatemala, 
 or, as it is called, the Federal Republics of Central America. 
 In these Federal Republics there is a general Congress, 
 which superintends the relations of the Republics with 
 Foreign States (x). 
 
 The whole of America is under the government of 
 Christians, being either Europeans or of European descent ; 
 this vast continent therefore must be presumed to recognize, 
 not only the obligations of general International Law, but 
 the positive maxims of the European code. This continent 
 is at present parcelled out into the following States. 
 
 There are seven Republics in North and Central America, 
 viz. : — 
 
 21 States, a Federal District 
 of Mexico, and 3 Territories. 
 
 
 United States. 
 
 Mexico, United States of 
 
 Guatemala. 
 
 Honduras. 
 
 St. Salvador. 
 
 Costa Rica. 
 
 Nicaragua. 
 
 The Republics of South America are nine in number, 
 
 as follows : — 
 
 (or, United States of Rio de 
 la Plata, 14 in number : 
 capital, Buenos Ayres. 
 New Granada. 
 Bolivia. 
 Chili. 
 Venezuela. 
 Ecuador. 
 Paraguay. 
 Uruguay ; or, La Bande Orientale : capital, Monte Video. 
 
 There is one American monarchy of great territorial 
 extent — Brazil; for Hayti (y) and Mosquitia, though tech- 
 
 (x) Elliofs American Diplomatic Codes, vol. ii. part iii. Treaties 
 with the new nations of South America. 
 
 Hertalefs commercial treaties contain nearly all the various conven- 
 tions between Great Britain and the Central and South American States. 
 
 A treaty with the State Equator, signed at Quito, May 3, 1851, 
 was laid before Parliament in that year. 
 
 Annuaire des Deux Mondes, 1850, pp. 885, 1104. 
 
 ( t/) The empire of Hayti is, or was, in the French, the republic of San 
 
CENTRAL AND SOUTH AMERICAN REPUBLICS. 165 
 
 nically they are or have been monarchies, are not worthy of 
 grave consideration. 
 
 The British American provinces are : — 
 
 Canada East. 
 
 Cauada West. 
 
 New Brunswick. 
 
 Nova Scotia, with Cape Breton. 
 
 Prince Edward's Island. 
 
 Newfoundland. 
 
 British Columbia. 
 
 Vancouver Island. 
 
 Honduras. 
 
 British Guiana (z). 
 
 In 1864 certain resolutions were adopted at a Conference 
 of Delegates from the British North American Colonies as 
 the basis of a proposed Confederation («); and in 1867 the 
 Earl of Carnarvon introduced into Parliament the North 
 American Provinces Confederation Bill. The Bill provided 
 that there should be a Governor-General, appointed by the 
 Crown, receiving a salary from the Colonial funds. The 
 Lieutenant-Governors of the respective provinces were to 
 be appointed by the Governor-General, to hold office for 
 five years. There was to be a general or central Parlia- 
 ment for the united Confederation, and local Legislatures 
 for each province : the central Parliament to consist of an 
 Upper Chamber and Lower House ; the seventy-two members 
 of the first to be elected for life, with power to the Crown 
 to nominate not more than six members in certain cases ; the 
 Lower Chamber to consist of 181 members, to be elected for 
 five years. The provincial Legislatures would be left to deal 
 with all purely local matters, while all questions common to 
 all the Confederated Provinces would be disposed of by the 
 central Parliament. The delegates themselves suo-aested 
 
 Domingo in the Spanish part of the island. As to the claim of Spain to 
 San Domingo, and the nominal cession, in 1861, to her of it by the 
 Republican Presidents and the protest of Peru, see pp. 148-100, t. iv. 2^ 
 partie, Rec. gen. cont. of Martens, by Samwer. 
 
 (s) The French and the Dutch have also colonies in Guiana. 
 
 (a) Ann. Reg. 1864, p. 293. 
 
166 INTERNATIONAL LAW. 
 
 Canada as the name for the new Confederation, and the 
 Queen gave her assent to that designation being adopted by- 
 it. The plan did not include Prince Edward's Island, 
 British Columbia, Newfoundland, or Vancouver's Island ; 
 but it was to be hoped that in time those colonies would 
 join the Confederation (b). 
 
 The Act of the Imperial Parliament containing these 
 provisions for the Union of the provinces of Canada, Nova 
 Scotia, and New Brunswick passed soon afterwards, and it 
 enacted that the Queen in Council might declare, by pro-, 
 clamation, within six months from the passing of the Act, 
 that those provinces should form one Dominion under the 
 name of Canada, and that " such persons shall be first sum- 
 ^* moned to the Senate as the Queen by warrant, under her 
 ■^ Majesty's royal sign manual, thinks fit to approve, and 
 *^ their names shall be inserted in the Queen's Proclamation 
 '' of Union," 
 
 A Royal Proclamation was accordingly issued on the 21st 
 of May, in which the persons were named who were to be 
 first summoned to the Senate of Canada. The total number 
 of these was seventy-two, thus distributed : twenty-four for 
 the province of Ontario, twenty-four for the province of 
 Quebec, twelve for the province of Nova Scotia, and twelve 
 for the province of New Brunswick. The new Canadian 
 I*arliament was opened at Ottawa, the capital of the Con- 
 federation, by the Governor-Greneral, L^ord Monck, on the 
 tth of November (c). 
 
 C!5CXII. It is clear that no private associations {d) or 
 companies can be now considered as substantive members of 
 the community of States. The ancient confederation of the 
 JIanse Towns is scarcely to be classed under the category of 
 these private companies, which had at one time, as a distinct 
 
 {h) Ann. Beg. 1867, pp. H, 281. 
 
 (c) lb. p. 281. 
 
 (d) Heftersy ss. 13-29. WTieaton's EUm. 1. ii. c, i. s. 5, p. ix. Martens, 
 1. viii. c. ii. ss. 260-264 Vattel, 1. iii. c. i. s. 4. De M. et Be C. 1. i.. 
 Index : Compagnie anglaise des Indes. 
 
CENTRAL AND SOUTH AMERICAN REPUBLICS. 167 
 
 Federal Body, o, persona standi in International Law. No 
 analogy, however, can be derived even from tliem, applicable 
 to modern companies, associated for the purpose of trade. 
 
 The British East India Company, which has now ceased 
 to exist, has indeed exercised sovereign rights in respect to 
 foreign nations, has made war and concluded treaties in its 
 own name with Indian princes ; but this power was delegated 
 to it by the Crown and Parliament of England, and therefore 
 the responsibility for the International acts of the Company 
 rested upon Grreat Britain, as much as the acts of any other 
 of her accredited public agents ; and this company had no 
 International status as a substantive community (e). States 
 associated, for the purposes of trade, into a commercial 
 league (/) may have a sort of International, or rather 
 Public Law regulating the intercourse between the members 
 of the league (y), upon the principle of the ancient adage 
 " Uhi societas ihijus est ; " but States Avhich are not members 
 of this league are not bound to regard those who are such as 
 being clothed, on that account, with any peculiar privileges 
 in their general International relations. 
 
 CXXIII. This observation is applicable to all associations 
 of States which are not founded upon universal principles of 
 International Law, but framed for the advancement of some 
 particular object ; such, for instance, as associations for the 
 suppression of the slave trade, or the great German commer- 
 cial confederation called the Zollverein Qi). 
 
 (e) See the case of the Nabob of the Carnatic v. East India Company, 
 1 Vesey, Jr. p. 371, and 2 lb. pp. 56-60, as to the former anomalous 
 International as well as National condition of the East India Company. 
 
 (/) Kliiber, ss. 150-153. Heffters, ss. 8, 93. 
 
 (</) For example : 1. Equality of rights and obligations among the 
 members. 2. Apportionment of the common burthens according to the 
 means and strength of each individual member. 3. That the original 
 conditions of the association cannot be altered without the consent 
 of every member, etc. — Vide Hejfters, lb. 
 
 (A) 1 De M. et C. Index to this title, and in Martens, Nouv. Bee. xlv. 
 Lawrence's Wheaton (French ed.) i. 369-376. 
 
168 INTERNATIONAL LAW. 
 
 CHAPTER VI. 
 
 EXTINCTION OF A STATE. 
 
 CXXIV. A State, like an individual, may die ; its 
 corporate capacity may be extinguished, its body politic may 
 perish, though the individual members of it may survive. 
 
 CXXV. It ceases to exist when the physical destruction 
 of all its members takes place, or when they all migrate into 
 another territory — events scarcely to be contemplated as 
 possible in the present times — or when the social bond is 
 loosed, which may happen either by the voluntary or com- 
 pulsory incorporation of the nation into another sovereignty, 
 or by its submission, and the donation of itself, as it were, 
 to another country. On the happening of any of these contin- 
 gencies (a), a State becomes, instead of a distinct and substan- 
 tive body, the subordinate portion of another society. The 
 incorporation of Wales, Scotland, and Ireland into Great 
 Britain ; of Normandy, Brittany, and other provinces into 
 France, are among the most familiar historical instances 
 which illustrate this proposition. To these may now be 
 added the kingdom of Italy, composed of States which have 
 sought to be incorporated in her ; and of Prussia, which has 
 by force of arms possessed herself of her weaker neighbours' 
 territories. 
 
 (a) VaUel, 1. i. c. xvi. 194. Heffters, b. i. s. 24. Kluher, pt. i. c. i. 
 8. 23. JtidherfoHh, b. ii. c. x. as. 12, 13. Wheatmi's Elem. i. 33. 
 
CHANGES IN A STATE, 169 
 
 CHAPTER VII. 
 
 CHANGES IN A STATE. 
 
 CXXVI. But a State may undergo most important and 
 extensive changes without losing its personality (a). It may 
 be stripped of a portion of its subjects and its territory; it 
 may place itself under the protection of another State, and be 
 reduced to a semi-sovereignty ; thereby, indeed, as has been 
 shown, materially affecting its external relations, though 
 retaining, in many respects, its corporate character : it may 
 change its form of civil constitution or government from a 
 Kepublic to a limited Monarchy, from an Aristocracy to a 
 Despotism, or to any imaginable shape ; but it does not 
 thereby lose its personality, and does not therefore forfeit its 
 rights, or become discharged from its obligations. The nation 
 now governed by a Despot must pay the debt which she 
 incurred under a Republican Government; the treaty con- 
 
 (a) Grotius, lib. ii. c. ix. iii. i. '' Idem si populus. Dixit Isocrates, 
 et post eum Julianus imperator, civitates esse immortales^ id est, esse 
 posse, quia scilicet populus est ex eo corporum genere, quod ex distan- 
 tibus constat, unique nomini subjectum est, quod habet 'i'^u^ /Jiuv, ut 
 Plutarcliusj spiritum unum, ut Paulus Jurisconsultus loquitur. Is 
 autem spiritus, sive 'i^ic, in populo est vit^ civilis consociatio plena 
 atque perfecta, cujus prima productio est summuui imperium, vinculum, 
 per quod respublica coheeret, spiritus vitalis quern tot millia trahunt, ut 
 Seneca loqvutur. Plane auteni corpora hsec artificialia instar habent 
 corporis naturalis. Corpus naturale idem esse non desinit, particulis 
 paulatim commutatis, una manente specie, ut Alpbenus ex philosophis 
 disserit." This opinion of Alfenus is to be found in the Digest, 1. v. t. i. 76 : 
 "De judiciis et ubi quisque agere vel conveniri potest." A tribunal 
 had been composed originally of certain judges j some of them during 
 the hearing of the causes had retired, and others been substituted in 
 their place: " Quserebatur, singulorum judicum mutatio eandem rem an 
 «ZeW judicium fecisse. Kespondi, non modo si unus aut alter, sed et si 
 omnes jiidices niutati essent, tamen et rem eandem et judicium idem, 
 quod antea fuisset, permanere." 
 
170 INTERNATIONAL LAW. 
 
 tracted by a nation when represented to the rest of the world 
 by the executive of a limited Monarchy, is equally binding 
 upon her when she has fallen under the rule of an Oligarchy. 
 
 CXXVII. This vital principle of International Law is a 
 necessary and principal consequence flowing from the doctrine 
 of the moral personality and actual intercommunion of States. 
 The Legion, the Roman jurist said, is the same though the 
 members of it are changed ; the Ship is the same though the 
 planks of it are renewed ; the Individual is the same though 
 the particles of his body may not be the same in his youth 
 as in his old age, and so " Populum eundem hoc tempore 
 " putari qui abhinc centum annis fuisset." 
 
 CXXVIII. The learned and wise Savigny, discussing the 
 proper manner of cultivating and improving the municipal law 
 of a country, expresses an opinion pregnant with true philo- 
 sophy, when he observes that there is no such thing as the 
 entirely individual and severed existence of mankind ; but 
 that, as every individual man must be considered as the 
 member of a family, a people, and a State, so every age of a 
 people must be regarded as the continuance and development 
 of times that are past {b). Every age does not produce its 
 own world according to its own arbitrary will and for itself 
 only, but it does this in indissoluble intercommunion with 
 the whole past (c). Every age, therefore, must acknowledge, 
 
 (b) Shakspere puts this reasoning into tlie mouth of the Duke of 
 York:- 
 
 " Take Hereford's rights away, and take from Time 
 His charters and his customary rights ; 
 Let not to-morrow then ensue to-day ; 
 Be not thyself ; for how art thou a king 
 But by fair sequence and succession ? " 
 
 Bich. II. act ii. sc. 1. 
 
 (c) *' Our political system is placed in a just correspondence and 
 symmetry, with the order of the world and with the mode of existence, 
 decreed to a permanent body composed of transitory/ parts ; wherein by 
 the disposition of a Stupendous Wisdom, so moulding together the great 
 mysterious incorporation of the human race, the whole at one time is 
 never old, or middle-aged, or young, but in a condition of unchangeable 
 constancy moves on through the varied tenour of pei^petual decay, fall, 
 
CHANGES IN A STATE. 171 
 
 as it were, certain data, the inheritance of necessity, and yet 
 not imposed upon it by force : a necessary inheritance, in so 
 far as they are not dependent upon the arbitrary will of the 
 particular present ; not imposed upon it by force, because 
 they are not, like the command of a master to a slave, 
 dependent upon the arbitrary will of any particular foreign 
 influence ; but, on the contrary, are the free produce of 
 the higher part of the nature of a people, parts of one 
 whole continually existing and continually developing it- 
 self. Of this higher part of a people the present age is 
 a member, which wills and acts in and with that whole; 
 so that what is transmitted to us from that whole may be 
 said to be freely produced by this particular member of it. 
 History, Savigny concludes, is not therefore a mere collec- 
 tion of examples, but the only way to the true knowledge of 
 our own actual status (d). Hooker had long before arrived 
 at Savigny's conclusion : " To be commanded," he says, " we 
 " do consent when that Society whereof we are part hath 
 ^* at any time before consented, without revoking the same 
 ^' after by the like universal agreement : wherefore as any 
 <* man's deed past is good as long as himself continueth ; so 
 " the act of a public society of men done five hundred 
 '' years sithence, standeth as theirs who presently are of the 
 *' same societies, because corporations are immortal : we were 
 ^* then alive in our predecessors, and they in their successors 
 <^ do live still " {e). 
 
 Applying this principle to International relations, we 
 learn that as one generation does not constitute a State (/), it 
 
 renovation, and progression." — Burke, vol. v. p. 79. Thoughts on French 
 Revolution, lb. 183, 184. 
 
 (c?) Ueber den Zweck der Zeitschrift fiir die gescliichtliclie Rechts- 
 wissenscliaft. — Savigny, Vermischte Schriften, 1-110. 
 
 (e) Hooker, JEccles. Pol. "b. i. 
 
 (/) " Because a nation is not an idea only of local extent and indivi-. 
 dual momentary aggregation, but it is an idea of continuity which, 
 extends in time as well as in members and in space." — Burke's Works,^ 
 vol. X. p. 97 : Beform of Representation in the House of Conmions. 
 
172 INTERNATIONAL LAW. 
 
 is not merely by the obligations contracted by one generation 
 that the present State is bound; the engagements of the 
 past, whether arising from the implied contract of long 
 usage, or the express letter of treaty, or the pledge of the 
 Executive Government, howsoever plighted, are as stringent 
 upon her as those of the present. The individual succeeds 
 to rights and obligations which he had no share in obtaining 
 or contracting ; and still more is this condition predicable of 
 every corporate body. Nor is the greatest of all corpora- 
 tions, the State, exempt from the operation of a rule which 
 is laid in the eternal constitution of things : " Coitus quilibet, 
 ** non minus quam personae singulares jus habet se obligandi 
 " per se aut per majorem sui partem. Hoc jus transferre 
 '' potest tum expresse tum per consequentiam necessariam, 
 " puta imperium transferendo " (^). The rule by which an 
 individual's duties are discovered - namely, by considering 
 the place which he occupies in the great system of the uni- 
 verse ; " qua parte locatus es in re " — furnishes an equally 
 sound maxim for national as for individual conduct. " II ne 
 " seroit pas," says the Abbe Mably, " raoins superflu de 
 " m'arreter k prouver qu'un prince est lie par les engage- 
 " mens de son predecesseur : puisqu'un Prince qui fait un 
 " traite n'est que le delegue de sa nation, et que les traites 
 " deviennent pour les peuples qui les ont conclus des lois 
 " qu'il n'est jamais permis de violer." He proceeds to cite 
 a passage from Bodinus to the effect that a King of France 
 is not bound by the treaties of his predecessors ; because 
 each King of France is only the " usufructuarius^^ of his 
 kingdom, and does not appoint his successor, who has an 
 absolute right to the throne ; and observes truly, " II n'est 
 " point de lecteur qui ne sente tons les vices de ce miserable 
 *^ raisonnement" (A). 
 
 CXXIX. The authority of D'Aguesseau {%) and Montes- 
 
 (^) Grotimf 1. ii. c. xiv. s. 11, p. 408. 
 (A) Mably f du Droit j.ubltc, e'c. t. i. pp. Ill, 112. 
 (t) There are some striking remarks of D'Aguesseau, i. 493, s. 4, as 
 to the observance of Treaties. 
 
CHANGES IN A STATE. 173 
 
 quieu further strengthens a position of such paramount im- 
 portance to the peace of the globe. The latter conclusively 
 destroys the sophistry by which it has been sometimes at- 
 tempted to chicane away the binding force of Treaties, on the 
 ground of their having been extorted by that superior force 
 which might vitiate a civil contract between individuals (k). 
 
 It might, indeed, have been supposed that this truth was 
 too firmly established, and the value of it too deeply felt 
 and too generally recognized, to be liable to question in 
 these days. After the overthrow of the Orleans dynasty in 
 France, the proclamation of M. de Lamartine(1848) appeared 
 for a moment to throw the weight of France into the 
 opposite scale, as disavowing the obligations of the treaty of 
 Vienna, chiefly, it would seem, because at the time it was 
 made, France was governed by a Monarchical, and at the 
 time it was disavowed by a Republican Government (/). 
 
 Now no doctrine more fatal than this to the tranquillity of 
 the globe can well be maintained — none which it is more the 
 duty of every upholder of International Law to denounce. 
 Nor can any doctrine be more pernicious to the country 
 itself, be it Monarchical or Kepublican, which propounds it. 
 " Nulla res," said Cicero, with all the energy of moral 
 wisdom, " vehementius Rempublicam continet quam fides." 
 What becomes of national faith if it be made to depend 
 upon a form of Government ? Much what would become of 
 individual faith if it depended upon no change happening in 
 the condition or age of the individual who plighted it. 
 
 CXXX. The importance of the subject did not escape 
 the notice of Grotius ; and I do not know that, upon 
 such a point, a higher authority can be appealed to: 
 '' Neque refert quomodo gubernetur, regione, an plurium, 
 " an multitudinis imperio. Idem enim est populus Roma- 
 " nus sub reglbus, consulibus, imperatoribus. Imo etiamsi 
 
 (k) Esprit des Lois, 1. xxvi. c. xx. — " Qu'il ne faut pas decider par 
 les principes des lois civiles les choses qui appartiennent au droit des 
 gens." 
 
 (I) Trots mots au pouvoir, par M. de Laraartine, p. 75. 
 
174 INTERNATIONAL LAW. 
 
 " plenissimo jure regnetur, populus idem erit qui antea erat 
 " cum sui esset juris, dum rex ei praesit ut caput istius 
 ** populi, non ut caput alterius populi. Nam imperium 
 " quod in rege ut in capite, in populo manet ut in toto, cujus 
 " pars est caput : atque adeo rege, si electus est, aut regis 
 " familia extincta, jus imperandi ad populum redit, ut supra 
 " ostendimus " (m). 
 
 And in another part of this great work he expresses his 
 free and manly opinion on this matter : " Hue et ilia 
 ** frequens quaestio referenda est de pactis personalibus ac 
 ** realibus. Et siquidem cum populo Ubero actum sit, 
 ** dubium non est, quin quod ei promittitur sui natura reale 
 " sit, quia subjectum est res permanens. Imo etiamsi status 
 " civitatis in regnum mutetur, manebit foedus, quia manet 
 '* idem corpus etsi mutato capite, et, ut supra diximus, im- 
 " perium, quod per regem exercetur, non desinit imperium 
 " esse populi " (n). With this opiuion Heineccius, in his 
 commentary upon Grotius, entirely concurs. 
 
 CXXXI. An English civilian of considerable note in his 
 day, commenting upon' this passage, recognizes and adopts the 
 doctrine which it conveys : " All leagues and treaties are 
 " national : and where they are not to expire within a shorter 
 " time, though made with usurpers, will bind legal princes if 
 " they succeed, and so vice versa ; and a league made with a 
 " king of any nation will oblige that nation, if they continue 
 " free, though the Government should be changed to a 
 '' Commonwealth, because the nation is still the same 
 " though under different Governments " (o). 
 
 Vattel, whom Lord Stowell pronounced to be not the least 
 indulgent of modern professors of Public Law (p), speaks un- 
 hesitatingly to the same effect : " Puisque les traites publics, 
 " meme personnels, conclus par un roi, ou par tout autre 
 
 (m) Grotius, 1. ii. c. ix. s. 8. 
 (n) lb., 1. ii. c. xvi. s. 16. 
 
 (o) An Essay concerning the Laios of Nations and the Rights of 
 •Sovei-eigns, by Mattheio Tindall, LL.D. p. 14 (London, 1734)* 
 (jp) The Maria, 1 Rob. Adm. Rep. p. 163. 
 
CHANGES IN A STATE. 175 
 
 '^ souverain qui en a le pouvoir, sont traites de I'Etat, et 
 " obligent la nation entiere, les traites reels, faits pour sub- 
 " sister independamment de la personne qui les a conclus 
 " obligent sans doute les successeurs. L'obligation qu'ils 
 " imposent a FEtat passe successivement a tons ses con- 
 " ducteursj a mesure qu'ils prennent en main I'autorite 
 " publique. II en est de meme des droits acquis par ces 
 '' traites. lis sont acquis a I'Etat, et passent k ses con- 
 " ducteurs successifs "((7). And in another place he says: 
 " Des qu'une puissance legitime contracte au nom de I'Etat, 
 " elle oblige la nation elle-meme, et par consequent tons les 
 " conducteurs futurs de la societe. Lors done qu'un prince 
 " a le pouvoir de contracter au nom de I'lStat, il oblige tous 
 " ses successeurs ; et ceux-ci ne sont pas moins tenus que lui- 
 " meme a remplir ses engagements " (r). 
 
 CXXXII. The language of Bynkershoek is still more 
 forcible. In one passage he observes: "Recte dixit Grotius 
 " jus Populi non deficere nisi deficiat ipse Populus. Forma 
 " autem regiminis mutata non mutatur ipse populus. 
 ** Eadem utique respublica est, quamvis nunc hoc, nunc alio 
 " modo regatur ; alioquin diceres, rempublicam in statu, 
 " quo nunc est, exsolutam videri pactis et debitis in alio 
 " statu contractis. De debitis id dicere non Kcere consentit 
 " Grotius (5). De pactis ut idem dicamus,eademqua3 in debitis 
 " obtinet ratio persuaserit " (t). His chapter " De servanda 
 " fide pactorum publicorum, et an qua? eorum tacitas except 
 " tiones," begins : " Pacta privatorum tuetur jus civile, 
 " pacta principum bona fides. Hanc si tollas, tollis mutua 
 " inter principes commercia, quae oriuntur e pactis expressis, 
 " quin et tollis ipsum jus gentium, quod oritur e pactis 
 " tacitis et praesumptis, quae ratio et usus inducunt " (u). 
 
 {q) Vattelj Le Droit de Gens, 1. ii. c. xii. s. 191, p. 400. 
 
 (r) Ih. 1. ii. c. xiv. s. 215. 
 
 (s) Be Jure Bel. 1. ii. c. ix. s. 8, n. 3. 
 
 {t) L. J, P. 1. ii. c. XXV. — Varice QucBstiunculee. 
 
 (m) Bynkershoek, Q. J. P. 1. ii. c. x. See, too, Burke^s Tracts on thd 
 
176 INTERNATIONAL LAW. 
 
 He then proceeds to comment upon the sophistry which 
 defends a departure from the obligations of treaties : " Haec 
 " pactis omnibus inesse credit clausulam salutarem, rebus sic 
 " stantibus, atque adeo a pactis recedi posse : I. Si qua nova 
 " causa, satis idonea, obveniat. II. Si res eo deducta sit, 
 " unde incipere non possit. III. Si ipsa pactorum ratio 
 " cesset. IV. Si necessitas ac utilitas ReipublicaB aliud 
 *« flagitent " (:r). 
 
 The last pretext he denounces as a detestable machiavel- 
 lism — " the beast of many heads. Reason of 8tate, the bane 
 " of Princes," and characterizes the three former excuses as 
 " totidem ruptae fidei velamenta : " — and again in his boldest 
 manner, " Promissum igitur, si me audias, etiam tunc ser- 
 " vandum, cum id servari ReipublicaB non expediat, imo 
 *^ periculosum sit " (y). 
 
 CXXXIII. Not less emphatic and decisive is the language 
 of the great Republican Confederation of North America : 
 " Nations are at liberty " (says Mr. Chancellor Kent) " to 
 " use their own resources in such manner and to apply them 
 ** to such purposes as they may deem best, provided they do 
 " not violate the perfect rights of other nations, nor endanger 
 " their safety, nor infringe the indispensable duties of 
 " humanity. They may contract alliances with particular 
 " nations, and grant or withhold particular privileges, in 
 " their discretion. By positive engagements of this kind a 
 " new class of rights and duties is created, which forms the 
 ** conventional law of nations, and constitutes the most 
 " diffusive, and generally the most important branch of 
 " public jurisprudence. And it is well to be understood, at 
 " a period when alterations in the constitutions of Govern- 
 " ments and revolutions in States are familiar, that it is a 
 *' clear position of the law of nations that treaties are not 
 *' affected, nor positive obligations of any kind with other 
 
 Popeiy Laws, c. iii. in Jiiie, as to the ratification of the Treaty of 
 Limerick. 
 
 (x) Ibid. (y) See too Cicero, Be Off. 1. iii. c. v. 6, 11. 
 
CHANGES IN A STATE. 177 
 
 ^* Powers or with creditors weakened, by any such mutations. 
 " A State neither loses any of its rights nor is discharged 
 " from any of its duties by a change in the form of its civil 
 " government. The body politic is still the same, though it 
 " may have a different organ of communication " (2). 
 
 CXXXIY. Puffendorf, in his chapter " De mutatione et 
 " interitu civitatum," adds the authority of Sweden to fortify 
 these positions in one of the best chapters of his treatise on 
 " De Jure Naturae et Gentium " (a). 
 
 CXXXV. We have, then, this opinion of the continuity 
 of the rights and obligations of a State confirmed by the 
 unanimous authority of the most celebrated jurists and 
 statesmen (b) of all countries. This accumulation of autho- 
 
 (z) Kenfs Commentaries on American Law, vol. i. pp. 25, 2G. 
 
 Jf'lieaton (Elem. i. 33) speaks fully to the same effect : " Un Etat 
 est un corps changeant quant aux membres qui composent la socidt^, 
 mais quant a la societe meme, c'est le meme corps dont I'existence est 
 perp^tuee par une succession constante de membres nouveaux. Cette 
 existence continue tant qu'aucun changement fondamental n'a ete intro^ 
 duit dans I'Etat." 
 
 («) L. viii. c. xiv. 
 
 (b) " L'unitd permanente qui s'^tablit, et le d^veloppemetit progl-essif 
 qui s'opere par cette tradition incessante des hommes aux hommes, et 
 des generations aux generations, c'est la le genre humain; c'est son 
 originalite et sa grandeur; c'est un des traits qui marquent I'homrae 
 pour la souverainete dans ce monde, et pour I'immortalite au dela de 
 ce monde. 
 
 " C'est de la que d6rivent et par la que se fondent la famille et I'Etat, 
 la propriete et I'heredite, la patrie, I'histoire, la gloire, tous les faits et 
 tons les sentiments qui constituent la vie etendue et perpetitelle de 
 Vhumanite au milieu de rapjjarition si hornee et de la disparition i^i 
 rupide des individus humains. 
 
 " La Republique sociale supprime tout cela ; elle ne voit dans les 
 liommes que des etres isoles et epbemeres qui ne paraissent dans la vie 
 et sur cette terre, theatre de la vie, que pour y prendre leur subsistance 
 et leur plaisir, chacun pour son compte seul, au meme titre et sans 
 autre fin. 
 
 " C'est pr^cis^ment la condition des animaux. Parmi eux, point de 
 lien, point d' action qui survive aux individus et s'etende a tous ; point 
 d'appropriation permanente, point de transmission hereditaire, point 
 d'ensemble ni de progres dans la vie de I'espece ; rien que des individus 
 qui paraissent et passent, prenant en passant leur part des biens de la 
 terre et des plaisirs de la vie, dans la mesure de leur besoin et de leur 
 
 VOL. I. N 
 
178 INTERNATIONAL LAW. 
 
 rities must not be regarded as an idle parade of evidence, 
 because, as has been already observed, a proposition which 
 is maintained by the concurrent voice of eminent jurists of 
 various civilized countries becomes ipso facto, as it were, a 
 part of International law (c). 
 
 CXXXVI. We arrive, then, with confidence at the con- 
 clusion, that this reciprocal observance of good faith, whether 
 it be plighted to the payment of debts or to the fulfilment of 
 the stipulations of treaties (c?), is binding upon all nations. 
 This good faith is the great moral ligament which binds 
 together the different nations of the globe {e). Without 
 this, war would be, as has been sometimes asserted, the 
 perpetual destiny of mankind, and that miserable fiction of 
 shallow declamation and specious sophistry would be reality 
 and truth. 
 
 CXXXVII. It remains only to add a proposition which 
 is indeed a corollary from the foregoing statements. If a 
 nation be divided into various distinct societies, the obliga- 
 tions which had accrued to the whole, before the division, 
 are, unless they have been the subject of a special agreement, 
 rateably binding upon the different parts (/) : " Contra 
 
 force qui font leur droit." — De la Democratie en France, par M. Guizot, 
 pp. 58-60. 
 
 (<?) Vide ante, ch. vii. p. 62. 
 
 (d) ^' Item foedera pads et induciarum possunt sub hoc capite coUocari, 
 non quatenm servanda sunt postquam sunt facta; hoc enim potius pertinet 
 ad jus naturale." — Suarez, de Legihus et Deo Legislatore, p. 109. 
 
 (e) " Je ne crois pas " (says Abb^ Mably) " qu'il soit necessaire de 
 parler dans cet ouvrage de la fid^lite scrupuleuse avec laquelle les Etats 
 doivent remplir leurs engagemens ; je ne fais pas ici un traite de droit 
 naturel. D'ailleurs que pourrois-je ajouter a ce que tant de savans 
 hommes ont ^crit sur cette matiere ? Ex^cuter ces promesses, c'est le 
 bien de la soci^t^ gen^rale, c'est la base de tout le bonheur de chaque 
 soci^te particuliere ; tout nous le prouve, tout nous le d^montre, cette 
 verity dont de mauvais raisonneurs veulent douter est connue des peuples 
 les moins polices ; et les princes malheureux, qui se font un jeu de leurs 
 sermens, feignent de la respecter, si leur ambition n'est pas stupide ou 
 brutale."— Tomei. p. 111. 
 
 (/) "Das iibrigens die Acteu der Staatsgewalt eines friiherem Herrschers, 
 welche der Verfassung des regierten Staates entsprechen-, auch fiir den 
 
t 
 
 CHANGES IN A STATE. 179 
 
 " evenit " (as Grotius expresses himself) " ut quae una ci vitas 
 " fuerat, dividatur, aut consensu mutuo, aut vi bellica, sicut 
 " corpus imperii Persici divisum est in Alexandri successores. 
 " Quod cum fit, plura pro uno existunt summa imperia, cum 
 " suo jure in partes singulas. Si quid autem commune 
 " fuerit, id aut communiter est administrandum, aut pro 
 " ratis portio'nibus dividendum " ((/). And " so " (says Mr. 
 Chancellor Kent) " if a State should be divided in respect 
 " to territory, its rights and obligations are not impaired ; 
 " and if they have not been apportioned by special agree- 
 " ment, those rights are to be enjoyed, and those obligations 
 " fulfilled, by all the parts in common " (A). So Mr. Justice 
 Story, delivering a judgmept in the Supreme Court of the 
 United States, observed: '-' It has been asserted as a principle 
 " of the common law, that the division of an empire creates 
 '' no forfeiture of previously vested rights of property ; and 
 " this principle is equally consonant with the common sense 
 " of mankind, and the maxims of eternal justice" (e). Lastly, 
 it should be observed, that this principle is in viridi obser- 
 vantia in International practice, and was incorporated into 
 the treaty by which the modern kingdom of Belgium was 
 established (A). 
 
 Nachfolger verbindlich sind, kann gewiss nach intemationalem Eecht in 
 keinen Zweifel gezogen werden." — Heffters, s. 57, p. Ill ; ZacJiarid, 
 Staats- und Bundesreclit, s. 58. 
 
 {g) Grotius, 1. ii. c. ix. s. 10. 
 
 (A) Kent^s Commentaries, vol. i. p. 25. 
 
 (i) Terrett and Others v. Taylor and Others, 9 Cranch^s (American) 
 Reports, 50 ; citing Kelly v. Harrison, 2 John. c. 29 ; Jackson v. Lunn, 
 5 John, c. 109 {American) ; Calvin's Case, 7 Co. 27. 
 
 {k) Wheatm's Hist. 546. 
 
 N 2 
 
PAET THE THIED. 
 
 CHAPTER I. 
 
 OBJECTS OF INTERNATIONAL LAW. 
 
 CXXXVIII. The Sources and the Subjects of Inter- 
 national Law having been stated, it remains to consider the 
 Objects of this system of jurisprudence ; that is, the Rights 
 which are to be ascertained, protected, and enforced by this 
 law (a). 
 
 C XXXIX. These rights flow as moral and logical conse- 
 quences from the positions laid down in the first chapter 
 with regard to the Individuality and Intercommunion of 
 States, and from the definition of a State in the second 
 chapter. Some of these rights concern more immediately 
 the internal and domestic, others the external and foreign, 
 condition of a State. Moreover, the rights of nations, like 
 the rights of individuals, admit of a general division into 
 rights which relate to persons, to things, and to the mode 
 of their enforcement. 
 
 CXL. These are rights properly so called — rights stricti 
 juris ; but the constant intercourse and increasing civiliza- 
 tion of nations has given rise to a usage and practice which 
 greatly mitigates the severity with which these rights. 
 
 (a) " Jus gentium est sediuin occupatio, sedificatio, munitio, bella, 
 captivitates, servitutes, postliminia, fcedera, paces, induciie, legatoruni 
 non violandorum religio, connubia inter alienigenas prohibita. Hoc 
 inde jus gentium appellatur, quia eo jure omnes fere gentes utuntur." 
 — Decret. i. List, i. c. ix. 
 
182 INTERNATIONAL LAW. 
 
 abstractedly considered, might be exercised, both with respect 
 to the foreign community, in its aggregate capacity, and 
 with respect to the persons of the individual members 
 belonging to it. This usage is called comitas gentium — the 
 comity of nations — droit de convenance, 
 
 CXLI. With regard to the intercourse of individual 
 members of different States, this Comity has been suffered 
 to grow up into what may be termed a jus gentium privatum ; 
 and which requires, on account of its magnitude and import- 
 ance, a separate and distinct notice in another part of this 
 work. 
 
 CXLII. With regard to a State in its aggregate capacity, 
 questions of Comity, being much fewer in kind, and rarer 
 in occurrence, may be conveniently mentioned and distin- 
 guished in the general treatment of rights properly so called. 
 
 CXLIII. But with regard to both, the fundamental dis- 
 tinction between the usage of comity and the right stricti 
 juris must never be forgotten {b). 
 
 (h) "Non minus soUicite separavimus ea quae juris sunt, stricte ac 
 proprie dicti, unde restitutionis obligatio oritur, et ea quae juris esse 
 dicuntur, quia aliter agere cum alio aliquo rectse rationis dictate pugnat." 
 — Grot. Proleg. s. 41. 
 
 In the case of the Maria, Lord Stowell observes (speaking of Art. 12 
 of the Order of Council, 1664, which directs, '^That when any ship, 
 met withal by the Royal Navy or other ship commissionated, shall 
 fight or make resist, the' said ship and goods shall be adjudged lawful 
 prize ") : " I am aware that in those orders and proclamations are to be 
 found some articles not very consistent with the law of nations as 
 imderstood now, or indeed at that time, for they are expressly, censured 
 by Lord Clarendon. But the article I refer to is not of those he 
 reprehends; and it is observable that Sir Robert Wiseman, then the 
 King's Advocate-General, who reported upon the Articles in 1673, 
 and expresses a disapprobation of some of them as harsh and novel, 
 does not mark this article with any observation of censure. I am 
 therefore warranted in saying that it was the rule, and the undisputed 
 rule, of the British Admiralty. I will not say that that rule may not 
 have been broken in upon in some instances by considerations of comity 
 or of policy, by which it may be fit that the administration of this 
 species of law should be tempered in the hands of those tribunals 
 which have a right to entertain and apply them ; for no man can deny 
 that a State may recede fi-om its extreme rights, and that its supreme 
 
I 
 
 OBJECTS OF INTERNATIONAL LAW. 183 
 
 The violation of rights stricti juris may be redressed by- 
 forcible means, by the operation of war, which in the com- 
 munity of nations answers to the act of the Judicial and 
 Executive Power in the community of individuals. But 
 the departure from the usage of Comity cannot be legally 
 redressed by such means. The remedy, where expostulation 
 has failed, must be a corresponding reciprocity of practice 
 on the part of the nations whose subjects are so treated. 
 " Illud quoque sciendum est," observes Grotius ; " si quis 
 " quid debet, non ex justitia propria, sed ex virtute alia, 
 " puta liberalitate, gratia^ misericordia, dilectione, id sicut 
 " in foro exigi non potest, ita nee armis deposci" (c). It 
 is, however, often a question of some nicety and difficulty to 
 ascertain to which class an asserted claim belongs, because 
 the usage which had its origin in the precarious concession 
 of Comity may be, and in many instances has been, trans- 
 ferred, through uninterrupted exercise and the lapse of time, 
 into the certain domain of Right (d). 
 
 councils are authorized to determine in what cases it may be fit to do 
 so, the particular captor having in no case any other right and title 
 than what the State itself would possess under the same facts of capture." 
 —1 Roh. Ad. Rep. 367, 368. 
 
 And again, further on in the same case, he says : ''It is lastly said, 
 that they have proceeded only against the merchant vessels, and not 
 against the frigate, the principal wrong-doer. On what grounds this 
 was done — whether on that sort of comity and respect which is not 
 unusually shown to the immediate property of great and august Sove- 
 reigns, or how otherwise, I am again not judicially informed; but it can 
 be no legal bar to the right of a plaintiff to proceed, that he has for some 
 reason or other declined to proceed against another party^ against whom 
 he had an equal or possibly a superior title." — Ih. p. 376. 
 
 " De officiis innoxice utilitatis, quae, si primam illorum originem spec- 
 taveris, sunt imperfecta, per ea, quse accedunt, autem in perfecta mutari 
 atque transire possunt ; paullo difficilior est disquisitio." — I)e Necessitate 
 et Usu Juris Gentium Dissertatio, c. ii. s. 17. — Pestel. 
 
 See the part of this work which relates to Comity for distinction 
 between Jus Gentimn and Jus inter Gentes. 
 
 (c) Grotius, 1. ii. c. xxii. s. 16. 
 
 (d) Vide ante, p. 12. 
 
184 
 
 INTERNATIONAL LAW. 
 
 CHAPTER II. 
 
 RIGHTS OF INDEPENDENCE AND EQUALITY. 
 
 CXLIV. Some of the Rights of nations appear to flow 
 more directly from the first, and some more directly from 
 the second of those propositions which have been laid down 
 as together constituting the basis of International Law (a). 
 
 CXLV. From the first proposition — namely, that States 
 are recognized as free moral persons — seem to be more 
 especially derived the Rights incident to Independence, 
 which are the following : — 
 
 1. The right to a Free Choice, Settlement, and Altera- 
 tion of the Internal Constitution and Government without 
 the intermeddling of any foreign State. 
 
 2. The right to Territorial Inviolability, and the free use 
 and enjoyment of Property. 
 
 3. The right of Self-preservation, and this by the defence 
 which prevents as well as by that which repels attack. 
 
 4. The right to a free development of national resources 
 by Commerce. 
 
 5. The right of Acquisition, whether original or deriva- 
 tive, both of Territorial Possessions and of Rights. 
 
 6. The right to absolute and uncontrolled Jurisdiction 
 over all persons and things within, and in certain exceptional 
 cases without, the limits of the territory. Under this head 
 may be considered the status of Christians in Mahometan 
 or Infidel countries, not being subjects of those countries, 
 and the question of Extradition of criminals. 
 
 (a) Vide ant^, ch. ill. 
 
 KaUmhorn, kap. v. s. 9 : Versuch einer wissenschaftlichen Systema- 
 tise des Volkerrechts. 
 
» 
 
 RIGHTS OF INDEPENDENCE AND EQUALITY. 185 
 
 CXLVI. The limitations which the abstract Rights of 
 one nation may receive in their practical exercise, from the 
 existence of similar Rights in another nation, will be con- 
 sidered in a chapter on the doctrine of Intervention. 
 
 CXLVII. From the second proposition — namely, that 
 each State is a member of an Universal Community — seem 
 to be more especially derived the Rights incident to 
 Equality, which are the following : — 
 
 1. The Right of a State to afford protection to her lawful 
 subjects wheresoever commorant ; and under this head may 
 be considered the question of debts due from the Govern- 
 ment of a State to the subjects of another State. 
 
 2. The Right to the Recognition by Foreign States of 
 the National Government. 
 
 3. The Right to External marks of Honour and Respect. 
 
 4. The Right of entering into International Covenants or 
 Treaties with Foreign States. 
 
186 INTERNATIONAL LAW. 
 
 CHAPTEK III. 
 
 RIGHT TO A FREE CHOICE OF GOVERNMENT, 
 
 CXLVIII. I. — We will now consider the rights which 
 flow as necessary consequences from the Independence 
 of States. 
 
 And, first, in the rank of internal and domestic rights, is 
 the liberty incident to every Independent State, of adopt- 
 ing whatever form of government, whatever political and 
 civil institutions, and whatever rulers she may please, 
 without the interference or control of any foreign Power. 
 This elementary proposition of International Law is so un- 
 questionable that it would be superfluous to cite authorities 
 in support of it («). 
 
 CXLIX. This proposition, nevertheless, however true and 
 however important, generally speaking, is not without some 
 limitations in its practical application ; because, rights on 
 the part of other States, members of the same system, may 
 control, to a certain extent, the right of unlimited liberty 
 generally incident to a State in the establishment of its 
 government, as the right of an individual in society to 
 perfect liberty is, to a certain extent, limited by a similar 
 right in his neighbour. The limitation of which this right 
 is susceptible will be discussed hereafter in the chapter on 
 Intervention. 
 
 (a) It is nowhere more faithfully enunciated than in Giinther, i. 284, 
 ss. 6, 7 : '' Keine Nation ist befiigt, sich in die Handlungen der andern 
 zu mischen, am iDenigsten in die innere Staatsverfassung." The prin- 
 ciple is recorded in many treaties : e. g., Treaty of the Pyrenees, 1659 
 (Art. 60 — France promises not to interfere in the affairs of Portugal) ; 
 Peace of Luheck, 1629 (Arts. 2, 3 — the Emperor of Germany takes a 
 similar engagement as to Denmark — a reciprocal one being taken by 
 Denmark) ; Peace of Neustadt, 1721 (Art. 7 — Russia makes a like 
 promise with respect to Sweden). During the last twenty years most 
 of the great European Powers have, on various occasions, formally, 
 at least, promulgated the same doctrine. Vide post, Intervention — 
 Balance of Powbb. 
 
TERRITOKIAL INVIOLABILITY. 187 
 
 CHAPTER IV. 
 
 TERRITORIAL INVIOLABILITY — NATIONAL POSSESSIONS. 
 
 CL. II. — A State, like an Individual, is capable of 
 possessing property. The property of a State is marked by 
 the same characteristics relatively to other States, as the 
 property of individuals relatively to other individuals ; that 
 is to say, it is exclusive of all foreign interference and 
 susceptible of free disposition (a). 
 
 This property consists of Things (corpora), and of Rights to 
 things (Jura) ; or, in other v^^ords, it consists of things divided 
 into those which are corporeal or incorporeal, movable or 
 immovable {res, bona, pecunia) (b). As in the case of Indi- 
 viduals, certain things belong by their nature so equally to 
 every person, that they are incapable of being appropriated 
 by any one person ; so in the case of States, certain things 
 belong so equally to all communities, as to be incapable 
 of being appropriated by any one of them (extra commer- 
 cium — extra patrimonium). 
 
 All these Things and Rights taken together would be 
 designated by the Roman law " universitas^^ (c). At present 
 
 (a) Heffters, s. 64. 
 
 (6) " Cum pupillus a tutore stipulatur rem salvam fore, non solum 
 qu8B in patrimonio habet, sed etiam quae in nominibus sunt, ea 
 stipulatione videntur contineri." — Dig. L. t. xvi. s. 49. 
 
 '^In bonis autem nostris computari sciendum est non solum quae 
 dominii nostri sunt, et si bona fide a nobis possideantur vel superficiaria 
 sint. ^que bonis adnumerabitur, etiam si quid est in actionibus, 
 petitionibus, persecutionibus ; nam hsec omnia in bonis esse videntur." — 
 lb. lib. 1. 50, t. xvi. 49. 
 
 " Pecunics verbum non solum numeratam pecuniam complectitur : 
 verum omnem omnino pecuniam, boc est omnia corpora : nam corpora 
 quoque pecuniae appellatione contineri nemo est qui ambiget." — lb. 178. 
 
 " Pecunics nomine non solum numerata pecunia ; sed omnes res, tarn 
 soli quam mobiles, et tarn corpoi-a quamjura continentur." — lb. 222. 
 
 (c) " Bonorum appellatio, sicut hsereditatis, universitatem quandam ac 
 jus successionis, et non singulas res demonstrat." — Dig. lib. 1. t.xvi. 208. 
 
188 INTERNATIONAL LAW, 
 
 we are concerned only with that portion of this collective 
 whole which relates to real or territorial rights, and more 
 especially with the right which flows from the above- 
 mentioned characteristic of exclusiveness — namely, the Right 
 of Territorial Inviolability. 
 
 CLI. A State in the lawful possession of a territory 
 has an exclusive right of property therein, and no stranger 
 can be entitled, without her permission, to enter within her 
 boundaries, much less to interfere with her full exercise of 
 all the rights incident to that supreme dominion, which has 
 obtained from jurists the appellation of dominium eminens. 
 
 CLII. No individual proprietor can alienate his posses- 
 sions from the State to which they belong, and confer 
 the property of, or the sovereignty over, them to another 
 country (d). Whether and to what extent it may be com- 
 petent to the sovereign of a territory to alienate any portion 
 of it will be hereafter considered. 
 
 CLIII. This general principle of dominium eminens is 
 applicable to all possessions, whether acquired, 1, by recent 
 acquisition, through the medium of discovery and lawful 
 occupation ; 2, by lawful cession or alienation ; 3, by con- 
 quest in time of war, duly ratified by treaty ; or, 4, by 
 prescription. 
 
 CLIV. National Territory consists of water as well as 
 land ; and, in order to examine carefully the former species 
 of possession, we must consider whether, and to what extent, 
 and under what limitations, the following waters may be 
 the objects of national property and dominion : — 
 
 1. Rivers and Lakes. 
 
 2. The Open Sea. 
 
 3. The Narrow Seas. 
 
 4. The British Seas. 
 
 5. The Straits. 
 
 6. Portions of the Sea. 
 
 {d) De Garderiy Traite de Diphmatie, t. i. p. 387. 
 
RIVERS. 189 
 
 CHAPTER V. 
 
 PROPERTY OF A STATE — RIVERS. 
 
 CLV. No difficulty can arise with respect to Rivers and 
 Lakes entirely enclosed within the limits of a State; but 
 questions of some difficulty have arisen with respect to rivers 
 which are not so enclosed, but which flow through more 
 than one State (a). The Roman law declared all navigable 
 rivers to be so far public property that a free passage over 
 them was open to everybody, and the use of their banks 
 {jus littoris) for anchoring vessels, lading and unlading cargo, 
 and acts of the like kind, to be incapable of restriction by 
 any right of private domain {h). 
 
 CLVI. The navigable rivers, however, were classed, ac- 
 cording to that law, among the ^' res puhlicm,^'' and not, 
 as might appear from a superficial view, among the 
 " res commujies^^ as the sea was. Rivers were the piiblic 
 property of the State, not common to the whole world like 
 the ocean (c). 
 
 CLYII. It has been contended, that the principle of this 
 law has been engrafted upon International Law, and that 
 it is a maxim of that law that the ocean is free to all 
 mankind, and rivers to all riparian inhabitants. So that 
 the nation which possessed both banks of a river where it 
 disembogued itself into the sea, was not at liberty to refuse 
 the nation or nations which possessed the banks of the river 
 
 («) Grotim, 1. ii. c. ii. ss. 12-14, p. 191 ; c. iii. ss. 7-12, p. 207. 
 
 (&) Inst. 1. ii. tit. i. ss. 1-5 ; Dig. 1. i. tit. viii. s. 5. 
 
 (c) "Quaedam enim naturali jure oommunia sunt omnium, qusedam 
 publica. . . . Et quidem naturali jure communia sunt omnia heec : Aer, 
 Aqua proiiuens, et Mare, et per hoc littora maris. . . . Flumina autem 
 omnia, et Portus, publica sunt." — Inst. 1. ii. tit. i. ss. 1, 2. 
 
190 INTERNATIONAL LAW. 
 
 higher up, from the use of the water, for the passage of vessels 
 to the sea, and from the incidental use of the banks for the 
 purposes mentioned above (d). The opinion of Grotius (e) 
 seems to be in favour of this position; for he held that, 
 though the property and domain over the stream belonged 
 to the riparian States, " at idem flumen qua aqua profluens 
 " vocatur, commune mansit " (/) ; and this upon two grounds : 
 1. Because this was one of the rights excepted and reserved, 
 at the period when the right of property was introduced as 
 a limitation upon the original community of possession, in 
 which fiction this great man believed ; but as the basis of 
 this opinion clearly was and is now universally acknowledged 
 to be a fiction, this reason, built upon the supposition of its 
 being a truth, can be of no avail (^). 2. Because the use of 
 rivers belonged to the class of things " utilitatis innoxicB''' (h), 
 the value of the stream being in no way whatever diminished 
 to the proprietors by this innocent use of them by others, 
 inasmuch as the use of them is inexhaustible (z). Grotius, 
 as it will be necessary to remark hereafter, appears to have 
 considered the right of mere passage (Jus transitus innoxii) 
 by one nation over the domain of another — whether that 
 domain was an arm of the sea, or lake, or river, or even the 
 land — to be one of strict law, and not of comity ; but his 
 opinion is not founded upon any sound or satisfactory reason, 
 and is at variance with that of almost all other jurists (j). For, 
 the reason of the thing and the opinion of other jurists, speak- 
 ing generally, seem to agree in holding that the right can only 
 
 {d) Wheaton's History of the Law of Nations, p. 502. 
 
 (e) Lib. ii. c. ii. s. 12, et seq. p. 191. 
 
 (/) VaUel, 1. i. c. x. ss. 103, 104 ; 1. i. c. xxiii. s. 292. 
 
 (g) So Vattel, t. i. 1. ii. c. ix. s. 123 : ^' — un reste de la communion 
 primitiye." 
 
 (h) Grotitis, 1. ii. c. ii. s. 11. 
 
 (t) Vattel, t. i. 1. ii. c. ix. s. 126: "Des clioses d'un usage in- 
 ^puisable." 
 
 (,/) Monsieur Eugene Ortolan, however, a modem French author, 
 who writes with care, good sense, and perspicuity, agrees with Grotius. 
 See Des Moyens d^acquSrir le Domaine international ou PrcypriH^ 
 (PEtat entre les Nations, etc., p. 30 (Paris, 1851). 
 
BIVERS. 191 
 
 be what is called (however improperly) by Vattel and other 
 writers imperfect, and that the State, through whose domain 
 the passage is to be made, must be the sole judge as to 
 whether it be innocent or injurious in its character (k). 
 
 CLYIII. It may be conceded, however, that the right to 
 the free navigation of a river being once granted, the inno- 
 cent use of the different waters which unite that river with 
 the sea follows as a matter of course, and by necessary 
 implication. This proposition was stoutly maintained by 
 the States who were interested in the free navigation of the 
 Khine, and who insisted that no other construction could be 
 put upon the expressions in the treaties of Paris and Vienna, 
 declaring that river to be free. " Au point ou il devient 
 " navigable jusqu'a la mer" (Z), which expressions included, 
 not only the course of the Rhine Proper, which lost itself in 
 the sands, but the other channels through which this river 
 disembogued itself into the sea (m). 
 
 CLIX. And it may also be admitted, that when this 
 rio'ht of free navio^ation has been conceded, the maxim of 
 Roman jurisprudence applies, and that the right of the shores 
 is incident to the use of the water. Mr. Wheaton remarks, 
 in his valuable " History of the Law of Nations," that the laws 
 of every country probably intended the same provision ; and 
 he adds a remarkable instance of the practical application 
 of the principle in the following precedent of International 
 Law : — " This" (he says) " must have been so understood 
 " between France and Great Britain at the Treaty of Paris, 
 " when a right was ceded to British subjects to navigate the 
 " whole river (the Mississippi), and expressly that part 
 " between the island of New Orleans and the western bank, 
 " without stipulating a word about the use of the shores, 
 
 (k) Puffendorfj 1. iii. c. iii. s. 8. Wheaton' s Elem. of International 
 Laio, Yol. i. pp. 229, 230. History of tlie Law of Nations j pp. 508-510. 
 Puffmdorf, 1. iii. c. iii. ss. 3-6. Wolfs Inst. ss. 310-312. Vattel, 1. i. s. 
 292; 1. ii. ss. 123-139. 
 
 {I) Be Martens et de Ctissy, Rec. de Tr. t. iii. p. 179. 
 
 (m) Annual Begister for 1826, pp. 259-263. 
 
192 INTERNATIONAL LAW. 
 
 " though both of them belonged then to France, and were 
 ** to belong immediately to Spain. Had not the use of the 
 " shores been considered as incident to that of the water, it 
 " would have been expressly stipulated, since its necessity 
 " was too obvious to have escaped either party. Accord- 
 " ingly, all British subjects used the shores habitually for 
 " the purposes necessary to the navigation of the river ; and 
 " when a Spanish governor undertook at one time to forbid 
 " this, and even cut loose the vessels fastened to the shores, 
 ** a British vessel went immediately, moored itself opposite 
 " the town of New Orleans, and set out guards with orders 
 ** to fire on such as might disturb her moorings. The 
 " governor acquiesced, the right was constantly exercised 
 " afterwards, and no interruption was offered " (w). 
 
 CLX. These accessories, however, can of course only 
 be demanded when the principal right has been granted ; 
 and we must return to the position, that where the free 
 navigation of a river has not been conceded by the State 
 possessing both banks, there is no sufficient authority for 
 maintaining that such concession can be, irrespectively of 
 treaty, lawfully compelled. It is true, indeed, that the 
 United States of America, in their controversy with Spain 
 with reference to the navigation of the Mississippi, before 
 the Treaty of Lorenzo el Real in 1795, insisted upon a strict 
 International right, founded, as it was alleged, upon the 
 natural sentiments of man, to the free use of rivers from the 
 source to the mouth by all riparian inhabitants. But the 
 practice of nations was not at that time in favour of this 
 position, and a treaty was finally resorted to in this, as it has 
 been since in other cases, as the only certain means of placing 
 this claim upon the footing of right, and of securely regu- 
 lating its exercise. 
 
 CLXI. The general law on this head is summed up with 
 characteristic perspicuity by Lord Stowell in the case of the 
 Twee Gehrceders (o). This was a case of considerable 
 
 («) Hist, of the Law of Nations, 610, 511. (o) 3 Roh. Ad. Rep. 338-340, 
 
RIVERS. 193 
 
 importance, as it respected the claim of a sovereign State 
 to a right of territory over the spot where the capture in 
 question was alleged to have taken place. The case arose 
 on the capture of vessels in the Groningen Watt, on a 
 suggestion that they were bound from Hamburg to Amster- 
 dam, then under blockade, and a claim was given under 
 the authority of the Prussian minister, averring the place in 
 question to be within the territories of the King of Prussia. 
 Lord Stowell said, " It is scarcely necessary to observe, that 
 " a claim of territory is of a most sacred nature. Strictly 
 " speaking, the nature of the claim brought forward on this 
 " occasion is against the general inclination of the law, for 
 '^ it is a claim of private and exclusive property, on a subject 
 " where a general, or at least a common use is to be presumed. 
 " It is a claim which can only arise on portions of the sea, 
 " or on rivers flowing through different States : the law of 
 « rivers flowing entirely through the provinces of one State 
 " is perfectly clear. In the sea, out of the reach of cannon- 
 *' shot, universal use is presumed ; in rivers flowing through 
 '^ conterminous States, a common use of the different States 
 " is presumed. Yet, in both of these, there may, by legal 
 " possibility, exist a peculiar property excluding the universal 
 " or the common use. Portions of the sea are prescribed 
 " for, so are rivers flowing through contiguous States ; the 
 " banks on one side may have been first settled, by which 
 " the possession and property may have been acquired, or 
 " cessions may have taken place upon conquests, or other 
 " events. But the general presumption certainly bears 
 " strongly against such exclusive rights, and the title is a 
 " matter to be established, on the part of those claiming 
 " under it, in the same manner as all other legal demands 
 " are to be substantiated, by clear and competent evidence. 
 " The usual manner of establishing such a claim is, either 
 " by the express recorded acknowledgment of the conter- 
 " minous States, or by an ancient exercise of executive 
 " jurisdiction, founded presumptively on an admission of 
 " prior settlement, or of subsequent cession. One hardly 
 VOL. I. o 
 
194 INTERNATIONAL LAW. 
 
 " sees a third species of evidence, unless it be, what this 
 ** case professes to exhibit, the decision of some common 
 '* superior in the case of a contested river. The sea admits 
 " of no common sovereign ; but it may happen that conter- 
 *' minous States, through which a river flows, may acknow- 
 " ledge a common paramount sovereign, who, in virtue of 
 " his political relation to them, may be qualified to appro- 
 " priate exclusively and authoritatively the rights of territory 
 " over such a river, to one or other of them." 
 
 CLXII. This free navigation, and this innocent use of 
 rivers, have formed an important part of many treaties ; 
 and the subject has been most carefuUy considered in some 
 of -the principal conventions of modem times. 
 
 CLXIII. When the SevenUnited Provinces had obtained, 
 after a struggle of eighty years' duration, the recognition of 
 their independence from the crown of Spain, they were not 
 contented with having achieved their own liberty, and with 
 having possessed themselves of some of the richest colonies 
 of their former sovereign in the new world; they strove, 
 being far-sighted according to the notions of trade then preva- 
 lent, to secure to themselves, both at home and abroad, the 
 closest commercial monopoly (/?); and by the peace of Munster 
 (Jan. 30, 1648) they actually compelled Philip the Fourth to 
 deprive the TenProvinces,which had retained their allegiance, 
 of the commercial advantages naturally incident to their geo- 
 graphical situation. The fourteenth article of that Peace (q) 
 contained a stipulation that the Scheldt in all its branches, 
 and in its mouths of Sas, Zwyn (r), and the other openings 
 
 (p) Koch, Histoire des Traites de Paix, torn. i. pp. 84, 483 (ed. 
 Bruxelles, 1837). 
 
 (q) The stipulation was said to be only a confirmation of the ancient 
 right of Staple {d'itapes) by which foreign vessels entering the Scheldt 
 were compelled to break bulk, and put their cargo on board Dutch 
 vessels 5 but by this stipulation foreign vessels were absolutely prohibited 
 from entering the Scheldt. 
 
 (r) The Dutch, it should be observed, always maintained that the 
 whole course of the two branches of the Scheldt, which passed within 
 the dominions of Holland, was entirely artijicial; that it owed its 
 
RIVERS. 195 
 
 into the sea, should be for ever closed to the Belgian pro- 
 vinces. This stipulation, to which the ruin pf the once 
 magnificent commerce of Antwerp has been a^scribed, was 
 rigidly enforced till 1783 (.9), when Joseph the Second 
 endeavoured to remove the unnatural obstacles to the natural 
 prosperity of his fine Belgic provinces, by forcing, most 
 illegally it must be confessed, the opening of the Scheldt. 
 But the Dutch made on the whole a successful resistance to 
 this attempt, retaining, by the Treaty of Fontainebleau 
 (which they concluded, under the mediation of France, with 
 Joseph in 1785), the Scheldt from Saftingen to the sea, and 
 all the mouths of the Scheldt in the same closed condition, in 
 which they had been placed by the Treaty of Munster. The 
 forcible opening of this navigation by the French when they 
 overran Belgium in 1792, and the utter disregard which 
 they avowed for all treaties upon the matter, was one of the 
 circumstances which brought England and Holland into the 
 war against France. 
 
 CLXIV. The Treaty of Vienna in 1815 introduced a 
 more liberal principle upon this subject into the public law 
 of Europe. The final act of the Congress of Vienna provided, 
 by what is called the Annexe XVI., that the navigation of 
 all rivers separating or traversing different States should be 
 entirely free, from the point where each river became navi- 
 gable, to the point of its disemboguement in the sea (t). The 
 
 existence to the skill and labour of Dutchmen ; that its banks had 
 been erected and maintained by them at a great labour and expense. 
 
 (s) See Martens^ Causes celebres, t. ii. p. 203 — Cause huitieme : 
 " Differends survenus en 1783 et 1784, entre I'Autriche et la Republique 
 des Provinces unies des Pays-Bas, au sujet des limites de la Flandre, 
 de la cession de Mastricht, de I'ouverture de I'Escaut, et du commerce 
 aux Indes Orientales." 
 
 (t) ITertslefs Tr. vol. i. p. 2. — " Art. C VIII. Les puissances dont les 
 etats sont separ^s ou travers(5s par une meme riviere navigable, 
 s'engagent a regler d'un commun accord tout ce qui a rapport a la 
 navigation de cette riviere. Elles nommeront, a cet eftet, des com- 
 missaires qui se reuniront, au plus tard, six mois apres la fin du 
 Congres, et qui prendront pour bases de leurs travaux les principes 
 ^tablis dans les articles suivans. 
 
 " Art. CIX. La navigation dans tout le cours des rivieres indiqu^es 
 
 o 2 
 
196 INTERNATIONAL LAW. 
 
 general principles of this act of regulation {refjlement) were 
 founded upon a memoir of the celebrated Wilhelm Von 
 
 dans Tarticle pr<5c^dent, du point ou chacune d'elles devient navigable 
 jusqu'a son embouchure, sera entierement libre, et ne pourra, sous 
 le rapport du commerce, etre interdite a personne; bien entendu que 
 Ton se conform era aux reglemens relatifs a la police de cette naviga- 
 tion ; lesquels seront con9U8 d'une maniere uniforme pour tons, et aussi 
 favorable que possible au commerce de toutes lea nations. 
 
 " Art. ex. Le systerae qui sera 6tabli, tant pour la perception des 
 droits que pour le raaintien de la police, sera, autant que faire se pourra, 
 le meme pour tout le cours de la riviere, et s'^tendra aussi, a moins que 
 les circonstances particulieres ne s'y opposent, sur ceux de ses em- 
 brancliemens et confluens qui, dans leur cours navigable, separent ou 
 traversent diff^rents 6tats. 
 
 " Art. CXI. Lea droits sur la navigation seront fix^s d'une maniere 
 uniforme, invariable, et assez independante de la quality differente des 
 marcbandisea pour ne pas rendre n^cessaire un exameu detaille de la 
 cargaison, autrement que pour cause de fraude et de contravention. 
 La quotit^ de ces droits, qui, en aucun cas, ne poiirront exceder ceux 
 existant actuellement, sera determin^e d'apres les circonstances locales, 
 qui ne permettent gueres d'etablir une regie g^n^rale a cet egard. On 
 partira n^anmoins, en dressant le tarif, au point de vue d'encourager 
 le commerce en facilitant la navigation, et I'octroi ^tabli sur le Rhin 
 pourra servir d'une norme approximative. 
 
 " Le tarif une fois r6gle, il ne pouiTa plus etre augments que par un 
 arrangement commun des 6tat8 riverains, ni la navigation grevee 
 d'autrea droits quelconques, outre ceux fix^s dans le reglement. 
 
 ** Art. CXII. Les bureaux de perception, dont on reduira autant que 
 possible le nombre, seront fixtSs par le reglement, et il ne pourra s'y 
 faire ensuite aucun changement que d'un commun accord, a moins qu'un 
 des ^tata riverains ne voulut diminuer le nombre de ceux qui lui 
 appartiennent exclusivement. 
 
 " Art. CXIII. Chaque 6tat riverain se chargera de I'entretien des 
 cbemins de hallage qui paasent par son territoire, et des travaux 
 neceasaires pour la meme 6tendue dana le lit de la riviere, pour ne faire 
 ^prouver aucun obstacle a la navigation. 
 
 ' '' Le reglement futur fixera la maniere dont les 6tats riverains devront 
 concourir a cea derniera travaux, dans le cas ou les deux rives appar- 
 tiennent a diff(^rens gouvernemens, 
 
 " Art. CXIV. On n'^tablira nuUe part des droits d'etape, d'^chelle, 
 ou de relache forc^e. Quant a ceux qui existent deja, ils ne seront 
 conserves qu'en tant que lea etats riverains, sans avoir ^gard a I'interet 
 local de I'endroit ou du pays ou ils sont 6tablis, les trouveroient n^ces- 
 saires ou utiles a la navigation et au commerce en general. 
 
 " Art. CXV. Les douanes des ^tats riverains n'auront rien de commun 
 avec les droits de navigation. On empechera, par des dispositions 
 r^glementaires, que I'exercice des fonctions des douaniers ne mette pas 
 
RIVERS. 197 
 
 Humboldt (?«), then the Prussian plenipotentiary ; they were 
 afterwards applied, by a series of articles, to the details of 
 the tolls (x) octroi, police, and other matters incident to the 
 navigation of rivers, and in particular to the Rhine, the 
 Neckar, the Main, the Moselle, the Meuse, the Scheldt — the 
 stipulations relating to the Meuse and the Scheldt were 
 subsequently incorporated into the treaty of 1839, between 
 the then independent kingdoms of Holland and Belgium. 
 
 CLXy. Arrangements made in a similar spirit with 
 respect to the free navigation of the Vistula, entered into, in 
 May 1815, between Austria and Russia (y), and between 
 
 d'entraves a la navigation; mais on surveillera, par ime police exacte 
 sur la rive, toute tentative des habitans de faire la contrebande a I'aide 
 des bateliers. 
 
 " Art. CXVI. Tout ce qui est indique dans les articles precedens sera 
 determine par un reglement commun qui renfermera egalement tout ce 
 qui auroit besoin d'etre fixe ulterieurement. Le reglement, une fois 
 arrete, ne pourra etre change que du consentement de tous les ^tats 
 riverains, et ils auront soin de pourvoir a son execution d'une maniere 
 convenable, et adaptee aux circonstances et aux localites. 
 
 " Art. CXVII. Les reglemens particuliers relatifs a la navigation du 
 Rbin, du Neckar, du Mein, de la Moselle, de la Meuse et de I'Escaut, 
 tels qu'ils se trouvent joints au present acte, auront la meme force et 
 valeur que s'ils y avoient ete textuellement ins^r^s." 
 
 (m) Wheaton's History, p. 498. 
 
 (x) Grotius, 1. ii. c. ii. xiv., observes generally upon the question 
 of tolls : " Sed quaeritur, an ita transeuntibus mercibus, terra, aut 
 amne, aut parte maris, quae terrse accessio dici possit, vectigalia imponi 
 possint ab eo, qui in terra imperium habet. Certe qusecunque onera ad 
 illas merces nullum habent respectum, ea mercibus istis imponi nulla 
 sequitas patitur. Sic nee capitatio, civibus imposita ad sustentanda 
 reipublicsB onera, ab exteris transeuntibus ekigi potest. Sed si aut ad 
 prsestandam securitatem mercibus, aut inter csetera, etiam ob hoc onera 
 sustinentur, ad ea compensanda vectigal aliquod imponi mercibus potest, 
 dura modus causae non excedatur." Upon this passage Barleyrae remarks : 
 " Cette raison et autres semblables ne font que rendre plus juste la levee 
 des impots. Mais independamment de tout cela on pent exiger quelque 
 chose pour la simple permission de passer, qu'on n'etoit pas oblige d'accorder 
 a la rigueur. II est libre a tout proprietaire, par une suite du droit meme 
 de proprietaire, de n'accorder a autre que, moiennant un certain prix, 
 I'usage de son bien." See also Vattel, 1. i. c. x. pp. 103, 104, 128 ; 1. ii. 
 ex. p. 362. • ' 
 
 (y) Treaty between Austria and Russia as to the Dniester, March 
 19, 1810. 
 
198 INTERNATIONAL LAW. 
 
 Russia and Prussia, to which Austria subsequently acceded, 
 and with respect to the rivers and canals of ancient Poland, 
 were confirmed by the fourteenth article of the final diet of 
 this Congress. Similar regulations were established with 
 respect to the navigation of the Elbe, by a convention signed 
 at Dresden, on the 23rd of June, 1821, by the States border- 
 ing on that river (les Etats riverains), and by an additional 
 act, signed by the same parties at Dresden, on the 13th of 
 April, 1844 ; a similar act was entered into by the States 
 bordering on the Weser on the 10th of September, 1823 (z). 
 By the ninety-sixth article of the same Congress, the same 
 general principles with respect to the free navigation of 
 rivers were extended to the Po. 
 
 CLXVI. By a Treaty {a) between Spain and Portugal, 
 signed at Lisbon on the 13th of August, 1835, the perfect 
 freedom of navigation of the river Douro was secured to the 
 subjects of both the contracting Powers. 
 
 CLXVII. The Treaty of Bucharest in 1812 put an end 
 to the hostilities which had been carried on between Russia 
 and the Ottoman Empire since 1809. By the fourth article 
 of that Treaty it was covenanted, that the boundary of 
 Russia on the side of Turkey in Europe should be the 
 Pruth, from the point where it joins the Danube, and the 
 left bank of the Danube to its mouth into Kilia in the 
 Black Sea ; that the navigation of both rivers, according to 
 these limits, should be equally free — the latter only having 
 been so before — to the subjects of both empires; that no 
 fortifications should be erected on the island in it; and 
 that the right of fishing and cutting wood should also be 
 common to both countries (6). But by the Treaty of Paris, 
 1856 (c), the navigation of the noble and mighty Danube 
 was subjected to the same public law to which other great 
 rivers of Europe flowing through the territories of divers 
 
 (z) Martens, Nouv. Mecueil, torn. ix. p. 361. 
 (a) Martens et De Cussy, torn. iv. p. 123. 
 (6) Wkeaton's Hist. p. 504. 
 (c) Arts, xv.-xix. 
 
RIVEKS. — THE RHINE. 199 
 
 States have been subjected by the Treaty of Vienna {d). The 
 extension of the principle of free navigation to this great 
 artery of Europe is a fact of no light importance to the 
 present and future welfare of mankind. By the Treaty of 
 Adrianople {e) the Sulina channel of the Danube had been 
 practically placed under the power of Russia. Much of the 
 value of the navigation depends upon the state of this 
 channel, about which great complaints had been justly 
 made (/). This evil also has been remedied by the Treaty 
 of Paris (1856), which appointed an European commission 
 to examine and make regulations on the subject {g). 
 
 CLXVIII. The expressions in the Treaties of Paris and 
 Vienna, stipulating for the free navigation of the Rhine 
 " jusqu'a la mer," gave rise to a serious controversy between 
 the Dutch Government and all the other Powers interested 
 in the navigation of that river, except Baden and France ; 
 they supported the interpretation put upon these words by 
 the Dutch. " To the sea," they contended, in the first place, 
 did not mean " into the sea ; " and, secondly, if the upper 
 States were to insist so strictly upon words, then they must 
 be contented with the course of the proper Rhine itself. 
 The mass of water which forms the Rhine, dividing itself a 
 little way above Nimeguen, is carried to the sea through 
 three principal channels, the Waal, the Leek, and the Yssel ; 
 the first descending by Gorcum, where it changes its name 
 for that of the Meuse ; the second, farther to the north, 
 approaching the sea at Rotterdam ; and the third, taking a 
 northerly course by Zutphen and Deventer, to disgorge 
 itself into the Zuyder Zee. None of these channels, however, 
 
 (d) " Convention conclue le 25 (13) juillet 1840, entre TAutriclie et 
 la Hussie, concemant la navigation du Danube." — Martens^ Rec. de 
 Traites, etc., vol. xxx. p. 209. 
 
 (e) Art. 2, 1829. 
 
 (/) Correspondence with tlie Russian Government respecting obstruc- 
 tions to the navigation of the Sulina Channel of the Danube, in papers 
 laid before Parliament, 1853. 
 
 {g) See a r^f/lemetit provisoire made on the 9th July, 1860. — Rec. 
 gen. de Traites, Samiver (cont. of Martens), t. iv. 2« partie, p. 118. 
 
200 INTERNATIONAL LAW. 
 
 is called or reckoned the Rhine ; that name is preserved to a 
 small stream which leaves the Leek at Wyck, takes its 
 course by Utrecht and Leyden, gradually losing its waters, 
 and, dwindling away so as to be unable to reach the sea, dis- 
 appears among the downs in the neighbourhood of Kulwyck. 
 The Rhine itself, strictly speaking, being thus useless for 
 the purposes of sea-navigation, it had been agreed between 
 Holland and her neighbours to consider the Leek as the 
 continuation of the Rhine ; and the Government of the 
 Netherlands afterwards consented that the Waal, as being 
 deeper and better adapted to navigation, should be sub- 
 stituted for the Leek. Now the Waal, said the Government 
 of Holland, terminates at Gorcum, to which the tide ascends ; 
 there consequently ends the Rhine ; all that remains of that 
 branch from Gorcum to Gravelingen, Helvoetsluys, and the 
 mouth of the Meuse, is an arm of the sea, enclosed within 
 our own territories, and therefore to be subjected to any 
 imposts and regulations which we may think fit to establish. 
 This interpretation, though supported, as has been remarked, 
 by France and Baden, was strenuously opposed by all the 
 other Powers of Germany, who denounced it as an attempt 
 to evade by chicane the plain meaning of the Treaty of Paris. 
 Prussia addressed a memorial to the great Powers who had 
 been parties to the Treaty of Paris and the Congress of 
 Vienna, calling upon them to state what had been the real 
 meaning of that Treaty in regard to the navigation of the 
 Rhine. The allied Powers put upon the Treaty the same 
 interpretation as the German States ; but the Government of 
 the Netherlands having returned an unfavourable answer to 
 their joint remonstrance, the Austrian envoy at Brussels 
 presented a note to that Court, in February 1826, in which 
 he argued, that, " by the Treaty of Paris, the allied Powers, 
 " in conjunction with France, agreed that the sovereignty of 
 " the House of Orange should receive an accession of ter- 
 " ritory, and that the navigation of the Rhine, from the 
 " point where it is navigable to the sea ( jusqu'a la mer), 
 " and vice versa, should be free. This last point was further 
 
RIVERS. — THE RHINE. 201 
 
 " confirmed in the separate article, which provides ^that the 
 '" ' freedom of navigation in the Scheldt shall be established 
 " ' on the same principles as those on which the navigation of 
 " * the Ehine is regulated by Article 5 of the present Treaty.' 
 " The allied Powers further reserved to themselves to deter- 
 " mine, at the next Congress, the countries which should be 
 " united with Holland, and declared ' that then the principles 
 " ' should be discussed, upon which the tolls to be levied by 
 " ' the States on the banks might be regulated in the most 
 " * uniform manner and most advantageously to the commerce 
 " * of all nations.' It appeared, from the simultaneous issuing 
 " of these two resolutions, that, among other conditions 
 " which the allies annexed to the incorporation of Belgium, 
 " this increase of territory was combined on their side, even 
 " before the establishment of the kingdom of the Netherlands, 
 " with the above obligation to restore the freedom of the 
 " navigation. There could certainly be no more express 
 " and positive obligation than that which is united with the 
 '* foundation of a State, and which, in the present case, had 
 " been fully sanctioned by the accession of the King of the 
 " Netherlands to the Treaty of Paris, and the act of Congress 
 ^' at Vienna. It was inconceivable how the Government of 
 " the Netherlands could flatter itself with the hope of making 
 " a right obscure and doubtful, by prolix observations on the 
 " main resolution, and to do away with the principle of the 
 " free navigation of the Rhine, which was proclaimed in the 
 *^ face of the world in the first document of the political 
 *' restoration of Europe, and on the same day when Holland 
 ^^ was given up to the House of Orange." 
 
 The cabinet of Brussels replied by a repetition of the geo- 
 graphical argument, that the Rhine, properly so called, did 
 not reach the sea ; and by an assertion, that the Republic of 
 Holland had never ceased to exist dejure, and had preserved 
 its existence under a monarch de facto, before the act of the 
 Congress of Vienna, and before the treaties which incor- 
 porated with it the Catholic Netherlands. The outlets of 
 the Rhine were certainly streams belonging to Holland, and 
 
202 INTERNATIONAL LAW. 
 
 to Holland only ; but the question was, whether the opening 
 of these streams was not a part of the condition whereby 
 Holland had gained the accession of the Belgic provinces, 
 — whether they were not conferred and accepted on the 
 understanding that the exclusive territorial right to the 
 mouths of the Rhine should be modified and limited for the 
 future. The reply of the Dutch cabinet does not seem to 
 meet this objection ; and it must be confessed that, to con- 
 tend that the Rhine Proper is lost in a little brook, while 
 two-thirds of its mighty volume of water are flowing on 
 through the Waal and receiving the tributary Meuse, is a 
 proposition which, however geographically accurate, cannot 
 be very agreeable to the plain common sense of mankind. 
 All that could be gained, however, at this time was a con- 
 cession that the Leek should be considered as the Rhine, and 
 that German vessels should be allowed to navigate it unmo- 
 lested under no higher duties than might be imposed on 
 other parts of the river, and that the prohibitions against the 
 transit of goods should be abolished. Still, however, the 
 main question — through what channel the Rhine "jusqu'a 
 " la mer " was to be navigated — remained in uncertainty ; for 
 the Leek ends at its junction with the Meuse before it 
 reaches Rotterdam, and the Meuse was a river purely Belgic 
 and Dutch Qi). 
 
 But by the Treaty {{) concluded at Mayence, March 31st, 
 1831, it was finally settled by all the riparian States of the 
 Rhine, that this river should be free from the point where it 
 is first navigable into the sea itself (his in die See), and that 
 the two outlets to the sea should be the Leek and the Waal 
 — the passage through the Leek being by Rotterdam and 
 Briel, and through the Waal by Dortrecht and Helvoetsluys 
 — with the use of the canal between the latter place and 
 
 {h) Annual Beg. vol. Ixviii., year 1826, pp. 259-263. 
 
 (i) " Conventions entre les Gouvememens des Etats riverains du Khin, 
 et reglement relatif a la navigation du dit fleuve, conclus a Mayence le 
 31 mars 1831, et dont les ratifications ont et6 echangees reciproquement 
 le 16 juin," — Martens, Rec, de Traites, vol. xvii. p. 252. 
 
EIVERS. — THE MISSISSIPPI. 203 
 
 Voovre. Various and particular regulations were made by 
 this Treaty concerning police and tolls ; and it was especially 
 stipulated, that, if the aforesaid outlets to the sea should be 
 dried up, the Government of the Netherlands, in whose 
 dominions they were, should indicate other courses to the 
 sea equal in convenience to those used for navigation by its 
 own subjects. 
 
 CLXIX. On no occasion were the principles of this 
 branch of International Law more elaborately discussed than 
 in the cases of the great American rivers, the Mississippi 
 and the St. Lawrence. By the Peace of Paris and Huberts- 
 burg in 1763, France ceded Canada, and Spain ceded Florida, 
 to Great Britain. France lost by this Treaty all her pos- 
 sessions in North America, Louisiana having been pre- 
 viously ceded to Spain as an indemnity for Florida. The 
 boundary line between the British and French possessions in 
 North America was drawn through the middle of the Missis- 
 sippi, from its source to the Iberville, and through the Iber- 
 ville and the lakes of Maurepos and Pontchartrain to the 
 sea ; and the free navigation of the Mississippi was secured 
 to British subjects upon the ground, which has since proved 
 to be erroneous in point of fact, that the Mississippi took its 
 rise in the British territory. Subsequently France ceded 
 Louisiana to Spain, and to the same Power Great Britain, 
 at the Treaty of Versailles in 1783, " retroceded^'' (to use 
 the language of the Treaty) Florida. Spain thus became 
 sovereign over both banks of the river for a considerable 
 distance above and at its mouth; and on this fact she built 
 her claim to an exclusive navigation of the river below the 
 point of the southern boundary of the United States. 
 
 The recognition of the independence of the United States 
 was the object of the Treaty of 1783 ; and by the eighth 
 article it was provided, that " the navigation of the river 
 " Mississippi shall for ever remain free and open to the 
 " subjects of Great Britain and the citizens of the United 
 " States." The United States therefore resisted the claim 
 of Spain, taking their stand upon these articles in the treaties 
 
204 INTERNATIONAL LAW. 
 
 of 1763 and 1783, and also upon the general principles of 
 International Law. They insisted that by this law a river 
 was open to all riparian inhabitants, and that the upper in- 
 habitants of a river had a right to descend the stream, in 
 order to find an outlet for their produce ; and, even if Spain 
 possessed an exclusive dominion over the river between 
 Florida and Louisiana, that an innocent passage over it was 
 not the less on that account the right of the inhabitants of 
 its upper banks. The dispute was ended in 1795 by the 
 Treaty of San Lorenzo el Real ; the fourth article of v^^hich 
 provided that the Mississppi should be open to the navi- 
 gation of the citizens of the United States from its source 
 to the ocean. By the twenty-second article they were per- 
 mitted to deposit their goods at New Orleans, and to export 
 them from thence on payment of warehouse hire. 
 
 The United States having acquired Louisiana, by the 
 cession of Napoleon, on the 30th April, 1803 (J), and 
 Florida by Treaty with Spain on the 22nd February, 1819, 
 thereby iucluded within their teiTitory the whole of this 
 magnificent stream the Mississippi, from its source to the 
 Gulf of Mexico. The stipulation in favour of British sub- 
 jects, in the article of the Treaty of 1783, was not renewed 
 in the Treaty of Ghent, 24th December, 1814; and it is 
 therefore maintained by the United States that the right 
 of navigating the Mississippi is vested exclusively in their 
 subjects (A). 
 
 CLXX. The case of the navigation of the St. Lawrence 
 was as follows (Z): — 
 
 (J) Vide post. 
 
 (k) Wheaton's Hist. p. 506-9; EUm. t. i. p. 185-6. 
 
 (/) Wheaton's Hist. 5, 12, 17, citing Mr. Secretary Clay's letter to Mr. 
 Gallatin, American Minister in London, June 19th, 1826. 
 
 Congress Documents, sess. 1827, 1828, No. 43. 
 
 American Paper on the Navigation of the St. Latvrence. — lb. sess. 1827, 
 1828, No. 43. 
 
 British Paper on the Navigation of the St. Lawrence. 
 
 Wheaton's Elem. i. 187. 
 
 State Papers {English), 1826-9. 
 
 Times Newspaper, Oct. 25, 26, 1850. 
 
RIVERS. — THE ST. LAWRENCE. 205 
 
 Great Britain possessed the northern shores of the lakes, 
 and of the river in its whole extent to the sea, and also the 
 southern bank of the river from the latitude forty-five degrees 
 north to its mouth. The United States possessed the southern 
 shores of the lakes, and of the St. Lawrence, to the point 
 where their northern boundary touched the river. These 
 two Governments were therefore placed pretty much in the 
 same attitude towards each other, with respect to the navi- 
 gation of the St. Lawrence, as the United States and Spain 
 had been in with respect to the navigation of the Mississippi, 
 before the acquisitions of Louisiana and Florida. 
 
 The argument on the part of the United States was much 
 the same as that which they had employed with respect to 
 the navigation of the Mississippi. They referred to the 
 dispute about the opening of the Scheldt in 1784, and con- 
 tended that, in the case of that river, the fact of the banks 
 having been the creation of artificial labour was a much 
 stronger reason, than could be said to exist in the case of 
 the Mississippi, for closing the mouths of the sea adjoining 
 the Dutch Canals of the Sas and the Smn, and that this 
 peculiarity probably caused the insertion of the stipulation in 
 the Treaty of Westphalia ; that the case of the St. Law- 
 rence differed materially from that of the Scheldt, and fell 
 directly under the principle of free navigation embodied in 
 the Treaty of Vienna respecting the Rhine, the Neckar, the 
 Main, the Moselle, the Meuse, and the Scheldt. But 
 especially it was urged, and with a force which it must 
 have been difficult to parry, that the present claim of the 
 United States with respect to the navigation of the St. 
 Lawrence, was precisely of the same nature as that which 
 Great Britain had put forward with respect to the navigation 
 of the Mississippi when the mouth and lower shores of that 
 river were in the possession of another State, and of which 
 claim Great Britain had procured the recognition by the 
 Treaty of Paris in 1763. 
 
 The principal argument contained in the reply of Great 
 Britain was, that the liberty of passage by one nation 
 
206 INTERNATIONAL LAW. 
 
 through the dominions of another was, according to the 
 doctrine of the most eminent writers upon International 
 Law, a qualified occasional exception to the paramount 
 rights of property ; that it was what these writers called an 
 imperfect, and not a perfect (m) right ; that the Treaty of 
 Vienna did not sanction this notion of a natural right to the 
 free passage over rivers, but, on the contrary, the inference 
 was that, not being a natural right, it required to be esta- 
 blished by a convention ; that the right of passage once con- 
 ceded must hold good for other purposes besides those of 
 trade in peace, for hostile purposes in time of war ; that the 
 United States could not consistently urge their claim on 
 principle without being prepared to apply that principle by 
 way of reciprocity, in favour of British subjects, to the navi- 
 gation of the Mississippi and the Hudson, to which access 
 might be had from Canada by land carriage or by the Canals 
 of New York and Ohio. 
 
 The United States replied, that practically the St. Law- 
 rence was a strait (w), and was subject to the same principles 
 of law; and that as straits are accessory to the seas which 
 they unite, and therefore the right of navigating them is com- 
 mon to all nations, so the St. Lawrence connects with the 
 ocean those great inland lakes, on the shores of which the sub- 
 jects of the United States and Great Britain both dwell ; and, 
 on the same principle, the natural link of the river, like the 
 natural link of the strait, must be equally available for the 
 purposes of passage by both. The passage over land, which 
 was always pressing upon the minds of the writers on Inter- 
 national Law, is intrinsically different from a passage over 
 water ; in the latter instance, no detriment or inconvenience 
 can be sustained by the country to which it belongs. The 
 track of the ship is effaced as soon as made ; the track of 
 an army may leave serious and lasting injury behind. The 
 
 (m) The inaccuracy of this phrase has heen already noticed. It was 
 intended to say that the navigation was a right not stricti juris, but a 
 concession of comity, 
 
 (n) Vide post, the law as to Straits. 
 
RIVERS. — THE ST. LAWRENCE. 207 
 
 United States would not " shrink " from the application of 
 the analogy with respect to the navigation of the Missis- 
 sippi, and whenever a connection was effected between it 
 and Upper Canada, similar to that existing between the 
 United States and the St. Lawrence, the same principle 
 should be applied. It was, however, to be recollected, that the 
 case of rivers which both rise and disembogue themselves 
 within the limits of the same nation is very distinguishable, 
 upon principle, from that of rivers which, having their sources 
 and navigable portions of their streams in States above, dis- 
 charge themselves within the limits of other States below. 
 
 Lastly, the fact, that the free navigation of rivers had been 
 made a matter of convention did not disprove that this navi- 
 gation was a matter of natural right restored to its proper 
 position by treaty. 
 
 The result of this controversy for many years produced no 
 effect. Great Britain maintained her exclusive right. The 
 United States still remained debarred from the use of this 
 great highway, and were not permitted to carry over it the 
 produce of the vast and rich territories which border on the 
 lakes above to the Atlantic Ocean. 
 
 It seems difficult to deny that Great Britain may have 
 grounded her refusal upon strict Law; but it is at least equally 
 difficult to deny, first, that in so doing she put in force an 
 extreme and hard law; secondly, that her conduct with 
 respect to the navigation of the St. Lawrence was inconsistent 
 with her conduct with respect to the navigation of the Mis- 
 sissippi. On the ground that she possessed a small tract of 
 domain in which the Mississippi took its rise, she insisted on 
 her right to navigate the entire volume of its waters : on 
 the ground that she possessed both banks of the St. Law- 
 rence where it disembogued itself into the sea, she denied to 
 the United States the right of navigation, though about one 
 half of the waters of Lakes Ontario, Erie, Huron, and 
 Superior, and the whole of Lake Michigan through which the 
 river flows, were the property of the United States. 
 
 Any blame, however, attaching to the conduct of Great 
 
208 INTERNATIONAL LAW. 
 
 Britain, was removed by the Reciprocity Treaty of the 5th 
 of June, 1854, which provided by Article IV. as follows : — 
 " It is agreed that the citizens and inhabitants of the United 
 " States shall have a right to navigate the river St. Law- 
 " rence and the canals of 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 
 " hereafter may 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 ; that if at any time the British Government should 
 " exercise the said reserved right, the Government of the 
 " United States shall have the right of suspending, if it 
 " think fit, the operation of Article III. of the present 
 " Treaty, in so far as the province of Canada is affected 
 " thereby, for so long as the suspension of the free navi- 
 *' gation of the river St. Lawrence or the canals may con- 
 " tinue ; that British subjects shall have the right freely to 
 " navigate Lake Michigan with their vessels, boats, and 
 " crafts, so long as the privilege of navigating the river 
 " St. Lawrence, secured to American citizens by the above 
 " clause of the present article shall continue; and the 
 " Government of the United States further engages to urge 
 " upon the State governments to secure to the subjects of 
 " her Britannic Majesty the use of the several State canals 
 " on terms of equality with the inhabitants of the United 
 " States ; and that no export duty, or other duty, shall be 
 " levied on lumber or timber of any kind, cut on that portion 
 " of the American territory in the State of Maine, watered 
 " by the river St. John and its tributaries, and floated down 
 " that river to the sea where the same is shipped to the 
 " United States from the province of New Brunswick " (o). 
 
 (o) HertsWs Treaties, vol. ix. 998, x. 647, xi. 898. 
 
 See Address of President Pierce, 1853, Ann, Meg, for that year, p. 414, 
 
 See Lawrence's Wlieatony n. 114, p. 361. 
 
THE OPEN SEA. 209 
 
 On January 18, 1865, the President of the United States 
 put an end to this Treaty, in pursuance of a Resolution of 
 Congress, availing himself of a provision in the Treaty, ten 
 years having elapsed since its execution (v), 
 
 CLXXI. The Uruguay and Parana have been opened to 
 all merchant vessels by a Treaty of 10th of July, 1858, 
 between the United States and the Argentine Confederation, 
 and by a Treaty, May 13, 1858, between the United States 
 and Bolivia. The latter country declares "that in ac- 
 " cordance with fixed principles of International Law, it 
 " regards the Amazon and La Plata, with their tribu- 
 " taries, as highways or channels opened by nature on the 
 " commerce of all nations." Ecuador, 26th of November, 
 1858, has declared her rivers free. Peru appears to have 
 still a controversy as to the Peruvian tributaries of the 
 Amazon [q). 
 
 CLXXII. The question, whether the open sea, or main 
 ocean, could be appropriated (r) by any State to the exclusion 
 of others, has been the subject of celebrated controversies. 
 Spain and Portugal, at different epochs, have claimed ex- 
 clusive right, founded upon the titles of previous discovery, 
 possession, and Papal grants, to the navigation, commerce, 
 and fisheries of the Atlantic and Pacific Oceans. The Mare 
 
 (p) Dana's Wheaton, p. 181 ; U. S. Laws, xiii. 566. 
 
 (g) Dana's Wheaton, 204-5. 
 
 President Pierce's Message to United States, 1853 ; Ann. Meg. 1863> 
 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<m, 
 Ex posteriori genere est, quod mare regionibus maritimis vicem muni- 
 menti prsebet." And at the close of s. viii. he observes — "Ex hisce 
 patet, hodie post rem navalem ad summum perductamfastigiumpraesumi, 
 quemvis populum maritimum, et eui ullus navigandi usus, esse dominum 
 maris littoribus suis prsetensi quousque illud munimenti rationem habere 
 censetur : imprimis autem portuum, aut ubi alias eommoda in terram 
 exscensio fieri potest. (Bodinus de Rep. 1. i. c. ult. Baldi fide asserit ; 
 jure quodammodo priiicipiim omnium maris accolarum communi receptum. 
 esscy ut sexagitita millianhus a littore Princeps legem ad littus accedentibus 
 
STRAITS. 225 
 
 distributed amongst them, upon the same principle as it 
 would be among the several proprietors of the banks of a 
 river : " eorum imperia, pro latitudine terrarum, ad medium 
 " usque ejusdem pertinere intelligentur.''^ 
 
 The exclusive right of the British Crown to the Bristol 
 Channel, to the channel between Ireland and Great Britain 
 {Mare Hibernicum, Canal de Saint- George), and to the chan- 
 nel between Scotland and Ireland, is uncontested. Pretty- 
 much in the same category are the three straits, forming the 
 entrance to the Baltic, the Great and the Little Belt, and 
 the Sound, which belong to the Crown of Denmark (Z>) ; 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?</ew<7or/, De Jure Nat. et Gent. 1. iv. c. v. s. 8. 
 
 (6) Schlegel, Staatsrecht Ddnemarks^ p. 359. 
 
 (c) Mai-tens, 1. ii. c. i. s. 41, Des Mers adjacentes. 
 ^ Grotius, l.ii. c. iii. s. 13, 2: <' Videtur autem imperium in maris por- 
 tionem eadem ratione acquiri qua imperia alia, id est, ut supra diximus, 
 ratione personarum et ratione territorii, Ratione personarum, ut si 
 classis, qui maritimus est exercitus, aliquo in loco maris se habeat: 
 ratione territorii quatenus ex terra cogi possunt qui in proxima maris 
 parte versantur, nee minus quam si in ipsa terra reperirentur." 
 
 Wheaton's Hist. pp. 577, 583, 585, 587. 
 VOL. I. Q 
 
226 INTERNATIONAL LAW. 
 
 use is, according to Vattel, strictly applicable (d). How far 
 this doctrine is sound to the extent to which it is carried by 
 this jurist has been already considered in the matter of Rivers, 
 
 In 1602, Queen Elizabeth sent a special embassy to 
 Denmark, having for its object the general adjustment of 
 the relations between the two countries. 
 
 In the instructions given to the ambassadors, the prin- 
 ciples of International Law, with respect to the subjects 
 treated of in this Chapter, are laid down with the perspicuity 
 and precision which might be expected from the learning and 
 ability, both of the monarch and her counsellors : — 
 
 " And you shall further declare that the Laweof Nations 
 " alloweth of fishing in the sea everywhere ; as also of using 
 ** ports and coasts of princes in ami tie for traffique and 
 " avoidinge danger of tempests ; so that if our men be barred 
 ** thereof, it should be by some contract. We acknowledge 
 " none of that nature ; but rather, of conformity with the 
 " Lawe of Nations in these respects, as declaring the same 
 " for the removing of all clayme and doubt ; so that it is 
 " manifest, by denying of this Fishing, and much more, for 
 " spoyling our subjects for this respect, we have been injured 
 
 (d) Vattel, des Detroits en partictilier, 1. i, c. xxiii. s. 292 : " II faut 
 remarquer en particulier, a I'egard des detroits, que quand ils servent a 
 la communication de deux mers dont la navigation est commune a toutes 
 les nations, ou a plusieurs, celle qui possede le detroit ne peut y refuser 
 passage aux autres, pourvu que ce passage soit innocent et sans danger 
 pour elle. En le refiisant sans juste raison, elle priverait cette nation 
 d'un avantage qui leur est accords par la nature ; et encore un coup, le 
 droit d'un tel passage est un reste de la communion primitive, Seulement 
 le soin de sa propre surete autorise le maitre du detroit a user de certaines 
 precautions, a exiger des formalites, etablies d'ordinaire par la coutume 
 des nations. II est encore fonde a lever un droit modique sur les 
 vaisseaux qui passent, soit pour I'in commodity qu'ils lui causent en 
 I'obligeant d'etre sur ses gardes, soit pour la surete qu'il leur procure en 
 les protegeant contre leurs ennemis, en eloignant les pirates, et en se 
 chargeant d'entretenir des fanaux, des balises et autres clioses necessaires 
 au salut des navigateurs. C'est ainsi que le roi de Danemark exige un 
 peage au detroit du Sund. Pareils droits doivent etre fondes sur les 
 meraes raisons et soumis aux memes regies que les phages 6tablis sur 
 terre, ou sur une riviere." 
 
STRAITS. — FISHERIES. 227 
 
 *^ against the Lawe of Nations, expresslie declared by con- 
 " tract, as in the aforesaid Treaties, and the King's own 
 « letters of '%6. 
 
 "And for the asking of licence, if our predecessors 
 " yelded thereunto, it was more than by Lawe of Nations 
 " was due; — yelded, perhaps, upon some special consideration, 
 " yet, growing out of use, it remained due by the Lawe of 
 " Nations, what was othenvise due before all contract ; 
 " wherefore, by omitting licence, it cannot be concluded, in 
 " any case, that the right of Fishing, due by the Lawe of 
 " Nations, faileth ; but rather, that the omitting to require 
 " Licence might be contrarie to the contract, yf any such 
 " had been in force. 
 
 " Sometime, in speech, Denmark claymeth propertie in 
 " that Sea, as lying between Norway and Island, — both 
 " sides in the dominions of oure loving brother the king ; 
 " supposing thereby that for the propertie of a whole sea, 
 " it is sufficient to have the banks on both sides, as in rivers. 
 " Whereunto you may answere, that though property of sea, 
 " in some small distance from the coast, maie yeild some 
 " oversight and jurisdiction, yet use not princes to forbid 
 " passage or fishing, as is well seen in our Seas of England, 
 *^ and Ireland, and in the Adriaticke Sea of the Venetians, 
 " where we in ours, and they in theirs, have propertie of 
 " command ; and yet neither we in ours, nor they in theirs, 
 " offer to forbid fishing, much lesse passage to ships of mer- 
 " chandize ; the which, by Lawe of Nations, cannot be 
 " forbidden ordinarilie ; neither is it to be allowed that 
 " propertie of sea in whatsoever distance is consequent to 
 " the banks, as it hapneth in small rivers. For then, by 
 " like reason, the half of every sea should be appropriated to 
 " the next bank, as it hapneth in small rivers, where the 
 " banks are proper to divers men ; whereby it would follow 
 " that noe sea were common, the banks on every side being 
 " in the propertie of one or other ; wherfore there re- 
 " maineth no colour that Denmarke may claim any propertie 
 " in those seas, to forbid passage or fishing therein. 
 
 Q 2 
 
228 INTERNATIONAL LAW. 
 
 " You may therefore declare that we cannot, with our 
 " dignitie, yeld that our subjects be absolutelie forbidden 
 " those seas, ports, or coasts, for the use of fishing negotia- 
 '' tion and safetie ; neither did we ever yeld anie such right 
 ^* to Spaine and Portugall, for the Indian Seas or Havens ; 
 " yet, yf our good brother the king, upon speciall reason, 
 " maie desu-e that we yeld to some renuinge of licence, or 
 " that some speciall place, upon some speciall occasion, be 
 " reserved to his particular use, in your discretion, for amitie 
 " sake, you may yeld therunto ; but then to define the 
 *' manner of seking licence, in such sort as it be not prejudi- 
 ** ciall to our subjects, nor to the effect of some suflftcient 
 " fishing, and to be rather caried in the subject's name, than 
 " in ours, or the king's "^ (e). 
 
 CXC. The alliances contracted between the United Pro- 
 vinces of the Netherlands with the city of Lubeck in 1613, 
 with Sweden in 1614 and 1640, and with the Hanseatic 
 towns in 1615 and 1616, were all directed against the 
 extraordinary pretensions of the Danish Crown. 
 
 But in more modern times these pretensions, though 
 extravagant enough, have been limited to the right of ex- 
 cluding foreigners, not only from all commerce with Iceland 
 and the Danish portion of Greenland, but from fishing within 
 fifteen miles of the coast of Iceland. 
 
 The first ordinance of the kind was put forth by Denmark 
 on the 16th of April, 1636, and pointed at Great Britain ; in 
 1682, it was renewed and confirmed; again on the 30th of 
 May, 1691 ; again on the 3rd of May, 1723 ; and again on 
 the 1st of April, 1776. 
 
 With respect to Greenland, the first prohibition to fish 
 appears to have been issued on the 16th of February, 1691. 
 This was pointed against the Hanseatic towns. By a Treaty 
 concluded on the 16th of August, 1692, the city of Hamburg 
 obtained the right of navigation and fishing in Davis's Straits. 
 
 By Royal Edicts in 1751, in 1758, and in 1776, the 
 
 (e) Rytner, Foed, t. xvi. pp. 433-4. 
 
STRAITS. — FISHERIES. 229 
 
 commerce of unprivileged foreigners with Grreenland was 
 strictly forbidden. 
 
 CXCI. In these prohibitions there was no violation of 
 the strict law, however they might offend the usual comity 
 of nations. But the validity of the prohibition to fish within 
 fifteen German miles of the shore of Greenland and Iceland 
 was strictly denied by England and Holland, who adhered 
 to the usual limit of cannon-shot from the shore. 
 
 CXCII. In the year 1740, a Danish man-of-war seized 
 upon several Dutch vessels, alleged to be found navigating 
 and fishing within the forbidden limits. They were taken 
 to Copenhagen, tried and condemned in the Court of Admi- 
 ralty of that capital. This act led to a vehement remon- 
 strance on the part of the Dutch (/). 
 
 The States General, in a Resolution of the 17th April, 
 1741, laid down three distinct propositions, of which the 
 substance was, — 
 
 1. That the sea was free; and that it was competent to 
 every one to fish in it in a proper manner, ^^ pourvu quHl 
 " ne fasse pas d\ine maniere indue^^ which they maintained 
 could not be predicated of fishing within four German miles 
 of the coast, inasmuch as Denmark might make such a 
 Municipal prohibition binding on her own subjects, but 
 could not convert it into an International obligation. 
 
 2. That this right was fortified, in the case of Holland, by 
 several Treaties with Denmark. 
 
 3. That they were in possession, and had long been so, of 
 the right in question. 
 
 The Danish Government denied all these positions, with 
 reference to the particular sea. 
 
 1. " Les rois de Danemark," they said, " Norvege, etc., 
 " ont joui depuis un temps immemorial des pleins effets 
 " d'une juste possession dans la mer du Nord" {g). That, 
 possessing this ^'domination juste et immemoriale^'' they 
 
 (/) Martens, Causes celebres, t. i. p. 359. 
 (}/) Ibid. t. i. p. 392. 
 
230 INTERNATIONAL LAW. 
 
 were, on the authority of Grotius, entitled to the exclusive 
 fishery (h). 
 
 2. They went at length into the alleged Treaties, and 
 drew from them a contrary inference. 
 
 3. They denied the possession of the right by the Dutch ; 
 alleging that clandestine acts, punished as soon as discovered, 
 could not be construed as possession, and that none others 
 could be shown. 
 
 The dispute came to no legal termination. The crews of 
 the seized ships were given up, but neither the ships nor 
 their cargoes. In 1748 the Dutch sent ships of war to 
 protect their merchantmen. Denmark threatened to make 
 war, but did not. 
 
 CXCIII. In 1776 the strict provisions of the Danish 
 Government, for prohibiting all foreign nations from carry- 
 ing on any commerce with Greenland, gave rise to disputes 
 between Denmark and Great Britain, and between Denmark 
 and Holland, with respect to the seizure of an English bri- 
 gantine and two Dutch vessels for alleged violation of these 
 provisions, and their condemnation in the Danish Court of 
 Admiralty. In both cases the vessels were, at the application 
 of their respective Governments, restored ; but all claims for 
 compensation by way of damage were steadily refused, as it 
 was said that the vessels had been legally condemned by a 
 proper tribunal (z). The Dutch on this occasion protested 
 
 (h) Martens f Causes ceUhres, t. i. pp. 393-4. 
 
 (*) Extract from letter of Danish Government to the British Minister 
 at Copenhagen : — 
 
 *'Il«Sponse du comte de BemstorJS" a la note pr^c^dente, du 10 oc- 
 tohre 1776." — " On a I'honneur de r^pondre a la note remise par M. de 
 Laval en date du 7 octobre 1776, que la demande du d^dommagement 
 du S. Kidder, menant le vaisseau le Windsor^ pouvait avoir lieu, tant 
 qu'il (^tait douteux si sa saisie 6tait legale, ou si elle ne I'tStait pas ; mais 
 qu'elle n'est plus admissible selon la nature de la chose et les usages g6- 
 n^ralement re9us de toutes les puissances de I'Europe, des qu'une sentence 
 a et6 prononc^e par un tribunal competent a decider ce point, et des 
 qu'un vaisseau a 6t^ 16galement condamn^ et ddclai-6 confiscable avec sa 
 cargaison. S. M. est sure d'avoir donn6 la preuve la moins equivoque et 
 
STRAITS. — FISHERIES. 231 
 
 against the Danish pretensions with respect to Davis's Straits 
 and the Greenland fisheries (k). 
 
 CXCIV. Great Britain has never been remiss in main- 
 taining the rights of her fisheries. The Newfoundland 
 fisheries were the subject of careful provisions in the Treaties 
 of Utrecht and Paris, 1763 (Z); and were in 1818 regulated 
 by a Convention between Great Britain and the United 
 States of North America (m). 
 
 CXCY. The language of the Article of the Convention 
 was, that " Whereas differences have arisen respecting the 
 " liberty claimed by the United States, for the inhabitants 
 " thereof to take, dry, and cure fish on certain coasts, bays, 
 " harbours, and creeks of his Britannic Majesty's dominions 
 " in America, it is agreed between the high contracting 
 " parties, that the inhabitants of the said United States shall 
 
 la moins ordinaire de son amitid pour S. M. Britannique, en arretant 
 I'execution et I'efiet d'un arret donn^ en faveur de la compagnie de 
 Groenland." — Martens, Causes cel^bres, t. ii. pp. 131-2. 
 
 (k) Extract from the letter of the Dutch Minister at Copenhagen to 
 Danish Government : — 
 
 " Mais comme veritablement cette affaire est d'une importance g6n6rale 
 pour toutes les puissances interessees dans la peche de Groenland et du 
 detroit de Davis, LL. HH. PP. se verraient obligees d'en faire une cause 
 commune avec ses puissances, et de defendre et prot^ger le droit indis- 
 putable de toutes les nations de pouvoir naviguer et pecher librement par 
 toutea les mers ouvertes, les detroits, et les bayes, et en particulier celui 
 de leurs sujets, qui de temps immemorial ont ete en possession d'user de 
 ce droit sur les cotes de Groenland, dans le detroit de Davis, et nomm^- 
 ment aussi dans la baye de Disco." — Ibid. pp. 139-40. 
 
 See, too, disputes between England, Denmark, and Holland, 1776 ; as 
 to the Iceland fisheries, 1790, between Denmark and Holland, tb. t. i. ; 
 as to Finland, Heffters, 140, n. 3 ; Ortolan, Dipl de la Mer, i. 176 ; as to 
 the Zuyder Zee, The Twee Gebrceders (Lord Stowell), 3 Robinson^ 8 Adm. 
 Mep. p. 339. 
 
 (/) Koch, Hist, des Tr. i. 209, 362. 
 
 Art. 13 of the Treaty of Utrecht. 
 
 Art. 5 of the Treaty of Paris. 
 
 (m) The line of demarcation between the rights of fishing of English 
 and French subjects in the British Channel was elaborately defined by 
 the recent Treaty of 2nd August, 1839.— De Martens et De C. iv. 601. 
 
 Be Martens et Be C. iii. 391. 
 
232 INTERNATIONAL LAW. 
 
 " have for ever, in common with the subjects of his Britannic 
 " Majesty, the liberty to take fish of every kind on that part 
 " of the southern coast of Newfoundland which extends from 
 " Cape Ray to the Ramean Islands, on the western and 
 " northern coasts of the said Newfoundland, from the said 
 ** Cape Ray to the Quirpon Islands, on the shores of the 
 " Magdalen Islands, and also on the coasts, bays, harbours, 
 ^* and creeks, from Mount Joly, on the southern coast of the 
 " Labrador, to and through the Straits of Belle Isle, and 
 " thence northwardly indefinitely along the coast, without 
 *' prejudice, however, to any of the exclusive rights of the 
 '' Hudson's Bay Company ; and that the American fishermen 
 " shall also have liberty for ever to dry and cure fish in any 
 ** of the unsettled bays, harbours, and creeks of the southern 
 " part of the Coast of Newfoundland, here above described, 
 " and off the Coast of Labrador ; but so soon as the same, or 
 " any portion thereof, shall be settled, it shall not be lawful 
 '^ for the said fishermen to dry or cure fish at such portion 
 " so settled, without previous agreement for such purpose 
 " with the inhabitants, proprietors, or possessors of the 
 " ground. 
 
 " And the United States hereby renounce for ever any 
 " liberty heretofore enjoyed or claimed by the inhabitants 
 ** thereof to take, dry, or cure fish on or within three marine 
 " miles of any of the coasts, bays, creeks, or harbours of his 
 " Britannic Majesty's dominions in America not included 
 ** within the above-mentioned limits. Provided, however, 
 " that the American fishermen shall be admitted to enter 
 " such bays or harbours for the purpose of shelter and of 
 *' repairing damages therein, of purchasing wood, and of 
 " obtaining water, and for no other purpose whatever. But 
 " they shall be under such restrictions as may be necessary 
 " to prevent their taking, drying, or curing fish therein, or in 
 " any other manner whatever abusing the privileges hereby 
 " reserved them'*(w). 
 
 (n) Anmuil Reg, vol. xciv. (1862) pp. 295-6. 
 
STRAITS. — FISHERIES. 233 
 
 CXCVI. It appears that these provisions had not been 
 strictly observed by the subjects of the United States, and 
 that in 1849 complaints were made by the Legislature of 
 Nova Scotia to the British Crown, who took the opinion of 
 the Law officers as to the true construction of the Article. 
 This opinion was, that, " by the terms of the convention, 
 *' American citizens were excluded from any right of fishing 
 *^ within three miles from the coast of British America, and 
 " that the prescribed distance of three miles is to be measured 
 *' from the headlands, or extreme points of land, next the 
 *' sea or the coast, or of the entrance of bays or indents of the 
 " coast, and that consequently no right exists on the part of 
 *' American citizens to enter the bays of Nova Scotia, there 
 " to take fish, although the fishing, being within the bay, 
 " may be at a greater distance than three miles from the 
 " shore of the bay, as we are of opinion that the term ' head- 
 " ' land' (o) is used in the Treaty to express the part of the 
 " land we have before mentioned, including the interior of 
 " the bays and the indents of the coasts" (/?). 
 
 The neglect of these provisions by the subjects of the 
 United States still continued, and in 1852 British men-of-war 
 were sent to protect the fisheries and seize the boats which 
 violated the Treaty. This act of the British Government 
 created a great excitement in the United States, though it 
 does not appear that the legality of the construction of the 
 Article was impugned ; but Mr. Webster insisted on the 
 inconvenience to the subjects of the United States, and in 
 the want of comity shown In its sudden enforcement after 
 many years {q) of an opposite practice (r). A temporary 
 
 (o) The term ^'headland,'' however, does not occur in the Treaty. 
 The Law officers probably gave their opinion on a statement of the Colo- 
 nists in which the word did occur. My attention was drawn to this 
 strange fact by Mr. Addison Thomas i^ 1854, after the publication of the 
 first edition of this work. 
 
 {p) Annual Reg. vol. xciv. (1852) pp. 296-7. See too President 
 Fillmore's Annual Message, 299. 
 
 {q) Twenty-five it is said by President Fillmore. 
 
 (?•) AwmalBeff. for 1852, vol. xciv. pp. 295-300. 
 
234 INTERNATIONAL LAW. 
 
 adjustment was effected by a Treaty of June 5, 1854 — the 
 Reciprocity Treaty already mentioned. It gave to citizens 
 of the United States, in addition to their rights under the 
 Treaty of 1818, the right to take fish, except shell fish, " on 
 " the sea coasts and shores, and in the bays, harbours, and 
 *' creeks of Canada, New Brunswick, Nova Scotia, and Prince 
 " Edward's Island, and of the several islands thereunto ad- 
 " jacent, without being restricted to any distance from the 
 " shore,'* with permission to land for the purpose of drying 
 nets and curing fish. Corresponding rights were given to 
 British subjects to take sea fish and to land and dry nets on 
 the coast of the United States north of latitude 36 deg. N. 
 The Treaty did not embrace the salmon and shad fisheries, 
 or the fisheries at the mouths of rivers. But we have al- 
 ready observed that the United States, using the power 
 given them by the Treaty, put an end to it in 1865 (s). 
 
 («) See JDana^s Wheaton, n. 110, p. 206 j Lawrmce^s Wheaton. 
 
SEA NEAR THE COAST. 235 
 
 CHAPTER VIII. 
 
 PORTIONS OF THE SEA. 
 
 CXC VII. Though the open sea be thus incapable of being 
 subject to the rights of property, or jurisdiction, yet reason, 
 practice, and authority have firmly settled that a different 
 rule is applicable to certain portions of the sea (a). 
 
 CXCVIII. And first with respect to that portion of the 
 sea which washes the coast of an independent State. Various 
 claims have been made, and various opinions pronounced, at 
 different epochs of history, as to the extent to which terri- 
 torial property and jurisdiction may be extended. But the 
 rule of law may be now considered as fairly established — 
 namely, that this absolute property and jurisdiction does not 
 extend, unless by the specific provisions of a Treaty (h) or 
 an unquestioned usage, beyond a marine league (being three 
 miles), or the distance of a cannon-shot from the shore at low 
 tide : — " quousque e terra imperari potest," — " quousque 
 " tormenta exploduntur," — " terrg3 dominium finitur ubi 
 " finitur armorum vis," — is the language of Bynkershoek (c). 
 " In the sea, out of the reach of cannon-shot " (says Lord 
 Stowell), " universal use is presumed." This is the limit 
 fixed to absolute property and jurisdiction ; but the rights 
 
 (a) Giirdher, t, ii. s. xxviii. p. 48 : " Eigenthum und Herrschaft des 
 Meeres an den Kiisten," 
 
 Heffters, 1. Bucli, s. Ixxvi. p. 141 : " Schutzreclite iiber die Kiisten- 
 gewasser." 
 
 Ortolan, Bipl. de la Mer, t. i. 1. ii. c. yiii. : " Mer territoriale." 
 
 Kent^s Commentaries, vol. i. s. xxvi. p. 25. 
 
 (6) Valin, Ordonnance de la Marine, 1. v. tit. i. p. 687, " De la Liberty 
 de la Peche/' contains a full dissertation on this subject. 
 
 Kliiher, s. 130, n. a. 
 
 (c) Qucsstiones Juris Publici, cap. viii. 
 
236 INTERNATIONAL LAW. 
 
 of Independence {d) and self-preservation in times of peace 
 have been judicially considered to justify a nation in pre- 
 venting her revenue laws from being evaded by foreigners 
 beyond this exact limit ; and both Great Britain and the 
 United States of North America have provided by their 
 municipal law against frauds being practised on their re- 
 venues, by prohibiting foreign goods to be transhipped 
 within the distance of four leagues of the coast, and have 
 exercised a jurisdiction for this purpose in time of peace. 
 These were called the Hovering Acts (e). 
 
 Nevertheless, it cannot be maintained as a sound propo- 
 
 (d) The Louis, 2 Dodson's Adm. Hep. p. 245. 
 
 The Twee Gebroeders, 3 Hob. Adm. Rep. p. 339. 
 
 Jacohse)i, Seei-echt, pp. 586-590. 
 
 " Si quelque vaisseau de I'une ou de I'autre partie est en engagement 
 avec un vaisseau appartenant a quelqu'une des puissances chretiennes, d, 
 la portee du canon des chateaux de I'autre, le vaisseau qui se trouvera 
 ainsi en action sera d^fendu et protege autant que possible, jusqu'a ce 
 qu'il soit en surete." — Etats-Unis et Maroc (1787), Art. 10. — De Martens 
 et De Cussy, Rec. de Traites, etc., vol. i. p. 380. 
 
 " En consequence de ces principes, les hautes parties contractantes 
 s'engagent reciproquement, en cas que I'une d'entre elles fut en guerre 
 centre quelque puissance que ce soit, de n'attaquer jamais les vaisseaux 
 de ses ennemis que hors de la portee du canon des cotes de son allie.^^ — 
 France et Russie, Art. 27, ibid. p. 395. (This treaty was only entered 
 into for 12 years.) 
 
 " Aucune des deux parties ne souffrira que le vaisseau ou eifets appar- 
 tenant aux sujets oucitoyens de I'autre, soient pris a une poii,ee de canon 
 de la cote, ni dans aucune des bales, rivieres, ou ports de leurs territoires, 
 par des vaisseaux de guerre ou autres, ayant lettres de marque de prince, 
 republique ou Etat, quels qu'ils puissent etre. Mais dans le cas ou cela 
 arriverait, la partie dont les droits territoriaux auraient ete ainsi violes, 
 fera tous les efforts dont elle est capable pour obtenir de I'ofFenseur pleine 
 et entiere satisfaction, pourle vaisseau ou les vaisseaux ainsi pris, soit que 
 ce soient des vaisseaux de guerre ou des navires marcbands." — Etats- 
 Unis d'Ameriqtte et Grande- Bretagne, Art. 25. — De Martens et De 
 Cussr/f Rec. de Traites, vol. ii. p. 92. 
 
 (e) 9 Geo. III. c. 35, prohibited foreign goods from being transhipped 
 within four leagues of the coast without payment of duties. The Ame- 
 rican Act of Congress, 1799, March 2, ss. 25, 26, 27, 99, contains the same 
 prohibition, and their Supreme Court has declared this regulation to be 
 founded upon International Law. — Church v. Huhbards, 2 Cranch's 
 
SEA NEAR THE COAST. 237 
 
 sitlon of International Law that a seizure for purposes of 
 enforcing municipal law can be lawfully made beyond the 
 limits of the territorial waters, though in these hovering 
 cases judgments have been given in favour of seizures made 
 within a limit fixed by municipal law, but exceeding that 
 which has been agreed upon by International Law. Such 
 a judgment, however, could not have been sustained if the 
 Foreign States whose subjects' property had been seized 
 had thought proper to interfere. Unless, indeed, perhaps, 
 in a particular case, where a State had put in force, or at 
 least enacted, a municipal law of its own, like that of the 
 Foreign States under which its subject's property had been 
 seized. It is at least quite intelligible why such a State 
 would not interfere on behalf of its subject. My observa- 
 tion does not deny to the neutral, in time of war, the right 
 to complain of and possibly to prevent the hovering of belli- 
 gerent ships so near her coasts and ports as manifestly to 
 menace and alarm vessels homeward or outward bound. 
 This is a question which will receive further consideration 
 when the relations of States in time of war come under dis- 
 cussion. The limit of territorial waters has been fixed at a 
 marine league, because that was supposed to be the utmost 
 distance to which a cannon-shot from the shore could reach. 
 The great improvements recently effected in artillery seem 
 to make it desirable that this distance should be increased, 
 but it must be so by the general consent of nations, or by 
 specific treaty with particular States (/j. 
 
 CXCIX. The rule of the marine league being the 
 boundary of the territorial jurisdiction is liable to be 
 affected by Treaty. The Emperor of China has conceded 
 
 {American) Beports, p. 187. — The Louis, 2 Bodson's Adm. Rep. 245-6. 
 Tliis case will not be found on examination to support the lawful- 
 ness of a seizure beyond the marine league, though often cited for this 
 purpose. — Sir L. Jenkins, pp. 727-8, 780, as to the King's Chambers. — 
 Waiters American State Papers, 1-75. 
 
 (/) Hudson V. Guestier, 4 C ranch, 293, andG Cranch, 281. Not easily 
 i-econcilable with Rose v. Himely, 4 Cranch, 241. JDana^s Wheaton, 
 p. 180, n. 108. 
 
238 INTERNATIONAL LAW. 
 
 jurisdiction to the Crown of England over British subjects in 
 China; and the Crown, by an order in Council assented to by 
 the Chinese Governmentjhas jurisdiction over British subjects 
 " being within the dominions of the Emperor of China, or 
 " being within any ship or vessel at a distance of not more 
 " than one hundred miles from the coast of China " (y). 
 
 CC. Besides the rights of property and jurisdiction 
 within the limit of cannon-shot from the shore, there are 
 certain portions of the sea which, though they exceed this 
 verge, may, under special circumstances, be prescribed for. 
 Maritime territorial rights extend, as a general rule, over arms 
 of the sea, bays, gulfs, estuaries which are enclosed, but 
 not entirely surrounded by lands belonging to one and the 
 same State. With respect to bays and gulfs so enclosed, 
 there seems to be no reason or authority for a limitation 
 suggested by Martens (/i), " surtout en tant que ceux-ci ne 
 *' passent pas la largeur ordinaire des rivieres, ou la double 
 " portee du canon," — or for the limitation of Grotius (z), 
 which is of the vaguest character, — " mare occupari potuisse 
 " ab eo qui terras ad latus utrumque possideat, etiamsi aut 
 " supra pateat ut sinus, aut supra et infra ut fretum, dummodo 
 *^ non ita magna sit pars maris ut non cum terris comparata 
 *' portio earum videri possit." The real question, as Gunther 
 truly remarks, is, whether it be within the physical compe- 
 tence of the nation, possessing the circumjacent lands, to 
 exclude other nations from the whole portion of the sea so 
 surrounded : or, as Martens declares in his earliest, and in 
 some respects best, treatise on International Law, " Partes 
 " maris territorio ita natura vel arte inclusae ut exteri aditu 
 ** impediri possint, gentis ejus sunt, cujus est territorium 
 ** circumjacens"(A). To the same effect is the language of 
 Vattel : " Tout ce que nous avons dit des parties de la mer 
 
 {g) Papers presented to both Houses of Parliament by command of her 
 Majesty, 1853. Vide post, ch. xix. 
 (7i) Lib. ii. c. i. s. 40. 
 (t) Lib. ii. c. iii. s. 8. 
 (k) PrimcB Linece Juris Gentium, 1. ir. c. iv. s. 110, 
 
SEA NEAR THE COAST. 239 
 
 " voisines des cotes, se dit plus particulierement et a plus 
 " forte raison des rades, des bales et des detroits, comme plus 
 " capables encore d'etre occupes,etplus importants a la surete 
 " dupays. Mais je parledes bales et detroits de peud'etendue, 
 " et non de ces grands espaces de mer auxquels on donne 
 " quelquefois ces noms, tels que la bale de Hudson, le detroit 
 " de Magellan, sur lesquels I'empire ne saurait s'etendre, et 
 " moins encore la propriete. Une bale dont on pent defendre 
 ** I'entree^peut etre occupee et soumlse aux lois du souverain; 
 " il importe qu'elle le soit, puisque le pays pourrait etre 
 ** beaucoup plus aisement insulte en cet endroit que sur des 
 " cotes ouvertes aux vents et a I'impetuosite des flots " (Z). 
 
 Thus GreatBritain has immeraorially claimed and exercised 
 exclusive property and jurisdiction over the bays or portions 
 of sea cut off by lines drawn from one promontory to another, 
 and called the King's Cliamhers. And there is the high 
 authority of Sir Leoline Jenkins {m), that vessels, even of 
 the enemies of Great Britain, captured by foreign cruisers 
 within these Chambers, would be restored by the High Court 
 of Admiralty. In time of war {n), at least, the Solent, or 
 the portion of the sea which flows between the Isle of Wight 
 and the mainland, might be justly asserted to belong as com- 
 pletely as the soil of the adjacent shores to Great Britain. 
 
 CCI. Mr. Chancellor Kent states the claims of the United 
 States upon this matter in the following language : — 
 
 " Considering the great extent of the line of the American 
 " coasts, we have a right to claim, for fiscal and defensive 
 
 (Z) Vattd, Le Droit, etc. t. i. 1. i. c. xxiii. s. 291. 
 
 (m) Life of Sir Leoline Jenkins, vol. ii. pp. 727, 732, 755, 780. 
 
 (n) I do not think that the judgment of the Privy Council (1864) in 
 the case of The Eclipse, 15 Moore's P. C. Rep. p. 267, affects this propo- 
 sition, but I think it right to cite the passage. (The question in the case 
 was whether a collision between a British and foreign vessel in the 
 Solent should be tried by the ordinary Maritime Law or the 17th and 
 18th Vict. c. 104.) Their Lordships say : " In our opinion, the statute 
 cannot be considered to have any local application to the Solent, and to 
 affect foreign as well as British vessels navigating within the limits of 
 that channel ; and that, even if the statute were binding on all vessels 
 navigating within a tidal river, which, however, the case of the 
 
240 INTERNATIONAL LAW. 
 
 ** regulations, a liberal extension of maritime jurisdiction ; 
 " and it would not be unreasonable, as I apprehend, to as- 
 " sume, for domestic purposes connected with our safety and 
 " welfare, the control of the waters on our coasts, though 
 " included within lines stretching from quite distant head* 
 " lands, as, for instance, from Cape Ann to Cape Cod, and 
 " from Nantucket to Montauck Point, and from that point 
 " to the Capes of the Delaware, and from the South Cape of 
 " Florida to the Mississippi. It is certain that our Govern- 
 " ment would be disposed to view with some uneasiness and 
 " sensibility, in the case of war between other maritime 
 " powers, the use of the waters of our coast, far beyond the 
 "^ reach of cannon-shot, as cruising ground for belligerent 
 " purposes. In 1793 our Government thought they were 
 " entitled, in reason, to as broad a margin of protected navi- 
 " gation as any nation whatever, though at that time they 
 '' did not positively insist beyond the distance of a marine 
 " league from the seashores ; and in 1806 our Government 
 " thought it would not be unreasonable, considering the 
 " extent of the United States, the shoalness of their coast, 
 " and the natural indication furnished by the well-defined 
 " path of the Gulf Stream, to expect an immunity from 
 " belligerent warfare, for the space between the limit and the 
 " American shore. It ought, at least, to be insisted, that the 
 " extent of the neutral immunity should correspond with 
 *' the claims maintained by Great Britain around her own 
 
 Fyenoord (Swab. 374) discountenances, we think that it could not be 
 locally binding within the water of the Isle of Wight and the mainland, 
 and that the circumstance that the Isle of Wight is by local and territo- 
 rial designation to be deemed a portion of the county of Southampton 
 does in any degree affect this question. We are of opinion that this 
 collision must be considered to have taken place on the high seas, in a 
 place where a foreign vessel has a right of sailing without being bound 
 by any of the provisions of the statutes enacted to govern British ships. 
 This being so, it follows that the Merchant Shipping Act has no applica- 
 tion to this case, as it has been fully determined that where a British and 
 a foreign ship meet on the high seas the statute is not binding on either. 
 The principle, therefore, by which this case must be decided must be 
 /ound in the ordinary rules of the sea." 
 
SEAS LANDLOCKED. 241 
 
 " territory, and that no belligerent right should be exercised 
 " within ' the chambers formed by headlands, or anywhere 
 " * at sea within the distance of four leagues, or from a right 
 " ' line from one headland to another.' In the case of the 
 " Little Belt, which was cruising many miles from the shore 
 " between Cape Henry and Cape Hatteras, our Government 
 *^ laid stress on the circumstance that she was ' hovering on 
 " ' our coasts;' and it was contended on the part of the United 
 " States, that they had a right to know the national character 
 " of armed ships in such a situation, and that it was a right 
 " immediately connected with our tranquillity and peace. It 
 " was further observed, that all nations exercised the right, 
 '^ and none with more rigour, or at a greater distance from 
 '' the coast, than Great Britain, and none on more justifiable 
 '^ grounds than the United States. There can be but little 
 " doubt that, as the United States advance in commerce and 
 ^' naval strength, our Government will be disposed more and 
 ^' more to feel and acknowledge the justice and policy of the 
 " British claim to supremacy over the narrow seas adjacent to 
 " the British Isles, because we shall stand in need of similar 
 " accommodation and means of security " (o). 
 
 ecu. In 1822 Russia laid claim to a sovereignty over 
 the Pacific Ocean north of the 51st degree of latitude ; but 
 the Government of the United States of America resisted 
 this claim as contrary to the principles of International 
 Law (j)). 
 
 CCIII. The portion of sea actually occupied by a fleet 
 riding at anchor is within the dominion of the nation to 
 which the fleet belongs, so long as it remains there ; that is, 
 for all purposes of jurisdiction over persons within the limits 
 of the space so occupied. The like principle is applicable to 
 the portion of territory occupied by an army, — a fleet being 
 considered as a maritime army (^q). 
 
 (o) Commentaries, vol. i. pp. 29, 30. 
 (p) Ibid. p. 28. 
 
 Mr. Adams's Letter to the Russian Minister, March ^th, 1822. 
 (q) " Videtur autem imperium in maris portionem eadem ratione acquiri 
 VOL. I. R 
 
242 INTERNATIONAL LAW. 
 
 This proposition is of course not to be considered without 
 reference to the place of anchorage : a French fleet per- 
 mitted to anchor in the Downs, or an English fleet at 
 Cherbourg, would only have jurisdiction over the subjects 
 of the respective countries which happened to be within the 
 limits of their temporary occupation of the water. Both in 
 the case of the fleet and the army, there is, according to the 
 theory of the law, a continuation or prorogation of the terri- 
 tory to which they belong (r). 
 
 CCIV. The undoubted proposition, that the sea is open 
 to the navigation of all nations, does not carry with it 
 the further proposition, that it is competent to every indi- 
 vidual to navigate his ship without any authority from his 
 Government. 
 
 Every ship is bound to carry a flag, and to have on board 
 ship's papers {lettres de mer) indicating to what nation she 
 belongs, whence she has sailed, and whither she is bound, 
 under pain of being treated as a pirate (s). 
 
 CCV. With respect to seas entirely enclosed by the 
 land, so as to constitute a salt-water lake {Maria clausa ; 
 
 ut imperia alia, id est, ut supra diximus, rati one personarum et rations 
 territorii. Ratione personarum, ut si classis qui est maritimns exereitus 
 aliquo in loco maris se habeat : ratione territorii, quatenus ex terra cogi 
 possunt qui in proxima maris parte versantur, nee minus quam si in 
 ipsa terra reperirentur." — Grotius, 1. ii. c. 3, § xiii. 2. 
 
 " Addo, classem quae stat in anchoris, earn maris partem cui incubat, 
 videri occupasse, eatenus nempe, quatenus et quamdiu occupat. Si 
 occupaverit, transit in imperium et dominium occupantis secundum ea quae 
 disputavi." — Cap. iii. s. 4, Bynk. De Dominio Maris. 
 
 Heffters, 136. 
 
 Wheaton's Hist 723. 
 
 (r) Vide post, further observations on the question of jurisdiction. 
 
 (s) " Quand on dit que la mer est libre, on ne s'entend parler que des 
 nations, car elle ne Test point pour des particuliers ; ils ne peuvent en 
 jouir que sous la sauvegarde de leur gouvemement, et c'est pour etablir 
 cette sauvegarde qu'on a institu^ les pavilions et les lettres de mer; la 
 surety a exig^ cette restriction du droit naturel ; et tout batiment navi- 
 guant sans pavilion et sans lettres de mer est traite comme un forbanJ^ — 
 Garderiy Traite de Diplomatie, i. 406. 
 
 Ortolan, Dipl. dela Mer, t. i. 1. ii. c. ix. — The Louis, 2 DodsorCs Adm. 
 Rep. 246-7. 
 
SEAS LANDLOCKED. 243 
 
 mers fermees, encloses; Binnenmeere, geschlossene innere 
 Meere), the general presumption of law is, that they belong 
 to the surrounding territory or territories in as full and 
 complete a manner as a fresh-water lake. The Caspian 
 and the Black Sea naturally belong to this class. Upon the 
 former sea Russia had, by Treaty with Persia, the exclusive 
 right of navigating with ships of war ; and by the Treaty of 
 the Dardanelles, the Black Sea was practically confined to 
 Kussian and Turkish ships of war (t). But by the Treaty 
 of Paris, 1856, this sea is neutralized, and opened to the 
 merchant ships of all nations, and closed to ships of war 
 of any State (m). 
 
 CCVI. There is another class of enclosed seas to which 
 the same rules of law are applicable — seas which are land- 
 locked, though not entirely surrounded by land. Of these, 
 that great inlet which washes the coasts of Denmark, Sweden, 
 Kussia, and Prussia, the Ostsee as the Germans call it, the 
 Baltic Sea according to its usual appellation, is the prin- 
 cipal (or). 
 
 {t) 2 De Martens et Be Cussy, 399, Art. 5. 
 
 Heffters, 140. 
 
 Wheaton's Hist. 158, 567. 
 
 (n) Art. xi. 
 
 {J) Heffters, 143, n. 2. 
 
 4 Be Martens et Be C. t. i. Index explicatif. 
 
 " Mers fermees. Parmi les mers fermees on compte g^n^ralement : 
 
 Le grand et le petit Belt. 
 
 Le Sund (le seul detroit dont le passage soit soumis, pour les navires 
 de la marine commerciale, a un peage. Voir Sund). [See remarks on 
 the abolition of the Sound dues, p. 217.] 
 
 Le Canal de Bristol. 
 
 Le Canal de Saint-George. 
 
 Le Detroit d'Ecosse. 
 
 Le Detroit de Messine. 
 
 Les Dardanelles. 
 
 La Mer de Marmora. 
 
 Le Bosphore, etc. etc. 
 
 En 1780 le Danemarck declara la mer Baltique une mer fermSe, a 
 I'ahri des courses des armateurs et des vaisseaux arm^s." 
 
244 INTERNATIONAL LAW. 
 
 CHAPTEE IX. 
 
 PECULIAR CASE OF THE ISTHMUS OF CENTRAL AMERICA. 
 
 CCVII. The most remarkable, and perhaps the most im- 
 portant, instance of the establishment of the jus transitus 
 innoxii is afforded by the recent convention between Great 
 Britain and the United States respecting the Isthmus of 
 Central America, which connects the great highways of the 
 world, the Atlantic and Pacific Oceans. The Treaty con- 
 cerns the formation of a ship-canal, or of a railway over this 
 strip of land. This Treaty, both on account of its immediate 
 object, and the principle which it expressly recognizes and 
 recites, is of such vast importance, both to the present and 
 future interests of mankind, that it is necessary to state the 
 provisions in extenso. 
 
 The preamble set forth that, " Her Britannic Majesty 
 " and the United States of America being desirous of con- 
 '* solidating the relations of amity which so happily subsist 
 " between them, by setting forth and fixing in a convention 
 " their views and intentions with reference to any means of 
 *^ communication by ship-canal, which may be constructed 
 ** between the Atlantic and Pacific Oceans by the way of the 
 *' river St. Juan de Nicaragua, and either or both of the 
 '' lakes of Nicaragua or Managua, to any port or place on 
 " the Pacific Ocean," &c. 
 
 The Articles were as follows : — " Art. 1. The Govern- 
 ments of Great Britain and the United States hereby de- 
 clare that neither the one nor the other will ever obtain or 
 maintain for itself any exclusive control over the said ship- 
 canal ; agreeing that neither will ever erect or maintain any 
 fortifications commanding the same, or in the vicinity thereof. 
 
ISTHMUS OF CENTRAL AMERICA. 245 
 
 or occupy, or fortify, or colonize, or assume or exercise any 
 dominion over Nicaragua, Costa Rica, the Mosquito Coast, 
 or any part of Central America (a) ; nor will either make 
 use of any protection which either affords or may afford, or 
 any alliance which either has or may have, to or with any 
 State or people, for the purpose of erecting or maintaining 
 any such fortifications, or of occupying, fortifying, or colo- 
 nizing Nicaragua, Costa Rica, the Mosquito Coast, or any 
 part of Central America, or of assuming or exercising do- 
 minion over the same. Nor will Great Britain or the United 
 States take advantage of any intimacy, or use any alliance, 
 connection, or influence that either may possess with any 
 State or Government through whose territory the said canal 
 may pass, for the purpose of acquiring or holding, directly or 
 indirectly, for the subjects or citizens of the one, any rights 
 or advantages, in regard to commerce or navigation through 
 the said canal, which shall not be offered, on the same terms, 
 to the subjects or citizens of the other. 
 
 " Art. 2. Vessels of Great Britain or the United States 
 traversing the said canal shall, in case of war between the 
 contracting parties, be exempted from blockade, detention, 
 or capture by either of the belligerents ; and this provision, 
 shall extend to such a distance from the two ends of the said 
 canal as it may hereafter be found expedient to establish. 
 
 " Art. 3. In order to secure the construction of the said 
 canal, the contracting parties engage that if any such canal 
 shall be undertaken upon fair and equitable terms by any 
 parties having the authority of the local government or go- 
 vernments through whose territory the same may pass, then 
 the persons employed in making the said canal, and their 
 property used or to be used for that object, shall be pro- 
 tected, from the commeacement of the said canal, to its 
 completion, by the Governments of Great Britain and the 
 United States, from unjust detention, confiscation, seizure, 
 or any violence whatsoever. 
 
 (a) Vide infra. 
 
 II 
 
246 INTERNATIONAL LAW. 
 
 " Art. 4. The contracting parties will use whatever in- 
 fluence they respectively exercise with any State, States, 
 or Governments possessing, or claiming to possess, any 
 jurisdiction or right over the territory which the said canal 
 shall traverse, or which shall be near the waters applicable 
 thereto, in order to induce such States or Governments to 
 facilitate the construction of the said canal by every means 
 in their power; and, furthermore, Great Britain and the 
 United States agree to use their good offices, wherever or 
 however it may be most expedient, in order to procure the 
 establishment of two free ports, one at each end of the said 
 canal. 
 
 " Art. 5. The contracting parties further engage, that 
 when the said canal shall have been completed, they will 
 protect it from interruption, seizure, or unjust confiscation, 
 and that they will guarantee the neutrality thereof, so that 
 the said canal may for ever be open and free, and the capital 
 invested therein secure. Nevertheless, the Governments of 
 Great Britain and the United States, in according their pro- 
 tection to the construction of the said canal, and guarantee- 
 ing its neutrality and security when completed, always 
 understand that this protection and guarantee are granted 
 conditionally, and may be withdrawn by both Governments, 
 or either Government, if both Governments or either 
 Government should deem that the persons or company 
 undertaking or managing the same adopt or establish such 
 regulations concerning the traffic thereupon as are contrary 
 to the spirit and intention of this Convention, either by 
 making unfair discriminations in favour of the commerce of 
 one of the contracting parties over the commerce of the 
 other, or by imposing oppressive exactions or unreasonable 
 tolls upon passengers, vessels, goods, wares, merchandise, or 
 other articles. Neither party, however, shall withdraw the 
 aforesaid protection and guarantee, without first giving six 
 months' notice to the other. 
 
 " Art. 6. The contracting parties in this Convention 
 engage to invite every State with which both or either have 
 
ISTHMUS OF CENTEAL AMERICA. 247 
 
 friendly intercourse, to enter into stipulations with them 
 similar to those which they have entered into with each 
 other, to the end that all other States may share in the 
 honour and advantage of having contributed to a work of 
 such general interest and importance as the canal herein 
 contemplated; and the contracting parties likewise agree, 
 that each shall enter into treaty stipulations with such of the 
 Central American States as they may deem advisable, for 
 the purpose of more effectually carrying out the great design 
 of this Convention, namely, that of constructing and main- 
 taining the said canal as a ship communication between the 
 two oceans for the benefit of mankind, on equal terms to all, 
 and of protecting the same ; and they also agree, that the 
 good offices of either shall be employed, when requested by 
 the other, in aiding and assisting the negotiation of such 
 treaty stipulations ; and should any differences arise as to 
 right or property over the territory through which the 
 said canal shall pass, between the States or Governments of 
 Central America, and such differences should in any way 
 impede or obstruct the execution of the said canal, the 
 Governments of Great Britain and the United States will 
 use their good offices to settle such differences, in the manner 
 best suited to promote the interests of the said canal, and to 
 strengthen the bonds of friendship and alliance which exist 
 between the contracting parties. 
 
 " Art. 7. It being desirable that no time should be unne- 
 cessarily lost in commencing and constructing the said canal, 
 the Governments of Great Britain and the United States 
 determine to give their support and encouragement to such 
 persons or company as may first offer to commence the same, 
 with the necessary capital, the consent of the local autho- 
 rities, and on such principles as accord with the spirit and 
 intention of this Convention : and if any persons or company 
 should already have, with any State through which the 
 proposed ship-canal may pass, a contract for the construction 
 of such a canal as that specified in this Convention, to the 
 stipulations of which contract neither of the contracting 
 
248 INTERNATIONAL LAW. 
 
 parties in this Convention have any just cause to object, and 
 the said persons or company shall, moreover, have made 
 preparations and expended time, money, and trouble on the 
 faith of such contract, it is hereby agreed that such persons 
 or company shall have a priority of claim over every other 
 person, persons, or company, to the protection of the Go- 
 vernments of Great Britain and the United States, and be 
 allowed a year, from the date of the exchange of the ratifi- 
 cations of this Convention, for concludino^ their arransements, 
 and presenting evidence of sufficient capital subscribed to 
 accomplish the contemplated undertaking ; it being under- 
 stood, that if, at the expiration of the aforesaid period, such 
 persons or company be not able to commence and carry out 
 the proposed enterprise, then the Governments of Great 
 Britain and the United States shall be free to afford their 
 protection to any other persons or company that shall be 
 prepared to commence and proceed with the construction of 
 the canal in question. 
 
 " Art. 8. The Governments of Great Britain and the 
 United States having not only desired, in entering into this 
 Convention, to accomplish a particular object, but also to es- 
 tablish a general principle, they hereby agree to extend their 
 protection by treaty stipulations to any other practicable com- 
 munications, whether hy canal or railway, across the isthmus 
 which connects North and South America ; and especially to 
 the interoceanic communications, should the same prove to 
 be practicable, whether by canal or railway, which are now 
 proposed to be established by the way of Tehuantepec or 
 Panama. In granting, however, their joint protection to any 
 such canals or railways as are by this Article specified, it is 
 always understood by Great Britain and the United States, 
 that the parties constructing or owning the same shall impose 
 no other charges or conditions of traffic thereupon than the 
 aforesaid Governments shall approve of as just and equitable ; 
 and that the same canals or railways, being open to the 
 subjects and citizens of Great Britain and the United States 
 on equal terms, shall also be open on like terms to the 
 
ISTHMUS OF CENTRAL AMERICA. 249 
 
 subjects and citizens of every otlier State which is willing to 
 grant thereto such protection as Great Britain and the United 
 States engage to aiFord. 
 
 " Art. 9. The ratifications of this Convention shall be 
 exchanged at Washington within six months from this day, 
 or sooner if possible. 
 
 " In faith whereof, we, the respective Plenipotentiaries, 
 have signed this Convention, and have hereunto affixed our 
 Seals. 
 
 " Done at Washington, the nineteenth day of April anno 
 Domini One thousand eight hundred and fifty. 
 
 " (Signed) Henry Lytton Bulwer. 
 " John M. Clayton " {b), 
 
 CCVIII. Before the ratifications were exchanged, it was 
 explained by the British to the American Plenipotentiary, 
 that the words " or any part of Central America " were not 
 to apply to the British Settlements in Honduras, or its 
 dependencies. This explanation was fully adopted by the 
 American Plenipotentiary, and the ratifications were ex- 
 changed. The Treaty was subsequently submitted by the 
 President of the United States to the Senate (c), and was 
 approved of, after discussion, by that deliberative assembly. 
 
 It was, however, contended by certain persons averse to 
 the conditions of the Treaty, that the Senate did not under- 
 stand that the Treaty was to be construed with reference to 
 the American Plenipotentiary's consent, which had been 
 expressed in the reply to the British Plenipotentiary's ex- 
 planation with respect to the Honduras, and consequently 
 that the Senate had in reality not assented to the Treaty so 
 qualified. 
 
 Though there is no ground for this supposition, the objec- 
 
 (6) Annual Register, vol. xcii. (1850) pp. 387-390. 
 (c) Vide supra, p. 158. 
 
250 INTERNATIONAL LAW. 
 
 tion evinces how much a knowledge of the department of 
 Government in which the power of making and ratifying 
 Treaties is vested by the Constitution of each State, is neces- 
 sary for the security of the foreign relations of all States. 
 
 CCIX. The reason of the thing would indeed seem to 
 have excluded the Honduras, as the terms were employed in 
 the Treaty, even without the subsequent express limitation, 
 from the category of " Central America," though geogra- 
 phically and literally within the ecope of the expressions. 
 It is true that Great Britain had originally only certain 
 limited jvra in re with respect to the Honduras, such as 
 the right of cutting mahogany and logwood conceded to 
 her by Treaties with Spain, the right of sovereignty being 
 reserved to the Crown of the latter country ; yet since Spain 
 has ceased to exercise any sovereignty, either at Honduras or 
 in the circumjacent territory, and the British jurisdiction is 
 exercised there under a Commission of the Crown which has 
 been recognized by the United States, inasmuch as their 
 Consul is received at Belize under the exequatur of the 
 British Crown, Honduras, therefore, was justly considered 
 as both de facto and de jure a British settlement ; and the 
 terms in the Treaty appear, by the ordinary and admitted 
 rules of construction (J), applied with reference to the 
 subject-matter and context of the Treaty, not to include 
 the British possession of Honduras (e). 
 
 The discordant constructions put by England and the 
 United States upon this Treaty did not, as has been shown, 
 receive a satisfactory adjustment until 1859-60, when 
 England, by separate Treaties with Honduras and Nica- 
 ragua, relinquished the Mosquito protectorate, and recognized 
 the Bay Islands as part of the Bepublic of Honduras (/). 
 
 (d) Vide post, chapter on Treaties, vol. ii. 
 
 (e) "Convention entre Sa Majesty le Roi de la Grande- Bretag-ne et 
 Sa Majeste le Roi d'Espagne, conclue a Londres le 14 juillet 1780." — 
 Martens, Bee. de Tr. iv. (1786), pp. 133-140. 
 
 Annual Register, 1787, p. 78. 
 
 (/) De Martens, vol. x\v. p. 374 ; Herislefs Treaties, vol. xi. p. 367. 
 
ISTHMUS OF CENTRAL AMERICA. 251 
 
 The neutral character of this ship-canal between the 
 Atlantic and Pacific Oceans has been thus recognized and 
 established. The neutrality of what is called the " Honduras 
 " Interoceanic Railway " was guaranteed by a Convention 
 of August 27, 1856, between Great Britain and Hondu- 
 ras {g). 
 
 {g) Laiurence's Wheaton, i. p. 478 ; Hertslefs Treaties, vol. x. p. 871. 
 The contract between the State of New Granada and the Panama Eail- 
 way Company is given in the State Papers, vol. xlii. p. 1187. In 1846 the 
 United States and New Granada entered into a Treaty of Commerce and 
 Navigation. — State Papers, vol. xxxvi. p. 994. See also Treaty between 
 England and the United States of Colombia, February 16, 1866. 
 
252 INTERNATIONAL LAW. 
 
 CHAPTER X. 
 
 SELF-PRESERVATION. 
 
 CCX. The Right of S elf-Preservation, by that defence 
 which prevents, as well as that which repels, attack, is the 
 next International Right which presents itself for discussion, 
 and which, it will be seen, may under certain circumstances, 
 and to a certain extent, modify the Right of Territorial 
 Inviolability. 
 
 CCXI. The Right of Self-Preservation is the first law of 
 nations, as it is of individuals. A society which is not in a 
 condition to repel aggression from without, is wanting in its 
 principal duty to the members of which it is composed, and 
 to the chief end of its institution («). 
 
 All means which do not affect the independence of other 
 nations are lawful for this end. No nation has a right to 
 prescribe to another what these means shall be, or to require 
 any account of her conduct in this respect. 
 
 • CCXII. The means by which a nation usually provides for 
 her safety are — 1. By alliances with other States; 2. By 
 maintaining a military and naval force ; and, 3. By erecting 
 fortifications, and taking measures of the like kind within 
 her own dominions. Her full liberty in this respect cannot, 
 as a general principle of International Law, be too boldly 
 announced or too firmly maintained ; though some modifi- 
 cation of it appears to flow from the equal and corresponding 
 
 (a) Vattel, t. i. C. xiv. S. 177. Ov yap aipeai^ kariv ■t)fiiv rov TrpayfiaTOQ, 
 6.\\' VTroXiiTTtTai rb diKaioTarov Kal dvayKaiSTarov ribv ipyiov, o vmp^aivovaiv 
 
 tKOVTfQ OVTQl. TL OVV lOTl TOVTO J aflVVlodai TOV TTpOTSpOV TToXeflOVvO' t'l/UV, 
 
 Demosth. rrfol tCjv tv Xtppov. c. 91. Est igitur haec non scripta sed nata 
 lex, etc. — Cic. pro Milone, c. 4. 
 
SELF-PRESERVATION. 253 
 
 rights of other nations, or at least to be required for the 
 sake of the general welfare and peace of the world. 
 
 CCXIII. Armaments suddenly increased to an extra- 
 ordinary amount are calculated to alarm other nations, 
 whose liberty they appear, more or less, according to the 
 circumstances of the case, to menace (b). 
 
 It has been usual, therefore, to require and receive ami- 
 cable explanations of such warlike preparations ; the answer 
 will, of course, much depend upon the tone and spirit of the 
 requisition. 
 
 Thus the British Secretary for Foreign Affairs (Lord 
 Grenville), in 1793, replied to Monsieur Chauvelin (who had 
 been the accredited minister of the King of France, and re- 
 mained in England after the Republic was declared), " It 
 " is added, that if these explanations should appear to us 
 " unsatisfactory ; if you are again obliged to hear the lan- 
 '^ guage of haughtiness ; if hostile preparations are continued 
 " in the ports of England, after having exhausted everything 
 " which could lead to peace, you will dispose yourselves to 
 " war, 
 
 " If this notification, or that which related to the treaty of 
 " commerce, had been made to me in a regular and official 
 " form, I should have found myself obliged to answer, that 
 " a threat of declaring war against England, because she 
 " thinks proper to augment her forces, as well as a declara- 
 " tion of breaking a solemn Treaty, because England has 
 " adopted for her own security precautions of the same 
 " nature as those which are already established in France, 
 " could neither of them be considered in any other light 
 " than that of new offences, which, while they subsisted, 
 " would preclude all negotiation " (c). 
 
 CCXIV. We have hitherto considered what measures a 
 nation is entitled to take, for the preservation of her safety, 
 loithin her own dominions. It may happen that the same 
 
 (6) Martens, 1. iv. c. i, pp. 116-7-8. 
 
 (c) State Papers during the War, Lond, 1794, p. 242. 
 
254 INTERNATIONAL LAW. 
 
 Right may warrant her in extending precautionary measures 
 without these limits, and even in transgressing the borders of 
 her neighbour's territory. For International Law considers 
 the Right of Self-Preservation as prior and paramount to 
 that of Territorial Inviolability, and, where they conflict, 
 justifies the maintenance of the former at the expense of the 
 latter right. 
 ' The case of conflict indeed must be indisputable, pomeri- 
 diana luce clarior in the language of canonists. Such a case, 
 however, is quite conceivable. A rebellion, or a civil com- 
 motion, it may happen, agitates a nation ; while the authori- 
 ties are engaged in repressing it, bands of rebels pass the 
 t V frontier, shelter themselves under the protection of the con- 
 
 X terminous State, and from thence, with restored strength and 
 
 fresh appliances, renew their invasions upon the State from 
 which they have escaped. The invaded State remonstrates. 
 The remonstrance, whether from favour to the rebels, or 
 feebleness of the executive, is unheeded, or, at least, the evil 
 i complained of remains unredressed. 
 
 In this state of things the invaded State is warranted by 
 International Law in crossing the frontier, and in taking the 
 necessary means for her safety, whether these be the capture 
 or dispersion of the rebels, or the destruction of their strong- 
 hold, as the exigencies of the case may fairly require. 
 
 CCXV. Vattel maintains strongly this opinion: "Best 
 " certain que si mon voisin donnait retraite a mes ennemis 
 '' lorsquHls auraient du pire et se trouveraient trop faiblespour 
 " m'echapper, leur laissant le temps de se refaire, et d'ejner 
 " Voccasion de tenter une nouvelle irruption sur mes terres, 
 ^' cette conduite, si prejudiciable a ma surete et a mes inter^ts, 
 *^ serait incompatible avec la neutralite. Lors done que mes 
 '^ ennemis battus se retirent chez lui, si la charite ne lui 
 ^' permet pas de leur refuser passage et surete, il doit les 
 " faire passer outre le plus tot possible, et ne point souffrir 
 " quHls se tiennent aux aguets pour nCattaquer de nouveau ; 
 " autrement il me met en droit de les oiler chercher dans ses 
 ** terres, Oest ce qui arrive aux nations qui ne sont pas en 
 
SELF-PRESERVATION. 255 
 
 " etat de faire respecter leur territoire ; le theatre de la guerre 
 " s'y ctablit bientot ; on y marche, on y campe, on s'y bat, 
 " comme dans un pays ouvert a tous venants " {d). 
 
 CCXYI. The hypothetical case here described was that 
 which Great Britain alleged to have actually occurred, ex- 
 cept that the circumstances were of a more aggravated cha- 
 racter, with respect to the invasion of her Canadian possessions 
 in 1838. For she alleged, that the Canadian rebels not 
 only found shelter on the American frontier of the Niagara, 
 but that American citizens joined the rebels, and that they 
 obtained arms, by force indeed, from the American arsenals, 
 and that shots were fired from an Island within the American 
 territories, while a steamer called the Caroline was em- 
 ployed in the transport of munitions of war to the Island, 
 which when not so employed was moored off the American 
 shore. In this state of things a British captain and crew, 
 having boarded and forcibly captured the Caroline, cut 
 her adrift, and sent her down the falls,,,»f Niagara. The act 
 was made the subject of complaint, on the ground of viola- 
 tion of territory, by the American Government, and vin- 
 dicated by Great Britain on the ground of self-preservation ; 
 which, if her version of the facts were correct, was a suffi- 
 cient answer, and a complete vindication (e). 
 
 CCXVII. In 1826, the mustering and equipment of 
 Portuguese rebels (/) on the Spanish frontier, unchecked by 
 the Spanish authorities, was considered by Great Britain as 
 obliging her to consider that " casus foederis," on the happen- 
 ing of which she was bound to assist her ally, to have actually 
 arisen : and she accordingly sent troops to Portugal. 
 
 CCXVIII. Upon the same principle, though a nation has 
 a right to afford refuge to the expelled governors, or even the 
 leaders of rebellion flying from another country, she is bound 
 
 (d) Lib. iii. c. vii. s. 133. 
 
 (e) Vide post, authorities and references. 
 
 (/) Mr. Canning's Speecli on the King's message relative to the affairs 
 of Portugal, December 12th, \^2Q.— Canning s Speeches, vol. vi. p. 60. 
 
256 INTERNATIONAL LAW. 
 
 to take all possible care that no hostile expedition is con- 
 certed in her territories, and to give all reasonable gua- 
 rantees upon this subject, in answer to the remonstrances of 
 the nation from which the exiles have escaped (g\ During 
 the time when 'the residence of the Pretender in France 
 within the vicinity of England gave reasonable alarm to the 
 British Government, the removal of his residence to a place 
 of less danger to Great Britain formed the subject of the 
 stipulations of various Treaties. If the hostile expedition of 
 the present (or late) Emperor of the French in 1842, against 
 the then existing monarchy of France, had taken place with 
 the sanction or connivance of the British Government, 
 England would have been guilty of a very gross violation of 
 International Law ; and she showed at the time a wise and 
 just anxiety to purge herself from any such suspicion. But 
 though the strange vicissitudes of fortune afterwards com- 
 pelled the very monarch, against whom that expedition 
 had been directed, to take refuge in this country, the then 
 representative of the executive of France, though the leader 
 of that expedition, had no cause of complaint, either on this 
 ground, or because other political refugees, professing all 
 shades and kinds of opinion, resided in safety in England ; 
 which, before it was their refuge, had so often been, and 
 indeed still is, the theme of their vituperation. 
 
 CCXIX. In all cases where the territory of one nation is 
 
 {g) " Les Princes de Transilvanie refuseront asyle aux ennemis de la 
 Maison d'Autriche ; et r^ciproquement cette Puissance ne pourra donner 
 retraite aux ennemis des Princes et Etats de Transilvanie." — TraiU de 
 Vienne, Art. 12 ; Mahly, Le Droit public, t. ii. p. 59. 
 
 " L'ann^e 1716 fut employee en n^gociations entre la France, I'Angle- 
 terre, et les Provinces-Unies ; et dans la suivante, ces Puissances si- 
 gnerent a la Haye le Traite de la Triple Alliance. La France se chargeoit 
 d'engager le Chevalier de Saint-Georges a sortir du comtat d' Avignon, 
 pour se retirer au-dela des Alpes. Chaque contractant promettoit de ne 
 donner aucun asyle sur ses terres aux personnes qui seroient d^clar^es 
 rebelles par I'un des deux autres." — Ih. p. 19. 
 
 ^' La France promet de ne point reconnoitre les droits que le fils du 
 Roi Jacques II pent avoir sur I'Angleterre, et de ne le pas souffrir sur 
 ses terres." — Traite d'Ut.fr.-ang. Art. 4j lb. p. 157. 
 
SELF-PRESERVATION. 257 
 
 invaded from the country of another — whether the invading 
 force be composed of the refugees of the country invaded, or 
 of subjects of the other country, or of both — the Govern- 
 ment of the invaded country has a right to be satisfied that 
 the country from which the invasion has Qome has neither 
 by sufferance nor reception {jpatientia aut receptu) knowingly 
 aided or abetted it. She must purge herself of both these 
 charges ; otherwise, if the cause be the feebleness of her 
 Government, the invaded country is warranted in redressing 
 her own wrong, by entering the territory, and destroying 
 the preparations of war therein made against her ; or, if these 
 have been encouraged by the Government, then the invaded 
 country has a strict right to make war upon that country 
 herself; because she has afforded not merely an asylum, but 
 the means of hostility, to the foes of a nation with whom she 
 was at peace. For it never can be maintained, however 
 such a State may suffer from piratical incursions, which 
 the feebleness of the executive Government of the country 
 whence they issue renders it incapable of preventing or 
 punishing, that, until such Government shall voluntarily ac~ 
 knoivledge the fact, the injured State has no right to give 
 itself that security, which its neighbour's Government admits 
 that it ought to enjoy, but which that Government is unable 
 to guarantee. 
 
 It must be admitted that there is a practical acknowledg- 
 ment of such inability, which, as much as a voluntary confes- 
 sion, justifies the offended country in a course of action which 
 would under other circumstances be unlawful. There is a 
 very important chapter, both in Grrqtius^ and in his commen- 
 tator Heineccius, entitled " De Poenarum Communicatione," 
 as to when the guilt of a malefactor, and its consequent 
 punishment, is coqpdmunicated to others than himself; and the 
 question is particularly considered with reference to the re- 
 sponsibility of a State for the conduct of its citizens. The 
 tests for discovering " Civitasne delinquent an cives ? " are 
 laid down with great precision and unanimity of sentiment by 
 
 VOL. I. s 
 
258 INTERNATIONAL LAW. 
 
 all Publicists, and are generally reduced to two, as will be 
 seen from the following extract from Burlemaqui (h) (who 
 repeats the opinion of Grotius (z) and Heineccius). " In 
 ** civil societies," (he says), " when a particular member has 
 " done an injury to a stranger, the governor of the common- 
 " wealth is sometimes responsible for it, so that war may be 
 " declared against him on that account. But to ground this 
 " kind of imputation, we must necessarily suppose one of 
 " these two things, sufferance or reception (k), viz. either that 
 " the sovereign has suffered this harm to be done to the 
 '* stranger, or that he afforded a retreat to the criminal. In 
 " the former case it must be laid down as a maxim, that a 
 " sovereign who, knowing the crimes of his subjects — as, for 
 ** example, that they practise piracy on strangers, — and being 
 " also able and obliged to hinder it, does not hinder it, 
 " renders himself criminal, because he has consented to the 
 " bad action, the commission of which he has permitted, and 
 " consequently furnished a just reason of war. The two con- 
 ** ditions above mentioned, I mean the knowledge and suffer- 
 '' ance of the sovereign, are absolutely necessary, the one not 
 " being sufficient without the other to communicate any 
 ** share in the guilt. Now it is presumed that a sovereign 
 " knows what his subjects openly and frequently commit; 
 " and as to his power of hindering the evil, this likewise is 
 " always presumed, unless the want of it be clearly proved." 
 So Vattel (/) : " Si un souverain qui pourrait retenir ses 
 " sujets dans les regies de la justice et de la paix, souffre qu'ils 
 " maltraitent une nation, ou dans son corps ou dans ses 
 
 (A) The Principles of Natural and Public Law, by J. J. Burlemaqui, 
 Professor at Geneva. I only possess tlie English translation, London, 
 1763. Sir J. Mackintosh calls him ^' an author of distinguished merit." 
 
 (e) See Grotius de J. B. et P. 1. ii. c. xxi. ; De Poenarum, Communica- 
 tione ; and the admirable Prcslectiones of Heineccius on this chapter. 
 
 Vattel, 1. ii. c. vi. : " De la part que la nation pent avoir aux actions de 
 ses citoyens." 
 
 {k) " Patientia aut receptu." — Grot. 8f Hdnecc. 
 
 Q) Book ii. c. vi. s. 72. 
 
SELF-PRESERVATION. 259 
 
 " membreSj il ne fait pas moins de tort a toute la nation, que 
 " s'il la maltraitait lui-meme " {m). 
 
 The act of an individual citizen, or of a small number of 
 citizens, is not to be imputed, without special proof, to the 
 nation or Government of which they are subjects (n). A differ- 
 ent rule would of course apply to the acts of large numbers (o) 
 of persons, especially if they appeared in the array and with 
 the weapons of a military force, as in the case of the invasion 
 of Portugal which has been referred to above. 
 
 CCXX. The consideration of the means by which nations 
 have enabled themselves to perform this duty towards their 
 neighbours and the rest of the world, and of the very im- 
 portant and much-vexed question of the lawfulness of al- 
 lowing a friendly Power to raise troops in a neutral territory, 
 will be discussed when we enter upon the Right of Jurisdic- 
 tion, incident to a State, over all persons and things within 
 the territory, and also in a later part of this work upon the 
 
 (m) Letter to Lord Ashburton, by E. PhiUimore, pp. 27, 183 : London, 
 1842. 
 
 (n) " Cependant, comme il est impossible a I'Etat le mieux r^gle, au 
 souverain le plus vigilant et le plus absolu, de moderer a sa yolonte 
 toutes les actions de ses sujets, de les contenir en toute occasion dans la 
 plus exacte obeissance, il serait injuste d'imputer a la nation ou au 
 souverain toutes les fautes des citoyens. On ne peut done dire, en ge- 
 neral, que I'on a re^u une injure d'une nation, parce qu'on I'aura re9ue 
 de quelqu'un de ses membres (on ne peut imputer a la nation les actions 
 des particuliers)." — Vattel, t. i. 1. ii. c. vi. s. 73. 
 
 (o) Heffters, zweites Buch, Volkerreeht im Zustand des Vnfriedms^ 
 s. 148, pp. 258-9 : After saying that what the State may not lawfully do 
 collectively it may not do individually — " SoUte freilich die Theilnahme 
 der Unterthanen eine massenhafte werden, dadurch die Aufmerksamkeit 
 und Bedenklichkeit der Gegenpartei erregen, demnach Represalien der- 
 selben befiirchten lassen." 
 
 Zouch, De Judicio inter Gentes, pars ii. s. vi. p. 120 (ed. Oxonise, 1650) : 
 "An reprsesalise sint licitse.? Imperator Zeno sequitati natural! con- 
 trarium dicit ut, pro alieno debito, alii molestentur j et in Novella Justi- 
 nian! prohibentur pignorationes pro aliis : addita causa, quod rationem 
 non habet, alium esse debitorem, alium exigi : Jure tamen Gentium intro- 
 ductum apparet, ut pro eo quod prsestare debet civilis societas, aut ejus 
 caput, sive per se primo, sive quod alieno debito jus non reddendo se 
 obstrinxerint, ohligata sint omnia bona suhditorumy 
 
 9 J 
 
260 INTERNATIONAL LAW. 
 
 Rights and Duties of Neutrals. But this present is not an 
 unfit place for offering some general remarks upon the con- 
 trol exercised by the State over strangers, whether domiciled 
 and commorant {hahitans), or merely travellers through the 
 country {Strangers qui passent) (^). 
 
 It is a received maxim of International Law, that the Go- 
 vernment of a State may prohibit the entrance of strangers into 
 the country, and may therefore regulate the conditions under 
 which they shall be allowed to remain in it, or may require 
 and compel their departure from it. According to the Law 
 of England, local allegiance is due from an alien or stranger 
 born, so long as he continues within the protection and do- 
 minion of the Crown ; and it ceases the instant he transfers 
 himself from this kingdom to another. The allegiance and 
 the protection of the stranger, therefore, are both confined, 
 in point of time, to the duration of the residence ; and in point 
 of locality, to the dominion of the British Empire {q). During 
 periods of revolutionary disturbances both on the Continent 
 and within this kingdom, it has been customary to pass Acts 
 of Parliament authorizing certain high oflScers of the State 
 to order the departure of aliens from the realm within a spe- 
 cified time, and their imprisonment in case of refusal. These 
 Acts have generally been limited in their duration : the 
 operation of the last was confined to the period of one 
 year (r). 
 
 {p) Vattel, 1. i. c. xix. s. 213, 1. ii. c. viii. passim. 
 
 (q) Calvin's case, 7; Coke's Reports, 6 a. 
 
 Stephen's Blnckstone, vol. ii. 6, iv. pt. i. c. 11. 
 
 1 Hale's Pleas of the Crown, 60. 
 
 (r) " This power," as Mr. Canning observed, "had undoubtedly been 
 exercised by the Crown, sometimes with, sometimes without, the consent 
 of Parliament" (5 Canning's Speeches, p. 255). The 33 Geo. III. c. 4, 
 A.D. 1793, was the first Alien Act passed by the Parliament of this 
 kingdom, and was followed up by Lord Grenville's note, dismissing 
 Monsieur Chauvelin. 
 
 (Translation.) 
 
 '<■ Whitehall, Jan. 24th, 1793. 
 " I am charged to notify to you. Sir, that the character with which 
 you have been invested at this Court, and the functions of which have been 
 
SELr-PRESERVATION. 261 
 
 so long suspended, being now entirely terminated by tlie fatal death of 
 his late Most Christian Majesty, you have no more any public character 
 here. 
 
 " The King can no longer, after such an event, permit your residence 
 here. His Majesty has thought fit to order that you should retire from 
 this kingdom within the term of eight days; and I herewith transmit to 
 you a copy of the order which his Majesty, in his Privy Council, has 
 given to this effect. 
 
 " I send you a passport for yourself and your suite ; and I shall not 
 fail to take all the other necessary steps, in order that you may return to 
 France with all the attentions which are due to the character of Minister 
 Plenipotentiary from his Most Christian Majesty, which you have 
 exercised at this Court. 
 
 "I have the honour to be, &c., 
 
 " Grenville." 
 {State Papers on the War, p. 245.) 
 This Act has been followed up by : — 
 
 38 Geo. III. c. 50, 77. 56 Geo. III. c. 86. 
 
 41 Geo. III. c. 24. 68 Geo. III. c. 96. 
 
 42 Geo. III. c. 93. 1 Geo. IV. c. 105. 
 
 43 Geo. III. c. 165. 3 Geo. IV. c. 97. 
 64 Geo. III. c. 155. 5 Geo. IV. c. 37. 
 55 Geo. III. c. 54. 
 
 The last Statute was passed on June 9th, 1848, 11 & 12 Vict. c. 20, 
 "An Act to authorize for one Year and to the end of the then next 
 Session of Parliament the Removal of Aliens from the Realm." 
 
 Horner's Memoirs, vol. ii. p. 622. Speech on the Alien Bill, 1816. 
 
262 INTERNATIONAL LAW. 
 
 CHAPTER XL 
 
 RIGHT TO A FREE DEVELOPMENT OF NATIONAL 
 RESOURCES BY COMMERCE. 
 
 CCXXI. This Right(«) is little more than a consequence 
 from what has been already stated with respect to the free 
 navigation of the ocean, and the exceptions which Interna- 
 tional Law has sanctioned in the case of particular portions 
 of the ocean. The general law as to the perfect liberty of 
 commerce incident to every nation, is forcibly and truly stated 
 by Grotius (b): " Quominus gens qu^eque cum quavis gente 
 " seposita commercium colat, impediendi nemini jus est : id 
 " enim permitti interest societatis humanae; nee cuiquam 
 " damno id est : nam etiam si cui lucrum speratum, sed non 
 " debitum, decedat, id damni vice reputari non debet." 
 
 The extravagant pretensions of Spain and Portugal to 
 exclusive commerce with the East and West Indies, and 
 their practical abandonment, have been discussed in a former 
 chapter. It is, however, perfectly competent to any nation 
 to make what regulations it pleases with respect to its own 
 commerce, to admit every nation equally to it, to exclude 
 nations from it, to admit some under favourable, and others 
 
 («) *' Commercium cum Turcis vetitum dicere lege omnes videntur. 
 Et mihi tamen non libet facile discedere a regula certissima Juris 
 Gentium, quod constituit commercia, nee distinguit aliquid de Gentibus." 
 —Alhericus Gent, Advoc. Hispan, cc. 25, 26. 
 
 Grotius^ 1. ii. c. 2, 5. 
 
 Martens, 1. iv. c. iii. s. 139. 
 
 EXuher, s. 69. 
 
 MassSy Le Droit commercial dans ses rapports avec le Droit des Gens 
 et le Droit civil, t. i. 1. ii. p. 88, 
 
 (5) L. ii. c. 2, 13, 6. 
 
DEVELOPMENT OP NATIONAL RESOURCES. 263 
 
 under unfavourable conditions, unless, indeed, such original 
 liberty be curtailed by the express provisions of a Treaty. 
 
 A nation has the same power of restricting commerce with 
 regard to its distant provinces and colonies. Every colony 
 almost has, at one time or other, been confined to commercial 
 intercourse with its mother country, or to some great pri- 
 vileged company of that country. Every page of the history 
 of colonial dependencies shows with what rigour this mono- 
 poly has been exerted by the mother country in time of 
 •peace, and with what jealousy the forced relaxation of such 
 monopoly in time of loar by one belligerent in favour of 
 neutrals, has been regarded by the other belligerent. Eng- 
 land has steadily denied to the neutral the right of carrying 
 on that commerce with the colonies of the belligerent in time 
 of war from which it had been excluded in time of peace. 
 But this subject belongs to another part of this work. 
 
 " The colonial monopoly, that fruitful source of wars" (Mr. 
 Wheaton writes in 1845), "has nearly ceased; and with it 
 " the question as to the right of neutrals to enjoy in war a 
 " commerce prohibited in time of peace "(c). 
 
 The whole status of Consuls is considered in a later portion 
 of this work (d). 
 
 (c) Hist. pp. 759-60. 
 
 (d) Et vide ante, ch. ii. s. xiii. 
 
264 INTERNATIONAL LAW. 
 
 CHAPTER XII. 
 
 RIGHT OF ACQUISITION. 
 
 CCXXII. In the discussion upon the Rights of Territo- 
 rial Inviolability, the fact of rightful Possession has been 
 assumed (a). " Totum autem jus " (the Roman lawyers say) 
 " consistit aut in adquirendo, aut in conservando, aut in 
 " minuendo. Aut enim hoc agitur, quemadmodum quid 
 " cujusque fiat ; aut quemadmodum quis rem vel jus suum 
 " conservet : aut quomodo alienet aut amittat "(Z>). 
 
 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<is. 
 
310 INTERNATIONAL LAW. 
 
 The constructive whole, therefore, is holden, for certain pur- 
 poses, to reside in a part only. 
 
 Turning from the system of Private to the system of In- 
 ternational Law, we find that it is competent to one State 
 possessed of property to alienate it, and to another to receive 
 the alienated portion. So far the analogy is sound between 
 the State and the Individual or the Corporation ; the rights 
 incident to a proprietor attach in both cases. But, in the 
 case of the State, it may be a matter of theoretical and prac- 
 tical difficulty to ascertain where and in whom the power 
 of acquiring and alienating is lodged? in whom what has 
 been happily called "the contracting capacity " (c) of the na- 
 tion is vested (d) ? whether the general procuration of the 
 State (e) be placed in the hands of one man, or of a few, or 
 of a majority of representatives ? The solution of this grave 
 question belongs rather to the province of Public and Con- 
 stitutional, than to that of International Law (/). It has, 
 indeed, been discussed by writers on International Law, 
 especially by Grotius (g) and Vattel (A) : but both those 
 writers dealt, on this as on other occasions, with subjects 
 which belonged to the sphere of the Publicist rather than 
 that of the International Jurist (i). 
 
 CCLXIII. Grotius divides all kingdoms into Patrimonial 
 
 (c) Burke, vol. ix. p. 384 : Tracts on Popery Laivs, c. 3, injh%e. 
 
 (d) See below, the Act of Renunciation of the Grand Duchy of Tus- 
 cany by Leopold II., on his accession to the throne of Austria, in favour 
 of his second son. — Martens, Rec. de Traites, yo\. iv. p. 476. (a.d. 1790.) 
 
 Eugene Ortolan, pp. 14, 35. 
 
 Mtttherforth, Institutes of Natural Law, c. viii. 
 
 Savigny, JR. R. s. 140, b. iii. p. 310. 
 
 (e) Burke, vol. vi. p. 212 ; Appeal from the New to the Old Whigs. 
 
 (f) Grotius, 1. ii. c. vi. 
 Wheaton's Elements, pp. 102-3. 
 GUnther, pp. 11-77, Buch 2, Kap. ii. 
 
 (g) Grotius, 1. ii. c. vi. : De acquisitione derivativa facto hominis, uhi 
 de alienations imperii, et rerum imperii. 
 
 (h) Vattel, 1. i. c. xxi. : De l' Alienation des hiens publics, et de celle 
 d'une partie de VJEtat. 
 
 (i) De Jure Belli, 1. i. c. iii. — Hmicc. Prcelec. 
 
DERIVATIVE ACQUISITION. 311 
 
 and Usufructuary ; and he reckons among the latter all king- 
 doms over which the people elected a Governor, and all that 
 are acquired by treaty or marriage. Patrimonial kingdoms, he 
 seems to think, may be alienated by their rulers without the 
 sanction of the people ; but Usufructuary, not without their 
 consent. Whatever countenance this doctrine might have 
 derived from the practice and principles of the time in which 
 Grotius lived, it can hardly be predicated of any Christian, 
 and certainly of no European State {k) at present existing in 
 the world. Puffendorf, indeed, lays it down as laAv, that the 
 general presumption is against the power of the sovereign 
 to alienate, without the consent of his subjects, any portion 
 of the public property or domain ; and the doctrine is dis- 
 tinctly and indignantly repudiated by Vattel(Z); nevertheless, 
 a miserable attempt was made in 1814 to palliate the guilt 
 
 (k) " Die Eigenscliaft eines Patrimonial-Staates (das heisst, jdass der 
 Regent noch Eigenthumsrecht liber den Staat verfiigen konne) ist in 
 Europa durch Staatsgrimdgesetze nirgend festgesetzt." — Klicber, s. 31. 
 
 *' He will discover that when Grotius examines the subjects in detail 
 lie excludes every case of patrimonial governments. The fair conclusion 
 to be drawn from it is therefore this, that there is no such thing as a 
 patrimonial government." — Lord Grenville, Debate on Blockade of Nor way ^ 
 May 10, 1814. HansarcTs Pari. Deb. 
 
 (/) '' J'ai ose cependant m'ecarter quelquefois de mon guide, et 
 m'opposer a ses sentiments ; j'en donnerai ici quelques exemples. M. 
 "Wolf, entraine peut-elre par la foule des ecrivains, consacre plusieurs 
 propositions a traiter de la nature des royaumes patrimoniaux, sans re- 
 jeter ou corriger cette idee injurieuse a I'humanite. Je n'admets pas 
 meme la denomination, que je trouve egalement choquante, impropre, et 
 dangereuse dans ses effets, dans les impressions qu'elle peut donner aux 
 souverains ; et je me flatte qu'en cela j'obtiendrai le suffrage de tout 
 homme qui aura de la raison et du sentiment de tout vrai citoyen." — 
 Vattel, Preface. 
 
 And again, 1. i. c. v. : " Nous ne voyons point en Europe de grand 
 Etat qui soit repute alienable." 
 
 In another part of his work he limits the power of alienating national 
 property as follows : — " Le corps de la nation ne peut done abandonner 
 une province, une ville, ni meme un particulier qui en fait partie, a moins 
 que la necessite ne Ty contraigne, ou que les plus fortes raisons, prises du 
 salut public, ne liii en fassent une loi.'" — L. i. c. ii. 
 
 Puffendorf, De Jure Nat. et Gent. 1. viii. c. xii. ss. 1-3. 
 
 Vattelj 1. i. c. xxi. s. 260: " II ne peut alit^er les biens publics." 
 
312 INTERNATIONAL LAAV. 
 
 of the forcible annexation of Norway to Sweden by an appeal 
 to the authority of Grotius. 
 
 CCLXIV. So far, indeed, as respects the conduct of 
 third parties in transactions of this nature. International Law 
 may claim to be heard. How far the right of Self-preserva- 
 tion (which includes the right of preventing the undue ag- 
 grandisement of any particular Power) justifies the Inter- 
 vention of third Powers, will be hereafter considered. 
 
 The rule which, according to the true principles of Inter- 
 national Law, ought to be binding upon all nations who are, 
 as it were, bystanders in such transactions, is, rigidly and 
 punctiliously to abstain from interfering to compel by force 
 either part of the nation, whether it be that which wishes to 
 alienate or that which refuses to be alienated, to adopt the 
 one course or the other. To do otherwise, is directly to 
 violate the most sacred principle of the jurisprudence of which 
 "we are treating, to trample in the most offensive way upon 
 the independence of a nation, by assuming the judicial office 
 upon the nicest and most vital questions of her constitutional 
 law, and the executive office, in carrying this unwarranted 
 and illegal decision into effect. 
 
 CCLXy. When in 1814 Norway refused, as she did, by 
 the actual and constructive voice of her people, to be annexed 
 to Sweden, the question should have been left, according to 
 the spirit and letter of the law, to the decision of arms be- 
 tween the two countries. It is painful and humiliating to an 
 Englishman (m) to think that this abhorred union, for such it 
 was at the time, was effected, partly, by the blockade of a 
 British ^eett The pjea that such a union formed part of the 
 provisions of a general treaty of peace, which had for its 
 
 (in) See the debates in both Houses of Parliament on the blockade of 
 Norway, 1814, Hansard's Pari. Deh., especially the speeches of Lord 
 Grenvilie and Sir James Mackintosh, which contain an admirable expo- 
 sition of the soundest principles of International Law. Lord Grenvilie 
 condemns the act as subversive of public morality, as opposed to the 
 authority of all writers upon International Law, as justifying in principle 
 the aggressions of Fyance for the preceding tweftty years. 
 
DERIVATIVE ACQUISITION. 313 
 
 object the re-establishment and pacification of Europe, after 
 years of bloodshed and misery, did not justify the grievous 
 injustice, the intrinsic illegality of this act. The delivery of 
 Genoa to Sardinia, after that republic had yielded to our 
 arms on the faith of its national independence being pre- 
 served, was as wrongful an act, accompanied with the 
 additional sin of violating a faith specifically pledged. To 
 both these cases the expressions of Martens — no favourer 
 of democracy — were fully applicable : " II en est de meme 
 " de Vimpossihilite morale a I'egard des traites dont I'accom- 
 " plissement blesserait les droits d'un tiers " (w). 
 
 CCLXVI. Though such be the rule of law to which 
 nations, being in the condition of third parties and bystanders, 
 should scrupulously adhere, there can be no doubt that one 
 nation may by its proper organ, whatever that may be, 
 alienate, and that another nation may receive, property. It 
 is, moreover, of the last importance to remember, that a 
 nation which allows its ruler, either in his own person or 
 through his minister, to enter into negotiations respecting 
 the alienation of property with other nations, must be holden 
 to have consented to the act of the ruler ; unless, indeed, it 
 can be clearly proved that the other contracting party was 
 aware, at the time, that the ruler in so doing was transgress- 
 ing the fundamental laws of his State (<?). 
 
 (n) Martens, Des Traites non ohligatoires, 1. ii. c. ii. s. 53. 
 
 (o) " A I'occasion du meme traite de Madrid, dont nous venons de 
 parler, les notables du royaume de France, assembles a Cognac, apres le 
 retour du roi, conclurent tous d'une voix, ' que son autorite ne s'etendait 
 point jusqu'a demembrer la couronne.' Le traits fut declare nul, comma 
 6tant contraire a la loi fondamentale du royaume. Et v^ritablement il 
 6tait fait sans poavoirs suffisants ; la loi refusait formellement au roi le 
 pouvoir de demembrer le royaume ; le concours de la nation y etait 
 n^cessaire, et elle pouvait donner son consentement par I'organe des etats- 
 g^n^raux. Charles V ne devait point rebtcber son prisonnier avant que 
 ces memes etats-generaux eussent approuv^ le traits ; ou plutot, usant 
 de sa victoire avec plus de gen^rosite, il devait imposer des conditions 
 moins dures, qui eussent ete au pouvoir de Francois P"" et dont ce 
 prince n'eut pu se dedire sans honte. Mais aujourd'hui que les dtata- 
 gen^raux ne s'assemblent plus en France; le roi demeure le seul organs 
 
314 INTERNATIONAL LAW. 
 
 CCLXVII. This is the universally acknowledged distinc- 
 tion between cases of internal transactions between the State 
 and its Subjects, and of international transactions between 
 the State and other Nations. The reasons which support 
 this leading position of International Law are perspicuously 
 stated by Vattel : — 
 
 " II est necessaire que les nations puissent traiter et trans- 
 " iger validement entre elles, sans quoi elles n'auraient 
 " aucun moyen de terminer leurs alFaires, de se mettre dans 
 " un etat tranquille et assure. D'ou il suit que quand une 
 *' nation a cede quelque partie de ses biens a une autre, la 
 " cession doit etre tenue pour valid e et irrevocable, comme 
 " elle Test en efFet, en vertu de la notion de propriete, Ce 
 " principe ne pent etre ebranle par aucune loi fondamentale, 
 " au moyen de laquelle une nation pretendrait s'oter a elle- 
 " meme le pouvoir d'aliener ce qui lui appartient. Car ce 
 " serait vouloir s'interdire tout contrat avec d'autres peuples, 
 " ou pretendre les tromper. Avec une pareille loi, une nation 
 " ne devrait jamais traiter de ses biens : si la necessite I'y 
 " oblige, ou si son propre avantage I'y determine, des qu'elle 
 " entre en traite, elle renonce a sa loi fondamentale. On ne 
 " conteste guere a la nation entiere le pouvoir d'aliener ce 
 ^' qui lui appartient ; mais on demande si son conducteur, si 
 " le souverain a ce pouvoir. La question pent etre decidee 
 " par les lois fondamentales. Les lois ne disent-elles rien 
 " directement la-dessus ? Voici notre second principe. 2° Si 
 " la nation a defere la pleine souverainete k son conducteur, 
 " si elle lui a commis le soin, et donne sans reserve le droit 
 
 de I'Etat envers les autres puissances ; elles sont en droit de prendre sa 
 volonte pour celle de la France entiere, et les cessions que le roi pourrait 
 leur faire demeureraient valides, en vertu du consentement tacite par 
 lequel la nation a remis tout pouvoir entre les mains de son roi, pour 
 traiter avec elles. S'il en etait autrement, on ne pourrait contractor 
 eiirement avec la couronne de France. Souvent, pour plus de pre- 
 caution, les puissances ont demande que leurs traites fussent enregistr^s 
 au parlement de Paris ; mais aujourd'hui cette formalite meme ne parait 
 plus en usage." — Vattel, 1. i. c. xxi. s. 265. 
 
DERIVATIVE ACQUISITION. 315 
 
 " de trailer et de contracter avec les autres Etats, elle est 
 •* censee I'avoir revetu de tous les pouvoirs necessaires pour 
 " contracter validement. Le prince est alors I'organe de la 
 " nation ; ce qu'il fait est repute fait par elle-meme ; et bien 
 " qu'il ne soit pas le proprietaire des biens publics, il les 
 ** aliene validement comme etant dument autorise " (/?). 
 
 CCLXVIII. Upon the same principle, when foreign 
 Governments or their subjects have obtained from the de 
 facto Government of a country, by treaty or otherwise, a 
 part of the national domain of confiscated property, if the 
 sovereign de jure be restored, he cannot annul this contract 
 or cession. Whatever power he may possess to annul alien- 
 ation made to his own subjects, the acts of the de facto 
 Government, though it was that of a usurper, are binding 
 upon him as to all international transactions (^q). 
 
 There can be no doubt, then, that a State may make 
 acquisitions by the acceptance of property transferred to it 
 from another State. This transference may be effected in 
 as great a variety of ways in the case of the State, as in the 
 case of the individual. 
 
 According to the principles of Private Law, the delivery 
 (tj-aditio) of possession (r) effected a change of ownership 
 {dominii), the deliverer transfers the rights which he had 
 enjoyed to the receiver (5). 
 
 {p) Vattel, 1. i. c. xxi. s. 262. 
 
 (q) Grotius, 1. ii. c. xvi. s. 16. 
 
 Wheaton, Elements, vol. i. p. 102. 
 
 Mably, Droit pub. t. ii. p. 271. 
 
 (r) '' Hse quoque res, quae traditione nostras fiiint, jure gentium nobis 
 acquiruntur ; nihil enim est tarn conveniens naturali aequitati, quani 
 voluntatem domini volentis rem suam in alium transferre ratam liaberi." 
 —Dig. xli. t. i. 9, 3. 
 
 " Traditionibus et usucapionibus dominia rerum, non nudis pactis 
 transferuntur." — Cod. ii. 3, 20 {de Pactis). 
 
 (s) "Quoties autem dominium transfertur, ad eum qui accipit, tale 
 transfertur, quale fuit apud eum qui tradit." — Dig. xli. t. i. 20, 1. 
 
316 INTERNATIONAL LAW. 
 
 The validity of the transaction depends upon consider- 
 ations relating to — 
 
 1. The person delivering or transferring the property. 
 
 2. The cause of the transference. 
 
 3. The form and manner in which it is transferred. 
 
 1. The person (#) must have the will and the power 
 alienate the thing ; and the alienee the will and power 
 receive it. 
 
 2. The cause {u) must be lawful and just, that is to say, 
 it must be such as warrants the transference, and must nc 
 relate to a class of things which may not be alienated. 
 
 3. The form and manner (x) need not be such as to convej 
 the thing by corporal seisin ; overt acts indicating the inten- 
 tion of the alienator, or symbolical delivery, may suffice. 
 
 The Treaty of Partition in 1700, which parcelled out among 
 various European nations the dominions of the Spanish crown 
 upon the demise of the wearer of it, without the consent 
 either of him or of the nation, provided by its ninth article, 
 that the kingdom of Spain should never be held in joint pos- 
 session with that of France or Germany, however it might 
 have accrued to either of these countries — " soit par succes- 
 " sion, testament, cojitr at de mariage, donation, echange, cession, 
 ** appel, revolte, ou quelque autre voie que ce soit." And in 
 
 (t) "Traditio nihil amplius transferre debet vel potest ad eiini qui 
 accipit, quam est apud eum qui tradit. Si igitur quis dominium in fundo 
 habuit, id tradendo transfert; si non habuit, ad eum qui accipit nihil 
 transfert."— 7)t>. 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 "(</) is the doctrine of the Roman Law; and upon it 
 Grotius(e) remarks, " Sic si is qui rei alicujus est dominus, 
 ** sciens cum altero eam rem possidente tanquam cum domino 
 " contrahat, jus suum remisisse merito habebitur : quod cur 
 " non et inter reges locum habeat, et populos liberos nihil 
 *^ causae est." And again : ^' Venitenim hoc non ex jure civili 
 *' sed ex jure naturali, quo quisque suum potest abdicare, et 
 ^* ex jure naturali prassumptione, qua voluisse quis creditur 
 ** quod sufficienter significavit : quo sensu recte accipi 
 ** potest quod Ulpianus dixit, juris gentium esse acceptila- 
 « tionem "(/). 
 
 Heineccius, in his Commentary on Grotius, expresses 
 concisely the same doctrine " inter gentes loco signi est pa- 
 " tientia scientia '' {g). 
 
 It is indeed true that, according to Grotius, silence cannot 
 be construed as an assent, unless it be " scientis et libere 
 
 {d) Dig. xxix. t. 2, s. 95. 
 
 (e) L. ii. c. iv. s. 4. 
 
 (/) Ih. Dig. xlvi. t. 4, s. 8. 
 
 (g) Prcelect. 1. ii. c. iv. s. 4. See, too, Mablg, Droit public, t ii. pp. 21, 22. 
 
DOMINION.— PROTESTS. 335 
 
 " volentis ; " but he adds that " temporis in utrumque magna 
 " vis est ; " and in fact these conditions are presumed after 
 the lapse of time (A). 
 
 CCLXXXVI. The practice of nations confirms this theory : 
 they have frequently entered protests (i) in favour of their 
 alleged rights upon the conclusion of Treaties in which these 
 rights were expressly, or by implication, negatived. It is 
 hardly necessary to add, that a nation, who is herself a party 
 to such a Treaty, without making any protest, has unques- 
 tionably abandoned her rights. The Congress of Aix-la- 
 Chapelle (1748) was the last in the eighteenth century at 
 which these protests were made. Thus, the Pope has 
 perpetually protested, from the Treaty of Westphalia to 
 the Congress of Vienna, against all Treaties recognizing or 
 confirming the confiscation of Church property effected at 
 or since the time of the Reformation (k). 
 
 (h) Grotim (Be Jure Belli, 1. ii. c. iv. ss. 5, 6), says : " Sed ut ad dere- 
 lictionem preesumendam valeat silentium duo requiruntur, ut silentium sit 
 scientis, et ut sit libere volentis ; nam non agere nescientis, caret efFectu, 
 at alia causa cum apparet. cessat conjectura voluntatis." 
 
 " Ut hsBC igitur duo adfuisse censeantur, valent et alise conjectures : 
 sed temporis hi utrumque magna vis est Nam primum fieri vix potest, ut 
 multo tempore res ad aliquem pertinens non aliqua via ad ejus notitiam 
 perveniat, cum multas ejus occasiones subministret tempus. Inter prje- 
 sentes tamen minus temporis spatium ad banc conjecturam sufficit, quani 
 inter absentes, etiam seposita lege civili. Sic et incussus semel metus 
 durare quidem nonnihil creditur, sed non perpetuo, cum tempus longum 
 multas occasiones adversus metum sibi consulendi, per se, vel per alios 
 suppeditet, etiam exeundo fines ejus qui metuitur, saltem ut protestatio 
 de jure fiat, aut, quod potius est, ad judices aut arbitros provocetur." 
 
 Kdroxov Kal (iffiaiov rijv ktTjcjiv imroitjicoros tov xP^^'°^'' — Dionys. 
 Hcdicarn. c. ix, t. ii. p. 155. 
 
 Xpr.voq yap tv^iapriQ Oeoc, 
 
 according to the remarkable expression of Sophocles (JBkctra, 179). 
 
 (0 Mably, Droit public, t. i. pp. 104, 342 ; t. ii. pp. 43, 193. 
 
 De Rayneval, Instit. du Droit de la Nature et des Gens, 1. ii. c. ix. s. 2. 
 
 (k) Koch, Hist, des Tr. t. i. p. 316. 
 
 Mahly, t. i. p. 143 ; t. ii. pp. 50, 130-9, prcesertim (for History of the 
 Eenunciation of France in the Treaties of Utrecht) p. 148. 
 
 Wheaton, Hist. p. S7. 
 
336 INTERNATIONAL LAW. 
 
 In 1814 (/) the King of Saxony published an admirable 
 protest against the dismemberment of his kingdom. And at 
 the Congress of Vienna (1815) the Pope and Gustavus IV., 
 ex-King of Sweden, delivered protests (m). 
 
 CCLXXXVII. This dereliction of property is, however, 
 often not left, and where it is possible never should be left, to 
 the inferences of legal presumption. The solemn renunciation 
 of territory and of rights by a State is one of the most import- 
 ant subjects of both Public and International Jurisprudence. 
 Memorable instances of their importance are to be found in 
 the Treaties of Utrecht. In these Treaties the renunciations 
 of the Emperor of Germany, the King of France, and the 
 King of Spain established the separation of the Crowns of 
 France and Spain as a fundamental rule of European Inter- 
 national Law, and severed Belgium, Milan, and Naples from 
 the Spanish monarchy. 
 
 The States or State interested in the renunciation must 
 take care that it be ratified by the Constitutional Authorities 
 of the renouncing kingdom. We may close this subject with 
 the remark of Mably : " Tons les peuples sentent la necessite 
 " des renonciations pour etablir entre eux la surete, I'ordre, 
 " et la paix ; ne doit-il pas etre absurde de douter de leur 
 
 " validite?"^^) 
 
 CCLXXXVIII. Another mode of extinoruishino; dominion 
 is, as we have seen, by voluntary transfer of the possession ; 
 but it is important to observe, that if a part of a territory be 
 alienated, it carries vnth it to the new owner all the obliga* 
 tions and debts by which it was previously bound ; here, as 
 in most cases, the principle of the Koman Law being applic- 
 able: — " Id enim bonorum cujusque esse intelligitur quod 
 " asri alieno superest " (o). When property has been granted 
 
 (l) Garden, Tr. de Dipl t. iii. p. 205, contains the Protest at length. 
 See, too, p. 146 — the Memoire raisonne. 
 (m) Koch, t. iii. p. 500. 
 (n) Droit public, t. ii. p. 140. 
 (o) D. de V. S. L. t. xvi. 125 ; xlix. t. xiv. s. 11. Z>. 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) F<dix, 8. 640, p. 607. 
 Revue etrangh-e, t. i. p. 417. 
 {f) Vide M. F(Blix, s. 641, p. 607, and note. 
 
 (it) Debate in tJie Mouse of Lords, Ath February, 1842. Speech of Lord 
 Brougham. 
 
 {v) Martens, Recueil, t. vii. p. 404 {Art. xx.). 
 
EXTRADITION. — TREATIES. 457 
 
 England has also had at various times Treaties for the 
 Extradition of deserters, with the German principalities, — 
 Hesse Cassel (x) (January 1776, September 1787 (y), and 
 April 1793 (z)); Baden (September 1793(a)); Hesse 
 Darmstadt {b) {Se-ptemher and October 1793); Brunswick 
 (November 1794(c); the Elector Palatine (March 1800 (J) ); 
 Duchy of Wurtemherg (April 1800 (e) ) ; Archbishopric of 
 Mayence (April 1800 (/) ). But at present she has only two 
 Treaties of Extradition with foreign States, one with France 
 and another with America, both confirmed by Acts of Parlia- 
 ment {g). 
 
 The Treaty with France, on 13th February, 1843, pro- 
 vides, that the high contracting parties should, on requisition 
 made in their name through the medium of their respective 
 diplomatic agents, deliver up to justice persons who, being 
 accused of the crimes of murder (comprehending the crimes 
 designated in the French penal code by the terms assas- 
 sination, parricide, infanticide, and poisoning), or of an at- 
 tempt to commit murder, or of forgery, or of fraudulent 
 bankruptcy, committed within the jurisdiction of the re- 
 quiring party, should seek an asylum or should be found 
 
 {x) Martens, Recueil, t. ii. p. 422. 
 
 iy) lb. t. iv. p. 306. 
 
 (2) lb. t. V. p. 449. 
 
 (a) J^. t. V. p. 506. 
 
 (6) lb. t. V. pp. 492 and 524. 
 
 (c) lb. t. V. p. 620. 
 
 (of) lb. t. vi. p. 707. 
 
 (e) lb. t. vii. p. 47 (Art. viii.). 
 
 (/) lb. t. vii. p. 54 (AH. viii.). 
 
 (g) HertsleVs Treaties, vol. vi. pp. 448-9. " An Act of the Britisli Par- 
 liament for giving effect to a Convention between her Majesty and the 
 King of the French for the apprehension of certain offenders," 6 & 7 
 Vict. c. Ixxv. s. 1. 
 
 Further provisions for facilitating the execution of this Act were given 
 by 8 & 9 Vict. c. 120. 
 
 7 HertsleVs Tr. 356. 
 
 Martens, Ree. de Tr. t. xxxiv. p. 20. 
 
 Ann. Reg. (1843), p. 470. 
 
458 INTERNATIONAL LAW. 
 
 within the territories of the other ; provided that this should 
 be done only when the commission of the crime should be 
 so established, as that the laws of the country, where the 
 fugitive or person so accused should be found, would justify 
 his apprehension and commitment for trial, if the crime 
 had been there committed ; and also provides, that on the 
 part of the British Government the surrender should be 
 made only on the report of a judge or magistrate duly 
 authorized to take cognizance of the acts charged against 
 the fugitive in the warrant of arrest, or other equivalent 
 judicial document issued by a judge or competent magis- 
 trate in France, and likewise clearly setting forth the said 
 Acts ; and also provides, that the expenses of any detention 
 and surrender made in virtue of the stipulations herein- 
 before recited should be borne and defrayed by the Govern- 
 ment in whose name the requisition should have been made ; 
 and also provides, that the provisions of the said Con- 
 vention should not apply in any manner to crimes of murder, 
 forgery, or fraudulent bankruptcy committed antecedently 
 to the date thereof; and also provides, that the said Con- 
 vention should be in force until after the First day of 
 January, in the year one thousand eight hundred and forty- 
 four, after which date either of the high contracting parties 
 should be at liberty to give notice to the other of its in- 
 tention to put an end to it, and it should altogether cease 
 and determine at the expiration of six months from the date 
 of such notice. 
 
 This Treaty was confirmed by the Act 6 & 7 Vict. c. 75, 
 passed on 22nd August, 1843. 
 
 The Treaty of Great Britain with the United States of 
 North America, on 9th August, 1842, provides, by the tenth 
 Article, that the two countries should, upon mutual requi- 
 sitions by them or their ministers, officers, or authorities 
 respectively made, deliver up to justice all persons who, 
 being charged with the crime of murder, or assault with 
 intent to commit murder, or piracy, or arson, or robbery, or 
 forgery, or the utterance of forged paper, committed within 
 
EXTEADITION.— TREATIES. 459 
 
 the jurisdiction of eitheTi* of the high contracting parties, 
 should seek an asylum or should be found within the terri- 
 tories of the other : provided that this should only be done 
 upon such evidence of criminality as, according to the laws 
 of the place where the fugitive or person so charged should 
 be found, would justify his apprehension and commitment 
 for trial if the crime or offence had been there committed, 
 and that the respective judges and other magistrates of the 
 two Governments should have power, jurisdiction, and autho- 
 rity, upon complaint made under oath, to issue a warrant 
 for the apprehension of the fugitive or person so charged, so 
 that he might be brought before such judges or other magis- 
 trates respectively, to the end that the evidence of crimi- 
 nality might be heard and considered ; and if on such hear- 
 ing the evidence should be deemed sufficient to sustain the 
 charge, it should be the duty of the examining judge or 
 magistrate to certify the same to the proper executive autho- 
 rity, that a warrant might issue for the surrender of such 
 fugitive, and that the expense of such apprehension and 
 delivery should be borne and defrayed by the party making 
 the requisition and receiving the fugitive ; and the eleventh 
 Article provides that the said tenth Article shall continue 
 in force until one or other of the high contracting parties 
 shall signify its wish to terminate it, and no longer (A). 
 
 This Treaty was confirmed by the Act 6 & 7 Vict. c. 76, 
 passed on 22nd August, 1843 ; and both the Treaties with 
 France and the United States were further confirmed by the 
 8 & 9 Vict. c. 120, which facilitated their execution. 
 
 A former Treaty on the same subject had been signed 
 between the North American United States and Great Bri- 
 tain, in 1794 ; and under the twenty-seventh Article of that 
 
 (h) HertsleCs Treaties, vol. vi. pp. 862-3. " An Act of the British Par- 
 liament for giving eiFect to a Treaty between her Majesty and the United 
 States of America, for the apprehension of certain ofienders," 6 & 7 Vict, 
 c. 76. 
 
 Martens, Rec. de Tr. t. xxxiv. p. 507. 
 
460 INTERNATIONAL LAW. 
 
 Treaty, a citizen of the North American United States, who 
 had committed murder within the jurisdiction of England, 
 that is, upon board a British ship on the high seas, was 
 delivered up to the Biitish by the American authorities, 
 although it was strongly contended that the article of the 
 Treaty was contrary to the constitution of the United States ; 
 that the Treaty could only relate to foreigners ; that, the 
 crime having been committed on the high seas, the Courts 
 of the United States had competent jurisdiction ; and that a 
 grand jury ought to make inquest, before a party was sent 
 away for trial. All these objections were overruled, and 
 the prisoner delivered up to the British Consul (?). 
 
 CCCLXXXVII. The United States of North America 
 have the aforesaid Treaty of Extradition with England, and 
 also one with France. 
 
 In 1853 the Treaty with England was enforced in the case 
 of Thomas Kaine, an Irish criminal claimed by the British 
 Consul, at the port of New York, for the crime of an assault 
 with an intent to commit murder within the British domi- 
 nions ; and a formal and careful decision upon the effect of 
 the Treaty was delivered by the American Commissioner, 
 who said that it was his duty to inquire, whether the evi- 
 dence of the guilt of the person charged would justify his 
 commitment for trial, according to the laws in force in the 
 State of New York, if charged with the crime there, and 
 the requisitions of those law^s would be fully complied with 
 by the production of evidence from which the magistrate or 
 Commissioner might conclude that the oifence had been 
 committed, and that there was probable cause to believe 
 that the prisoner had been guilty of it. In this case the 
 criminal was surrendered under the provisions of the 
 Treaty (k). 
 
 (i) BohJmis's Case, sentence by Judge Bee, State Trials of the United 
 States, published at Philadelphia (1849), p. 393. 
 
 United States v. Nash, Bee^s {^American) Admiralty Rqmrts, 266. 
 
 {k) The reciprocal Extradition of criminals among the States which 
 
EXTEADITION. — TREATIES. 461 
 
 CCCLXXXYIII. It appears that, with respect to 
 proceedings had in virtue of these Treaties and Acts, the 
 applications of the British Government to France and the 
 United States have been generally successful, but that the 
 reverse may be predicated of the applications by France and 
 America to. Great Britain (/). 
 
 It has been decided in England that no retrospective 
 effect can be given to these Acts or Treaties. 
 
 The only important decision given in England on these 
 statutes was that in " The Queen v. Clinton^'' in which Mr. 
 Baron Piatt observed : " The object of the Act was to give 
 " effect to a Treaty for reciprocally rendering up persons 
 " ^ being charged' with forgery, &c., ^committed' within the 
 '^ jurisdiction of either party, &c. Now, ' being charged,' 
 ** in his opinion, clearly meant, ^ being then charged ; ' but 
 " the word ' committed ' might stand for ^ which have there- 
 " ' tofore been committed,' or ^ which were then committed,' 
 " or ^ which should be committed after the passing of the 
 " * Act.' Looking into the Treaty, for the purpose of giving 
 " effect to wliich this Act was passed, he found the terms 
 " were such person as ' having committed,' &c., and * being 
 " ^ fugitive from justice,' &c. On this he would remark that 
 " it appeared to him very doubtful whether, under this Treaty, 
 *' a merchant committing forgery of a bill of exchange in the 
 " United States with the intention of providing for it at 
 '^ maturity, and coming over here animo revertendi, and there- 
 " fore not a fugitive from justice, could be taken and given 
 " up to the American Government. ^ Being fugitive ' meant 
 " being so at the time when the law was to be put in force. 
 " If so, then it would appear that the word ' committed' meant 
 " committed after the Treaty. According to the common 
 " course of reasoning and of justice, it must be considered 
 " that the Treaty -was meant to attach only on those whose 
 
 constitute the union is expressly provided for by the constitution.— 
 Story on the Constitution, ss. 1807-8-9. 
 (/) Egan on the Law of Extradition, p. 57. 
 
462 INTERNATIONAL LAW. 
 
 " crimes as well as flight had taken place since the making 
 *^ of the Treaty. That must be the construction of the 
 " Treaty, and the construction of the Act of Parliament 
 " must correspond ; for he considered that they were bound 
 '' to advert to the Treaty to discover the meaning and 
 " intention of the Act of Parliament ; and therefore he 
 " thought that the word ^ committed ' could not be referred 
 " to transactions before the date of the Treaty. The word 
 *' could have no other application. That was his opinion ; 
 '' and he thought he was bound to act upon it, because it 
 " seemed to him that, in this country, laws to tax or restrain 
 " liberty must be clear ; and if this was defective in express- 
 " ing the intention of the Legislature, it was for them to 
 " alter it. His opinion was founded on the Treaty ; and, 
 " taking that ground, he thought that the Act of Parliament 
 *^ could only apply to those who had committed the crime after 
 " the passing of it (m). It seemed to him, therefore, that he 
 " could only order that this man be discharged. The prisoner 
 " was then accordingly discharged." 
 
 CCCLXXXIX. An important British statute(w) has been 
 enacted during the present year (1870), amending the exist- 
 ing municipal Law relating to the Extradition of Criminals. 
 Political offences are excluded from the scope of its opera- 
 tion. It extends to British possessions as well as to the 
 United Kingdom. It will be found printed at length in the 
 Appendix to this volume, as also the statute of 1852 (o), 
 for executing arrangements with foreign Powers as to the 
 apprehension of seamen who have deserted their ship. 
 
 (m) The Law Times, Nov. 1, 1845. 
 Ugan on the Law of Extradition, pp. 54, 55. 
 
 The Act 1 W. IV. c. 66, which applies to the forging or uttering in 
 England documents purporting to be made out of England. 
 (n) 33 & 34 Vict. c. 52. 
 (o) 15 Vict. c. 26. 
 
PART THE FOURTH. 
 
 CHAPTER I. 
 
 INTERVENTION. 
 
 CCCXC. In all systems of Private Jurisprudence, 
 provision is made for placing upon the abstract Right of 
 Individual Property such restrictions as the general safety 
 may require. The maxim '' expedit enim reipubliccB, ne 
 " quis sua re male utatur^'' belongs to the law of all coun- 
 tries (a). 
 
 The Praetorian Interdict (b) of the Roman, the Injunction 
 of the English Law, give effect to this principle by prevent- 
 ing the mischief from being done, instead of endeavouring to 
 remedy it when done. 
 
 CCCXCI. Some analogous right or power must exist 
 in the system of International Jurisprudence ; " Nei- 
 " ther," says Lord Bacon, " is the opinion of some of the 
 " schoolmen to be received, that a war cannot justly be made 
 
 («) Inst. lib. i. viii. 22 : " Chaque droit a ses limites : 11 est limits par 
 les droits analogues de tous les membres d'une societe." — Ahrens,' Cours 
 de Droit naturel ou de Philosophie du Droit j p. 296. (Brux. 1844.) 
 
 (h) Among tbe principal instances in which individual property is 
 subjected to restriction on account of the general good are the fol- 
 lowing : — 
 
 Cautio damni infecti, Dig. xxxix. t. 2. 
 
 Actio de tigno juncto, Dig. xlvii. t. 3. 
 
 Interdictum de glande legenda, Dig. xliii. t. 28. 
 
 Actio aquce pluvice arcendce^ Dig. xxxix. t. 3. 
 
 Interdictum de arboribus ccedendis, Dig. xliii. t. 27. 
 
464 INTERNATIONAL LAW. 
 
 " but upon a precedent injury or provocation ; 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" (r). 
 The Right of Self-Defence incident to every State may in 
 certain circumstances carry with it the necessity o^ intervening 
 in the relations, and, to a certain extent, of controlling the 
 conduct of another State ; and this where the interest of the 
 intervener is not immediately and directly, but mediately and 
 indirectly, affected. This remark brings us to the considera- 
 tion of the doctrine of Intervention {d). 
 
 CCCXCII. And first of all it should be clearly under- 
 stood that the Intervention of bodies of men, armed or to 
 be armed, uncommissioned and unauthorized by the State to 
 which they belong, in a war, domestic or foreign, of another 
 State, has no warrant from International Law. 
 
 It has been already observed (e) that it is the duty of a 
 State to restrain its subjects from invading the territory of 
 another State ; and the question when such an act on the 
 part of subjects, though unauthorized by the State, may 
 bring penal consequences upon it, has received some con- 
 sideration. 
 
 It is a question to which the events of modern times have 
 given great importance, and as to which, during the last 
 half-century, the opinions of Statesmen, especially of this 
 country, have undergone a material change. 
 
 That this duty of restraining her subjects is incumbent 
 upon a State, and that her inability to execute it cannot be 
 alleged as a valid excuse or as a sufficient defence to the 
 invaded State, are propositions which, strenuously contested 
 as they were in 1818, will scarcely be controverted in 1870. 
 
 (c) Essay on Empire, 
 id) Gunther, i. 287, ss. 8-12. 
 Hefters, 90. 
 
 Wheaton, Droit inteim. t. i. pp. 77, 92. 
 Manning, Law of Nations, p. 97. 
 
 (c) Vide ante, s. ccxix. on tlie question Civitasne deliquerit an 
 eives f 
 
INTERVENTION. 465 
 
 The means which each State has provided for the purpose 
 of enabling herself to fulfil this obligation form an inter- 
 esting part of Public and Constitutional Jurisprudence, to 
 the province of which they, strictly speaking, belong. The 
 question, however, borders closely upon the general province 
 of International Law, and upon the particular theme of this 
 chapter ; and son>e 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. 
 
 (.<?) Kliiher, Aden des Wiener Congr. Band ix. 40-51, 
 
 WJieatons Hist. pp. 425-435. 
 
INTEKVENTION. — INTERNAL AFFAIRS. 473 
 
 of a remarkable state paper by the latter, Russia retained 
 that part of ancient Poland erected by Napoleon into the 
 Duchy of Warsaw, and by this Treaty the Partition of 
 Poland was ultimately confirmed. 
 
 This Treaty, however, declared Cracow to be a free, inde- 
 pendent, and neutral city, under the protection of Russia, 
 Austria, and Prussia, Avith so many square miles on the left 
 bank of the Vistula, and a certain amount of population. 
 This small remnant of their original prey has been subse- 
 quently devoured by the three protecting Powers. In 1832 
 the Emperor Nicholas annexed the kingdom of Poland to the 
 Russian Empire, and destroyed every vestige of its separate 
 nationality. In 1836 Cracow was occupied by Russian and 
 Austrian forces, upon the allegation that it had become the 
 centre of revolutionary plots. In 1846 (November 6), 
 Cracow, in spite of the protests of Great Britain, France, 
 and Sweden, was annexed to Austria. 
 
 Memorable lessons are written for the ensample of nations 
 in the history of these great crimes and their consequences. 
 
 First, the folly and shortsightedness of vulgar politicians 
 who hold the doctrine that a State has no concern with the 
 acts of her neighbour, and that if wrong be done to others, 
 and not to herself, she cannot afford to interfere. 
 
 Secondly, the certainty of that Nemesis which sooner or 
 later overtakes the countries which have been, or have 
 suffered their rulers to be, the doers of wrong. • 
 
 It requires only a moderate acquaintance with history 
 subsequent to those first spoliations of Poland, to know that 
 the interference of England and France to prevent these 
 atrocious acts, and to defend betimes the liberties of Europe, 
 would have been no less wise, if regarded in an economical 
 point of view, than just, if considered upon higher principles ; 
 and the Rulers of Austria, Prussia, and Russia must have 
 been taught, during the wars of the French Revolution, and 
 in the day of their bitter suffering and humiliation, the im- 
 policy of injustice, and the danger of creating a precedent 
 of rapine and wrong. 
 
 Great jurists of all countries have passed sentence upon the 
 
474 INTERNATIONAL LAW. 
 
 partitions of Poland. M. de Talleyrand (t) described it as 
 the prelude, as partly the cause, and perhaps the excuse of 
 the convulsions of Europe during the French Revolution. 
 " The partition of Poland in 1772," says M. Koch (u), 
 " appeared to sanction all subsequent usurpations." It was 
 the most flagrant violation, according to Mr. Wheaton {x), of 
 natural justice and International Law, since Europe had 
 emerged from barbarism. No less a publicist than Von 
 Gentz (y) observes that the partition of Poland was a crime 
 fraught with peculiar mischief to the best interests of Europe 
 — it showed to the astonished world a league of monarchs in 
 favour of injustice ; — those who ought to be the protectors, 
 acting as the oppressors of national independence ; while the 
 doctrine of the Balance of Power, cited as a justification of 
 their conduct by those who were destroying it, mournfully 
 illustrated the adage, Corruptio optimi pessima (z). 
 
 CCCXCIX. The Second Limitation arises in the in- 
 stance of a Guarantee given by a Foreign Nation, either 
 generally to secure the inviolability of the provisions of a 
 particular Treaty, or specially to support a particular Con- < 
 stitution or form of government («) established in another 
 country, or to secure some particular possession or other 
 individual object appertaining to it. The question of a 
 Federal Guarantee, mutually given by United States, has been 
 already discussed : the very constitution of such a body politic 
 implies the existence of a mutual guarantee for the inde- 
 pendence of each member of it. This is the case of a guarantee 
 from tvithin, a question rather of Public than International 
 Law, and very different from a guarantee from without, which 
 rests upon a distinct principle, and is one of the most difficult 
 
 (t) Note to the Congress of Vienna. 
 
 (m) Introd. p. 30. 
 
 (.r) Hist. p. 332. 
 
 (y) Fragmente aus der neuesten Geschichte des politischen Gleichgewichts 
 in Europa. Schriften, B. iv. ss. 54-59. 
 
 (a) Vide ant^, s. Ixxiii. p. 94, for the subsequent international posi- 
 tion of Poland. 
 
 (rt) Vide post. 
 
INTERVENTION. — GUARANTEE. 475 
 
 and delicate questions which fall under the cognizance of 
 International Law. The consideration of the duties and 
 rights oi guarantees belongs to that branch of the subject in 
 which the nature of Treaties is discussed. 
 
 CCCC. Another Limitation of the general principle 
 under discussion may possibly arise from the necessity of 
 Intervention by Foreign Powers in order to stay the shedding 
 of blood caused by a protracted and desolating civil war in 
 the bosom of another State (b). This ground of Intervention, 
 urged on behalf of the general interests of humanity, has 
 been frequently put forward, and especially in our own 
 times, but rarely, if ever, without others of greater and more 
 legitimate weight to support it ; such, for instance, as the 
 danger accruing to other States from the continuance of such 
 a state of things, or the right to accede to an application from 
 one of the contending parties. 
 
 As an accessory to others, this ground may be defensible ; 
 but as a substantive and solitary justification of Intervention 
 in the affairs of another country, it can scarcely be admitted 
 into the code of International Law, since it is manifestly 
 open to abuses, tending to the violation and destruction of 
 the vital principles of that system of jurisprudence, — such 
 abuses as generated the several partitions of Poland, the great 
 precedent so often quoted, and so often imitated by the 
 violators of International Law. The necessity of staying the 
 shedding of blood occupied a very prominent place among the 
 various reasons alleged for the Intervention in the affairs of 
 
 (&) " Sciendum quoqiie est, Eeges, et qui par Eegibus jus obtinent, 
 jus habere poenas poscendi non tantum ob injurias in se aut subditos suos 
 commissas, sed et ob eas quae ipsos peculiariter non tangunt, sed in qui- 
 husvis personisjus natures aut gentium immaniter violantibus. Nam libertas 
 humanse societati per pcenas consulendi, quae initio ut diximus penes 
 singulos fuerat, civitatibus ac judiciis institutis penes summas potestates 
 resedit ; non proprie qua aliis imperant, sed qua nemini parent. Nam 
 subjectio aliis id jus abstulit. Imo tanto honestius est alienas injurias 
 quam suas vindicare, quanto in suis magis metuendum est ne quis doloris 
 sui sensu aut modum excedat, aut certe animum inficiat." — Grotius, de 
 J. B. lib. ii. cap. xx. sec. xl. p. 535. 
 
476 INTERNATIONAL LAAV. 
 
 • 
 
 Turkey and her then Greek subjects in 1827 ; but it was 
 by no means, as will be presently seen, the only justification 
 advanced for that Intervention, though, perhaps, if it had 
 been, the long continuance, as well as the horrible nature of 
 the massacres committed, would alone, if ever such reasons 
 could, have justified the interference of Christendom (c). 
 
 CCCCI. A Third Limitation arises when both con- 
 tending parties in a civil war invite the Intervention of a 
 third Power : in this case the right to accede to the request is 
 perfectly clear. This was in fact the foundation of the 
 Intervention in the case of Belgium. Whether, when the 
 Intervention has been once undertaken, either or both of the 
 contending parties can resile from their engagement, and 
 whether the Intervener be obliged to desist re infecta, is a 
 matter of some nicety, and must in some measure receive 
 its decision according to the particular {d) circumstances of 
 each case {e). The Intervener might of course stipulate, 
 before he undertook the Intervention, that both parties 
 should abide by his decision. Although the right of inter- 
 vening admits of no doubt where both parties invoke the 
 Intervention, it is less clear when the application is made by 
 one party alone, and yet it cannot be asserted, that even this 
 kind of Intervention, so solicited, is necessarily at variance 
 with any abstract principle of International Law, while it 
 must be admitted to have received some sanction from the 
 practice of nations. It should be observed that the recog- 
 nition of the insurgent party in a civil war either as a 
 
 (c) Papers relative to the affairs of Greece, p. 98.— London, 1835. 
 (Printed by the Foreign Office.) 
 
 (d) France and England were the only two of the five Intervening 
 Powers, in the case of Belgium, who seem to have entertained no scruples 
 of this kind. — Papers, ^-c, relative to Belgium. — Les Plenipotentiaires, 
 ^c, p. 35 ; and in the case of Portugal, and in the case of Greece, vide 
 infra, Wheaton, Hist. 541. 
 
 (e) Heffters maintains stoutly the obligation of withdrawing at the 
 request of the party who invoked the aid (p. 95, end of s. 46). — Martens, 
 t. i. 80-1-2. 
 
INTlJRVENTION. — CIVIL WAR. 477 
 
 belligerent or as a separate State does not constitute the 
 recognizing State a belligerent. 
 
 The United States recognized, perhaps somewhat hastily 
 in both senses, the insurgent American colonies of Spain, 
 but were not at war with Spain. England and France 
 during the late American civil war recognized the Southern 
 Confederacy as belligerent; and, though in the heat and 
 irritation of civil contest the Government of the United 
 States resented even this qualified and necessary recog- 
 nition, it was clearly a matter of simple justice and strict 
 neutrality: a further recognition by sending an accre- 
 dited Minister to a de facto State like the Southern Con- 
 federacy, with a regular Government and a large army, 
 would not have afforded a justifying cause of war to the 
 other belligerent. 
 
 France in 1770 not only recognized the American colo- 
 nies when they revolted from England as a belligerent and 
 a de facto State, but supplied them with money, arms, and 
 soldiers, and entered into a secret alliance with them — an act 
 of treacherous hostility to the mother country which no 
 American jurist would deny to have fully justified England 
 in declaring war against her. 
 
 It will be remembered that at present we have no concern 
 with the wisdom or policy of an Intervention invoked by 
 one party alone : that is a National, not an International 
 question. There is, however, one proposition with respect 
 to this kind of Intervention which cannot be too broadly or 
 emphatically stated. 
 
 In order to justify such Intervention, the kingdom in 
 which it is to take place must be really divided against itself ; 
 there must be therein two parties in the bona fide condition 
 of waging actual war upon each other. 
 
 No mere temporary outbreak, no isolated resistance to 
 authority, no successful skirmish, is sufficient for this pur- 
 pose ; there should be " such a contest as exhibits some 
 " equality of force, and of which, if the combatants were 
 
478 INTERNATIONAL LAW. 
 
 " left to themselves, the issue would be, in some degree, 
 « doubtful "(/). 
 
 In most cases, therefore, some time must elapse before an 
 internal commotion can be clothed with the character of a 
 revolution, and before the rebellious subjects can become the 
 allies of a Foreign State. 
 
 The interference of Great Britain, France, and Russia in 
 the affairs of Greece was vindicated upon three grounds ; viz., 
 1st, of complying with the request of one party ; 2ndly, of 
 staying the shedding of blood ; 3rdly, and principally, of 
 affording protection to the subjects of other Powers who 
 navigated the Levant, in which, for many years, atrocious 
 Piracy had been exercised, while neither Turkey nor revolted 
 Greece were de facto either able or willing to prevent the 
 excesses springing out of this state of anarchy. The third 
 ground unquestionably justifies such an interference as might 
 redress the evil complained of, and secure the subjects of 
 third Powers against a repetition of it. But the interference 
 took place at the request of only one of the contending 
 parties, and that the party of revolted subjects ; and it is 
 edifying to observe with what scrupulous care the British 
 Minister for Foreign Affairs, of that time, justifies, as an 
 exception to general rules, the adoption of coercive measures 
 against Turkey. 
 
 " To accomplish a great good," says this admirable State 
 Paper {g), " to put an end to a great evil, pressing seriously 
 " upon the interests of his Majesty's own subjects, after 
 ** several previous attempts by advice and remonstrance, 
 " separate or combined, had failed, and at the solicitation of 
 " one of the contending parties, his Majesty acceded to a 
 " more direct and concerted interference in the affairs of 
 *^ Greece. The Treaty of London was signed; and when 
 ^^ proposals, made under it to both sides, and accepted by 
 
 (/) Sir J. Mackintoshes Speech on the Recognition of the Spanish 
 American States, vol. iii. p. 462, of his Works. 
 
 (ff) State Papers— Greece, 1826-1832, pp. 64, 55. London, 1835. 
 
INTERVENTION. — CIVIL WAR. 479 
 
 " the Greeks, had been rejected by the Turks, his Majesty 
 " proceeded, along with his Allies, to adopt measures of a 
 '^ coercive nature, calculated to give effect to those pro- 
 " posals. But, in this departure from the general rule 
 " which forbids other Powers to interfere in contests betwixt 
 " Sovereign and Subject, his Majesty strictly limited him- 
 " self to what he deemed the necessity of the case ; and in 
 " pursuing an object of policy, endeavoured to adhere, as 
 " much as possible, to the principles of National Law. 
 
 " The design of the Treaty was the pacification of the 
 " Levant ; but it is evident, both from the provisions of that 
 " Treaty, and from the language of the Protocol which pre- 
 " ceded it, as well as from the tone of every communication 
 " relating to the Greek question, which has been made by 
 " his Majesty's commands since the Congress of Verona, 
 *' that it was equally our design to accomplish this end by 
 " pacific means. It was but late, slowly and unwillingly, 
 " that we entertained the idea of any species of coercion ; 
 " and then only with such caution, and with such a reserva- 
 " tion of our right to look narrowly at each successive stage 
 " in that career, as were in themselves sufficiently indicative 
 " of the spirit in which we interposed. The conduct of the 
 " Allies is inexplicable upon any other ground than that 
 " which is here stated to have been its foundation. If the 
 " intention of three of the greatest Powers in Europe, to put 
 " an end to a manifest grievance, had not been controlled 
 " and modified by many weighty considerations of justice 
 " and policy, they would have pursued a far different course. 
 " They would not have waited six years before they carried 
 " their interposition beyond the limit of amicable remon- 
 " strance ; nor, having at length satisfied themselves that 
 " they must advance somewhat further for the execution of 
 " their design, would they have stipulated beforehand to 
 " pause upon every successive step, in order to give time for 
 " reflection and concession on the part of a Power whom 
 " they did not design to crush, or even to humble, but, if 
 " possible, to lead into the path of safety and repose. 
 
480 INTERNATIONAL LAW. 
 
 *' If they had not been restrained by such considerations, 
 " they would at once have put forth a strength irresistible 
 " by far greater empires ; they would have substituted 
 " dictation, backed by force, for advice and remonstrance ; 
 " and they would not have asked the consent of those to 
 " whom it was in their power to give law. But they felt, 
 " as we still feel, that this was a case surrounded with diffi- 
 " culties, of which the mere physical resistance of the contu- 
 " macious party was the least. They knew that hasty and 
 " violent measures might draw along with them evils worse 
 " than those which they meant to remedy. They knew too 
 " that the long continuance of extraordinary evils might 
 " justify an extraordinary interposition. Still they felt that 
 " they were bound to take care that the interposition should 
 '^ not be more than commensurate with the evil ; that it was 
 " neither politic nor just to risk the overthrow of an empire, 
 " for the chance of improving the condition of a part of its 
 " subjects ; and that the cessation of Piracy in the Levant 
 " would be dearly purchased by a general war in Europe." 
 
 The pacification of Greece and the Levant was the object 
 of the Treaty of 1827, contracted between Russia, England, 
 and France ; the object of it was not " to construct a State 
 " capable of balancing the Turkish power in Europe, and of 
 " carrying on the relations of peace and war upon a footing 
 " of equality with the Porte ; " this object, nevertheless, 
 might, after the rejection by Turkey of the compromise pro- 
 posed in that Treaty, have been partly intended and effected 
 by the subsequent Treaty of the 7th of May, 1832 (h). The 
 distinction between Intervention and Mediation is pointed 
 out in the happiest manner by Mr. Canning, in a passage of 
 his state paper upon the Pacification of Greece at the close 
 of the year 1824. " If" (he wrote) " the sovereignty of the 
 '' Turks were not to be absolutely restored, nor the inde- 
 " pendence of the Greek to be absolutely acknowledged (to 
 " propose either of which extremes would have been not to 
 
 (h) Papers, p. 155. 
 
INTERVENTION. — BALANCE OF POWER. 481 
 
 *' mediate, hut to take a decided part in the contest), there was 
 ** necessarily no other choice than to qualify in some mode 
 " and degree the sovereignty of the one and the indepen- 
 '^ dence of the other, and the mode and degree of that qua- 
 " lification seemed to constitute the question for inquiry 
 " and deliberation" (z). 
 
 CCCCII. This observation brings us to the considera- 
 tion of the Fourth Limitation of the general principle which 
 founds the Right of Intervention, — Avhich is, the right of 
 third Powers to watch over the preservation of the Balance 
 of Power among existing States, whether by preventing the 
 aggressions and conquests of any one Power, or by taking 
 care that, out of the new order of things produced by in- 
 ternal revolutions, no existing Power acquires an aggran- 
 disement that may menace the liberties of the rest of the 
 world {j). 
 
 This right, indeed, is the right of the State to do that 
 
 {i) Reply of Mr. Secretary Canning to a letter of M. Radios, relative 
 to the " Russian Me7noir on the Pacification of Greece^ — Vol. xii. of State 
 Papej-s (1824-25), p. 900. 
 
 Ij) Gunther, i. 345. 
 
 Martens, s. 121, a, b. 
 
 Ancillon iiber den Geist der Staatsverf. 820 u. s. w. 
 
 Klinkhammer^s Disp. Hist. Pol. de Belli propter Success. Regni Ilispan., 
 &c. (1829, Amstelodami), pp. 52-66. 
 
 De Gardens, Traite complet de Dipl. t. i. p. 257. 
 
 Foreign Quarterly Revieiv, vol. viii. (1831), vol. xiii. (1834). 
 
 Mackintoshes second Review of Burke's Letter on a Regicide Peace. 
 
 Ortolan, vol. ii., Du Domaine international (tit. iii. De VEquilihre 
 2Jolitique), contains, among other passages worthy of attentive perusal, an 
 elaborate review of the projects of Henry IV. and Sully to found a 
 Republique tres-ckrestienne, and thereby maintain a perpetual European 
 equilibrium — an idea which M. Ortolan thinks pervaded the minds of the 
 framers of the Treaty of Westphalia. — Gmtz, Ausgewdhlte Schriften, iv. i. 
 Fragmente aus der neuesten Geschichte des politischen Gleichgewichts. 
 
 Fenelon, OEuvres de, t. iii. p. 361, ed. 1835 : Examen de la Conscience 
 sur les Devoirs de la Royaute, in which work, written for the instruction 
 of the Duke of Burgundy, Mr. WJieaton remarks {Hist. p. 82) that the 
 principles of Intervention to maintain the balance of power are laid down 
 with accuracy and moderation. 
 
 Mahly, vol. ii. pp. 88, 107, 212. 
 VOL. I. II 
 
482 INTERNATIONAL LAW. 
 
 which Cicero (A), with so much eloquent reason, truly main- 
 tained was the innate right of every individual: it is the 
 Right of Self-Defence, which is as lawfully exercised in 
 preventing as in repelling attack (/). 
 
 How anxiously this right, " founded so much on common 
 " sense and obvious reasoning," was asserted and cherished 
 by the Greeks, is well known to all readers of Thucydides 
 and Xenophon, and above all of Demosthenes, whose elo- 
 quence was never more " resistless "(w) than when exerted 
 for the purpose of rousing his countrymen to adopt and act 
 upon this principle (w). 
 
 In the History of Rome the opportunities for the develop- 
 ment of this principle were fewer ; but the pages of Livy and 
 Polybius have recorded some remarkable instances of its 
 operation. The reflection of the latter historian upon the 
 conduct of Hiero, King of Syracuse, who, though an ally of 
 Rome, sent aid to Carthage, during the war of the Auxiliaries, 
 may claim a place even in a modern work upon International 
 Law. Hiero esteemed it necessary, Polybius tells us, " both 
 " in order to retain his dominions in Sicily, and to preserve 
 " the Roman friendship, that Carthage should be safe ; lest 
 
 (k) Pro Milone. 
 
 (J) " Ainsi quand un Etat voisin est injustement attaqud par un ennemi 
 puissant, qui menace de ropprimer, il n'est pas douteux que vous ne 
 deviez le faire. N'objectez point qu'il n'est pas permis a un souverain 
 d'exposer la vie de ses soldats pour le salut d'un stranger, avec qui il 
 n'aura contracts aucune alliance defensive, il peut lui-meme se trouver 
 dans le cas d'avoir besoin de secours; et, par consequent, mettre en 
 vigueur cet esprit d'assistance mutuelle, c'est travailler au salut de sa 
 propre nation." — Vattel, 1. ii. c. 1-4. 
 
 (»n) " Whose resistless eloquence 
 
 Shook the arsenal, and fulmin'd over Greece 
 To Macedon and Artaxerxes' throne." 
 
 Milton, Par. Beg. iv. 268-271. 
 (w) Among the passages, see kutu 4>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<pk (TTTiKt TO fxi) TOVTov taoai irdvTa KaraaTpk- 
 i^aaQai — «V lav iitv irtiariTtf Koiviovovg txrjTt Kai ruiv kiv^vvojv Kai tuiv 
 dvaXojfidTUVj k.t.X. 
 
INTERVENTION. — BALANCE OF POWER. 483 
 
 " by its fall the remaining Power should be able, without let 
 " or hindrance, to execute every purpose and undertaking. 
 " And here he acted with great wisdom and prudence ; for 
 " that is never, on any account, to be overlooked ; nor ought 
 " such a force ever to be thrown into one hand, as to incapa- 
 " citate the neighbouring States from defending their rights 
 " against it." 
 
 Most justly does Mr. Hume remark upon this passage, 
 " Here is the aim of modern politics pointed out in express 
 « terms " (o). 
 
 It was the natural tendency of the Feudal System intro- 
 duced into Europe after the fall of Home, to restrain each 
 State within its own boundaries (/>) ; 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<a," in his Glossarium, 418 
 
 State Papers, 251, 253, 261, 277, 281 (».) 
 
 States, Chap. I., 80. Different Kinds of, 
 Ghap.II., 93. Feudal, 119. Under Fe- 
 deral Union, Chap. III., 133. Retaining 
 individually the Management of their 
 external Relations, 135, 151. Whose 
 external Relations are managed by the 
 Supreme Federal Power, 151, 163. Ex- 
 . tinction of, 168. Changes in, 169. Its 
 Property capable of being alienated, and 
 of being subjected to OhUgations and 
 Services in Favour of another State, 328. 
 May voluntarily subject herself to the 
 same, 329. Renunciation of Territory by, 
 336. List of, forbidden to deliver up 
 Citizens to Foreign Powers, 442 {n,) 
 
 States, United, of North America, 33, 34. 
 The greatest Example of Federal Govern- 
 ment, 156. Fishing Disputes, 231. Nego- 
 tiations with England respecting Oregon 
 Boundary, 270. Claims upon Oregon 
 Territory, 291. Negotiations with Great 
 Britain relating to Suppression of Slave 
 Trade, 353. Contentions with Ditto on 
 Right of Visit, 354. United States v. 
 Nash, Case of, 460. Status of Slavery 
 abolished in 1865, 374 
 
 Statutes, List of, relating to Offences by 
 British Subjects in Foreign States. 389. 
 On the High Seas, 389. Out of England, 
 389 
 
 STATUTES EEFERRED TO. 
 
 27 Edw. III. 
 
 15 Rich. II. 
 
 28 Hen. VIII. 
 
 33 Hen. VIII. 
 
 10 & 11 Will. in. 
 
 9 Geo. III. 
 
 33 Geo. III. 
 
 38 Geo. III. 
 
 41 Geo. III. 
 
 42 Geo. IIL 
 
 43 Geo. in. 
 46 Geo. IIL 
 
 54 Geo. III. 
 
 55 Geo. III. 
 
 56 Geo. III. 
 
 58 Geo. III. 
 
 59 Geo. IIL 
 1 Geo. IV. 
 3 Geo. IV. 
 
 5 Geo. IV. 
 
 6 Geo. IV. 
 9 Geo. IV. 
 1 Will. IV. 
 
 , c. 13. 
 
 419 
 
 , c. 3. 
 
 389 
 
 c. 15. 390, 
 
 419, 420 
 
 c. 23. 
 
 390 
 
 c. 25. 
 
 390 
 
 c. 35. 
 
 236 
 
 c. 4. 
 
 260 
 
 c. 50, 77. 
 
 261 
 
 c. 24. 
 
 261 
 
 c. 93. 
 
 261 
 
 c. 155. 
 
 261 
 
 c. 54. 
 
 390 
 
 c. 155. 
 
 261 
 
 c. 54. 
 
 261 
 
 c. 86. 
 
 261 
 
 c. 96. 
 
 261 
 
 c. 75. 
 
 390 
 
 c. 105. 
 
 261 
 
 C.97. 
 
 261 
 
 c. 37. 
 
 261 
 
 C.49. 
 
 423 
 
 c. 31. 
 
 390 
 
 0.66. 
 
 461 
 
 298 
 390, 410, 422 
 395 
 458 
 459 
 395 
 421 
 459 
 359 
 261 
 420, 428 
 
 409, 462, 595 
 381, 546 
 
 410, 462, 596 
 
 582 
 
 2 & 3 Will. IV. c. 7L 
 4 & 5 Will. IV. c. 36. 
 6 & 7 Will. IV. 
 
 6 & 7 Vict. c. 75. 
 
 6 & 7 Vict. c. 76. 
 
 6 & 7 Vict. c. 94. 
 
 7 & 8 Vict. c. 2. 
 
 8 & 9 Vict. c. 120. 
 8 & 9 Vict. c. 122. 
 
 11 & 12 Vict. c. 20. 
 13 & 14 Vict. c. 26. 
 15 Vict. c. 26. 
 33 Vict. c. 14. 
 33 & 34 Vict. c. 52. 
 33 & 34 Vict, c. 90. 
 
 Story (Dr.), 59. Commentaries on the Con- 
 stitution of the United States, 158, 157, 
 158, 159, 179. Conflict of Laws, 373, 
 378 (w.), 386 {n.), 400, 404. Judgment in 
 United States v. Smith, 412, 440 {ii.). On 
 the Constitution, 460 {n.) 
 
 Stowell, Lord, 14, 20, 22, 32, 38, 39, 41, 
 42, 46, 55. His Judgments. The Place 
 they are entitled to hold among the Sources 
 of International Law, 57, 63, 64, 72, 86, 
 (w.), 174, 182 {n.), 192, 210, 223, 265 (w,), 
 270, 346, 348, 364, 400. The Prinz Fre- 
 derik, 402. Addressing Grand Jury on 
 Jurisdiction of the Admiralty of England, 
 421. Trial of William Codling, 421 
 
 St. Ildefonse, Treaty concluded at, illus- 
 trating national Acquisition by Gift, Sale, 
 and Exchange, 321 
 
 St. Lawrence, 205, 208 
 
 Suarez, 24 (w.), 25 (w.), 28, 66 (».), 178 {n.\ 
 296 {n.), 344, Prsef. 
 
 Straits. Chap. VIL, 224 
 
 Subject, Right of Jurisdiction over, 376, 
 379 
 
 Succession, a Means of National Acquisition, 
 324 
 
 Sulina Channel, 199 
 
 Sully, 484 («.) 
 
 Sweden. Sec Norway 
 
 Swiss Cantons, Confederation of, 151 
 
 T 
 
 Talbot, Lord, 65 
 
 Talleyrand, Prince, 39. Memoire raisonn6 
 
 as to acquisition of Saxony by Prussia, 
 
 327 {n.) 
 Tandy, Napper, arrested in Hamburg, 443 
 Tanzimat, 130 
 Tasso, 84 {n.) 
 Taunton's Reports, 70 {n.) 
 Taylor, 3 {n.\ 13 (w.), 18 {n.) 
 Temple, Sir William, 220 
 
INDEX. 
 
 643 
 
 Troplong, 19 (n.), 269 (w.), 294 (w.). Del'Infl. 
 du Christ, sur le Droit civil, 342 (w.) 
 
 Turkey, not represented at the Congress of 
 Vienna, 87. Consuls of Christian Powers 
 residing in, 398. See Porte. See Orders 
 
 Twiss, Kelations of the Duchies of Schleswig 
 andHolstein, 144 (w.), 146 (n.). Oregon 
 Eoundary, 287 (w.) 
 
 U 
 
 Ulpian, 31 (n.), 212 
 tJnivers, L' (Newspaper), 624 (n.) 
 Universitas, 187 
 I^e and Settlement, 272, 273 
 (^sucapio, 294. Distinction between, and 
 rreaties, General Divisions of, and Kemarks \/ Prsescriptio (Schmalzgrueber), 296 (w.) 
 upon, 48-52. Effect of upon GeneraL^ Utrecht, Treaty of, 25 (w.), 231. Interpreta- 
 
 Territory, national, consists of Water as 
 well as of Land, 188. Exchange of, 317. 
 Cessions of, 319. Gifts of, 319 
 
 Testamentary Disposition, a Mode of terri- 
 torial Acquisition, 326 
 
 Texas v. White, Case of, 156 
 
 Themistocles, 17 
 
 Things and Rights, 187 
 
 Thucydides, 16, 83 
 
 rimes, The, 446 
 
 rindall, Matthew, Essay concerning the 
 Laws of Nations and Rights of Sove- 
 reigns, 174 (n.), 428, 436 
 
 rittman, Die Strafrechtspflege in volker- 
 rechtlicher Rucksicht, 387, 441 (n.) 
 
 rordesillas, Treaty of, 272 
 
 International Law, 4^^,^^ 52. Of Paris, 
 1856, 48, 51, 92, 491, 609. Of Prague, 49. 
 Of Zurich, 60. Clayton-Bulwer Treaty, 
 61. Dallas-Clarendon, 51. Between Great 
 Britain and Honduras, 1859. And Nica- 
 ragua, 1860, 51, 250. Between Russia 
 and the Porte, 87, 92. Of London, 
 between Great Britain, France, and 
 Russia, 1863, 108. As to Neutrality of 
 Belgium, 1870, 115, 496. Relating to 
 the Germanic Confederation, 136. Of 
 Vienna, as to Cession of Sehleswig-Hol- 
 stein, 1864, 248. Of Prague, 1866, 149. 
 Prussia, Secret Treaty of, 1867, 150. Of 
 Reciprocity between Great Britain and 
 the United States, 1854, 208. As- to 
 Uruguay and Parana, 1858, 209. As to 
 Sound Dues, 1857, 216. Relating to 
 Isthmus of Central America, 244. Of 
 Partition, 1700, 316. Relating to Ex- 
 change of Territories, 117, 118. Secret, 
 between the French Republic and Spain, 
 320. Between England and France, 1 845, 
 Article in relation to Right of Visit, 354. 
 Relating to Commissioning Privateers, 
 1786, 426. Between France and Holland, 
 1662, 427. Between France and the 
 United States, 1778, 427. Between 
 United States and Prussia, 1785, 427. 
 Between Denmark and Genoa, 1789, 427. 
 Particular Provision in Treaties between 
 France and America, 428. With Den- 
 mark in 1660, relating to Extradition of 
 Regicides, 443. Relating to Balance of 
 Power, 486. As to Intervention on Re- 
 ligious Grounds, 518. Of Annexation of 
 Savoy and Nice, 1860, 506. Of Soledad, 
 1862, 507. Of Naturalization, between 
 Great Britain and the United States, 
 1870, 556 
 
 tion of the Language of, 275, 318. Be- 
 tween France and England in 1713, 331. 
 Between Spain and England, 331. In- 
 stances of Renunciations of Territory in, 
 336 
 
 Valin, Commentaries, 41, 64, 222 (w.), 
 235 (w.). OnPiracy,413(«.). Ordonnance 
 de la Marine, 427 
 
 Varro, De Lingua Latina, 491 
 
 Vattel, 5{n.), 3 (w.), 8, 11 (?i.), 13 (n.),22, 
 23 (n.), 29, 30 (n.), 32, 38 (n.), 62 (n.), 
 79 (n.), 80 (%.), 81 (w.), 82 (w.), 94 (n.), 
 168 (w.), 174, 190 (nn.), 191, 209 (».), 
 211 (w.), 212 (n.), 213 (n.), 239 (n.),252 
 (n.), 254, 258, 259 (n.), 260 (n.), 270 
 («.), 273, 274, 282{n.), 286 (;*.), 288 (n.), 
 293, 300 (n.), 301, 304 (n.), 310, 311, 
 315 (n.), 328 (n.), 329 (n.), 398, 409, 
 425, 440, 443, 470, 482, 514 
 
 Venice, ceded to Austria by Napoleon I. 
 Ceded to France, and conferred by her 
 upon Italy, 1866, 322 
 
 Versailles, Treaty of, 25 (n.) 
 
 Vienna, Treaty of, 25 (n.). Congress of, 
 39. Turkey not represented at, 87. An- 
 nexe, 138, 195. Treaty of, in 1864, 148. 
 Articles of, relating to Navigation of 
 Rivers, 199. Treaty of, in 1816, 332. 
 Congress of, in 1815, 336. Talleyrand's 
 Note to, 474. Conference of, 1855, 52& 
 
 Visigoths, Code of the, 392 
 
 Visit, Right of, 354 
 
 Voet, John, 28, 69, 70, 440 
 
 , Paul, 439 
 
 W 
 
 Wachsmuth, Jus Gentium quale obtinuit 
 apud Greecos, Praef. 
 
644 
 
 INDEX. 
 
 Waites, American State Papers, 34 (w.) 
 
 Wallace, 166, 287 
 
 Wallachia. See Moldavia 
 
 Waltershausen, 110 (».) 
 
 Ward, 21 (w.)- ^'^ of Nations, 85 (w.) 
 
 Warukonig, 9 {n.\ 62(72.). 75 (».), 264 (w.), 
 266 {n.\ 266 {n.), 337, 541 
 
 Warsaw, Duchy of, 94 
 
 Washington, Treaty of, 291 
 
 Circuit Kep. 385 
 
 Webster, Mr., 56, 233, 377 
 
 Wenck, Cod. J. G. 290 {n.\ 467 («•). 477 
 (w.), 478 (n.) 
 
 Westminster, Treaty of, 220 
 
 WestphVia, Treaty of, 24 (w.) 
 
 Wheaton-Dana,209 (m.).217, 234, 237, 348, 
 355, uo7, 409, 466, 507 
 
 Wheaton-Lawrence, 209 {n.), 217, 234, 251, 
 507 
 
 Wheaton's El^m. du Dr. inter. 44 (w.), 54 (w,), 
 61 (w.), 94 (w.), 95 (w.), 99 (w.), 162, 177, 
 204, 213, 273, 289, 290, 301, 310, 315, 
 377, 386, 395, 397, 398, 405, 409, 414, 
 425 
 
 Wheaton's Hist. 34 {n.), 39 {n.\ 52 (n.), 54 
 (w.), 56, 92 (w.), 120 (w.), 144 (^iw.), 151, 
 179 (n.), 190 (w.), 191, 198 (n.), 204 {nn.), 
 209 {n.), 219 {n.\ 221. 222, 225, 242 {n.), 
 263 (nw.), 305 (w.), 335 {n.), 353, 354, 
 377 («.), 404. Letter of Mr. Webster 
 to Lord Ashburton, 404 {n.\ 471 in.), 472 
 (w.), 486 
 
 Wheaton's Eep. Johnson v. Mackintosh, 
 281, 385, 412. The Santissima Trinidad, 
 
 401, 405. The Arrogante Barceloucs, 
 
 404. The Monte Allegro, 404 
 Wiequefort, M. de, L'Ambassadeur et t^es 
 
 Fonctions, 372, 398 
 William III., 223 
 Wiseman, Excellency of the Civil Law, 32 
 
 (w.), 33 (m.) 
 Witt, De, Grand Pensioner, 443 
 Wolff, 2 in.), 26, 28, 29. Jus. Nat. 293 {nX 
 
 Jus. Gent. 387 {n.) 
 Writers. See Commentators on Interna- 
 
 tional Law 
 Wynford, Lord, 35 (n.) 
 
 Yachts, as to their Exemption from Duties 
 397 
 
 Zacharia, Deutsches Staats- und Bundes- 
 recht, 133 {nn.), 136 {nn.\ 144 (w.), 14 
 {%.), 147 {nn.) 
 
 Zanzibar. See Orders 
 
 Zollverein, The, 167 
 
 Zouch, 3 {n.), 17 {n.), 259"(w.). De Judicio 
 inter Gentes, 378 {n.), 379 (w.) 
 
 Zurich, Treaty of, 50, 505 
 
 LOKDON : rnrNTi»n tit 
 
 BPOTTISWOODE AND CO., NKW-STBKKT BQIAKB 
 ABD FAULIAMUNT SIUITST 
 
OF 
 
 LAW WORKS 
 
 PUBLISHED BY 
 
 MESSES. BUTTERWOETH, 
 
 TO THE QUEEN'S MOST EXCELLENT MAJESTY 
 
 AND TO 
 
 H.R.H. THE PRINCE OF WALES. 
 
 ** Now for the Laws of England {if I shall speak my opinion of them 
 *' without partiality either to my profession or country), for the matter and 
 " nature of them, I hold them wise, just and moderate laws: they give to God, 
 " they give to Ccesar, they give to the subject what appertaineth. It is true 
 " they are as mixt as our language, compotmded of British, Saxon, Danish, 
 " Norman customs. And surely as our language is thereby so much the richer, 
 *' so our laws are likewise by that mixture the more complete." — Lord Bacon. 
 
 LONDON: 
 
 7, FLEET STREET, E.G. 
 
 1875. 
 
Jninex to ©atalogue. 
 
 Accounts, PAGE 
 
 SoUritM:*' . Coombs ... 20 
 Law of. Pulling ... 37 
 
 Actions at Law. 
 
 Kerr 16 
 
 Lush 12 
 
 Williams 32 
 
 Administration Bonds. 
 Chadwick 25 
 
 Admiralty, 
 
 Practice. Coote ... 9 
 Prize Lctw. Lushington 9 
 
 Advowsons. 
 
 Mirehouse 39 
 
 Aliens. Cutler 28 
 
 Arbitrations. Redman 31 
 
 Ai'l)itrations (Masters 
 and Workmen). 
 Lovesy 26 
 
 Articled Clerk. 
 
 Examination Journal 34 
 Handy Book. Mosely 20 
 Stuilent's Guide. 
 
 Benham 16 
 
 Attachment, 
 
 Foreign. Brandon ... 22 
 
 Awards. Redman ... 31 
 
 Banking. Grant ... 8 
 Keyser ... 38 
 
 Bankruptcy. 
 
 Bulley & Bund ... 26 
 Countif Courts. Davis 5 
 Robson 2.5 
 
 Bar. Pearce 36 
 
 Smith 33 
 
 Bar Examination 
 
 Journal 31 
 
 Belligerents. 
 
 Hamel 36 
 
 Phillimore 18 
 
 Bills of Exchange. 
 
 Grant 8 
 
 Bills of Sale. Hunt... 29 
 
 Blackstone. Stephen's 4 
 
 Blockade. Deane ... 37 
 
 Bookkeeping, Solicitors'. 
 Coombs 26 
 
 Boundaries. Hunt ... lo 
 
 Brokers. Keyser ... 38 
 
 Bnrgesses* Manual. 
 
 G aches 5 
 
 CaiTiers, 
 
 Inland. Powell ... 31 
 Railway. Shelford ... 24 
 
 Chamber Practice, 
 Common Law. 
 Parkinson 25 
 
 Chancery Practice. 
 
 Goldsmith 15 
 
 Hunter 1(» 
 
 Drafting. Lewis ... 15 
 
 Channel Islands. 
 
 Bowditch 37 
 
 LeCras 37 
 
 Charitable Trusts. 
 
 Tudor 17 
 
 Chart of Descents. 
 
 Fearne 38 
 
 Hindu of Inheritance 38 
 
 Church Seats. 
 
 Heales 13, 39 
 
 PAGE 
 
 Church Building. 
 
 
 Trower 27 
 
 39 
 
 Circumstantial Evi- 
 
 
 dence. Wills 
 
 27 
 
 Civil Law. 
 
 
 Tomkins and Jencken 17 
 
 Civil Service Exam. 
 
 
 (Indian). Cutler ... 
 
 36 
 
 Code, English LaM'. 
 
 
 Blaxland 
 
 38 
 
 Collieries. Bainbridge.. 
 
 7 
 
 Commentaries. 
 
 
 Phillimore's, Interna- 
 
 
 tional 
 
 18 
 
 Steplien's Blackstone's 
 
 4 
 
 Commercial, 
 
 
 Forms. Crabb 
 
 19 
 
 Law. Chitty 
 
 38 
 
 Treaties. Hertslet .. 
 
 27 
 
 Common Form Practice. 
 
 Coote 
 
 25 
 
 Common Law, 
 
 
 At Chambers. 
 
 
 Parkinson ... 
 
 25 
 
 Coats. 
 
 
 Gray 
 
 3G 
 
 Pleading. 
 
 
 Chitty, jun 
 
 21 
 
 Greening 
 
 37 
 
 Williams 
 
 32 
 
 Practice. 
 
 
 Dixon 
 
 12 
 
 Kerr 
 
 16 
 
 Lush 
 
 12 
 
 Companies, shelford . 
 
 7 
 
 Compensation, 
 
 
 Law of. 
 
 
 Ingram 
 
 28 
 
 Shelford .. 
 
 24 
 
 Consolidation Acts, 
 
 
 Shelford 
 
 7 
 
 Conspiracy. 
 
 
 Law of. Wright 
 
 29 
 
 Constitution. May ,. 
 
 6 
 
 Stephen 
 
 4 
 
 Constitutional History 
 
 -. 
 
 Fulton '. 
 
 4 
 
 Contracts, 
 
 
 Specific Performance. 
 
 
 Fry 
 
 13 
 
 Contributories. 
 
 
 Collier 
 
 5 
 
 ConA'cyancing, 
 
 
 Introduction to. 
 
 
 Lewis 
 
 15 
 
 Practice. 
 
 
 Barry 
 
 . 14 
 
 Rouse 
 
 11 
 
 Smith 
 
 29 
 
 Tudor 
 
 16 
 
 Forms. 
 
 
 Barry 
 
 14 
 
 Christie 
 
 19 
 
 Crabb 
 
 19 
 
 Kelly 
 
 6 
 
 Rouse 
 
 II 
 
 Shelford 
 
 20 
 
 Convictions (Summarj^), 
 
 Synopsis of. Oke .. 
 
 23 
 
 Forms. Oke 
 
 . 23 
 
 Co-operative Societies 
 
 . 
 
 Brabrook 
 
 11 
 
 Copyholds, 
 Enfranchisement. Rouse 20 < 
 Law of. Scriven ... 22 < 
 
 Cor])orations, 
 
 Municipal. Gaches ... .'> 
 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 
 <jras Companies Acts.. 29 
 (Guarantees. De Colyar 9 
 Highways. Glen so, 40 
 History, Constitutional. 
 
 Fulton 4 
 
 House of Lords, 
 
 Practice. May ... 6 
 
 Digested Index to Case.^. 
 
 Clark 14 
 
 Idiots. Phillips 13 
 
 Income Tax Laws. 
 
 Dowell 32 
 
 Indian Evidence. Field 33 
 Indian Penal Code. 
 
 Cutler and Griffin ... 33 
 Indian Statute Law. 
 
 Field 33 
 
 Industrial & Provident 
 
 Societies. Brabrook 11 
 Inns, Law of. Oke ... 23 
 Institutes of Public Law. 
 
 Nasmith 9 
 
 Intermediate Exami- 
 nation, 
 
 (hiide. Bedford ... 13 
 
 Jonnial 34 
 
 International Law. 
 
 Hamel 36 
 
 Phillimore IS 
 
 Jersey (Law of). 
 
 Bowditch 37 
 
 Le Cras 37 
 
 Joint Stock. 
 
 Banks. Grant ... s 
 
 Companies. Shelford 7 
 Judicature Act. Baxter 22 
 Chute 17 
 Jurisprudence. 
 
 Form of Law. Holland 30 
 Justice of Peace. Oke 23 
 Landlord and Tenant. 
 
 Fawcett 8 
 
 Law Dictionary. 
 
 Mozley & VVhiteley ... 14 
 Law and Equity, chute 17 
 Law Exam. Journal 34 
 Law Studies. 
 
 Mosely... 20 
 
 Smith 33 
 
 Stephen's Blackstone 4 
 Leading Cases, 
 
 Real Property. Tudor 16 
 
 Leases. Crabb 19 
 
 Rouse 11 
 
 Legacy Duties, shelford 20 
 
 Libel. Starkie 40 
 
 Licensing Laws. Oke... 23 
 Lord Mayor's Court. 
 
 Brandon 22 
 
 Lunacy. Phillips ... 13 
 
 Magisterial Law, 
 
 A<-ts. Davis 33 
 
 Practice. Oke ... 23 
 Forms. Oke 23 
 
 Maritime Warfare. 
 
 Deane 37 
 
 Haniel 36 
 
 ^Master and Servant, 
 
 Baylis 8 
 
 Davis 21 
 
 Master and Workmen. 
 
 Lovesy 26 
 
 ^Nrercantilc Accounts. 
 
 Pulling 37 
 
 Mercantile Law. 
 
 Chitty 38 
 
 Mines and Minerals. 
 
 Bainbridge 7 
 
 Mortgages. Fisher ... 40 
 Rouse ... 11 
 ^Municipal ^Manual. 
 
 Gaches 5 
 
 Naturalization. Cutler 28 
 Negligence. Saunders... 28 
 Neutrals. Phillimore... 18 
 Parliamentary. 
 
 Clifford & Stephens ... 13 
 
 Davis 22 
 
 May 6 
 
 Partnership. Dixon ... 12 
 Patents. Norman ... 36 
 Patent Cases. 
 
 Higgins 5 
 
 Petty Sessions. Oke... 23 
 Pews. Heales ... 13,39 
 Pleading, 
 
 Common Law. 
 Chitty, Jun. ... 21 
 Williams 32 
 
 Equity. Drewry ... 21 
 
 Lewis ... 15 
 
 Poor Law Orders ... 26 
 
 Poor Law Statutes ... 30 
 
 Precedents, 
 
 Conveyancing. Crabb 19 
 Rouse 11 
 Preliminary Examina- 
 tion Journal 35 
 
 P]inci]ial and Surety. 
 
 De Colyar ... \.. 9 
 Priority. Fisher ... 40 
 Private Bills. May ... 6 
 
 Privy Council Practice. 
 Admiralt/i. Coote ... 9 
 
 Prize Law. Lushington 9 
 
 Probate, 
 
 Practice. Coote ... 25 
 Forms. Chadwick ... 25 
 Duties. Shelford ... 20 
 
 Provident Societies. 
 
 Brabrook 11 
 
 Public Health. Glen... 30 
 
 Public Law (hhiglish). 
 Nasmith 9 
 
 Railways. Shelford ... 24 
 Compensation. Ingram 28 
 Carriers. Powell ... 31 
 
 PAGR 
 
 Real Property. 
 
 Seaborne ... 14- 
 
 Tudor 17 
 
 Chart. Fearne ... 3S 
 
 Referees' Court Practice. 
 Clifford & Stephens... 13 
 Registration. Davis ... 22 
 Religion. ChurchStState 39 
 Ritual. Bay ford ... 39 
 
 Bullock ... 39 
 
 Hamel 39 
 
 Phillimore ... 39 
 Roman Law. 
 
 Gains 30 
 
 Ortolan 10 
 
 Tomkins 30 
 
 Tomkins and Jencken 17 
 
 Salmon Fisheries. 
 
 /.(Kr of. Bund ... 12 
 Savings Baid^s. Grant 8 
 Sea Shore. Hunt ... 10 
 Servants. Zaw of. Baylis 5 
 Settlements, 
 
 Volantarii. Hunt ... 29 
 Sewers. Woolrych ... 21 
 Short Hand. Gumey... 37 
 Slander, starkie ... 40 
 Solicitors' Bookkeeping. 
 
 Coombs 26 
 
 Siwicific Performance. 
 
 Fry IS 
 
 Stamp Laws. Do well... 32 
 Standing Orders. May 6 
 Stock Exchange. KeyserSS 
 Succession Duty. 
 
 Shelford 20 
 
 Sumniarv Convictions. 
 
 Oke " 23 
 
 Suit in Equity. Hunter 10 
 
 Surety, 3^rincipal and. 
 De Colyar 9 
 
 Tenant, Landlord and. 
 
 Fawcett 8 
 
 Tithes. Schomberg ... 38 
 Torts. Law of. Undcrhill (> 
 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 
 
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 MR. SERJEANT STEPHEN'S NEW COMMENTARIES 
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 and carefully interwoven with the text." — 
 Solicitors Journal. . ,_,^,^, 
 
 thus comprising every alteration in the law 
 and practice of Parliament, and all material 
 precedents relating to public and private busi- 
 ness since the publication of the sixth edition. 
 AVe need make no comment upon the value of 
 the work. It is an accepted authority and is 
 undeniably the law of Parliament. It has been 
 brought up to the latest dale, andslmuld lie in 
 the hands of every one engaged in Parlia- 
 mentary life, whether as a lawyer or as a se- 
 nator." — Luw Times. 
 
 Underhill's Law of Torts or Wrongs. 
 
 Post 8v6., Ga'. cloth. 
 
 A SUMMARY OF THE LAW OF TORTS OR WRONGS 
 INDEPENDENT OF CONTRACT, for the use of Students and Prac- 
 titioners. ^ By Arthur Underhill, B.A., of Lincoln's Inn, Esq., Barrister 
 at Law. 
 
 " Mr. Underhill stutes that his chief aim has 
 been to write lor the student, but many who have 
 passed their pupilage and are now enjoying the 
 advantagesoi considerable practice, may consult 
 these pages with advantage. Mr. Underhill places 
 lietore his readers broad principlesor rules of law, 
 which he illustrates by cases laliiiig under theui, 
 so that they are placed before the niiud in a 
 uianuer most impressive. Exce))tions are not 
 omitted, and the rules are, when necessary, elu- 
 cidated by sub-vules. The plan is a good one, 
 and has been honestly carried out, and a good 
 index facilitates re tereuce.''—jMi<tc« oj'ihe Peace. 
 
 " Mr. Dnderhill's ability in makmg a clear 
 digest of the subject treated of in this volume is 
 conspicuous. Many works would have to be 
 consulted for the information here concisely 
 given, so that practitioners as well as students 
 will find it useful. "—iN'ea;^ oj the IVorld. 
 
 " Mr. Underhill, in his work, gives us an ex- 
 ample of haw clearly and concisely so diflicult 
 and intricate a branch of Lhw as that of Torts 
 can be set out. lie has compressed into a small 
 work a vast amount of information, and his bonk 
 IS so clearly written that it is easily comprehen- 
 sible. To the Law Student, for whom it is more 
 particularly written, it may be recommended 
 
 both for its simplicity and ZLCcnTacy."—Aloniiiig 
 Advettner. 
 
 " We strongly recommend the manual to stu- 
 dents of both branches of the profession."— iVe- 
 liminary Eramination Jorirnal. 
 
 " A work which will, we think, be found in 
 structive to tlie beginner, and a useful handy- 
 book for the practitioner in Local Courts."— 
 Puhlic Opinio?i. 
 
 " lie has set forth the elements of the law with 
 clearness and accuracy. Ihe little \*vjrk of 
 Mr. Underhill is inexpensive, and may be gene- 
 rally relied on."— jL(7?y Times. 
 
 *' A handybook of the law affecting wrongs in- 
 dependent of contract."— T/ifi Echo. 
 
 ■' Mr. Underhill has here supplied a want long 
 felt in legal treatises, and has entirely, by the 
 present excellent volume, superseded the anti- 
 quated work of Mr. Addison, which was totally 
 unfit for practical purposes."— 6Va«(/ff;'t/, 
 
 " 1 his is a very useful little book on the law of 
 Torts. The book is intended for ilie student wlio 
 desires to have i)rinciples before entering into 
 particulars, and we know no book on the subject 
 so well adapted for the purpose."- iaw Exami- 
 nation Ilei>orter. 
 
 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«/v<ai. 
 
LAW WORKS PUBLISHED BY 
 
 Fawcett's Law of Landlord and Tenant. 
 
 8vo., Us. cloth. 
 
 A COMPENDIUM ot the LAW of LANDLORD and 
 TENANT. By William Mitchell Fawcett, of Lincoln's Inn, Esq., 
 Barrister at Law. 
 
 enabled the author to put together in one place 
 the whole law on any particular branch ol' the 
 subject, and to avoid repetitions. Thus not only 
 is it easy to find what the author has to say on 
 any particular point, but when we have found a 
 reference to it in one i)lace, we may be satisfied 
 that we have found all the book contains upon 
 the point. In this respect, though probably from 
 its smaller size it must contain less information 
 than Woodfall. it will be found far more con- 
 venient for ordinary use than that treatise."— 
 Solicitors' Journal. 
 
 " He contents himself with a plain statement of 
 the existing law, prudently omitting all matters 
 of merely historical interest and topics collateral 
 to the special subjects. Above all, it has been 
 his purpose to state the law in the language of 
 the authorities, presenting the principles enun- 
 ciated in the very words of the judges. Another 
 excellent feature is a concise summary of the 
 efffcct of each enactment in the marginal note*. 
 It will be seen from this that the book is tho- 
 roughly practical, and, as such, will doubtless 
 find a favorable reception from the profession." 
 — Law Times. 
 
 " It never wanders from the point, and being 
 intended not for students of the law, liut for 
 lessors and lessees and their immediate advisers, 
 wisely avoids historical disquisitions, and uses 
 language as untechnical as the subject admits. 
 It may safely be assumed to contain information 
 on all the ordinary yuestions which either con- 
 tracting party may require to be answered."— £ar^ 
 Journal. 
 
 " The author has succeeded in compressing the 
 whole of his subject within the reasonable com- 
 pass of 373 pages. Jt may roughly be said of 
 iWr. Fawceti'swork, that it is statutory through- 
 out, in accordance with the predominant cha- 
 racter of the law at the present day ; and Mr. 
 fawcett takes advantage ot this characteristic of 
 modern law to impart to his compendium a de- 
 gree of authenticii]/ which greatly enhances its 
 value as a convenient medium of reference, for 
 he has stated the law in the very words of the 
 authorities. We have discovered plain utility to 
 be the aim and end of Mr. Tawcett's treatise."— 
 Law Magazine. 
 
 " The amount of information compressed into 
 the book is very large. The plan ot the book is 
 extremely good, and the arrangement adopted has 
 
 Grant's Bankers and Banking Companies. — Third Edit. 
 By R. A. Fisher. 
 
 8vo., 28s. cloth. 
 
 GRANT'S TREATISE ON THE LAW^ RELATING TO 
 BANKERS AND BANKING COMPANIES. Third Edition. With an 
 Appendix of the Statutes. By R. A. Fisher, Esq., Judge of County Courts. 
 
 Eight years sufficed to exhaust the second subject of this book, that they will in no re- 
 spect be disappointed; obsolete and immaterial 
 matter has been eliminated, and the present 
 edition presents the existing law of bankers 
 and banking companies as it at present exists," 
 — Justice uf the Peace. 
 
 "It is eight years since Mr. Fisher published 
 the second edition of this practical book, and it 
 now appears again re-edited by the same hand. 
 Its steady sale shows that the public for whom 
 it is written have recognized the kindness that 
 was meant them, and makes a more elaborate 
 recommendation superfluous. We must add, 
 however, that the additions to the work, and 
 the alterations in it which Mr. Fisher has 
 made, are, as far as we can judge, real im- 
 provements, and that he has not failed to follow 
 out the recent cases. The book used with care 
 will no doubt be of great practical service to 
 bankers and their legal advisers."— 5o/ict<or«' 
 Journal, 
 
 edition of this valuable and standard work, 
 we need only now notice the improvements 
 which have been made. We have once more 
 looked through the work, and recognize in it 
 the sterling merits which have acquired for it 
 the high position which it holds in standard 
 legal literature. Mr. Fisher has annotated all 
 the recent cases." — Law Times. 
 
 " Prior to the publication of Mr. Grant's 
 work on this subject, no treatise containing 
 the required information existed ; and, since 
 its appearance, such important alterations re- 
 specting banks and bankers have been intro- 
 duced, that the work needed in many parts 
 entire reconstruction and arrangement. The 
 last two editions have been entrusted to the 
 care of the gentleman whose name is attached 
 to the work. Mr. Fisher's name is in itself 
 a guarantee that his duties of editor have been 
 ably and conscientiously performed. In this 
 respect we can assure those interested in the 
 
 Baylis's Law of Domestic Servants. —By Monckton. 
 
 Foolscap 8vo., 2s. cloth. 
 THE RIGHTS, DUTIES and RELATIONS of DOMESTIC 
 SERVANTS and their MASTERS AND MISTRESSES. With a short 
 Account of the Servants' Institutions, &c. and their advantages. By 
 T. Henry Baylis, M.A., of Brasenose College, Oxford, Barrister at Law 
 of the Inner Temple. Fourth Edition, with considerable Additions, by 
 Edward P. Monckton, Esq., B.A., of Trinity College, Cambridge, 
 Barrister at Law of the Inner Temple. 
 
 Mr. Monckton has edited a fourth edition of 
 
 Mr. Baylis's little work on the Kights, Duties 
 and delations of Domestic Servants and their 
 ISIasters and Mistresses. It has evidently found 
 .great favour with the public, and is an excellent 
 manual of the subject of which it treats."— //«» 
 Times. 
 
 " This little work thoroughly deserves the 
 saccess it has gained. It contains in a small 
 compass the law on the important subject to 
 
 which it relates, and, a somewhat unusual fea- 
 ture in a law book, it also affords much sensible 
 advice, not of a strictly legal kind, both to 
 servants and their employers. There are few 
 solicitors who have not from time to time to 
 advise employers on their difficulties with their 
 domestic servants. This volume will be found 
 a convenient handbook to the leading authorities 
 on the subject." — Solicitors' Journal. 
 
MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 9 
 
 De Colyar's Law of Guarantees. 
 
 8vo., 145. cloth. 
 
 A TREATISE ON THE LAW OF GUARANTEES AND 
 OF. PRINCIPAL AND SURETY. By Henry A. de Colyar, of the 
 Middle Temple, Esq., Barrister at Law. 
 
 " We may add that ail who have felt the want whole work displays great care in its produc- 
 
 will feel grateful for the manner in which it tion; it is clear in its statements of the law, 
 
 has been supplied by the author of the volume andthe result of the many authorities collected 
 
 before us. He has so treated the subject that, is stated with an intelligent appreciation of the 
 
 after careful examination, we are constrained subject in hand."— Justice of the Peace. 
 
 to commend his book alike for its fulness and "This book has been compiled with very 
 
 for its brevity. The result is a volume every considerable care and pains, and we must speak 
 
 practitioner should place upon his shelves, highly of the praiseworthy diligence and as- 
 
 and which he cannot consult without advan- siduity with wliich the author has endeavoured 
 
 tage when settling a form or giving an opinion to reason out the subject. This treatise will 
 
 upon questions between guarantor and gua- prove useful as a manual on a subject not 
 
 rantee. Mr. Colyar's work contains internal liitlierto fully treated of." — Solicitors' Journal. 
 
 evidence that he is quite at home with his " The volume before us is a very clear and 
 
 subject. His book has the great merit of trustworthy statement of the present bearing 
 
 thoroughness. Hence its present value, and and scope of the law on all such questions." — 
 
 lience we venture to predict will be its enduring Standard. 
 
 reputation." — Law Times. " So far as we can judge, Mr. De Colyar has 
 
 "Having regard to the importance of the done his work very thoroughly indeed, and 
 
 subject it is a matter of surprise that so little the treatise that he has produced is one likely 
 
 has hitherto been written upon it. ' Chitty on to be of great \a.\ne."—Morni7ig Advertiser. 
 
 Contracts ' and ' Roscoe's Nisi Prius' contain " The book is clearly written, and the author 
 
 chapters on the law of guarantee, but no appears to have expended upon it much labour 
 
 modern text book appears to have been solely and thought. It is, altogether, an admirable 
 
 devoted to that portion of the law which has text book, and its lucidity deserves to be 
 
 now been taken up by Mr. De Colyar. The imitated by the writers of law books." — Echo. 
 
 Coote's Admiralty Practice. — Second Edition. 
 
 8vo., 16.9. cloth. 
 
 THE PRACTICE of the HIGH COURT of ADMIRALTY 
 of ENGLAND : also the Practice of the Judicial Committee of Her 
 Majesty's Most Honorable Privy Council in Admiralty Appeals, with Forms 
 and Bills of Costs. By Henry Charles Coote, F.S.A., one of the Ex- 
 aminers of the High Court of Admiralty, Author of " The Practice of the 
 Court of Probate," &c. Second Edition, almost entirely re-written, with a 
 Supplement giving the County Courts Jurisdiction and Practice in Admiralty^ 
 the Act of 1868, Rules, Orders, &c. 
 
 *** Tliis work contains every Common Form in use by the Practitioner in Admiralty, as well as every 
 description of Bill of Costs in that Court, a feature possessed by no ot/ier work oh the Practice in 
 Admiralty. 
 
 Nasmith's Institutes of English Public Law. 
 
 Post 8vo., 12s. cloth. 
 
 THE INSTITUTES of ENGLISH PUBLIC LAW, embracing 
 an Outline of General Jurisprudence, the Development of the British Consti- 
 tution, Public International Law, and the Public Municipal Law of England. 
 By David Nasmith, Esq., LL.B.. of the Middle Temple, Barrister at Law, 
 Author of " The Chronometrical Chart of the History of England," &c. ; 
 Joint Translator of Ortolan's " History of Roman Law." 
 
 "We believe the plan of the hook is the of the little hooks which have recently ap- 
 right one. We have only to add that we know peared as professed outlines of English law." 
 ot no hook which, in our opinion, might more — Justice of the Peace. 
 
 fitly, or perhaps so fitly, he placed in the " Mr. Nasmith's hook is likely to attract 
 
 hands of a beginner in the study of law." — the attention it deserves. It is the careful 
 Lair Magazine. compilation of an accomplished scholar, and 
 
 "We think we are right in saying that of a perfect master of his work." — Morning ^ 
 Mr. Nasmith's is the best and most useful Post. 
 
 Lushington's Naval Prize Law. 
 
 Royal 8vo., 10s. Qd. cloth. 
 
 A MANUAL of NAVAL PRIZE LAW, By Godfrey 
 LusHiNGTON, of the Inner Temple, Esq., Barrister at Law. 
 
10 
 
 LAW WORKS PUBLISHED BY 
 
 Hunter's Suit in Equity. — Sixth Edition. 
 
 Post 8vo., 12.S. cloth. 
 
 AN ELEMENTARY VIEW of the PROCEEDINGS in a 
 SUIT in EQUITY. With an Appendix of Forms. By Sylvester 
 J. Hunter, B.A., of Lincohi's Inn, Barrister at Law. Sixth Edition. By 
 G. W. Law'rance, M.A., of Lincohi's Inn, Barrister at Law. 
 
 "This book is so very well known, and hns 
 proved so extremely useful to law students nnd 
 practitioners, that we should only repeal what is 
 laniiliar if we said anything in its praise. Edition 
 after edition has been issued as changes in the 
 law have necessitated it, and Mr. Lawrnnce now 
 sends the work forth aimotated with all recent 
 oases requiring notice to illustrate the text."— 
 
 "There can be no better test of the value of 
 this book than the fact that the sixth edition is 
 now before the public. The first was published 
 in 1858, so that it has en.ioyed the good fortune 
 falling to very tew legal works of passingthrouch 
 six editions in fifteen years. The fault whichis 
 almost inevitable as a book advances in editions, 
 of quoting too many decisions, has been success- 
 fully avoided, so that a student will find this 
 edition as suitable to his wants as was the first 
 edition."— Law Magazine. 
 
 '* What greatertestiniony to thevalneof abook 
 can we put forward than the bare fact that in 
 
 fifteen years it has run through six editions, ami 
 that only two years and some few months have 
 elapsed between the publications of the last two 
 editions? ' Hunter's Suit in Equity' is a work 
 that every stuiient for the Chancery bar must 
 read, and its popularity is therefore readily ex- 
 I)lained. The new edition contains such altera - 
 lions in the text as have been rendered necessary 
 by tlie Court of Chancery I'unds Act, 1872. and 
 the rules and orders thereunder. The editor 
 further states that the whole work has been care- 
 fully revised, proper attention being paid to the 
 decisions of the court since the appearance of the 
 fifth edition."— //«» Journal. 
 
 '' We have so often noticed previous editions 
 of this useful work that it anpears to be only 
 necessary to say of this edition that many 
 recent decisions have been noted, and the text 
 has been adapted to the alterations iu practice 
 and procedure introduced by the Court of 
 Chancery I'unds Act, IQ}^."— Solicitors' Journal. 
 
 Hunt s Boundaries, Fences and Foreshores. — 2nd Edit. 
 
 Post 8vo., 12s. cloth. 
 
 A TREATISE on the LAW relating to BOUNDARIES and 
 FENCES and to the Rights of Property on the Sea Shore and in the Beds 
 of PabHc Rivers and other Waters. Second Edition. By Arthur Joseph 
 Hunt, Esq., of the Inner Temple, Barrister at Law. 
 
 " It speaks well for this book that it has so 
 soon passed into a second edition. That its 
 utility has been appreciated is shown by its 
 success. Mr. Hunt has availed himself of the 
 opportunity of a second edition to note up all 
 the cases to this time, and to extend consider- 
 ably some of the chapters, especially that which 
 treats of rights of i)roperiy on the sea shore and 
 the subjects of sea wails and commissions of 
 sewers."— i^aiy Times. 
 
 " There are few more fertile sources of litiga- 
 tion than those dealt with in Mr. Hunt's valu- 
 able book. It is sufficient here to say that the 
 volume ought to have a larger circulation than 
 ordinarily belongs to law books, that it ought 
 to be found in every country gentleman'slibrary, 
 that the cases are brought down to the latest 
 date, and that it is carefully prepared, clearly 
 
 Ortolan's Roman Law, translated by Prichard & Nasmith. 
 
 Svo., 285. cloth. 
 
 THE HISTORY of ROMAN LAW, from the Text of Ortolan's 
 Histoire de la Legislation Romaine et Generalisation du Droit (Edition of 
 1870). Translated, with the Author's permission, and Supplemented by a 
 Chronometrical Chart of Roman History. By Iltudus T. Prichard, Esq., 
 F.S.S., and David Nasmith, LL.B., Barristers at Law. 
 
 written, and well edited." — i«w Magasine. 
 
 " Mr. Hunt chose a good subject for a sei)a- 
 rate treatise on Boundaries and Fences and 
 Rights to the Seashore, and we are not sur- 
 prised to find that a second edition of his book 
 has been called for. The present edition con- 
 tains much new matter. The chapter especially 
 which treats on rights of property on the 
 seashore, has been greatly extended. Ad- 
 ditions have been also made to the chapters 
 relating to the fencing of the propertj' of mine 
 owners and railway companies. All the cases 
 which have been decided since the work first 
 appeared have been introduced in their proper 
 jilaces. Thus it will be seen this new edition 
 has a considerably enhanced va.\\ie."— Solicitors' 
 Journal. 
 
 "We know of no work. which, in our opinion, 
 exhibits so perfect a model of what a textbook 
 ought to be. of the translation before us, it is 
 enough to say, that it is a faithful representation 
 of the original."— X.aa; Magazirie. 
 
 ** This translation, from its great merit, de- 
 serves a warm reception from all who desire to 
 be acquainted with the history and elements of 
 Roman law, or have its interests as a necessary 
 part of sound legal education at heart. With re- 
 gard to that great work it is enough to say, that 
 English writers have been continually in the 
 habit of doing piecemeal what Messrs. Prichard 
 and N asmith have done wholesale. H itherto we 
 have had but gold-dust from the mine; now we 
 are fortunate in obtaininga nugget. Mr. Nasmitli 
 is already known as the designer of a chart of 
 the history of England, which has been generally 
 
 approved, and bidsfairly for extensive adoption." 
 — La2ii Journal. 
 
 " We are extremely glad to welcome the ap- 
 pearance of a translation of any of the works of 
 M. Ortolan, and the history and generalization 
 of Koman law, which are now presented to us 
 in English, are perhaps the most useful books 
 that could be offered at the present lime to stu- 
 dents of the Homan law. The utility of Roman 
 law, as an instrument of legal education, is now 
 generally admitted. The English of the book is 
 unusually free from foreign idioms which so often 
 disfigure translations. The book itself we strongly 
 recommend to all who are interested m Roman 
 law, jurisprudence or history, and who are not 
 sufficiently familiar with French, to be able to 
 read the original with ease."— Soliciion'Jour?ial. 
 
MESSRS. BUTTERWORTH, 
 
 FLEET STREET, E.G. 11 
 
 -O 
 
 Rouse's Conveyancer. — 3rd Edit, with Supplement. 
 
 Two vols. 8vo., 305. cloth. 
 
 The PRACTICAL CONVEYANCER, giving, in a mode com- 
 bining- facility of reference with general utility, upwards of Four Hundred 
 Precedents of Conveyances, Mortgages and Leases, Settlements, and Mis- 
 cellaneous Forms, with (not in previous editions) the Law and numerous 
 Outline Forms and Clauses of Wills and Abstracts of Statutes affecting 
 Real Property, Conveyancing Memoranda, &c. By Rolla Rouse, Esq., of 
 the Middle Temple, Barrister at Law, Author of **The Practical Man,^^ &c. 
 Third Edition, greatly enlarged. With a Supplement, giving Abstracts of 
 the Statutory Provisions affecting the Practice in Conveyancing ; and the 
 requisite Alterations in Forms, with some new Forms ; and including a full 
 Abstract in numbered Clauses of the Stamp Act, 1870. 
 
 The Supplement separately, price \s. Q>d. 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.<S.).— " Sir 
 Robert Phillimore, the present Queen's Advocate, and author of the most comprehensive and 
 systematic ' Commentary on International Law ' that England has produced." 
 
 "The authority of this work is admittedly 
 great, and the learning and ability displayed 
 in its preparation have been recognized by 
 writers on public law both on the Continent of 
 Europe and in the United States. With this 
 necessarily imperfect sketch we must conclude 
 our notice of the iirst volume of a work which 
 forms an important contribution to the litera- 
 ture of public law. Thebook is of great utility, 
 and one which should find a place in the library 
 of every civilian." — Law Magazine. 
 
 "We cordially welcome a new edition of 
 vol. 1. It is a work that ought to be studied 
 by every educated man, and which is of con- 
 stant use to the public writer and statesman. 
 We wish, indeed, that our public writers would 
 read it more abundantly than they have done, 
 as they would then avoid serious errors in dis- 
 cussing foreign questions. Any general criti- 
 cism of a book which has been received as a 
 standard work would be superfluous ; but we 
 may remark, that whilst Sir Robert strictly ad - 
 heres to the canons of legal authorship," and 
 never gives a statement without an authority 
 or offers a conclusion which is not manifestly 
 deducible from established facts or authorita- 
 tive utterances, yet so lucid is his style, we had 
 almost said so popular, so clear is the enunci- 
 ation of principles, so graphic the historical 
 portions, that the book may be read Avith plea- 
 sure as well as profit. It will not be out of 
 place to further remark, that the arrangement 
 is excellent, the table of contents, the list of 
 authorities are complete, and, therefore, these 
 Commentaries are singularly handy for refer- 
 ence. Altogether this work is a witness to the 
 zeal, industry and ability of Sir R. Phillimore. 
 It will not only be read at home, but also in the 
 United States, and it cannot fail to smooth the 
 way for the thorough international understand- 
 ing between England and America that the true 
 men of both countries so ardently desire." — 
 Law Journal. 
 
 " It is the most complete repository of mat- 
 ters bearing upon international law that we 
 have in the language. We need not repeat 
 the commendations of the text itself as a 
 treatise or series of treatises which this journal 
 expressed upon the appearance of the two 
 tirst volumes. The reputation of the Author 
 is too well established and too widaly known. 
 "We content ourselves with testifying to the 
 fulness and thoroughness of the work as a 
 compilation after an inspection of the three 
 volumes (second edition)." — Boston {United 
 JSt'ates) Daily Advertiser. 
 
 " Sir Robert Phillimore may well be proud 
 of this work as a lasting record of his ability, 
 learning and his industry. No one, unless he 
 is a man of talent, can venture to deal with 
 such a difficult and involved subject as inter- 
 national law, and only an author of extensive 
 reading and untiring industry can deal with 
 it as exhaustively as Sir Robert has done. The 
 
 development of commerce has made inter- 
 national relations more intimate. It follows 
 that international law will be more studied, 
 not only by lawyers, but also by laymen, who 
 take part in public life, and whatever other 
 books the English lawyer or statesman may 
 use, he will, of course, include Phillimore's 
 Commentaries in his list. Having read the 
 work carefully and critically, we are able to 
 highly recommend it. Usually when such a 
 work reaches a second edition critical com- 
 mendation is superfluous, but the present is 
 an exceptional case, because Phillimore's Com- 
 mentaries will be of the greatest use to many 
 non-professional readers who, as public men 
 and public writers, find it necessary to study 
 internationallaw. It is in itself a well digested 
 body of laws." — Law Journal (second notice). 
 
 " We have within a short period briefly 
 noticed the previous volumes of the important 
 work of which the fourth volume is now before 
 us. We have more than once recognized the 
 ability and profound research which the learned 
 author has brought to bear upon the subject, 
 but this last volume strikes us as perhaps the 
 most able and lucid, and, in addition to these 
 merits, it deals with a division of international 
 jurisprudence which is of very great interest, 
 namely, private international law or comity. 
 The issue of a second edition proves that it 
 has attained a position of autliority and is 
 favourably received by international jurists. 
 We have no grounds for impugning its accu- 
 racy, and as a compilation it must receive our 
 acknowledgment that it is able and learned." 
 — Law Times. 
 
 " The latest arrivals bring us Vol. 4 of this 
 great work : it is the close of the second edition 
 begun a few years ago. Sir Robert Phillimore 
 has one great advantage over new commenta- 
 tors on International Law, in that he is and 
 has always been a working publicist, judge and 
 parliamentarian and not a mere student of the 
 closet. It is his life long habit to look at 
 things in a practical way in the concrete and 
 to judge of propositions by their adaptation 
 tried or probable to the working world of 
 public transactions. The reputation and 
 authority of Dr. Phillimore on this side of 
 the water are too well known and established 
 to require any general commendation of this 
 work. It is enough to recognize the fact that 
 private international law is becoming of more 
 and more importance with the vastly increased 
 opportunities for private dealings between 
 citizens or inhabitants of different nationalities 
 and to changings of domicil and habitancy, 
 and to express gratitude that the learned, 
 experienced and thorough commentator has 
 made the latest contribution towards peace 
 and goodunderstandingamongcivilizedmen." 
 —Boston (United States) Daily Advertiser, Dec. 
 3rd, 1874 (second notice). 
 
MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 19 
 
 Christie's Crabb's Conveyancing.— Fifth Edit, by Shelford. 
 
 Two vols, royal 8vo., 81. cloth. 
 
 CRABB'S COMPLETE SERIES of PRECEDENTS in 
 CONVEYANCING and of COMMON and COMMERCIAL FORMS 
 
 in Alphabetical Order, adapted to the Present State of the Law and the 
 Practice of Conveyancing ; with copious Prefaces, Observations and Notes 
 on the several Deeds. By J. T. Christie, Esq., Barrister-at-Law. Tlie 
 Fifth Edition, with numerous Corrections and Additions, by Leonard 
 Shelford, Esq., of the Middle Temple, Barrister-at-Law. 
 
 *** This Work, which embraces both the Principles and Practice of Conveyancing, contains likewise 
 every description of Instrument tcanted for Commerxial Purposes. 
 
 General Table of Heads of Prefaces and Forms. 
 
 Abstracts. — Accounts. — Acknowledgments. — Acquittances. — Admittances. — Affidavits, Affir- 
 mations or Declarations. — Agreements: to relinquish Business: to Guarantee: for a 
 Lease: before Marriage: for a Partition: between Principal and Agent: for the Sale and 
 Purchase of Estates: for Sale of Copyhold Estates: for* Sale of Leaseholds: for Sale of 
 .an Advowson. — Annuity: secured on Copyholds. — Annuities: Assigments of. — Appoint- 
 ments: of Guardians. — Apportionment. — Apprenticeship: to the Sea Service: to an 
 Attorney : Assignment of. — Arbitration : Award. — Assignments : Bonds : Leases: Patents : 
 Pews : Policies of Insurance : Reversionary Interests. — Attestations.— Attornments. — 
 Auctions: Particulars of Sale. — Bargains and Sales: of Timber. — Bills of Sale of Goods. 
 — Bonds: Administration: Receiver pending Suit: Post Obit: Stamps on. — Certificates. 
 — Composition: Conveyances in Trust for Creditors.— Conditions: of Sale. — Confirmations. 
 — Consents. — Copartnership: Dissolution of Copartnership.— Covenants: Stamps on: for 
 Production of Title Deeds. — Declarations. — Deeds: I. Nature of Deeds in General: II. 
 Requisites of a Deed: III. Formal parts of Deeds: IV. Where a Deed is necessary or 
 otherwise: V. Construction of Deeds: VI. Avoiding of Deeds: VII. Proof of Deeds: 
 VIII. Admission of Parol Evidence as to Deeds: IX. Possession of Deeds : X. Stamp 
 Duty on Deeds. — Defeasances. — Demises — Deputation. — Disclaimers. — Disentailing Deeds. 
 — Distress : Notices of. — Dower. — Enfranchisements. — Exchanges. — Feoff'ments. — Further 
 Charges. — Gifts.— Grants.— Grants of Way or Road.— Indemnities.— Leases : I. Nature 
 of Leases in General: II. Requisites to a Lease: III. Parts of a Lease: IV. Incidents to 
 a Lease : V. Stamps on Leases. — Letters of Credit. — Licences. — Mortgages : of Copyholds : 
 of Leaseholds : Transfer of: Stamp Duty on. — Notes, Orders, Warrants, &c. — Notices: to 
 Quit. — Partition. — Powers : of Attorney. — Presentation. — Purchase Deeds : Conveyance of 
 Copyholds: Assignments of Leaseholds: Stamps on. — Recitals. — Releases or Conveyances: 
 or Discharges.— Renunciations or Disclaimers. — Resignations. — Revocations. — Separation. 
 — Settlements: Stamp Duty on.— Shipping : Bills of Lading: Bills of Sale: Bottomry 
 and Respondentia Bonds : Charter Parties.— Surrenders. — Wills: 1. Definition of Will and 
 Codicil : 2. To what Wills the Act 7 Will. 4 & I Vict. c. 26 does not apply: 3. What may 
 be disposed of by Will : 4. Of the capacity of Persons to make Wills : 5. Who may or may 
 not be Devisees ; 6. Execution of Wills : 7. Publication of Wills: 8. Revocation of Wills : 
 9. Lapse of Devises and Bequests: 10. Provisions and Clauses in Wills: 11. Construction 
 of Wills. 
 
 From the Law Times. the experienced draftsman. Mr. Shelford has 
 
 " The preparation of it could not have been con- proved himself in this task to be not unworthy of 
 
 fided to more able hands than those of Mr. Shel- his former reputation. To those familiar with his 
 
 Jbrd.the veteran authority on real property law. otherworksit will be a sufficient recommendation 
 
 With the industry that distinguishes him he has of this." 
 done ample justice to his task. In carefulness we 
 
 have in him a second Crabb, in erudition Crabb's From Ihe Law Magazine and Review. 
 superior ; and the result is a work of which the " To this important part of his duty— the remo- 
 original author would have been proud, could it delling and perfecting of the Forms— even with 
 have appeared under his own auspices. It is not the examination which we have already been able 
 a book to be quuted, nor indeed could its merits be to .afford this work, we are able to affirm, that the 
 exhibited by quotation. It is essentially abook ot learned editor has been eminently successful and 
 uractice, which can only be described in rude out- efiecied valuable improvements." 
 line and dismissed with applause, and a recom- 
 mendation of it to the notice of those for whose From the Law Chronicle. 
 service it has been so laboriously compiled." " It possessesone distinctive feature in devoting 
 TT a/ c 7- -J . T , more attention than usual in such works to forms 
 irom the Solicitors Journal. of a commercial nature. We are satisfied from 
 " The collection of precedents contained in these an examination of the present with the immediately 
 two volumes are all that could be desired. They preceding edition that Mr. Shelford has very con- 
 are particularly well adapted for Solicitors, being siderably improved the character of the work, 
 of a really practical character. They are more- both in the prefaces and in the forms. On the 
 over free from the useless repetitions of common whole the two volumes of Crabb's Precedents, as 
 forms that so much increase the bulk and expense edited by Mr. Leonard Shelford, will be found 
 of somecollectionsthat wecould name. Weknow extremely useful in a solicitor's office, presenting' 
 not of any collection of conveyancing precedents a large amount of real property learning, with 
 that would make it so possible for a tyro to put very numerous precedents: indeed we knowof no 
 together a presentable draft at an exigency, or booksojnstly entitled to the appellation of* handy' 
 which are more handy in every re.spect, even for as the fifth edition of Mr. Crabb's Precedents." 
 
20 LAW WORKS PUBLISHED BY 
 
 Mosely's Articled Clerks' Handy-Book. 
 
 12mo., 7s. cloth. 
 
 A PRACTICAL HANDY-BOOK of ELEMENTARY LAW, 
 
 designed for the use of Articled Clerks, •with a Course of Study and Hints on 
 Reading for the Intermediate and Final Examinations. By M. S. Mosely, 
 Solicitor, Clifford's Inn Prizeman, M. T. 18G7. 
 
 " This useful little book is intended for the use " There are few who read this book with care 
 of articled clerks during the i>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' 
 
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 Smith's Practice of Conveyancing. 
 
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 AN ELEMENTARY VIEW of the PRACTICE of CON- 
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30 LAW WORKS PUBLISHED BY 
 
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 The LAW of HIGHWAYS: comprising the Highway Acts 
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 THE LAW relating to PUBLIC HEALTH and LOCAT> 
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 Part I. royal 8vo. (to be completed in Tliree Parts) 12s. cloth. 
 
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MESSRS. BUTTERWORTH, 7, FLEET STREET, E.G. 31 
 
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 THE LAW OF INLAND CARRIERS, especially as regu- 
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 at Law, Author of " Principles and Practice of the Law of Evidence." 
 Second Edition, almost re-written. 
 
 " Mr.Powell'swritingissinffularlyprecise and it aspires to become, the text book on the Law of 
 
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 attest. It will be seen, from our outline of the Traffic Act, 1856, are quite new, and the recent 
 
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 treated, and that it is entitled to be, that which analyzed in lucid language."— Zazt' Magazint , 
 
32 LAW WORKS PUBLISHED BY 
 
 DowelFs Income Tax Laws. 
 
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 THE INCOME TAX LAWS at present in force in the United King- 
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 " Only men thoroughly conversant with the work to our readers as being well done in every 
 
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 heavy labour. To commissioners and all con- Stamp duties; and they will also find tha 
 
 cerned in the working of the Income Tax !Mr. Act of 1870 set out completely and clearly set 
 
 Dowell's book will be of great value." — Law before them in a good bold type, easy of re- 
 
 Journal. ference and supported in its utility by a good 
 
 " We cannot doubt that the work will prove index." — Laic Magazine. 
 
 of much service to persons engaged in the " Mr. Dowell has collected and accompanied 
 
 administration of the Income Tax laws, and to with notes of reference and decided cases all 
 
 tlie practitioner on the points which frequently the Statutes directly or indirectly bearing 
 
 ;irise in reference to those law^."— Solicitors' upon this subject. A full and well-constructed. 
 
 Joui-nal. index completes the volume. Mr. Dowell's 
 
 "A collection of the Income Tax Acts made official position eminently fits him for the 
 
 easy of reference by a copious index. The work he has undertaken, and his history of 
 
 acts are connected together by cross-references, the Stamp Laws shows how carefully and con- 
 
 and for practical purposes the compilation scientiously he performs what he undertakes."' 
 
 must prove very useful." — Laic Times. — Justice of the Peace. 
 
 "We can honestly commend Mr. Dowell's 
 
 Doweirs Stamp Duties and Stamp Laws. 
 
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 A HISTORY and EXPLANATION of the STAMP DUTIES, 
 
 from their commencement to the present time, the past and the present State 
 of the Stamp Laws, the System and the Administration of the Tax, Observa- 
 tions on the Stamp Duties in Foreign Countries ; the Stamp Laws at 
 present in force in the United Kingdom ; with Notes, Appendices and a 
 copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant 
 Solicitor of Inland Revenue. 
 
 *' This is a work of some power. The author to carry out practical details will pay a well 
 
 is evidently master of his subject. The style of merited tribute to the industry which places 
 
 the composition is singularly felicitous and makes before them the law as it stands with a sketch 
 
 tne subject— a rather thorny one— clear and in- of the steps which have led up to it."— J//i«j<8mw!. 
 lelligible." — Law Times. "This book belongs to a class which we are 
 
 "There is justification for Mr. Dowell's ap- glad to think is becoming increasingly popular, 
 
 pearance before the public, for he gives a good It is written by a man who is practically con- 
 
 «ieal of useful information. Statesmen who con- versant with the subject of which he treats." — 
 
 template future legislation, judges whose duty Spectator. 
 it is to administer the law, and officials who have 
 
 Wigrj 
 
 :am on Extrinsic Evidence as to Wills. 
 
 Fourth Edition. 8vo., lis. cloth. 
 
 AN EXAMINATION OF THE RULES OF LAW respecting; 
 the Admission of EXTRINSIC EVIDENCE in Aid of the INTER- 
 PRETATION OF WILLS. By the Right Hon. Sir James Wigram, 
 Knt. The Fourth Edition, prepared for the press with the sanction of the 
 learned Author, by W. Knox Wigram, M.A., of Lincoln's Inn, Esq., 
 Barrister-at-Law. 
 
 " In the celebrated treatise of Sir James admiration of every judge who has had to con- 
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 and explained in a manner which has excited the Judgment, July %th, 1858. 
 
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 An INTRODUCTION to PRACTICE and PLEADING 
 in the SUPERIOR COURTS of LAW, embracing an outline of the 
 whole proceedings in an Action at Law, on Motion, and at Judges' Cham- 
 bers; together with the Rules of Pleading and Practice, and Forms of all the 
 principal Proceedings. By Watkin Williams, Esq., M.P., of the Inner 
 Temple, Barrister at Law. 
 
 " For the Student especially the book has fea- with a practical treatment of the subject, illus- 
 tures of peculiar value, it is at the same lime trated by forms and examples of the main pro- 
 scientific and practical, and throughout the work ceedings."— JwriiJ. 
 there is a judicious union of general principles 
 
■o 
 
 MESSRS. BUTTERWORTH, 7, FLEET STREET, E. C. 33 
 
 Cutler and Griffin's Indian Criminal Law. 
 
 8vo. 6s. cloth. 
 
 AN ANALYSIS of the INDIAN PENAL CODE (includincr 
 the Indian Penal Code Amendment Act, 1870), with Notes. B}' John 
 Cutler, B.A., of Lincoln's Inn, Barrister at Law, Professor of English 
 Law and Jurisprudence, and Professor of Indian Jurisprudence at King's 
 College, London, and Edmund Fuller Griffin, B.A., of Lincoln's Inn, 
 Barrister at Law. 
 
 "It may be added that the code is just at use to professional men in England, It has a 
 
 at present out of print, so that the production good index." — Laio Magazine. 
 
 of an analysis at the present moment is espe- "This is a work intended for students and 
 
 cially opportune. Messrs. Cutler and Griffin for practitioners in India. Knowing howwell 
 
 have produced a useful little book, and pro- the same authors edited the Indian portion of 
 
 duced it at a time when it will be especially Powell on Evidence, we should be content to 
 
 •useful." — Solicitors' Journal. take it on the faith of their reputation only. 
 
 "This analysis of the Indian Penal Code The mode of analysis is very clear and brings 
 
 ■seems to have conferred a great boon on the well forward the prominent features of the 
 
 Indian practitioner, and will doubtless be of cods."— Law Times. 
 
 Field's Table of, and Index to, Indian Statute Law. 
 
 Demy 4to., 42s. cloth. 
 
 A CHRONOLOGICAL TABLE of and INDEX to the 
 INDIAN STATUTE-BOOK from the Year 1834, Avith a General Intro- 
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 down to August, 1872. By C. D. Field, M.A., LL.D., of the Inner 
 Temple, Barrister at Law, and of H.M.'s Bengal Civil Service. 
 
 " Mr. Field has produced a work which will in India, but to those practising in the Privy- 
 be extremely useful, not only to the profession Couucil at \\ovai..'^—Solicitori' Journal. 
 
 Field's Law of Evidence in British India. 
 
 8vo., 28s. cloth. 
 THE LAW OF EVIDENCE AS ADMINISTERED IN 
 BRITISH INDIA. By CD. Field, LL.D., of the Inner Temple, Barrister 
 at Law, and of H. M.'s Bengal Civil Service. Second Edition, containing 
 the New Code of Evidence passed by the Legislative Council of India. 
 
 " It is worthy of the law of which it treats, any better recommendation could be given to 
 
 and it is made additionally and exceptionally persons contemplating the practice of the law 
 
 valuable by an introduction, which is an ori- in India than to procure Mr. Field's work and 
 
 ginal essay on evidence in general and Indian master it." — Law Times. 
 ■evidence in particular. We do not think that 
 
 Davis's Criminal Law Consolidation Acts. 
 
 12mo., 10s. cloth. 
 
 THE NEW CRIMINAL LAW CONSOLIDATION ACTS, 
 
 1861 ; with an Introduction and practical Notes, illustrated by a copious 
 reference to Cases decided by the Court of Criminal Appeal. Together with 
 alphabetical Tables of Offences, as well those punishable upon Summary 
 Conviction as upon Indictment, and including the Offences under the New 
 Bankruptcy Act, so arranged as to present at one view the particular Offence, 
 the Old or New Statute upon which it is founded, and the Limits of Punish- 
 ment; and a full Index. By James Edwd. Davis, Esq., Barrister-at-Law. 
 
 Smith's Bar Education. 
 
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 A HISTORY of EDUCATION for the ENGLISH BAR, 
 with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. 
 By Philip Anstie Smith, Esq., M.A., LL.B., Barrister-at-Law. 
 
54 LAW WORKS PUBLISHED BY 
 
 LAW EXAMINATION JOURNAL. 
 
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 annual subscription, pminbli- in tidvame, 4>v., 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 
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 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 
 <jn the Improvement of the IMemory. V. Synopsis of leading Authors, Statesmen, Poets and 
 Philosophers (the List includes Notices of Lord Byron, Sir Robert Peel, Lord IMacaulay and several 
 others). VI, The Questions of the Preliminary Examination of the 17th and 18th of July, with, 
 the Answers, VII, Review of the July Examination. VIII, Correspondence. 
 
 No. 6. May, 1872. — I. Special Examination Notice. II. How to become an Orator ; with Selec- 
 tions from the Speeches of Lord Brougham, Pitt, Curran, Daniel O'Connell, Burke, the late Earl of 
 Derby, Mr. Gladstone, Mr, Disraeli and others. III, Synopsis of leading Authors, Statesmen, Poets 
 and Philosophers, IV, The Questions of the Preliminary Examination of the 15th and 16th of 
 May, with the Answers. V. Review of the Jlay Examination, VI. Correspondence. 
 
 No. 5. February, 1872,-1. Examination Notices for 1872. II. The Latin Language; the value 
 -of a knowledge of; its pronunciation, &c. IIL A few Remarks on the Study of French, IV. 
 Synopsis of leading Authors, Statesmen, Poets and Philosophers. V. The Questions of the Pre- 
 liminary Examination of the 14th and 1.5th of February, with the Answers. VI. Review of tlie 
 February Examination, VII, Correspondence. 
 
 No. 4. October, 1871.— I. Examination Notices, &c. IL "What Endowments are essential to 
 those aspiring to become Barristers and Solicitors ? III. Lectures on Language : Part III. IV. 
 Synopsis of Leading Authors, Statesmen, Poets and Philosophers, V. The Questions of the Pre- 
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 view of the October Examination, VII. Correspondence, 
 
 No, 3. July, 1871, — I, Miscellaneous Notices and Reviews, II, Lectures on Language, I'art If. 
 
 III. Synopsis of leading Authors, Statesmen, Poets and Philosophers. IV. The Questions of the 
 Preliminary Examination held on the 12th and 13th days of July, 1871, with the Answers. V. Re- 
 view of the July Examination. VI, Correspondence, 
 
 No. 2. May, 1871.— I, Miscellaneous Notices and Reviews of Educational Works. II. Lectures 
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 No. 1 . February, 1871.— L Introductory Remarks and Review of the past Examinations. IL Essav 
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 nation, and names of best books to be studied, VI. Correspondence. 
 
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