UNIVERSITY of CALIFORNIA AT LOS ANGELES LIBRARY CASES ON INTERNATIONAL LAW SELECTED FROM DECISIONS OF ENGLISH AND AMEllICAN COLRTS EDITED WITH SYLLABUS AND ANNOTATIONS BY JAMES BROWN SCOTT A.M. (harvard), j.d.d. (heidelberg) DEAN OF THE COLLEGE OF LAW, CXIVERSITY OF ILLINOIS " War and Peace dicide the business of the world " Dr. Johxsox BASED ox THE LATE DR. FREEMAN SNOW'S CASES AND OPINIONS ON INTERNATIONAL LAW - • > I > J > » < -. • • ••• ••. ••• BOSTON THE BOSTON BOOK COMPANY ILahj i3ubltsf)frs anU 33ooI;5cllcrs 1902 11d482 Copyright, 1902 By The Boston Book Company « • t « • *.* * ••• •. ' • '• ; . •.. . • • . - • ; ••• .'. 1- < < UNIVERSITY PKESS • JOHN WILSON AND SON • CAMB1<11>GE, U.S.A. JL 'J- G 8 '"■J TO ANDREW SLOAN DRAPER, LL.D. PRESIDENT OF THE UNIVERSITY OF ILLINOIS FORMERLY JUDGE OF THE COURT OF COMMISSIONERS OF ALABAMA CLAIMS A PRUDENT COUNSELLOR, A LOY'AL FRIEND THE SOUL OF HONOR PEE FACE. The present book was intended to be a revision of tlie late Dr. Snow's Cases and Opinions on International Law, published in 1893. The changes made in the course of revision were, however, so many and so radical that it seemed advisable to the publisher to issue it as an independent work, and it so appears. The arrange- ment closely follows Dr. Snow's ; in fact, it is identical with it in most respects. His text has been utilized so far as possible ; his notes have generally been retained and enlarged, and the Syllabus has been thoroughly revised and remade. Much of the merit — if any there be — justly belongs to Dr. Snow, but the present editor is responsible for the undertaking as a whole. The idea underlving this volume is that international law is part of the English common law ; that as such it passed with the English colonists to America ; that when, in consequence of a suc- cessful rebellion, they were admitted to the family of nations, the new republic recognized international law as completely as inter- national law recognized the new republic. Municipal law it was in England ; municipal law it remained and is in the United States. Xo opinion is expressed on the vexed question whether it is law in the abstract ; our courts. State and Federal, take judicial cognizance of its existence, and in appropriate cases enforce it, so that for the American student or practitioner it is domestic or municipal law. If English and American courts of justice enforce international law, and have repeatedly done so in the past two centuries, there must be, and, in fact, there is, a mass of judicial decision on this subject. There should be the same reason for respecting precedent in this as in other branches of the law ; and beyond doubt in suits involving a question of international law a case in point is cited and followed, unless overruled or distinguished from the case under consideration. Judicial decisions, then, are an important and indispensable source of authority in international law. VI PREFACE. It is the judgment that is authoritative, although the obiter dictum of a distinguished judge is entitled to respect. The opinion of a text-book writer is valuable ; but, like the dictum, it is not in itself law. It is at best a statement of the underlying principle of the law or a digest or summaiy of cases on the subject with which the text-book deals. The opinions of diplomats likewise carry great weight; but the diplomatist does not and cannot consider the ques- tion at issue with the impartiality of a judge, for he is influenced by the interests of his country. For these reasons the cases here printed have been selected from the reported decisions of English and American courts ; and opinions of text- book writers and extracts from diplomatic corre- spondence, though cited in the Syllabus and foot-notes, do not appear in the text. The purpose of the Syllabus is to round out the principles devel- oped and established in the text. It cites the cases and also refers to the authoritative writers of England, America, and the conti- nent. In this way not only the international law of the courts, but even matters of comity and ceremony, are treated. References are made in well-nigh every section to Bonfils (1901) and to Rivier's French (1896) and German (1899) treatises ; and very frequently to Calvo, Heffter, and Liszt. To Bonfils' treatise, of which the third and last edition, admir- ably edited by M. Fauchille, appeared in 1901, the references are to sections, so that they are applicable to any edition. This work, a masterpiece as to conception and execution, is peculiarly rich in references to continental literature in book and magazine form. The same remark applies to Rivier's French and German treatises, and in a less degree to Liszt's, of which a second edition appeared in 1902. Rivier, a French Swiss, recognizes the importance of the German authorities, and is not affected by the prejudice of nation- ality. Liszt naturally refers to the latest and leading German authorities, and it is for this reason that German works and treat- ises — for example, v. Holtzendorff's " Handbuch des A'olkerrechts" — are not specifically referred to in the Syllabus. For the maga- zine literature of the English-speaking world, citations are given to Jones' Index to Legal Periodicals, 2 vols. (1887, 1899). It is hoped, therefore, that the book will serve, not only as a text for present, but also as a guide for future study. PREFACE. Vii 111 conclusion, the writer wishes to thank Professor Beale, of the Harvard Law School for his generous permission to use a section from his " Cases on the Conflict of Laws;" and he desires espe- cially to thank his friend and pupil, Wesley E. King, Esq., of the Champaign (111.) bar, and his colleague, William C. Dennis, Esq., for valuable lielp in the preparation of the Syllabus. JAMES BROWX SCOTT. University of Illinois, October 15, 1902. TABLE OF CONTEXTS. PAGE Table of Cases xiii Syllabus xxiii INTRODUCTION. § 1. International Law is a Part of the Municipal Law of States ... 1 PART I. International Relations in Time of Peace. CHAPTER I. STATES — TERRITORIAL RIGHTS. § 2. (a) Definition and Character of Sovereign States 23 (b) Recognition of the Existence of a State 37 (c) Kinds of States 45 § 3. Acquisition of Territory 70 § 4. Boundaries 75 § 5. Change of Sovereignty 85 (o) Effect on Public Rights and Obligations 85 (b) Effect on Private Rights 95 (c) Effect on Law 104 § 6. Territorial Waters of a State 116 («) Rivers ,116 (^b) Straits and Lakes .132 (c) Bays 143 (d) Marginal Seas 154 CHAPTER IL TERRITORIAL JURISDICTION. § 7. Rights. Privileges, and Immunities of Foreign Sovereigns .... 170 (a) Right of Foreign Sovereign to Sue in Courts of Foreign State . 170 (6) Immunity of Foreign Sovereigns from Suit 180 § 8. Immunities of Diplomatic Agents 189 X CONTENTS. PAGE § 9. Immunities of Public Ships o , » 208 (a) Ships of War 208 (b) Other Public Ships 220 § 10. ^lerchant Vessels 225 § 11. Right of Asylum 256 (rt) In Legations 256 (b) On Board Ships of War 2i8 (c) On Board Merchant Ships 264 §12. Extradition — Interstate Rendition 274 § 13. Jurisdiction of Offences committed Abroad 294 § 14. Extraterritorial Acts by Order of the State 305 § 15. Extraterritorial Acts done by a State, in Self-Defence 308 § 16. Injury to Foreigners by Mob Violence 320 CHAPTER III. .JURISDICTIOX OX THE HIGH SEAS. § 17. Merchant Vessels 329 § 18. Municipal Seizures beyond the Three-Mile Limit 343 § 19. Piracy 345 CHAPTER IV. NATIONALITY. § 20. Indelible Allegiance — Expatriation 370 § 21. Citizenship — Naturalization 376 § 22. Status of American Indians 398 §23. Treaties the Law of the Land 412 PART II. International Relations as Modified by "War. CHAPTER L MEASURES SHORT OF ACTUAL WAR. § 24. Reprisals 451 § 25. Hostile Embargo 460 § 26. War : Purpose and Declaration 464 CHAPTER IL EFFECTS OF WAR AS BETWEEN ENEMIES. § 27. Enemy's Property within the Territory and Debts due to the Enemy 481 § 28. Private Contracts 498 § 29. Trade with the Enemy 521 § 30. Duty of Subject or Citizen to come Home on Outbreak of War . . 556 CONTENTS. Xi PAGE § 31. Ransom Bills and Permissible Trading . , 566 § 32. Commercial Domicile » . 585 § 33. Ownership of Goods in Transit 607 § 34. Transfers in Transitu 616 § 35. Freight and Liens 629 § 36. Recapture — Rescue G49 § 37. Hostile Occupation, Conquest, and Cession 655 § 38. Termination of War 6 75 CHAPTER III. RELATIONS BETWKEX BELLIGERENTS AND NEUTRALS. § 39. Belligerent Capture in Neutral Waters 684 § 40. Equipment of Vessels of War in Neutral Territory 692 § 41. Aid to Insurgents 721 (a) Loan of Money 721 (b) Ship, ^lunitions, and other Supplies 731 § 42. Contraband of War 760 § 43. Despatches and Persons as Contraband 780 § 41. Blockade 796 §45. Rule of the War of 1756 845 § 46. Continuous Voyages 848 §47. Visit and Search : Neutral Property on the High Seas 858 § 48. Prize Courts 899 Index-Digest 935 TABLE OF CASES. Principal cases are in italics. Page Abd-ul-Messih v. Farra 53 Abell v. Venn. Mutual Life Ins. Co. 516 Abo, The 605 (La) Abra Silver Mining Co. v. United States 449 Acteon, Tiie 530 Adams v. Akerlund 426 Adela, The 689, 690 Admiral, The 820 Adula, The 826 Advocate-General v. Ranee S. Dossee 106 Aertsen v. Ship Aurora 233 Ah Kee, In re 255 Ah Sing, In re 333 Airhart v. Massieu 97, 105 Alabama Claims and Award, 1873 . 713 Albemarle, Tlie 899 Alerta, The 705 (Mrs.) Alexander's Cotton 495, 534, 536, 605, 762 Alfred, The 705 Alire's Case 475 Alleganean, The ....... 143 Amedie, The 369 American Ins. Co. v. Canter . . . 657 Amiable Isabella, The 427 (La) Amistad de Rues 705 Amory v. McGregor 561 Amy Warwick, Tiie 62, 480 (L') Anemone 228 Ann Green, The 494 Ann Giten, The 620 Anna, The 74 Anna, The 684 Anna Catharinn, The 612 Anna Maria, The 910 Anne, The 688 Antelope, The 28, 369, 860 Anthon v. Fislier 570 Antoine v. Morshead ... 536 541 Page Antoine v. Morshead 573 Antonia Johanna, The 604 Antonia Johanna, Tiie 632 Apollo, The 776 ApoUon, The 344 Appollon, The 909 Ariel, The 628 Armstrong v. United States . . . 674 Arnold v. United States Ins. Co. . 205 Arrogante Barcelones, The . . . 705 Astor V. Hoyt 109 Astrea, The 655 Aialanta, The 780 Atalanta, The 894 Atlas, The 895 Attorney-General v. Weedon & Shales 487 Aubrey, In re 239, 437, 451 Baigorry, The 820 Bnin V. Speedwell 675 Baiz, In re 6 Baiz, In re 197 Baldy v. Hunter 61 Baltica, The . . . 605, 628, 629, 802 Barbuit's Case 205 Barclay v. Russell 488 Barnett v. Barnett 97 Barton Co. v. Newell 538 Bas V. Tingy 471, 654 Beai^er, The 653 Bedel r. Loomis 76 Beers v. Arkansas 186 Behrensmeyer r. Kreitz .... 896 Belgenland, The 338 Bell, The 655 Bell V. Chapman 536 Bell V. Reid 604 Bello, The 055 Bello Corrunes, The 705 Bellona, The 655 XIV TABLE OF CASES. Page Belnap v. Schild 18y Benito Esten(]er, lite 621 Beiitzen r. Boyle 22, 5o(3 Bentzen v. Boyle 598 Bermuda, The 8o7 Berne, City of, v. Bank of England 38 Betsey, The 798 Betsey, The 705, 89!) Betsy, Tiie 895, 929 Bigelow (t. Nickerson 142 Blair V. Silver Peak Mines . . . 376 Blanford v. Tiie State 282 Blankard v. Galdy 104 Boedes Lust, The 460 Boedes Lust, The 553 Booth (;. L'Esperanza 652 Botiller v. Dominguez 426 BoHssmuker, Ex parte 494 Boussmaker, Ex parte 536 Boyd V. Thayer 395, 401 Bragg V. Tuffts 521 Brandon v. Cushing 553 Brig Joseph, The 536 Brig Juno, The 251 Brig Sea Nymph, The 869 Briggs V. The Light Boats . 189, 225 Brothers, The 705 Brown v. Duchesne 186 Brown v. Gardner 538 Brown v. Hiatts . . 503, 516, 541, 683 Brown v. United States 486 Brown v. United States . . 494, 499, 536 Browninsr v. Browning 97 Brunswick, Duke of, v. King of Hanover 179, 182 Bryant v. United States .... 436 Buchanan v. Curry .... 516, 541 Buena Ventura, The .... 465, 499 Barley's Case 293 Buron V. Denman 305 Buron v. Denman 307 Bush V. Bell 530 Butternuth v. St. Louis Bridge Co. . 121 Byrne v. Herran 192 Caldwell r. Van Vlissengen . . . 186 Caldwell's Case 282 Calvin's Case 381 Camelo v. Britten 530 Camille, In re 396 Capen v. Barrows 536 Carlisle i'. United States .... 397 Carlos F. Roses, The 637 Carlotta, The 650 Carneal v. Banks 420 Page Carolina, Tiie 584, 685 Caroline, The 317 Caroline, Tiie 319, 787 Caroline Wilmans, The .... 910 Carr v. United States 189 Carrington v. Merchants^ Ins. Co. . 769 Case V. Terrell 189 * Custioni, In re 285 • Castiuni. In re 293 Cazo's Case 293 Cliappell V. Jardine 108 Charkieh, The 48 Charkieli, The 219 Charlotte, The 152, 901 Charlotte v. Chouteau 97 Charming Betsey, The 22 Charming Nnncy, The 568 Chavasse, Ex parte 779 Chavez v. Chavez de Sanchez . . 97 Cherokee Nation v. Georgia . . 37, 53 Cherokee Tobacco, The , . 420, 426 Cherriot v. Foussat 480 Cheshire, The 820 Chin King, Ex parte 379 Chinese Exclusion Case . . 413, 432 Chirac v. Chirac 419 Choctaw Nation v. United States . 427 Christie v. Secretan 926 Christina Maria, The 776 Church V. Huhhart 343 Circassian, The 820, 828 Clarke v. Cretico 205 Clarke v. Morey 541, 545 Clayton v. Ship Harmony .... 654 Cloete, In re 196 Clypso, The 895 Coffee I'. Grover 85 Coleman v Tennessee 212^ Columbia, The 820 Commerctn, The 632 Commercen, The 765 Commonwealth i'. Blanding . 300, 301 Commonwealth v. Blodgett .... 308 Commonwealth v. Chapman . . . 106 Commonwealth v. Hawes .... 282 Commonwealth v. Kosloff .... 205 Commonwealth v. Macloon . . . 300 Comte de Wohrougoff, The . . . 524 (La) Conception 705 Conn V. Penn 516, 541 Constitution, The 218 Constitution, Tiie .... 219, 220, 919 Contzen v. United States .... 396 Cooley V. Golden 129 Coolidge V. Inglee 536 TABLE OF CASES. XV Page Coolidge V. Payson 673 Cooper, In re 76 Coppell V. Hall . . . 205, 520, 534, 541 Gorier Maratimo, The 909 Cornet v. Williams 621 Coma V. Blackbunie 566 Costa Rica Packet, Tlie .... 402 Craemer v. Wasiiington .... 436 Crapo V. Kelley . . . .331, 333, 788 Crawford v. The William Penn . . 575 Crawford ^ Mc CI can V. The William Penn 580 Creole, The 252 Creole, The 255 Cross V. Harrison 105, 658 Cross V. Talbot 191 Curlew, The 901 Cushinc/, Adm'r, v. United States . 929 Cutting's Case 301 Daifjie, The 585 Daiiiese i\ Hale 237 Dainese v. United States .... 237 Dalgleish v. Hodgson 926 Danckebaar Africaan, The . . . 604 Daniel v. Hutchinson 63 Darbg v. The Brig Erstern . . . 896 Dashing Wave, The 820 Daubuz V. Morshead 575 Davis V. The Police Jury .... 421 DeBode v. Regina 400 Deergaden, The 524 Ue Htiber v. Queen of Portugal . . 180 De Jarnet v. De Giuersville . . . 542 De Lima v. Bidwell 674 Dennison v. Imbrie .... 616, 541 Derby, Case of Earl 105 Dewey v. United States .... 899 Dewing 2\ Perdicaries 521 De Wutz V. Hendricks 721 Diana, Tiie 632 Diligentia, The 655, 674, 689 Dillon, hire 192, 481 Dobree v. Napier 309, 480 Doe V. Braden 427 Dole V. Merchant's Mutual Marine Ins. Co 350 Dole V. Merchant's Mutual Marine Ins Co 470 Don Pacifico, Case of . . . 328, 461 Donaldson v. Thompson .... 925 Dnoley v. United States .... 074 Dorothy Foster, Tiie 655 Dos Hermanos, The 895 Douglas V. United States .... 541 Page Dow, Neal, v. Johnson . : . 212, 666 Downes v. United States .... 674 Driefontein, etc.. Mines, Lim., v. Janson 553 Dunham v. Lamphere 153 Dupont V. Pichon 208 Edward, The 765 Eenigheid, The 524 Eenrom, The 895 Elector of Hesse Cassel's Case . . 675 Eliza Ann, The 689 Eliza Cornish, The 820 Elizabeth, The 624 El/c V. Wilkins 398 Ellis V. Mitchell 234 Elwine Kreplin, The 237 Emancipation Cases, The .... 521 Emanuel, The 847 Embden's Case 399 Emily St. Pierre, The 655 Emperor of Austria v. Day & Kos- suth 178, 179 Emperor of Brazil, The .... 179 Emulous, The 536 Endraught, The 766 Enterprise, The 255 Estrella, The 690, 705, 901 Etrusco, The 689, 690 Evert, The 776 Exchange, Schooner, v. McFaddon . 208 Exchange, Schooner, i: McFaddon 251 263, 318 Exposito V. Bowden 536 Express, The 930 Ezeta, In re 293 Fairfax's Devisees v. Hunter's Lessee 420 Falcon, The 926 Fama, The 421 Fanny, The 705, 894 Fay V. Montgomery 909 Feather v. The Queen 309 Feise i\ Thompson 530 Felicity, The 910 Fifield V. Insurance Co. . . 44,61, 350 Fifty-two Bales Cotton 565 Filer's Case 541 Fiott V. Commonwealth .... 432 (Die) Fire Damer 910 First Nat. Bank v. Kinner .... 106 Fisher v. Begrez 196 Fisher v. Krutz 541 Flad Oyen, The 919 Flad Oyen, The 925 XVI TABLE OF CASES. Page Fleming v. Page 659 Film it V. Crockatt 526 Flindt Y. Scott 526 Florida, The 690 Flying Scud, The 605 Folliott V. Ogden 304, 487 Fang Yup Ting v. United States . . 382 Fong Yue Ting v. United States . . 413 Forbes v. Cochrane 258 Ford V. Surget 61, 62 Fortuna, The . . 256, 369, 524, 631, 895 Foster & Elam v. Neilson 44, 77, 84, 390, 420 Foster ^ Elam v. Neilson . . .75, 412 Fourteen Diamond Rings v. United States 667 Fox r. Southack 428, 432 Foxcroft & Galloway v. Nagle . . 500 Francis & Cargo 621 Franciska, The 804 Franciska, The 820 Frau Margaretha, The 765 Freedom, The 524 Freeland v. ^yalke^ 531 Frelinghuysen v. Key . . . 435, 449 Freundschaft, The .... 494, 604 Fretz V. Stover 516 Friendship, The 787, 788 Furtado v. Badgers 549 Furtado v. Eodgers 553 Gage, The 655 Gamba v. Le Mesurier 553 Garcia v. Lee 76, 97 Gardner v. Heartt 109 Garland v. Davis 817 Gates V. Goodloe .... 565, 666 General Armstrong, The .... 687 General Pinckney, The .... 495 Geofroy v. Riggs 413 Georgia, The "^ 629 Gerasimo, The 605 Gerasimo, The 811 Gibbons v. Livingston 429 (La) Gloire 585 Goede Hoop, The 531 Goodman i-. McGchee . . . 520, 521 Goodrich Sj- De Forest v. Gordon . . 571 Graaf Bernstorf, The 895 Gran Para, The 705 Gran-o, The 690 Grapcsliot, The 666 Gray, Administrator, v. United States 452 Gray, Administrator, v. United States . 471 Page Gray Jacket, The 565 Grazebrook, In re 779 Griswold y. Waddington . 520,536,541 Griswold V. Waddington .... 504 Grossmayer's Case 481 Grover v. Carter 541 Guadalupe Co. r. Wilson Co. . . 76 Guerin, Case of 674 Guidita, The 524 Guiteau's Trial 196 Haabet, The 776 Hall r. Koot 97 Hallet V. Brown 577 Hamilton i\ Dillin 534 Hamilton v. Eaton 481 Hanauer v. Doane .... 520, 521 Hanauer v. Woodruff 521 Handle's Lessee v. Anthony . . . 116 Handly v. Anthony 84, 116 Manger v. Abbott 500 Hanger v. Abbott .... 468, 534, 536 Harcourt v. Gaillard 70 (Le) Hardy v. La Voltige'ante . . 605 Harmony, The 585 Harrison v. ]Meyer 666 Harrold v. Arrington .... 76, 77 Hatch V. Baez 182 Hauenstein v. Lynham . . . 419, 426 Hausding's Case 399 Havelock r. Rockwood 926 Haver v. Taker 420 Haymond v. Camden 548 Head Money Cases .... 413, 426 Heathfield v. Chilton 6 Heathjield v. Chilton 189 Heirn v. Bridault 1 Helen, The 665, 779 Helen, The 821 Helena, The 45 Helena, The 2 Henderson's Case 585 Henrick and Maria, The .... 820 Henry, The 655 Herman, The 605 Hermosa, The 255 Hibbs, Ex parte 282 Hickman r. Jones 521 Hoare v. Allen 498 Hoare v. Allen 541 Holmes, Ex parte 282 Holmes v. Jennison 2t*2 Home Insurance Co 59 Honduras, Republic of, v. Marco A. Soto ' 24 TABLE OF CASES. XVll Page Hoop, The 5iil Hoop, The 524, 536, 670 Hoo/ier, Administrator, v. UuUed Stales 433,633 Hooper, Administrator, v. United States 459, 460, 900, 909 Hopkins v. De Robeck 192 Hopner v. Appleby 652 Horner v. United States .... 413 Huascar, Tlie 352 Hubbard i'. Hornden Express Co. . 482 Hubbell r. United States .... 462 Hudson V. Guestier .... 344, 925 Hughes V. Cornelius 920 Hughes V. Edwards 420 HuUett r. King of Spain .... 87 Hunt's Heirs c Hunt 520 Hurtige Hane, The 3 Hutciiinson v. Brock 536 Huus V. New York and Steamsliip Co 674 Imii^a, The 776 Iiinnanuei, The 845 Indian Chief, The 205 Indian Chief, The 588 Ingliss V. Trustees 45 International, Tiie .... 762, 780 (L') Invincible 653 Invincible, Tlie 705. 925, 926 Isaacs, Tai/lor ^ Williams v. City of Richmond 521 Itata, The 344, 740 Jackson v. Willard 109 James G. Swan, Tlie 76 Jan Frederick, The 553 Jan Frederick, The 618 Jecker v. Montgomery 664 Jecker v. Montgomery . . 534, 536, 909 Jenks 1-. Hallet & Brown .... 577 Jennings v. Carson 11 {La) Jenne Eurjenie 3 Johan Pieter, The 531 Johanna Emilie, The . , . 464, 498 Johanna Maria, The 803 John and Jane, The 655 John Gilpin, The 566 Johnson r. Jones 666 Johnson v. Mcintosh 71 Johnson v. 21 Bales 2 Jones I'. Garcia del Rio 38 Jones V. Leonard 285 Jones I'. Mehan 427 Jones V, United States 38 Page Jones V. United States 74 Jonge Marguretha, The 762 Jonge Margaretha, The .... 780 Jonge l^ieter, The 820 Jonge Tobias, The 766 Josefa Sequnda, The 652 Joseph, The Bng 556 Juffrow Louisa Margaretha, The . 524 Juffrow Maria Scliroeder, The . . 804 Julia, The 820 Junge Klassina, The 605 Juniata, The 494 Kansas Indians 427 Keene v. McDonough 63 Keir i'. Andrade 5-30 Keith V. Clark 28 Kenuett v. Chambers 723 Kensington v. Ingliss 531 Kentucky v. Dennison 285 Kershaw v. Kelsey 535 Kestor, The 27-3, 413 Ketcham v. Buckley .... 61, 113 Ketland v. The Cassius 700 Kierlighett, The 926 King of Greece, The 179 King of Prussia, The, v. Kiipper . 173 King of Spain, The 179 King of Spain v. Hullet & Widder 178, 179 King of Spain v. Machado . . . 170 King of Spain v. Oliver .... 179 King of the Two Sicilies v. Willcox 87 Kingsbury's Case 285 Kinkead v. United States .... 97 Kirk 1-. Lynd 899 Knox V. Lee 521 Kortright i'. Cady 109 Koszta's Case 400, 401 Lady Jane, The 524 Lafayette, The 932 Lagarve's Case 282 Lamar v. Brown 495 Lamb v. Davenport 116 Lamington, The 332, 342 Lane County v. Oregon . . . 27, 44 Lascelles c. Georgia 285 Lee Joe v. United States .... 382 Lee v in i.-. Cormac 531 Lem Moon Sing ?•. U. S 399 Leitensdorfer v. Webb .... 97, 605 Lem Moon Sing r. United States . •■;99 Leucade, The 910 Levy V. Stewart 504 XV HI TABLE OF CASES. Mlla, The .... 62, 494, 655, 689 Lindo V. Rodney 463 J.isette, Tlie 778, 820 Littell V. Erie R. R. Co 378 Little V. Barreme 817 Little V. Watson 97 Lively, Tlie 909 Lock wood V, Dr. Coysgarne . . . 196 Lola, The 19 Lone, The 655 Lord Nelson, The 655 Lottavvanna, The ....... \'l (Le) Louis 352 (Le) Louis 860 (La) Louisa 820 Luther V. Borden 44 McCarjTO v. N. 0. Ins. Co 255 Macartney i'. Garbutt 196 McCuUocli V. Maryland .... 44 Mucdonald, Case of 370 McDonald v. Mallory . . . 332, 333 Mcllvaine v. Coxe's Lessee ... 45 McKee v. United States . . 534, 536 McKennon v. Winn 114 Macleod v. Attorney-General . . 304 McLeod's Case 309, 319 McVeigh v. Bank of Old Dominion 500 Madison, The 785 IMadonna del Burso, The .... 3 Ma fiose. The, v. United States. . 879 Ship Tom, The 910 Shively v. Bowlby 74, 153 Sliort Staple, The 655 Siobold, Ex parte 44 Page Siffkin V. Allnut 531 Siffkin y. Glover 531 Silesian Loan Case 461 Sir William Peel, The 690 Siren, The 648 Sitka, The 218 Slaughter House Cases 400 Slocum V. Mayberry 909 Sloop Betsey, The 705 Small's Administrators v. Lumpkin's Executrix 538 Smith V. Brazelton ' 482 Society v. Wheeler 004 Society for Propagation of Gospel in Foreign Parts v. New Haven . . 428 Society for Propagation of Gospel in Foreign Parts v. New Haven . 432 Sotela's Case 273 Soult i: L'Africaine 687 Soutli African Republic v. La Com- pagnie Franco-Beige 181 Sparenburg v. Bannatyne .... 605 Springbok, The 857 Sprott V. United States .... 61, 521 Staat Embden, The . . . 765, 766, 776 Stanley v. Schwalby 189 State V. Carter 298 State r. Dunwell 76 State V. Knight 300 State V. Patterson 283 State V. Patterson 285 State I'. Vanderpool 282 State V. Wyckoff 296 Steamboat Co. r. Chase .... 332 Stephen Hart, The 852 Stephen Hart, The 857 Stert, The 820 Stetson V. United States .... 143 Stewart, Case of Commodore . . . 910 Stewart v. Kahn 504 Stockton V. Williams 74 Stovall's Administrators v. United States 481 Strother v. Lucas 97 Strousberg v. Costa Rico .... 181 Stupp, Tn re 4-36 Susa, The 895 Sutton V. Sutton 427 Swan V. United States 899 Swan, The James G 76 Swineherd, The (le Porcher) . . . 677 Talbot V. Jansen 705 Talbot r. Quman 640 Talboti'. Sceman . . . . 22,471,054 TABLE OF CASES. XXI Page Tarbell's Case 44 Taylor v. Barclay 38 Taylor v. Morton 426 Taylor v. Nashville & Chattanooga R. R. Co 666 Taylor & Marshall i'. Beckiiam . . 44 Teresita, The 820 Terlimhn \ . Ames 436 Teschinuuher v. Thompson ... 97 Teutonia, The 471 Texan Star, The 630 Texas V. White 25 Texas v. White 44, 521 Thetis, The 675 Thomas v. Hunter 500 Thomas Gibbons, The 901 Thompson, The 909 Thompson v. Powles 37 Thompson v. Powles 723 Thurington v. Smith i^~ Hartlei/ . . 53 Thorington v. Smith & Hartley . . 62 Three Friends, The 44 Three Friends, The 748 Timra v. Marsh 109 Titus V. United States 94 Tom, The Ship 910 Torlade v. Barrozo 208 Tousig's Case 401 Trende Sostre, The 778 Trent Case 788 Trevino r. Fernandez 63 Trimble's Case 293 Triqicet v. Bath 6 Triquet v. Bath 191 Trois Freres, The 615 Tucker y. Alexandroff . . . 218,426 Twee Gebroeders, The . . 129, 687, 691 Twee Juffrowen, The 776 Twilling Riget, The 633 Two Friends, The 655 Tyler v. Uefrees 481 Underhlll V. Hernandez 62 Underhill v. Hernandez 70, 182, 309, 319 United States v. The Active ... 2 United States v. The Active . . . 464 United States V.Ambrose Light . . 346 United States v, Ambrose Light 322, 350 Uniied States v. Arredondo ... 76 United States i: Baker 350 United States i-. Benner .... 196 United States v. Bennett . . 3-33, -336 United Slates v. The Betsey ... 899 United States v. Clarke's Heirs . . 97 United States v. Davis 294 534, Page Uniied States v. Diekelman . . . 2(J4 United States v. Diekelman 256, 666, 702 United States v. Fernandez United States v. Greathouse United States v. Grossmayer United States v. Guillem . United States v. Guinet . . United States v. Guinet . . United States v. Hayward United States v. Homeyer United States v. Huckabee United States v. Jeffers . United States v. Jeffers United States v. Kagama United States v. Klein . United States v. Lane . United States v. Lee United States v. Liddle Lucero McRae 2 he Meteo 94, 74 482 541 . 803 . 695 . 700 . 057 . 494 495, 521 . 256 275 404 495 536 189 197 97 88 711 97 666 United States i- L'nited States v United States v, United States v. The Miranda United States v. Moreno . , United States v. One Hundred Barrels of Cement . . 634, 545, 757 United States v. Ortega . . 197, 208 United States v. Pacific R. R. . . 666 United States v. Palmer ... 44, 480 United States v. Pelican Ins. Co. . 304 United States v. Percheman ... 95 Peters . Peterson Prioleau Quincy Quincy Rauscher Rauscher United States v. United States v United States v. United States v, United States v ^United States v. United States v United States v. Repentigny United States v. Rice United States v. Richard Peters United States v. Rodgers United States v. Smiley . United Slates v. S/nitk United States v. Smith . United States v. Smith . United States v. Stevenson United States v. Texas . United States v. Texas . United States v. TruntbuU United States v. Trumbull United States v. United States v. United States r. United States v. Wagner Wiggins Winchester Woiii? Kim Ark . 697 . 142 . 85 . 706 . 720 . 274 282, 426 . 98 . 655 . 697 . 132 . 302 . 13 . 89 . 345 . 494 . 76 . 116 . 731 . 751 , 175 . 97 . 899 . 381 Usparicha v. Noble 529 xxu TABLE OF CASES. Page Van Brokelen, Case of 462 Vai'asseur v. Krupp 182 I'enus, The 591 Venus, The 494, 585 Victoria, The 524 Viliasseque's Case 675 A'irginia v. Tennessee 74 Viigiiiius, The 320 Viveash c. Becker 205 (II) Vohinte 767 Vrouw Anna Catharina, The . . 690 Vrouw Judith, The 820 Vrow Anna Catharina, The . 632, 690 Vioio Htnrica, The G29 Vrow Johanna, The 910 Vroiu Murgaretha, The 616 Wagner's Case 400 Wanstead, The 655 War Onskan, The 654 Ward V. Smith 516, 541 Ware v. Hylton . . 419, 420, 483, 494 Ware v. Jones 517 Watt's Case 282 AViieehight v. Depeyster .... 926 Whitfield L-. United States. . . 94,521 Whitis V. Polk 520 Wliitney v. Robertson . . . 413, 426 Whitney v. Robertson 422 Wilcox V. Luco 206 Wildenhns's Case 225 Williemina, The 847 Willeudsoa v. The F5rsoket . . . 233 Page William, The 542 Wiiliam, The 848 William Bagalay, The 565 Williams' Case 372 Williams' Case 374 Williams v. BrufEy 661 Williams V. Marshall 530 Williams v. Paine 538 Williams v. Suffolk Ins. Co. . . . 654 Willison V. Ciiambers Willison V. Patterson 536 Wills V. State 212 Wilson V. Blanco 206 Wilson V. McNainee 329 Wilson V. McNamee 333 Wilson i: Maryat 605 Wilson 1-. Wall 426 Windsor, In re 282 Wolff 1-. Oxholm 304 Wolff V. Oxholm 496 Wong Qitan v. United Slates . . . 382 Worcester v. Georgia 427 Wren, The 844 Wright V. Xutt 487 Wunderle v. Wunderle 414 Young, Assignee of Collie . . . 481 Yrisarri v. Clement 23 Zee Star, The 010 Zeiter's Case 377 Zelden Rust, The 765 Zepherina, The 152 SYLLABUS. INTRODUCTION. Definitions of International Law, or the Law of Nations. Cases, 1-4; 8. Bluntschli, § 1; 1 Calvo, § 1; Creasy, 1; Hall, 1; 1 Halleck, 46; 1 Jones, 262, 2 Ih., 246 ; 1 Kent, 1; Lawrence, 1-9; Liszt, 1-6; 1 Martens, 21-31; Fillet, Le droit international public, 1 E. D. I. P., 1; Pomeroy, 2-25; 1 Kivier, 3-7; Eivier, L. B., 1-2; Snow, § 1; Taylor, § 2; D. Wheaton, 23; L. Wheaton, 26; Walker, Manual, 1-10; Westlake, 1; Woolsey, 2-3. Origin of the Terms "Law of Nations," and "International Law." Compare with the terms "Jus Gentium," "Jus Naturale," "Droit des gens," "Droit international," " Volkerrecht." Bontils, §§1-4; Creasy, 3-21; D. AYheaton, 4-6, 16-21 and note 7; L. Wheaton, 14-21 and notes. International Law is a Branch of True Law. Ohjections hy Austin and his followers to the term "law" as used in "international law," on the ground that there is no superior power to enforce it: it has no "sanction." Austin's Juris[irudence, abridged ed., 5-18, 59-63, 74, 85; Holland's Jurisprudence, 9th ed., 125-126; 369-372; 2 Stephen, History of the Criminal Law, 32 et seq. The opposite view, namel}', that International law is law, rather than international comity or morality, is held by the great majority of publicists: Bluntschli, 2-11; Bonfils, §§ 26-31; Creasy, 70-76; Hall, 14-17; Fiore, De la sanction juridique du droit international, 30 R. D. I., 5; Jellinek, Recht des modernen Staates, 302-307, 337-341; Kebedgy, Contribution a I'etude de la sanction du droit international, 29 R. D. I., 113 et seq^ ; Lawrence, Essays on Inter- national Law (2d ed.), 1-41; Liszt, 6-8; Maine, 26-53; 1 Rivier, 18-26; Walker, Science, 1-40, 45-56; Walker, History, 1-19; Woolsey, §§ 26-29. Perhaps the aptest description of the legal nature of International law, is that for which Sir Frederick Pollock stands sponsor: " Customs and observances in an imperfectly organ- ized society which have not fully acquired the character of law, but XXIV SYLLABUS. are on the way to become law " (werdendes Eecht) . First Book of Jurisprudence, 13. 4. The Nature and Sources of International Law. Cases, 19. Bluntschli, 11-19; Bonfils, §§ 5-70; 1 Calvo, §§ 1-40; Creasy, 65- 92; Hall, 1-14; 1 Halleck, ch. II.; Holtzendorff, Introduction au droit des gens, 1-76; Les sources du droit des gens, 79-147 (1 Handbuch, Fr. ed., 79-147); Jellinek, System der subjektiven offentlicheu Eechte, 296-314; Kaufmann, Die Rechtskraft des internationalen Eechtes, 1899; Lawrence, 10-25, 91-110; Liszt, 9-12; Maine, 1-25; Maine, Ancient Law, 70-108; 1 Martens, 1-20, 243-254; Nys, Origines du droit international; 1 Philli- more, ch. III.; Pomeroy, 25-44; 1 Eivier, 27-42; Rivier, L. B., 9-16; Snow, § 3; Taylor, §§ 6-23, 30-36, 65-95, 105-115; 1 Twiss, 145-177; Walker, History, 20-29; Westlake, ch. VI.; Wheaton, ch. I. 5. Historical Sketch of International Law. Bonfils, §§ 71-146; 1 Calvo, 1-137; 1 Halleck, ch. I.; Holtzendorft", Le developpement his- torique des relations Internationales jusqu'a la paix de Westphalie (1648), (1 Handbuch, Fr. ed., 152-348); Lawrence, 26-54; Liszt, 12-30; 1 Martens, 32-246; Rivier, L. B., 16-73; Eivier, Esquisse d'une histoire litteraire des systemes et metliodes du droit des gens depuis Grotius jusqu'a nos jours (1 Holtzendorff' s Handbuch, Fr. ed., 351-494); Taylor, §§ 37-48; Walker, History, Vol. I., to Peace of Westphalia ; Westlake, 17-77. Ward's History of the Law of Nations (to time of Grotius), 1795, is still useful, and Wheaton's History of the Law of Nations (to 1842), 1845, has not been dis- placed. The French edition is later and therefore preferable. 6. International Law is a Part of the Law of States. Cases, 6-10, 1.3-22. Kent, 1, note a ; Liszt, 6; Triepel, Volkerrecht und Landesrecht, 1899; Walker, Science, 41-56; Woolsey, § 29. 7. The Leading Writers on International Law. Bonfils, §§ 147-153; 1 Calvo, 27-32, 45-46, 51-55, 61-63, 70-73, 101-120 : 1 Halleck, ch. I.; Liszt, 31-33; Eivier, Esquisse (see § 5), is still the most satisfactory enumeration and criticism of the writers, their systems, relative rank and worth; Woolsey, Appendix 1 (A brief selection of works and documents bearing on International Law). 8. Private International Law ; or, The Conflict of Laws. 1 Calvo, 120- 125; Hall, 54; 2 Martens, 391-505; Phillimore, Vol. IV.; SYLLABUS. XXV Woolsey, §§ 73, 74. The following are special treatises on this subject : Beale, Cases on Conflict of Laws, 3 vols., 1901-1902 (Vol. 3, pp. 501-545, contains an excellent "Summary of Conflict of Laws"); Minor, Conflict of Laws, 1901; Story, Conflict of Laws, 8th ed., 1883 ; Westlake, Private International Law, 3d ed., 1890 (4th edition announced); Wharton, Conflict of Laws, 2d ed., 1881. Leading works in foreign languages are the following: Asser & Rivier, Elements de droit international prive, 1884; v. Bar, Theorie und Praxis des internationalen Privatrechts, 2d ed., 1889 (English translation entitled, Private International Law, by G. E. Gillespie, 1892) ; v. Bar, Lehrbuch des internationalen Privat- und Strafrechts, • 1892 ; Despagnet, Precis de droit international prive, 3d ed., 1889; Fiore, Droit international prive (French trans- lation of the Italian original, by Pradier-Fodere, 1875); Laine's masterly Introduction au droit international prive, 2 vols., 1888, 1892; Savigiiy, System des heutigen romischen Bechts, Vol. 8, 1849 (translated by W. Guthrie, as Treatise on the Conflict of Laws, and the Limits of their Operation in respect of Place and Time, 2d ed., 1880) ; Vareilles-Sommieres, La synthese du droit inter- national prive, 2 vols., 1897; Weiss, Manuel de droit international prive, 2d ed., 1898; Zitelman, Internationales Privatrecht, 2 vols., 1897, et seq. PART I. INTERNATIONAL LAW IN TIME OF PEACE. I. SovEKEiGJf States — De Facto States. (a) Sovereign States. 9. Sovereign States are the Subjects or Persons of International Law. The Republic of Honduras v. Soto, Cases, 24. Bluntschli, §§ 17-27; Bonfils, §§ 154-159; Hall, § 1; Heffter, § 15; Jellinek, Recht des modernen Staates, 348-349; 1 Jones, 518, 2 Ih., 463; Lawrence, 55; Liszt, 34-40; 1 Martens, 307-311; 1 Phillimore, 79; 1 Rivier, 45-54; Snow, § 4; 1 Twiss, 1-15; D. Wheaton, § 16. 10. Definition and Nature of Sovereign States. Yrisarri v. Clement, Cases, 23; Texas v. White, lb., 25 ; Keith v. Clark, Ih., 28 ; lb., notes, 36-37. XXVI SYLLABCTS. Bluntschli, §§ 18-21, 62-70 ; Bonfils, §§ 160-164; 1 Calvo, § 39; Creasy, 6, 93; Heffter, §§ 15-16; Jellinek, System der subjektiven offentliclien Rechte, 12-39 ; Jellinek, Eeclit des moderneu Staates, 115-161; Lawrence, 56-90; Liszt, 35-38 ; Maine, 54-68; 1 Phil- limore, 81-85; Pomeroy, 45-59; Eivier, L. B., 88-92; Stubbs, Suzerainty: ^Mediaeval and Modern, 25 Law Magazine and Review, 5th ser., 413-452; D. Wheaton, 29-31; L. Wheaton, 31-33, 58; Woolsey, 34-36. 11. Distinction between Internal and External Sovereignty of States. Bluntscbli, § 64 ; Holland, Jurisprudence, 47-49, 350-351, 373 ; Liszt, 52-71; Snow, § 5; D. Wheaton, 31; L. Wbeaton, 35. 12. Internal Changes in a State do not affect its standing in Inter- national Law. Keith v. Clark, Cases, 28. Creasy, 99-109; Hall, 22-24; Liszt, 40; 1 Phillimore, 202-212; Pomeroy, 69-78; 1 Rivier, 62-63; Rivier, L. B., 94-95; D. Wheatou, 33-34 ; L. Wheaton, 39 ; Woolsey, §§ 38-39. 13. The Fundamental Rights and Duties of States. Bhmtschli, §§ 62- 107, 378, 379; Bonfils, §§ 235-332 ; Hall, §§ 7-14 ; 1 Halleck, ch. IV.; Lawrence, 108-111; Liszt, 52-71, 98-101; Pillet, Re- cherches sur les droits fondamontaux des etats dans I'ordre des rapports internationals, 1899; Pomeroy, 79-144; 1 Rivier, 255- 266; Rivier, L. B., 174-180; Snow, § 8; Taylor, §§ 117-119; D. AYheaton, §§ 60-62 ; L. Wheaton, 115. 14. Classification of States: "Centralized States," "Personal Union," "Real Union," (Bundestaat), " Confederate Union " (Staatenbund), Protected State, Neutralized State. Cases, 45-53. Bluntscbli, §§ 70-76; Bonfils, §§ 165-194, 345-369; 1 Calvo, §§ 44-77; Creasy, 135-142; Hall, § 4; 1 Halleck, 67-74, 116- 118; Jellinek, Die Lehre von den Staatenverbindungen, 1882; Jellinek, Recht des modernen Staates, 074-719; 1 Jones, 76 ; Lawrence, 56-84; Liszt, 41-52; 1 Phillimore, 94-101; Pomeroy, 60-69; 1 Rivier, 75-123; Rivier, L. B., 103-124; Snow, § 6; Taylor, §§ 120 et se(i. ; 1 Twiss, 16-144 ; Westlake, 211-231 ; D. Wheaton, 40-41, 73, 78, 82, and note 32 ; L. Wheaton, 71-76. 15. The Equality of States. The Antelope, Cases, 27 note, Bluntscbli, § 81 ; Bonfils, §§ 272-278 ; 1 Halleck, ch. V.; Heffter, §§ 27-28 ; Lawrence, Essays, 208-233 ; Liszt, 52-54 ; Pomeroj', 247-263; 1 Rivier, 12.3-131; Rivier, L. B., 124-128; Westlake, 80-109 ; D. Wheaton, 52 ; L. Wheaton, 58 ; Woolsey, § 52. SYLLABUS. XXvii 16. Date of the Commencement of States. Bluntschli, §29; Bonfils, §§ 195-213; Hall, § 26; Heffter, §§ 23-25 ; Jellinek, Kecht des modernen Staates, 239-258; Lawrence, 84—88; Liszt, 38; 1 Mar- tens, §§ 63-66; 1 Rivier, 54-57; D. Wheaton, 41; L. Wheatou, 46-47. 17. Effest of the Recognition of a New State by the Parent State, and by Third States. Cases, 37-44. Bluntschli, § 30; Hall, 87-96; 1 Halleck, 79-88; Hart, 208-209; Liszt, 39-40 .; Penfield, Eecognition of a New State, 32 Am. Law Eeview, 390-408; 1 Rivier, 57-61; Snow, § 8; Taylor, §§ 146- 159; 1 Wharton's Digest, 522; D. Wheaton, 32. 18. When is the Recognition by Third States of a New State claiming Independence, proper ? Cases, 44-45, note. Bluntschli, §§31-35; Creasy, 677-681; Hall, 90-93; Liszt, 40; 2 Phillimore, 20-44; D. Wheaton, 41-46, and note 16; L. Wheaton, 46-47. 19. Methods of Recognition. — The Congo State. Cases, 37-44. Hall, 94-95, and note ; 1 Jones, 100, 2 lb., 85 ; Fauchille, L' An- nexion du Congo a la Belgique, 2 R. G. D. I., 400-439; Moynier, La Fundation de I'Etat Jndependant du Congo, 1887. Les Fron- tieres de I'Etat du Congo, 1 E. G., 409-429. 20. The Effect of a Change of Sovereignty upon Public Rights and Obli- gations. U. S. V. Prioleau, Cases, 85; U. S. v. Smith, lb., 89 ; Case of The Texan Bonds, lb., 94, note ; opinions of Hall and Kent, lb., 96, note; Terlinden v. Ames, lb., 436. Appleton, Des effets de I'annexion sur les dettes de I'etat demembre ou annexe, 1892 ; Creasy, 144-146 ; Huber, Die Staatensuccession, 1898 ; Lariviere, Des consequences des transformations territoriales des etats sur les traites anterieurs, 1892 ; Lawrence, 647-651 ; Liszt, 172-176 ; 1 Phillimore, 211 ; 1 Eivier, 69-75 ; Eowe, Polit- ical and Legal Aspects of Change of Sovereignty, 41 Am. Law Register, K. S., 466-477 ; Snow, § 9 ; D. Wheaton, 42-49 ; L. Wheaton, 48-53; Woolsey, § 38. 21. Effect of a Change of Sovereignty upon Private Rights. U. S. V. Percheman, Cases, 95 ; U. S. v. Eepentigny, lb., 98. 1 Jones, 5-18, 2 lb., 463; Liszt, 89. 22. Effect of a Change of Sovereignty upon Laws. Blankard v. Galdy, Cases, 104 ; Com. v. Chapman, lb., note 106 ; Chappell v. Jardiue, XXVIU SYLLABUS. lb., 108 ; Mortimer v. E". Y. Elevated E. R. Co., Ih., Ill ; Mc- Kennon v. Winn, lb., 114. Magoou, Military Occupation, 25-28, 226. (b) De Facto States. 23. Belligerent Communities. Thorington v. Smith, Cases, 53 ; Home Insurance Co.'s Case, lb., 59 ; Legal relation of the de facto to the parent or de jure State as regards legislation, administration, and judicial acts of the former, lb., 61, note ; The LUla, lb., 62, note ; Underhill v. Hernandez, lb., 62. Bluntschli, §§ 47-48; Hall, 31-37; 1 Halleck, 79-86; Liszt, 37, 288; Snow, § 10; Taylor, §§ 145-147; Woolsey, § 40. 24. Recognition of Belligerency. Annual Message of President Grant, Dec. 7, 1875 ; Cases, 758, note. Bernard, Neutrality of Great Britain during the American Civil War, 1870, 106-117, and note; Hall, 35-42; Historicus on Recogni- tion, 1-37; 1 Jones, 51,2 lb., 38; DeOlivart, La reconnaissance des insurges comme belligerants, 28 R. D. I., 100-103 ; 1 Wharton's Digest, § 69; D. Wheaton, note 15; L. Wheaton, 40, note; Woolsey, § 41. 25. Have Belligerent Communities any Legal Eight to Recognition by Sovereign States? Forms of Recognition. Bluntschli, § 512; Bon- fils, §§1045-1047; Hall, 37-39; Liszt, 157; Pomeroy, 264-312; Taylor, §§ 148-152; D. Wheaton, 34, note 15, especially, pp. 37-38. 26. Recognition of Confederate States, 1861. Pifield v. Ins. Co., Cases, 44, note. Bernard, Neutrality, 122-134 (135-150 for documents) ; Bluntschli in 2 R. D. I., 452-485; Hall, 39-42; Pomeroy, 289-295; Taylor, § 15; D. Wheaton, 37, note; Woolsey, § 180. 27. Succession to the Rights of Belligerent Communities. U. S. v. Pri- oleau. Cases, 87 ; U. S. v. Smith, lb. ,89 ; U. S. v. McRae, lb., 89, 91 ; Titus V. U. S., lb., 94, note. 28. The Relations of a Belligerent Community after acquiring Independ- ence to the Contract Rights and Duties of the Parent State, on (1) Treaty Obligations, (2) Property, (3) Debts. Bluntschli, §§ 47-48 ; Bonfils, §§ 214-234; Hall, §§ 27-28; Heffter, § 25; Liszt, 172-176; Magoon, 177, 194, 529. SYLLABUS. XXIX 29. Alleged Right of the United States in the British- American Fisheries. Geffcken, La question des pecheries, 22 R. D. I., 217-233; Hall, 99- 100; Hart, 206-208, 220-221; Isham, The Fishery Question, 1887; 1 Jones, 206, 2 Ih., 183-184 ; Liszt, 74, 255-258 ; Pomeroy, 181, 368-371 ; Schuyler, The Fisheries (Am. Dip., 404-420) ; Taylor, §§ 249-250; 3^ Wharton's Digest, § 302. II. The Territorial Property of a State. («) Extent and Nature of Territorial Property. 30. In what does the Territorial Property of a State consist ? Bonfils, §§ 482-519; Hall, § 30; Jellinek, Kecht des modernen Staates, 355-366; 1 Jones, 545; Liszt, 71-83; Snow, § 11; D. Wheaton, § 162. 31 . The Nature of the Proprietary Title of a State in (1) the Land owned by Individuals, (2) Public Lands, (3) Navy Yards, Arsenals, etc., (4) Lakes, Rivers, Straits, (5) Marginal Seas. Bluntschli, §§ 276-277, 296-310; Hall, §§30-46; 1 Halleck,ch. VL; Lawrence, 136-160; Liszt, 71-83; Maine, 69-93; Pomeroy, 145-190; 1 Rivier, 135- 171; Rivier, L. B., 129-141; 1 Twiss, 228-235; Westlake, 129- 133; Wharton's Digest, §§ 1, 2, 310, 311 ; D. Wheaton, §§ 163-164. (h) Acquisition of Territory. 32. Modes of acquiring Territory. Jones v. U. S., Cases, pp. 39-40; U. S. V. Perchemai), 2b., 95; Am. Ins. Co. v. Canter, 11k, 657. Bluntschli, §§ 276-295; Bonfils, §§ 532-571; Hall, § 31 ; 1 Hal- leck, 154; Hart, 194-196; Liszt, 83-90; Pomeroy, 91-93; 1 Rivier, 172-188; Rivier, L. B., 145-146; Walker, Manual, 26-34; D. Wheaton, § 161. 33. Title to Territory based on Discovery. Johnson v. Mcintosh, Cases, 71. Westlake, 134-160. 34. Title to Territory, based on Prior Discovery of the Coast and Mouths of Rivers, upon Occupation, Exploration, and Contiguity. {!) The Oregon Territory (Foster's American Diplomacy, 302-313, corrected, as most American accounts must be, by Bourne's, "Legend of Mar- cus Whitman " in Essays in Historical Criticism, 1901, pp. 1-109) ; Hall, 115-117; Hart, 194-195; 1 Moore, Int. Arb. 196-213; XXX SYLLABUS. Pomeroy, 98, 102, 111-114; Taylor, §§ 99-102; D. Wheatoii, 250- 255. (2) Delagoa Bay (Hall, 122; 5 Moore, Int. Arb., 4984-4985). (3) Texas (Hall, 113-115). 35. Inchoate Title acquired by Discovery. Occupation to give Title pre- supposes (1) intent to occupy, (2) Continuous Occupation, (3) a State Act or Subsequent Ratification of the Act by the State. Blunt- schli, §§ 278-279; F.ontils, §§ 536-563; Hall, 106-113 ; Jeze, ^Itude sur I'occupation, 1896; Liszt, 90-92; 2 Moore, Int. Arb., 1909- 1922; 1 Phillimore, 329; Pomeroy, 94-111; 1 Rivier, 188-197; Eivier, L. B., 146-150; 1 Twiss, 191-206; Westlake, 160-177. 36. Abandonment of Territory once occupied. Santa Lucia, Hall, 120- 121 ; 1 Phillimore, 368. 37. Tendency to change the Law of Occupation. — Berlin Conference, 1885. Bonfils, §§ 557-561; Hall, § So*, and notes; Liszt, 92. 38. Prescription gives Valid Title to Territory by the Eules of Interna- tional Law. Rhode Island v. Massachusetts, 4 How. 591; Virginia V. Tennessee, 148 U. S. 503, 522-524, and authorities there cited. Bhintschli, § 290; Bonfils, § 534; Creasy, 249-255; Hall, §36, and note; 1 Jones, 441 ; 2 lb., 402; 4 Moore, Int. Arb., 4179- 4203; 1 Phillimore, 353-368; 1 Rivier, 182-183; Pomeroy, 119- 131 ; D. Wheaton, 239, note 101 ; L. Wheaton, 303. 39. Acquisition of Territory by Accretion. The Anna, Cases, 74, note ; C. dishing, 8 Op. Atty.-Gen. 175. Bluntschli, §§ 294-295; Bonfils, § 533; Creasy, 241-249; Hall, 125-127; 1 Phillimore, 342-345; Pomeroy, 114-180; Rivier, 179- 180 ; Rivier, L. B., 145. 40. Acquisition of Territory by Conquest or Cession : the Loss of Terri- tory. Harcourt v. Galliard, Cases, 70; U. S. v. Percheraan, lb., 95; Am. Ins. Co. v. Canter, Ih., 657. Bluntschli, §§ 285-286; Liszt, 67, 151; 1 Phillimore, 369-387; 1 Rivier, 181-182, 197-217, 217-220; Rivier, L. B., 150-154, 154-155. (c) Acquisition of Rights in Foreign Territory, 41. Servitudes in International Law. Bluntschli, §§ 353, 359; Bon- fils, §§ 338-344 (note for literature) ; Creasy, 255-259; Hall, 166; Liszt, 67, 151; 1 Phillimore, 388-392; 1 Rivier, 258, 296 303. SYLLABUS. XXxi 42. The Navigation of Rivers. (1) The Mississippi, Cases, 132, note; (2) The St. Lawrence, lb., 132, note; (3) European llivers, lb., 132, note; (4) South American Rivers, lb., 132, note; (5) African Rivers, lb., 132, note. Bkmtschli, §§ 311-315; Bonfils, 2G4-270; Hall, 136-146; 1 ITal- leck, 171-179; Hart, 201; Heffter, § 77; 1 Jones, 392, 2 lb., .359; Lawrence, 186-189; Liszt, 206-213; 2 Martens, 345-361; 1 Pliilli- more, 223-247; Pomeroy, 147-164; 1 Rivier, 221-2t>9; Rivier, L. B., 155-162; Schu\'ler, The Free ^N^avigation of Rivers ami Seas (Am. Dip., 265-366); Taylor, §§ 233-241; D. Wheaton, 274-288; Woolsey, 79-83. 43. Protectorates over Semi-civilized Peoples. "Spheres of Influence." Bonfils, §§ 182-187, 558-562, 176 (note for literature generally on the subject of protectorates); Hall, §§ 38*, 38**; Hall, Foreign Powers and Jurisdiction of the British Crown, 1894, pp. 204-238; Hill, The Growth and Development of International Law in Africa, 16 Law Quarterly Review, 249-268; Liszt, 73-74; Westlake, 174-189. {(T) Boundaries. 44. In the United States, the Political Department of the Government determines what are the Boundaries under Treaties. Foster v. Neilson, Cases, 75; U. S. v. Texas, lb., 76, note 1; hi re Cooper, lb., 76, note 1; James Gr. Swan, lb., 76, note 1. 45. The Determination of River-Boundaries. Handly v. Anthonj'-, Cases, 116; Buttenuth v. St. Louis Bridge Co., lb., 121; Cooley v. Golden, lb., 129; The Twee Gebroeders, lb., 129, note; Opinion of C. Gushing, 1856, 8 Op. Atty.-Gen., 175. Bluntschli, §§ 298-300; Bonfils, § 487; Liszt, 71; 1 Martens, 454- 456; 1 Rivier, 165-171; D. Wheaton, 274. 46. Determination of Boundaries in the Cases of Lakes and Mountains. Bluntschli, §§ 297, 301-303; Bonfils, § 487; Hall, § 38; 1 Mar- tens, 457-458. (e) Territorial Waters of a State. 47. The History of Attempts to appropriate the Seas, or Portions of them; the contest between mare clausum and mare liberum. Bluntsdili, §§ 304-309; Bonfils, §§ 572-576; 1 Calvo, §§ 348-352; 2 Cauchy, Le droit maritime international, 1862, 92-124; Creasy, 22(5-231; Hall, § 40; Liszt, 196-197; 1 Martens, 491-496; 1 Phillimore, XXXU SYLLABUS. 247-256; Pomeroy, 182-190; 1 Rivier, 234-239; Eivier, H. B., 166-168; Snow, § 12; Taylor, §§ 242-246; 1 Tvviss, 284-291; Walker, Science, 163-171; D. Wheaton, note 113. 48. The Origin of the Rule limiting the Territorial Right of a State in the Sea to a Marine League from the Shore : " Terrae dominium finitur ubi finitur armorum vis." The Queen v. Keyn, Cases, 154. Boufils, §§ 490-494; 1 Calvo, §§ 354-356; Creasy, 233-240; Hall, § 41; 1 Halleck, 157; 1 Phillimore, 274 et seq.; Pomeroy, 176- 180; Walker, Science, 171-175; Wharton's Digest, § 32; Woolsey, 68-70. . 49. Bodies of Water more than Six Miles wide : (a) Straits and Lakes, more than six miles ivide. — U. S. v. Eodgers, Cases, 132; The Sound Dues, D. Wheaton, 264-267; Snow's Am. Dip., 124-127; Schuyler, Am. Dip., 306-316; The Bosphorus and Dardanelles, D. Wheaton, 263-264, 273-274, note 111; Schuyler's Am. Dip., 317-318. (&) Bays and Gulfs. — The Alleganean, Cases, 143; Dunham v. Lamphere, Ih., 153, note; The Schooner Washington., lb., 153, note; jNIahler v. Transportation Co., Ih., 153, note; Manchester v. Massachusetts, lb., 153, note; Shively v. Bowlbj'^, Ih., 153, note. Bluntschli, § 309; Bontils, §§ 495-505, 516; 1 Calvo, §§ 357-374; Hall, 161-164; 1 Hallech, 165-172; Liszt, 76-197; Perels, Manuel du droit maritime international, 1884, 42-46; Pomeroy, 164-176; 1 Rivier, 143-159; Rivier, H. B., 133-137; Taylor, §§ 229-231; Wharton's Digest, §§ 28-29; Woolsey, 76-79. 50. Interoceanic Canals. — Suez Canal, 1869 (neutralized, 1888) ; Corinth, 1893; Kiel, 1896; Panama, . Bonfils, §§ 506-515; 1 Calvo, §§ 376-380; De Bustamante, Le canal de Panama, et le droit international, 27 R. D. I., 112, 223; Hart, 219-220; Holland, Studies, 270-293; 1 Jones, 410, 530, 2 Ih., 476; Lawrence, The Suez Canal in International Law (Studies, 41-88), The Panama Canal and the Clayton-Bulwer Treaty {Ih., 89-162); Liszt, 75, 213-215 (authorities cited, 213, note); 1 Rivier, 231, 2 Ih., 395; Rivier, H. B., 163-166 ; B. Wheaton, § 205 (c. d. e.). III. Territorial Jurisdiction", (a) Doctrine of Exterritorialitij. — Exception to the Rule of Exclusive Territorial Jurisdiction. 51. Sovereigns may sue in Courts of Foreign State. Republic of Mexico V. Arrangoiz, Cases, 170; Priuleau v. U. S., Ih., 173; U. S. v. Wagner, Ih., 175 ; The Sa2)2)hire, lb., 178. SYLLABUS. XXxiii 52. Sovereigns are exempt in (1) their Persons, (2) in their Official Representatives, and (3) in their Property from the Jurisdiction of Foreign Courts of Law. De Haber v. Queen of Portugal, Cases, 180; Strousberg v. Costa Kica, II)., 181, note; Mighell v. Sultan of Jaliore, lb., 181, note; So. African E,ep. v. Co. Fr. -Beige, lb., 181, note; Underbill v. Hernandez, lb., 62; Vavasseur v. Krupp, lb., 182; Beers v. -Arkansas, lb., 18G; for other cases, see lb., 189, note. Bluntschli, §§ 129-134; Bonfils, 632-647; 3 Calvo, §§ 1451- 1479; Hall, §§ 47-49; Helfter, §§ 48-57; 2 Jones, 12, 463; Liszt, 106-109; 2 Pbillimore, 133-155; 1 Rivier, 411-425; Eivier, L. B., 249-256; Snow, § 20; Taylor, § 184. 53. The Right of Legation : Rights, Privileges, and Duties of Diplo- matic Representatives. Bluutselili, §§ 159-240; Bontils, §§ 652- 702, 722-732; 3 Calvo, 165-215, 295-307, 323-336; Hiibler, Die Magistraturen des volkerrecbtlicben Verkehrs, 1900; Lisboa, Ex- territorialite et immunites des agents diplomatiques, 1 R. D. I. (2d ser.), 354-367; Liszt, 109-118; 2 Pbillimore, 176-201, 246-264; Pomeroy, 396-454; 1 Rivier, 429-488; Rivier, H. B., 257-280; Schuyler, Diplomatic Officials (Am. Dip., pp. 105-190); Snow, §21; Taylor, §§ 273-300, 303-304, 305-306, 313-324; 1 Twiss, 333-381 ; Woolsey, §§ 86-98. 54. Immunities of Diplomatic Agents : (a) From Cfiminal Jurisdiction. — (1) Case of Bishop of Ross, 1571, Cases, 191, note; (2) Case of Mendoza, 1584, lb., 191, note; (3) Case of Da Sa, 1653, lb., 191, note; (4) Case of Gyllenborg, 1717, lb., 192, note; (5) Case of Prince Cellamare, 1718, lb., 192, note. Bluntschli, §§ 136, 141, 142 ; Bonfils, §§ 708-711 ; 3 Calvo, §§ 1511- 1520; Hall, 178-180; 1 Halleck, 332-339; 2 Pbillimore, 199-218; 1 Rivier, 488-493; Rivier, L. B., 280. 55. Immunities of Diplomatic Agents : (b) Exenqjtion from Cicil Jurisdiction. — (1) Case of Peter the Great's Ambassador, 1708, Cases, 4, 6, 192, note; (2) Case of Baron de Wrech, 1772, lb., 192, note; (3) Case of Wheaton, 1839, lb., 192, note; (4) Case of Dillon, 1854, lb., 192, note; (5) Case of Dubois, 1856, lb., 192, note; Heathfield v. Chilton, lb., 189; Parkinson v. Potter, lb., 192; in re Baiz, lb., 197; Wilson v. Blanco, lb., 206; New Chile Mining Co. v. Blanco, lb., 207, note; Diipont V. Pichon, lb., 208, note. XXXIV SYLLABUS, Bluntschli, §§ 135-153; Bonfils, §§ 712-721; 3 Calvo, §§ 1506- 1510; Hall, 180-188; 2 Phillimore, 219-240; 1 Rivier, 439-518; Rivier, H. B., 283-292; D. Wheaton, 299-320 (especially Dana's notes, nos. 125-131) ; L. Wheaton, 392-416. 56. Armed Forces and Ships of War in Foreign Territory are exempt from Local Jurisdiction. The Schooner Exchange v. M'Faddon, Cases, 208; The Const it at ion, lb., 218; Coleman v. Tennessee, lb., 212, note; JSTeal Dow v. Johnson, lb., 212, note. Bluntschli, § 321; Bonfils, §§ 614-623; 3 Calvo, §§ 1550-1560; Ferber, Internationale Rechtsverhaltnisse der Kriegs- und Handels- schiffe, im Krieg und Frieden, 1895; Hall, §§ 54-57; 1 Halleck, 215-230; Lawrence, 222-226; Liszt, 78, 82, 194-196; Morse, Status of Public Vessel in Foreign Waters, 22 Wash. L. Rep. 707 ; 1 Phillimore, 476-483; Pomeroy, 209-220; 1 Rivier, 156, 330- 335; Snow, § 23; Taylor, §§ 253-261; Twiss, Exterritoriality of Public Ships of War (Law Magazine and Review, 1876) ; Whar- ton's Digest, § 36; D. Wheaton, § 100, notes, nos. 61 and 63. 57. Public Ships other than Men-of-war are likewise exempt from Process in Foreign Ports. The Parlement Beige, Cases, 220, and note; Vavasseur v. Krupp, Ib.^ 182, and note 1, 186. Bonfils, § 629; Hall, §§ 44, 57*: Liszt, 82. 58. Merchant Vessels do not, as a Rule, enjoy Exemption from Local Juris- diction in Foreign Ports : The exemption, if it exist, is the result of a special custom based upon a tacit or express renunciation of terri- torial sovereignty. Wildenhus Case, Cases, 227 ; The Newton and The Sally (1 Ortolan, Diplomatie de la Mer, 450), lb., 227; Case of Jally (1 Ortolan, lb., 455), lb., 229; The Anemone, lb., 228, note; Ellis v. Mitchell, lb., 234; in re Ross, lb., 238; The Creole, lb., 252, 255, note; Other Cases, lb., 233, note. Bluntschli, §§ 317-320, 322; Bonfils, §§ 595-606, 624-629; 1 Calvo, § 474; Hall, §§ 58-60; 1 Halleck, 230-232; Liszt, 75, 78- 81 ; A. P. Morse, Competence de la jurisdiction locale a I'egard des navires de commerce etrangers, 18 J. I. P., 751, 1088; 1 Philli- more, 483-487 ; Pomeroy, 220-224; Snow, § 26; Taylor, §§ 263-271. 59. The Fiction of Exterritoriality, — its Origin and Purpose explained and criticised. Hall, § 57; Historicus, 201-212; Liszt, 70-71, 114-115; I'ietri, Etude critique sur la fiction d'exterritorialite, 1895; Piggott, Exterritoriality, 1892. SYLLABUS. XXXV (b) Right of Asylum. 60. Legations should not and do not, as a Rule, grant Asylum either to Political Refugees or to Fugitives from Justice. Exception in the Case of Spanish-American States. Duke of Ripperda, 1726, Cases, 257, note; Springer's Case, 1747, lb., 258, note; United States V. Jeffers, lb., 256. Bluntschli, §§ 151, 200, 201; Bonfils, §§ 696-698; Gilbert in 15 Harvard Law Rev., 118-140; Hall, 186, §52; Liszt, 116; J. B. Moore, Asylum in Legations and Consulates and in Vessels, 7 Pol. Sc. Quart.; 1, 197, 397; A. P. Morse, So-called Right of Asylum in Legations, 45 Alb. L. J., 311; 1 Rivier, 499-502; Snow, § 27; Taylor, §§ 311-312. 61. Sound Principle, if not Practice, would seem to deny to Ships of War the Right to grant Asylum to Political Refugees. It is, how- ever, Common Practice in Spanish-American Waters. (2) Forbes v. Cochrane, Cases, 258; (1) Lord Stowell's Opinion in the Case of John Brown, 1820,/^., 264, note; Admiral de Gama's Case, 1894, 1 R. D. J. P., 273 et seq. ; Martens-Ferrao in 26 R. D. I., 378; Fugitive Slaves and Other Cases, Cases, 255, note. Bonfils, § 622; Hall, 203-204; 1 Halleck, 228-230; Lawrence, 226-229; Maine, 86-88; Taylor, §§ 259, 260. 62. Merchant Ships, not being exempt by International Law from the Jurisdiction of the Foreign Port, cannot properly grant Asylum to Political or other Refugees. United States v. Diekelman, Cases, 264; Sotelo's Case, lb., 273, note; Lord Aberdeen's Opinion, lb., 273, note ; Gomez' Case, /&., 274, note; Barrundia's Case, lb., 275, note ; Bonfils, 328-330 ; Coudert, Le droit de refuge a bord d'un navire etranger, 23 Journal de Droit, Int. Prive, 780; Lawrence, 227-228 ; J. B. Moore, in Political Science Quarterly, 1892 ; Taylor, § 271. (c) Other Questions of Territorial Jurisdiction, 63. Jurisdiction over Passing Vessels. The Queen v. Keyn, Cases, 154. 1 Jones, 284 ; Foster in 11 Am. Law R., 625 ; Hall, § 59, and notes; Liszt, 76-81; 1 Rivier, 150; Schticking, Das Kiistenmeer im internationalen Rechte, 1897. XXXVl SYLLABUS. 64. Are Aliens exempt from Military Duty ? Bluntschli, § 391; Bonfil.s, §445; Hall, § 61, and note 2; Liszt, 69; 1 Kivier, 304-306; 6 Richardson's Messages and Papers, 168, 180 ; Roche, 15 J. I. P., 731; Taylor, § 467; Wharton's Digest, § 202. C5. Are Offences committed by Citizens or Foreigners, beyond the Limits of a State, subject to the Jurisdiction of its Courts ? U. S. V. Davis, Cases, 294; State v. Wyckoff, Ih., 296; State v. Cai'ter, lb., 298, note; State v. Knight, Ih., 300, note; Common- wealth V. Macloon, lb., 300, note; Commonwealth v. Blanding, lb., 300, note; Cutting's Case, lb., 301; United States v. Smile}', lb., 302; Other Cases and Opinions, lb., 304, note. Bonfils, §§ 436-438 ; Diena, Des conflits de legislation a I'egard des delits commis a I'etranger, 20 J. I. P., 24; Fiore, Deiits commis a I'etranger, 11 R. D. I., 302 ; Fusinato, Des delits commis a I'etranger, 19 J. I. P., 56 ; Gamboa, L'Alfaire Cutting (Mexican view), 22 R. D. I., 234-250; Hall, 221-223; Heffter, § 36; 2 Jones, 262; 1 ]\rartens, §§ 85-86; Moore, Report on the Cutting Case, 1887 ; 1 Rivier, 271, 867 ; Rolin, L' Affaire Cutting, 20 R. D. I., 557-577; Taylor, §§ 194-197; Wharton, Conflict of Laws, 2d ed., §§ 809-813 ; Philosophy of Criminal Law, 309 et seq. Q>Q). Criminal Jurisdiction of State Courts in the United States. U. S. v. Bevans, 1818, 3 Wheat. 336 (at p. 386). 67. Extradition of Fugitives from Justice : (1) is, in International Law, a Conventional not a Moral Duty ; it does not exist in the Absence of Treaty Stipulations; (2) it is, in the United States, strictly and exclusively a Federal Question ; (3) the Person extradited is triable for the Offence for which he was extradited, but for no other, U. S. V. Rauscher, Cases, 274 ; Case of Arguelles (1 Moore on Extradition, 33), Cases, 282, note ; Ex parte Holmes (1 Moore. 55 58), lb., 282, note ; Winslow's Case (1 Moore, 196, 212), lb., 282, note. 68. As a Person is extradited for the Commission of a Conventional Crime, the Nationality of the Criminal is clearly immaterial ; how- ever, to prevent misunderstandings, it is customary to exclude citizens of the contracting States from the operation of the provi- sion of the treaty. Case of Trimble (1 ]SIoore, 166, 152-193), Cases, 293, note. 69. States do not, as a Rule, surrender Persons charged with Political or Military Offences. In re Castioni, Cases, 285 ; ui re Ezeta, SYLLABUS. XXX Vii lb., 293, note ; Burley's Case (1 Moore, 319), lb., 293, note ; St. Alban's Raid (1 Moore, 322), lb., 293, note ; Gazo's Case (1 Moore, 324 j, lb., 293, note. De Hart, The Extradition of Political Offenders, 1 Law Quarterly Review, 177-187. 70. Extradition, termed "Inter-state Rendition," obtains between the Members of the American Union ; it is, however, a " moral " as distinguished from a " legal " duty. It differs from the extradition of the Law of Nations in that the person rendered or delivered up may properly be tried for and convicted of a crime other than that for which he was surrendered. State v. Patterson, Cases, 283, and note p. 285 for other cases. 71. Leading Authorities and References on Extradition: v. Bar, Lehr- buch des internationalen Privat- und Straf-rechts, 1892; Bernard Traite theorique et pratique de I'extradition, 2d ed., 1890 Bellot, Traite de I'extradition, 1874 ; Bluntschli, §§ 394-401 Bonfils, §§ 455-481 ; 2 Calvo, §§ 949-1071 ; Clarke, Treatise on the Law of Extradition, 3d ed., 1888 ; Hall, 60-61 : 1 Halleck, 235-239, 257-268 ; Heffter, § 63 ; 1 Jones, 199-202, 2 lb., 176- 177; Lanimasch, Auslieferungspflicht und Asylrecht, 1887; Lam- mascli, Rechtshilfe und Auslieferungsvertrage (3 Holzendorff, H. B., 345-579); Lawrence, 233-240; Liszt. 242-246; 3 Martens, 2-116 ; Martitz, Internationale Rechts hilfe in Strafsachen, 1887, 1897 ; Moore, Treatise on Extradition and Interstate Rendition, 1891 ; 1 Philliraore, 515-552 ; Poraeroy, 235-242 ; 1 Rivier, 348- 357 ; A. Rolin, Du principe de la non-extradition en matiere de delits politiques, 24 R. D. I., 17-38 ; La repression des attentats anarchistes, 26 lb., 125-152; and articles in 15 7^., 147-166, 254- 282, 19 lb., 545-580'; Spear, The Law of Extradition, 2d ed., 1884 ; De Stieglitz, Etude sur I'extradition des criminels, 1883 ; Taylor, §§ 205-212; 1 Twiss, 405-417; D. Wheaton, 180-191, and notes; Woolsey, 111-117. 72. Extraterritorial Acts of Persons by Order of their Government. Buron V. Denman, Cases, 305, and note 307 ; The Rolla, lb., 309, note ; Case of McLeod, Ih., 319, note. Hall, § 65 ; Liszt, 177-180 ; Snow, § 21 ; Taylor, § 131 ; L. Wheaton, 189, note. 73. Extraterritorial Acts of a State in Self-defence. Commonwealth v. Blodgett, Cases, 308 ; The Caroline, lb., 67, 319, note ; (1 Jones, XXXVlil SYLLABUS. 263); Seizure of St. Marks, lb., 320, note; The Virginius, lb., 320, note. Case of The Virginius, 3 L. Mag. and Eev. N. S., lb., 78, 609; 1 Jones, 262; Int. Law of The Virgi^iius, lb., 56; L. T., 69, 263; 8 Am. Law. Rev., 470; Bonfils, §242; Hall, §§83-87; Liszt, 182-184; Taylor, §§ 401-409; Wharton's Digest, § 50; Woolsey. 366-370. 74. Responsibility for Injury to Foreigners by Civil Commotions and Mob-violence. New Orleans v. Abbagnato, Cases, 320 ; New Orleans Riot, 1851 (2 Wharton's Digest, 600), New Orleans Mob, 1891, Cases, 329, note; L' Affaire d'Aigues-Mortes (1 R. D. I. P., 171-178). Bar in R. D. I., 2d s.. Vol. 1, 464-481; Bluntschli, §§ 379-380, bis; Bonfils, §§324-332; Bryce in New Review, 1891; 3 Calvo, 142- 156; Despagnet, Les difiicultes Internationales venant de la consti- tution de certains etats, 2 R. D. L P., 184-199 ; Hall, 226-231 ; Huffcut, International Liability for Mob Injuries, 2 Am. Acad. Pol. & Soc. Sci., 69 ; 2 Jones, 342, 1 Jones, National Responsi- bility for Injuries to Foreigners, 49 L. T., 84 ; Liszt, 180-182; ^litchell, International Liability for Mob Injuries, 34 Am. Law Rev., 709-721; Snow, § 22; Taylor, §§ 129-130, 215-216. 75. Is the Jurisdiction of a State over its Citizens and Property on the High Seas exclusive ? Bluntschli, §§ 317-319 ; Bonfils, §§ 607-613 ; Hall, § 77; 2 Jones, 211; Lawrence, 205-208 ; Liszt, 82; 1 Mar- tens, 496-497; Snow, § 23; Taylor, § 262; D. Wheaton, §§ 108- 109. 76. Theory of the Territoriality of Merchant Vessels. Hall, 258-267 ; Heffter, § 78 ; Historicus, 199-212 ; Liszt, 82 ; 2 ^lartens, 336 ; Pomeroy, 220-222 ; 1 Rivier, 140, 240 ; Taylor, § 263 ; Walker, Manual, 53-55 ; Woolsey, § 58. 77. Impressment of Seamen. Foster, Century Am. Dip., 235-238 ; Hart, 203-204; Schurz, Clay, Vol. I., pp. 70-96; Walker, Manual, 54-55; 3 Wharton's Digest, § 331; D. Wheaton, §§ 108-109, and note 67. 78. Jurisdiction over Merchant Vessels on the High Seas. Wilson v. McNamee, Oases, 329; Crapo v. Kelly, lb., 331, note; Regina v. Anderson, lb., 331, and note, 336; Regina v. Lesley, lb., 337; The Belgenlayid, lb., 338. See also Cassidy v. U. S., 1883 (Second Court SYLLABUS. XXxix of Commissioners of Alabama Claims, no. 144), 5 Moore, Int. Arb., 4672; The Costa Rica Packet, 1897, 5 Moore, Int. Arb., 4948-49o3. Snow, § 24. 79. Municipal Seisures beyond the Three-mile Limit. Church v. Hubbart, Cases, 343, note ; The Itata, lb., 344, note ; Other (!!ases, lb., 344, note 1; Act of Congress, March 2, 1797, § 27; Phelp's Argument before Behring Sea Tribunal (Am. Case, 150). Liszt, 200; 1 Rivier, 151; Snow, §26; Wharton's Digest, 105, 106, 109-112; B. Wheaton, § 179 a; D. Wheaton, 258, note, 108. 80. Piracy. — Definition and Character of Piracy jure gentium. Opinion of Sir L. Jenkins, Cases, 345 ; United States v. Smith, lb., l.'> ; The Magellan Pirates, lb., 351; The Cases of The Anna, 1895, The Pvosper-Corlin, 1896 (4 R. D. 1. P., 425-427). Bluntschli, §§ 343-352; Bonfils, §§ 594-595; 1 Calvo, §§ 485-495; Hall, § 81; 1 Jones, 429, 2 lb., 392; Liszt, 201-203; 1 Fhilli- more, 489 et seq. ; Pomeroy, 224-229 ; 1 Rivier, 248-251 ; Rivier, L. B.,173; Schuyler, The Piratical Barbary Powers (Am. Dip., 193-232) ; Snow, § 27 ; Taylor, § 188 ; Walker, Manual, 55-60 ; L. Wheaton, 246, note, no. 79; Woolsey, § 144. 81. May Rebels and Insurgents be regarded as Pirates? Piracy by Municipal Law. United States v. The Ambrose Light, Cases, 346 ; United States v. Baker, lb., 350, note 1; Golden Rocket Cases, lb., 350, note 1 ; Fifield v. Insurance Co., lb., 350, note 1 ; Otlier Cases, lb., 351, note. 1 Calvo, §§ 496-512; Hall, § 82; 1 Halleck, 79-84; Holland, Studies in Int. Law, 159-160 ; Insurgents not Pirates, 32 Alb. L. J., 65; Lawrence, 209-219; Penfield, International Piracy in Time of War, North Am. Review (July), 1898; Taylor, §189; 3 Wharton's Digest, 469; Wharton in 33 Alb. L. J., 125; D. W^heaton, 196, note ; Woolsey, § 145 ; Wright, Recognition of Insurgents as Belligerents and Status of Insurgent Cruisers, 1 Pa. Law Ser., 491. 82. The Slave Trade is not Piracy jure gentium. Le Louis, Cases, 352; Other Cases, lb., 369, note 1. Bluntschli, §§ 351-352; Bonfils, §§ 398-409; Creasy, 259-277; 5 Calvo, §§ 2996-3003 ; 1 Jones, 512 ; 2 lb., 456 ; Lawrence, 214- 219 ; Liszt, 266-271 ; De Montardy, La traite et le droit interna- tional, 1899; 1 Phillimore, 402-442; Pomeroy, 229-230; 1 Rivier, 374-379 ; Taylor, § 190 ; Walker, Manual, 60-65 ; D. Wheaton, §§ 125-133 and notes, 85-89; Woolsey, § 146. xl SYLLABUS. V. IXTERTEN'TION'. 83. Character and Conditions of Intervention. BluntscLli. §§ 68-69, 431-441; 474-480; Bonfils, §§ 295-323; Bourgeois, Le Principe de non-intervention, 4 E,. D. I. P., 745; Creasy, 278-296; de Floeckher, De I'intervention en droit international, 1896 ; Cover, Public Intervention, 20 L. Mag. & Pvev., 4th s., 259; Hall, 297- 299; Heffter, §§ 44-46; Lawrence, 115-117; 1 Martens, § 76; 1 Phillimore, 553-638; Historicus, 14, 41; 1 Jones, 266; Liszt, 56- 59,277-279; 3 Moore, Int. Arb., 2313-2447; Payn, Intervention among States, 26 Law !^^agazine and Review, 5th ser. 176-201 ; Pomeroy, 242-245; 1 Eivier, 389-404; Eivier, L. B.. 243-247; Snow, § 28; Taylor, §§ 81-90; 1 Wharton's Digest, § 45; D. "Wheaton, § 63. 84. Intervention on the Ground of Self-preservation for the Protection of (1) Institutions, {2) Good Order, (3) the External Safety of the Intervening State. Ci-easy, 297-308; Hall, 299-301; Lawrence, 117-135, 652-666; Pomeroy, 245-246; Taylor, §§410-430. 85. Intervention against Illegal or Immoral Acts. Case of Greece. 1826: Bulgaria, 1876; Cuba, 1898 : China. 1900. Hall, 302-306; Hart, Century of Cuban Diplomacy (Foundations of American Foreign Policy, 108-133); Liszt, 58, 283; Taylor, §§ 416-419 (See the Spanish side of the question by De Olivart, 4 R. D. 1. P., 577; 5 lb., 358, 449; 7 lb., 541; 9 Jb., 161); China and Inter- national Questions, 192 Edinburgh Rev., 450 ; Jellinek, China and International Law, 35 Am. Law Rev., 56-62; Lapradelle, La ques- tion chinoise, 8 E. D. I. P., 272-340 ; 9 lb., 49-115 et seq. 86. Intervention under a Treaty of Guarantee on Invitation of one of the Parties to a Civil War, — under Collective Authority of the Body of States. The Case of the Allies in 1821 in Spain and Italy; Bel- gium, 1830; U. S. in Peru, 1881; the constant intervention of the Powers in the affairs of Turkey, and the not infrequent inter- meddling with Greece. Foster, Century American Diplomacy, 358-382; Hall, 305-309; Holland, Studies in International Law, 201-269; Holland, Euro- pean Concert in the Eastern Question, 1885; Rolin-Jacquemyns, Le droit international et la question d'Orient, 8 R. D. I., 293, 811; Les evenements d'Orient, 10 jTZ*., 5; Du droit d'intervention, 8 lb., 673 ; 9 lb., 103; La question d'Orient en 1885, 18 lb., 373, 504, 591; 19 lb., 37; Streit, La question cretoise, 4 R. D. I. P., SYLLABUS. xli 61,446; Hart, 163-165,209-210; Hart, Foundations of American Foreign Folic}', 1901, pp. 211-240; Intervention and the Monroe Doctrine, 1 Jones, 379, 2 lb., 344-345; Oilman's Life of Monroe, pp. 159-1 79, 277-294 (bibliogra))hy of the doctrine, classification, and enumeration of its various applications) ; Holls, Feace Confer- ence at The Hague, pp. 270-271; Fellawaj-, The Monroe Doctrine, 1898. 87. Nationality : The Doctrines of Indelible Allegiance and Expatria- tion. Case of /Eneas MacdonalJ; Cases, 370; Williams' Case, /6., 372, and note 374; Act of Congress, July 27, 1808, Ih., 375; Act concerning Aliens and British Subjects, lb., 377, note; French Practice, lb., 347, note. 2 Calvo, §§ 539 et seq.\ Cockburn, Nationality; Creasy, 357; Hall, 233-239; 1 Halleck, 401-403, 424-427; Hart, 216-218, 244-245; Heffter, § 59 a; 1 Jones, 391, 2 lb., 358-359; Jellinek, Recht des modernen Staates, 306-386; Lawrence, 190-193; Liszt, 62, 86; 3 Moore. Intr. Arb.. 2449-2655; 1 Rivier, 268-271, ,30.3-306; Rivier, L. B., 194-196; Snow, § 29; Taylor, §§ 172-180; Walker, Science, 204-218; Wharton's Digest, § 171; L. Wheaton, 891 et seq. 88. Citizenship. — Naturalization. Blair v. Silver Peak IMines, Cases, 376; Littell v. Erie R. Co., lb., 378; City of Minneapolis v. Reum, lb., 390; in re Moses, lb., 396; Hausding's Case, lb., 399, note; Embden's Case, lb., 399, note; Slaughter House Case, Ih., 400, note; De Bode v. Regina, lb., 400, note. On the question of citi- zen and alien, and the protection accorded to them in general, Cassidy v. U. S., 1883 (Second Court of Commissioners of Alabama Claims, no. 144), 5 Moore, Int. Arb., 4672; The Pacific Mills v. U. S., 1883 (Second Court of Alabama Claims, no. 793), 5 Moore, Int. Arb., 4673. Bluutschli, §§ 364-374; Bonfihs, §§ 417-432; Hall, 239-256; 1 Halleck, ch. 12; Hart, 146-149, 225-226; 1 Jones, 8.5, 2 lb., 71 (Citizenship), 1 lb., 391-392, 2 lb., .359 (Naturalization); Law- rence, 193-202; Liszt, 95-101; 2 Martens, 247-287; De la qualite de citoyen d'un etat au point de vue des relations Internationales, 2 R. D. I., 107; 1 Phillimore, 44.3-459; 1 Rivier, 204-213, 307- 309; Salmond, Citizenship and Allegiance, 17 Law Quart. Rev., 270-282, 18 7^*., 49-63; Snow, § 30; Stoerk, Les changements de nationalite et le droit des gens, 2 R. D. I. P., 273; Westlake, De la naturalization et de I'expatriation, on de changement de nationalite, 1 R. D. I., 102; Woodworth, Who are citizens of the United States, 32 Am. Law Review, 554— .555. xlii SYLLABUS. 89. The Condition of a Naturalized Citizen who subsequently returns to his Native Land. A Prussian Subject's Case, Cases, 399, note; Wagner's Case, lb., 400. note; Zeiter's Case, lb., 401, note. Liszt, 97; Pomeroy, 251-258; Snow, § 31; 2 Wharton's Digest, §§ 181-182. 90. Nationality of Children born abroad ; of Illegitimate Children ; of Married Women. Hall, §§ 67-70; 1 Jones, 82 (and ante, § 87); Wharton's Digest, §§ 185, 186. 91. The Effect of Domicile, and Declaration of Intention to become a Citizen, upon the Nationality of a Foreigner. His Relations to the Adopting State, when abroad, and the Protection it may accord him. City of Minneapolis v. Reum, Cases, 390; in re Moses, lb., 396; Koszta's Case, /ft., 400, note; Tousig's Case, lb., 401. 2 Calvo, 45; Hall, § 72; 1 Halleck, 109-111; Pomeroy, 252-260; Taylor, §§ 202-203; Walker, Manual, 66-68; Wharton's Digest, §§ 175, 198; D. Wheaton, note, no. 49 (especially at p. 146); Wool- sey, Appendix III. 92. Persons Destitute of Nationality : " Heimatlosen." Bluntschli, § 369; Hall, § 74; Liszt, 96; 1 Rivier, 304-306. 93. Status of Chinese in the United States. Treaty of 1880, nnd Acts of Congress of May 6, 1882, July 5, 1884; Geary Act of 1892, Act of 1902. Under the Fourteenth Amendment to the Constitution. Chinese children, born in the United States, are citizens thereof, Ex parte Chin King, Cases, 379; Fong Yue Ting, lb., 332; United States V. Wong Kim Ark, lb., 381, note; Fok Yung Yo v. U. S., 1901, 185 U. S. 296. 2 Butler, Treaty-Making Power, 87-123, and notes (an elaborate and critical consideration of the status of the Chinese citizen and alien); Hart, 179-180; 1 Jones, 82; 2 lb., 68. 94. Status of Indians in the United States. Indian tribes designated by Marshall, C. J., in 1831, as " Domestic Dependent Nations " (The Cherokee Nation v. Georgia, 5 Peter's Eep., 1). Since 1871 no formal treaties have been made with tribes, and they have been subjected to the authority of Congress. In 1884, the Supreme Court held that an Indian born in a tribe, though having left it, was not a citizen, and that the Fourteenth Amendment did not apply to him. Compare provisions of acts of March 3, 1885, and February 8, 1887 (allotment of lands to. Indians in severalt}'). Elk V. Wilkins, Cases, 398; U. S. v. Kagama, lb., 404; and see the case of Crow Dog, 109 U. S. 556. SYLLABUS. xli III 1 Eawle's Bouvier, 1015-lOlG, 328; 2 Butler's Treaty-lMaking Power, ch. XIV. ; Hart, 179-180, 196-197, 226 ; 1 Jones, 244, 2 lb., 229; 1 Thayer, Cases on Constitutional Law, p. 598, note; 2 Wharton's Digest, ch. VIII. VIT. International Agents of a State. 95. Persons designated by the Constitution of a State to manage its Foreign Affairs. — Department of Foreign Affairs. — State Depart- ment, in the United States. Diplomatic Agents. 1. Ambassa- dors, Legates, iSTuncios. 2. Envoys and Ministers Plenipotentiary. 3. Ministers resident. 4. Charges d'Affaires. Tlie first three classes are accredited to the Sovereign, the fourth to the Minister of Foreign Affairs. Bonfils, §§ 648-651; Foster, Organization of the Department of State fCentury of Am. Dip., pp. 103-135); Hall, 310-315; 2 Jones, 144; Liszt, 102-105; 1 Eivier, 426-428; Rivier, L. B., 256-257; Schuyler, The Department of State (Am. Dip., pp. 1-40); Snow, §32; Taylor, §§276-288; 1 Twiss, 339- 352. 96. Rights of Diplomatic Agents. — Refusal to receive a Minister. — Must be a persona grata. — Credentials ; Letters of Credence, Let- ters Patent; Full Powers; Instructions; Passport. Bluntschli, §§ 159-190; Bonfils, §§ 663-680; 3 Calvo, § 312, et seq.; Hall, § 98; 1 Halleck, 325-329, 358-362; HefEter, §§ 201-204, 208- 213; 218-221; Lawrence, 258-272; Liszt, 109-118, 111-112; 2 Phillimore, 156-198, 246-264; 1 Eivier, 453-475; Rivier, L. B., 269-274; Taylor, §§ 289-300; 1 Twiss, 336-339, 353-365; 1 Wharton's Digest, §§ 82-83; Woolsey, 126-135. 97. Termination of Mission. — Recall and Dismissal. Dupont v. Pichon, Cases, 208, note ; Torlade v. Barrozo, lb., 208, note ; Musurus Bey V. Gadban, lb., 208, note ; The De Lome Incident, 32 Am. Law Review, 265-268. Bluntschli, §§ 227-240; Bonfils, §§ 730-732; Hall, §§ 98-99 ; 1 Halleck, 363-366; Heffter, §§ 223-226, 227-240 (L'art diploma- tique); Liszt, 112; 1 Rivier, 512-518; Taylor, §§320-323; Whar- ton's Digest, § 84; D. Wheaton, 250. 98. The Rights and Immunities of Diplomatic Agents in Friendly States on the Way to or from their Posts. Wilson v. Blanco, Cases, 206; New Chili Gold Mining Co. v. Blanco, lb., 207, note; see also Holbrook v. Henderson, 4 Sanford (N. Y.), 631. xllv SYLLABUS. Hall, §§ 99-101; 1 Halleck, 362; Heffter, § 207; LLszt, 112; 2 Phillimore, 215-218; Pomeroy, 421-423; Rivier, 508-512; Taylor, §§ 293-294; Twiss, 373-378. 99. Consuls : Origin of Office. — Function. — Appointment. — Dismissal. Privileges. — Consuls diplomatically accredited. — " Lettres de Provision." — Exequatur. In re Baiz, Cases, 197; Other Cases, lb., 205, note. Bluntsclili, §§ 244-275; Bonfil?, §§ 733-775 (literature on subject, 376-378); 3 Calvo, §§ 1368-1431; Hall, §§ 105-106; 1 Halleck, 369- 386; Hart, 245-246; Heffter, §§ 244-248; 1 Jones, 107, 2 7Z».,93; Lawrence, 230-233, 272-'i74; Liszt, 119-125; 2 Martens, 95-121; 2 Phillimore, 265-336; Pomeroy, 443-451; 1 Pvivier, 519-542, lb., 238; Eivier, L. B., 292-303; Snow, 58-60; Schuyler, Our Con- sular System (Am. Dip., 41-104); Taylor, §§ 325-330; 1 Twiss, 378-382; Wharton's Digest, J§ 113-124; D. Wheaton, § 120. 100. Judicial Functions of Consuls in Semi-civilized Lands. Ellis v. Mitchell, Cases, 234; Dainese v. U. S., 15 Ct. CI. 64, Cases, 237, note; in re Ross, lb., 238; U. S. Rev. Stat., §§ 4083-4086, 4087- 4089; Cases, 237, note. Bonfils, §§ 776-791; 3 Calvo, §§ 1431 et seq. ; Dunwell, Our Con- sular Courts in China, 34 Am. Law Review, 8 '26 -840 ; 1 Halleclf, 386-400; 1 Jones, 107, 2 lb., 93; Liszt, 125-133; 2 Martens, 121-144; 2 Phillimore, 337-342; Pomeroy, 451-453; 1 Rivier, 543-558; Rivier, L. B., 303-308; Snow, 62; Taylor, § 333; Wharton's Digest, § 125. VIII. Treaties. 101. Nature and Kinds of Treaties. — Conditions necessary to the Valid- ity of Treaties. — Authority of Persons contracting. — Freedom of Consent. — Intimidation. — Fraud, etc. Foster & Elam v. Neilson, Cases, 412; Geofroy v. Riggs, II)., 413, and note; Hauenstein v. Lynham, Th., 419, note; Extradition Treaty, see Extradition, § 67, et seq., ante, and Terlinden v. Ames, Cases, 436; Arbitration Treaty, La Ninfa, Cases, 443. Bluntsclili, §§ 402-424, 442 ; Bonfils, §§ 816-823, 861-929 ; 3 Calvo, §§ 1567 et srq.', Hall, §§ 10S-1()9 ; 1 Halleck, 276-295; Heffter, §§ 83-88; Jellinek, Die rechtliche Natur der Staatsvertrilge, 1880; Die Lehre von den Staatenverbindungen, 1882, 100-113; Gesetz und Verordnung, 1887, 341-336; 1 Jones, 352-353, 2 lb., 500-501; SYLLABUS. Xlv Liszt, 159-169; 1 Martens, 510-561; 2 Pli ill i more, 68-83; Pome- roy, 23 etseq.; 2 Kivier, 33-71, 106-118; Rivier, L. B., 320-331, 342-346 ; Schuyler, Commercial Treaties (Am. Dip., 421-457) ; Snow, §33; Taylor, §§ 334-348,374-376; 1 Twiss, 382-402; D. Wheatoii, §§ 252-262; Woolsey, 159-164. 102. Some Agreements in the Form of Treaties are not Subjects of Inter- national Law. Bluntschli, § 443; Hall, § 107, and note. 103. Forms. — Tacit and Express Ratification. — Refusal of Ratification. — Completion of Ratification. Boufils, §§ 824-831; Hall, 110; Hart, 211; Pomeroy, 332; 2 Kivier, 71-86; Rivier, L. B., 332-336; Taylor, §§ 361-367; 1 Twiss, 438-442; D. Wheatou, §§ 256-264. 104. Interpretation of Treaties. Convention of 1818 between England and the United States (Fisheries), the Clayton-Bulwer Treaty (1850). Adams v. Akerlund, Cases, 426, note ; Tucker v. Aiexandruff, lb., 426, note ; Other Cases, Ih., 426-427, note. Adler, Interpretation of Treaties, 26 Law Magazine Review, 5th ser. , 62-91,164-171; Bonfils, §§ 835-844; Hall, §§ 111-112; 1 Halleck, 296-305; Heffter, §95; Lawrence, Essays, 89-162; 2 Phillimore, 94-125; Pomeroy, 384-395; 2 Rivier, 122-125; Rivier, L. B., 346-348; Schuyler, The Fisheries (Am. Dip., 404-420); Taylor, §§ 377-390; D. Wheaton, § 287; Woolsey, 173-174. 105. Conflict between Different Treaties ; between Different Parts of the same Treaty ; between Law and Treaty. Sutton v. Sutton, Cases, 427; People v. Gerke, 5 Cal. 381, Cases, 420, note; Wunderle v. Wunderle, lb., 414 ; Whitney v. Robertson, lb., 422 ; Botiller v. Dominguez, lb., 426, note; compare U. S. v. Lee Yen Tai, 1901, 18.5 U. S. 213. Bluntschli, § 414; 2 Calvo, §§ 720-723; Hall, § 112; 2 Phillimore, 126-132; Taylor, §§ 391-393. 106. Treaties of Guarantee. Bluntschli, §§ 437-440; Bonfils, §§ 870- 912 ; Hall, § 113 ; Heffter, § 97 ; 2 Phillimore, 84-93 ; 2 Rivier, 94-105; Rivier, 338-341 ; Taylor, §§ 347-353 ; Woolsey, 166-170. 107. Legislation necessary to carry Treaties into Effect. In the United States a Treaty is by Constitutional Provision the Law of the Land. Is the House of Representatives in the United States under Obliga- tions to pass Acts necessary to carry Treaties into Effect ? The Jay Treaty, 1794, the Alaska Treaty, 1867. 1 Butler's Treaty-Making Power, ch. 10, 12; compare also ch. 11. xlvi SYLLABUS. 108. A Treaty dates from Signing : in its Operation on Individual Rights, from the Date of Ratification. Haver v. Yaker, Cases, 420 ; Davis V. Police Jury, Ih., 421, note. 109. The Obligation of Treaties. — Difference between a Void and a Voidable Treaty. — Test of Voidability. Bernard, Lectures on Diplomacy (1868), 168 ; Bluntschli, §§ 415,456-461; Creasy, 40- 44; Hall, 364-375, Heffter, § 98; 1 Halleck, 324; Maine, Ancient Law, 23; 2 Philliniore, 76; Pomeroy, 347; Taylor, §§ 363, 394- 398 ; Wharton's Digest, § 137 a. 110. Most Favored Nation Clause in Commercial Treaties. Whitney v. Robertson, Cases, 422 ; Herod, Favored Nation Treatment, an Analy- sis of the Most Favored Nation Clause, 1901 ; Kasson, Reciprocity, 1901; Liszt, 164-166; Wharton's Digest, § 134. 111. Extinction and Renewal of Treaties. Sutton v. Sutton, Cases, 427; Society for Propagation of Gospel v. Wheeler, lb., 428; Hooper V. U. S., Ih., 4.33 ; Terlinden v. Ames, lb., 436. Bonfils, §§ 851-860; Hall, § 117; Liszt, 166-169; Pomeroy, 356 et seq. ; 2 Rivier, 126-146; Rivier, L. B., 349-356; Taylor, §§ 399- 400. IX. Amicable Settlement of Disputes axd Attempts to mitigate THE Harshness and Hardships of War. 112. Arbitration. La Ninfa, Cases, 443; Pious Fund Case, lb., 449, note. Amos, Political and Legal Remedies for War; Bluntschli, §§ 488- 498; Bonfils, §§ 944-970 (literature, especially articles in foreign periodicals) ; 3 Calvo, §§ 1706 et seq. ; Rouard de Card, L'Arbitrage international, 1876; Creasy, 394-399; Hall, 378-380 (literature, note on 380); 1 Halleck, 102, 467-468, 485-487 ; Holls, The Peace Conference at The Hague, 1900 ; 1 Jones, 21, 2 lb., 19-20 ; Lapar- delle, La conference de la paix, 1900 ; Lawrence, Evolution of Peace (Essays, 234-277); Lawrence, 672-677; Liszt, 148, 279- 283 ; Maine, 207-228 ; 3 Martens, 138-155 ; Merignhac, Traite theroique et pratique de I'arbitrage, 1895; Moore, International Arbitration, 1898 (especially Vol. 5, " Treaties Relating to Arbitra- tions to which the United States has been a Party; " " Historical Notes," — a history of arbitration to date of publication); 3 Pbillimore, 1-17 ; Revon, L'arbitrage international, 1892; 2 Rivier, 166-188; Rivier, L. B., 366-372; Snow, § 38; Taylor, §§ 33, 356- 383. SYLLABUS. Xlvii 113. Mediation. Bluntschli, Introduction, p. 30, §§ 108-114,481-487; Bonfils, §§ 931-943; 3 Calvo, §§ 1G8% etserj. ; Heffter, §§ lOG-108 ; Holls, 176-203; Liszt, 276-279; 1 Martens, 534-538; 3 lb., 132- 138; Rivier, L. B., 363-366; Snow, § 34; Taylor, §§ 359-360; 2 Twiss, 12-16. 114. International Acts and Movements with a View to mitigate the Rigors of War. 1. The Declaration of Paris, 1856, 2 Twiss, 512- 524; 2. The Geneva Convention, 1864, 2 Twiss, 524-557; Conven- tion of 1868 ; 3. The Declaration of St. Petersburg, 1868, 2 Twiss, 557-561 ; 4. The Brussels Congress, 1874, 7 R. D. I., 87, 438 ; 5. The Hague Conference, 1899; Holland, Studies, 59-78; Holls, Hague Conference; 93, 134; Maine, 123-142; 2 Rivier, 260-273; Taylor, §§35-36. PART II. INTERNATIONAL RELATIONS AS MODIFIED BY WAR. I. Means Short of War — Definition of War — Declaration OF War, 115. Reprisals. — Retorsion. — Pacific Blockade. The Nereide, Cases, 451; Gray v. U. S., Ih., 452; Case of Don Pacifico, 1850, lb., 461, note; Other Cases, Ih.; Retorsion, Cases, notes, 459-463; Pacific Blockade, lb., 463 note. Barclay, Les blocus pacifiques, 29 R. D. I., 474; Bluntschli, §§ 499-508; Bonfils, §§ 972-994; 3 Calvo, §§ 1809 et seq.; Creasy, 400-404; Hall, 381-390; 1 Halleck, 470-474, 2 lb., 109; Heffter, §§ 110-112; Holland, Studies, 130-150; 1 Jones, 429, 2 lb., 378-427; Lawrence, 293-295, 297-298; Liszt, 283-286; 3 Phillimore, 18-43; 2 Rivier, 189-199; Rivier, L. B., 372-376; Snow, §§ 35-37; Taylor, §§ 435-437, 444-446; 2 Twiss, 18-38; Walker, Science, 154-158; D. Wheaton, §§ 290-292, and note no. 151; L. Wheaton, 501-510, and note no. 168; Woolsey, 181-187. 116. Hostile Embargo. Boedes Lust, Cases, 460 and 463 note. 3 Calvo, §§ 1824 et seq.; Creasy, 435; Hall, § 120; 1 Halleck, 481; Heffter, § 111; Lawrence, 295-297; 3 Phillimore, 44-49; Taylor, §§ 431-434; D. Wheaton, § 293, and note no. 152; L. Wheaton, 510, and note no. 169; Woolsey, 180. 117. Declaration of War. — War without a Declaration. — Civil War. — Date of the Beginning of a War. Dole v. Merchants Mutual Marine Ins. Co., Cases, 470; The Panama, lb., 474, note; The Prize Cases, xlviii SYLLABUS. lb., 475; Matthews v. McStea, lb.. 508; Other Cases in note, 7i., 480-482. Bluntschli, § 529; Bonfils, §§ 1027-1065; 4 Calvo, §§ 1899 et seq.; Creasy, 405-407; Hall, 390-399; 1 Halleck, 521-526, 540-542; Heffter, § 121; 1 Jones, 571, 2 lb., 519-520; Lawrence, 299-301; Liszt, 287-297; Maurice, Hostilities without Declaration of War, 1883; Owen, Declaration of War, 1889; 3 Phillimore, 85-113; de Saint Croix, De la declaration de guerre et ses effets imme- diats, 1892; Taylor, §§ 24, 455, 456; 2 Twiss, 65-66; Wiesle, Le droit international applique aux guerres civiles, 1898 ; Woolsey, 187-193. 118. Definition of War. — Its Object. — Causes of "War. — Kinds of War. U. S. V. The Active, Cases, 464; The Teutonia, lb., 471. Baty, Conditional War, 24 Law Magazine and Eeview, 5th ser., 336-440; Bluntschli, §§ 510-528; Bontils, §§ 995-1026; 4 Calvo, 1-40 (resume of opinions of writers); Creasy, 360-392; 1 Hal- leck, 488-520; Lawrence, 290-293; Maine, 131, 132; 3 Martens, §§ 106-109; 3 Phillimore, 77-84; Fillet, Les lois actuelles de la guerre, 1898; 2 Rivier, 200-235; Rivier, L. B., 377-389; Snow, §§ 39-41; Taylor, §§ 448-454; 2 Twiss, 43-45; D. Wheaton, § 296 ; Woolsey, 210. II. Effects of War as Between Enemies. (a) Laics and Usages of War. — Conduct of Hostilities,^ 119. Who are Enemies in a War? One Theory is that all Citizens or Subjects of one Belligerent State are the Enemies of all the Citi- zens or Subjects of the other. Another Theory is that War is a Contest between States, and that Private Individuals of the Bel- ligerent States are not Enemies at all. The First is the Old View, and is still supported by the Better Authority. Bluntschli, §§ 529-530; Bonfils, §§ 1050-1056; Calvo, §§ 2035- 2036; Creasy, 376-338; Hall, § 18; 1 Halleck, 526-527; Holland, Studies, 41-58, 78-96; HolLs, 141; IJones, 571, 2 lb., 519-520; Lawrence, 314-322; Liszt, 287-288 ; Maine, 143-160; Taylor, § 451 ; Walker, Science, 237; Woolsey, 550. 120. All Peaceful Relations between Belligerent States and their Citi- zens cease on the Outbreak of War. — Modern Usage permits Alien 1 For the Regulations proposed by The Hague Conference, now adopted as law by the United States, see IIoUs, pp. 139-lGl ; also Butler's Treaty-making Power, II., pp. 528-53 L SYLLABUS. Xlix Enemies to remain in the Territory Unmolested unless their Pres- ence becomes Dangerous to the State. Clarke v. Moray, Cases, 541, note, and 545, note. Bonfils, §§ 1045-1055; Calvo, §§ 1912-1914; Hall, §§ 121-123; 1 Halleck, 527-532 ; Heffter, 289, and note 9 ; Legal Effect of a Declaration of AVar, 32 Am. Law Review, 574-577 ; Liszt, 293- 294; 3 Phillimore, 128-130; 2 Eivier, 235-238; Eivier, L. B., 389-391; Taylor, § 403; 2 Twiss, 86-87; Woolsey, 194-198. 121. Who are Non-Combatants? Bluntschli, §§ 578, 595; Bonfils, §§ 1141-1154; Hall, 412-413; 1 Halleck, 554-555, 561; Liszt, 300; 2 Eivier, 248-251; D. Wheaton, 431, and note no. 168; Woolsey, 216-221. 122. Who are Lawful Combatants ? — Conditions. — Authority. — Organ- ization—Dress. Bluntschli, §§ 569-573; Bonfils, §§ 1088-1140; 4 Calvo, 131-140; 1 Halleck, 553-562; Liszt, 301-302; 2 Eivier, 251-253; Eivier, L. B., 395-396; Taylor, §§ 471-478; Walker, Science, 249 ; Woolsej^ 214-215. 123. Maritime War. — Privateers. — Letters of Marque and Reprisal. — Volunteer Navy. Cases, notes, 459-463; lb., 899-901, note. Bluntschli, §§ 664-673; Bonfils, §§ 1268-1440 ; 4 Calvo, §§2297 et seq. ; Creasy, 536-549; Dupuis, Le droit de la guerre maritime d'ajires les doctrines anglaises contemporaine, 1899; Hall, §§ 180- 184; 2 Halleck, 108-123; Heffter, §124; 1 Jones, 358, 446, 2 lb., 324, 407; Liszt, 317-318; Maine, 93-109 ; Phillimore, 502-514; 2 Eivier, 253-259; Snow, §§ 41-42; Taylor, §§ 438-439, 494-507, 545-567; 2 Twiss, 25-27, 138-189, 374-424; Wharton, Digest, §§ 383-385; D. Wheaton, § 358, and note 173; L. Wheaton, 626- 649; Woolsey, 201-208. 124. Prisoners of War. — Who may be taken Prisoners ? — Treatment. — Parole. — Exchange. — Ransom. Bluntschli, §§ 593-626 ; Bonfils, §§ 1117-1141; 4 Calvo, 189-204; Creasy, 452-458; Davis, 233- 237; Hall, §§ 131-135; 2 Halleck, 14-39, 326-333; Holls, 145; 1 Jones, 445, 2 lb., 380, 520; Lawrence, 333-337; Liszt, 307-309; Maine, 160-175; 3 INIartens, 236-239; 2 Eivier, 273-279; Eivier, L. B., 404-406; Eomberg, Des belligerants et des prisonniers de guerre, 1874; Taylor, §§ 520-528; 2 Twiss, 350-352; D, Wheaton, 426-431 ; L. Wheaton, 586-593. 125. Care of the Sick and Wounded. — Geneva Convention. — Red-Cross Society. —The Hague Conference. Bluntschli, §§ 586-592; Bou- d 1 SYLLABUS. fils, §§ 1108-1119; Boyland, Six Months under the Eed Cross; (1873); 4 Calvo, §§ 2034 et seq.; Cauwes, L'extension des prin- cipes de la convention de Geneve aux guerres maritimes, 1899; Hall, §§ 130-131; 2 Halleck, 36-39; Holland, Studies, 59-79; Holls, 127; Lawrence, 337-339; Liszt, 309-312; Maine, 123-143; 3 Martens, 239-248; Moynier, Le croix-rouge, 1882; Muller, Ent- steluingsgeschichte des roten Kreutzes und der Genfer Konvention, 1897; 3 Phillimore, 157-160; 2 Rivier, 268-273; Rivier, L. B., 402-403. 126. Instruments of War. — Means of Destruction. Bluntschli, §§ 557- 560; Bonfils, §§ 1066-1077; 4 Calvo, 147-149; Hall, §§ 182-186; 1 Halleck, 553-566; Heffter, § 125; 2 Jones, 519; Liszt, 304-305; 3 Martens, 207 et seq. ; 3 Phillimore, 160-163; 2 Rivier, 260-268; Rivier, L. B., 399-401; Snow, § 44; Taylor, 479-482; Woolsey, 211-213. 127. Devastation. — Is it ever Lawful ? Bonfils, §§ 1227-1230 ; 4 Calvo, 244-253; Hall, §§ 186-187; Lawrence, 410, 444; 2 Rivier, 265, 318, 335; Taylor, 483-486. 128. Bombardment of Towns. — Fortified. — Open. Bluntschli, §§ 552- 554, bis; Bonfils, §§ 1078-1087; Calvo, §§ 2067-2095; Davis, 219-222; Hall, §§ 186-187; Holland, Studies, 96-111; Liszt, 306; Holls, 152; Taylor, §§ 484-487; Woolsey, 223-224. The important cases will be found in Calvo. 129. Deceit. — Spies. — Balloons. Bluntschli, §§ 627-636; Bonfils, §§ 1072-1075, 1099-1107; 4 Calvo, 2106-2126; Davis, 241-244; G. Friedmann, Die Lage der Kriegskundschafter und Kriegspione, 1892; Hall, §§ 187-188; 1 Halleck, 566-574; Liszt, 303-304 ; Holls, 95, and 153; 3 Martens, 249; 2 Rivier, 249; 261, 280-284; Rivier, L. B., 407; Taylor, 490-494. (h) Effect of War upon Property, and Commercial Relations with the Enemy. 130. When War breaks out between two States, the Movable or Per- sonal Property of Citizens of either, found in the Territory of the other, on Land, is by the Old and Strict Rule of War confiscable. — Debts due to Citizens of the Enemy State shared the Same Fate. In modern Practice, however, this Rule has become nearly obsolete. Hamilton v. Eaton, Cases, 481; Ware v. Hylton, lb., 485, note; SYLLABUS. li Brown V. U. S., 7^y.,48.6, and note, 494; Ex parte Boussmaker, lb., 494 ; Wolff V. Oxholni, lb., 496, and note, 497. Bonfils, §§ 1204-1206; 4 Calvo, §§ 1915-1925; Hall, §§ 141-147; 1 Halleck, 532-539; Heffter, § 140; Liszt, 314; 3 Martens, 197- 206; 3 Pbillimore, 128-148; 2 Eivier, 306, 318 et seq.; Rivier, L. B., 422-423; Snow, § 45; Taylor, §§ 539-557; 2 Twiss, 122- 125; D. Wheaton, §§ 298-308, and notes no. 156-157; Woolsey, 194-198. 131. Property of the Enemy found afloat in Ports, on the breaking ont of War was generally Confiscable as Prize until a very Recent Time. But here, too, later Practice would seem to have discarded the Harsher Rule. Compare with Embargo, — Case of Boedes Lust, Cases, 460; Brown v. U. S., lb., 486; The Johanna Emilia, Cases, 498, note. Hall, §§141-144; Lawrence, 282-416; Maine, 105, 117; 3 Philli- more, 132; Taylor, 560-561; D. Wheaton, 389, note; L. Wheaton, 531, and note no. 173. IQO Debts of a State due to the Enemy and the Interest thereon are not Confiscable. Case of the Silesian Loan, 1752 (2 Martens, Causes Colebres, 97), Cases, 461, note. Bonfils, §§ 1056-1059; Calvo, §§ 1924-1925; Hall, § 141; 1 Hal- ieck, §533-537; 3 Phillimore, 148; Taylor, § 552; D. Wheaton, 388-391, and see note no. 157. 133. Immovable Property — Lands and Houses — of the Enemy within the Limits of the Other Belligerents are never confiscated. Calvo, §§ 1922, 2193-2293; Hall, § 144; 2 Halleck, 58-79; Liszt, 814; Maine, 192-206; 3 Martens, 148, 260-266; Taylor, §§ 539-557. 134. Property of the Enemy found on the Sea or in the Ports of the Enemy, is Confiscable as Prize of War. — Modified by Declaration of Paris, 1856. (Cases, 898, note.) Bluntschli, §§ 42-47, and §§ 664-673; Bonfils, §§ 1281-1361; 4 Calvo, §§ 2379-2410; Dupuis, Le droit de la guerre maritime d'apres les doctrines anglaises contemporaines, 1899; Hall, §§ 143, 146; 2 Halleck, 80-123; Liszt, 323-325; 3 Martens, 291-296; 3 Phillimore, 560; 2 Rivier, 330-313; Rivier, L. B., 426-428; Tay- lor, §5 558 et seq. ; D. Wheaton, 382-383; Woolsey, 200. 135. The Effect of War upon Contracts between Enemies made be- fore the War : Executed Contracts ; Executory Contracts ; Statutes of Limitation; Interest on Debts. Hoare v. Allen, Cases, 498 j lii SYLLABUS. Hanger v. Abbott, P>., 500; Matthews, v. McStea, Ih., 508; Gris- wold V. Waddington, lb., 504; !Js. Y. Life Ins. Co. v. Stathem, lb., 512, and note, 516; "Ware v. Jones, lb., 517, and note, 520; Perkins V. Hogers, lb., 554. See also Gamba v. Le Mesurier, 4 East, 407. Bonfils, §§10(54-1065; Calvo, §§ 1926, 2316; Hall, § 126; 1 Hal- leck, 527; 3 Martens, 201-202; 1 Kent, 68; 3 Phillimore, 179, 798, 866; 2Eivier, 231, 235; Snow, § 46; Taylor, 459-460; D. Wlieaton, 403; L. Wheaton, 556. 136. Effect of War upon Treaties between the Belligerent States. Sut- ton V. Sutton, Cases, 427 ; Society for the Propagation of the Gospel V. New Haven, lb., 428, and note; Hooper, Adm'r, v. U. S., lb., 433. Bluntschli, § 538; Bontils, § 1049; Hall, §§ 124-126; 1 Halleck, 294-543; Heffter, § 122; Liszt, 168; 3 Phillimore, 792-811; 2 Pvivier, 137-141; Eivier, L. B., 354-355; Taylor, 368-369, 460- 461; D. Wheaton, 352, and note; L. AVheaton, 460—177. (c) Trade vAth the Enemy. 137. Trade or Intercourse is wholly interdicted, and is in all Cases Illegal, unless under a License of the State. The Hoop, Cases, 521; Potts V. Bell, lb., 525; Flindt v. Scott, lb., 526, and note, 499; Williams v. Marshall, lb., 530; De Jarnett v. De Giversville, lb., 542, and note, 545. Bonfils, §§ 1059-1065; Calvo, §§ 1926-1929; Hall, § 126 ; 2 Halleck, 124-140; Heffter, § 123; 1 Kent, 66-69; 3 Phillimore, 116-120; 2 Rivier, 231; Snow, § 47; Taylor, §§ 463-464; D. Wheaton, §§ 309-317, and note no. 158; White, Trading with the Enemy, 16 Law Quarterly Review, 397-413 ; Woolsey, 255. 138. License to trade must, as a Rule, be granted by the Supreme Authority of the State, and must be granted or assented to by both Belligerents. The Sea Lion, Cases, 531; Coppell v. Hall, //>., 534, note; Hamilton v. Dillin, lb., 534, note. Bonfils, §§ 1061-1065; 4 Calvo, § 1930, and notes; Hall,§§ 195-196; 2 Halleck, 344-349; Magoon, Military Occupation, 210-255; Tay- lor, §§ 509-515; D. Wheaton, 502-504, and note no. 198; Woolsey, 256. 139. After the Outbreak of War, a Citizen may neither go in Person nor send an Agent to the Enemy's Country to bring away his Prop- erty. Tlie lUipiJ, ("ases, 557; The St. Lawrence, lb., 559; Amory V. McGregor, lb., 561. 2 Halleck, 126-127. SYLLABUS. liii 140. Citizens residing within the Enemy's Country should return Home on the Outbreak of the War, and should be granted a Reason- able Time to withdraw their Property and return. The Brig Joseph, Cases, 556; The St. Lawrence, lb., 559; Amory v. McGregor, lb., 561; The William Bagalaij, lb., 565, and note. 2 Halleck, 129. 141. Contracts entered into with Enemies during War by Citizens re- siding in the Enemy's Country. Kershaw v. Kelsey, Cases, 5.35. 4 Calvo, §§ 1930 et seq., and notes; 3 Phillimore, 120-121; D. Wheaton, 403. 142. Bills of Exchange drawn by a Citizen, while a Prisoner in the Enemy's Country, upon a Person in his own Country, and sold to an Enemy are not regarded as Trading with the Enemy, — at least they may be enforced. Antoine \. Morshead, Cases, 573; Daubuz V. Morshead, lb., 575, note. 1 Halleck, 529; 1 Kent, 67; D. Wheaton, § 317. 143. Agents may represent and bind their Principals in the Enemy's Country, if appointed before the Outbreak of War ; if appointed during the War, their Contracts are void. Small v. Lumpkin, Cases, 538; U. S. v. Grossmayer, lb., 541, note. 144. Insurance on Ships or Property of the Enemy. Furtado v. Kodgers, Cases, 549 ; Otlier Cases in note, 553. 2 Halleck, 140; Pennant, Insurance of Enemies' Propertj", 18 Law Quarterly Review, 289-296. 145. Ransom Contracts, Ransom Bill, Safe Conduct constitute Excep- tions to the Rule against Trading with the Enemy. Cornu v. Blackburn, Cases, 566; The Charming Nancij, lb., 568; The Pa- trixent, lb., 569, and note; Goodrich & De Forrest v. Gordon, lb., 571. See also Anthon v. Fisher, lb., 570, note. Bonfils, §§ 1237-1258; 4 Calvo, §§2422-2429; Hall, §§ 151-152; 2 Halleck, 330-333; Lawrence, 446-449; Maisonnare v. Keating, 2 Gall. 337; 3 Phillimore, 177-179, 644-647; Taylor, §06-522; D. Wheaton, § 411, and note no. 199; Woolsey, 245-247. 146. Pacific Intercourse of Belligerents. — Commercia Belli : Flags of Trice. — Truces. — Passports. — Armistices. — Cartels. — Capitula- tions. — License to Trade. — Ransoms. Crawford v. The WiUiam Fenn, Cases, 575; Crawford & McLean v. The William Fenn, lb., liv SYLLABUS. 580; Scliolefield & Taylor v. Eicbelberger, lb., 580, note. Other Cases in note, 584—585. Bluntschli, §§ 674-699; Calvo, §§ 2411-2452; Hall, §§ 189- 196; 2 Halleck, 310-334; Lawrence, 450-456; Liszt, 303, 315-316; [Maine, 83-191; 2 RivJer, 360-368; Rivier, L. B., 433-436; 3 Pliillimore, 179-188; Taylor, §§ 506-522; D. Wheaton, §§ 399- 408 ; Woolsey, 225, 255-260. (d) Commercial Domicile. — Xational Character of Property. 147. The National Character of Property in Time of War, depends upon the Domicile of the Owner. — French Rule. The Indian Chief, Cases, 588; The Prize Cases, Ih.. OOl, and 604, note; The Venus, Ih., 591; Le Hardy, Ih., 605, note. Calvo, §§ 656, 679, 1933, 2 Halleck, 414, 424; 1 Jones, 168- 169; Liszt, 325; 2 Eivier, 342; Snow, § 48; Taylor, §§ 209, 523, 554 ; L. "Wheaton, 557-571 ; Woolsey, 296. 148. What constitutes Domicile. — How determined. — Animus ma- nendi. — Time. The Ilurmony, Cases, o^o-, ^Mitchell v. U. S., Ih., 605. 4 Calvo, §§ 1936-1945; Hall, § 168; 1 Halleck, 415-422; 1 Jones, 168-169; 3 Phillimore, 725-734; D. Wheaton, §§ 318-332; L. TMieaton, 558-560. 149. House of Trade takes the National Character of the Country in which it is Established. — Exception : House of Trade in a Neu- tral State, and the Partners, or some of them, Reside in an Enemy Country. The Antonia Johanna, Cases, 604, note; The Freund- schaft, lb., 604, note. Calvo, §§ 695, 1936; Hall, § 168; D. Wlieaton, § 334; L. Wheaton, 557 et seq., and note no. 180. 150. The Product of the Enemy's Soil takes the National Character of the Country where it is Produced. Bentzen v. Boyle, Cases, 598. Bonfils, § 1359; Hall, §§ 168-169; Liszt, 325; 2 Eivier, 344-345; D. Wheaton, §§ 336-339; L. Wheaton, 576-580. (e) Ownership of Goods in transitu, on the Ocean, in Time of War. 151. In Time of War. or in Contemplation thereof, Goods shipped on Contract are at the Risk of the Consignee during Transit. The French Rule permits the Shipper to take the Risk by Agreement. SYLLABUS. Iv The Salhj, Cases, 607 ; The Packet De Bilhoa, lb., 609 ; The Anna Catharina^ lb., G12 ; The San Jose Indiana, lb., G14; Les Trois Freres, lb., 615, note. Bonfils, § 1355; 4 Calvo, §§ 2315-2320; Hall, §§ 172-173; 2 Hal- leek, 84-88; 1 Jones, 489, 490; 2 lb., 443; 1 Kent, 87; 3 Philli- more, 740-745; Snow, § 495; Taylor, § 553. 152. Transfer in Transitu. — Stoppage in Transitu. — According to the Rule of the English and American Prize Courts, Property, if Hostile at the Time of Shipment, cannot change its Character dur- ing Transitu by Sale to a Neutral. The Vroic Margaretlia, Cases, 61G; The Jan Frederick, lb., 618; The Ann Green, lb., 620; The Francis and Cargo, lb., 621, note ; The Benito Estenger, lb., 621, and note, 628. Eonfils, §§ 1356-1360; 4 Calvo, §§ 2321, 2322 (dissents from the English and American view) ; 1 Duer, "On Insurance," 441-444; Hall, 171-172; 2 Halleck, 90-92; 1 Jones, 527, 2 lb., 472; 3 Phil- limore, 739-740; Taylor, 568. 153. National Character of Merchant Ships, and their Transfer during War from a Belligerent to a Neutral. Bonfils, §§ 1344-1349; 4 Calvo, §§ 2327-2338; Hall, § 171; 2 Halleck, 92-95; 1 Jones, 265, 489; Liszt, 324; 3 Phillimore, 734-739; Snow, § 50; Taylor, §696. 154. Proofs of the National Character of Merchant Ships. Bonfils, §§ 597-606; 4 Calvo, §§ 2339-2366; Hall, 756, note (3d ed., 753- 758); 2 Halleck, 98-105; Taylor, §§ 308, 309, 408, oQ>S; 3 Whar- ton, Digest, §§ 409-410. 155. Fishing Boats are generally exempt from Seizure, but the Exemp- tion does not extend to Vessels employed in the Great Fisheries. The Faqiiette Hahana, Cases, 19. Bonfils, § 1350; Calvo, §§ 2368-2373; Hall, § 148; 2 Halleck, 106; Liszt, 325 ; Taylor, §§ 558-559; D. Wheaton, 431, and note no. 168; L. Wheaton, 596, note no. 187 ; Woolsey, 303. 156. Freight in the Case of Captured Vessels. The Vrow Henrica, Cases, 629; The Fortuna, lb., 631; The Antonia Johanna, lb., 632; Hooper, Adm'r, v. U. S., lb., 633 ; The Carlos F. Roses, lb., 637 ; The Sii'en, lb., 648, note. 1 Jones, 342, 508; Taylor, §§ 629 n, 707, 565, 568, 578, 702, 703, 744, 745, 746. Ivi SYLLABUS. (_/) Recajyture. — Salvage. — Postliminium. — Rescue. 157. Recapture. — Salvage. — "When does Title to recaptured Property vest in the Captor? The Santa Crux, Cases, 649; The Carlotta, lb., 650; The Bearer^ lb., 653, and 654, note. Bonfils, §§ 1416-1421; Creasy, 564; Hall, § 166; 2 Hallect, 600- 527; 1 Kent, 108-109; Liszt, 327; 3 Phillimore, 613-643; 2 Eivier, 357 ; Rivier, L. B., 433 ; Taj-lor, § 576 ; D. "Wheaton, 456-475; L. Wheaton, 524, 638-668; Woolsey, 247-252. 158. Rescue by Neutrals. The Mary Ford, Cases, 652, and note; The Eniihj St. Pierre^, lb., 655, note; The Lone, lb., 655, note. Bonfils, 1485-1487; Taylor, §575; D. Wheaton, 475, note, 476- 477, and note ; L. W^heaton, 668 ; Woolsey, 359. (^7) Enemy Property on Land. — Ifilitary Occiqjation. 159. Public Property of the Enemy, — Lands, Buildings, Archives, Work of Art, — Movable or Personal Property. Mohr and Haas v. Hatzfield, Cases, 674, note. Bluntschli, §§ 652-662; 4 Calvo, §§ 2201-2214; Creasy, 513 et seq.; Hall, §§ 136-138; 2 Halleck, 58-66; Liszt, 314; Magoon, Military Occupation, 264-281; Taylor, §§ 485, 539, 543, 545- 546 ; D. Wheaton, 438, note ; Woolsey, 194-197. 160. Private Property, Real and Personal, as a Rule, is not Confiscable, at least not by Way of Booty, though Personal Property may be taken by Way of Contributions and Requisitions. — Comparison in respect to the Different Rule applied to Enemy's Property at Sea and on Land. Kirk v. Lynd, Cases, 899, note ; U. S. v. Win- chester, lb., 899, note; Oakes v. U. S., lb., 899, note; see also Commodore Stewart's Case, lb., 910; Titus v. U. S., /6., 94, note; W^hitfield V. U. S., 92 U. S., 165. Barclay, Proposed Immunity of Private Property at Sea from Capture by Enemy, 16 Law Quarterly Review, 16-23; Bluntschli, § 665; Bonfils, §§ 1195 et seq.; 4 Calvo, §§ 2294 et seq.; Creasy, 536-556 ; Hall, §§ 139 et seq. ; 2 Halleck, 66-75 ; Heffter, § 133 ; 1 Jones, 447; T. J. Lawrence, Essays, No. 1; Liszt, 312-314; Magoon, 264-280 ; 2 Rivier, 306, 318-324 ; Rivier, L. B., 422- 423 ; Snow, § 51; Taylor, 547, 551 et seq., 462; D. Wheaton, § 335, and note no. 171 ; L. Wheaton, 884. 161. Requisitions and Contributions in Land Wars. — Will they be resorted to in Maritime Wars? Bluntschli, §§ 653-686; Bonfils, SYLLABUS. Ivii §§1207-1226; Calvo, §§ 2231-2235; Creasy, 530-554; Edwards, "The Germans in France," p. 59; Hall, §§ 140-143; 2 Halleck, 56, 69, 310; Heffter, 301; Lawrence, 374-376, 458; Magoon, Military Occupation, 217, 345-350; Maine, 200; Sherman, "Me- moirs," II., 175, 181-184, 207, 227; Taylor, §§ 548-550, 558; Twiss, 124; Woolsey, 220. 162. The Bombardment of Towns. Bluntschli, §§ 554-556; Bonfils, §§1081-1086; Calvo, §§2085, 2092; Hall, § 186; Heffter, 281; Holland, Studies, 96-111; Holls, 152; Liszt, 306; 2 Eivier, 284- 288; Eivier, L. B., 408-409; Taylor, §§ 484-485; Woolsey, 224. 163. Military Occupation. — The General Character of the Right and Jurisdiction of an Invader over the Territory occupied by his Armies. — Old Theories. — Modern View. Bluntschli, §§ 539-541; Bon- fils, §§ 1155-1176; Calvo, §§ 2166-2198; Creasy, 502-512; Hall, §§ 153-155 ; 2 Halleck, 432-466 ; Heffter, 298, .304-308 ; Lawrence, 350 et seq.; Liszt, 312; Magoon, Military Occupation, 1902 (prac- tice of United States) ; Maine, 177 ; Martens, 250-266 ; 2 Eivier, 299-318; Eivier, L. B., 413-419; Snow, §52; Taylor, 127 et seq., 584 et seq. ; Woolsey, 252. 164. Relation of the Territory occupied to the Government of the In- vader. — To that of the State Invaded. U. S. v. Eice, Cases, 655 ; Cross V. Harrison, lb., 658, note; Fleming v. Page, lb., 659; Jecker V. Montgomery, lb., 664; Leitensdorfer v. Webb, lb., 665, note; Other Cases in note, 665-666; Viliasseque's Case, lb., 675, note. Bonfils, §§ 1156-1162; Creasy, 496; Hall, § 167; 2 Halleck, 450; Liszt, 313. 165. De Facto and Constructive Occupation. Creasy, 503 ; Hall, § 161 ; Walker, Science, 344-346. 166. Rights of the Occupier over the Persons of the Territory Occupied. — "War Rebel." 4 Calvo, §§ 2166 et seq.; Creasy, 516; Hall, §§155-158; 2 Halleck, 451-455; Lawrence, 344-345; Liszt, 313. 167. Right of the Invader over Incorporeal Things, as Debts, etc. Bon- fils, §§ 1191-1193; 4 Calvo, §§ 2286, 2288; Hall, § 138; 2 Halleck, 460 ; 3 Phillimore, 832-840; 2 Eivier, 307-310; 2 Twiss, 62 et seq. (h) Termination of War. — Conquest. — Cession. 168. What marks the Date of the End of a War ? — Treaties of Peace. — Proclamations in Civil Wars. Bain v. Speedwell, Cases, 675; The Thetis, lb., 675, note; The Protector, lb., 682. Iviii SYLLABUS. Bonfils, §§ 1692 et seq. ; Calvo, §§ 3153-3154; Hall, § 197; Heffert, § 176 ; Liszt, 295 ; 3 Phillimore, 770 ; 2 Eivier, 443 ct seq.; Eivier, L. B., 463, 464; Snow, § 54; Taylor, § 580 ; D. Wheatou, §§ 507, 546 ; Woolsey, 158. 169. Effect of Treaties of Peace in settling General Rights and Obliga- tions of the Parties. — Effect upon Acts done before the War. — Upon Acts done during the War. — Upon Acts done subsequently to the Treaty of Peace. Neustra Senora De Los Dolores, Cases, 681 ; The Mentor, lb., 676; The John, lb., 677 ; The Kj/ynjyh, lb., 676, note ; The Swineherd, lb., 677, note. Bluntschli, §§ 709-712; Calvo, §§ 3155-3159; Hall, §§ 197-202; Heffter, §§ 179-183; 2 Hallech, 306-324; Liszt, 296-297; 3 Phillimore, 770-784; 2 Eivier, 454, 458; Eivier, L. B., 465-468; Taylor, § 581 ; Woolsey, 263-266. 170. Postliminium. — Uti possidetis. — How do they apply to Territory? Bonfils §§ 3167 et seq. ; Creasy, 564; Hall, §§ 162-166; 1 Halleck, 321, 2 lb., 602 ; Heffter, §§ 188-190; Lawrence, § 209; Liszt, 296; 3 Phillimore, 615; 2 Eivier, 459; Eivier, L. B., 468; Snow, § 55; Taylor, 574-576 ; D.AVheaton,§ 398; Woolsey, § 151. 171. Conquest. — Cession. Elector of Hesse Cassel's Case, Cases, 675, note; Am. Ins. Co. v. Canter, ib., 657; U. S. v. Moreno, lb., 666; Fourteen Diamond Eings v. U. S., lb., 667; "Insular Cases," lb., 674, note; Bonfils, § 535; 4 Calvo, §§ 2452-2490 ; Hall, §§ 204-205 ; 2 Halleck, 466-499; Heffter, § 133; Liszt, 295; Magoon, Mili- tarj^ Occupation, 262-264 ; A. P. Morse, Status of Territory ac- quired by the United States, 39 Am. Law Eegister (1^. S.), 332- 339; 2 Eivier, 435-442; Eivier, L. B., 458-462; Westlake, The Nature and Extent of the Title by Conquest, 17 Law Quarterly Eeview, 392-401 ; D. Wheaton, note 169; Woolsey, § 153. III. Eelations between Belligerents and Neutrals. (a) A General Vleio of the Relations between Belligerents and Neutrals. 172. Historical Sketch of the Subject. Bonfils, §§ 1494-1521, 1442; 4 Calvo, §§ 2491-2553; Hall, §§ 208-213; Heffter, § 152 ; IJones, 398, 2 lb. , 365 ; Kleen, Lois et usages de la neutralite d'apres le droit international conventionel et coutumiers des etats civilises, 1898,1899; Lawrence, 472-499; Liszt, 329-330 ; 3 Martens, 315- SYLLABUS. lix 325; 3 Philliraore, 300-3G9 ; 2 Eivier, 369-379; Taylor, §§ 596- 613; D. Wheatoii, §§ 412-425, note 215; L. Wheatou, 696 et se(i.; Woolsey, § 163. (b) Neutral Duties. 173. Neutrals should not permit their Territory to be used for Hostile Purposes by either Belligerent. — Transit of Troops. — Fitting out Hostile Expeditions. — Capture of Vessels in Neutral Waters. The Anna, Cases, 684 ; The Twee Gebroeders, lb., 687, note ; The Eliza Ann., Ib..i 689, note; Tlie Anne., lb.., 688; The General Armstrong, lb.., 687, note ; Commodore Stewart's Case, lb., 910 ; The Adela, lb., 6S9, note ; Tlie Florida, lb., 690 ; see also The Ferle, lb., 688, note, and The Grange, lb., 690, note. Bluntschli, §§ 749-782 ; Bonfils, §§ 1449 et seq. ; 4 Calvo, §§ 2592- 2642; Creasy, 570-681; Hall, §§ 214-223; 2 Halleck, 141 et seq.; Historicus, 147-162 ; 1 Jones, 398, 2 lb., 365; Liszt, 331- 332; 3 Martens, 326 et seq.; A. P. Morse, Eights of Belligerents and Neutrals from the American Point of View, 37 Am. Law Regis- ter (N. S.), 657-687; 1 Phillimore, 223-236; 2 Eivier, 380-406; Eivier, L. B., 440-447; Snow, § 57 ; Taylor, §§ 617-621 ; 2 Twiss, 440-459; D. Wheaton, §§425-435; L. V/heaton, 713-727 ; Woolsey, §§ 164 et seq. 174. Equipment of Vessels of War in Neutral Territory. U. S. v. Guinet, Cases, 695 ; U. S. v. Peters, lb., 697; The Santlssima Trin- idad, lb., 701, and 705 note; U. S. v. Quincy, lb., 706; U. S. v. The Meteor, lb., 711; The Alabama Claims and Award, lb., 713. C. F. Adams, The Treatj^ of Washington (Lee at Appomattox, 31 et seq.) ; Bernard, Neutrality of Great Britain, 360 et seq., 412 et seq.; Bluntschli, § 763; Bonfils, §§ 1464 et seq.; Bullock, Secret Service of Confederate States in Europe (1884) ; Calvo, §§ 2553, 2590, 2623; Hall, §§ 223 et seq. ; 2 Halleck, 153-163; Historicus, 163-171 ; Lawrence, 535-556 ; Liszt, 332 ; 3 Phillimore, 236 et seq. ; 2 Eivier, 406 ; Eivier, L. B., 447-449 ; Snow, § 58 ; Taylor, §§ 614- 617; D. Wheaton, p. 535, note 215; L. Wheaton, 728; Woolsey, § 170. 175. Loans of Money to Belligerents. Bluntschli, § 768; Bonfils, § 1471 ; 4 Calvo, § 2628 ; Hall, § 216 ; 2 Halleck, 163 ; Lawrence, 620 ; Liszt, 332; 3 Phillimore, 247 ; Snow, § 59, Taylor, § 622. 176. Sale of Munitions of War by a Neutral State. Sale of Arms to Prance, Cases, 747, note. Ix SYLLABUS. Hall, § 217; 1 Jones, 51; Lawrence, 520; Liszt, 333; 2 Eivier, 408-415; Snow, § 59; Taylor, § 624. 177. Aid to Insurgents. — Loans. — Munitions of War. Thompson v. Powles, Cases, 37; De Wiitz v. Hendricks, Ib.^ 721; Kennett v. Chambers, lb., 12?,; U. S. v. Trumbull, lb., 731; The Salvador, lb., 743 ; The Three Friends, lb., 748. Hall, § 5; Historicus, 41-51 ; 2 Jones, 51; 3 Phillimore, 247-2.50; Snow, § 60; D. "Wheaton, § 23, note 15. (c) Contraband of War. 178. General Law of Contraband. Bluntschli, 465 et seq.; Bonfils, §§ 15-35 et seq. ; 5 Calvo, §§ 2708 et seq. ; Hall, §§ 236 et seq. ; 2 Hal- leck, 214 et seq.; Historicus, 121-137; Heffter, §§ 158-1.59 ; 1 Jones, 108; Lawrence, § 277; Liszt, 334; 3 ]\[artens, 347-355; Payn, State Inteiierence in Contraband trade and Blockade-Eunning, 24 Law Magazine and Review, 5th ser., 203-218, 329-341, 448-457; 2 Eivier, § 217 ; Eivior, L. B., 451 ; 3 Phillimore, 387 et seq. ; Snow, § 61 ; Taylor, §§ 653 et seq.; 2 Twiss, 232-298 ; D. Wheaton, §§ 476 et seq., note 226; L. Wheaton, §§ 767 et seq.; Woolsey § 193. 179. Classification of Contraband. — Res ancipitis usus. — Occasional Contraband. The Peterhoff, Cases, 760 ; The Jonge Margaretlia, lb., 762 ; The Commereen, lb., 765 ; Other Cases, lb., 766, note. Bluntschli, 466 ; Bonfils, 1538-1565 : 5 Calvo, §§ 2708-2754 ; Creasy, 609 etseq.; Hall, §§ 236 et seq.; 2 Halleck, 222 et seq.; Heffter, § 160; 1 Jones, 108, 2 /i.,94; Lawrence, §§ 278-279; Liszt, 335; jMaxey, Are Pood-Stuffs Contraband, 34 Am. Law Eeview, 205-213; 2 Eivier, § 217; Snow, 136; 3 Phillimore, 403-459 ; Taylor, §§ 655- 663; D. Wheaton, §§ 477-502: L. Wheaton, 769 etseq.; Woolsey, §§ 194 etseq. ISO. Penalty for Carrying Contraband. — Time when Penalty attaches. — Rule of English and American Cour^^^s. — French Rule. The Neutralitet, Cases, 767; Carrington v. Merchants Ins. Co., lb., 769; The Imina, lb., 776 ; Seton v. Low, lb., 778 ; £x parte Chavasse, lb., 779, note ; see also The Sarah Christiana, lb., 775, note ; The Haabet, lb., 776, note. Bluntschli, 471 ; Bonfils, § 1571 ; 5 Calvo, §§ 2755 et seq. ; Creasy, 626; Hall, § 247; 2 Halleck, 217; Heffter, § 161; 1 Jones, 264; Lawrence, § 280; Liszt, 337; 2 Eivier, § 218; Snow, 140; 3 Philli- SYLLABUS. 1 XI more, 460; Taylor, § 66G ; J). Wheaton, § 505, note 230; L. Wheaton, 806 et seq. ; Woolsey, § 198. 181. Despatches and Persons as Contraband. The Atahmf a, Cases, 780; The Madisni, lb., 785; Tlie Orozemlxy, 76., 785; The Rapid, lb., 782; The Trent, Ih., 788, note; The Panama, lb., 788. Bernard, 186-225; Bluntschli, 475; Calvo, §§ 2796-2826; Creasy, 627-632; Hall, §§248-253; Harris, Tre«i Affair, p. 239; Historicus, 185-198; Liszt, 338; Phillimore, 459; Snow, § 62; Taylor, § 669; D. Wheaton, 502-504, note 228; L. Wheaton, 797 et seq.; Woolsey, § 199. (d) Blockade. 182. The Purpose of Blockade. — Must be Effective. — Notification. — De facto Blockade. The Nejytunus, Cases, 796; The Betsey, lb., 798; The Panaghia Rhomba, lb., 800, and note, 803; The Johanna Maria, lb., 803; Tlie Franciska, lb., 804; The Gerasimo, lb., 811; The Nancy, lb., 817 ; The Ocean, lb., 819 ; The Olinde Rodrigues, lb., 835. Bernard, 226 e^ sp^., 283; Bluntschli, §§ 827-839; Bonfils, §§ 1079 et seq.; 5 Calvo, §§ 2827 et seq., §§ 2909' et seq.; Creasy, §§ 597 et seq.\ Fauchille, Du Blocus Maritime, 1882; Hall, §§ 257 et seq. ; 2 Halleck, 182 et seq.; Heffter, §§ 154 et seq.; Historicus, 87-118; 1 Jones, 60, 2 lb., 46; Lawrence, §§ 269 et seq.; Liszt, §§ 320- 321; 4 Phillimore, 473 et seq.; 2 Rivier, 288 et seq.; Kivier, L. B., 409-412; Soley, Blockade and Cruisers; Taylor, §§ 674 et seq.; 2 Twiss, §§ 98 et seq.; D. Wheaton, §§ 509-523; L. Wheaton, 819 et seq. ; Woolsey, §§ 202-204. 183. Penalty for Breach of Blockade. — When does the Penalty attach ? — French Rule. The Helen, Cases, 821 ; The Adula, lb., 826. 5 Calvo, §§ 2897 et seq.; Creasy, 620; Hall, § 264; 3 Halleck, 208, et seq.; Lawrence, § 275; Liszt, 322; 3 Phillimore, 506; Snow, § 63; Taylor, § 779; 2 Twiss, 100; Walker, 525; Woolsey, § 205. (e) Rule of the War of 1756. 184. Neutrals may not Engage in a Trade during War, from which they were excluded in Time of Peace. The Immamiel, Cases, 845; The Emanuel, lb., 847. Bluntschli, §§ 799-800; Bonfils, § 1534; Creasy, § 621; Hall, Ixii SYLLABUS. § 234; 2 Halleck, 301; 3 Phillimore, 370-379; 2 Eivier, 411; Suow, § 65; 2 Twiss, § 100; D. Wbeaton, 508; L. Wheaton, 814; Woolsey, § 200. (/) Continuous Voyages. 185. Colonial Trade, and Coasting Trade. — Extension in 1793. The William, Cases, 848. Bernard, Neutrality, 310; Bonfils, §§ 1666-1667; Hall, 694: 1 Jones, 108; Liszt, 322; 3 Phillimore, 383; 2 Rivier, 432-434; Snow, § 65; Taylor, § 683; Tsviss in 3 Law Mag. and Eev. (4th ser.), 1; Walker, 512. 186. Applied to the Carriage of Contraband, and the Breach of Block- ade by the American Courts. The Stejjhen Hart, Cases, 852 ; The Bermuda, 1865, 6 Wall. 514; The Sjiringhoh. 1866, 5 Wall. 1; The Peterhoff, 1866, Cases, 760; Hobbs v. Henuing, 1864 (Ber- nard, 316, note); L' Affaire du Doelwijk, 1896 (24 Journal de Droit Int. Prive, 268-298). Bernard, 310; Bluntschli, §§ 827-840; 5 Calvo, §§ 2762-2765, 2861-2864; Hall. 695; 1 Jones, 265; Lawrence, 594-598, 678-681 ; Liszt, 336; 3 Phillimore, 391—403; Taylor, § 683; Walker, Sci- ence, 514-515, 525 ; Westlake, Continuous Voyages in Belation to Contraband of War, 15 Law Quarterly Review, 24-32 ; White, The Seizure of The Bundesrath, 17 Law Quarterly Review. 12-25. (y) Bight of Search and Capture. 187. The Right of Visit and Search is a Belligerent Right, to which Neutrals are subject. Resistance in any Manner to this Right entails Condemnation. Tlie Maria, Cases, 858; The Schooner Nancy, lb., 861 ; The Brig Sea Nymjih, lb., 869 ; The Ship Base, lb., 879. Bluntschli, §§ 819-826; Bonfils, §§ 586-590; 5 Cairo, §§ 2939- 2951; Creasy, §§ 636-637; Fauchille, La theorie du voyage continu en matiere de contrabande de guerre, 4 R. G. D. I., 297 et seq. Hall, §§ 270-272; 2 Halleck, 239 et seq.x Heffter, §§ 167-170; Liszt, 200-201; 3 Martens, 355-357; 3 Phillimore, 522-544, 550; 2 Rivier, 423-428; Rivier, L. B., 454-455; Snow, § 66; Taylor, §§ 685 et seq.; D. Wlieaton, 524-528; Woolsey, §§ 208-209. 188. Formalities of the Exercise of the Right of Search. — Grounds of Capture. — False Documents. — Spoliation Papers. 5 Calvo, §§ 2952 I SYLLABCS. Ixiii etseq.'. Hall, §§273-277; 2 Halle ck, 258, 271; 3 Phillimore, 536; 2 Rivier, 348-352. 189. The Right of Visit and Search in Time of Peace. — Impressment of Seamen. — Slave Trade. — Protection of Seals. — Piracy. Le Louis, Cases, 352; The Marianna Flora, lb., 873; Behriug Sea Award {La Ninfa), lb., 443. Bluntschli, §§ 343-346 ; Bonfils, §§ 591-593; 5 Calvo, §§ 2992-3003; 2 Halleck, 240-246, 272; 1 Jones, 264, 569; Liszt, 200; 3 PbiUi- niore, 525-529; Schuyler, Am. Dip., 233-264; D. Wheaton, § 125, note 85, §§ 108-109, note 67; Woolsey, §§ 212-221. 190. The Right to Capture Enemy's Goods in Neutral Vessels, and Neutral Goods in Enemy's Vessels. — '' Free Ships, Free Goods." — Declaration of Paris. Tlie Xerelde, Cases, 884 ; The Atlas, Ih 895; Darby v. The Brig Evstern, lb., 896; Declaration of Paris lb., 898, note. Bonfils, §§ 1497-1526; 4 Calvo, §§2688-2707; Creasy, §§ 626-636 Hall, §§ 254-256, 267-269; 2 Halleck, 282-287; Heffter, §§ 163- 164; 1 Jones, 262, 265; Lawrence, §§ 190-192; Liszt, 223-224 2 Rivier, 428-330; Rivier, L. B., 455-457; Snow, §§ 67-68; 2 Twiss, 519-523; D. Wlieaton, §§ 442-446; L. Wheaton, 736-767. (Ji) Prize Courts. 191. The Constitution of Prize Courts in Different Countries. 5 Calvo, §§ 3035 et seq.; 2 Halleck, 378-399; Liszt, 326; 3 Phillimore, 658-668; 2 Rivier, 353 et seq.^ Snow, § 69; Taylor, § 563; L. Wheaton, § 960-976. 192. The Principles and Practice of Prize Courts. Miller v. The Eesobition (1), Cases, 899; Miller v. The Resolution (2), lb., 906, and note, 909 ; Commodore Stewart's Case, lb., 910. 5 Calvo, §§ 3066 et seq.; 2 Halleck, 412, 421-431; 1 Jones, 447; Liszt, 326-327 ; 3 Philliraore, 666-679; Taylor, §§ 464-566; D. Wheaton, § 385, note 186. 193. They are Courts of the Captor's Country. — Effect of their De- cisions. The Flad Oyen, Cases, 919 ; Oddy v.Bovill, lb., 924, and note, 925; Dalgleish v. Hodgson, lb., 926; The Betseij, 1797 (3 :Moore, Int. Arb., 3180-3206) ; Gushing, Adm'r, v. U. S., Cases, 929. 5 Calvo, §§ 3036 et seq.; 2 Halleck 378; Taylor, § 566; 2 Twiss, §166; D. Wheaton, § 390. Ixiv SYLLABUS. 194. Prize Courts of the Confederacy : On Land and on board Ships. The L'dlc (1862), Cases, 02; The Ike Davis (1861, reported as no. 1086 in Court of Alabama Claims, 1883) ; Practice of Captain Semmes, Cases, 932, note. Bluntschli, § 672} 5 Calvo, § 3030} Hall, § 150} Semmes, Service Afloat, 1869. PRINCIPAL AUTHORITIES CITED IN THE SYLLABUS.^ Austin, John, Jurisprudence (student's edition), 1874. Bernard, Montague, Four Lectures on Diplomacy, 1868. Bernard, ^Montague, Historical Account of the Neutrality of Great Britain during the American Civil War, 1870. Bluntschli, Das moderne Volkerrecht der civilisirten Staaten, 3d edition, 1878. (References are to the French translation by Lardy, 3d edition, 1881.) Bonfils-Fauchille, Manuel de droit international public (Droit des gens), 1894, 3d edition, 1901. Butler, Charles H., The Treaty-making Power of the United States, 2 vols., 1902. Calvo, Charles, Le droit international theorique et pratique, 6 vols., 5th edition, 1896. (Vols. 1-5 are reprint of 4th edition, 1887-1888 ; vol. 6 is a supplement.) Cauchy, E., Droit maritime international, 2 vols., 1862. Creasy, Sir Edward, First Platform of International Law, 1876. Davis, G. B., Outlines of International Law, 1887. Dicey, A. V., Conflict of Laws, 1896. Duer, John, Maritime Insurance, 2 vols., 1845. Foster, J. W., Centur}' of American Diplomacy, 1900. Hall, W. E., International Law, 4th edition, 1895. Halleck, H. W., International Law, 2 vols., 3d edition, by Sir Sheraton Baker, 1893. Hart, A. B., Handbook of History, Diplomacy, Government, 1901. Heffter, A. W., Das europaische Volkerrecht der Gegenwart, 4th French edition, by Geffcken, 1883. Holland, T. E., Elements of Jurisprudence, 9th edition, 1900. 1 For abbreviations in the citation of cases, see Charles C. Soule, Lawyer's Eefer- ence Manual, 1883 ; Charles C. Soule, Abbreviations Used in Law Books, 1897 ; Rawle's Bouvier's Law Dictionary (article, abbreviations), 2 vols., 1897. The cases in tliis collection are cited as " Cases." e Ixvi PRINCIPAL AUTHORITIES CITED IN THE SYLLABUS. Holland, T. E., European Concert in the Eastern Question, 1885. Holland, T. E., Studies in International Law, 1898. Holls, F. W., The Peace Conference at The Hague, and its bearings on International Law and Policy, 1900. Holtzendorff, F. von., Handbucli des Volkerrechts, 4 vols., 1885-1889. (Reference is to the French translation of vol. 1, 1888.) Jellinek, G., Das Recht des modernen Staates, Vol. 1, 1900. Jellinek, G., Die Lehre von den Staatenverbindungen, 1882. Jellinek, G., Die rechtliche ISTatur der Staatsvertrage, 1880. Jellinek, G., System der subjektiven offentlichen Rechte, 1892, Jeukyns, H., British Pule and Jurisdiction beyond the Seas, 1902. Jones, L., Index to Legal Periodicals, 2 vols., 1887-1899. Kent, James, Commentaries on American Law, 4 vols., 14th edition, 1896. (Part I., Of the Law of Nations, vol. 1, pp. 1-200.) Lawrence, T. J,, Essays on Some Disputed Questions in Modern Inter- national Law, 2d edition, 1885. Lawrence, T. J., Principles of International Law, 3d edition, 1900. Liszt, F. von, Das Volkerrecht systematisch dargestellt, 1898, 2d edi- tion, 1902. Magoon, W. E., Law of Civil Government under Military Occupation, 2d edition, 1902. Maine, Sir Henry, Ancient Law, 5th edition, 1873. Maine, Sir Henry, International Law, 1888. Martens, F. de, Traite de droit international (Translated from the Rus- sian by A. Leo), 3 vols., 1883-1887. Maurice, Col. J. F., Hostilities without Declaration of War, 1883. Moore, J, B,, Extradition and Interstate Rendition, 2 vols., 1891. Moore, J. B., International Arbitrations, 6 vols., 1898. Ortolan, L. F. T., Regies internationales et diplomatic de la mer, 2 vols., 4th edition, 1864. Owen, Douglas, Declaration of War, 1889. Perels, F., Das internationale offentliche Seerecht der Gegenwart, 1882. (Cited in French translation by Arendt, Manuel de droit maritime, 1884.) Philliraore, Sir Robt., Commentaries upon International Law, 4 vols., 3d edition, 1879-1889. Piggott, F. T., Exterritoriality, 1892. Pistoye et Duverdy, Traite des prises maritimes, 2 vols., 1859. Pomeroy, J. N., Lectures on International Law, 1886. Rivior, A., Principes du droit des gens, 2 vols., 1896. (Cited as 1 and 2 Rivicr.) PRINCIPAL AUTHORITIES CITED IN THE SYLLABUS. Ixvii Eivier, A., Lebrbuch des Volkerrecbts, 2 edition, 1899. (Cited Rivier, L. B.) Scbuyler, E., American Diplomacy, 1886. Snow, Freeman, International Law, 2d edition, 1898. Snow, Freeman, Treaties and Topics in American Diplomacy, 1894. Taylor, Hannis, International Public Law, 1901. Twiss, Sir Travers, The Law of Nations, Vol. 1, 2d edition, 1884. Vol. 2, 2d edition, 1875. Walker, T. A., History of the Law of Nations, Vol. 1, 1899. Walker, T. A,, Manual of Public International Law, 1895. Walker, T. A., Science of International Law, 1893. Westlake, John, Principles of International Law, 1894. Wharton, Francis, International Law Digest, 3 vols., 2d edition, 1887. Wheaton, Henry, Elements of International Law, edited by A. C. Boyd, 3d edition, 1889; edited by R. H. Dana, 186G; edited by W.B. Lawrence, 2d edition, 1863. Woolsey, T. D., International Law, 6tli edition, 1894. PERIODICALS. Journal du droit international prive, 1874 et seq. (Cited as J. D. I. P.) Revue de droit international, 1869 et seq. (Cited as R. D. I.) Revue generale de droit international public, 1894 et seq. (Cited as R. D. I. P.) Note. — The following works are announced, but unfortunately not yet published ; Foster, J. W., American Diplomacy in the Orient, 1903. Moore, J. B., International Law Digest (Treaties as well as Digest), 1903. Moore, J. B., American Foreign Policy, 1903 or 1904. CASES ON INTERNATIONAL LAW. INTRODUCTION. Section 1.— Internatioxal Law is a part of the Municipal Law OF States. HAERIS, J., IN HElIiX v. BRIDAULT AND WIFE, 1859. (37 Mississippi, 209, 229.) It is only by virtue of the municipal law of each state or nation, or by the law of civilized nations, which is regarded as a part of the municipal law of each, that aliens have any rights at all; and neither the municipal law, nor the law of nations, has any extraterritorial operation. As the municipal law is limited in its operation to the territory of the nation by which it is established, and whose citizens have agreed to be governed by its rules, and does not extend to any other nation or people who have not thus consented to its obligations; so the law of nations, having its origin in the necessities growing out of commercial, social, and diplomatic intercourse of cic'dized nations, and being founded upon the express or implied assent of such nations, cannot be extended to embrace those nations or people who neither respect nor acknowledge the laws of God or man, and are wholly incapable, from their nature and constitution, of civilized inter- course. "The law of nations is a system of rules, which reason, morality, and custom have established among ciciUxed nations as their public law." 1 Kent, Com. 1; 1 Black. Com. 43. Mr. Wheaton, in his work on International Law, after examin- ing the definition and sources of international law, as discussed by Grotius, Hobbes, Puffendorf, Rutherforth, Bynkershoek, Heffter, Vattel, ^Montesquieu, and others, and the character of its obliga- 1 2 INTRODUCTION. tions, and upon what nations it operates, thus defines it: "Interna- tional law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces as conso- Inant to justice, from the nature of the society, existing among inde- pendent nations; with such definitions and modifications as maybe established by general consent," and for this he cites Mr. Madison, See International Law, 46. "There is, then," he says in another place, "according to these writers, no universal, immutable law of nations, binding upon the whole human race, which mankind, in all ages and countries, ancient and modern, savage and civilized, Christian and Pagan, have recog- nized in theory or in practice, have professed to obey, or in fact have obeyed. * * * The obligation of the ordinary _;'?<« ye?i^i»m rfejjeMf7.si^/?o?j the perstiosion that otlier nations will observe the same rules in their intercourse with us, which ive ohsenie towards them ; or if they fail to observe these rules, that they will incur the general hostility of nations. But this 2)ersuasio7i cannot exist, as to those races of men who do not recognize one law of nations." Wheaton, International Law, 4^\ 1 Burlamaqui, 137-8.^ 1 In U. S. V. The Active, 1814, 24 Fed. Cases, 755, Toulman, J., says : " What, indeed, is tlie liiw of nations? It is that rule of conduct whicli regulates tiie intercourse of nations wltli one anotlier ; or in tlie words of tlie autlior last cited, ' The law of nations is the science of the law subsisting between nations or states, and of tlie obligations that flow from it. ' Vatt. Law Nat. 49. It is a law for the government of national com- munities as to their mutual relations, and not for the government of individuals of those comnmnities in their relation towards one another — nor can it control the con- duct of nations towards their own citizens, except in cases involving the riglits of other nations." Van Ness, J., says (in Johnson et ah. v. 21 Bales, 28 Cases of Merchandise, etc., 2 Paine, 601, 604) : "In examining the points which have been stated, it will be nec- essary to advert to some general principles of the law of nations. In doing this, it will not be requisite to notice particularly its divisions into necessary, vohuitari/, conventional or positive. The law of nations, without defining or developing its divisions more minutely, may be stated to be the law of nature, rendered applicable to political societies, and modi- fied, in process of time, by the tacit or express consent, by the long established usages and written compacts of nations: usages and compacts become so general that every civilized people ought to recognize and adopt their principles." In considering the application of this law of nations to non-christian communities (the Mahometan states of Afrioa), Lord Stowell, then Sir William Scott, says: " It is by the law of treaty only that these nations hold 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 conventions (The Helena, 1801, 4 C. Rob., 4, 7). In another case, the same eminent authority says : " Independent of Buch engagements [treaties], it is well known that this court is in the habit of show- ing something of a peculiar indulgence to persons of that part of the world [Ottoman Porte]. The inhabitants of those countries are not professors of exactly the same law of nations with ourselves. In consideration of the peculiarities of their situation INTRODUCTION. 3 STORY, J., IN "LA JEUNE EUGENIE," 1822. (2 ^^ason, 409.) Now the law of nations may be deduced, first, from the general prin- ciples of right and justice, applied to the concerns of individuals, and thence to the relations and duties of nations ; or, secondly, in things indifferent or questionable, from the customary observances and rec- ognitions of civilized nations; or, lastly, from the conventional or positive law, tliat regulates the intercourse between states. Wliat, therefore, the law of nations is, does not rest upon mere theor}'', but may be considered as modified by practice, or ascertained by the treaties of nations at different periods. It does not follow, therefore, that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations. Nor is it to be admitted, tbat no principle belongs to the law of nations, which is not universally recognized, as such, by all civilized communities, or even by those constituting, what may be called, the Christian states of Europe. Some doctrines, which we, as well as Great Britain, admit to belong to the law of nations are of but recent origin and application, and have not, as yet, received any public or general sanction in other nations; and yet they are founded in such a just view of the duties and rights of nations, belligerent and neutral, that we have not hesitated to enforce them by the penalty of confiscation. There are other doc- and cliaracter, the court has repeatedly expressed a disposition not to hold them bound to the utmost rigor of that system of public laws on whicli European states have so long acted in their intercourse with one another" {The Madonna del Bursa, 1802. 4 C. Rob. 169, 172. (To the same effect, he says in another case: " It has been argued that it would be extremely hard on persons residing in the kingdom of Mo- rocco, if they should be held bound by all the rules of the law of nations, as it is practised amongst European states. On many accounts undoubtedly tliey are not to be strictly considered on the same footing as European merchants ; tiiey may, on some points of tlie law of nations, be entitled to a very relaxed application of tlie principles, established by long usage, between the states of Europe holding an intimate and constant intercourse with each other. It is a law made up of a good deal of complex reasoning, though derived from ver\' simple rules, and altogether composing a pretty artificial system, which is not familiar either to their knowledge or their observations. Upon sucli considerations, the court has, on some occasions, laid it down that the European law of nations is not to be applied in its full rigor to the transactions of persons of the description of the present claimants, and residing in that part of the world (2d Adm. Rep. p. 88). But on a point like this, the breach of a blockade, one of the most universal and simple operations of war in all ages and countries, except- ing such as were merely savage, no such indulgence can be shown (The Hurtige Hane, 1801, 3 C. Rob. 324, 325, 326). — Ed. 4 INTRODUCTION. trines, again, which have met the decided hostility of some of the European states, enlightened as well as powerful, such as the right of search, and the rule, that free ships do not make free goods, Avhich, nevertheless, both Great Britain and the United States maintain, and in my judgment with unanswerable arguments, as settled rules in the Law of Prize, and scruple not to apply them to the ships of all other nations.^ And yet, if the general custom of nations in modern times, or even in the present age, recognized an opposite doctrine, it could not, perhaps, be affirmed, that that practice did not constitute a part, or, at least, a modification of the law of nations. But I think it may be unequivocally affirmed, that every doctrine, that may be fairly deduced by correct reasoning from the rights and duties of nations, and the nature of moral obligation, may theoreti- cally be said to exist in the law of nations; and unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and customs, it may be enforced by a court of justice, whenever it arises in judgment. And I may go farther and say, that no practice whatsoever can obliterate the fundamental distinction between right and wrong, and that every nation is at liberty to apply to another the correct principle, whenever both nations by their pub- lic acts recede from such practice, and admit the injustice or cruelty of it. AN ACT FOR PRESERVING THE PRIVILEGES OF AMBAS- SADORS, AND OTHER PUBLIC MINISTERS OF FOR- EIGN PRINCES AND STATES. 1708. (1 Chlitifs Statutes, 3d ed., 47.) Whereas several turbulent and disorderly persons having in a most outrageous manner insulted the person of his excellency Andrew Artemonowitz Mattneof, ambassador extraordinary of his czarish majesty, emperor of Great Russia, her majesty's good friend and ally, by arresting him, and taking him, by violence, out of his coach in the public street, and detaining him in custody for several hours, in contempt to the protection granted by her majesty, contrary to the law of nations and in prejudice of the rights and privileges which ambassadors and other public ministers, authorized and received as 1 See the Declaration of Paris, 185(5, infra. The United States observed tlie prin- ciples of the Declaration in the Civil War, 1861-1805, and the rules of the Declaration were offlcialij- adopted and proclaimed by the President. April 26, 1898, at the out- break of the Spanish-American War (10 Richardson's Messages & Papers, 204). See also Dana's Wheaton, note, 223; Hall's Int. Law, 708-717. — Ed. INTRODUCTION. 5 such, have at all times been thereby possessed of, and ought to be kept sacred aud inviolable; Be it therefore declared, that all actions and suits, writs and processes, commenced, sued, or prosecuted, against the said ambassador by any person or persons whatsoever, and all bail bonds given by the said ambassador, or any other person or persons on his behalf, and all recognizances of bail given or acknowledged in any such action or suit, and all proceedings upon or by pretext or color of such action or suit, writ or process, aud all judgments had thereupon, are utterly null and void, and shall be deemed and judged to be utterly null and void, to all intents, constructions, and purposes whatsoever. 2. That all entries, proceedings, and records, against the said am- bassador or his bail, shall be vacated and cancelled. 3. And to prevent the like insolences for the future, be it further declared, that all writs and processes that shall at any time hereafter be sued forth or prosecuted whereby the person of any ambassador or other public minister of any foreign prince or state authorized and received as such by her majesty, her heirs or successors, or the domestic or domestic servant of any such ambassador or other public minister, may be arrested and imprisoned, or his or tlieir goods or chattels may be distrained, seized, or attached, shall be deemed and adjudged to be utterly null and void, to all intents, constructions, and purposes whatsoever. 4. That in case any person or persons shall presume to sue forth or prosecute, any such writ or process, such person and persons, and all attorneys and solicitors prosecuting and soliciting in such case, and all officers executing any such writ or process, being thereof con- victed by the confession of the party, or by the oath of one or more credible witness or witnesses, before the lord chancellor or keeper of the great seal of Great Britain, the chief justice of the court of queen's bench, the chief justice of the court of common pleas, for the time being, or any two of them, shall be deemed violators of the laws of nations, and disturbers of the public repose, and shall suffer such pains, penalties, and corporal punishment, as the said lord chancellor, lord keeper, and the said chief justices, or any two of them, shall judge fit to be imposed and inflicted, 5. Provided, that no merchant or other trader, whatsoever, within the description of any of the statutes against bankrupts who hath or shall put himself into the service of any such ambassador or public minister, shall have or take any manner of benefit by this act, and that no person shall be proceeded against as having arrested the ser- vant of an ambassador or public minister by virtue of this act, unless the name of such servant be first registered in the office of one of the principal secretaries of state, and by such secretary transmitted by 6 INTRODUCTION. the sheriffs of London and Middlesex for the time being, or their under sheriffs or deputies, who shall, upon the receipt thereof, hang up the same in some public place in their offices, whereto all persons may resort, and take copies thereof without fee or reward. 6, That this act shall be taken and allowed in all courts within this kingdom as a public act, and that all judges and justices shall take notice of it without special pleading, and all sheriffs, bailiffs, and other officers and ministers of justice concerned in the execution of process are hereby required to have regard to this act, as they will answer the contrary at their peril. ^ TRIQUET AXD OTHERS v. BATH. PEACH a:n^d another v. bath. Court of King's Bench, 1764. (3 BuiTow, 1478.) Mr. Blackstone, Mr. Thurlow, and Mr. Dunning, on behalf of the plaintiffs, showed cause why the bill of Middlesex in each of these causes should not be set aside, and the bail-bond be cancelled. ■ The rule was made upon affidavits " Of the defendant's being a domestic servant of a foreign minister; and having taken all the proper steps to entitle him to the privilege of such domestics." The only question was, "Whether the defendant (Christopher Bath) was really and truly and bona fide a domestic servant of Count Has- lang, the Bavarian minister; " or, " Whether his service Avas only color- able, and a mere sham and pretence calculated to protect him from the just demands of his creditors." Lord Mansfield: — This privilege of foreign ministers and their domestic servants depends upon the law of nations. The act of Par- liament of 7 Ann. c. 12, is declaratory of it. All that is new in this act, is the clause which gives a summary jurisdiction for the punish- ment of the infractors of this law. The act of Parliament was made upon occasion of the Czar's ambas- sador being arrested. If proper application had been immediately 1 " Sections 4062, 4063, 4064, anrl 4065 were orifrinally sections 25, 26, 27, and 28 of the Crimes Act of April 30, 1790, c. 9, 1 Stat. 118; and these were drawn from tiie statute of Anne, c. 12, wliicli was declaratory simply of the law of nations, wliicli Lord Mansfield observed, in Ileathfield v. Chilton, 4 Burrow, 2015, 2016, the Act did not intend to alter, and could not alter." Per Fuller, C. J., in Re Baiz, 1889, 135 U. S. 403, 420.— Eu. INTRODUCTION, 7 made for his discharge from the arrest, the matter might and doubtless would have been set right. Instead of that, bail was j)ut in, before "any complaint was made. An information was filed by the then attorney-general against the persons who were thus concerned, as infractors of the law of nations, and they were found guilty, but never brought up to judgment. The Czar took the matter up, highly. No punishment would have been thought by him an adequate reparation. Such a sentence as the court could have given, he might have thought a fresh insult. Another expedient was fallen upon and agreed to; this act of Par- liament passed, as an apology and humiliation from the whole nation. It was sent to the Czar, finely illuminated, by an ambassador extra- ordinary, who made excuses in a solemn oration. A great deal relative to this transaction and negotiation appears in the annals of that time; and from a correspondence of the Secretary of State there printed. But the act was not occasioned by any doubt "Whether the law of nations, particularly the part relative to public ministers, was not part of the law of England, and the infraction, criminal; nor in- tended to vary an iota from it. I remember in a case before Lord Talbot, of Buvot v. Barhut, upon a motion to discharge the defendant (who was in execution for not performing a decree), " Because he was agent of commerce, commis- sioned by the King of Prussia, and received here as such; " the matter was very elaborately argued at the bar; and a solemn deliberate opin- ion given by the court. These questions arose and were discussed. — "Whether a minister could, by any act or acts, waive his privi- lege." — " Whether being a trader was any objection against allowing privilege to a minister, personally." — "Whether an agent of com- merce, or even a consul, was entitled to the privileges of a public minister." — "What was the rule of decision: the act of Parliament or the law of nations." Lord Talbot declared a clear opinion — "That the law of nations, in its full extent, was part of the law of England." — "That the act of Parliament was declarator}', and oc- casioned by a particular incident." — "That the law of nations Avas to be collected from the practice of different nations, and the authority of writers." Accordingly, he argued and determined from such in- stances, and the authority of Grotius, Barbeyrac, Binkershoek, Wique- fort, &c. ; there being no English writer of eminence upon the subject. I was counsel in this case, and have a full note of it, I remember, too, Lord Hardwicke's declaring his opinion to the same effect; and denying that Lord Chief Justice Holt ever had any 8 INTRODUCTION. doubt as to the law of nations being part of the law of England, upon the occasion of the arrest of the Russian ambassador. Mr. Blackstone's principles are right; but as to the facts in the present case, the affidavits on the part of the defendant have outsworn those on the part of the plaintiffs. (And his Lordship, as well as Mr. Justice Wilmot, took notice that the person who drew the affidavits on the part of the defendant had very exactly pursued the course of the cases that had been determined upon questions of this kind; and had taken care to meet and answer all objections that might arise from them.) Lord Mansfield observed also, that the defendant was employed in the service of Monsieur Hastang, before the plaintiff took out his writ. It was not to be expected, he said, that every particular act of the service should be particularly specified; it is enough if an actual bond fide service be proved. And if such a service be sufBciently proved by affidavit, we must not, upon bare suspicion only, suppose it to have been merely colorable and collusive. As to the latter point, "Of his being a trader" — his having been so in Ireland (and even that seven years ago, too), will not bring him within the exception of the 5th clause of this act, which provides "That no merchant or other trader whatsoever, within the descrip- tion of any of the statutes against bankrupts, who hath or shall put himself into the service of any such ambassador or public minister, shall have or take any manner of benefit by that act." And there is no color for bringing this case within that of Dods- worth V. Anderson; for here is no connection between the goods bought in England and those sold in Ireland. It does not appear that they were the same goods; neither is anytime specified, when they were bought, or when they were sold. Per Cur. — Both rules were made absolute, but without costs, by reason of the suspicious circumstances of this case. BLACKSTONE'S COMMENTARIES, BOOK IV. CHAPTER IV., 1765. The law of nations is a system of rules, deducible by natural reason and established by universal consent among the civilized inhabitants of the world ; in order to decide all disputes, to regulate all ceremonies and civilities and to insure the observance of justice and good faith, in that intercourse which must frequently occur between two or more independent states and the individuals belonging to each. INTRODUCTION. 9 This general law is founded upou this principle, that different nations ought in time of peace to do one another all the good they can, and in time of war as little harm as possible, without prejudice to tlieir own real interests. And, as none of these states will allow a superiority in the otlier, therefore neither can dictate or prescribe the rules of this law to the rest ; bat such rules must necessarily result from those prin- ciples of natural justice in which all the learned of every nation agree ; or they depend upon mutual compacts or treaties between the respective communities ; in the construction of which there is also no judge to resort to but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject. In arbitrary states this law, wherever it contradicts or is not pro- vided for by the municipal law of the country, is enforced by the royal power ; but since in England no royal power can introduce a new law or suspend the execution of the old, therefore the law of nations (wherever any question arises which, is properly the object of its juris- diction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land. And those acts of parliament which, have from time to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as introductive of any new rule, but merely as declaratory of the old fundamental constitutions of the kingdom ; without which it must cease to be a part of the civilized world. Thus in mercantile questions, such as bills of exchange and the like ; in all marine causes, relating to freight, average, demurrage, insurances, bottomry, and others of a similar nature ; the law merchant, which is a branch of the law of nations, is regularly and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other rule of decision but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of. But, though in civil transactions and questions of property between the subjects of different states, the law of nations has much scope and extent, as adopted by the law of England ; yet the present branch of our inquiries will fall within a narrow compass, as offences against the law of nations can rarely be the object of the criminal law of any par- ticular state. For offences against this law are principally incident to whole states or nations ; in which case recourse can only be had to war ; which is an appeal to the God of hosts, to punish such infrac- tions of public faith as are committed by one independent people against another : neither state having any superior jurisdiction to resort to upon earth for justice. But where the individuals of any 10 INTRODUCTION. state violate this general law, it is then the interest as well as duty of the government, under which they live, to animadvert upon them with a becoming severity, that the peace of the world may be maintained. For in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion and involve the two states in a war. It is there- fore incumbent upon the nation injured, first to demand satisfaction and justice to be done on the offender, by the state to which he belongs; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject's crime, and draws upon his community the calamities of foreign war. AETICLES OF COXFEDEPtATIOX, 1777 (1781-1788) ARTICLE IX. The United States in Congress assembled shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth Article ; of sending and receiving ambassadors ; entering into treaties and alliances, provided that no treaty of commerce shall be made whereby the legislative power of the respective states shall be restrained from imposing such imposts and duties on foreigners as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever ; of establishing rules for deciding in all cases what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated ; of granting letters of marque and reprisal in times of peace ; appointing courts for the trial of piracies and felonies committed on the high seas ; and establishing courts for receiving and determining finally appeals in all cases of captures ; provided that no member of Congress shall be appointed as judge of any of the said courts. The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting, or that hereafter may arise between two or more states concerning boundary, jurisdiction, or any other cause whatev^er.^ * * * 1 On Articles of Confederation, see generally Fiske's " Critical Period of American History," pp. 92-102 ; Frothiiigham's " Rise of the Republic," pp. 5G1-572. For the ju- diciary contemplated by the Articles, see a valuable essay entitled " The Predecessor of the Supreme Court," by Professor Jameson in " Essays in the Constitutional History of the United States" (1889). "It is obviously impossible," he says, at page 34 of the essay referred to, " to discuss here the various cases decided by the court, though INTRODUCTION. H THE CONSTITUTION OF THE UNITED STATES, 1789. Art. I., Sect. 8. Tlie Congress shall have power * ♦ * To regu- late commerce with foreign nations, and among the several States and with the Indian tribes ; To establish an uniform rule of naturalization * * * ; To constitute tribunals inferior to the Supreme Court ; To define and punisli piracies and felonies committed on the high seas, and offences against the law of nations ; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ; Section 10. No State shall enter into any treaty alliance, or con- federation ; grant letters of marque or reprisal. * * * 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. Art. II., Sect. 2. He [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 ambas- sadors, other public ministers and consuls. * * * Sect. 3. * * * He shall receive ambassadors and other public min- isters ; he shall take care that the laws be faithfully executed and shall commission all the offices of the United States. Art. III., Sect. 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Con- gress may from time to time ordain and establish. * * * two of them were afterward important as cases in the Supreme Court of the United States, — the cases of Penhalloiv v. Doane, 3 Dallas, 54, and Jennings v. Carson, 4 Cranch, 2, the former of which, in 1795, settled the jurisdiction of the Court of Appeals. Judge Davis computes that 'sixty-five cases in all were submitted to the Committees of Congress, of which forty-nine were decided by them, four seem to have disappeared, and twelve went over to the Court of Appeals for decision ; ' and that 'fifty-seven cases in all, including the twelve which went over, were submitted to the Court of Appeals, and all were disposed of.' Eight more of its cases are reported in 2 Dallas (1-42), making one hundred and eighteen in all." Some of these cases are printed infra. See also Hon. J. C. Bancroft Davis' monograph entitled " The Com- mittees of the Continental Congress chosen to hear and determine Appeals from Courts of Admiralty and the Court of Appeals in Cases of Capture, established by that Body "' (131 U. S., Appendix XII.-LXIII.). This matter of the judiciary under the Articles of Confederation is briefly but admirably treated in Chapter III. (pp. 39-G4) of Hampton L. Carsons' authoritative "Supreme Court of the United States, its History " (IS'Jl). — Ed. p INTRODUCTION. Sect. 2. 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. 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 Courts shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Con- gress shall make. The trial of all crimes, except in cases of impeachment, shall be by- jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Sect. S. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession 1 Maritime law (unless part of international law) lias the effect of law only in so far as it is adopted by the laws, usages, and customs of the particular country, Noncich Co. V. Wrifjht, 1872, 13 Wall. 104 ; e8i)eciaily The Lottawanna, 1874, 21 Wall. 658, 572-578, where the subject is discussed in detail ; The Scotland, 1881, 105 U. S. 24, where cases in 1-3 & 21 Wallace are cited and approved. In The Manhasset, 1884, 18 Fed. R. 918, 920-923, this subje(!t was considered and the following resume' is found on p. 922 of the judgment of Hughes, J. : "From all that has been said, these things would seem to be clear: First, that maritime law, existing as it does by the common consent of nations, and being a general law, cannot be chanL'ed or modified as to its general operation by any particular sovereignty ; second, that it has force in any country only by its adoption, express or implied, by that country, and may be modified in its special operation in that jurisdiction at the will of the special sovereignty ; third, that it is by such adoption part of the Federal law of the United States, and incapable of modification by state enactment, — Congress having exclusive power, under the constitution, 'to regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; ' and the judicial power of the United States, ' exclusive of the State courts,' extending 'to all cases of admiralty and maritime jurisdiction.' " The leading cases on mercantile and maritime law are collected and annotated in Tudor's Mercantile Cases (3d ed., 1884). For the origin, nature, and extent of admi- ralty jurisdiction in the United States, see Ames: Cases on Admiralty (I'JOI). — Ed. INTRODUCTION". 13 in open court. The Congress shall have power to declare the punish- ment of treason. * * * Art. VI. * * * 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, anj^thing in the Constitution or laws of any State to the contrary notwithstanding. * * * UNITED STATES v. SMITH. Supreme Court of the United States, 1820. (5 Wheaton, 153.) This was an indictment for piracy against the prisoner Thomas Smith, before the circuit court of Virginia, under the act of Congress, of the 3d of March, 1819, c. 76, which provides (s. 5) " That if any person or persons whatsoever, shall, on the high seas, commit the crime of piracy, as defined by the, law of nations, and such offender or offenders shall afterwards be brought into, or found in, the United States, every such offender or offenders shall, upon conviction thereof, before the circuit court of the United States for the district into which he or they may be brought, or in which he or they shall be found, be punished with death." The jury found a special verdict as follows : '' We of the jury find, that the prisoner, Thomas Smith, in the month of March, 1819, and others, were part of the crew of a private armed vessel, called the Creollo (commissioned by the government of Buenos Ayres, a colony then at war with Spain), and lying in the port of Margaritta ; that in the month of March, 1819, the said prisoner and others of the crew mutinied, confined their officers, left the vessel, and in the said port of Margaritta seized by violence a vessel called the Irresistible, a private armed vessel, lying in that port, commissioned by the govern- ment of Artegas, who was also at war with Spain ; that the said prisoner and others, having so possessed themselves of the said vessel, the Irresistible, appointed their officers, proceeded to sea on a cruise, without any documents or commission whatever ; and while on that cruise, in the month of April, 1819, on the high seas, committed the offence charged in the indictment, by the plunder and robbery of the Spanish vessel therein mentioned. If the plunder and robbery- aforesaid be piracy under the act of the Congress of the United States, entitled, ' An act to protect the commerce of the United States, and 14 INTRODUCTION. punish the crime of piracy,' then we find the said prisoner guilty ; if the phmder and robbery, above stated, be not piracy under the said act of Congress, then we find him not guilty." Tlie circuit court divided on the question, whether this be piracy as defined by the law of nations, so as to be punishable under the act of Congress, of the 3d of March, 1819, and thereupon the question was certified to this court for its decision. Mr. Justice Story delivered the opinion of the court: — "The act of Congress upon which this indictment is founded provides, that if any person or persons whatsoever shall, upon the high seas, commit the crime of piracy, as defined by the law of nations, and such offender or offenders shall be brought into, or found in the United States, every such offender or offenders shall, upon conviction thereof, etc., be pun- ished with death. " The first point made at the bar is, whether this enactment be a constitutional exercise of the authority delegated to Congress upon the subject of piracies. The Constitution declares, that Congress shall have power ' to define and punish piracies and felonies, com- mitted on the high seas, and offences against the law of nations.' The argument which has been urged in behalf of the prisoner is, that Con- gress is bound to define, in terms, the offence of piracy, and is not at liberty to leave it to be ascertained by judicial interpretation. If the argument be well founded, it seems admitted by the counsel that it equally applies to the 8th section of the act of Congress of 1790, ch. 9, which declares, that robbery and murder committed on the high seas shall be deemed piracy ; and yet, notwithstanding a series of contested adjudications on this section, no doubt has hitherto been breathed of its conformity to the Constitution. ''In our judgment, the construction contended for proceeds upon too narrow a view of the language of the Constitution. The power given to Congress is not merely ' to define and punish piracies ;' if it Avere, the words ' to define ' would seem almost superfluous, since the power to punish piracies would be held to include the power of ascer- taining and fixing the definition of the crime. And it has been very justly observed, in a celebrated commentary, that the definition of piracies might have been left without inconvenience to the law of nations, though a legislative definition of them is to be found in most municipal codes. But tlie power is also 'given to define and punish felonies on the high seas, and offences against the law of nations.' The term 'felonies' has been supposed in the same work not to have a very exact and determinate meaning in relation to offences at the common law committed witliin the bod}'^ of a country. However this may be, in relation to offences on the high seas, it is necessarily INTRODUCTION. 15 somewhat indeterminate, since the term is not used in the criminal jurisprudence of the admiralty in the technical sense of tlie common law. Offences, too, against the law of nations cannot, with any ac- curac}', be said to be completely ascertained and defined in any public code recognized by the common consent of nations. In respect, there- fore, as well as to felonies on the high seas as to offences against the law of nations, there is a peculiar fitness in giving the power to define as well as to punish ; and there is not the slightest reason to doubt tliat this consideration had very great weight in producing the phrase- ology in question. *' But, supposing Congress were bound in all the cases included in the clause under consideration to define the offence, still there is nothing which restricts it to a mere logical enumeration in detail of all the facts constituting the offence. Congress may as well define by using a term of a known and determinate meaning, as by an express enumeration of all the particulars included in that term. That is certain which is by necessary reference made certain. When the act of 1790 declares, that any jDerson who shall commit the crime of robbery, or murder on the high seas, shall be deemed a pirate, the crime is not less clearly ascer- tained than it Avould be by using the definitions of these terms as they are found in our treatises of the common law. In fact, by sucli a reference, the definitions are necessarily included, as much as if they stood in the text of the act. In respect to murder, where 'malice aforethought ' is of the essence of the offence, even if the common-law definition were quoted in express terms, we should still be driven to deny that the definition was perfect, since the meaning of ' malice aforethought' would remain to be gathered from the common law. There would then be no end to our difficulties, or our definitions, for each would involve some terms which might still require some new explanation. Such a construction of the Constitution is, therefore, wholly inadvisable. To define piracies, in the sense of the Constitu- tion, is merely to enumerate the crimes which shall constitute piracy,' and this may be done, either by a reference to crimes having a techni- cal name and determinate extent, or by enumerating the acts in detail, upon which the punishment is inflicted. "It is next to be considered, whether the crime of piracy is defined by the law of nations with reasonable certainty. What the law of nations on this subject is, may be ascertained by consulting the works of jurists, writing professedly on public law; or by the general usage and practice of nations ; or by judicial decisions recognizing and enforcing that law. There is scarcely a writer on the law of nations who does not allude to piracy as a crime of a settled and determinate nature ; and whatever may be the diversity of definitions in other 16 INTRODUCTION. respects, all writers concur in holding that robbery, or forcible depre- dations upon the sea anlmo farandl, is piracy. Tlie same doctrine is held by all the great writers on maritime law in terms that admit of no reasonable doubt. " The common law, too, recognizes and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations (which is part of the common law), as an offence against the universal law of society, a pirate being deemed an enemy of the human race. Indeed, until the statute of 28th of Henry VIII., ch. 15, piracy was punished in England only in the admiralty as a civil-law offence ; and tliat statute, in changing the jurisdiction, has been universally admitted not to have changed the nature of the offence. Sir Cliarles Hedges, in his charge at the admiralty sessions, in the case of Rex v. Dawson, 5 State Trials, declared in emphatic terms that ' jjiracy is only a sea term for robbery, piracy being a robbery committed within the jurisdiction of the admiralty.' Sir Leoline Jenkins, too, on a like occasion, declared that ' a robbery, when committed upon the sea, is what we call jjiracy ;' and he cited the civil-law writers, in proof. " And it is manifest from the language of Sir William Blackstone, 4 Bl. Comm. 73, in his comments on piracy, tliat he considered the common-law definition as distinguishable in no essential respect from that of the law of nations. So that, vs'hether we advert to writers on the common law, or the maritime law, or the law of nations, we shall find that they universally treat of piracy as an offence against the law of nations, and that its true definition by that law is robbery upon the sea. And the general practice of all nations in punishing all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. We have, therefore, no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea, and that it is sufficiently and constitutionally defined by the fifth section of the act of 1S19. "Another point has been made in this case, which is, that the special verdict does not contain sufficient facts upon wliich the court can pronounce that the prisoner is guilty of piracy. We are of a different opinion. The special verdict finds that the prisoner is guilty of the plunder and robbery charged in the indictment; and finds certain additional facts from which it is most manifest that he and his associates were, at the time of committing the offence, freebooters upon the sea, not under the acknowledged authority, or deriving protection from the flag or commission of any government. If, under such circumstances, INTRODUCTION. 17 the offence be not piracy, it is difficult to conceive any which would more completely fit the definition. "" It is to be certified to the circuit court that upon the facts stated the case is piracy, as defined by the law of nations, so as to be punish- able under the act of Congress of the 3d of March, 1819." Mr. Justice Livixgstoxk dissented, On the ground that the act of Congress did not contain such a definition of piracy as the constitution requires.^ THE SCOTIA. Supreme Court of the United States, 1871. (14 Wallace, 170.) Mr. Justice Strong delivered the opinion of the court. ^ It must be conceded, however, that the rights and merits of a case may be governed by a different law from that which controls a court in which a remedy may be sought. The question still remains, what was the law of the place where the collision occurred, and at the time when it occurred. Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial na- tions of the world adopted the regulations of 1863 and 18G4, or the law changed after those regulations were adopted? Undoubtedl}-, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon i the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordi- nances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which pre- vail, and which have the force of law, doubtless originated in the 1 In speaking of this case Sir Kobert Pliillimore (1 Int. Law, 480, noted) says : " The note (a) to this page [163] contains a most learned and careful accumulation of all the authorities on the subject of Piracy." Lack of space unfortunately compels its omission. — Ed. - The facts of the case are omitted, and only that part of the opinion concerning the question of international law is given. — Ed. 2 18 INTRODUCTION. positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. The Rhodian law is supposed to have been the earliest system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan table, of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navi- gation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of Jan. 9, 1863, and in our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants complain took place. This is not giving to the statutes of any nation extraterritorial effect. It is not treating them as general maritime laws, but is recognition of the historical fact that, by common consent of man- kind, these rules have been acquiesced in as of general obligation. Of that fact we think we may take judicial notice. Foreign muni- cipal laws must indeed be proved as facts, but it is not so with the law of nations. The consequences of this ruling are decisive of the case before us. The violation of maritime law by the Berkshire in carrying a white light (to say nothing of her neglect to carry colored lights), and her carrying it on deck instead of at her masthead, were false repre- sentations to the Scotia. They proclaimed that the Berkshire was a steamer, and such she was manifestly taken to be. The movements of the Scotia were therefore entirely proper, and she was without fault. Decree affirmed, with costs. INTRODUCTION. 19 THE ^^PAQUETTE HABANA." THE ''LOLA." SuPBEME Court of the United States, 1899. (175 United States, 677.) During the Spanish-American war two small Spanish fishing smacks, the Paquette Habana and the Lola were respectively captured at sea by the gunboat Castine and the steamship Dolphin, and taken by their captors into Key West, Fla., where they were libelled and condemned as enemy's property, and sold under decree of the court. On appeal to the Supreme Court of the United States, the question before the court was, are fishing smacks, in the absence of municipal law or treaty, protected from capture by the law of nations, and is such law of nations part of the municipal law of the United States?^ Mr. Justice Gkay delivered the opinion of the court. International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who, by years of labor, research, and experience, have made themselves pecu- liarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trust- worthy evidence of what the law really is. Hilton v. Guyot, 159 U. S. 113, 163, 164, 214, 215.^ Wheaton places, among the principal sources of international law, "text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions andfnodifications introduced by general consent." As to these he forcibly observes: "Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down 1 This brief statement is substituted for that of the report and only part of the opinion of the court is given . — Ed. 2 Compare the language of Lord Coleridge, C J., in The Queen v. Keyn, infra. — Ed. 20 INTRODUCTION. in their works being impugned by the avowal of contrary principles." Wheaton's International Law (8th ed.), § 15. Chancellor Kent says: "In the absence of higher and more authori- tative sanctions, the ordinances of foreign states, the opinions of emi- nent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor 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 on international law." 1 Kent Com. 18. This review of the precedents and authorities on the subject appears to VIS abundantly to demonstrate that at the present day, by the general consent of the civilized nations of the world, and independently of any express treaty or other public act, it is an established rule of international law, founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of bel- ligerent states, that coast-fishing vessels, with their implements and supplies, cargoes and crews, unarmed, and honestly pursuing their peaceful calling of catching and bringing in fresh fish, are exempt from capture as prize of war. The exemption, of course, does not apply to coast fishermen or their vessels, if employed for a warlike purpose, or in such a way as to give aid or information to the enemy; nor when military or naval operations create a necessity to which all private interests must give way. Nor has the exemption been extended to ships or vessels employed on the high sea in taking whales or seals, or cod or otlier fish, which are not brought fresh to market, but are salted or otherwise cured and made a regular article of commerce. This rule of international law is one which prize courts, adminis- tering the law of nations, are bound to take judicial notice of, and to give effect to, in the absence of any treaty or oth^ public act of their own government in relation to the matter. Calvo, in a passage already quoted, distinctly affirms that the ex- emption of coast-fishing vessels from capture is perfectly justiciable, or. in other words, of judicial jurisdiction or cognizance. Calvo, § 23G8. Nor are judicial precedents wanting in support of the view that this exemption, or a somewhat analogous one, should be recog- nized and declared by a prize court. By the practice of all civilized nations, vessels employed only for the purposes of discovery or science are considered as exempt from the contingencies of war, and therefore not subject to capture. It INTRODUCTIOX. 21 has been usual for the government sending out such an expedition to give notice to other powers; but it is not essential. 1 Kent Com. 91, note ; Halleck, c. 20, § 22 ; Calvo, § 2376 ; Hall, § 138. In 1S13, while the United States were at war with England, an American vessel, on her voyage from Italy to the United States, was captured by an English ship, and brought into Halifax in Xova Scotia, and with her cargo condemned as lawful prize by the Court of Vice- Admiralty there. But a petition for the restitution of a case of paint- ings and engravings which had been presented to and were owned by the Academy of Arts in Philadelphia, was granted by Dr. Croke, the judge of that court, who said: "The same law of nations, which pre- scribes that all property belonging to the enemy shall be liable to con- fiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted, amongst all civilized nations, as forming an exception to the severe rights of welfare, and as entitled to favor and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species." And he added that there had been " innumerable cases of the mutual exercise of this courtesy between nations in former wars." The Marquis de Somerueles, Stewart Adm. (Xova Scotia), 445, 482. In 18G1, during the war of the rebellion, a similar decision was made, in the District Court of the United States for the Eastern District of Pennsylvania, in regard to two cases of books belonging and consigned to a university in North Carolina. Judge Cadwalader, in ordering these books to be liberated from the custody of the mar- shal, and restored to the agent of the university, said: "Though this claimant, as the resident of a hostile district, would not be entitled to restitution of the subject of a commercial adventure in books, the purpose of the shipment in question gives to it a different character. The United States, in prosecuting hostilities for the restoration of their constitutional authority, are compelled incidentally to confiscate property captured at sea, of which the proceeds would otherwise in- crease the wealth of that district. But the United States are not at w^ar with literature in that part of their territory." He then referred to the decision in Xova Scotia, and to the French decisions upon cases of fishing vessels, as precedents for the decree which he was about to pronounce; and he added that, without any such precedents, he should have had no difficulty in liberating these books. The Amelia, 4 Philadelphia, 417. ^ 1 Dissenting opinion of Fuller, C. J., in which Harlan and McKenna, J.T., con- curred, is omitted. Tiie opinion of the late Mr Justice Gray contains an elaborate ex- amination of the authorities, both precedents and text-books, and siiould be read in full. 22 INTRODUCTION. In the case of the Charming Betsy, 1804, 2 Cranch, 64, 118, Marshall, C. J., said: '^' It lias also been observed that an act of Congress ougiit never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce further tlian is warranted by the law of nations as understood in this country." In the case of the Nereide, 1815, 9 Cranch, 388, 423, the same judge said : " Till such an act [of Congress] be passed, the court is bound by the law of nations, which is a part of the law of the land." See also Talbot v. Seeman, 1801, 1 Cranch, 1, 43. In the case of Bentzon v. Boyle, 1815, 9 Cranch, 191, 198, Marshall, C. J., said : " The law of nations is the great source from which we derive those rules respecting belligerent and neutral rights which are recognized by all civilized states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten, we resort to the great principles of reason and justice; but, as these principles will be differently understood by different nations under different circumstances, we consider them as being, in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon the law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this." Bishop says (" Criminal Law," 7th ed. 60) : " Doubtless if the legislature, by words admitting of no interpretation, commands a court to violate the law of nations, the judges have no alternative but to obey. Yet no statutes have ever been framed in form thus conclusive ; and if a case is prima facie within the legislative words, still a court will not take the jurisdiction should the law of nations forbid." Again (p. 69) : " All statutes are to be construed in connection with one another, with the common law, with the constitution, and with the law of nations." On international law as interpreted and enforced in law courts, see the admirable address of Hon. Simeon E. Baldwin before the meeting of the International Law Association at Rouen, 1900, on " The Part taken by Courts of Justice in the Develop- ment of International Law." — Ed. PART I. INTERNATIONAL RELATIONS IN TIME OF PEACE. CHAPTER I. STATES — TERRITORIAL RIGHTS. Section 2. — (a) Definition and Character of Sovereigii States. YRISARRI V. CLEMENT. Common Pleas, 1825. (2 Carrington Sr Payne} Nisi Prius, 223.) [In an action brought by the phaintiff against defendant for a libel published in the -''Morning Chronicle," it appeared that the plaintiff had been appointed minister and diplomatic agent to Great Britain ; that he employed Messrs. Hullett and Widder to raise a loan of £100,- 000 for the service of Chili ; that the " Morning Chronicle " imputed fraud to plaintiff in the application of the money raised by him.] Best, C. J. — It occurs to me at present, that there is this dis- tinction. If a foreign state is recognized by this country, it is not necessary to prove that it is an existing state ; but if it is not so recognized, such proof becomes necessar3\ There are hundreds in India, and elsewhere, that are existing states, though they are not recognized. I take the rule to be this — if a body of persons assemble together to protect themselves, and support their own independence, and ^ Only so much of tlie opinion is given as relates to Chili as a " foreign state." On leave given the court " thought that the opinion of the Chief Justice which he gave at the trial was correct. But tliey decided on another ground, viz. tiie incorrectness of some material innuendoes, wliich was not adverted to at Xisi Prius, and therefore made the rule absolute for a new trial " (2 Car. & P. 229). — Ed. 24 STATES. [part I. make laws, and have courts of justice, that is evidence of their being a state. We have had, certainly, some evidence here to-day that these provinces formerly belonged to Spain ; but it would be a strong thing to say, that because they once belonged, therefore they must always belong. We have recognized lately some of these states. It makes no difference whether they formerly belonged to Spain, if they do not continue to acknowledge it, and are in possession of a force sufficient to support themselves in opposition to it. This is my present opinion ; but I will give my brother Taddy leave to move the court upon the subject. THE REPUBLIC OF HONDURAS, APPELLANT, v. MARCO AURELIO SOTO, RESPONDENT. Court of Appeals, 1889. (112 Xew York, 310.) Rttger, Ch. J. Section 3268 of the Code of Civil Procedure provides that a defendant, in an action brought in a court of record, may require security for costs, in cases, among others, where the plaintiff was, when the action was commenced, either ''a person residing with- out the state; " or " a foreign corporation." The plaintiff claims to be a foreign independent state. It is urged by the plaintiff that it is neither a person nor a foreign corporation, within the meaning of the Code. It is not disputed but that the jolaintiff is an independent government, recognized as such by the United States, and capable of entering into contracts and acquiring property, as well as competent, through the rule of comity, of bringing and maintaining actions in the courts of this country ; but it is claimed that it does not come within the description of legal entities authorized to require security for costs. That it is within the spirit of the enact- ment, we think cannot be disputed, and we are also of the opinion that it is within the letter as well. Vattel defines " nations or states to be bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint effort of their combined strength. Such a society has her affairs and her interests. She deliberates and takes resolutions in common, thus becoming a moral person, who possesses an understanding and a will peculiar to himself, and is susceptible of obligations and rights." (Law of Nations, 1; Wheaton's International Law, chap. 2, §§ 1, 2; Bouvier's Institutes, title, "Nation.") CHAP. T.] TEXAS V. WHITE. 25 That such a being constitutes a legal entity, capable of acquiring and enjoying property and protecting itself from injuries thereto in the courts of foreign countries, has long been recognized and estab- lished in the tribunals of civilized nations. {Rejyublic of Mexico v. De Arrangoiz, 5 Diier, 63(3; Hidlet v. King of Sjxiin, 1 Dow. & C. 169; CJierokee Nationj v. Georgia, 5_^ 6tejSj_^.) There can be no doubt but that unaerntle 2, chapter 10, part 3, of the Revised Statutes, providing for security for costs in an action brought by any plaintiff, not residing within the jurisdiction of the court, that foreign states and nations were required to give such securit}^ and we do not think that the provisions of the Code were intended to change the law in that respect. Section 3268 of the Code is stated to be a re-enactment of the previous statute, and it cannot, we think, have been intended thereby to take away the right which resident defendants had to require security for costs. Xo reason is seen for such a change, and we do not think any was intended to be made. The word '■ person " was, we think, used in its enlarged sense, as comprising all legal entities except foreign corporations, which were authorized to bring actions in this state. In that sense it embraces moral persons having legal rights, capable of entering into contracts and incurring obli- gations, as well as natural persons. The statute must be construed with reference to the objects it had in view, the evils intended to be remedied and the benefits expected to be derived from it ; and, as thus construed, we can see no reason why the plaintiff is not included within the description of persons intended to be subjected to its obligations.-^ TEXAS V. WHITE, 1868. (7 Wall. 700, 720-721, 725-726.) Chase, C. J. Some not unimportant aid, however, in ascertaining the true sense of the Constitution may be derived from considering what is the correct idea of a State, apart from any union or confed- eration with other States. The poverty of language often compels the employment of terms in quite different significations ; and of this hardh' any example more signal is to be found than in the use of the word we are now considering. It would serve no useful purpose to attempt an enumeration of all the various senses in which it is used. A few onlv need be noticed. 1 Facts and part of opinion omitted. — Ed. 26 STATES. [part I. It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region inhabited by such a community ; not unfrequently it is applied to the government under which the people live ; at other times it represents the combined idea of people, territory, and government. It is not difficult to see that in all these senses the primary con- ception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state. This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. It was stated very clearly by an eminent judge, ^ in one of the earliest cases adjudicated by this court, and we are not aware of anything, in any subsequent decision, of a different tenor. In the Constitution the term state most frequently expresses the combined idea just noticed, of people, territory, and government. A state, in the ordinary sense of the Constitution, is a political commun- ity of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such states, under a common constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country. The use of the word in this sense hardly requires further remark. In the clauses which impose prohibitions upon the States in respect to the making of treaties, emitting of bills of credit, and laying duties of tonnage, and which guarantee to the States representation in the House of Representatives and in the Senate, are found some instances of this use in the Constitution. Others will occur to every mind. But it is also used in its geographical sense, as in the clauses which require that a representative in Congress shall be an inhabitant of the State in which he shall be chosen, and that the trial of crimes shall be held within the State where committed. And there are instances in which the principal sense of the word seems to be that primary one to which we have adverted, of a peo- ple or political community, as distinguished from a government. In this latter sense the word seems to be used in the clause which 1 Mr. Justice Iredell in Penhallow v. Doane's Admrs., 3 Dallas, 93. CHAP. I.] TEXAS V. WHITE. 27 provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion. In this clause a plain distinction is made between a State and the government of a State. Havinar thus ascertained the senses in which the word state is employed in the Constitution, we will proceed to consider the proper application of what has been said. * * * But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respec- tively, or to the people. And we have already had occasion to remark at this term, that " the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that " without the States i\i union, there could be no such political body as the United States." ^ Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact ; it was the incorpora- tion of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as per- petual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States.^ 1 County of Lane v. The State of Oregon, 1868, 7 Wall. 71, 76. — Ed. - Equality is the necessary consequence of independence and sovereignty, in speak- ing of wliicli, Chief Justice Marshall says: "In this commerce [slave trade] thus sanctioned by universal assent, every nation had an equal right to engage. How is 28 STATES. [part I. KEITH V. CLAKK. Supreme Court of the United States, 1878. (97 JJmted States, 454.) [The State of Tennessee organized the Bank of Tennessee in 1838, and agreed by a clause in the Charter to receive all its issues of cir- culating notes in payment of taxes. A constitutional amendment adopted in 1865 declared the issues of the bank during the insurrec- tionary period void and forbade their receipt for taxes. The plaintiff tendered forty dollars in bankbills issued during the insurrectionary period but defendants refused to receive them in payment of taxes. The plaintiff thereupon paid under protest forty dollars in lawful money, to recover which sum he brought suit. From judgment of the Supreme Court of Tennessee in favor of the defendant, the suit was brought by Avrit of error before the Supreme Court of the United States.] Mr, Justice Miller delivered the opinion of the court.^ * * # In entering upon this inquiry we start with the proposition, that unless there is something in the relation of the State of Tennessee and the bank, after the date mentioned, to the government of the United States, or something in the circumstances under which the notes now sued on w^ere issued, that will repel the presumption of a contract under the twelfth section, or will take the contract out of the opera- tion of the protecting clause of the Federal Constitution; this court has established already that there was a valid contract to receive them for taxes, and that the law which forbade this to be done is uncon- stitutional and void. Those who assert the exception of these notes from the general liis right to be lost? Eacli may renounce it for its own people ; but can this renuncia- tion affect others 1 " No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on anotiier. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by consent ; and this trade, in which all have participated, must remain lawful to those who cannot be induceJ to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations ; and this traflic remains lawful to those whose governments have not forbidden it" {The Ante/ope, 1825, 10 Wlicat. 06, 122).— Ed. 1 Part of the opinion relating to the question of jurisdiction is omitted. — Ed. CHAP. I.] KEITH V. CLARK. 29 proposition are not very well agreed as to the reasons on which it shall rest, and we must confess that, as they are presented to us, they are somewhat vague and shadowy. They may all, however, as far as we understand them, be classed under three principal heads. 1. The first is to us an entirely new proposition, urged with much earnestness by the counsel who argued the case orally for the defendant. It is, in substance, that what was called the State of Tennessee prior to the 6th of May, 1861, became, by the ordinance of secession passed on that day, subdivided into two distinct political entities, each of which was a State of Tennessee. One of them was loyal to the Federal government, the other was engaged in rebellion against it. One State was composed of the minority who did not favor secession, the other of the majority who did. That these two States of Ten- nessee engaged in a public war against each other, to which all the legal relations, rights, and obligations of a public war attached. That the government of the United States was the ally of the loyal State of Tennessee, and the confederated rebel States were the allies of the disloyal State of Tennessee. That the loyal State of Tennessee, with the aid of her ally, conquered and subjugated the disloyal State of Tennessee, and by right of conquest imposed upon the latter such measujL-e of punishment and such system of law as it chose, and that by the law of conquest it had the right to do this. That one of the laws so imposed by the conquering State of Tennessee on the con- quered State of Tennessee was this one, declaring that the issues of the bank during the temporary control of affairs by the rebellious State was to be held void ; and that, as conqueror and by right of con- quest, the loyal State had power to enact this as a valid law. It is a sufficient answer to this fanciful theory that the division of the State into two States never had any actual existence ; that, as we shall show hereafter, there has never been but one political society in existence as an organized State of Tennessee, from the day of its admission to the Union in 1796 to the present time. That it is a mere chimera to assert that one State of Tennessee conquered by force of arras another State of Tennessee, and imposed laws upon it ; and, finally, that the logical legerdemain by which the State goes into rebel- lion, and makes, while thus situated, contracts for the support of the government in its ordinary and usual functions, which are necessary to the existence of social life, and then, by reason of being conquered, repudiates these contracts, is as hard to understand as similar physical performances on the stage. 2. Tlie second proposition is a modification of this, and deserves more serious attention. It is, as we understand it, that each of the eleven States who passed ordinances of secession and joined the so- 30 STATES. [part I. called Confederate States so far succeeded iu their attempt to separate themselves from the Federal government, that during the period in which the rebellion maintained its organization those States were in fact no longer a part of the Union, or, if so, the individual States, by reason of their rebellious attitude, were mere usurping powers, all of whose acts of legislation or administration are void, except as they are ratified by positive laws enacted since the restoration, or are recognized as valid on the principles of comity or sufferance. We cannot agree to this doctrine. It is opposed by the inherent powers which attach to every organized political society possessed of the right of self-government ; it is opposed to the recognized principles of public international law ; and it is opposed to the well-considered decisions of this court. " Nations or States," says Vattel, " are bodies politic, societies of men united together for the promotion of their mutual safety and advantage by the joint efforts of their combined strength. Such a society has her affairs and her interests. She deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights." Law of Nations, sect. 1. Cicero and subsequent public jurists define a State to be a body political or society of men united together for the purpose of pro- moting their mutual safety and advantage by their combined strength.' Wheaton, International Law, sect. 17. Such a body or society, when once organized as a State by an established government, must remain so until it is destroyed. This may be done by disintegration of its parts, by its absorption into and identification with some other State or nation, or by the absolute and total dissolution of the ties which bind the society together. We know of no other way in which it can cease to be a State. No change of its internal polity, no modification of its organization or system of government, nor any change in its external relations short of entire absorption in another State, can deprive it of existence or destroy its identity. Id., sect. 22. Let us illustrate this by two remarkable periods in the history of England and France. After the revolution in England, which dethroned and decapitated Charles I., and installed Cromwell as supreme, whom his successors called a usurper; after the name of the government was changed from the Kingdom of England to the Commonwealth of England ; and when, after all this, the son of the beheaded monarch came to his own, treaties made in the interregnum were held valid, — the judgments of the courts were respected, and the obligations assumed by the government were never disputed. CHAP. I.] KEITH V. CLARK. 31 So of France. Her bloody revolution which came near dissolving the bonds of society itself, her revolutionary directory, her consul, her Emperor Kapoleon, and all their official acts, have been recognized by the nation, by the other nations of Europe, and by the legitimate monarchy when restored, as the acts of France, and binding on her people. The political society which in 1796 became a State of the Union, by the name of the State of Tennessee, is the same which is now repre- sented as one of those States in the Congress of the United States. Not only is it the same body politic now, but it has always been the same. There has been perpetual succession and perpetual identity. There has from that time always been a State of Tennessee, and the same State of Tennessee. Its executive, its legislative, its judicial departments have continued without interruption and in regular order. It has changed, modified, and reconstructed its organic law, or State Constitution, more than once. It has done this before the rebellion, during the rebellion, and since the rebellion. And it was always done by the collective authority and in the name of the same body of people constituting the political society known as the State of Tennessee. This political body has not only been all this time a State, and the same State, but it has always been one of the United States, — a State of the Union. Under the Constitution of the United States, by virtue of which Tennessee was born into the family of States, she had no law- ful power to depart from that Union. The effort which she made to do so, if it had been successful, would have been so in spite of the Constitution, by reason of that force which in many other instances establishes for itself a status, which must be recognized as a fact, without reference to any question of right, and which in this case would have been, to the extent of its success, a destruction of that Constitu- tion. Failing to do this, the State remained a State of the Union. She never escaped the obligations of that Constitution, though for a while she may have evaded their enforcement. In Texas v. White (7 Wall. 700), the first and important question was, whether Texas was then one of the United States, and as such, capable of sustaining an original suit in this court by reason of her being such State. And this was at a time when Congress had not permitted her, after the rebellion, to have representatives in either house of that body. Mr. Chief Justice Chase, in delivering the judgment of the court on this question, says : " The ordinance of secession, adopted by the con- vention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The 32 STATES. [part I. obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens, of the Union. If this were otherwise, the State must have become foreign, and her citizens for- eigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjuga- tion. Our conclusion, therefore, is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred." In White V. Hart (13 id. 646), Mr. Justice Swayne, after a full con- sideration of the subject, states the result in this forcible language : "At no time were the rebellious States out of the pale of the Union. * * * Their constitutional duties and obligations were unaffected, and remained the same." And he shows by reference to the formula used' in the several reconstruction acts, as compared with those for the original admission of new States into the Union, that in regard to the States in rebellion there was a simple recognition of their restored right to representation in Congress, and no readmission into the Union. These cases, and especially that of Texas v. White, have been re- peatedly cited in this court with approval, and the doctrine they assert must be considered as established in this forum at least. If the State of Tennessee has through all these transactions been the same State, and has been also a State of the Union, and subject to the obligations of the Constitution of the Union, it would seem to follow that the contract which she made in 1838 to take for her taxes all the issues of the bank of her own creation, and of which she was sole stockholder and owner, was a contract which bound her during the rebellion and which the Constitution protected then and now, as well as before. Mr. Wheaton says: "As to public debts, — whether due to or from the State, — a mere change in the form of the govern- ment, or in the person of the ruler, does not affect their obligation. The essential power of the State, that which constitutes it an inde- pendent community, remains the same : its accidental form only is changed. The debts being contracted in the name of the State, by its authorized agents, for its public use, the nation continues liable for them, notwithstanding the change in its internal constitution. The new government succeeds to the fiscal rights, and is bound to fulfil the fiscal obligations, of the former government." International Law, sect. 30. And the citations which he gives from Grotius and Puffendorf sustain him fully. We are gratified to know that the Supreme Court of the State of Tennessee has twice afiirmed the principles just laid down in reference CHAP. 1.] KEITH V. CLARK, 33 to the class of bank-notes now in question. In a suit brought by the State of Tennessee against this very bank of Tennessee, to wind up its affairs and distribute its assets, that court, in April, 1875, decreed, among other things, "that the acts by which it was attempted to declare the State independent, and to dissolve her connection with the Union, had no effect in changing the character of the bank, but that it had the same powers, after as before those acts, to carry on a legiti- mate business, and that the receiving of deposits was a part of such legitimate business." " That the notes of the bank issued since May 6, 1861, held by Atchison and Duncan, and set out in their answer, are legal and subsisting debts of the bank, entitled to payment at their face value, and to the same priority of payment out of the assets of the bank as the notes issued before May 6, 1861." At a further hearing of the same case, in January, 1877, that court reaffirmed the same doctrine, and also held that the notes were not subject to the Statute of Limitations, and were not bound by it. State of Tennessee v. The Bank of Tennessee, not reported. This decision was in direct conflict with schedule 6 of the constitutional amendment of 1865, which declared all issues of the bank after I\ray 6, 1861, void, and it necessarily held that the schedule was itself void as a violation of the Federal Constitution. 3. Tlie third proposition on which the judgment of the courts of Tennessee is supported is, that the notes on which the action is brought were issued in aid of the rebellion, to support the insurrection against the lawful authoritv of the United States, and are therefore void for all purposes. The principle stated in this proposition, if the facts of the case come within it, is one which has repeatedly been discussed by this court. The decisions establish the doctrine that no promise or contract, the consideration of which was something done or to be done by the promisee, the purpose of which was to aid the war of the rebellion or give aid and comfort to the enemies of the United States in the prosecution of that war, is a valid promise or contract, by reason of the turpitude of its consideration. In Texas v. White {supra), the suit was for the recovery of certain bonds of the United States which, previously to the war, had been issued and delivered to the State of Texas. During the rebellion the legislature of that State had placed these bonds in the hands of a military commission, and they were delivered by that committee to White and Childs, to pay for supplies to aid the military operations against the government. This court held that while the State was still a State of the Union, and her acts of ordinary legislation were valid, it was otherwise in regard to this transaction. As this is the 3 34 STATES. [part I. earliest assertion of the doctrine in this court, and this branch of the opinion received the assent of all the members of the court but one, and has been repeatedly cited since with approval, we reproduce a single sentence from it : '• It may be said," says the court, " perhaps with sufficient accuracy, that acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of property, personal and real, and providing remedies for injuries to person and estate, and other similar acts which would be valid if emanating from a lawful govern- ment, must be regarded in general as valid when proceeding from an actual though unlawful government ; and that acts in furtherance or support of rebellion against the United States, or intended to defeat the just rights of citizens, and other acts of like nature, must, in general, be regarded as invalid." In Hanauer v. Doane (12 Wall. 342), it was held that duebills, given in purchase of supplies by a purchasing agent of the Confederate States, were void, though in the hands of a third party ; and in sup- port of the judgment Mr. Justice Bradley said : " We have already decided, in the case of Texas v. White, that a contract made in aid of the late rebellion, or in furtherance and support thereof, is void, Tiie same doctrine is laid down in most of the circuits, and in many of the State courts, and must be regarded as the settled law of the land." The latest expression of the court on the subject was by Mr. Justice Field, without dissent, in Williams v. Bruffij (96 U. S. 176), in which the whole doctrine is thus tersely stated : " While thus holding that there was no validity in any legislation of the Confederate States which this court can recognize, it is proper to observe, that the legis- lation of these States stands on very different grounds. The same general form of government, the same general laws for the adminis- tration of justice and the protection of private rights, which had existed in the State prior to the rebellion, remained during its con- tinuance and afterwards. As far as the acts of the States did not impair, or tend to impair, the supremacy of the national authority, or the just rights of the citizens under the Constitution, they are, in general, to be treated as valid and binding." See Horn v. Lockhart et at, 17 Wall. 570 ; SproU v. TJniUd States, 20 id. 459. Tliere is, however, in the case before us nothing to warrant the con- clusion that these notes were issued for the purpose of aiding the rebellion, or in violation of the laws or the Constitution of the United States. There is no plea of that kind in the record. No such ques- tion was submitted to the jury which tried the case. The sole matter stated in defence, either by facts found in the bill of exceptions, or in CHAP. I.] KEITH V. CLARK, 35 the decree of the court, is that the bills were issued after May G, ISGl while the State was in insurrection, and therefore come within the amended Constitution of 18G5, declaring them void. The provision of the State Constitution does not go upon the ground that the State bonds and bank-notes, which it declared to be invalid, were issued in aid of the rebellion, but that they were issued by a usurping govern- ment, — a reason which we have already demonstrated to be unsound. Not only is there nothing in the Constitution or laws of Tennessee to prove that these notes were issued in support of the rebellion, but there is nothing known to us in public history which leads to this conclusion. The opinion of the Supreme Court, which we have already cited, states that the bank was engaged in a legitimate business at this time, receiving deposits, and otherwise performing the functions of a bank; and though, as is abundantly evident, willing enough to repudiate these notes as receivable for taxes, that court held them to be valid issues of the bank, in the teeth of the ordinance declaring them void. It is said, however, that considering the revolutionary character of the State government at that time, we must presume that these notes were issued to support the rebellion. But while we have the Supreme Court of Tennessee holding that the bank during this time was engaged in a legitimate banking business, we have no evidence whatever that these notes were issued under any new law of the rebel State government, or by any interference of its officers, or that they were in any manner used to support the State government. If this were so, it would still remain that the State gov- ernment was necessary to the good order of society, and that in its proper functions it was right that it should be supported. We cannot infer, then, that these notes were issued in violation of an}^ Federal authority. On the other hand, if the fact be so, nothing can be easier than to plead it and prove it. Whenever such a plea is presented, we can, if it comes to us, pass intelligently on its validity. If issue is taken, the facts can be embodied in a bill of exceptions or some other form, and we can say whether those facts render the contract void. To undertake to assume the facts which are necessary to their invalidity on this record is to give to conjecture the place of proof, and to rest a judgment of the utmost importance on the existence of facts not found in the record, nor proved by any evidence of which this court can take judicial notice. We shall, when the matter is presented properly to us, be free to determine, on all the considerations applicable to the case, whether the notes that may be then in controversy are protected by the provision of the Constitution or not. And that is 36 STATES. [part I. tlie only question of which, in a case like the present, we would have jurisdiction. The judgment of the Supreme Court of Tennessee will, therefore, be reversed, and the case remanded to that court for further proceed- ings in accordance with this opinion ; and it is So ordered.^ AVatt?:, C. J., and Bkadley and Haklan, JJ., dissented. 1 Re-affirmed in Clarlc v. Keith, 1882, 1C6 U. S. 464. Some fiirtlier judicial definitions of States or nations follow: "A distinction was taken at the bar between a State and the people of the State. It is a distinction I am not capable of comprehending. By a State forming a republic (speaking of it as a moral person) I do not mean the Legislature of the State, the Executive of tlie State, or the Judiciary, but all the citizens wiiicli compose that State, and are, if I may so express myself, integral ptirts of it ; all together forming a body politic. The great distinction between monarchies and republics (at least our republics) in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in some countries with many important special limitations : This, I say, is generally the case, for it has not been so universally. But in a republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another but in A'irtue of a power constitutionally given by the whole community, and such authority, when exercised, is in effect an act of the whole community, which forms such body politic. In such governments, therefore, the sovereignty resides in the great body of the people, but it resides in them not as so many distinct individuals, but in their politic capacity only," per Iredell, J., in PenliuUow et a!, v. Doane's Administrators, 1795, 3 Dall. 54, 1)3. " The terms state and nation are used in the law of nations, as well as in common parlance, as importing the same thing, and imply a body of men, united together, to procure their mutual safety and advantage by means of their union. Such a society has its affairs and interests to manage ; it deliberates, and takes resolutions in com- mon, and thus becomes a moral person, having an understanding and a will peculiar to itself, and is susceptible of obligations and laws. Vattel, 1. Nations being com- posed of men naturally free and independent, and who, before the establishment of civil societies, live together in the state of nature, nations or sovereign states, are to be considered as so many free persons, living together in a state of nature. Vattel, 2, § 4. Every nation that governs itself, under what form soever, without any depend- ence on a foreign power, is a sovereign state. Its rights are naturally the same as those of any other state. Such are moral persons who live together in a natural so- ciety, under the law of nations. It is sufficient if it be really sovereign and inde- pendent : tiiat is, it must govern itself by its own autliority and laws. We ought, therefore, to reckon in the number of sovereigns those states that have bound them- selves to another more powerful, altiiough by an unequal alliance. The conditions of these unequal alliances may be infinitely varied; but whatever they are, provided the inferior ally reserves to itself tlie sovereignty or the right to govern its own body, it ought to be considered an independent state. Consequently, a weak state, that, in order to provide for its safety, places itself under the protection of a more powerful one, without stripping itself of tlie right of government and sovereignty, does not cease on this account to be placed among the sovereigns who acknowledge no other power. Tributary and feudatory states do not thereby cease to be sovereign and in- dependent states, 80 long as self-government, and sovereign and independent authority CHAP, I.] THOMPSON V. POWLES. 37 (b) Reeogyiition of the Existence of a State. THOMPSON V. POWLES. Chanceey, 1828. (2 Simons, 19i.) The contract in this case was for the purchase of Guatemala bonds, which were in the hands of the London agents of that government. The plaintiff was led into the venture by the fraud and misrepre- sentations of the agents and their partners in guilt, and now files a bill in Chancery for the recovery of his money, the Guatemalan gov- ernment having repudiated its agents and all their engagements because of these frauds. The following is an extract from the judgment of Vice-Chancellor Shadwell: — ''But there is this further consideration; that this is represented to have been a contract, by the plaintiff, to purchase the obligations of persons who were stated to be the government of the federal repub- lic of Central America. " I confess that, after all I have heard fall from the mouth of Lord Eldon, on the subject of persons representing themselves to be gov- ernments of foreign countries, which this country had not acknowl- edged to be governments, and which the courts cannot acknowledge them to be, till the government of the country has recognized them is left in the administration of the state. Vattel, c. 1, pp. 16, 17." (Thompson, J., in 2 he Cherokee. Nation v. The State of Georgia, 1831, 5 Pet. 1, 52, 53.) " The argument rests entirely upon an assumption, wliich, it appears to us, is cer- tainly groundless ; the assumption that personality cannot be truly predicated of a republic. A republic, acknowledged as such by our own Government, is an indepen- dent sovereign power ; in other words, a state, just as certainly, and in the same sense as a monarchy, limited or absolute; and every state is a person, an artificial person in a more extensive and far higher sense than an ordinary corporation. A state, whatever may be the form of its internal government, and by whatever appellation it may be known, is, in the language of Vattel, ' a moral person, having an understand- ing and a will, capable of possessing and acquiring rights, and of contracting and ful- filling obligations.' (Vattel Droit des Gens, liv. 1, c. 1, § 4; vide, also, Wheaton's Elem. of Interna. Law, vol. 1, c. 2, §§ 1 & 2.) '■ The definition given by other writers on the law of nations is substantially the same, and, indeed, it is upon the trutli of this definition that the whole science of in- ternational law is founded — since it is evident, that it is only upon persons, having an understanding and a will, that law can operate. Every valid law imjilies the duty of obedience, and it is only by persons that obedience can be ren/nde, 11 Wall. 632, 638. It is equally well settled in England. The Pelican, Edw. Adm. appx. D; ^ Taylor v. Barclay, 2 Sim. 213 ; Emperor of Austria v. Day, 3 DeG., P. & J. 217, 221, 233 ; Eejmhlic of Peru v. Peruvian Guano Co., 36 Ch. D. 489, 497 ; Rcpuhlic of Peru v. Dreyfus, 38 Ch. D. 348, 356, 359. In Williams v. Suffolk Ins. Co., in an action on a policy of insur- ance, the following question arose in the Circuit Court, and was brought up by a certificate of division of opinion between the judges thereof : " Whether, inasmuch as the American government has insisted and does still insist, through its regular executive authority, that the Falk- lands Islands do not constitute any part of the dominions within the sovereignty of the government of Buenos Ayres, and that the seal fishery at those islands is a trade free and lawful to the citizens of the United States, and beyond the competency of tlie P)uenos Ayrean government to regulate, prohibit or punish ; it is competent for the 1 In the Pelican, 1809, cited in the text, Sir William Grant said : "It always belongs to the government of the country to determine in what relation any other conntry stands towards itj that is a point upon which courts of justi'/e cannot decide." — Ep. CHAP. I.] JONES V. UNITED STATES. 41 Circuit Court in this cause to inquire into and ascertain by other evidence the title of said government of Buenos Ayres to the sover- eignty of the said Falkland Islands, and, if such evidence satisfies the court, to decide against the doctrines and claims set up and supported by the American government on this subject; or whether the action of the American government on this subject is binding and conclusive on this court as to whom the sovereignty of those islands belongs." 13 Pet. 417. This court held that tlie action of the executive department on the question to whom the sovereignty of those islands belonged, was bind- ing and conclusive upon the courts of the United States, saj-ing : " Can there be any doubt that when the executive branch of the government, which is charged with our foreign relations, shall in its correspondence with a foreign nation assume a fact in regard to the sovereignty of any island or countr\', it is conclusive on the judicial department ? And in this view it is not material to inquire, nor is it the province of the court to determine, whether the executive be right or wrong. It is enough to know, that in the exercise of his constitutional functions he has decided the question. Having done this under the responsibilities which belong to him, it is obligatory on the people and government of the Union." "In the present case, as the executive in his message, and in his correspondence with the government of Buenos Ayres, has denied the jurisdiction which it has assumed to exercise over the Falkland Islands the fact must be taken and acted on by this court as thus asserted and maintained." 13 Pet. 420. All courts of justice are bound to take judicial notice of the terri- torial extent of the jurisdiction exercised by the government whose laws they administer, or of its recognition or denial of the sovereignty of a foreign power, as appearing from the public acts of the legislature and executive, although those acts are not formally put in evidence, nor in accord with the pleadings. United States v. Reynes, 9 How. 127 ; Keanett v. Chambers, 14 How. 38 ; Hoijt v. Kussell, 117 U. S. 401, 404; Coffee v. Grover, 123 U. S. 1 ; State y. Dunwell, 3 E. I. 127; State V. Wagner, 61 Maine, 178 ; Taylor v. Barclay, and Emperor of Austria v. Day, above cited ; 1 Greenl. Ev. § 6. • In United States v. Reynes, upon the question whether a Spanish grant of land in Louisiana was protected, either by the treaty of retrocession from Spain to France, or by the treaty of Paris, by which the Territory of Louisiana was ceded to the United States, this court held : "The treaties above mentioned, the public acts and proclamations of the Spanish and French governments, and those of their publicly recognized agents, in carrying into effect those treaties, thougli not made exhibits in this cause, are historical and notorious facts, of which 42 STATES. [part I. the court can take regular judicial notice, and reference to which is implied in the investigation before us." 9 How. 147, 148. "Sill Kennett v. Chambers, a bill to compel specific performance of a contract made in the United States in September, 1836, by which a general in the Texan Array agreed to convey lands in Texas, in con- sideration of money paid him to aid in raising and equipping troops against Mexico, was dismissed oa demurrer, because the independence of Texas, though previously declared by that State, had not then been acknowledged by the government of the United States; and the court established this conclusion by referring to messages of the President of the Uuited States to the Senate, a letter from the President to the Governor of Tennessee, and a note from the Secretary of State to the Mexican Minister, none of which were stated in the record before the court. 14 How, 47, 48. So in Coffee v. Grover, upon writ of error to the Supreme Court of Florida, in a case involving a title to land, claimed under conflicting grants from the State of Florida and the State of Georgia, and depend- ing upon a disputed boundary between those States, this court ascertained the true boundary by consulting public documents, some of which had not been given in evidence at the trial, nor referred to in the opinion of the court below. 123 U. S. 11 et seq. In Taylor v. Barclay, a bill in equity, based on an agreement which it alleged had been made in 1825 by agents of "the government of the Federal Republic of Central America, which was a sovereign and inde- pendent state, recognized and treated as such by His Majesty the King of these Realms," was dismissed on demurrer by Vice-Chancellor Shadwell, who said : " I have had communication with the Foreign Office, and I am authorized to state that the Federal Republic of Central America has not been recognized as an independent government by the government of this country." Inasmuch as I conceive it is the duty of the judge in every court to take notice of public matters which affect the government of this country, I conceive that, notwithstanding there is this averment in the bill I am bound to take the fact as it really exists, not as it is averred to be." "Nothing is taken to be true, except that which is properly pleaded; and I am of opinion that, when you plead that which is historically false, and which the judges are bound to take notice of as being false, it cannot be said you have properly pleaded, merely because it is averred, in plain terms; and that I must take it just as if there was no such averment on the record." 2 Sim. 220, 221, 223. That case is in harmony with decisions made in the time of Lord Coke, and in which he took part, that against an allegation of a public act of Parliament, of which the judges ought to take notice, the other CHAP. I.] JONES V. UNITED STATES. 43 party cannot plead nul tiel record, but, if the act be misrecited, ought to demur in law upon it. The Princess Case, 8 Rep. 14a, 28a ; Woolsei/'s Case, Godb. 178. In the ascert.unment of any facts of which they are bound to take judicial notice, as in the decision of matters of law which it is their office to know, the judges may refresh their memory and inform their conscience from such sources as they deem most trustworthy. Gresley Eq. Ev. pt. 3, c. 1; Fremont v. United States, 17 How. 542, 557; Brown v. P'qjer, 91 U. S. 37, 42 ; State v. Wagner, 61 Maine, 178. Upon the question of the existence of a public statute, or of the date Avhen it took effect, they may consult the original roll or other official records. Spring v. Ere, 2 Mod. 240 ; 1 Hale's Hist. Com. Law (5th ed.) 19-21 ; Gardner v. Collector, 6 Wall. 419; South Ottawa v. Ferkins, 94: U. S. 260, 267-269, 277 ; Fost v. Supervisors, 105 U. S. 667. As to international affairs, such as the recognition of a foreign government, or of the diplomatic character of a person claiming to be its representa- tive, they may require of the Foreign Office or the Department of State. Taylor v. Barclay, above quoted ; The Charkieh, L. R. 4 Ad. & Ec. 59, 74, 86 : Ex parte Hitz, 111 U. S. 766 : In re Baiz, 135 U. S. 403. In the ease at bar, the indictment alleges that the Island of Navassa, on which the murder is charged to have been committed, was at the time under the sole and exclusive jurisdiction of the United States, and out of the jurisdiction of any particular State or district of the United States, and recognized and considered by the United States as contain- ing a deposit of guano within the meaning and terms of the laws of the United States relating to such islands, and recognized and con- sidered by the United States as appertaining to the United States and in the possession of the United States under those laws. These allegations, indeed, if inconsistent with facts of which the court is bound to take judicial notice, could not be treated as con- clusively supporting the verdict and judgment. But, on full con- sideration of the matter, we are of opinion that those facts are quite in accord with the allegations of the indictment. The power, conferred on the President of the United States by section 1 of the act of Congress of 1856, to determine that a guano island shall be considered as appertaining to the United States, being a strictly executive power, affecting foreign relations, and the manner in which his determination shall be made known not having been prescribed by statute, there can be no doubt that it may be declared through the Department of State, whose acts in this regard are in legal contemplation the acts of the President. Wolsey v. Chapman, 101 U. S. 755, 770; Runkle v. United States, 122 U. S. 543, 557; 11 Opinions of Attorneys-General, 397, 399. 44 STATES, [part I. For the reasons above stated, our conclusion is that the Guano Islands Act of Aug. 18, 1856, c. 161, reenacted in Title 72 of the Revised Statutes, is constitutional and valid ; that the Island of Navassa must be considered as appertaining to the United States ; that the Circuit Court of the United States for the District of Maryland had jurisdiction to try this indictment ; and that there is no error in the proceedings. Judgment affirmed.^ 1 In the case of Luther v. Borden, 1849, 7 How. 1, it was lield that the Constitution had vested the power of recognizing a State government in Congress ; tliat it was therefore a political and a not judicial question; that tiie President was vested with this power by act of Congress and that his exercise of it in this case was vvitiiin the grant of this power. See Texas v. White, 1868, 7 Wall. 700, and Taylor and Marshall V. Beckham, 1899, 178 U. S. 548. For an account of Dorr's Rebellion, with wliich the leading case of Luther v. Borden deals, see A. M. Mowry's Dorr War, 1901. On the relation of the United States to the States of the Union, see, generally, McCulluch v. Maryland, If-lO, 4 Wheat. 316; Texas v. White, siipi-a; Lane Count;/ v. Oregon, 1868, 7 Wall. 71 ; VarheWs Case, 1871, 13 Wall. 397, and Ex parte Siehold, 1879, 100 U. S. 371. From the principal case, and citations both in the text and notes it appears con- clusively that recognition of statehood, foreign and American, in all its various degrees, is a political, not a judicial, question, and tiiat the court derives its knowledge of such matters from the political department. As tiie greater includes the lesser, recognition of belligerency and insurrection is likewise political and non-judicial. (See Tlie Three Friends, 1896, 166 U. S. 1, infra.) While, therefore, the question is beyond controversy, the following remarkably clear enunciation of the doctrine may be quoted : — "Tliese are the two views of secession on which the public men of the country divide, and between which some of them oscillate. Which shall the judicial mind adopt ? I answer, that view, if it can be ascertained, which the political departments of the Federal Government have adopted. Not that the judiciary is ever, upon principle, to surrender its independence of judgment to the executive and legislative depart- ment.s, but, since the foreign relations of the Federal Government are wholly en- trusted to tiie President and Congress, the judiciary must accept them, just as they have been recognized and established by the President and Congress. It is only from the acts and declarations of these departments that ice can know, judicially, ivhat governments exist, and what rights we concede to them. This rule of decision was recognized by Ch. J. Marshall, in United Stales v. Palmer, 3 Wheat. 634, and in Foster v. Neilson, 2 Peters, 307, and was very distinctly reasserted by Mr. Justice Grier, in tlie Prize Cases, 2 Black, 670." Fijeld v. Ins. Co., 1864, 47 Penn. State, 166, 172, per Woodward, C. J. It is a fundamental principle of constitutional law that a grant of power carries with it the right of discretion in its exercise (MrCulloch v. Maryland, 1819, 4 Wheat. 316) ; it therefore follows that the wisdom or expediency of the foreign policy of our government is not subject to examination in a court of justice. The following passage shows that the policy of our government in the matter of recognition has been judi- cious if non-judicial : "Tiiere is a stage in such (revolutionary) contests when the party struggling for independence has, as I conceive, a right to demand its acknowledgment by neutral CHAP. I.] THE HELENA, 45 (c) Kinds of States. THE HELENA. High Couut of Admiralty, 1801. (4 C. Robinson, 3.) This was a case of a British ship which had been taken on a voyage from Saffee to Lisbon by an Algerine corsair, and sold by the Dey of Algiers to a merchant of Minorca, and by him sold, on the surrender of the island of Minorca to the British arms, to the present holder, a merchant of London. On coming into the port of London, a warrant parties, and when the acknowledgment may be granted without departure from tlie obligations of neiitraiit}'. It is the stage when the independence is estabhshed as matter of fact, so as to leave tlie chance of tiie opposite party to recover tlicir dominion utterly desperate. The neutral nation must, of course, judge for itself when this period has arrived ; and as the belHgerent nation has the same riglit to judge for itself, it is very likely to judge differently from the neutral and to make it a cause or pretext for war, as Great Britain did expressly against France in our Revolution, and substantially against Holland. "If war thus results, in point of fact, from the measure of recognizing a contested independence, the moral right or wrong of the war depends upon the justice and sin- cerity and prudence with which the recognizing nation took the step. I am satisfied that the cause of the South Americans, so far as it consists in the assertion of inde- pendence against Spain, is just. But the justice of a cause, however it may enlist individual feelings in its favor, is not sufficient to justify third parties in siding with it. The fact and the right combined can alone autliorize a neutral to acknowledge a new and disputed sovereignty." J. Q. Adams to President Monroe, Aug. 24, 1818. (1 Wharton's Digest, 121.) In M'llvuine v. Core's Lessee, 1808, 4 Cranch, 209, 212, the Supreme Court of the United States say : " That the several States which composed this Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to ail tlie rights and powers of sovereign states, and tliat they did not derive them from concessions made by the British king. The treaty of peace contains a recognition of their independence, not a grant of it. From hence it results, that the laws of the several State governments were the laws of sovereign states, and as such were obligatory upon the people of such State from the time they were enacted." See also, Iiu/liss v. Trustees, &c., 1830, 3 Pet. 99. New states may be recognized conditionally. By the 4od article of the treat}' of Berlin, 1878, it is stipulated that the independence of Roumania shall he recognized bj'^ the high contracting parties "on the conditions laid down in the two following arti- cles." Tiiese conditions are, first, that no person shall be deprived of civil or political rights by reason of his creed ; and, second, that Roumania shall restore to Russia cer- tain territory detached from Russia by the treaty of Paris, 18oG. Servia was recognized upon a similar condition as to religious freedom. (Articles 34 and 35.)— Ed. 46 STATES. [part I. had been applied for to arrest this ship on the part of the former British proprietor; but the court refused a -warrant, and directed a monition to issue, calling on the possessor to show cause, why she should not be restored to the former British owner. Sir W. Scott. — This is a question arising on a ship, which has been purchased by a British merchant of a Spaniard: A claim is now given on the part of the original British proprietor, on a suggestion that the vessel, while sailing his property, was captured and carried into the Barbary States, and there sold to the Spanish merchant, from whom the present holder purchased. It is certainly true, as it has been argued on the part of the present possessor, that the court is disposed to pay particular respect to derivative titles, when fairly possessed; and it does this on the plain and general ground, that there must be a sequel of transactions, continued in a course of time, which shall be held conclusive, to cure antecedent defects, and to give, security to the title of a bond fide purchaser. On this foundation all property rests ; with respect to movables, the period is very short for that effect. It is true, that ships pass by formal instruments and written documents, and therefore do not come entirely under the rules that apply to the transfer of movable property ; but still they are entitled to the equity of similar considerations to a certain degree, particularly where posi- tive regulations have not intervened to exclude them. This ship appears to have been taken by the Algerines, and it is argued, that the Algerines are to be considered in this act as pirates, and that no legal conversion of property can be derived from their piratical seizure. Certain it is, that the African States were so considered many years ago, but they have long acquired the character of established govern- ments, with whom we have regular treaties, acknowledging and con- firming to them the relations of legal states. So long ago as the time of Charles 2d, Molloy speaks of them in language which, though sufficiently quaint, expresses the true character in which they were considered in this time. — " Pirates that have reduced themselves into a government or state, as those of Algier, Sally, Tripoli, Tunis, and the like, some do conceive ought not to obtain the rights or 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. The famous Carthage having yielded to the victorious Scipio, did in some respect continue, and began to raise up her drooping towers, till the knowing Cato gave council for the total extirpation ; out of the ruins of which arose Tunis, the revenging ghost of that famous city, who now, what open hostility denied, by thieving and piracy continues ; as stinking elders spring from those places where noble oaks have been felled ; CHAP. I.] THE HELENA. 47 and in their art are become such masters, and to that degree, as to disturb the mightiest nations on the western empire ; and though the same is small in bigness, yet it is great in mischief ; the consideration of which put fire into the breast of the aged Lewis IX. to burn up this nest of wasps, who having equipt out a fleet in his way for Palestine, resolved to besiege it : whereupon a council of war being called, the question was, whether the same should be summoned, and carried it should not ; for it was not fit the solemn ceremonies of war should be lavished away on a company of thieves and pirates. Notwithstanding this, Tunis and Tripoli and their sister Algier do at this dny (though nests of pirates) obtain the right of legation. So that now (though indeed pirates) yet having acquired tlie reputation of a government, they cannot properly be esteemed pirates, but enemies." jMolloy, p. 33, § iv. Although their notions of justice, to be observed between nations, differ from those which we entertain, we do not on that account, venture to call in question their public acts. As to the mode of con- fiscation, which may have taken place on this vessel, whether by formal sentence or not, we must presume it was done regularly in their way, and according to the established custom of that part of the world. That the act of capture and condemnation was not a mere private act of depredation, is evident from this circumstance, that the Day himself appears to have been the owner of the capturing vessel ; at least he intervenes to guarantee the transfer of the ship in question to the Spanish purchaser. There might perhaps be cause of confisca- tion, according to their notions, for some infriugment of the regula- tions of treaty ; as it is by the law of treaty only that these nations hold 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 convention. Had there been any demand for justice in that country on the part of the owners, and the Dey had refused to hear their complaints, there might perhaps have been something more like a reasonable ground to induce this court to look into the transaction, but no such application appears to have been made. The Dey intervened in the transaction, as legalizing the act. The transfer appears, besides, to have been passed in a solemn manner before the public officer of the Spanish government, the Spanish consul ; and in the subsequent instance, the property is again trans- ferred to the present possessor, under the public sanction of the Judge of the Vice Admiralty court of ^Minorca. Under these circumstances, I think it is now much too late for this court to interfere for the purpose of annulling these several acts of transfer, which appear to have been made, in both instances, with 48 STATES. [part I. perfect good faith on the part of the several purchasers, and for an equivalent consideration. Without considering at all the question, what rule would have been applied to the case of a bona fide purchase from a piratical captor I shall dismiss the party, and decree the ship to be delivered to the British purchaser.^ Party dismissed. THE CHAEKIEH. High Court of Admiralty, 1873. {Law Reports, 4 Admiralty and Ecclesiastical Courts, 59.) This was a cause instituted on behalf of the Netherlands Steamship Co., the owners of the steamship Batavier, and on behalf of the master, crew and passengers thereof against the screw steamship Charkleh and her freight, for damages arising out of a collision between the Batavier and the Charkieh in the river Thames in 1872. As a bar to the action for damages resulting from the collision, it was maintained that the ship was the property of Ismail Pacha, Khedive of Egypt, the reigning sovereign of the state of Egypt and that the Charkieh was a public vessel of the government and semi- sovereign state of Egypt.^ Sir Robert Phillimore. . . . Erom these averments in the pleadings, and these facts in the evidence, the following questions arise : 1. Is the international status of the Khedive that of sovereign prince of Egypt ? 1 " Tlie Algerincs, Tripolitans, Tunisians, and tliose of Salee," says Bynkerslioek, " are not pirates, but regular organized societies, wlio liave a fixed territory and an established government, witli whom we are alternately at peace and at war, as with other nations, and who, therefore, are entitled to the same rights as other independent states. The European sovereigns often enter into treaties with them, and the States- General have done it in several instances. Cicero defines a regular enemy to be : Qui haheret rempuhlicam, curiam cerarium, consensum et concordiam rivium rationem allquam, si res ltd tullssft, pads et firderls (Philip, p. iv. c. 14). All these things are to be found among the barbarians of Africa ; for they pay the same regard to treaties of peace and alliance that other nations do, who generally attend more to their convenience than to their engagements. And if they should not observe the faith of treaties with the most scrupulous respect, it cannot be well required of them ; for it would be required in vain of other sovereigns. Nay, if tiiey should even act vvitli more injustice than other nations do, they sliould not, on that account, as Huberus very properly observes (l)e Jure Civitat. 1. iii. sect. 4, e. 6, n. ult.) lose the riglits and privileges of sovereign states." Bynkerslioek, Quaest. Jur. Pub. lib. i. cap. xvii. — Eu. 2 Short statement substituted for that of the report. — Ed. CHAP. I.] THE CHARKIEH. 49 2. Is he entitled by virtue of that status to claim the exemption of this ship from the jurisdiction of this court ? 3. If he be entitled to this privilege, has he waived or forfeited it ? I proceed to consider these questions in their order, and first, as to the international status of His Highness the Khedive. [After sketching the history of Egypt from Arabian conquest in 838 A.D. to the year 1833, the learned judge says :] Here 1 will pause a moment to consider the law applicable to the facts as now stated. What were the relations at this epoch existing between the Khedive and the Porte, and what was the nature and character of the authority of the former, so far as foreign states are connected with these con- siderations ? Did they entitle the Khedive to the privilege of the sovereign of an independent state ? These are questions which must be answered, like all others appertaining to international jurisprudence, by a reference to usage, authority, and the reason of the thing. Many accredited writers and jurists have drawn a distinction, which seems not to have escaped the framer of the Khedive's petition on protest now before me — between a sovereignty absolute and pure, and that less complete and perfect dominion to which the name of half- sovereignty (demi-souverain) has been given. I am inclined to think that the sovereign of a state in the latter category may be entitled to require from foreign states the consideration and privileges w'hich are unquestionably incident to the sovereign of a state who is in the former category. There are also certain acts of feudal homage, or, as jurists say, servitides juris (jentium, which do not disentitle the state obliged to them to an international existence as a separate state. Some examples of half sovereignties are to be found in history. Some of the smaller states {Judh souverain) of the German confedera- tion, before it was virtually destroyed by Napoleon's confederation of the Rhine, and formally extinguished by the abdication of the Emperor Francis in 1806, also furnished examples of states cam imviinutione iw^^eru' — to borrow the expression of Grotius. De Jure Belli et Pacis, lib. ii., c. xv., s. vii., 1 ; Cambridge edition, 1853, vol. 2, p. 136 — but entitled to be treated as states by foreign powers. The old feudal relations of the Dukes of Burgundy, Normandy, and Brittany to Erance did not, I believe, prevent these princes from being considered as sovereigns at home and abroad, and from being entitled to be represented by ambassadors at foreign courts. Other instances might be mentioned, in which neitlier the payment of tribute, as in the cases of the Kingdom of the Two Sicilies to the Pope, continued till 1818 A.D., or of the King of Hungary to the Sultan, from the reign of Ferdinand the First till the Treaty of 4 50 STATES. [part I. Silvatorok in 1606 A.D., nor other acts of purel}^ feudal homage, — such as the presentation of the white palfrey presented to the Pope by the King of the Two Sicilies, — See Phill. Int. Law, 2d ed., vol. 2, 434, disentitled the representative of a state in these conditions to the enjoyment abroad of the privileges usually accorded to a foreign spver- eigu or his representatives. It has been well said by a commentator on Martens' work : — " La souverainete exterieure n'est autre chose que I'independance de I'Etat vis-a-vis des autres etats." Pinheiro Ferreira on Martens, Precis du droit des gens, edited by Verge, 1. i. c. 3, s. 23, t. i. p. 98, Paris, 1858. It may, moreover, be that, if such a status existed de facto, it would not be the province of the tribunals of a foreign state to look beyond the fact, or to inquire minutely or at all into the history of its establish- ment. International law has no concern with the form, character, or power of a state, if, through the medium of a government, it has such an independent existence as to render it capable of entertaining inter- national relations with other states. An apt illustration of this position is furnished by the status accorded by European Powers in more modern times to what were once commonly called the Barbary States. They had practically shaken off the Ottoman dominion. Bynkershoek describes them as " civitates quse certam sedem atque ibi imperium habent, et quibuscum nunc pax est nunc bellum, non secus ac cum aliis gentibus, quique propterea ceterorum principum jure esse videntur." B3'nkershoek, Qusestiones Juris Publici, lib. i., c. 17 ; Opera Omnia, vol. 2, p. 223, ed. 1707. And in the year 1801 Lord Stowell fully adopted this position, and asserted that the African states had " long acquired the character of established governments, with whom we have regular treaties, acknowledging and confirming to them the relations of legal states ; " and he remarked that, " although their notion of inter- national 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 international law, derived exclusively from European custom, they are nevertheless treated as having the rights and duties of states by the civilized world : The Helena, 4 C. Eob. 3. It is to be observed, however, that the court proceeded upon the principle that a nation with whom we had regular treaties was de facto acknowledged without a formal recognition to have what jurists have termed the right of a political personality (Kliiber, § 25 — Droit des gens moderne de I'Europe, par M. A. Ott, Paris, 1861, p. 35), that is, the position of a state in the great commonwealth of nations. If, at this period, I had been obliged to decide whether the Pacha of CHAP. I.] THE CHAEKIEH. 51 Egypt was entitled to the privilege of a sovereign in this country, iny decision would have been influenced by a regard to the de facto sovereign rights apparently exercised at this period by his Highness ; and perhaps the analogy of a European state having absolute dominion over its own subjects with feudal subordination to another state mit^ht have been cited with effect. Though, even in this crisis of the history of Eg^-pt, when the inde- pendence of that country was so nearly established, it must be observed that no attempt appears to have been made on behalf of the Pacha to exercise the principal international attribute of sovereignty, namely, the jus legationls^ to be represented by an ambassador or diplomatic agent at the court of foreign sovereigns ; nor is there any reason to believe that such an attempt, if made, would have been successful. But in the interval between 1833 A.D. and 1841 A.D. the scene is greatly changed. The result, then, of the historical inquiry as to the status of his Highness the Khedive, is as follows : That in the firmans, whose authority upon this point appears to be paramount, Egypt is invariably spoken of as one of the provinces of the Ottoman Empire. That the Egyptian army is regulated as part of the military force of the Ottoman Empire. That the taxes are imposed and levied in the name of the Porte. That the treaties of the Porte are binding upon Egypt, and that she has no separate y«s legationis. That the flag for both the army and the navy is the flag of the Porte. All these facts, according to the unanimous opinion of accredited writers, are inconsistent and incompatible with those conditions of sovereignty which are necessary to entitle a country to be ranked as one among the great community of states. Against this array of negative proof is to be set the solitary circum- stance that the office of Khedive is hereditary. It requires but little consideration to see that this peculiarity cannot affect the question. Egypt remains a province of an empire, and does not become an empire, because her viceroy is hereditary. The viceroy does not become a sovereign prince because his sovereign permits liira to trans- mit the viceroyalty to his descendants in the direct male line. The hereditary character does not confer on the holder, in this case, the right o^ making war and peace, of sending an ambassador, or of main- taining a separate military or naval force, or of governing at all, except in the name and under the authority of his sovereign. The hereditary character of the viceroyalty may make the viceroy the chief subject of the Porte, but he is still a subject prince, and not a sovereign prince or " reigning sovereign" even "of a semi-sovereign state," according to the terms- of the petition on protest. 52 STATES. [part I. I have one more observation to make before I leave this branch of the subject. It cannot be urged in favour of the exemption of the Charkieh, that, though she may have been erroneously claimed as a public vessel of the Egyptian government, it is substantially the same thing if she be a public vessel of the Ottoman government of which the government of Egypt is a part ; because at the beginning of these proceedings I directed the Registrar to write the following letter to the ambassador of the Porte : — ^ No answer has been sent to this letter, and no intervention of any sort has taken place on behalf of the Porte. Thereupon this argument occurs. — It cannot be denied that for the abuse of the privilege of the 5^, sovereign or the ambassador, some remedy must be found. It has L been shown that the Khedive has six or seven ships acting as merchant- men, for whom he claims the same privilege as for the Charkieh, and the number may be indefinitely increased. It has been said that the remedy is to be found in an application to the sovereign to abate the abuse. Any such application must be made in the present instance to the Porte. But the ambassador of the Porte asserts no such claim. It is the governor of a province of the state that insists upon the privilege. To communicate directly with the governor in this matter would be to derogate from the dignity of his sovereign, and to place in the rank of a sovereign a governor whom his own sovereign has placed in the rank of a subject. Lastly, no treaty ever having been made with his Highness, no ambassador ever received from or sent to him, British consuls in Egypt receiving no exequatur from him, there being, in other words, no de facto recognition of his Highness as a sovereign by our government, has there been any recognition dejure of him in this capacity ? The Court of Chancery, when a plaintiff averred in his bill that a certain republic in Central America had been recognized as an inde- pendent government, put itself in communication with the Foreign Office, and after such communication, declared itself authorized to state that the republic in question had never been recognized by the govern- ment of this country, and on the ground that what was pleaded was "historically false," allowed a demurrer to the bill: Taylor v. Barclay, 2 Sim. 213. I have communicated with the Foreign Office, and have received the following answer to my questions, viz. : " that the Khe- dive has not been and is not now recognized by Her Majesty as reign- ing sovereign of the state of Egypt." " He is recognized by Her ]\[ajesty's government as the hereditary ruler of the province of Egypt under the supremacy of the Sultan of Turkey." 1 Letter omitted. — Ed. , , i CHAP. I.] THORTNGTON V. SMITH AND HARTLEY. 53 Upon all these facts I have arrived at the conclusion that indepen- dently of any other consideration, his Highness the Khedive has failed to establish his claim to exempt his vessel from the process of this court.^ JACK THOETXGTOX v. TVTLLIAM B. S:\riTH AXD JOHN H. HARTLEY. Supreme Court of the United States. 1868. (8 Wallace, 1.) The Chief Justice [Chase] delivered the oijinion of the court. The questions before us upon this appeal are these : 1. Can a contract for the payment of Confederate notes, made dur- ing the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States ? 2. Can evidence be received to jirove that a promise expressed to be for the payment of dollars was, in fact, made for the payment of any other than lawful dollars of the United States ? 3. Does the evidence in the record establish the fact that the note for ten thousand dollars was to be paid, by agreement of the parties, in Confederate notes ^ The first question is by no means free from difficulty. It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the government of the United States, by insurrectionary force. Nor is it a doubtful principle of law that no contracts made in aid of such an attempt can be enforced through the courts of the country whose government is thus assailed. But, was the contract of the parties to this suit a contract of that character ? Can it be fairly described as a contract in aid of the rebellion ? In examining this question the state of that part of the country in which it was made must be considered. It is familiar history, that early in 1861 the authorities of seven States, supported, as was alleged, 1 For the present situation of Egypt, see Ab(^-u!-^fessih v. Farra, 1888, L. R.. 13 A. C. 431 ; Sir Alfred (Lord) Milner's "England in Egypt," (1892) ; White's "Expan- sion of Egypt," 1899. For the international status of Cuba during the American occupation see Nee't/ v. HenM, 1900, 180 U. S. 109. For the status of the American Indian tribes, or " Nations," see The Cherol-ee Nation V. Ga., 1831, 5 Pet. 1, especially the concurring opinion of Mr. Justice Baldwin, SO- SO. This matter is discussed in § 23, in/ra. — Ed. 54 STATES. [part I, by popular majorities, combined for the overthrow of the Xatior.al Union, and for the establishment, within its boundaries, of a separate and independent confederation. A governmental organization, repre- senting these States, was established at Montgomery, in Alabama, first under a provisional constitution, and afterwards under a constitution intended to be permanent. In the course of a few months, four other States acceded to this confederation, and the seat of the central authority was transferred to Richmond, in Virginia. It was, by the central authority thus organized, and under its direction, that civil war was carried on upon a vast scale against the government of tlie United States for more than four years. Its power was recognized as supreme in nearly the whole of the territory of the States con- federated in insurrection. It was the actual government of all the insurgent States, except those portions of them protected from its control by the presence of the armed forces of the National government. What was the precise character of this government in contemplation of law ? It is difficult to define it with exactness. Any definition that may be given may not improbably be found to require limitation and quali- fication. But the general principles of law relating to de facto govern- ment will, we think, conduct us to a conclusion sufficiently accurate. There are several degrees of what is called de facto government. Such a government, in its highest degree, assumes a character very closely resem.bling that of a lawful government. This is when the usurping government expels the regular authorities from their custom- ary seats and functions, and establishes itself in their place, and so becomes the actual government of a country. The distinguishing characteristic of such a government is, that adherents to it in war against the government de jure do not incur the penalties of treason ; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the govern- ment de jure when restored. Examples of this description of "government de facto are found in English history. The statute 11 Henry VII., c. 1, 2 British Stat, at Large, 82, relieves from penalties for treason all persons who, in de- fence of the king, for the time being, wage war against those who endeavor to subvert his authority by force of arms, though warranted in so doing by the lawful monarch, 4 Commentaries, 77. But this is where the usurper obtains actual possession of the royal authority of the kingdom ; hot when he has succeeded only in estab- lishing his power over particular localities. Being in possession, allegiance is due to him as king de facto. Another example may be found in the government of England under CHAP. I.] THORINGTON V. SMITH AND HARTLEY. 55 the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector. It was not, in the contemplation of law, a government dejare, but it was a government de facto in the most absolute sense. It incurred obligations and made conquests Avhich remained the obliga- tions and conquests of England after the restoration. The better opinion doubtless is, that acts done in obedience to this government could not be justly regarded as treasonable, though in hostility to the king dejare. Such acts were protected from criminal prosecution by the spirit, if not by the letter, of the statute of Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason, 6 State Trials, 119, in the year following the restora- tion. But such a judgment, in such a time, has little authority. It is very certain that the Confederate government was never acknowledged by the United States as a de facto government in this sense. Korwas it acknowledged as such by other powers. No treaty was made by it with any civilized state. Xo obligations of a National character were created by it, binding after its dissolution, on the States which it represented, or on the National government. Prom a very early period of the civil war to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States. But there is another description of government, called also by pub- licists a government de facto, but which might, perhaps, be more aptly denominated a government of paramount force. Its distinguishing characteristics are (1), that its existence is maintained by active mili- tary power, within the territories, and against the rightful authority of an established and lawful government ; and (2), that while it exists, it must necessarily be obeyed in civil matters by private citizens who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrongdoers, for those acts, though not warranted by the laws of the rightful government. Actual governments of this sort are established over districts differing greatly in extent and con- ditions. They are usually administered directly by military authority, but they may be administered, also, by civil authority, supported more or less directly by military force. One example of this sort of government is found in the case of Cas- tine, in Maine, reduced to British possession during the war of 1812. From the 1st of September, 1814, to the ratification of the treaty of peace in 1815, according to the judgment of this court in United States V. Rice, 4 Wheaton, 253, " the British government exercised all civil and military authority over the place." " The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory 56 STATES. [part I. upon the inhabitants who remained and submitted to the conqueror. By the surrender, the inhabitants passed under a temporary allegiance to the British government, and were bonnd by such laws, and such only, as it chose to recognize and impose." It is not to be inferred from this that the obligations of the people of Castine as citizens of the United States were abrogated. They were suspended merely by the presence, and only during the presence, of the paramount force. A like example is found in the case of Tampico, occupied during the war with Mexico by the troops of the United States. It was deter- mined by this court, in Flemings. Page, 9 Howard, 614, that, although Tampico did not become a port of the United States in consequence of that occupation, still, having come, together with the whole State of Tamaulipas, of which it was part, into the exclusive possession of the National forces, it must be regarded and respected by other nations as the territory of the United States. These were cases of temporary possession of territory by lawful and regular governments at war with the country of which the territory so possessed Avas part. The central government established for the insurgent States differed from the temporary governments at Castine and Tampico, in the cir- cumstance, that its authority did not originate in lawful acts of regular war, but it was not, on that account, less actual or less supreme. And we think that it must be classed among the governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemies' territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfull}^ gained, in all matters of government within its military lines, the power of the insurgent government can- not be questioned. That supremacy did not justify acts of hostility to the United States. How far it should excuse them must be left to the lawful government upon the re-establishment of its authority. But it made obedience to its authority in civil and local matters not only a necessity but a duty. Without such obedience, civil order was impossible. It was by this government exercising its power throughout an im- mense territory, that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent States. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities; for, except in that event, there could be no payer. They bore, indeed, this character upon their face, for they were made payable only " after CHAP. I.] THORINGTON V. SMITH AND HARTLEY. 57 the ratification of a treaty of peace between the Confederate States and the United States of America." While the war lasted, however, they had a certain contingent value, and were used as money in nearlj' all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force. It seems to follow as a necessary consequence from this actual supremacy of the insurgent government, as a belligerent, within the territory- where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be con- sidered in courts of law in the same light as if it had been issued by a foreign government, temporarih- occupying a part of the territory of the United States. Contracts stipulating for payments in this cur- rency, cannot be regarded for that reason only, as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile government, whether invading or insurgent. They are transaction in the ordinary course of civil society, and, though they may indirectly and remotely promote the ends of the unlawful government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the res- toration of peace, to the extent of their just obligation. The first question, therefore, must receive an affirmative answer. The second question. Whether evidence can be received to prove that a promise, made in one of the insurgent States, and expressed to be for the payment of dollars, without qualifying words, was in fact made for the payment of any other than lawful dollars of the United States ? is next to be considered. It is quite clear that a contract to pay dollars, made between citizens of any State of the Union, while maintaining its constitutional rela- tions with the ]S"ational government, is a contract to pay lawful money of the United States, and cannot be modified or explained by parol evidence. But it is equally clear, if in any other country-, coins or notes denominated dollars should be authorized of different value from the coins or notes which are current here under that name, that, in a suit upon a contract to pay dollars, made in that country, evidence would be admitted to prove what kind of dollars were intended, and, if it should turn out that foreign dollars were meant, to prove their equivalent value in lawful money of the United States. Such evidence does not modify or alter the contract. It simply explains an am- biguity, which, under the general rules of evidence, may be removed by parol evidence. 58 STATES. [part I. We have already seen that the people of the insurgent States, under the Confederate government were, in legal contemplation, substantially in the same condition as inhabitants of districts of a country occupied and controlled by an invading belligerent. The rules which would apply in the former case would apply in the latter ; and, as in the former case, the people must be regarded as subjects of a foreign power, and contracts among them be interpreted and enforced with reference to the conditions imposed by the conqueror, so in the latter case, the inhabitants must be regarded as under the authority of the insurgent belligerent power actually established as the government of the country, and contracts made with them must be interpreted and enforced with reference to the condition of things created by the acts of the governing power. It is said, indeed, that under the insurgent government tlie word dollar had the same meaning as under the government of the United States ; that the Confederate notes were never made a legal tender, and, therefore, that no evidence can be received to show any otlier meaning of the word when used in a contract. But, it must be re- membered that the whole condition of things in the insurgent States was matter of fact rather than matter of law, and, as matter of fact, these notes, payable at a future and contingent day, which has not arrived and can never arrive, were forced into circulation as dollars, if not directly by the legislation, yet indirectly and quite as effectually by the acts of the insurgent government. Considered in themselves, and in the light of subsequent events, these notes had no real value, but they were made current as dollars by irresistible force. They were the only measure of value which the people had, and their use was a matter of almost absolute necessity. And this use gave them a sort of value, insignificant and precarious enough it is true, but always having a sufficiently definite relation to gold and silver, the universal measures of value, so that it was always easy to ascertain how much gold and silver was the real equivalent of a sum expressed in this cur- rency. In the light of these facts it seems hardly less than absurd to say that these dollars must be regarded as identical in kind and value with the dollars which constitute the money of the United States. We cannot shut our eyes to the fact that they were essentially differ- ent in both respects ; and it seems to us that no rule of evidence prop- erly understood requires us to refuse, under the circumstances, to admit proof of the sense in which the word dollar is used in the con- tract before us. Our answer to the second question is, therefore, also in the affirmative. We are clearly of opinion that such evidence must be received in respect to such contract, in order that justice may be done between the parties, and that the party entitled to be paid in . yj^r^-^wj-'-. ,.^"iUJ|M- ^'<>-^^'^''' ">-"''v.>I.,. ;. ,. I o .',« CHAP. I.] THE HOME INSURANCE COMPANY'S CASE. 59 these Confederate dollars can recover their actual value at the time and place of the contract, in lawful money of the United States. We do not think it necessary to go into a detailed examination of the evidence in the record in order to vindicate our answer to tlie third question. It is enough to say that it has left no doubt in our minds that the note for ten thousand dollars, to enforce payment of which suit was brought in the circuit court, was to be paid, by agreement of the parties, in Confederate notes. It follows that the decree of the circuit court must be reversed and the cause remanded, for further hearing and decree, in conformity with this opiiiion. THE HOME INSURANCE COMPANY'S CASE. Court of Claims, 1872. (8 Court of Claims, 449.) Drake, Ch. J., delivered the opinion of the court. This case, considered merely as a claim for the proceeds of cotton captured by the military forces of the United States during the rebel- lion, has no point of controversy. The claimant's ownership, the capture and sale of the cotton, and the payment of the proceeds thereof into the treasury, are all established. The only question raised in the case is as to the right of the claimants, a corporation created by an act passed by the Legislature of the State of Georgia, while that State was in armed rebellion against the Government of the United States, to sue in this court for the recovery of said pro- ceeds. The counsel for the Government urge that the claimant has no legal existence entitling it to one in this court; that the act creat- ing it was the act of a Legislature which had no lawful authority to pass any such act; that no legislation whatever of the late rebel States is entitled as a matter of right to recognition in the Union; and that, therefore, the claimant's petition should be dismissed. The question thus presented has not, we believe, been before raised. If we were required to pass upon it without any guidance from the appellate court, we should approach its consideration with more hesi- tation than we now feel. But we consider the question practically decided by the Supreme Court in Texas v. Wliite (7 Wallace, 700), where, as we conceive, the following propositions were enunciated. 1. That no rebel State ceased, by its act of secession and rebellion, to be a State of the Union. 60 STATES. [part I. 2. That the citizens of any such State did not, by such secession and rebellion, cease to be citizens of the Union. 3. Tliat the Legislature of any sucli State cannot be regarded in the courts of the United States as a lawful legislature, or its acts as lawful acts. 4. That, nevertheless, the rebel government in any such State was its only actual government, which, having displaced the regular and lawful authority, and established itself in the customary seats of power and in the exercise of the ordinary functions of administration, constituted a de facto government, whose acts, during its existence as such, would be effectual, and, in many respects, valid. 5. That the acts of such a de facto though unlawful government, which must be regarded as valid, are those that are necessary to peace and good order among citizens ; such, for example, as acts sanctioning and protecting marriage and the domestic relations, governing the course of descents, regulating the conveyance and transfer of prop- erty, real and personal, and providing remedies for injuries to person and estate, and other similar acts. 6. That the acts of such a government which must be regarded as invalid and void are those that were in furtherance or support of re- bellion against the United States, or intended to defeat the just rights of citizens, and other acts of a like nature. From all of which propositions we deduce this general proposition as the final doctrine of that court on this subject, namely : That what- ever act of the Legislature of a rebel State did not tend to further or support the rebellion, or to defeat the just rights of citizens, but re- lated merely to the domestic affairs of the people of the State as a community aside from the connection of that people with the rebel- lion, is a valid act by a de facto though unlawful government, Avhich will be sustained in the courts of the United States. This seems to us to draw the only line of distinction which can well be drawn, and to be the only alternative to the entire refusal of recog- nition to such acts. It is clearly impossible for the judiciary to pass upon the expediency of every act of a merely municipal character passed by a rebel legislature, or to decide whether every such act was necessary to peace and good order among citizens; but there is no difficulty in applying to every such act these two simple tests: 1. Was it intended to further or support the rebellion, or to defeat the just rights of citizens? and 2. Was it intended merely to regulate the domestic affairs of the people of the State, aside from their con- nection with the rebellion? If the first question can be answered negatively, and the second affirmatively, then it seems to us that the ruling of the Supreme Court requires us to give effect to the act. CHAP. I.] THE HOME INSURANCE COMPANY'S CASE. 61 Any other view of the matter would, in our judgment, involve the domestic affairs of the people of the rebel States in a confusion and entanglement from which extrication would he almost impossible. Applying to the charter of the Home Insurance Company the tests indicated, we do not find that its enactment was intended to further or support the rebellion, or to defeat the just rights of citizens; but, on the other hand, that it was intended as a means, so far as it went, of regulating the domestic affairs of the State; in which work in every civilized state the creation of corporations bears no inconsider- able part. We therefore hold the company to have a valid existence, entitling it to sue in this court; and award judgment in its favor for the pro- ceeds of Its cotton found to have been captured.^ 1 Affirmed on appeal in U. S. Supreme Court, 1874, 22 Wall. 99. Other leading cases on the status and acts of the Confederacy and of its members are: Fijield v. Insurance Co., 1804, 47 Penn. State, 166; Mauran v. Insurance Co., 1867, 6 Wall. 1 ; Miller v. U. S., 1870, 11 Wall. 268; Sprott v. U. S., 1874, 20 Wall. 459; Williams V. Brujfy, 1877, 96 U. S. 176; Ford v. Suryet, 1878, 97 U, S. 594; Ketcham V, Buckley, 1878, 99 U. S. 188. In Baldy v. Hunter, 1897, 171 U. S. 388, Mr. Justice Harlan says (after an elaborate enumeration and discussion of the leading cases deal- ing with the status of Confederate States) : "From these cases it may be deduced — " That the transactions between persons actually residing within the territory dom- inated by the government of the Confederate States were not invalid for the reason only that they occurred under the sanction of the laws of that government or of any local government recognizing its autliority ; that, within such territory, the preserva- tion of order, the maintenance of police regulations, the prosecution of ciiraes, the protection of property, the enforcement of contracts, tlie celebration of marriages, the settlement of estates, the transfer and descent of property, and similar or kindred subjects were, during the war, under the control of the local governments constituting the so-called Confederate States. " That what occurred or was done in respect of such matters under the autliority of the laws of these local de facto governments should not be disregarded or held to be invalid merely because those governments were organized in hostility to the Union established by the national Constitution ; this, because the existence of war between the United States and the Confederate States did not relieve those who were within the insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of society, nor do away with civil government or the regular administration of the laws, and because transactions in the ordinary course of civil society as organized within the enemy's territory, altliough they may have indirectly or remotely promoted the ends of the de facto or unlawful government organized to effect a dissolution of the Union, were without blame 'except when proved to have been entered into tvith actual intent to further invasion or insurrection ; ' and, "Tliat judicial and legislative acts in the respective States composing the so-called Confederate States should be respected by the courts if they were not liostile in their purpose or mode of enforcement to the authority of the National Government, and did not impair the rights of citizens under the Constitution." And in the very recent case of Oakes v. U. S., 1898, 174 U. S. 778, 794, Mr. Justice Gray, speaking for the court, says : " The government of the Confederate States, although in no sense a government 62 STATES. [part I. UNDERBILL v. HERNANDEZ. United States Circuit Court of Appeals, 2d Circuit, 1895. (26 United States Appeals, 573.) Wallace, Circuit Judge, delivered the opinion of the court. This is a writ of error by George F. Underhill, the plaintiff in the court below, to review a judgment for Jose Manuel Hernandez, the de jure, and never recognized by the United States as in all respects de facto, yet was an organized and actual government, maintained by military power, throughout the limits of the States tliat adiiered to it, except in tliose portions of tliem protected from its control by the presence of the armed forces of tlie United States; and the United States, from motives of humanity and expediency, had conceded to that government some of the rights and obligations of a belligerent. Prize Cases, 2 Black, 635, G73, 674 ; Thorington v. Smith, 8 Wall. 1, 7, 9, 10 ; Ford v. Suryet, 97 U. S. 594, 604, 605 ; The Lilla, 2 Sprague, 177, and 2 Clifford, 169." The Lilla referred to was a Maine brig called the Betsy Ames, captured by a Con- federate privateer commanded by H. S. Libhy, carried into Ciiarleston, S. C, and there condemned and sold, the purchasers being John Fraser & Co. of that city. Her name was changed to the Mary Wright, and, loaded with cotton, under the command of Libby, she ran the blockade, arrived at Liverpool on the 2d of April, 1862, and dis- posed of her cargo. April 24th she was registered as a British vessel, called the Lilla, and in the name of R. G. B., as sole owner. A fortnight later she sailed for Nassau, N. P., under the command of A., according to her papers, but really still under com- mand of Libby. There is evidence going to show that it was arranged that Fraser & Co. should have a steamer of theirs follow to Nassau, there take on the Lilla's cargo and proceed to Charleston. Parts of the cargo were falsely documented in the name of R. G. B. for the purpose of deceiving the United States cruisers. The vessel was seized by the United States gunboat Quaker City, brought in, and claimed by her original owners. Sprague, J., decided tliat R. G. B. lost whatever he possessed in the cargo by reason of his falsely documenting other goods as his own to deceive belligerent cruisers and tliat the vessel should be restored upon the authority of the Act of 1800, Chap. 14, se(;s. 1,2. U. S. Stats, at Large, 16, which provides that when a merchant vessel, belonging to any person under the protection of the United States, shall have been taken by a public enemy, and shall be recaptured by a public armed vessel of the United States, such vessel not having been condemned by competent authority before the recapture, the same shall be restored to the former owners upon payment of one- eighth part of the true value, for and in lieu of salvage. The court also says : " The second objection to this claim is also fatal. There is no doubt that this vessel was the property of Maxwell and others, until her capture by a Confederate privateer. But it is contended that she has since been condemned and sold by a prize court in Charleston, S. C, and the purchasers conveyed her to the claimant Bushby, If tliis were so, of which there is no sufficient proof, still, such proceedings would not divest the title of the original owner. In the case of The Amy Warwick [2 Sprague 123], CHAP. I.] UNDERBILL V. HERNANDEZ. 63 defendant, entered upon the verdict of a jury, pursuant to the direction of the trial judge. The suit was for false imprisonment and assault and battery of the plaintiff, committed by the defendant at the city of Bolivar, Venezuela. The acts complained of consisted in the deten- tion of the plaintiff at his own residence in the City of Bolivar, under a guard of soldiers stationed near the house, from August 13 to October 15, 1892, by the authority of the defendant, during which time the plaintiff was not permitted to leave the house without an escort of soldiers, and was several times refused a passport to leave the city, for which he made application to the defendant. During this period the defendant was in command of the city as a military officer. A revolution had been organized against the government of Venezuela, and an army had been mustered against the adherents of the recent president, Avhose term of office had expired, and who, it was claimed by the revolutionists, no longer represented the legitimate government. The principal parties to this conflict were those who recognized Palacio as their chief, and those who followed the leadership of Crespo. The defendant belonged to the revolutionary party and commanded its forces in the vicinity of Bolivar. Early in August an engagement took place between the forces of the two parties near Bolivar ; the revolutionists prevailed, and on August 13, the defendant entered Bolivar at the head of his forces and assumed command of the city. From that time until the plaintiff was permitted to leave Bolivar the defendant was the civil and military chief. Early in October the revolutionary party prevailed generally, and took posses- tliis Court held that treating the Confederates in some respects as belligerents was not an abandonment of sovereign rights, and by no means precluded us from treating tliem ju other respects as rebels. Most assuredly I shall not recognize the Southern lUxjbur*^ ei c Confederates as a nation, or as having a government competent to establish prize i^ur Lu^ C courts. No proceedings of any such supposed tribunals can have any validity here, .> ^ "^ and a sale under them would convey no title to the purchaser, nor would it confer ' upon him any right to give a title to others. But it is argued that, under the Queen's proclamation, recognizing tiie Confederates as belligerents, a British court would hold a sale to be valid. What the decision of a British court might be upon that question we do not know, it never having been there litigated. But such a decision, if made, would be no more binding upon our courts tlian the political views of the British gov- ernment would be upon the President or the Congress." But generally de facto judgments are valid as in the case of a Spanish judg- ^ul;untiffs. That being so, the right of the present plaintiffs to this cotton, sub- 1 Statement of the case substituted by tlie Editor. CHAP. I.] UNITED STATES OF AMERICA V. PRIOLEAU. 87 ject to this agreement is, I tlnnk, clear, because the agreement is an agreement purporting to be made on behalf of the then de facto existing government, and not of any other persons. That case of The Khu/ of the Two Sicilies and the case of The King of Spain^ and other cases of the same kind, whicli it is not necessary to go through, show that whenever a government de facto has obtained the possession of property, as a government, and for the purposes of the government de facto, the government which displaces it suc- ceeds to all the rights of the former government, and, among other things, succeeds to the property they have so acquired.^ " Xow I come to the second head of the question, and I confess at this moment, as at present advised, I do not feel much doubt on the subject, namely, the question whether or not, taking this property, they must or must not take it subject to the agreement. It appears to me, at present, they must take it subject to the agreement. It is an agreement entered into by a de facto government, treating with persons who have a perfect right to deal with them. I apprehend if they had been American subjects they might do so. One of them, Prioleau, is not an American subject ; he is a naturalized British subject ; he would have a perfect right to deal with a de facto government ; and it cannot be compared with any one of those cases Mr. Gifford put, of persons taking the property of another with knowledge of the rights of that other. That is a species of argu- ment that cannot be applied to international cases of this descrip- tion, and for a very good reason ; if so, there would be no possibility during the existence of a government de facto of ai.:y person dealing with that government in any part of the world. The courts of every country recognize a government de facto to this extent, for the purpose of saying — you are established de facto, if you are carrying on the course of government, if you are allowed by those whom you affect to govern to levy taxes on them, and they pay those taxes, and contribution is made accordingly, or you are acquir- ing proprety, and are at war, having the rights of belligerents, not being treated as mere rebels by persons who say they are the authorized government of the country. Other nations can have nothing to do with that matter. They say we are bound to protect our subjects who treat with the existing government ; and we must give to those subjects, in our countr}^ every right which the govern- ment de facto can give to them, and must not allow the succeeding government to assert any right as against the contracts which have ^ Cases referred to: Kinrj of the Two Sicilies v. Willcox, 1851, 1 Sim. X. S. ."01, .332-oo6, where cases are elaborately cited ; Hulletl v. King of Spain, 1828, 1 Dow & CI. IGU (also reported in 2 Bligh, N. S. 31, and 4 Iluss. 225.) — Ed. 1 88 STATES. [part I. been entered, into by tbe government de facto ; but, as expressed by Lord Cran worth in tlie ca se referred to, tliey must succeed in every respect to the property as they find it, and subject to all the condi- tions and liabilities to which it is subject and bj' which they are bound. Otherwise, I do not see any answer to Mr. James's illus- tration, and I do not see why there should not have been a bill filed to have the Alabama delivered up; * * * because on the theory of the present plaintiffs, it was their property just as much as their cotton is now. If the case had been this (and it is the only case I can consider as making any difference, but that difference would be fatal to the plaintiffs' case in another point of view) : if they had been a set of marauders, a set of robbers (as was said to be the case in the kingdom of Xaples, trul}^ or untruly), devastating the country, and acquiring property in that way, and then affecting to deal with your subjects in England, it would not be the United States, but the individuals who had been robbed and suffered, who could come as plaintiffs. The United States could only come to claim this because it has been raised by public contribution; and although the United States, who are now the government de facto and dejure, claim it as public property, yet it would not be public property unless it was raised, as I have said, by exercising the rights of government, and not by means of mere robbery and violence. "I confess, therefore, I have so little doubt, that this agreement is one that would be binding on the plaintiffs, that I cannot act against these gentlemen without securing to them the reasonable benefit of this agreement ; and I cannot put them under any terms which Avould exclude them from the reasonable benefit of what they are entitled to, and must be held entitled to, as I think, at the hear- ing of the cause." [The Vice Chancellor then proceeds to decree that the cotton was now the property of the United States Government, but that they must take it subject to the obligations entered into respecting it by the de facto Confederate Government. The defendant Prioleau was ai:)pointed receiver, with power to sell the cotton, but he was required to give security for its value ultra the 20,000^., the amount of the defendant's lien.^] 1 In the case of the United States of America v. McRae, 1869, L. E. 8 Eq. 69, James, V. C, held, " that, upon the suppression of a rebelHon, the restored legitimate government is entitled, as of right, to all moneys, goods, and treasure which were public property of the government at the time of the outbreak, such right being in no way affected by the wrongful seizure of the property by the usurp- ing government. "But with respect to property wliich has been voluntarily contributed to, or CHAP. I.] UNITED STATES V. SMITH. 89 UNITED STATES v. SMITH. United States Circuit Court, Eastern District of Virginia, 1877. (1 Hughes Reports, 347.) Hughes, J. — This case is not before me upon issues of fact, but upon facts admitted by demurrer, and upon the law as arising upon the facts so admitted. The allegations of the declaration are these : 1st. That the defendant was indebted to the insurgent government of Virginia, in the sum of $5,000, on tlie 2d day of April, 1865. 2d. That he promised the said government to pay the said indebt- edness. 3d. That the said insurgent government was, on the 9th April, 1865, overthrown by the United States by force of arms, and the lawful authority of the United States re-established in the State ; and, 4th. That the defendant, after the said 9th day of April, 1865, in consideration of the premises, undertook and promised to pay to the United States the said sura of $5,000. The demurrer admits these allegations to be true ; yet denies that they constitute a case of indebtedness by the defendant to the United States, and prays judgment, &c. In technical strictness, by admitting the truth of these several allega- tions, the demurrer admits the case of the plaintiffs to be sufficient to warrant a judgment for him. But let it be assumed that the fourth allegation, being an inference of law, is not admitted by the demurrer. Then the question for decision, is, Avhether the United States acquired by conquest of. and succession to, the insurgent government of Virginia, on the 9th April, 1865, such a right to the money which was then due from the defend- ant to the insurgent State government as was valid and insufficient to raise the assnm2:>sit set forth in the fourth clause of the declaration. Stating the case differently, the question before me is. whether the United States succeeded by conquest and succession to the rights of action, as well as the property, of the insurgent State government, acquired by, the insurrectionary government in the exercise of its usurpe i au- tliority. and has been impressed in its hands with the character of public property, the legitimxte government is not, on its restoration, entitled by title paramount, but as successor only (and to that extent recognizing the authority) of the dis- placed usurping government; and in seeking to recover such property from an agent of the displaced governmmt can only do so to the same extent, and subject the same rights and obligations, as if that government had not been displaced and was itself proceeding against the agent."— Ed. ■-- . ouj arrf, Jk^j i^Xt^ ft v^'' -■• - --^.- 90 STATES. [part I. which was overthrown on the 9th April, 1865. If so, the law will adjudge that the defendant promised to pay to the United States the money which he thus owed to that government, and the court will render judgment against him accordingly. As a matter of history, it cannot be disputed that it was the power of the United States, and not of any State, or of what was called the Alexandria government of Virginia, which was brought to bear against the insurrectionary government of the South ; or, tliat the overthrow and conquest of the insurrectionary government of Virginia was in fact affected by the United States. Therefore, whatever rights of property or of action ordinarily result under the law of nations and of war from conquest, resulted to the United States, on the 9th April, 1865, and did not result to what was called the Alexandria government of Virginia. Tlie very able committee of the General Assembly of Virginia, Mr. Marshall at its head, which had this matter in charge, in the winter of 1865, in the report submitted through one of its members. Judge Joynes, one of the ablest and most learned judges of the State, con- ceded this right to tlie United States in their report, in which they said: " It is very clear that the present government representing the State of Virginia cannot assert any claim to this money by right of conquest, for all the rights of conquest, whatever they be, belong to the United States." And, therefore, the particular question for decision in this case is, whether the right of action, which the demurrer admits that the insur- gent State government of Virginia had against the defendant on the 2d to the 8th April, 1865, for $5,000, passed by conquest, and, after the peace following complete conquest, to the United States, on or after the 9th April, 1865. Does succession, after complete conquest and peace, give to the conquering power the right of enforcing, by civil action, the payment of debts due, at the date of the conquest, to the conquered power ? In this case it is to be observed that there was not merely a temporary conquest, and that condition of quasi belligerence attending such an event, but complete and final conquest producing absolute peace, and that undisputed succession of one power by the other resulting from such a conquest. It was a case of undisputed succession peacefully held after complete, final conquest. Speaking of what passes by conquest to the conquering power, the Supreme Court of the United States says, in United States v. Lijon et al., 16 Wallace, 435, the conquerer's " rights are no longer limited to the mere occupation of what he has taken into his actual possession, but they extend to all the property and rights of a conquered State, CHAP. I.] UNITED STATES V. SMITH. 91 iuclucling even debts as well as personal and real property." Mr. Justice Clifford, in delivering this opinion of the court, and using the language thus quoted, simply gives expression to the settled principl of the law of nations. In the case oiThe Attorney-General of Bombay \. Amerchand, cited at length in Elphinstone v, Bedreechum, 1 Knapp's P. C. Cases, 329, it was held that money in bank belonging to a conquered prince may be recovered in a suit against the banker by the conquering nation. In the case of United States v. McRae, English Law Eeports, 8 Equity Cases, p. 72, it was said by the vice-chancellor: " I apprehend it to be clear, public, tuiiversal law, that any govern- ment which de facto succeeds to any other government, whether by revolution or restoration, conquest or reconquest, succeeds to all the public property, to everything in the nature of public property, and to all rights in respect to the public property of the displaced power, whatever may be the nature or origin of the title of such displaced power. Any such public money in any treasury, any such public property found in any warehouse, fort, or arsenals, would, on the success of the new or restored power, vest ipso facto in such power, and it would have the right to call to account any fiscal or other agent, or any debtor or accountant to or of the persons who had exercised and had ceased to exercise the authority of a government, the agent, debtor, or accountant having been the agent, debtor, or accountant of such persons in their character or pretended character of a government. But this is the right of succession, is the right of representation, is a right, not paramount, but derived, I will not say under, but through, the sup- pressed and displaced authority, and can only be enforced in the same way, and to the same extent, and subject to the same correlative obligations and rights, as if that authority had not been suppressed I and displaced, and was itself seeking to enforce it.^ All the authorities have held the same doctrine, and, indeed, it has never been disputed. ^ — These authorities close , the, question-- in ,fa.vor of the right of the 1 "rThei^ef©t*,/a bill by the United States Government, after the suppression of tlie rebellion, against an agent of Uie late Confederate government, for an account of his dealings in respect of tlie Confederate loan, which he was employed to raise in this country [England], was dismissed with costs, in the absence of proof that any property to which the plaintiffs were entitled in their own right, as distin- guislied from their rigiit as successors of the Confederate government, ever reached tlie haiuls of tlie defendant, and on the plaintiff declining to iiave tlie account taken on the same footing as if taken between the Confederate government and the defendant as the agent of such government, and to pay wiiat, on the footing of such account might be found due from them." (Quoted from 2 riiillimore's Inter- national La.v, 154.) — Ei>. 92 STATES. [part I. United States to the property of the overthrown government of Vir- ginia, as the insurgent government, and to the debts due, whether from citizens or from foreigners, to that government, at the time of its overthrow. The objection of defendant's counsel, that assumpsit will not lie for an obligation arising by implication from a debtor to a conquered State to the conquering government after conquest, because promises do not arise from acts of violence, is not tenable. It is not denied, it is admitted by demurrer, that the defendant by receiving from the State government before its overthrow $5,000 not due to him, became indebted to that government. It is settled law, as already shown, that a conquering power- after the conquest, succeeds to the debts which were due to the conquered power. If, therefore, by the law of nations, which is part of the law of England and America, such a debt becomes due from a citizen to the conquering power, then the law of England and America, even the common law of the two countries, implies an assumpsit, a promise on the part of that citizen to pay the debt. The citizen owes the debt to some one. The money he owes does not belong to himself. He is bound in conscience to pay it to the rightful owner, who is entitled ex quo et bono to receive it. And the law of nations, as well as of England and America, declares that the conquering power is that rightful owner. There is no violence between the debtor, as such, and the conquering power. The violence was between the two governments. The debt, as a debt, becomes due to the conquering power, irrespective of the consideration whether the debtor was a combatant or a non-combatant. In his character of debtor, not in that of man or woman, combatant or non-combatant, native or foreigner, he became, qua debtor to the conquered power, the debtor of the conquering power. This is not a question between soldier and citizen, growing out of acts committed while war was flagrant, in the course of the soldier's service, as in Hughes v. Litsey, 5 Am. L. lieg. 148. Nor is it a ques- tion of prize or capture durante hello, concerning property taken or right acquired during the progress of war, as in CooUdge v. Guthrie, 8 Id. 22; and in Elphinstone v. Bedreechxim, 1 Knapp, P. C. C. 300, where the court expressly says that the capture was made nondum cessant hello. The indebtedness of the defendant in this case to the insurgent government of Virginia, was not one arising jure belli between bellig- erents, but by contract between friends. It is true that the succession of the United States to the insurgent government was an event durante hello; but that event having been completed, the indebtedness of the defendant to the succeeding government arising after the close of the CHAP. I.] UNITED STATES V. SMITH. 93 war, was not an indebtedness jure belli, but by contract. Being in- debted, the implied assumpsli of the defendant to pay, his promise to pay, is a common law obligation. A debtor may be liable in assumjmt to a creditor, but if by violence the creditor is killed, the debtor then becomes liable in assumpsit to the creditor's administrator. I do not think, therefore, with defendant's counsel, that this is a case of first impression. It is an action at common law, founded upon a contract arising of common law implication, and as such, is not new or unprecedented. Nor is the objection of defendant's counsel tenable, which they take on the score of the jurisdiction of the court. The circuit courts of the United States have original cognizance "of all suits at common law, etc., etc., where the United States is plaintiff" (see clause 3 of section 629, U. S. E. S.), or in other words " of all suits of a civil nature at common law or in equity, etc., etc., in which the United States is plaintiff, etc., etc. " (Section 1, Jurisdiction Act of March 3d, 1875). These definitions of jurisdiction do not refer to the claim sued upon, its character or its origin, but only to the nature and form of the action which may be made the instrument for establishing the demand. A citizen of the United States, indebted to a citizen of France by a contract made in Paris, may be sued in the Circuit Court of the United States for the district in which he resides in this country. His demand is not a common law demand, but if sued upon it, in an action at law, the stdt is in form and character a suit at common law. He may be sued in assumpsit, if the demand be such as to make that form of action proper. So a demand arising durante hello, and not arising at common law, may be sued upon in an action at common law in this country, either in a State or Federal court. Under whatever law, whether of peace or war, of the domicile or foreign jurisdiction, the obligation of the defendant arises, the suit proper to enforce it accord- ing to the forms of action employed in England or this country, whether it be at common law or in equity, may be brought in the Federal courts, if the courts have jurisdiction of the parties to the suit. As to the proposition of defendant's coimsel, that this money is a trust fund, and the execution or abuse of the trust must be examined into by Virginia alone, — that is a question not yet arising in the cause, and it does not appear how it will arise. This State has, by adopting the report of the committee of 1865, and by long inaction, declined to look into or after the trust, if such it be. The defendant has put in no plea in the cause claiming that he has discharged his fiduciary obligations in respect to the debt as a trust fund. And it is not until all action of the sort has seemed to have become wholly im- probable, that the United States have now moved in the matter. 9-4 STATES, [part I. As a preliminary step to devoting the fund to its trust purposes, it would seem incumbent tliat the person charged with the legal title in trust should proceed to collect it in, and as the legal title, by the law of nations and of the land, is in the United States, we have a right to presume that, if the fund bears the character of a trust, the United States will, after collecting it, give to it the direction required by the trust. As to the proposition of defendant's connsel, that the war of the United States was not against the insurgent government of Virginia, and that the overthrow of that government was not a conquest, but only the setting aside of one government and the assumption of its functions by another, it can hardly find acceptance in view of the facts of history. The event happened at the close of a frightful war, and was directl}'' produced by arms, and by armies in the field. The power of the United States was directed against the insurgent State govern- ments, even more than against their confederated authorities. The war was conducted for the overthrow of those governments. When they were crushed, the war ceased, and the historical facts of conquest cannot be changed or obliterated by the employment of theoretic paraphrases in speaking of it. As to the insurgent State govern- ments, it was a conquest, and was followed by the legal results of conquest. This debt is due. It is due to some rightful claimant, and I think the law makes it sufficiently apparent who that claimant is. The demurrer must be overruled.^ 1 " In war, the public property of an enemy captured on land becomes, for the time being at least, the property of the conqueror. No judicial proceeding is necessary to pass tiie title. Usually the ultimate ownership of real property is settled by the treaty of peace, but so long as it is iield and not surrendered by a treaty or otherwise it remains the property of the conqueror. " This well-settled principle in the law of war was recognized by this court in United States V. Huc/cabee, 16 Wallace, 434, as applicable to the late civil war. At the close of that war there was no treaty. Wiien the insurrection was put down tlie govern- ment of the insurgents was broken up and there was no power to treat with. Hence the title to all captured property of the confederate government then became absolute in the United States" (Chase, C. J., in 2'itus v. U. S., 1874, 20 Wall. 475, 481, 482). See, also, Whitfield v. U. S., 1875, 92 U. S. 165. In the case of tlie Texan Bonds (1 Wharton's Digest, 20-23), Mr. Upham, commis- sioner, in delivering his opinion, said : — " The matter of tlie indebtedness of Texas was a distinct subject of agreement by the terms of the union. According to those terms tlie vacant and unappropriated lands witiiin the limits of Texas were to be retained by her, 'and applied to the payment of the debts and liabilities of the Republic of Texas, and the residue of the lands, after discharging these debts and liabilities, was to be disposed of as the State might direct, but in no event were the debts and liabilities to become a charge upon the Government of the United States.' (U. S. Statutes at Large, vol. 5, p. 798.) " The lands of Texas were thus specifically set apart for the payment of the debts CHAP. I.] THE UNITED STATES V. PERCHEMAN-. 95 (b) Effect on Private Rights. THE UNITED STATES v. PERCHEMAK Supreme Court of the United States, 1833. (7 Peters, 51.) Juan Percheman claimed two thousand acres of land Ijdng in the territory of Florida, by virtue of a grant of the Spanish governor of that province made in 1815. After the cession of Florida to the United of Texas, by agreement of the two governments, in addition to any separate pledge Texas had previously made of this class of propert}', for tlie payment of her debts. " The United States subsequently, by act of Congress, on the 9th of September, 1850, on condition of the cession of large tracts of these lands, agreed to pay Texas $10,000,000, but stipulated 'that f^.o.OOO.OOO of the amount should be retained in tiie United States treasury until creditors, holding bonds, for which duties on imports were specifically pledged, should file releases of all claims against the United States." (U. S. Statutes at Large, vol. 9, ch. 49, p. 446.) "It thus appears that the United States has acted, from the outset, in concert with Texas, in causing express provision to be made for the payment of these debts. "A difficulty early arose in carrying the law, above cited, into eflfect, for tlie reason that the pledge of payment of the debts of Texas was made generally upon her reve- nues, and was not specific ' on imposts ' eo nomine, and for the f urtlier reason that doubts arose wliether any portion of the debts could be paid under this contract, unless the whole could be discharged." (Report of the commission of claims under the convention of 1853.) Mr. Dana saj's of tliis case: — " It certainly would not be satisfactory to say that tlie United States discharges its obligation to the creditors of Texas, to whom her customs were pledged, by paying only the amount of the customs received. " The United States determines what those duties shall be, in reference to the in- terest and policy of the whole republic. The condition of Texas is changed by her annexation. The new government has a large control over the material resources of the inhabitants, in the way of internal revenues, excise or direct taxation, in its demands on the services of the people, and in the debts it can impose ; in fact, the entire public system of Texas has passed into otlier hands, and no such state of tilings any longer exists as that to which the creditor looked. It may be better or worse, but it is not the same; and, if the duties laid by the United States and collected in Texan ports did not in fact pay the debts, it would be unjust for the United States to limit the payment of the creditor to them. The truth is, by the annexation the United States changed the nature of the thing pledged, and is bound generally to do equity to the creditor." (Dana's Wheaton, note 18.) Mr. Lawrence says: "The liability of the United States for the debts of Texas came before the mixed commission, under the convention with England of 1853, in the case of a British subject who had received before the annexation, bonds secured by a pledge of the faith and revenue of Texas. It was disposed of on the ground that never having been made a subject for international interposition against the United States, it dill not fall within the scope of the convention; but it seemed to be admitted that 96 STATES. [part I. States by the treaty of 1819, this claim was rejected by the United States commissioners appointed to settle claims to territory in Florida; and the question then came before the court for decision, from the opinion of which the following extract from page 86 is given : Mr. Chief Justice Marshall delivered the opinion of the court :^ — the liability of tlie United States, if any, arose, not from the merger, but from the transfer, under the Constitution of tiie United States, to the Federal Government of the duties on imports. It was said by the American commissioner, in announcing his opinion, that it was an inaccurate view of the case to regard this anne.xation as an entire adoption of one nation and its revenues by another. 'Texas is still a sovereign State, with all the rights and capacities of government, except that her international relations are controlled by the United States, and slie has transferred to the United States her right of duties on imports.' " And he seemed to consider anj' claim arising from the previous pledge of such duties to be limited to their value. The British commissioner held that the obligation of Texas to pay her debts is not in dispute, nor has it been argued tliat the mere act of her annexation to the United States has transferred her liabilities to the Federal Government, though certainly, as regards foreign governments, the United States is now bound to see that the obligations of Texas are fulfilled. It is the transfer of the integral revenues of Texas to the Federal Government that is relied on as creating the new liability."' (Decisions of the Commission of Claims under the convention of 1853, 405-420, Lawrence's Wheaton, ed. 1863, p. 54, note). See, also, Magoon's Law of Civil Government under Military Occupation (2d. ed. 1902) pp. 177-193 (especially at p. 190) ; 529-531 ; 630-GlG. When Lombard}' and Venice were respectively acquired by Italy at the close of the wars of 1859 and 1860 with Austria, the Italian government assumed no part of the general debt of Austria, but only the local debts of the ceded provinces. So, in tiie case of the cession of Alsace and Lorraine to Germany in 1871, no part of the French national debt was assumed by Germany on their account. (Bluntschli : Droit International, Article 48.) On the other hand, on the seizure of Schleswig-Holstein by Prussia, in 1866, the debt of Denmark was divided between that country and Schleswig-Holstein; "and in the same year, Italy, by convention with France, took upon itself so much of the Papal debt as was proportionate to the revenues of the Papal provinces which it had appro- priated." (Hall's Int. Law, 104, note.) Tlie following passage states briefly the general doctrine of publicists : — "It is well to be understood, at a period when alterations in the constitutions of governments, and revolutions in states, are familiar, that it is a clear position of the law of nations, that treaties are not affected, nor positive obligations of any kind with other powers, or with creditors, weakened, by any such mutations. A state neither loses any of its rights, nor is discharged from any of its duties, by a change in tlie form of its civil government. The body politic is still the same, though it may have a dif- ferent organ of communication. So, if a state should be divided in respect to terri- tory, its riglits and obligations are not impaired ; and if they have not been apportioned by special agreement, those rights are to be enjoyeil, and those obligations fulfilled, by all the parts in common." (1 Kent's Com., 25.) — Ed. 1 That ]>art of the opinion is omitted which discusses the power of the conqueror to confirm and to regulate procedure to confirm inchoate titles to land. The case it- self as well as cases cited in the note clearly establish the right. — Ed. CHAP. I.] THE UNITED STATES V. PERCHEMAN. 97 " It may not be unworthy of remark that it is very unusual even in cases of conquest, for the conqueror to do more than to disphice . the sovereign and assume dominion over the country. The modern usage of nations, whicli has become law, would be violated ; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance ; their relation to their ancient sovereign is dissolved ; but their relations to each other, and their rights of prop- erty, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its ai^plication to the case of an amicable cession of territory ? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have remained the same as under the ancient sovereign. * * * "A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him. Lands he had previously granted were not his to cede. Neither party could so understand the cession. Xeither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property." ^ 1 Followed in: Jfiitua! Asso. Soc.v. Watts, 1816, 1 Wlieat. 279; Mitchel et al. v. U. S., 1835, 9 Pet. 711, 734-7:56, 749; Strotlier v. Lucas, 18.38, 12 Pet. 410; U. S. v. Clarke's Heirs, 1842, 10 Pet. 228; Airhart v. Massleu, 1878,98 U. S. 491 ; Kinkead V. U. S., 1893, 150 U. S. 483, to tlie effec;t tiiat fixtures attached to land pass with cession of land. Distinguished in: Garcia v. Lee, 18-38, 12 Pet. 511 ; U. S. v. Wifjfjins, 1840, 14 Pet. 334; U. S. V. Miranda et al, 1853, 16 Pet. 153; Chavez v. Chavez de Satichez, 1893, 7 New Mex. 58. Followed in State Courts: Hall v. Root, 1851, 19 Ala. 378; Teschemacher v. Thomp- son, IS61, IS Calif. 11, 22-25 (opinion of Field, C J.); Minturn v. Brower, 1864, 24 Calif. 644, 660 et seq.; Little v. Watson, 1850, 32 Mo. 214 ; May v. Specht et al., 1849, 1 Mich. 187; Sanborn v. Vance, 1888, 69 Mich. 224; Roussin v. Parks, 1844, 8 Mo. 528; Charlotte (of color) v. Chouteau, 1857, 25 Mo. 465, 478-479; U. S. v. Liirero, 1869, 1 New Mex. 422; Browning v. Brotvninrj, 1886, 3 New Mex. 371; Burnett v. Barnett, 1897, 9 New Mex. 205, 211-213. See especially, Leitmsdorfer v. Webb, 1857, 20 How. 176, infra. See brief note on Barnett v. Barnett, in 11 Harv. Law Rev. 343. — Ed. 98 STATES. [part I. THE UNITED STATES v. EEPEXTIGNY. Supreme Court of the United States, 1866. (5 Wallace, 211.) Mr. Justice Nelson delivered the opinion of the coiirt.^ The bill in this case was filed in the court below to recover posses- sion of a large tract of land of six leagues square, fronting on the River Ste. Marie, at the Saut, which connects the waters of Lake Superior with those of Lake Huron, in the State of ]\richigan. The grant of the land was made on the 18th October, 1750, by the gov- ernor and intendant-general of Canada (then called New France) to Louis De Bonne, a captain of infantry, and Count Repentigny, an ensign, in the French army. The complainants derive title under them. It was confirmed by the King of France the next year, on the 24th June, 1751. The grant was to De Bonne and Repentigny, their heirs and assigns, " in perpetuity by title of feof and seigniory," with all the customary rights belonging to that species of estate. Repentigny went into possession about the date of the grant, at the Saut, having about the same time received an appointment to command the military post established there. He constructed a small stockade fort, and made some improvements in connection with it, such as the clearing of a few acres of land and the erection of huts for the people with him, and continued thus engaged till 1754. When war broke out between France and England he was called away into active military service of the government, and never afterwards returned. De Bonne never took personal possession, or possession of any other character, except that derived from the transient occupation of his co-tenant. The bill was filed on the 9th January, 1861, one hundred and ten years since the date of the grant. This act of 1860, which authorizes the institution of these proceed- ings, was passed in pursuance of petitions to Congress by the repre- sentatives of the original grantees. The first notice to this government of any claim to the lands on their behalf was in the year 1825 or 1826, some seventy-five years after the date of the grant. Since then the subject has, from time to time, been brought to the attention of Con- gress, and finally disposed of by the passage of the act in question. The act, as we have seen, refers the claimants to the judiciary for relief, and prescribes the principles wliich shall govern it in hearing and adjudicating upon the case. They are — 1 Statement of facts of the case omitted. — Ed. CHAP. I.] THE UNITED STATES V. REPENTIGNY. 99 1. The law of nations. 2. The laws of the country from which the title was derived. 3. The principles of justice. 4. The stipulations of treaties. In the light of these principles, we shall proceed to an examination of the claim ; and, first, as to the claim of the representatives of Eepentigny, He was a native of Canada, and a captain in the French army at the close of the war, which terminated in the surrender of that province to the British forces, in 1760. His family was among the earliest emigrants to the country after possession had been taken by the King of France, and held high and influential positions in the government. Soon after the execution of the definitive treaty of peace of 1763, the Governor of Canada opened a correspondence with Repen- tigny to induce him to remain in the province, and become a subject of Great Britain, promising him protection and advancement in his profession. He was then about thirty-eight years of age. But he declined all the advances made to hira, and soon after left the country, by order of his superior officer, to take a command on the Island of Newfoundland, where the Indians were disturbing the settlers, and spent the rest of his life in the military service of France, having risen to the rank of Major-General and Governor of Senegal, on the Island of Goree, and its dependencies. He died in 1786, leaving a son Gaspard, an officer in the French naval service, from whom the present claimants descended, and who reside in the Island of Guadaloupe. The preliminary treaty of the 3d November, 1762, at the surrender of Canada, provided in the second article, in behalf of his Britannic majesty, that the French inhabitants, or others who would have been subjects of the Most Christian King, in Canada, may retire in all safety and freedom, wherever they please, and may sell their estates, pro- vided it be to his Britannic majesty's subjects, and transport their effects, as well as their persons, without being restrained in their emigration, under any pretence whatsoever, except debts or criminal prosecutions, — the term limited for this emigration being the space of eighteen months, to be computed from the day of the ratification of the definitive treaty. The definitive treaty of the 10th February of 1763 contained a similar article. The articles of capitulation at Montreal, dated 8th September, 1760, when the Canadas were given up to the British forces, secured to the inhabitants their property, movable and immovable ; and the proclama- tion of the king, under date of 7th October, 1763, pledged to his loving subjects of Canada his paternal care for the securitj' of the libert}- and property of those who are, or should become, inhabitants thereof. These pledges, both before and after the treaty, were but the recogni- 100 STATES. [part I. tion of the modern usages of civilized nations which have acquired the force of law, even in the case of an absolute and unqualified conquest of the enemy's country. But the rule is limited, as in the pledge of the king, in his proclamation to the inhabitants of the conquered terri- tory, to those who remain and become the subjects or citizens of the victorious sovereign, — those who, in the language of Chief Justice Marshall, change their allegiance, and where the relations to their ancient sovereign are dissolved. Speaking of the cession of Florida, he observed: "Had Florida changed its sovereign by an act contain- ing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new gov- ernment would have been unaffected by the change." United States V. Perchenian, 7 Peters, 51-87. Another rule of public law, kindred to this one is, that the con- queror who has obtained permanent possession of the enemy's country has the right to forbid the departure of his new subjects or citizens from it, and to exercise his sovereign authority over them. Hence the stipulation in the capitulation and treaties of cession providing for the emigration of those inhabitants who desire to adhere to their ancient allegiance, usually fixing a limited period within Avhich to leave the country, and frequently extending to them the privilege, in the meantime, of selling their property, collecting their debts, and carry- ing with them their effects. Now, in view of these principles, it is apparent that Eepentigny, having refused to continue an inhabitant of Canada, and to become a subject of Great Britain, but, on the contrary, elected to adhere in his allegiance to his native sovereign, and to continue in his service, deprived himself of any protection or security of his property, except so far as it was secured by the treaty. That protection, as we liave seen, was limited to the privilege of sale or sales to British subjects, and to carry with him his effects, at any time within eighteen months from its ratification. Whatever property was left unsold was aban- doned to the conqueror. Repentigny acted upon this view of his rights. Besides the property in question, he owned and possessed a seigniory situate above Montreal, on the River St. Lawrence, called La Chenay, wliich he sold to Colonel Christie, a British officer, and in the deed it is recited that he had a mind to go to France, and therefore, as allowed by the late treaty of peace, was disposed to sell, &c. Tliis was in 1766, although it appears that steps had been taken in respect to the sale at an earlier day. It is evident, also, that he had been engaged in nego- tiating for the sale of the seigniory in question, as in a memorial of his services presented to the chief of the bureau of the French col- onies, he states, under date of 1765, that the establishment, — referring CHAP. I.] THE UNITED STATES V. REPENTIGNY. 101 to tliat at the Saut Ste. Marie, — was burnt in 1762 by the Indians, at the time his attorney was negotiating at Montreal with the English for the sale of it. And, in 1772, in a communication to the French autliorities on the subject of military services and sacrifices, he observes : " I thought that after a lease of thirty years of services, fulfilled with honor in the colonies, and the sacrifice of a fortune more than reasonable, in leaving Canada, my native country, I should be able at forty-five years of age to claim a regiment in the colonies with- out too much ambition." And again, in answer to au intimation that the king would give him permission to retire, he observes : '•' If I had not calculated upon dying in the service, I should not have sacrificed more than four-fifths of my fortune, my well-being, and that of my family, in abandoning Canada, my country." And, further, in a communication to his government, supposed to be about 1773 or 1774, he observed : " The cession of Canada, my country, has overturned a fortune more than moderate, which I could preserve only by an oath of fidelity to the new master, which was too hard for my heart. The offers of the English ministry made to my eldest brother to retain us in their service are unequivocal proofs of the con- sideration we enjoyed in Canada." Repentigny was a gentleman of education and high intelligence. He rose to the rank of general in the army, and aspired to that of Marshal of France; was Governor of Senegal and its dependencies, and, as is obvious from his correspondence with his government, com- prehended fully the principles of public law which forfeited all his property left unsold at the time he retired from Canada, under the provisions of the treaty. He died in 1786, twenty-three years after the date of the treaty ; and, during all this time, not only set up no claim to this seigniory, but, on the contrary, repeatedly, as we have seen, urged the patriotic sacrifice of it to his government, as a merit for her favorable con- sideration of himself and family. And we may add that his only son, an officer in the French navy, and who died in 1808, at the age of fifty- five, also never set up any claim or right to it to this government, and the first notice she had of it, so far as the record discloses, was in 1824 or 1825, from the descendants of this son residing in the Island Guada- loupe, and who are the complainants in the suit.^ The purposes for which this grant was made, and the conditions annexed to it, are specifically stated upon its face. It recites tliat Eepentigny and De Bonne — entertaining the purpose of establishing a seigniory — had cast their eyes upon a place called the Saut Ste. 1 That part of the opinion dealing with the moiety claimed under De Bonne is omitted. — Ed. 102 STATES. [part I. Marie ; that a settlement in that place would be most useful for voy- ageurs from the neighboring ports and those from the western sea, who could there find a safe retreat, and by proper precautions, which the petitioners proposed to take, would destroy in those parts the trade of Indians with the English ; and (after the words of concession of six leagues in front on the river at the Saut, and six in depth) it pro- vides that the grantees shall hold and possess the same by themselves, and cause the same to be held and possessed by their tenants, and cause all others to desert and give up the land, and " in default thereof the present concession shall be and shall remain null." In the deed of confirmation, by the king, is the following clause : "That they (the grantees) improve the said concession, and use and occupy the same by their tenants. In default thereof the same shall be reunited to his majesty's domain;" and, in a subsequent clause: "His majesty ordering that the said concession shall be subject to the conditions above expressed, without any pretext that they should not have been stipulated in the said concession." There is a letter in the record from the Governor-General of Canada, under date of October 5, 1771, to the government at Paris, giving the reasons for this concession. He writes : " I had the honor to let you know (by a former letter) that in order to thwart the movements that the English do not cease to make to seduce the Indian nations of the north, I had sent Sr. Chevalier Eepentigny to the Saut of Ste. Marie, to make there an establishment at his own expense, and to build a palisade fort to stop the Indians of the northern posts, who go to and from the English, to intercept the commerce they carry on, and to stop and prevent the talks, and also the presents which the English send these nations to corrupt them and get them in their interests. Moreover, I had in view in that establishment to secure a retreat to the Erench voyageurs, especially those who trade in the northern parts, and for the purpose to clear the lands which are proper for the pro- duction of Indian corn, and to sustain thereby the victualling the people of the said post, and even to the needs of the voyageurs." And in a letter, by the minister at Paris, to a high official in Canada, he alludes to that of the governor above referred to, and observes, " In one of my despatches last year to the governor, I had intimated to him that I liad approved the construction of a fort at the Saut of Ste. Marie, and the project of cultivating the land there, and raising cattle. We cannot but approve the dispositions which have been made for the execution of that establishment, but it must be considered that the cultivation of the lands, and the multiplication of cattle must be the principal object, and that trade must be only accessory. As it can liardly be expected, he observes, that any other grain than corn will CHAP. I.] THE UNITED STATES V. REPENTIGNY. 103 grow there, it is necessary, at least for a while, to stick to it, and not to persevere stubbornly in trying to raise wheat." The purposes and conditions of the grant are too obvious to require further comment. It is admitted by the learned and intelligent jurists of Canada, who have been examined as witnesses in this case, that the legal liabilities to seignioral reunion to the royal domain exists in cases of the non- fulfilment of the conditions of settlement, and which is rigorously enforced if there be no cleared lands and no settlers on the seigniory. That the right to resume the grant applies only to unimproved seign- iories, to all those that have been neglected, as it respects the estab- lishment of tenants upon the lands, and the consequent absence of cultivation, such as clearing the forests, converting them into fruitful fields, laying out and working public roads, building mills for the convenience of the tenants, and the like. We agree to this interpretation of the conditions. We cannot, however, assent to the next position taken, namely, that the posses- sion and improvement of Repentigny, during the four years that he occupied the seigniory at the Saut, should be regarded as a fulfilment of this condition. It contained over two hundred thousand acres of land, and the whole of the improvements claimed in his behalf, besides the stockade fort, consisted in the erection of three or four temporary huts for laborers, the clearing of a few acres of land around the fort, and planting the same with Indian corn. His stock consisted of seven head of cattle and two horses, and, since 1754, over a century before the commencement of this suit, there has been no possession or occu- pancy by either of the grantees, or their descendants, tenants, or assigns, or further trace of improvements. The primeval forest re- mained unbroken till settlers entered upon it and established them- selves under the protection of the laws, and regulations in pursuance thereof, of the United States. The United States succeeded to all the rights to this territory that existed in the King of France, under the treaty of 1783, with Great Britain, at the close of the Revolution. The United States then became the lord paramount of this seigniory, and were thereby invested with the power to deal with the seigniorial estate, the same as the King of France, had it continued under his dominion ; and we agree that before a forfeiture or reunion with the public domain could take place, a judicial inquiry should be instituted, or, in the technical lan- guage of the common law, office found, or its legal equivalent. A legislative act, directing the possession and appropriation of the land, is equivalent to office found. The mode of asserting or of assuming the forfeited grant, is subject to the legislative authority of the gov- 1 104 STATES. [part I. ernment. It may be after judicial investigation, or by taking posses- sion directly, under the authority of the government, without these preliminary proceedings. Fairfax v. Hunter, 7 Cranch, 603, 622, 631 ; Smith V. Maryland, 6 id. 286. In the present instance we have seen the laws have been extended over this tract, the lands surveyed, and put on sale, and confirmed to the occupants or purchasers, and, in the meantime, an opportunity given to all settlers and claimants to come in before a board of commissioners and exhibit their claims. This is a legislative equivalent for the reunion by office found. Upon the whole we are quite satisfied that, consistent with the principles, in the light of which we are directed by the act of Congress to examine into the validity of this title, the complainants have failed to establish it. We have felt justified in applying to the case these principles with reasonable strictness and particularity, as it is nearly, if not wholly, destitute of merit. Decree of the court below reversed, and case remanded with di- rections to Dismiss the bill.^ (c) Effect on Law? BLANKARD v. GALDY. King's Bench, 1693. (2 5a/Ae/f/,411.) In debt on a bond, the defendant prayed oyer of the condition, and pleaded the statute E. 6, against buying offices concerning the admin- istration of justice ; and averred, That this bond was given for the purchase of the office of provost-marshal in Jamaica, and that it con- cerned the administration of justice, and that Jamaica is part of the revenue and possessions of the Crown of England : The plaintiff replied, that Jamaica is an island beyond the seas, which was conquered from the Indians and Spaniards in Queen Elizabeth's time, and the inhabi- tants are governed by their own laws, and not by the laws of England : The defendant rejoined, That before snch conquest they were governed by their own laws ; but since that, by the laws of England : Shower 1 This case has been repeatedly cited and approved by tlie Supreme Court, most forcibly and aptly perliaps in Ntw York Indians v. U. S., 1897, 1,25. For the ques- tion of citizenship of inhabitants of the provinces ceded by Spain to United States in consequence of tiie recent Spanish-American war, see Art. IX., of the Treaty of Paris, 1898, and Magoon's Military Occupation, 173-177.— En. 2 The cases and notes in this subsection are through the courtesy of Professor Beale printed from his Cases on the Conflict of Laws (1900), vol. 1, pp. 65-84. — Ed. AiS. - )\\ ?>"" \^ cvM Imam) w*^' .jj. j^ ^ CHAP. I.] BLANKARD V. GALDY. 105 argued for tlie plaintiff, that on a judgment in Jamaica, no writ of error lies here, but only an appeal to the Council; and as they are not represented in our Parliament, so they are not bound by our stat- utes, unless specially named. Vide And. 115. Femberton contra argued, that by the conquest of a nation, its liberties, rights, and prop- erties are quite lost; that by consequence their laws are lost too, for the law is but the rule and guard of the other; those that conquer can- not by their victory lose their laws, and become subject to others. Vide Vaugh. 405. That error lies here upon a judgment in Jamaica, which could not be if they were not under the same law. Etjier Holt, C. J. & Cur. — First, in case of an uninhabited country newly found out by English subjects, all laws in force in England are in force there ; so it seemed to be agreed. Secondly,- Jamaica being conquered, and not pleaded to be parcel of the kingdom of England, but part of the possessions and revenue of the Crown of England, the laws of England did not take place there, until declared so by the conqueror or his successors. The Isle of Man and Ireland are part of the possessions of the Crown of England ; yet retain their ancient laws : That in Davis, 36, it is not pretended that the custom of tanistry was determined by the conquest of Ireland, but by the new settlement made tliere after tlie conquest : That it was im- possible the laws of this nation, by mere conquest, without more, should take place in a conquered country; because, for a time, there must want officers, without which our laws can have no force : That if our law did take place, yet they in Jamaica having power to make new laws, our general laws may be altered by theirs in particulars ; also they held, that in the case of an infidel country, their laws by conquest do not entirely cease, but only such as are against the law of God ; and that in such cases where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity. Judgment pro quer} ^ Another report of the same case may be found in 4 Mod. 222. In that case the court is reported to have said : " And therefore it was held, that Jamaica was not gov- erned by the laws of England after the conquest thereof, till new laws were made : for they had neither sheriff nor counties ; they were only an assembly of people which are not bound by our laws, unless particularly mentioned. In Barbadoes all freeholds are subject to debts, and are esteemed as chattels till the creditors are satisfied, and then the lands descend to an heir; but the law is otherwise here; which shows that thougli that island is parcel of the possessions of England, yet it is not governed by the laws made here, but by their own particular laws and customs." Ace. Earl Derby's Case, 2 And. 116; Mem. 2 P. Wms. 75. See Cross v. Harrison, 16 How. 164; Airhart v. Massieu, 98 U. S. 491. — En. For the effect of settlement of India on Hindoo, and the introduction of English 106 STATES. [part I. Emerson, J., in First National Bank v. Kinner, 1 Utah, 100 (1873). In American Ins. Co. v. Canter, 1 Pet. 511, the court, by Judge Mar- shall, say substantially, that the laws of Florida, as they were when the Territory was ceded, so far as not inconsistent with the Consti- tution and Laws of the United States, continued in force until altered by the newly created power of the State. (See, also, United States v. Powers, 11 How. 570 ; Strothers v. Lucas, 12 Pet. 410, 436.) This law, see Advocate- General v. Ranee Surnomoye Dossee, 1863, 2 Aloore's P. C, N. s., 22. (Beale, 67). In considering wliether and in how far the common law of England was introduced into and became a part of the law of tlie colonies (Massachusetts) Chief Justice Shaw says : " We do not accede to the proposition, tliat tlie present existence and effect of the whole body of law, which existed before the Constitution, depends solely upon this provision of it. We take it to be a well-settled principle, acknowledged by all civilized states governed by law, that by means of a political revolution, by which the political organization is changed, the municipal laws, regulating their social relations, duties, and rights, are not necessarily abrogated. Tiiey remain in force, except so far as they are repealed or modified by tlie new sovereign authority. Indeed, the existence of this body of laws, and tiie social and personal rights dependent upon them, from 1776, wlien the Declaration of Independence was made, and our political revolution took place, to 1780, when this Constitution was adopted, depend on this principle. The clause in the Constitution, therefore, though highly proper and expedient to remove doubts, and give greater assurance to the cautious and timid, was not necessary to preserve all prior laws in force, and was rather declaratory of an existing rule, than the enactment of a new one. We think, therefore, it should have such a construction as best to carry into effect the great principle it was intended to estabHsh. " When our ancestors first settled this country, they came here as English subjects; they settled on the land as English territory, constituting part of the realm of England and of course governed by its laws ; they accepted charters from the English govern- ment, conferring both political powers and civil privileges ; and the'y never ceased to acknowledge themselves English subjects, and never ceased to claim the rights and privileges of English subjects, till the revolution. It is not, therefore, perhaps, so accurate to say that they established the laws of England here, as to say, that they were subject to the laws of England. When they left one portion of its territory they were alike subject on their transit and when they arrived at another portion of the English territory ; and therefore always, till the Declaration of Independence, they were governed and protected by the laws of England, so far as those laws were ap- plicable to their state and condition. Under this category must come all municipal laws regulating and securing the rights of real and personal property, of person and personal liberty, of habitation, of reputation and character, and of peace. The laws designed for the protection of reputation and character, and to prevent private quar- rels, affrays, and breaches of peace, by punishing malicious libel, were as important and as applicable to the state and condition of the colonists as the law punishing violations of the rights of property, of person, or of habitation; that is, as laws for punishing larceny, assault and battery, or burglary. Being part of the common law of England, applicable to the state and condition of the colonists, they necessarily applied to all English subjects and territories, as well in America as in Great Britain, and so continued applicable till the Declaration of Independence." {Commonweallh v. Chapman, 1848, 13 Met. 68; Beale, 72-76.) — Eu. CHAP. I.] BLANKARD V. GALDY. 107 appears to be the settled doctrine in regard to conquered and ceded Territory iu the absence of special treaty stipulation. It applies to territory acquired from Mexico, since the treaty of Guadaloupe made no special provision on the subject. Utah was embraced iu that ac- quisition. As in Florida the pre-existing law was Spanish, so in Utah, it was Mexican, and in both cases the laws were derived mainly from the laws of Home. In neither did the English common law, or the Statute of Frauds, prevaiL Congress made no special change, and the Territorial Legislature, upon whom authority was conferred, have made no express enactment upon the subject. This Territory was first settled in ISt", and from that time up to the acquisition and treaty in 1848, the settlers were comparatively few in number. There were no settled laws, usages, and customs among them. They came here as American citizens, under the flag, and claiming the protection of the United States Government. The particular class of persons forming the great, if not the entire bulk of emigrants, claim to have furnished troops from among their own numbers to assist this Government in its war against Mexico. At the time of the acquisition and treaty they could not claim Mexi- can citizenship, and have never adopted its laws and customs. Soon after the change of sovereignty by the treaty, emigrants in large numbers flocked in from the States and surrounding Territories, and for many years there has been an organized community. "When we turn to the communities from whence the emigrants pro- ceeded, we find that they differed one from another, more or less, in regard to their laws and institutions. No two ai'e alike. In the most, it is true, many common-law principles and doctrines were in force. Still, the body of the common law iu each was peculiar to the particular State, and it was rather the common law of the State than the English common law. In some, the English statutes had been received as common law ; in others, not. These diversities make it impossible to assume that any specific body of the common law was transplanted to the Territory by the fact of immigration. But one course was open, and that was for the whole body of the people to agree, expressly or tacitly, upon a common measure. It was to be expected that the emigrants would not be contented with the loose and alien institutions of an outlying Mexican department, and they have not been. They have tacitly agreed upon maxims and principles of the common law suited to their conditions and consistent with the Constitution and laws of the United States, and they only wait recognition by the courts 108 STATES. [part I. to become the common law of the Territory. "When so recognized, they are laws as certainly as if expressly adopted by the law-making power. CHAPPELL T. JARDINE. Supreme Court of Errors of Coxxecticct, 1884. {Reported 51 Connecflciit, 64.) Park, C. J.^ This is a suit for the foreclosure of certain mortgaged premises, constituting an island, known as Ram Island, in Long Island Sound. The complaint alleges that the laud mortgaged, at the time the deed was given, lay in the town of Southhold, Suffolk County, in the State of Xew York, and it is averred that the mortgage was re- corded in the office of the clerk of Suffolk County in that State. It is further alleged that Ram Island, by the recent establishment of the boundary line between the State of Xew York and this State, has become a part of the town of Stonington in this State. The complaint is demurred to, so that the averment stands admitted that the island was, when the mortgage was made, a part of the State of Xew York. We have heretofore held {Elphick v. Hojfman., 49 Conn. 331) that the boundary agreed upon by the joint commission of the two States and established by the legislative acceptance of both States, was to be regarded as presumably a designation and establishment of the pre- existing boundary line which had become lost, and not as the establish- ment of a new line, leaving the matter open to proof in special cases. If we should apply that rule here, and consider the island in question as having been legally a part of this State when the mortgage was made, we should at once encounter another question of a serious nature. There can be no question that whatever has been the de jure jurisdic- tion over the island, it has been for many years within the de facto jurisdiction of the State of New York; and we should be compelled to determine the legal effect upon this mortgage of that de facto jurisdiction. We have thought it as well, therefore, to take the case as the parties have themselves presented it, the plaintiff b}' the averments of his com- plaint and the defendants by the admissions of their demurrer, and regard the island in question as having been within the State of Xew York when the mortgage was made, and afterwards brought within this State by the establishment of the boundary line. Indeed, as the 1 Part of tlie opinion is omitted. — Ed. CHAP. I.] CHAPPELL V. JARDINE. 109 proceeding is in error, we cannot properly govern ourselves by anything but the record as it comes before us. And in treating the island as within the State of New York when the mortgage was made we are regarding the contract and the right of the parties under it, precisely as they themselves understood them at the time. The mortgaged premises having been in the State of New York when the mortgage was made, it is of course to be governed in its construc- tion and effect by the laws of that State then in force. In McCormlck \. SuU'ivan, 10 Wheat. 192, the court say: "It is an acknowledged principle of law that the title and disposition of real property is exclu- sively subject to the laws of the country where it is situated, which can alone prescribe the mode by which a title to it can pass from one per- son to another." The same doctrine is held in United States v. Cvosbij, 7 Cranch, 115, Kefr y. 2Ioon, 9 Wheat. 565, Darby v. Mayer, 10 id. 465, and in many other cases. Indeed the doctrine is unquestioned law everywhere. Now, according to the laws of the State of New York then and still in force, a mortgage of real estate creates a mere chose in action, a pledge, a security for the debt. It conveys no title to the property. The claim of the mortgagee is a mere chattel interest. He has no right to the possession of the property. The title and seisin remain in the mortgagor, and he can maintain trespass and ejectment against the mortgagee, if he takes possession of the property witliout the consent of the mortgagor. This appears clearly from the following cases.^ It follows, therefore, that while the land in question remained in the State of New York, it was incumbered by a mortgage of this character ; and when it came into this State it bore with it the same burden pre- cisely. There was nothing in the change of jurisdiction that could affect the contract of mortgage that had been made between the parties. The title to the property continued to remain in the mortgagor, and it remains in him still. This is clear. The laws of this State could not make a new contract for the parties or add to one already made. They had to take the contract as they found it. Now, it is clear that there is no remedy by way of foreclosure known to our law which is adapted or appropriate to giving relief on a mort- gage of this character. Our remedy is adapted to a mortgage deed which conveys the title of the property to the mortgagee, and when the law day has passed, the forfeiture, stated in the deed, becomes absolute 1 The learned judge here cited nnd discussed the following cases : Gardner v. Heartt, 3 Den. 232; Power v. Lester, 23 N. Y. 527; Timm v. Marsh, 54 N. Y. 599; Jackson V. Willard, 4 Johns. 42; A star v. Hot/t, 5 Wend. 603; Korlright v. Cady, 21 N. Y. 343; Merritt v. Bartholick, 36 N. Y. 44. —Ed. 110 STATES. [part T. at law, and vests a full and complete title in the mortgagee, with the exception of the equitable right of redemption, which still remains in the mortgagor. The object of the decree of foreclosure is, to extin- guish this right of redemption if the mortgage debt is not paid, by a specified time. The decree acts upon this right onl}". It conveys nothing to and decrees notliing in the mortgage if the debt is not paid. After the law day has passed the right of redemption becomes a mere cloud on the title the mortgagee then has, and when it is removed his title becomes clear and perfect. Phelps v. Sage, 2 Day, 151 ; Roath V. Smith, 5 Conn. 136 ; Chamberlin v. Thompson, 10 id. 2-44 ; Porter V. Seeley, 13 id., 564 ; Smith v. Vincent, 12 id., 1 ; Doton v. Russell, 17 id. 151 ; Cross v. Robhiso7i, 21 id. 379 ; Dudleij v. Caldwell, 19 id. 218 ; Cohvell v. Warner, 36 id. 224. What effect would such a decree produce upon a mortgage like the one under consideration, where the legal title remains in the mortgagor, and nothing but a pledgee's interest is in the mortgagee, even after the debt becomes due ? It could only extinguish the right of redemption, if it could do that. It could not give tlie mortgagee the right of pos- session of the property, for the mortgagor has still the Legal title, which cari'ies with it the right of possession. It would require another pro- ceeding in equity, to say the least, to dispossess him of that title, and vest it in the mortgagee. Hence it is clear that full redress cannot be given the plaintiff in tliis proceeding. But the plaintiff has a lien on the property in the nature of a pledge to secure payment of the mortgage debt. And although our remedy of strict foreclosure may not be adapted to give redress to the plaintiff through the medium of such a lien, still a court of equity can devise a mode that will be appropriate ; for it would be strange if a lawful lien upon property to secure a debt could not be enforced according to its tenor by a court of chancery. It is said that every wrong has its remedy ; so it may be said that every case requiring equitable relief has its corresponding mode of redress. We have no doubt that a court of equity has the power to subject the property in question to the pay- ment of this debt, upon a proper complaint adapted to the purpose. "When personal property is pledged to secure the payment of a debt, it may be taken and sold, that payment may be made, after giving the pledgor a reasonable opportunity for redemption. So here, we think a similar course might be taken witli this property. Such a course would fall in with the original intent of the parties, and \^ith the civil code and mode of procedure of the State of Kew York. Modes of redress in that State have of course no force in this State, but such a mode of procedure seems to be adapted to a case of this character. And we further tliink that on an amended complaint, setting forth CHAP. I.] MORTIMER l\ NEW YORK ELEVATED RAILROAD CO. Ill all the essential facts, and praying that if there shall be a default in redeeming the property during such time as the court shall allow for redemption, then the right of redemption shall be forever foreclosed, and the legal title and possession of the property be decreed in the moi'tgage, such course might be taken. We think either of the modes suggested might be pursued ; but inas- much as the course which has been taken leaves the legal title and pos- session of the property in the mortgagor, we think the court erred in holding the complaint sufficient, and in passing the decree thereon. There is error in the judgment appealed from, and it is reversed, and the case remanded. - In this opinion the other judges concurred. MOKTIMER V. NEW YORK ELEVATED RAILROAD CO. Superior Court of the City of New York, 1889. {Reported 6 New York Supplement, 898.) Ereedman, J. The claim made in this case by and on behalf of the elevated railway companies is that the absolute fee of the street known as the "■ Bowery " was, prior to the surrender of the Dutch forces to the English in 1664, in the Dutch government; that such fee thereafter went to the State or to the city of New York so abso- lutely that abutting owners never had, and do not now have, any ease- ment of any kind in said street, and that, the elevated railway running through the Bowery having been constructed with the consent of both the city and the State, neither its owners nor its lessees are liable for any injury inflicted upon abutting property by reason of the construc- tion and operation of the railway. The claim of the English that they were the owners, by right of discovery, under governmental authority, of the land of which the present city of New York forms a part, and that this gave them such exclusive ownership that the Dutch government acquired no title to the land which can be recognized, has been fully set forth in the opin- ion of Judge Truax. I concur in his remarks as far as they go, but wish to add the following, viz. : — The claim of the English, it is true, has occasionally been criticised on the ground that neither of the Cabots landed in or near New York, or saw the coast of New York. The right of discovery is not recog- nized in the Roman law unless followed by occupation, or unless the intention of the sovereign or State to take possession be declared or made known to the world. And it must be conceded that modern 112 STATES. [part I. diplomatists and publicists incline to the opinion that mere transient discovery amounts to nothing unless followed in a reasonable time by occupation and settlement, more or less permanent, under the sanction of the State. But the question in the case at bar is not to be decided according to the rules of the international law of the present time. It is a question purely between the public authorities of the State of New York and citizens of the same State, and as such it is controlled by the decisions referred to by Judge Truax, to the effect that ■what the English did do was siifRcient to give them title by discovery, and that such title is superior to the Indian title. These decisions proceeded upon the theory that the claim of the Dutch was contested by the English from the very start, not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title; and that the claim of the English was finally decided in their favor by the sword. That being so, it follows that, in contemplation of present law, neither the Dutch nor the Eoman law ever prevailed in the State of ISTew York de jure and that the common law of England must be deemed to be the origi- nal source of all our law. And it further follows that the foundations of the rights of owners of land abutting on a street laid out while the Dutch were in possession, as against the city or the State of i^ew York, rest upon the English common law, and that they are not to be affected by the Dutch or Roman law. Reported cases in which the validity of Dutch grants was upheld between individuals have no application to the present controversy. Now, under the English common law, the presumption is that the owners of lands lying on a highway are the owners of the fee of the highway ; that the owners on each side of the highway own the soil of the highway in fee to the centre of the highway ; and that the rights of the public in and to the highway are no higher or other than those of a mere easement. Wager v. Railroad Co., 25 N. Y. 529. This presumption applies as well to the streets of a city as to a country highway. Bissell v. Railroad Co., 23 N. Y. 61. This presumption of law is founded on the supposition that the way was originally granted by the adjoining owners in equal proportions. Watrous y. Soxithworth, 5 Conn. 305. But the presumption may be rebutted by proof to the contrary, and it is rebutted by the production of a deed under which the owner derives title granting the land to the side of the street only. Under the operation of this rule, and there being no proof of alienation or escheat requiring a different conclusion, it must be assumed in this case that the original grantors from whom plaintiffs' title has been derived owned the soil of the Bowery in front of the premises in suit to the centre of the street. But even if the title of CHAP. I.] MOIITIMER V. NEW YORK ELEVATED RAILROAD CO. 113 the English rested not iu discovery, but iu conquest, and the English, upon the surrender by the Dutch in 1G64, acquired from the Dutch a title to the then existing streets as absolute as under the Eoman law the title of the government to a military highway was, the fact would not improve the position of the defendants. Upon receiving such title the English could do with it what they pleased. They were not bound to enforce it against abutting owners, as tlie Dutch government might have enforced it. The presumption is that they took the title and the streets to be held by them according to their own laws, and as matter of fact they thereafter so dealt with said streets as to admit of no other conclusion. The province having been granted by Charles II. to his brother, the Duke of York, by the charter of 1664, several months before the surrender to Sir Eichard Xicolls, the grant,' in order to remove all doubt as to its validit}-, was afterwards confirmed by the charter of 1674, also granted to the Duke of York. The object of both charters was to enaV)le the Duke of York to plant a colony on this continent. The charter of 1604, issued under the great seal of Eng- land, contained a provision that the statutes, ordinances, &c., to be established by the Duke in the new country, " should not be contrary to, but as nearly as might be agreeable to, the laws, statutes, and government of the realm of England." This charter was, therefore, in itself, an explicit declaration of the King's will that the laws of England should be established in the colon}^, and that the laws of the Dutch settlers should not be retained. The consequence was that, having obtained the lands, the English held them, not under the Dutch or the civil law, but under the common law of their own coun- try. English law governed English land, so that, even if an absolute title to a street was obtained, the street was ever thereafter treated as an English street, under the common law.^ 1 Tlie learned judge then expressed the opinion that by subsequent acts of the Pro- prietor and of the State tlie city lost its rights, if any, to the legal fee. In his concurring opinion Truax, J., said : " I am of tiie opinion that the fee of the Bowery, and of the other streets in the city of New York that are known as Dutch streets, never was in the Dutch government; and that it was, prior to the Revolution, bound by the rules of the common law, and not by the rules of the Dutch civil law. While the Dutch were in actual pos.session this execution of the common law was suspended, just as, during the late rebellion, this execution of the laws of the United States could not be enforced in some of the Southern States. But, said the Supreme Court of the United States in Ketchum v. Buckhy, 99 U. S., 188, " the same general form of government, the same general law for the administration of justice, and the protection of private rights which had existed in the States prior to the rebellion, remained during its continuance and afterwards." See Kelchum v. Buckley, 90 U. S. 188, and cases cited. — Ed. 8 b 114 STATES. [part I. McKENNON V. WINK. Supreme Court of Oklahoma Territory, 1893. (Reported 1 Oklahoma Repoi-ts, 327.) BuRFORD, J.^ The appellant filed his complaint in the court below to enforce the specific performance of a contract for the conveyance of real estate situated in Oklahoma City, Oklahoma County, Oklahoma Territory. A demurrer was filed to the complaint, alleging as grounds: First. That the court has no jurisdiction of the person of defendant, or the subject of the action. Second. That the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, to which the appellant excepted and brings the case to this court by appeal. * * * . The second ground for demurrer presents two questions: First. Can a parol contract for the conveyance of real estate, or an interest therein, made after the settlement of this country, and prior to the adoption of our organic act, be enforced? Second. Is a contract for the conveyance of real estate, entered into before title is acquired from the United States, and to be executed after title is acquired, void, as against public policy? The first proposition seems to be settled by the adjudicated cases and text writers in favor of the appellant. "Every contract, on whatever subject, may be in oral words, which will have the same effect as if written, except when some positive rule of the common or statutory law has provided otherwise." Bish. Cont. sect. 153; Mal- lonjY. Gillett, 21 N. Y. 412; Wi/many. Goodrich, 26 Wis. 21; Green V. Brookins, 23 Mich. 48; White v. Maynard, 111 Mass. 250. By the common law, prior to the enactment of the Statute of Frauds (29 Car. II., c. 3, A. D. 1676), contracts for the sale of real estate, or an interest therein, were not required to be in writing. Bish. Cont,, sect. 1231; 4 Kent Com., p. 450. The English-speaking people brought the common law to America with them, in the first settle- ment of the colonies; and it has prevailed in all the States and Terri- tories, modified by legislative acts, local conditions, and such of the English statutes adopted prior to the settlement of our colonies as were of general application, and suited to our conditions, except in some portions where tlie French or civil law prevailed. At the time of the settlement and discovery of America the Statute of Frauds had 1 Part of the opinion is omitted. — Ed. CHAP. I.] McKENNON V. WINN, 115 not been adopted, and has only become the Law of the United States, or of our several States and Territories, by legislative enactment. This leads us to the inquiry, Did the common law prevail in the Territory in April, 1889? It is contended that prior to the settle- ment of Oklahoma, and until the same was superseded by statutory laws, the Code Napoleon, or civil law, prevailed. Whatever may have been the laws of the country now known as Oklahoma, they ceased to operate in the region originally comprising the Indian Territory when the Territory ceased to be a part of the Territory of Louisiana, and the laws of the Territory of Indiana and the Territory of Missouri, which may have once prevailed in said region, became inoperative in and ceased to have any force or effect in the Indian Territory, when that Territory ceased to be a part of said Territories. Railroad Co. v. O'Loughlin, 49 Fed. Rep. 440. There was no law in the Indian Territory regulating the making of contracts at the time of the approval of the act of Congress establishing a United States district court in said Territory by the act of March 1, 1889. 25 Stat. 783. Congress, with the assent of the Indians, created the court for the whole of the Indian Territory, which included Oklahoma, and conferred on it jurisdiction in all civil cases between citizens of the United States who are residents of the Territor}^, or between citizens of the United States or of any State or Territory, and any citizen of, or person residing or found in, the Indian Territory. It gave the court authority, and imposed upon it the duty, to apply the estab- lished rules and principles of the common law to the adjudication of those cases of which it was given jurisdiction. Pyeatt v. Poivell, 51 Fed. Rep. 551. But if it be held that the establishment of a United States court in the Indian Territory did not put the common law in force in said Territory, except in so far as was necessary to execute the powers of said court, and for the adjudication of such cases as actually went into that forum, then there was no law in Oklahoma, at the date of its settlement, regulating the making of contracts. If this should be conceded, then it necessarily follows, on principle, that when people from all parts of the United States, on the 22d day of April, 1889, settled the country known as Oklahoma, built cities, towns, and villages, and began to carry on trade and commerce in all its various branches, they brought into Oklahoma, with them, the established principles and rules of the common law, as recognized and promulgated by the American courts, and as it existed when im- ported into this country by our early settlers, and unmodified by American or English statutes. So that, in any event, the common law prevailed in Oklahoma at the time the contract between the appellant and appellee was entered into; and as, at common law, con- 116 STATES. [part I. tracts for the sale and conveyance of real estate were not required to be in writing, the contract mentioned in the complaint may be en- forced, unless void for other reasons.-^ Section 6. — Territorial Waters of a State. (o) Rivers.''^ HANDLY'S LESSEE v. A^S^THONY. Supreme Court of the United States, 1820. ( 5 Wheaton, 374.) Mr. Chief Justice Marshall delivered the opinion of the court. This was an ejectment brought in the Circuit Court of the United States for the District of Kentucky, to recover land which the plain- tifl: claims under a grant from the State of Kentucky, and which the defendants hold under a grant from the United States as being part of Indiana. The title depends upon the question whether the lands lie in the State of Kentucky, or in the State of Indiana. At this place, as appears from the plat and surveyor's certificate, the Ohio turns its course, and runs southward for a considerable dis- tance, and then takes a northern direction, until it approaches within less than three miles, as appears from the plat, of the place where its southern course commences. A small distance above the narrow- est part of the neck of land which is thus formed, a channel, or what is commonly termed in that country a bayou, makes out of the Ohio, and enters the same river a small distance below the place where it resumes its westward course. This channel, or bayou, is about nine miles by its meanders, three miles and a half in a straight line, and from four to five poles wide. The circuit made by the river appears to be from fifteen to twenty miles. About midway of the channel two branches empty into it from the northwest, between six and seven hundred yards from each other; the one of 1 The contract was held not to be void on the ground alleged ; tiie court followed on this point Lamb v. Davenport, 18 Wall. 307. — Ed. 2 As previously said, ((«^e, p. 84, note, the cases cited in U.S. \. Texas, ante, IQ, are the leading authorities in the United States on this subject. They arc, liow- ever, too long to print, and the decision of II(uu/li/ v. Aii/Iiniii/ is supplemented by two State cases, which, although less known, correctly state the law. — Eu. CHAP. I.] HANDLY'S lessee V. ANTHONY. 117 which runs along the channel at low water, eastward, and the other westward, until they both enter the main river. Between them is ground over which tlie waters of the Ohio do not pass until the river has risen about ten feet above its lowest state. It rises from forty to fifty feet, and all the testimony proves that this channel is made by the waters of the river, not of the creeks which empty into it. The people who inhabit this peninsula, or island, have always paid taxes to Indiana, voted in Indiana, and been considered as within its jurisdiction, both while it was a Territory, and since it has be- come a State. The jurisdiction of Kentucky has never been extended over them. The question whether the lands in controversy lie within the State of Kentucky or of Indiana, depends chieily on the land law of Virginia, and on the cession made by that State to the United States. Both Kentucky and Indiana were supposed to be comprehended within the charter of Virginia at the commencement of the war of our revolution. At an early period of that war, the question whether the immense tracts of unsettled country which lay within the charters of particular States, ought to be considered as the property of those States, or as an acquisition made by the arms of all, for the benelit of all, convulsed our confederacy, and threatened its existence. It Avas probably with a view to this question that Virginia, in 1779, when she opened her land office, prohibited the location or entry of any land "on the northwest side of the river Ohio." In September, 1780, Congress passed a resolution, recommending "to the several States having claims to waste and unappropriated lands in the western country, a liberal cession to the United States, of a portion of their respective claims, for the common beneht of the Union." And in January, 1781, the Commonwealth of Virginia yielded to the United States "all right, title, and claim, which the said Commonwealth had to the territory northwest of the river Ohio, subject to the conditions annexed to the said act of cession." One of these conditions is, "that the ceded territory shall be laid out and formed into States." Congress accepted this cession, but proposed some small variation in the conditions, which was acceded to; and in 1783 Virginia passed her act of confirmation, giving authority to her members in Congress to execute a deed of conveyance. It was intended then by Virginia, when she made this cession to the United States, and most probably when she opened her land office, that the great river Ohio should constitute a boundary between the States which might be formed on its opposite banks. This inten- tion ought never to be disregarded in construing this cession. The two exceptions present substantially the same questions to the 118 STATES. [part I. court, and may therefore be considered together. They are, whether land is properly denominated an island of the Ohio, unless it be sur- rounded with the water of the river, when low? and whether Kentucky was bounded on the west and northwest by the low water mark of the river, or at its middle state? or, in other words, whether the State of Indiana extends to low-water mark, or stops at the line reached by the river when at its medium height? In pursuing this inquiry, we must recollect that it is not the bank of the river, but the river itself, at which the cession of Virginia com- mences. She conveys to Congress all her right to the territory "situ- ate, lying, and being to the northwest of the river Ohio." And this territory, according to express stipulation, is to be laid off into inde- pendent States. These States, then, are to have the river itself, wherever that may be, for their boundary. This is a natural boun- dary, and in establishing it, Virginia must have had in view the convenience of the future population of the country. When a great river is the boundary between two nations or states, if the original property is in neither, and there be no convention respecting it, each holds to the middle of the stream. But when, as in this case, one State is the original proprietor, and grants the territory on one side only, it retains the river witliin its own domain, and the newly created State extends to the river only. The river, however, is its boundary. "In case of doubt," says Vattel, "every country lying upon a river, is presumed to have no other limits but the river itself; because noth- ing is more natural than to take a river for a boundary, when a state is established on its border; and wherever there is a doubt, that is always to be presumed which is most natural and most probable. "If," says the same author, "the country which borders on a river, has no other limits than the river itself, it is in the number of terri- tories that have natural or indetermined limits, and it enjoys the right of alluvion." Any gradual accretion of land, then, on the Indiana side of the Ohio, would belong to Indiana, and it is not very easy to distinguish between land thus formed, and land formed by the receding of the water. If, instead of an annual and somewhat irregular rising and falling of the river, it was a daily and almost regular ebbing and flowing of the tide, it would not be doubted that a country bounded by the river would extend to low-water mark. This rule has been established by the common consent of mankind. It is founded on common conven- ience. Even when a State retains its dominion over a river which constitutes the boundary between itself and another State, it would CHAP. I.] HANDLY's lessee V. ANTHONY. 119 be extremely inconvenient to extend its dominion over the land on the other side, which was left bare by the receding of the water. And this inconvenience is not less where the rising and falling is annual, than where it is diurnal. "Wherever the river is a boundary between States, it is the main, the permanent river, which constitutes that boundary; and the mind will find itself embarrassed with insur- mountable difficulty in attempting to draw any other line than the low-water mark. When the State of Virginia made the Ohio the boundary of States, she must have intended the great river Ohio, not a narrow bayou into which its waters occasionally run. All the inconvenience which would result from attaching a narrow strip of country lying on the northwest side of that noble river to the States on its southeastern side, would result from attaching to Kentucky, the State on its southeastern border, a body of laud lying northwest of the real river, and divided from the mainland only by a narrow channel, through the whole of which the waters of the river do not pass, until they rise ten feet above the low-water mark. The opinions given by the court must be considered in reference to the case in which they were given. The sole question in the cause respected the boundary of Kentucky and Indiana; and the title de- pended entirely upon that question. The definition of an island which the court was requested to give, was either an abstract proposition, which it was unnecessary to answer, or one which was to be answered according to its bearing on the facts in the cause. The definition of an island was only material so far as that defini- tion might aid in fixing the boundary of Kentucky. In the opinion given by the court on the motion made by the counsel for the defen- dants, they say that "no land can be called an island of the Ohio, unless it be surrounded by the waters of that river at low-water mark." We are not satisfied that this definition is incorrect, as respected the subject before the court; but it is rendered unimpor. tant, by the subsequent member of the sentence, in which they say, " that to low- water mark only, on the western and northwestern side of the Ohio, does the State of Kentucky extend." So, in the motion made by the counsel for the plaintiff, the court was requested to say, that if the waters of the Ohio flowed in the channel, in its middle and usual state, it was not only an island, but "within the State of Kentucky." If the land was not within the State of Kentucky, the court could not give the direction which was requested. The court gave an instruction substantially the same with that which bad been given on the motion of the defendant's counsel. 120 STATES. [part I. If it be true, that the river Ohio, not its ordinary bank, is the boundary of Indiana, the limits of that State can be determined only by the river itself. The same tract of land cannot be sometimes in Kentucky, and sometimes in Indiana, according to the rise and fall of the river. It must be always in the one State, or the other. There would be little difficulty in deciding, that in any case other than land which was sometimes an island, the State of Indiana would extend to low-water mark. Is there any safe and secure principle, on which we can apply a different rule to land which is sometimes, though not always, surrounded by water? So far as respects the great purposes for which the river was taken as the boundary, the two cases seem to be within the same reason, and to require the same rule. It would be as inconvenient to the people inhabiting this neck of land, separated from Indiana only by a bayou or ravine, sometimes dry for six or seven hundred yards of its extent, but separated from Kentucky by the great river Ohio, to form a part of the last-mentioned State, as it would for the inhabi- tants of a strip of Hnd along the whole extent of the Ohio, to form a part of the State on the opposite shore. Neither the one nor the other can be considered as intended by the deed of cession. If a river, subject to tides, constituted the boundary of a State, and at flood the waters of the river flowed through a narrow channel, round an extensive body of land, but receded from that channel at ebb, so as to leave the land it surrounded at high water, connected with the main body of the country; this portion of territory would scarcely be considered as belonging to the State on the opposite side of the river, although that State should have the property of the river. The principle that a country bounded by a river extends to low- water mark, a principle so natural, and of such obvious con- venience as to have been generally adopted, would, we think, apply to that case. We perceive no sufficient reason why it should not apply to this. The case is certainly not without its difficulties; but in great ques- tions which concern the boundaries of States, where great natural boundaries are established in general terms, with a view to public convenience, and the avoidance of controversy, we think the great object, where it can be distinctly perceived, ought not to be defeated by those technical perplexities which may sometimes influence con- tracts between individuals. The State of Virginia intended to make the great river Ohio, throughout its extent, the boundary between the territory ceded to the United States and herself. When that part of Virginia, which is now Kentucky, became a separate State, the river was the boundary between the new States erected by Con- CHAP. I-] BUTTENUTH I'. ST. LOUIS BRIDGE CO. 121 gress in the ceded territory, and Kentucky. Those principles and considerations which produced the boundary, ought to preserve it. They seem to us to require, that Kentucky shouhl not pass the main river, and possess herself of lands lying on the opposite side, although they should, for a considerable portion of the year, be surroi;nded by the waters of the river flowing into a narrow channel. It is a fact of no inconsiderable importance in this case, that the inhabitants of this land have uniformly considered themselves, and have been uniformly considered, both by Kentucky and Indiana, us belonging to the last-mentioned State. No diversity of opinion appears to have existed on this point. The water on the north- western side of the land in controversy, seems not to have been spoken of as a part of the river, but as a bayou. The people of the vicinage, who viewed the river in all its changes, seem not to have considered this land as being an island of the Ohio, and as a part of Kentucky, but as lying on the northwestern side of the Ohio, and being a part of Indiana. The compact with Virginia, under which Kentucky became a State, stipulates, that the navigation of, and jurisdiction over, the river, shall be concurrent between the new States, and the States which may possess the opposite shores of the said river. This term seems to be a repetition of the idea under which the cession was made. The shores of a river border on the water's edge. Judgment affirmed, with costs. WILLIAM BUTTENUTH et al. v. THE ST. LOUIS BRIDGE COMPANY. Supreme Court of Illii^gis, 1888. {123 Illinois, 535.) Mr. Justice Scott delivered the opinion of the court. * * * The remaining ground of relief insisted upon is, that part of the bridge structure which lies west of its easternmost pier is outside of the State of Illinois, and was illegally assessed and included in the assessment with that part which is confessedly within the limits of the State. On this branch of the case some evidence was offered, and some discussion has been had as to the boundary line between the States of Missouri and Illinois at the point where the bridge struc- ture spans the INFississippi River. That question is certainly one of great gravity, and one this court will hardly undertake to determine definitely on the meagre evidence to be found in this record, and in 122 STATES. [part I. a case where neither State is represented, and where there are no defendants other than private citizens, neither of whom had the slightest personal interest in the matter. The utmost this court will assume to decide is, what part of complainant's bridge is to be regarded as within the State of Illinois for the purposes of taxation, or, what is the same thing, does the valuation of complainant's prop- erty, as made by the assessor for 1885, include any portion of the bridge not subject to taxation in this State. It is certain no part of that portion of the bridge structure assessed by the local assessor for taxation in this State is in the State of Mis- souri, nor does it appear that it was ever subject to taxation in that State. In the act of Congress, March 6, 1820 (U. S. Stat, at Large, p. 545), to enable the territory of Missouri to form a constitution, in fixing the boundaries it is declared, " thence due east to the middle of the main channel of the Mississippi River, thence down and follow- ing the course of the Mississippi Kiver, in the middle of the main channel thereof." The State of Missouri, by its constitution of 1820, ratified the boundaries as fixed by the enabling act of Congress, and there can be no pretence the eastern boundary of the State has since been changed. The constitution of 1875, of that State, simply rati- fied and confirmed the boundaries of the State as established by law. Notwithstanding the fact the main channel of the river might be changed by imperceptible natural wear on one side, or by gradual formation of alluvions, still "the middle of the main channel," when ascertained, would be the boundary of the State. It might be a slightly shifting line, hardly perceptible; still it would be a well- known and easily ascertainable boundary line. The rule of law is, when a stream dividing co-terminous States, being a boundary line, alters its channel by a gradual or imperceptible process of wear or of alluvions, the boundary shifts with the channel. No matter what conclusion might be reached as to the western boundary of Illinois, it cannot be maintained the eastern boundary of the State of Missouri is farther east than the " middle of the main channel " of the Missis- sippi at the point where the bridge structure spans that river. It is not alleged in the bill, nor claimed in argument, any portion of the bridge assessed by the local assessor in this State lies west of the "middle of the main channel " of the river. It would seem to follow, therefore, if that portion of the bridge included in the assessment that lies between the eastern pier of the bridge and the "middle of the main channel " of the river, is not within the limits of the State of Illinois, it is not included within the defined boundaries of either State. That conclusion will hardly be adopted, unless the question will admit of no other solution. CHAP. I.] BUTTENUTH V. ST. LOUIS BRIDGE CO. 123 The act of Congress of April 18, 1818, to enable the people of the Territory of Illinois to form a State constitution, fixed the western boundary at the "middle of the Mississippi River," and declared the State should have concurrent "jurisdiction on the Mississippi River with any State or States to be formed west thereof, so far as said river shall form a common boundary to both." By the constitution of 1818, the people ratified the boundaries fixed for the State by the enabling act of Congress, and in the constitutions of 1848 and of 1870 the same boundaries and jurisdiction are declared, except in the two last constitutions it is provided "this State shall exercise such juris- diction upon the Ohio River as she is now entitled to, or such as may be agreed upon by this State and the State of Kentucky." It seems clear, from all legislation and ordinances on this subject, it was in- tended the Mississippi River should constitute "a common boundary" between the State of Illinois and any State or States that might be formed to the west and next to that river. That intention is more definitely declared than it was in regard to the Ohio River, for in fixing the boundary of Illinois, when the line down along the middle of the Mississippi River should reach the confluence of that river with the Ohio, the boundary should be from thence up the latter river "along its northwestern shore," and yet it has been held the river is the boundary between States divided by the Ohio River, although the original proprietor, in granting the territory, retained the river within its own domain. The law, as stated by law writers, and in the adjudged cases, seems to be, that where a river is declared to be the boundary between States, although it may change imper- ceptibly, from natural causes, the river, " as it runs, continues to be the boundary." But if the river should suddenly change its course, or desert the original channel, the rule of law is, the boundary re- mains in the middle of the deserted river bed. Where a river is a boundary between States, as is the Mississippi between Illinois and ^Missouri, it is the main — the permanent — river which constitutes the boundary, and not that part which flows in seasons of high water, and is dry at otlier times. (Handly's Lessee v. Anthony, 5 Wheat. 174.) In no other way would a river be a permanent fixed boundary, at all times readily ascertainable. There are many cogent reasons why the boundary lines between States should be permanent, other- wise territory in one State at one time, sooner or later might be in another State. It must be in one State all the time, or else the State would lose jurisdiction over it. Treating, then, as must be done, the Mississippi River as a common boundary between the States of Illinois and Missouri, what meaning is to be given to the term, "middle of the Mississippi River," used 124 STATES. [part I. in the enabling act of Congress and in the constitution, defining the boundaries of the State of Illinois? Whether, Avhen mere private rights are involved, the phrases the "middle of the river," and the "middle of the main channel," or, what is the same thing, the "thread of the stream," mean the same thing, and may be inter- changeably used, there are many considerations affecting the public welfare why it should be held the " middle of the channel " of a river between independent States or countries should be regarded as the boundary line between them, in the absence of express agreement to the contrary. When applied to rivers as boundaries between States, the phrases, "middle of the river," "and middle of the main chan- nel," are equivalent expressions, and both mean the centre line of the main channel, — or, as it is most frequently expressed, the " thread of the stream." Should the expression, "middle of the river," be construed to mean a line midway of the water surface, that would give no permanent boundary that could be ascertained. It would be at one point at one time, and distant away at another. Had the boun- daries of Illinois been fixed at the time of the high water in 1844, and the middle of the river opposite St. Louis be held to be a line mid- way of the surface of the water, that line would then have been far east of the present city of East St. Louis, and on the waters receding, it would have shifted back towards the west, nearer the city of St. Louis. So unsatisfactory a proposition as that will not be adopted. It would lead to insurmountable difficulties. Some light will be cast upon the subject of inquiry by first ascertaining, as near as may be, the meaning of the words, "main channel," "mid-channel," "middle of the current," as those terms are used in tlie adjudged cases and in the text-books that shall be examined. The definition of the word "channel," given in the most recent edi- tion of Webster's Dictionary, is, "the bed of a stream of water; especially the deeper part of a river or bay where the main current flows." The case of Dunleith and Dubuque Bridge Co. v. Count]/ of Dubuque, 55 Iowa, 55S, while tliis court does not approve the deci- sion of the case, contains a very accurate definition of the word "channel," as commonly used by river men. It is "the word chan- nel, when employed in treating subjects connected with the navigation of rivers, indicates the line of the deep water which vessels follow." Iw Rowe V. Smith, 51 Conn. 260, it is said, "the expression, 'middle of the channel of the bay or harbor, ' does not refer to the thread of deepest water, but to that space within which ships can and usually do pass." It is apprehended it is in this sense the expressions, "middle of the river," "middle of the main channel," "mid-channel," "middle thread of the channel," are used in enabling acts of Congress CHAP. I.] BDTTENUTH V. ST. LOUIS BRIDGE CO. 125 and in State constitutions establishing State boundaries. It is the free navigation of the river, — when such river constitutes a common boundary, that part on which boats can and do pass, sometimes called "nature's pathway," — that States demand shall be secured to them, "When a river, navigable in fact, is taken or agreed upon as the boun- dary between two nations or States, the utility of the main channel, or, what is the same thing, the navigable part of the river, is too great to admit a supposition that either State intended to surrender to the State or nation occupying the opposite shore, the whole of the principal channel or highway for vessels, and thus debar its own vessels the right of passing to and fro for purposes of defence or commerce. That would be to surrender all, or at least the most valu- able part, of such river boundarj^, for the purposes of commerce or other purposes deemed of great value, to independent States or nations. Construing, then, the phrases, "middle of the ^Mississippi Eiver," and the "middle of the main channel of the IMississippi Eiver," to mean the same thing, both acts of Congress fixing the boundaries of Illinois and Missouri declare the middle of the main channel of the Mississippi Eiver to be the boundary line between the States, and that is the tliread of the main stream. In Thomas \. Hatch, 3 Sumner, 170, Story, J., said: "I consider the law to be clearly settled that a boundary on a stream, on or by a stream, or to a stream, includes the flats, at least to low-water mark, and in many cases to the middle thread of the river." A valuable case on this subject is Morgan v. Readiny, 3 Sm. & Marsh. 366. The opinion is by Chief Justice Sharkey. Although not directly involved, the discussion, in part, had relation to the boundary line of the State of Mississippi. The facts as stated in the opinion are, that by various treaties and cessions the United States had succeeded to all the territory east of a line drawn along the mid- dle of the Mississippi, above the 31st degree of latitude. Louisiana was then bounded on the east by the same line, — the middle of the river above the river Iberville, as it had been established by the treaty of 1763. In 1798, while the middle of the river was still the boundary line between the province of Louisiana and the L^nited States, Congress established the ]\rississippi territory, bounding it on the west by the Mississippi. It was in reference to that line the court said, "we have said that Congress omitted to mention the mid- dle of the river, but bounded the territory by the Mississippi." The common law, by construction, extends grants bounded "by" or "on" or "along" a fresh water stream, to the thread of the stream. The Mississippi territory, by this rule, extended to the middle of the river. 126 STATES. [part I. In Handh/s Lessee v. Anthony, supra, it was said by the court: " Where a great river is the boundary between two nations or States, if the original property is in neither, and there be no convention respecting it, each liolds to the middle of the stream." Mr. Field, in his work entitled "Outlines of an International Code," (2d ed.) section 30, in speaking of boundary by stream or channel, says : " The limits of national territory bounded by a river or stream, or by a strait or sound, or arm of the sea, the other shore of which is the territory of another nation, extend outward to a point equidis- tant from the territory of the nation occupying the opposite shore, or, if there be a stream or a navigable chaimel, to the thread of the stream, — that is, to the mid-channel, — or, if there be several chan- nels, to the middle of the principal one." In his work on the "Law of Nations," p. 31, Mr. Poison says: "If the river divides two States, the mid-channel is considered as the boundary line, unless prior occupation has given to the one or the other tlie right of possession to the whole." There are cases in this and other courts, although the discussion had reference directly to riparian rights, and not to boundaries be- tween States, that illustrate this same doctrine. In Fletcher v. Thunder Bag Boom Co., 51 Mich. 277, it was held, the riparian rights of defendant in the case being considered, extended to the thread of the stream — to the centre of the main channel of the river. It was said by this court in Middle.ton v. Pritchard, 3 Scam. 510, " that all grants bounded upon a river not navigable by the common law, entitled the grantee to all islands lying between the mainland and the centre thread of the current." In Cobb v. Lavalle, 89 111. 331, it was said : " It seems to be the settled law of this country, that the owner of land bordering upon a river not navigable at common law, such as the Mississippi River, will be entitled to claim to the centre of the current of the stream." The same doctrine was re-stated in Piper \. Connelly, 108 111. 646, where it was said: "The general doc- trine that grants of land bounded upon rivers, or the margins above tide water, carry the exclusive right and title of the grantee to the centre thread of the current, unless the terms of the grant clearly denote the intention to stop at the margin of the river, has been too long established and too firmly adhered to by this court to be now questioned." No reason is perceived why the principles here stated should not control the decision of the case being considered. As before re- marked, it is manifest it was the intention of Congress the Missis- sippi River should constitute a "common boundary" between the States of Illinois and Missouri, and had the words the "middle of CHAP. I.] BUTTENUTH V. ST. LOUIS BRIDGE CO. 127 the Mississippi River," and the "middle of the main channel," been omitted in both enabling acts of Congress, still the river itself would be the boundary, and each State would hold to the " middle of the stream," — that is to say, the middle thread of the stream. The in- tention in this respect is made most manifest by the fact it must have been and was known to Congress when it passed the enabling act for Missouri, and fixed the boundary at the *' middle of the main channel of the jNfississippi River," that the western boundary of Illinois had been fixed "at the middle of the Mississippi River," and certainly it was not intended to fix two distinct or different boundary lines. That would have left a space not in either State, and no such absurd inten- tion should be imputed to Congress. It was most appropriately said by the court in 3Iorgan v. Beading, siqyra, in respect to the boundary line as fixed by the act of Congress organizing the territory of Missis- sippi, which established the "Mississippi River" as the western boun- dary: "All west of that line," — that is, the middle of the river, — "was owned by a foreign power, and we cannot suppose Congress, under the circumstances, designed to limit the jurisdiction of the territory by the bank of the river." The suggestion. Congress, by its enabling acts, may have estab- lished one line in the Mississippi River for the eastern boundary for Missouri, and another line, farther east, for the western boundary of Illinois, has nothing, in law or in fact, upon which to rest. The whole legislation on this subject shows, as before remarked, it w^as the intention of Congress to make the river a "common boundary" between these States, and the expressions used in both enabling acts, although the words used may not be the same, make the middle of the main channel of the permanent river the boundary line. In such cases the principle is as stated by Mr. Woolsey, in his work on International Law, section 58: "Where a navigable river forms the boundary between States, both are presumed to have free use of it, and the dividing line will run in the middle of the channel, unless the contrary is shown by long occupancy or agreement of parties." Commercial considerations make it imperative, where States or nations are divided by a navigable river, each should hold to the centre thread of the main channel or current along which vessels in the carrying trade pass. That is the "channel of commerce," — not the shallow water of the stream, which, at some seasons of the year, may be impossible of navigation, — upon which each nation or State demands the right to move its products without any interference from the State or nation occupying the opposite shore. So important has this right ever been deemed, it is thought to be embraced in all trea- ties, cessions, ordinances, statutes and constitutions made, enacted or 128 , STATES. [part I. adopted in regard to the Mississippi River since the Federal Govern- ment v.^as organized. It was the great desire to secure this important privilege that gave rise to all the efforts on the part of the general Government to obtain the control of the Mississippi River from its source to that point where it empties into the gulf and connects with the sea. It has been often ruled, the intention in such great matters as State boundaries, when clearly manifested by cessions, grants or legislative acts, should control. It is a fact so well known it is not called in question, that so far back as can be known, either from history or tradition, the main channel of the Mississippi River at the point where complainant's bridge is constructed, was always west of Bloody Island, — that is, between that island and the Missouri shore. Both States have always recognized this fact, and for that reason " Bloody Island," although the river east of it was, in fact, at one time, navi- gable for shallow-draft vessels, — certainly in seasons of high water, — was always regarded as being within the limits of the State of Illinois. At one time grave apprehensions were entertained that the main channel of the river might change to the east side of "Bloody Island," and thus leave the Missouri side; but by the consent of Illi- nois, expressed by the General Assembly, dykes and other structures were erected at the upper end of the island to keep the main channel on the Missouri side, where it had previously been. Those structures proved efficient, and the m.ain channel of the river now flows where it did since before the boundaries of either State divided by it were es- tablished by Congress or declared by State constitutions. It is not claimed, either by the bill or in the evidence, that any part of com- plainant's bridge that was assessed by the local assessor lies west of the middle of what has always been the main channel of the river since the States were organized under the acts of Congress, and this court has no hesitation in coming to the conclusion that all of that part of the bridge, with its approaches, that lies east of the middle line of the main channel of the river, is within the jurisdiction of the State of Illinois, for the purposes of State and local taxa- tion. Only that part of the bridge east of the middle of the main channel of the river, as appears from the plat used in making the assessment, was assessed in this case, and that was warranted by law. The case of Missouri v. JO/ntnrJci/, 11 Wall. 395, cited by counsel for complainant as being conclusive of the case in hand, has been examined, and it is not perceived it contains anything in conflict with the general views here expressed. Indeed, some of the reasoning in that case has been adopted in this opinion. CHAP. I.] COOLEY V. GOLDEN. 129 The judgment of the circuit court will be reversed, and the cause will be remanded, witli directions to that court to dismiss the bill. Judgment reversed.^ MILLAED F. COOLEY v. JAMES F. GOLDEN. Kansas City Court of Appeals, 1893. (52 Missoitri Appeals, 52.) Smith, P. J. — This is an action of forcible entry and detainer which was brought before a justice of the peace of Atchison County. By the act of Congress, approved June 7, 18-'56, United States Stat- utes at Large, 34, entitled "An Act to extend the western boundary of the State of Missouri to the Missouri River," it was provided that, when the Indian title to all the lands lying between the State of ]\Iis- souri and the Missouri River should be extinguished, the jurisdiction over said lands should be thereby ceded to the State of Missouri. It is to be observed that the act ceded the land between the old State line and the river, and the extension of the boundary was to the river, not to the bank, thus making the natural water-course the boundary ; and the general rules, construing such words of cession as shown by the adjudged cases, carry that boundary to the centre of the channel. Benson v. Morroic, 61 Mo. o45; Jones v. Soidard, 24 How. 41; Howard V. Ingersoll, 13 How. 381 ; Kailroad v. Devereux, 41 Fed. Rep. 14; Mis- souri V. loiva, 7 How. 660. And this seems to have been the intention of Congress ; for it will be seen by reference to the act providing for the admission of the Territory of Nebraska into the Union that one of the boundaries of the State so admitted should be from the junction of the Niobrara River down the middle of the channel of the latter river following the meanderings thereof, &c. 13 United States Stat- 1 Sir William Scott states the law tersely in T/ie Twee Gehroeders, 1801, 3 C. Rob. 336, 339: "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 coterminous states, a common use to 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 liave been acquired, or cessions may have taken place upon conquests, or other events. But the general presumption certaiidy bears strongly against sucli e.xclnsive rights, and the title is a matter to be established, on the part of those claiming under it, in the same manner as all legal demands are to be substantiated, by clear and conipetent evidence." — Ed. 9 130 STATES. [part I. utes at Large, 47. It would be unreasonable to suppose that Congress intended to limit the extention of the territorial jurisdiction of the State of Missouri to the bank of the Missouri, and thus leave a sort of neutral territory between the Missouri shore and the middle of the channel of the river over which neither the States of Missouri nor Xebraska had jurisdiction. The Constitution of Missouri, section 1, article 1, declared that the boundaries of the State as heretofore established by law are hereby ratified and confirmed ; so that it is not to be doubted that Congress by the ceding act extended the northern boundary line of the State to the middle of the channel of the Missouri Eiver, and from thence down the river to the middle of the Kansas River. Act of Congress of March 6, 1820, for the admission of Missouri; Eevised Statutes, 1889, 47. In the cession act of June 7, 1836, is embraced what is commonly known as the "Platte purchase," consisting of a number of counties, among which is Atchison, situate in the northwest corner of the State. At the time of the cession and until the year 1867, the Missouri Eiver in its course along the western boundary of Atchison County made a horseshoe-shaped bend, with toe to the east, and heel pointing to the west. During the spring of the last-named year the river, dur- ing a great flood, changed its course by effecting a channel across the heel of the bend, and thus abandoned its former channel around the bend. The bend became a lake and gradually filled up with sedimentary matter until it became solid land, fit for tillage and pasture. The land, the possession of which is in dispute in this suit, is situate in the old abandoned bed of the river in this bend. The decisive questions in the case arise on the instructions given and refused by the court. The theory of the plaintiff's instructions which were refused by the court was to the effect that if the lands in dispute were situate in the old bed of the river which had become dry on account of the change of its course by cutting off a bend on the Nebraska side and forming a new channel, then in that case it was not material on which side of the main channel of the old river bed the lands in dispute were sit- uate. The theory of the defendant which was adopted by the court w^as that the ordinary boundary of Atchison County where it borders on the Missouri Eiver extended to the middle of the main channel of the river as the main channel ran or was located in the year 1867 prior to the change or cut-off, and that, unless it was found the land in ques- tion was situate in Atchison County, the plaintiff could not recover. The defendant's theory further was that the boundary line of the State of Missouri at the location in question was the middle of the main channel of the Missouri Eiver as the main channel ran before the cut- off in 1867. These theories are wholly irreconcilable. The jury found CHAP, I.] COOLEY V. GOLDEN". 131 under the instructions that tlie laiul in dispute was not in Atchison County, and, as there was substantial testimony tending to establish that fact, the finding is conclusive upon us. It seems that the river by its changed course cut off a considerable area of land which was formerly on the Nebraska side, but is now on the Missouri side of it, so that thd river as it runs along the western border of this area of cut-off land is wholly within the State of Nebraska. It is not contended, as we understand it, that the change of the course of the river in 18G7 effected a change of the boundary line between the two States as it was fixed in the ceding act, for, if it were, such contention could not be sustained, because it is plain to be seen that the allowance of such consequences might result most disastrously to the geography of the State. The law seems to be well settled that when a river is declared to be the boundary between States, although it may change imperceptibly from natural causes, the river as it runs continues to be the boundary. But, if the river should suddenly change its course or desert the original channel, the rule of law is, the boundary remains in the middle of the deserted river bed. Iowa v. SS'ebraska, 143 U. S. 359; St. Louis v. Rutz, 136 U. S. 225; Missouri v. Kentucky, 11 Wall. 395; Butterworth v. Brldrje Co. 123 111. 535; Hol- hrook V. Moore, 4 Xeb. 437; Collins v. State, 3 Tex. A pp. 324; Gould on Waters, sect. 159. But the real question is whether the States of Missouri and Nebraska have concurrent jurisdiction over the old bed of the river just as was the case when the river ran there before 1867. The jurisdiction of this State over that part of the river which forms a common boundary of the States is concurrent. It extends not only to the middle of the channel but over the entire channel. Constitution, art. 1, sect. 1 ; Swearingen v. Steamboat, 13 JNIo, 519; Sanders v. Anchor Line, 97 Mo. 26. But here there is no river, but in its stead is dry land upon which are cultivated fields and pastures. The physical conditions have been changed. Is the case different than if the boundary line between the two States had been located originally on dry land instead in the middle of the channel of the river? We think not. The concurrent jurisdic- tion of the States of Missouri and Nebraska under their enabling acts does not in any case extend beyond their common boundary, except when that boundary is the middle of the channel of the Missouri River. Congress has imposed this limitation upon its existence. It is diffi- cult to see why it exists here any more than if the river had always run where it did after 1867. The reason for the grant of this concur- rent jurisdiction, which is so well and forcibly expressed by Judge Barclay in 97 Mo. siq^ra, lends no support to plaintiff's claim of concurrent jurisdiction in this case. The conditions are wanting which 132 STATES. [parti. constitute the basis of this jurisdiction. The boundary line between the States is the middle of the former bed of the river, and to this line the jurisdiction of each extends, but the concurrent jurisdiction along there disappeared when the river did. It is not believed that it was contemplated by Congress or the States that the grant of concurrent jurisdiction of the two States on the river authorized the bringing of an action of forcible entry and detainer or of ejectuient in tliis State for the recovery of lands situate anywhere within the territorial limits of Nebraska. We cannot sustain the theory of tlie plaintiff's instructions which were to that effect. We do not think that the elimination by the court of a part of the plaintiff's fourth instruction was harmful to him, in view of the issues submitted to the jury by other instructions and found adversely to the plaintiff. The case was fairly submitted to the jury by the instructions of the court. The judgment seems to be for the right party and so will be affirmed. All concur.^ Q>) Straits and Lakes. UNITED STATES v. EODGEES. Supreme Court of the United States, 1893. (150 United States, 249.) Mr. Justice Field delivered the opinion of the court. ^ Several questions of interest arise upon the construction of section 5346 of the Revised Statutes, upon which the indictment in this case Avas found. The principal one is whether the term "high seas," as there used, is applicable to the open, unenclosed waters of the Great Lakes, between which the Detroit River is a connecting stream. The ^ See, also, opinion of C. Gushing, 1856, 8 Op. Atty. Gen. 175. For disputes con- cerning the riglit freely to use and navigate the Mississippi, see Dana's Wheaton, 279-233; Snow's American Diplomacy, 4, 67, 106; for the St. Lawrence, Dana's Wheaton, 283-287, and Danas note, 287-288; Snow's Am. Dip. 99; for Euro- pean rivers, Dana's Wheaton, 275-279; Schuyler's Am. Dip.; Galvo's Int. Law, 5tli ed., vol. 1, 433-446; Hertslet's Map of Europe by Treaty; Engelhardt, in the Revue de Droit International, vol. 11, 363-381; of South American rivers, the Kiver La Plata, with its brandies, the Parana and the Uruguay, was opened to general commerce during the period from 1851 to 1859, and the Amazon during that from 1858-1867, Dana's Wheaton, 287-288, note 118; Schuyler's Am. Dip. 319-344; Galvo, I., 451-455; of African rivers the Congo and Niger were by Conference of Berlin (1885) declared free and open to navigation (Galvo, T 455-463). See nrticles by M. Duchene: Le Droit de Navigation dans Le Niger (2 R. G. D. I. 439-447); M. Pillet: La Lihertc de Navigation du Niger (3 id. 190-223) —Ed. ^ Statement of the case omitted. — Ed. CFTAP. I.] UNITED STATES V. RODGERS. 133 term was formerly used, particularly by writers on public law, and generally in official communications between different governments, to designate the open, unenclosed waters of the ocean, or of the British seas, outside of their ports and havens. At one time it was claimed that the ocean, or portions of it, were subject to the exclusive use of particular nations. The Spaniards, in the 16th centur}^, asserted the right to exclude all others from the Pacific Ocean. The Portuguese claimed, with the Spaniards, under the grant of Pope Alexander VL, the exclusive use of the Atlantic Ocean west and south of a designated line. And the English, in the 17th century, claimed the exclusive right to navigate the seas surrounding Great Britain. Woolsey on International Law, § 55. In the discussions wlijch took place in support of and against these extravagant jjretensions the term ''high seas" was applied, in the sense stated. It was also used in that sense by English courts and law writers. There was no discussion with them as to the waters of other seas. The public discussions were generally limited to the considera- tion of tlie question whether the high seas, that is, the open, unenclosed seas, as above defined, or au}' portion thereof, could be the property or under the exclusive jurisdiction of any nation, or whether they were open and free to the navigation of all nations. The inquiry in the English courts was generally limited to the question whether the juris- diction of the admiralty extended to the waters of bays and harbors, such extension depending upon the fact whether they constituted a part of the high seas. In his treatise on the rights of the sea, Sir Matthew Hale says : "Tlie sea is either that which lies within the body of a county, or without. That arm or branch of the sea which lies within the fauces terrce, where a man may reasonably discern between shore and shore, is, or at least may be, within the body of a county, and, therefore, witliin the jurisdiction of the sheriff or coroner. That part of the sea which lies not within the body of a county is called the main sea or ocean." De Jure Maris, c. iv. By the "main sea" Hale here means the same thing expressed by the term "high sea" — " mare altiim,'' or " le haut ?/ier." In Waring v. Clarke, 5 How. 440, 453, this court said that it had been frequently adjudicated in the English common law courts since the restraining statutes of Richard II. and Henry IV., " that high seas mean that portion of the sea which washes the open coast." In United States v. Grush, 5 Mason, 290, it was held by Mv. Justice Story, in the United States Circuit Court, that the term 'Miigh seas," in its usual sense, expresses the unenclosed ocean or that portion of the sea which is without the fauces terrce on the seacoast, in contradistinction 134 STATES. [part I. to that which is surrounded or enclosed between narrow headlands or promontories. It was the open, unenclosed waters of the ocean, or the. open, unenclosed waters of the sea, which constituted the " high seas " in his judgment. There was no distinction made by him between the ocean and the sea, and there was no occasion for any such distinction. The question in issue was whether the alleged offences were committed within a county of Massachusetts on the seacoast, or without it, for in the latter case they Avere committed upon the high seas and within the statute. It was held that they were committed in the County of Suf- folk, and thus were not covered by the statute. If there were no seas other than the ocean, the term "high seas" would be limited to the open, unenclosed waters of the ocean. But as there are other seas besides the ocean, there must be high seas other than those of the ocean. A large commerce is conducted on seas other than the ocean and the English seas, and it is equally necessary to dis- tinguish between their open waters and their ports and havens, and to provide for offences on vessels navigating those waters and for colli- sions between them. The term " high seas " does not, in either case, indicate any separate and distinct body of water ; but only the open waters of the sea or ocean, as distinguished from ports and havens and waters within narrow headlands on the coast. This distinction was observed by Latin writers between the ports and havens of the Medi- terranean and its open waters — the latter being termed the high seas.^ In that sense the term may also be properly used in reference to the open waters of tlie Baltic and the Black Sea, both of which are inland seas, finding their way to the ocean by a narrow and distant channel. Indeed, wherever there are seas in fact, free to the navigation of all nations and people on their borders, their open waters outside of the portion " surrounded or enclosed between narrow headlands or promon- tories," on the coast, as stated by Mr. Justice Story, or " without the body of a county,^' as declared by Sir ^Matthew Hale, are properly characterized as high seas, by whatever name the bodies of water of which they are a part may be designated. Their names do not deter- mine their character. There are, as said above, high seas on the Mediterranean (meaning outside of the enclosed Avaters along its coast), upon which the principal commerce of the ancient world was conducted and its great naval battles fought. To hold that on such seas there are no high seas, within the true meaning of that term, that is, no open, unenclosed waters, free to the navigation of all nations and people on 1 " Insula ]>nrtum Efficit objectu laterum, qiiibus oninis ab aito Frangitur, inque sinus scindit sese inula reiluetos." — The ^Emid, Lib. 1, v. 150-lGl. CHAP. I.] UNITED STATES V. EODGERS. 135 their borders, -would be to place upon that term a narrow and contracted meaning. V\q prefer to use it in its true sense, as applicable to the open, unenclosed waters of all seas, than to adliere to the common meaning of the term two centuries ago, when it was generally limited to the open waters of the ocean and of seas surrounding Great Britain, the freedom of which was then the principal subject of discussion. If it be conceded, as we think it must be, that the open, unenclosed waters of the Mediterranean are high seas, that concession is a suffi- cient answer to the claim that the high seas always denote the open waters of the ocean. Whether the term is applied to the open waters of the ocean or of a particular sea, in any case, will depend upon the context or circum- stances attending its use, which in all cases affect, more or less, the meaning of language. It may be conceded that if a statement is made that a vessel is on the high seas, without any qualification by language or circumstance, it will be generally understood as meaning that the vessel is upon the open waters of one of the oceans of the world. It is true, also, that the ocean is often spoken of by writers on public law as the sea, and characteristics are then ascribed to the sea generally which are properly applicable to the ocean alone ; as, for instance, that its open waters are the highway of all nations. Still the fact remains that there are other seas than the ocean whose open waters constitute a free highway for navigation to the nations and people residing on their borders, and are not a free highway to other nations and people, except there be free access to those seas by open waters or by conven- tional arrangements. As thus defined, the term would seem to be as applicable to the open waters of the great northern lakes as it is to the open waters of those bodies usually designated as seas. The Great Lakes possess every essential characteristic of seas. They are of large extent in length and breadth ; they are navigable the whole distance in either direction by the largest vessels known to commerce ; objects are not distinguishable from the opposite shores ; they separate, in many instances. States, and in some instances constitute the boundary between independent nations ; and their waters, after passing long distances, debouch into the ocean. The fact that their waters are fresh and not subject to the tides, does not affect their essential character as seas. Many seas are tideless, and the waters of some are saline only in a very slight degree. The waters of Lake Superior, the most northern of these lakes, after traversing nearly 400 miles, with an average breadth of over 100 miles, and those of Lake ^Michigan, which extend over 350 miles, with an average breadth of 65 miles, join Lake Huron, and, after flowing about 250 miles, with an average breadth of 70 miles, pass into the river St. 136 STATES. [part I. Clair; thence through the small lake of St. Clair into the Detroit River ; thence into Lake Erie and, by the Niagara River, into Lake Ontario ; whence they pass, by the river St. Lawrence, to the ocean, making a total distance of over 2,000 miles. Ency. Britannica, vol. 21, p. 178. The area of the Great Lakes, in round numbers, is 100,000 square miles. Ibid. vol. 11, p. 217. They are of larger dimensions than many inland seas which are at an equal or greater distance from the ocean. The waters of the Black Sea travel a like distance before they come into contact with the ocean. Their first outlet is through the Bosphorus, which is about 20 miles long and for the .'greater part of its way less than a mile in width, into the sea of Marmora, and through that to the Dardanelles, which is about 40 miles in length and less than four miles in width, and then they find their way through the islands of the Greek Archipelago, up the Mediterranean Sea, past the Straits of Gibraltar to the ocean, a distance, also, of over 2,000 miles. In the Genesee Chief Case, 12 How. 443, this court, in considering whether the admiralty jurisdiction of the United States extended to the Great Lakes, and speaking, through Chief Justice Taney, of the general character of those lakes, said: "These lakes are, in truth, inland seas. Different States border on them on one side, and a foreign nation on the other. A great and growing commerce is carried on upon them between different States and a foreign nation, which is sub- ject to all the incidents and hazards that attend commerce on the ocean. Hostile fleets have encountered on them, and prizes been made; and every reason which existed for the grant of admiralty jurisdiction to the general Government on the Atlantic seas applies with equal force to the lakes. There is an equal necessity for the instance and for the l)rize power of the admiralty court to administer international law, and if the one cannot be established, neither can the other." (p. 453.) After using this language, the Chief Justice commented upon the inequality which would exist, in the administration of justice, between the citizens of the States on the lakes, if, on account of the absence of tide water in those lakes, they were not entitled to the remedies afforded by the grant of admiralty jurisdiction of the Constitution, and the citizens of the States bordering on the ocean or upon navigable waters affected by the tides. The court, perceiving that the reason for the exercise of the jurisdiction did not in fact depend upon the tidal character of the waters, but upon their practical navigability for the purposes of commerce, disregarded the test of tide water prevailing in England as inapplicable to our country with its vast extent of inland waters. Acting upon like considerations in the application of the term " high seas " to the waters of the Great Lakes, which are equally navi- gable, for the purposes of commerce, in all respects, with the bodies of CHAP. I.] UNITED STATES V. RODGERS. 137 water usually designated as seas, and are in no respect affected by the tidal or saline character of their waters, we disregard the distinctions inade between salt and fresh water seas, which are not essential, and hold that the reason of the statute, in providing for protection against violent assaults on vessels in tidal waters, is no greater but identical with the reason for providing against similar assaults on vessels in navigable waters that are neither tidal nor saline. The statute was intended to extend protection to persons on vessels belonging to citi- zens of the United States, not only upon the high seas, but in all navigable waters of every kind out of the jurisdiction of any particular State, whether moved by the tides or free from their influence. The character of these lakes as seas was recognized by this court in the recent Chicago Lake Front Case, where we said : " These lakes possess all the general characteristics of open seas, except in the fresh- ness of their waters, and in the absence of the ebb and flow of the tide." "In other respects," we added, "they are inland seas, and there is no reason or principle for the assertion of dominion and sovereignty over and ownership by the State of lands covered by tide waters that is not equally applicable to its ownership of and dominion and sovereignty over lands covered by the fresh waters of these lakes." Illinois Cen- tral liailroad v. Illinois, 146 U. S. 387, 435. It is to be observed also that the term " high " in one of its signifi- cations is used to denote that which is common, open, and public. Thus every road or way or navigable river which is used freely by the public is a " high " way. So a large body of navigable water other than a river, which is of an extent beyond the measurement of one's unaided vision, and is open and unconfined, and not under the exclusive control of any one nation or people, but is the free highway of adjoin- ing nations or people, must fall under the definition of " high seas " within the meaning of the statute. We may as appropriately designate the open, unenclosed waters of the lakes as the high seas of the lakes, as to designate similar waters of the ocean as the high seas of the ocean, or similar waters of the Mediterranean as the high seas of the Mediterranean. The language of section 5346, immediately following the term " high seas," declaring the penalty for violent assaults when committed on board of a vessel in any arna of the sea or in any river, haven, creek, basin, or bay, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State, equally as when committed on board of a vessel on the high seas, lends force to the construction given to that term. The language used must be read in conjunction with that term, and as referring to navigable waters out of the jurisdiction of any particular State, but connecting with the 138 STATES. [part I. high seas meutioned. The Detroit River, upon which was the steamer Alaska at the time the assault was committed, couuects the waters of Lake Huron (with which, as stated above, the waters of Lake Superior and Lake Michigan join) with the waters of Lake Erie, and separates the Dominion of Canada from the United States, constituting the boundary between them, the dividing line running nearly midway be- tween its banks, as established by commissioners, pursuant to the treaty between the two countries. 8 Stat. 274, 276. The river is about 22 miles in length and from one to three miles in width, and is navigable at all seasons of the year by vessels of the largest size. The number of vessels passing through it each year is immense. Between the 3'ears 1880 and 1892, inclusive, they averaged from thirty-one to forty thousand a year, having a tonnage varying from sixteen to twenty- four millions. In traversing the river they are constantly passing from the territorial jurisdiction of the one nation to that of the other. All of them, however, so far as transactions had on board are concerned, are deemed to be within the country of their owners. Constructively they constitute a part of the territory of the nation to which the owners belong. Whilst they are on the nav^igable waters of the river they are within the admiralty jurisdiction bf that country. This jurisdiction is not changed by the fact that each of the neighboring nations may in some cases assert its own authority over persons on such vessels in relation to acts committed by them within its territorial limits. In what cases jurisdiction by each country will be thus asserted and to what extent, it is not necessary to inquire, for no question on that point is presented for our consideration. The general rule is that the country to which the vessel belongs will exercise jurisdiction over all matters affecting the vessel or those belonging to her, without inter- ference of the local government, unless they involve its peace, dignity, or tranquillity, in which case it may assert its authority. WUdenhus's Case, 120 U. S. 1, 12 ; Halleck on International Law, c. vii, § 26, p. 172. The admiralty jurisdiction of the country of the owners of the steamer upon which the offence charged was committed is not denied. They being citizens of the United States, and the steamer being upon navi- gable waters, it is deemed to be within the admiralty jurisdiction of the United States. It was, therefore, perfectly competent for Congress to enact that parties on board committing an assault with a dangerous weapon should be punished when brought within the jurisdiction of the District Court of the United States. But it will liardly be claimed tliat Congress by the legislation in question intended that violent assaults committed upon persons on vessels owned by citizens of the United States in tlie Detroit River, without the jurisdiction of any particular State, should be punished, and that similar offences upon CHAP. I.] UNITED STATES V. KODGERS. 139 persons on vessels of like owners upon the adjoining lakes should be unprovided for. If the law can be deemed applicable to offences com- mitted on vessels in any navigable river, haven, creek, basin, or bay, connecting with the lakes, out of the jurisdiction of any particular State, it Avould not be reasonable to suppose that Congress intended that no remedy should be afforded for similar offences committed on vessels upon the lakes, to which the vessels on the river, in almost all instances, are directed, and upon whose waters they are to be chiefly engaged. The more reasonable inference is that Congress intended to include the open, unenclosed waters of the lakes under the designation of high seas. The term, in the eye of reason, is applicable to the open, unenclosed portion of all large bodies of navigable waters, whose extent cannot be measured by one's vision, and the navigation of which is free to all nations and people on their borders, by whatever names those bodies may be locally designated. In some countries small lakes are called seas, as in the case of the Sea of Galilee, in Palestine. In other countries large bodies of w^ater, greater than many bodies de- nominated seas, are called lakes, gulfs, or basins. The nomenclature, however, does not change the real character of either, nor should it affect our construction of terms properly applicable to the waters of either. By giving to the term "high seas " the construction indicated, there is consistency and sense in the whole statute, but there is neither if it be disregarded. If the term applies to the open, unenclosed waters of the lakes, the application of the legislation to the case under indictment cannot be questioned, for the Detroit River is a water con- necting such high seas, and all that portion which is north of the boundary line between the United States and Canada is without the jurisdiction of any State of the Union. But if they be considered as not thus applying, it is difficult to give any force to the rest of the statute without supposing that Congress intended to provide against violence on board of vessels in navigable rivers, havens, creeks, basins, and bays, without the jurisdiction of any particular State, and inten- tionally omitted the much more important provision for like violence and disturbances on vessels upon the Great Lakes. All vessels in any navigable river, haven, creek, basin, or bay of the lakes, whether within or without the jurisdiction of any particular State, would some time find their way upon the waters of the lakes; and it is not a rea- sonable inference that Congress intended that the law should apply to offences only on a limited portion of the route over which the vessels were expected to pass, and that no provision should be made for such offences over a much greater distance on the lakes. Congress in thus designating the open, unenclosed portion of large bodies of water, extending beyond one's vision, naturally used the same 140 STATES. [part I. term to indicate it as was used with reference to similar portions of the ocean or of bodies which had been designated as seas. When Con- gress, in 1790, first used that terra the existence or the Great Lakes was known ; they had been visited by great numbers of persons in trading with the neighboring Indians, and their immense extent and character were generally understood. Much more accurate was this knowledge when the act of March 3, 1825, was passed, 4 Stat., 115, 0. 65, and when the provisions of section 5346 were re-enacted in the Revised Statutes in 1874. In all these cases, when Congress provided for the punishment of violence on board of vessels, it must liave intended that the provision should extend to vessels on those waters the same as to vessels on seas, technically so called. There were no bodies of water in the United States to any portion of which the term " high seas " was applicable if not to the open, unenclosed waters of the Great Lakes. It does not seem reasonable to suppose that Congress intended to confine its legislation to the high seas of the ocean, and to its navigable rivers, havens, creeks, basins, and bays, without the jurisdiction of any State, and to make no provision for offences on those vast bodies of inland waters of the United States. There are vessels of every description on those inland seas now carrying on a commerce greater than the commerce on any other inland seas of the world. And we cannot believe that the Congress of the United States purposely left for a century those who navigated and those who were conveyed in vessels upon those seas without any protection. The statute under consideration provides that every person who, upon the high seas or in any river connecting with them, as we construe its language, within the admiralty jurisdiction of the United States, and out of the jurisdiction of any particular State, commits, on board of any vessel belonging in whole or in part to the United States, or any citizen thereof, an assault on another with a dangerous weapon or with intent to perpetrate a felony, shall be punished, &c. The Detroit River, from shore to shore, is within the admiralty jurisdiction of the United States, and connects with the open waters of the lakes — high seas, as we hold them to be, within the meaning of the statute. From the boundary line, near its centre, to the Canadian shore it is out of the jurisdiction of the State of Michigan. The case presented is therefore directly within its provisions. The act of Congress of Sep- tember 4, 1890, 26 Stat. 424, chap. 874 (1 Sup. to the Rev. Stat., chap. 874, p. 799), providing for the punishment of crimes subsequently committed on the Great Lakes, does not, of course, affect the construc- tion of the law previously existing. We are not unmindful of the fact that it was held by the Supreme Court of Michigan in People v. Tijler, 7 Michigan, 161, that the criminal CHAP. I.] UNITED STATES V. KODGERS. 141 jurisdiction of the Federal courts did not extend to offences committed upon vessels on the lakes. The judges who rendered that decision Avere able and distinguished ; but that fact, whilst it justly calls for a careful consideration of their reasoning, does not render their conclu- sion binding or authoritative upon this court. Their opinions show that they did not accept the doctrine extending the admiralty juris- diction to cases on tlie lakes and navigable rivers, which is now gener- all}^ we might say almost universally, received as sound by the judicial tribunals of the country. It is true, as there stated, that, as a general principle, the criminal laws of a nation do not operate beyond its terri- torial limits, and that to give any government, or its judicial tribunals, the right to punish any act or transaction as a crime, it must liave occurred within those limits. We accept this doctrine as a general rule, but there are exceptions to it as fully recognized as the doctrine itself. One of those exceptions is that offences committed upon vessels belonging to citizens of the United States, within their admiralty jurisdiction (that is, within navigable waters), though out of the ter- ritorial limits of the United States, may be judicially considered when the vessel and parties are brought within their territorial jurisdiction. As we have before stated, a vessel is deemed part of the territory of the country to which she belongs. Upon that subject we quote the language of Mr. Webster, while Secretar}^ of State, in his letter to Lord Ashburton of August, 1842. Speaking for the government of the United States, he stated with great clearness and force the doctrine which is now recognized by all countries. He said : " It is natural to consider the vessels of a nation as parts of its territory, though at sea, as the state retains its jurisdiction over them ; and, according to the commonly received custom, this jurisdiction is preserved over the ves- sels even in parts of the sea subject to a foreign dominion. This is the doctrine of the law of nations, clearly laid down by writers of received authority, and entirely conformable, as it is supposed, with the practice of modern nations. If a murder be committed on board of an American vessel by one of the crew upon another or upon a pas- senger, or by a passenger on one of the crew or another passenger, while such vessel is lying in a port within the jurisdiction of a foreign state or sovereignty, the offence is cognizable and punishable by the proper court of the United States in the same manner as if such offence had been committed on board the vessel on the high seas. The law of England is supposed to be the same. It is true that the jurisdiction of a nation over a vessel belonging to it, while lying in the port of another, is not necessarily wholly exclusive. We do not so consider or so assert it. For any unlawful acts done by her while thus lying in port, and for all contracts entered into while there, by her master or 142 STATES. [part I. owners, she and they must, doubtless, be answerable to the laws of the place. Xor. if her master or crew, while on board in such port, break the peace of the community by the commission of crimes, can exemption be claimed for them. But, nevertheless, the law of nations, as I have stated it, and the statutes of governments founded on that law, as I have referred to them, show that enlightened nations, in modern times, do clearly hold that the jurisdiction and laws of a nation accompany her ships not only over the high seas, but into ports and harbors, or wheresoever else they may be water-borne, for the general purpose of governing and regulating the rights, duties, and obligations of those on board thereof, and that, to the extent of the exercise of this juris- diction, they are considered as parts of the territory of the nation herself." 6 Webster's Works, 306, 307. We do not accept the doctrine that, because by the treaty between the United States and Great Britain the boundary line between the two countries is run through the centre of the lakes, their character as seas is changed, or that the jurisdiction of the United States to regu- late vessels belonging to their citizens navigating those waters and to punish offences committed upon such vessels, is in any respect impaired. Whatever effect may be given to the boundary line between the two countries, the jurisdiction of the United States over the vessels of their citizens navigating those waters and the persons on board remains unaffected. The limitation to the jurisdiction by the qualification that the offences punishable are committed on vessels in any arm of the sea, or in any river, haven, creek, basin, or bay "without the jurisdiction of any particular State," which means without the jurisdiction of any State of the Union, does not apply to vessels on the " high seas " of the lakes, but only to vessels on the waters designated as connecting with them. So far as vessels on those seas are concerned, there is no limitation named to the authority of the United States. It is true that lakes, properly so called, that is, bodies of water whose dimensions are capable of measurement by the unaided vision, within the limits of a State, are part of its territory and subject to its jurisdiction, but bodies of water of an extent which cannot be measured by the unaided vision, and which are navigable at all times in all directions, and border on different nations or States or people, and find their outlet in the ocean as in the present case, are seas in fact, however they may be designated. And seas in fact do not cease to be such, and become lakes, because by local custom they may be so called.^ ^ Dissenting opinions of Mr. Justice Gray and Mr. Justice Brown omitted. Distinguislied in U. S. v. Peterson, 1894, 64 Fed. 145 ; Bigelow v. Xickerson, 1895, 70 Fed. 116. For international controversies concerning sounds and straits, see the Danish CHAP, I.J THE ALLEGANEAN. 143 (c) Bays. THE " ALLEGAXEAX." (STETSOX V. THE UNITED STATES.) Court of Commissioners of Alabama Claims, 1885. (32 Albany Law Journal, 484; 4 Moore's International Arbitration, 4333; 5 id. 4675.) Claim to recover damages for destruction of a vessel. The opinion states the facts. Henry M. Baker, for claimants. John H. A. Creswell, for United States. Draper, J., delivered the opinion of the court.^ The facts upon which a judgment to the amount of ^69,334.80 is prayed for in this case are substantially as follows : The ship AIleganeaM, .duly registered at tlie port of Xew York, and being recently repaired and well equipped, and entitled to the protec- tion of the United States, cleared with a cargo from the port of Baltimore on the 22d of October, 1862, upon a voyage to London. Six days later, at about 10.30 o'clock in the evening, being at anchor, through rough water in Chesapeake Bay, south of the mouth of the Rappahannock River, and opposite Guinn's Island, she was boarded by some eighteen officers and men of the Confederate navy, commanded by Lieutenants John Taylor Wood and S. Smith Lee. These leaders were commissioned officers in the Confederate navy, and in the attack upon the Alleganean they were acting under the special orders of the Secretary of the Navy of the Confederate States, and the men accompanying them had been specially detailed from the James River squadron, for the purpose of preying upon United States merchant vessels in Chesapeake Bay. They came overland to Chesapeake Bay from the Patrick Henry, an armed and commissioned Confederate vessel, and securing two or three small vessels — the largest being of fifteen or twenty tons burden — had been cruising about two or three nights before the attack. The precise relationship which these vessels bore to the Confederate nav}'^ is left by the evidence in some doubt. Lieutenant Wood says of the vessel in which he operated: '"'She Claim to sound dues (Dana's Wheaton, 264-267; Snow's Am. Dip. 124-127); The Bosphnrus and Dardanelles, (Dana's Wlieaton, 263-264, 273-274, Dana's note, No. Ill ; Schuyler's Am. Dip., 317). — Eu. 1 Hon. Andrew S. Draper, LL.D., now President of the University of Illinois. — Ed. 144 STATES. [part I. was a boat fitted out for this purpose, and attached to the squadron as a tender. She was about fifteen or tvventy tons, armed as customary with this class of boats. * * * The tender which I commanded was one belonging to a regular commissioned ship of the Confederate States navy." Lieutenant Lee says: "We had two small boats that we obtained on the bay shore, with sails and a sailing skiff we cap- tured from two Union men. No boats were brought from Richmond or from any Confederate cruiser." There is no proof, and it was not contended upon the argument, that they were either " in commission " of, or that they bore letters of marque from, the Confederate government, but there seems to be ample evidence that the crews were a part of the naval forces of that government, attached to duly commissioned, armed war vessels, and now only temporarily detached therefrom, and coming directly from such a vessel for this special service, under orders of their Secretary of the Navy. These small boats seem to have carried no armament. Lieutenant Wood says: "The vessels were armed as customary with this class of boats," and that " the men were armed and equipped as men-of-war's men." Lieutenant Lee says, " The vessels carried no guns, but the men were armed with cutlasses and pistols." This force boarded the Allecjanean, as stated, speedily reduced the crew of that vessel to subjection and the state of prisoners of war, and then burned the ship, totally destroying her, except that some few remnants were afterwards picked up and disposed of, the proceeds of which the owners account for in making up their claim. The value of the Alleganean at the time of loss is ])laced by the marine experts on behalf of the Government at $52,591.03, and by the witnesses for the claimants at amounts varying from $60,000 to $75,000. The evidence seems to establish beyond question the fact that the vessel was more than four miles from any shore at the time of capture and destruction. The claimant's counsel, with his case as exhaustively prepared and as fully and ably argued as any which has been before this court, con- tends that these facts establish a right to a judgment, as of the first class, under the provisions of section 5 of the act of June 5, 1882, being a claim " directly resulting from damage done on the high seas by Confederate cruisers during the late rebellion, including vessels and cargoes attacked on the high seas, although the loss or damage occurred within four miles of the shore." The learned counsel on behalf of the United States insists that the claimants ought not to recover. First, because all the waters of Chesapeake Bay, even such as are more than a marine league from shore, are territorial waters of the CHAP. I.] THE ALLEGANEAN. 145 United States, and subject to the exclusive control and jurisdiction thereof, and that in consequence the Alleyanean was not attacked nor the damage done on the "high seas" within the meaning of the term as used in the act under which judgment is claimed. Second, because the persons who destroyed the ship and the vessels employed by them did not constitute a "Confederate cruiser" withiu the meaning of that term as used in the statute. The term " high seas " as used by legislative bodies, the courts and text-writers, has been construed to express a widely different meaning. As used to define the jurisdiction of admiralty courts, it is held to mean the waters of the ocean exterior to low-water mark. As used in international law, to fix the limits of the open ocean, upon which all peoples possess common rights, the "great highway of nations," it has been held to mean only so much of the ocean as is exterior to a line running parallel with the shore, and some distance therefrom, commonly such distance as can be defended by artillery upon the shore, and, therefore, a cannon-shot or a marine league (three nautical or four statute miles). This court, after very able argument by learned counsel, and after much deliberation, has held that the term was used in the act of June .5, 1882, in the same sense in which it is employed by the international law writers. Rich v. United States. From this it necessarily follows that such portions of the waters of Chesapeake Bay^is are within four miles of either shore form no part of the high seas. But much of the bay is more than four miles from shore, and is accessible from the ocean without coming within that distance of the land. The distance between Cape Henry and Cape Charles, at the entrance of the bay, is said to be twelve miles, and it is stated that lines starting from points between the Capes, four miles from each, and running up the bay that distance from either shore, would not intercept each other within 125 miles from the starting points. The evidence shows that the Alleganean was anchored between such lines at the time of destruction. Was she upon the high seas as the court defines the statutory term ? By common agreement all the authorities assert that there are arms or inlets of the ocean, which are within territorial jurisdiction, and are not high seas, Sir R. Phillimore (1 Int. Law, §200), says: "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. * * * Thus Great Britain has iramemorially claimed and exercised exclusive 10 146 STATES. [part I. property and jurisdiction over the bays or portions of the sea cut off by lines drawn from one promontory to another, and called the King's Chambers." Grotius (bk. 11, ch. 3, §§7, 8), and Vattel (vol. 1, bk. 1, ch, 23, § 291) assert substantially the same doctrine, and the later writers follow them. Wheat. Int. Law (Dana's 8th Ed., p. 255) says : " The maritime territory of every state extends to the ports, harbors, bays, mouths of rivers, and adjacent parts of the sea, inclosed by headlands, belonging to the same state. The usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along the coasts of the state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation." Chancellor Kent avows the general doctrine and makes very much broader claims in reference to the jurisdiction of the United States over adjacent waters, and says (Com., vol. l,pp. 29,30) : " Considering the great line of the American coasts, we have a right to claim for fiscal and defensive regulations a liberal extension of maritime jurisdiction; and it would not be unreasonable, as I appre- hend, to assume, for domestic purposes connected with our safety and welfare, the control of Avaters on our coasts, though included within lands stretching from quite distant headlands, as, for instance, from Cape Ann to Cape Cod, and from Nantucket to Montauk Point, and from that yjoint to the Capes of the Delaware, and from the South Cape of Florida to the Mississippi." Dr. Woolsey (Int. Law, § 60), upholds the general doctrine, but thinks the claims of Chancellor Kent are too broad, and rather "out of char- acter for a nation that has ever asserted the freedom of doubtful waters, as well as contrary to the spirit of more recent times." Dr. Wharton (Int. Law, § 192), finishes the subject with the con- clusion : " That it would seem more proper to adopt the test of cannon-shot, * * * wliich would, in case of waters whose headlands belong to the same sovereign, exclude all bays more than eighteen miles in diameter, assuming the range of cannon-shot to be nine miles. But this should be made to yield to usage. If a particular nation has exercised dominion over a bay, and this has been acquiesced in by other nations, then the bay is to be regarded as belonging to such nation." We are quite certain that none of the American courts have passed upon this subject, although decisions holding that specified waters are within or without the jurisdiction of the admiralty courts are numerous. The question has, however, been before the English courts upon two occasions at least. Reg. V. Cunningham, Bell Crown Cas. 72, was the case of a crime CHAP. T.] THE ALLEGANEAN. 147 coiiimitted. upon an American vessel lying in the Bristol Channel, about three-quarters of a mile off the shores of the county of Glamorgan, in Wales, but below or exterior to low-water mark, and perhaps ten miles from the shores of the county of Somerset, in England. The prisoners were indicted and tried in Glamorgan. The question was whether the crime was committed within the county of Glamorgan or upon the high seas. It was held that it was within the count}-. This crime was committed, it is true, within the marine league from shore, but the court did not rest its conclusion upon that ground. Lord Chief Justice Cockburn, delivering the opinion of the court, said : "• Looking at the local situation of this sea, it must be taken to belong to the counties, respectively, by the shores of which it is bounded. * ♦ * The whole of this inland sea, between the counties of Somerset and Glamorgan, is to be considered as within the counties by the shores of which its several ports are respectively bounded." But perhaps the most thoroughly considered and important case is that of Direct U. S. Cable Co. v. Anglo-American Tel. Co. in the House of Lords (2 App. Cas. 394). It came up on an appeal from the Supreme Court of Newfoundland, against an order confirming an injunction preventing the Direct Cable Company from landing their wire upon the soil of Newfoundland, on the ground that it would be an infringement of the rights of the Anglo-American Company. The cable, as a matter of fact, was buoyed in Conception Bay, more than a marine league from shore, and it nowhere came within that distance from the shore, purposely to avoid coming within territorial jurisdic- tion. But it was asserted that the whole of Conception Bay was within the territory and jurisdiction of Newfoundland. The Supreme Court of the province so held, and the determination was upheld by the House of Lords in a somewhat elaborate opinion. This opinion states that Conception Bay is a body of water having an average width of fifteen miles, a distance of forty miles from the head to one of the capes at the entrance, and fifty miles to the other, and a distance of twenty miles between the headlands. Coming to the question, the Lords say (p. 419) : *•' We find an universal agreement that harbors, estuaries, and bays landlocked, belong to the territory of the nation which possesses the shores round them, but no agreement as to what is the rule to deter- mine what is ' a bay ' for this purpose. "It seems generally agreed that where the configuration and dimen- sions of the bay are such as to show that the nation occupying the adjoining coasts also occupies the bay, it is part of the territory, and with this idea, most of the writers on the subject refer to defensi- 1-18 STATES. [PAKT I. bility from the shore as the test of occupation ; some suggesting, therefore, a v/idth of one cannon-shot from shore to shore, or three miles; some a cannon-shot from each shore, or six miles; some an arbitrary distance of ten miles. All of these are rules which, if adopted, would exclude Conception Bay from the territory of New- foundland, but also would have excluded from the territory of Great Britain that part of the British Channel which in Reg. v. Cunningham was decided to be in the county of Glamorgan. It does not appear to their lordships that jurists and text-writers are agreed what are the rules as to dimensions and configuration, which, apart from other considerations, would lead to the conclusion that a bay is or is not a part of the territory of the state possessing the adjoining coasts ; and it has never, that they can find, been made the ground of any judicial determination. If it were necessary in this case to lay down a rule the difficulty of the task would not deter their lordships from at- tempting to fulfill it. But in their opinion it is not necessary so to do. It seems to them that, in point of fact, the British government has for a long period exercised dominion over this bay, and that their claim has been acquiesced in by other nations. * * * This would be very strong in the tribunals of any country to show that by prescrip- tion this bay is a part of the exclusive territory of Great Britain. In a British tribunal it is decisive." We must now examine the local circumstance, the status of Chesapeake Bay, and then determine whether those waters should be held to be the open ocean or jurisdictional waters of the United States in the light of these authorities. The headlands are about twelve miles apart, and the bay is probably nowhere more than twenty miles in width. The length may be two hundred miles. To call it a bay is almost a misnomer. It is more a mighty river than an arm or inlet of the ocean. It is entirely encom- passed about by oun own territory, and all of its numerous branches and feeders have their rise and their progress wholly in and through our own soil. It cannot become an international commercial highway; it is not and cannot be made a roadway from one nation to another. The second charter of King James I. to the Virginia Company in the year 1609 granted : " All those lands, countries, and territories situate, lying and being in that part of America, called Virginia, from the point of land called Cape or Point Comfort, all along the seacoasts to the northward, two hundred miles, and all along the seacoasts to the southward, two hundred miles, and all that space and circuit of land lying from the seacoast of the precinct aforesaid up into the land throughout from sea to sea, west and northwest, together with all the soils, grounds, havens, ports, * * * rivers, waters, fishings," &c. CHAP. I.] THE ALLEGANEAN. 149 This language would seem to place Chesapeake Bay within the boundary lines of Virginia. A line running north (as near as may be) from Point Comfort along the seacoast crosses the mouth of the bay from Cape Henry to Cape Charles. By the King James charter to Lord Baltimore, in 1632, creating the territory of Maryland, the southern boundary line is made to cross Chesapeake Bay from Smith's Point, at the mouth of the Potomac River, to Watkins' Point, on the eastern shore, which apparently places a portion of this bay within the territory of Maryland. Had this not been intended the boundary would presumably have followed the shore line around the bay. It is a part of the common history of the countsy that the States of Virginia and jNlaryland have from their earliest territorial existence claimed jurisdiction over these waters, and it is of general knowledge that they still continue so to do. The legislation of Congress has assumed Chesapeake Bay to be within the territorial limits of the United States. The acts of July 31, 1789, ch. 5 ; August 4, 1790, ch. 35 ; and March 2, 1799, ch. 128, § 11, establishing revenue districts, provided that " the authority of the officers of the district (Norfolk to Portsmouth) shall extend over all the waters, shores, bays, harbors, and inlets comprehended within aline drawn from Cape Henry to the mouth of James River." By section 549, Rev. Stat, U. S., the eastern judicial district of Virginia embraces the " residue of the State," not included in the western district. The boundaries of the State include all of Chesapeake Bay south of a line running from Smith's Point to Watkins' Point, and hence the eastern district must embrace so much of the bay. The position taken by this Government and by England and France in the matter of the British brig Grange, captured in Delaware Bay in 1793 by the French vessel [privateer] V Embiiscade (1 Am. State Papers, 147, 149), has, it seems to us, an important bearing upon the question under discussion. The brig was seized and the crew made prisoners, the two foreign governments being at war. The British government must have demanded that the United States compel France to release the captured vessel on the ground that the seizure was unlawful as having been made in our territorial and neutral waters. The State Papers do not show this demand, but it is not material. The opinion of the Attorney-General was asked, and was given somewhat elabo- rately by Mr, Randoli)li. 1 Op. Att'ys Gen'l, 32, It quotes the text- writers, and concludes that the whole of Delaware Bay is witliin the territorial jurisdiction of the United States, regardless of the marine league or cannon-shot limit from the shore. The learned Attorney- General says : " In like manner is excluded every consideration of how 150 STATES. [part I. far the spot of seizure was capable of being defended by the United States ; for although it will not be conceded that this could not be done, yet will it rather appear that the mutual rights of the States of New J'ersey and Delaware up to the middle of the river supersede the necessity of such au investigation. No. The corner-stoue of our claim is that the United States are proprietors of the lands on both sides of the Delaware from its head to its entrance into the sea." Acting upon the opinion of the Attorney-General, the Secretary of State, Mr. Jefferson, demanded that France should make restitution of the Grange, and set the prisoners taken upon her at liberty, which demand was promptly and cheerfully complied with by the French government. If it be said that the mere claims of a nation to jurisdiction over adjacent waters are to be accepted with some degree of hesitation, then the action in reference to the Grange is of much weight, for there the claim made by the United States was promptly acquiesced in by two great foreign powers, when passions were excited, and when such acquiescence was greatly against the immediate interest of one of the combatants, as well as against the general interest of both. It will hardly be said that Delaware Bay is any the less au inland sea than Chesapeake Bay. Its configuration is not such as to make it so, and the distance from Cape May to Cape Henlopeu is apparently as great as that between Cape Henry and Cape Charles. Eeflection upon the subject has caused the court to consider this question of very considerable national importance. Contingencies might arise which would make it of very grave import. The " high sea" belongs to all alike. It is the great highway of nations. One cannot lawfully do anything upon it which any other has not the right to do. One cannot exercise sovereignty over it. Can an American court concede as much as to Chesapeake Bay ? Other nations, by com- mon consent of all, have well-recognized peaceable rights even in our territorial waters. Ought we to admit that they have any rights hos- tile to the United States, or can we permit belligerent operations be- tween foreign nations within the shores of this bay ? What injustice can be done to any other nation by the United States exercising sover- eign control over these waters ? AVhat annoyance and what injury may not come to the United States through a failure to do so ? Considering therefore the importance of the question, the configura- tion of Chesapeake Bay, the fact that its headlands are well marked, and but twelve miles apart ; that it and its tributaries are wholly within our own territory ; that the boundary lines of adjacent States encompass it ; that from the earliest history of the country it has CHAP. l] THE ALLEGANEAK 151 been claimed to be territorial waters, and that the claim has never been questioned ; that it cannot become the pathway from one nation to another, and remembering the doctrines of the recognized authorities upon international law, as well as the holdings of the English courts as to the Bristol Channel and Conception Bay, and bearing in mind the matter of the brig Grange and the position taken by tlie Government as to Delaware Bay, we are forced to the conclusion that Chesapeake Bay must be held to be wholly within the territorial jurisdiction and authority of the Government of the United States, and no part of the "high seas" within the meaning of the term as used in section 5 of the act of June 5, 1872. Having arrived at the foregoing conclusion it is perhaps unnecessary to consider the second objection to a recov- ery raised by the Government counsel, viz., that the damage was not done by a " Confederate cruiser." But as the claim is important, and as the action of the court is final, it is deemed best that our determi- nation of it should not rest wholly upon our conclusions as to a single complicated law question, and the more so since we entertain very de- cided convictions that under previous decisions the second objection is an insuperable obstacle to recovery by the claimant. The meaning of the term "Confederate crusier" was defined by this court in the case of the Roanoke {Warren v. United States), French, J., delivering the opinion in these words : " We can reach no other conclusion than that the phrase ' Confederate cruiser,' as found in the act of 1882, was intended by Congress to include only armed vessels, public or private, fitted for hostile operations upon the high seas, and acting under the authority of the Confederate government." In the case of the Lenox {Lindscy v. United States), Harlan, J., delivering the opinion of the court, said : " In the opinion of the court the mere presence of armed men on board and in control of a vessel on the high seas is not sufficient to establish the character of the craft as a Confederate cruiser within the meaning of the statute. And if the vessel used in effecting this capture had been of such construction, or so armed and equipped as to be itself an implement of warfare, on the high seas, being under the control of an effective force of armed men, it would still have been necessary to prove by competent evidence that the expedition was at the time acting under the authority of the Con- federate government to bring it within the requirements of tlie statute." Proceeding, the court said: "But if it had been conclusively proved that said Duke (The commander of the Confederate force) was at the time of the capture of th'e Lenox an officer in the Confederate navy, that fact, and his presence in command of a ship on the high seas, would not in the opinion of the court, considered in the light of all the decisions cited on the trial, raise the legal presumption that he was 152 STATES. [part I. acting under the authority of the Confederate government, unless it were also shown that the ship was a public vessel in commission or its tender belonging to the Confederate government. Even if found in command of a private vessel sailing under authority of a letter of marque, his authority would depend on the letter rather than his com- mission as a naval officer." From these decisions, in order to constitute a " Confederate cruiser " there must have been, first, an armed vessel, and second, the vessel must have been a commissioned vessel of the Confederate navy, or she must have carried letters of marque from the Confederate government. Further than this, the fact that the crew were a part of the Confederate naval forces, and were acting under authority of the Confederate government, would not supply the absence of letters of marque. The vessels employed in the destruction of the Alleganean were not armed, they were not in commission, and they had no letters of marque. The official and authorized character of the nien could not do away with the necessity of authority running to the vessels them- selves, nor could the fact that the men were armed supply the lack of armament upon the vessels in order to bring them up to the character of " cruisers." The learned counsel for the claimants, with much earnestness and ingenuity, undertakes to meet the difficulty upon the theory that the vessels employed were tenders to the Patrick Henru, a duly commis- sioned and armed vessel of the Confederate navy, and argues that a cruiser can send her boats and men off to a distance and commit depre- dations at arm's length, and that the damage in this case was in fact and effect done by the Patrick Henry herself. It is difficult to see how this view of the statement of Wood that the boats were tenders of the cruiser can be sustained in the face of his testimony that, "I went at once to Matthews County, Virginia, near Point Comfort, and there found a suitable boat, fitted her as a man-of-war launch " (p. 57, Record), and in the face of the testimony of Lee that " we had two small boats that we obtained on the bay shore, with sails and a sailing skiff we captured from two Union men. No boats were brought from Richmond or from any Confederate cruiser" (p. 20, Record). In the opinion of the court, the claim that these boats were tenders attached to the cruiser must fail, and with it the suggestion that the damage was done b}- the armed vessel tlirough the instrumentality of boats attached to her.^ 1 "It may truly be said, in the words of Lord Stowell, wlicn a ship takes by her boats or tender, slie does all she could have done if present" (Sir C. Robinson, in The Zejthe.rina, I80O, 2 IlagK. 318, ?y2\). Other cases involving the question of "tenders" are: The Odin, 180:3, 4 C. Rob. 018; The Charlotte, 1804, 5 C. Rob. 280. — Ed. CHAP. I.] THE ALLEGANEAN. 153 So far as being effective in this matter, the Henry might as well have been in the Arctic Ocean as over in the James River. Any other body of men to the same number might have done the same work. The force making the capture in this case received no support or assistance from any armed or credentialed war vessel. The difficulty which, it seems to the court, places the case outside of the provisions of the statute, is that the damage was done by the men alone, and not by a vessel, when the act contemplates only damages wrought by an authorized vessel fitted for belligerent operations upon the high seas. Tlie large amount of damages believed to have been suffered by the claimants, the conviction that the claim has much merit in it, the ad- mirable manner in which it was presented, and the fact that the finding of the court is final, have combined to secure for this case much and most painstaking consideration. After such consideration the conclusion is irresistible that however meritorious it mav be in itself, it is not such a claim as Congress intended to make provision for in enacting the statutes under which we are proceeding. Judgment will be entered for the United States. All concur.^ 1 The latter part of tliis opinion should be considered in connection with Part II. chapter 2. The Bay of Funrly is considered, on t1ie contrary, an open arm of the sea. (The Schooner Washinijton, per Bates, Umpire, in Report of the Commission of Chiims, 18G3, p. 170). In the case of Dnnham v. Lamphere, 1855, 3 Gray, 268, before the Supreme Court of Massachusetts, Shaw, C. J., said: " We suppose the rule to be tliat those limits extend a marine league, or three geographical miles, from the shore ; and in ascertain- ing tiie line of shore this limit does not follow each narrow inlet or arm of the sea, but when the inlet is so narrow that persons and objects can be discerned across it by the naked eye, the line of territorial jurisdiction stretciies across from one headland to the other of such inlet." In Mahler v. Trnnsportation Co., 1866, 35 N. Y. 352, Long Island Sound was held to be part of New York State and subject to its jurisdiction. In Manchester v. Massachusetts, 1890, 139 U. S. 240, the court held, nfter an elaborate survey of English and American authorities, that the jurifdiction of Massa- chusetts included the marine belt surrounding it; that Buzzard's Bay, falling within the principle of Dunham v. Lamphere, should be and is governed by it, thereby making Buzzard's Bay for jurisdictional purposes part of Massachusetts; that such bay, being within Massachusetts, that Commonwealth rightfully exercises all rights of ownership and possession, including fisiiing rights and privileges, therein ; that in the absence of affirmative legislation on the part of Congress, vesting the regulation of fishing in such bays, State regulations, as in cases of pilot legislation, must remain with the State. Su-'h bays therefore are not high seas in the sense of international law, and the appor- tionment of jurisdiction over such bodies of water between the respective States and the United States is a matter of municipal, not of international, law, Shively V. Bowlby, 1893, 152 U. S. 1, is a remarkable case, — unfortunately too long to print,— in which the origin, nature and extent of jurisdiction of the United States 154 STATES. [part I. (d) Marginal Seas. THE QUEEN v. KEYN. Court of Crown Cases Eeserved, 1876. (Law Reports, 2 Exchequer Division, 63.) The prisoner was indicted at the Central Criminal Court for the manslaughter of Jessie Dorcas Young on the high seas, and within the jurisdiction of the Admiralty of England. The deceased was a passenger on board the Strathchjde^ a British steamer bound from London to Bombay. This vessel, when one and nine-tenths of a mile from Dover pier-head, and within two and a half miles from Dover beach, was run down and sunk by the Franconia^ a German steamer. In the collision, the deceased woman was drowned, and the prisoner, the captain of the Frmiconia, is convicted of man- slaughter; but a question of law is reserved. An objection was taken on the part of the prisoner that, inasmuch as he was a foreigner, in a foreign vessel, on a foreign voyage, sail- ing upon the high seas, he was not subject to the jurisdiction of any court in this country. The Crown contends that inasmuch as, at the time of the collision, both vessels were within the distance of three miles from the English shore, the offense was committed within the realm of Eng- land, and is triable by the English court. The case was argued before Cockburn, C. J., Lord Coleridge, C. J., Kelly, C. B., Sir K. Phillimore, Bramwell, Pollock, and Amphlett, B. B., Lush, Brett, Grove, Denman, Archibald,^ Field and Lindley, JJ. CocKBURis', C. J ; — " The question is, whether the accused is amenable to our law, and whether there was jurisdiction to try him ? " The legality of the conviction is contested, on the ground that the accused is a foreigner ; that the Fra:icom(i, the ship he com- manded, was a foreign vessel, sailing from a foreign port, bound on a foreign voyage ; that the alleged offense was committed on the high seas. Under these circumstances, it is contended that the accused, though he may be amenable to the law of his own country, is not capable of being tried and punished by the law of England. " The facts on which this defense is based are not capable of and tlie States over navigable waters are carefully and exhaustively discussed. As it is in larfje part a digest-case, no short note of it can well be given. — Ed. 1 Archibald, J., died after the argumout and before the judgment was delivered. 1 CHAP. I.] THE QUEEN V. KEYN. 155 being disputed ; but a twofold answer is given on tlie part of the prosecution: — 1st. That, although tlie occurrence on which the charge is founded took place on the high seas in this sense that tlu place in which it happened was not within the body of a county, it occurred within three miles of the English coast ; that by the law of nations, the sea, for a space of three miles from the coast, is part of the territory of the country to which the coast belongs ; that, consequentlj'', the Franconia, at the time the offense w\as committed, was in English waters, and those on board were therefore subject to English law. " Secondly. That, although the negligence of which the accused was guilty occurred on board a foreign vessel, the death occasioned by such negligence took place on board a British vessel ; and that, as a British vessel is, in point of law to be considered British territory, the offense, having been consummated by the death of the deceased in a British ship, must be considered as having been committed on British territory. * * * "According to the general law, a foreigner who is not resid- ing permanently or temporarily in British territory, or on board a British ship, cannot be held responsible for an infraction of the law of this country. " Unless, therefore, the accused, Keyn, at the time the offense of which he has been convicted was committed, was on British territory or on board a British ship, he could not be properly brought to trial under British law, in the absence of express legislation. * * * " In the reign of Charles II., Sir Leoline Jenkins, then the judge of the Court of Admiralty, in a charge to the grand jury at an Admiralty sessions at the Old Bailey, not only asserted the king's sovereignty within the four seas, and that it was his right and province ' to keep the public peace on these seas ' — that is, as Sir Leoline expounds it, ' to preserve his subjects and allies in their possessions and properties upon these seas, and in all freedom and security to pass to and fro on them, upon their lawful occasions,' but extended this authority and jurisdiction of the King. ' To pre- serve the public peace and to maintain the freedom and security of navigation all the world over ; so that not the utmost bound of the Atlantic Ocean, nor any corner of the Mediterranean, nor any part of the South or other seas, but that if the peace of God and the King be violated upon any of his subjects, or upon his allies or their subjects, and the offender be afterwards brought up or laid hold of in any of His Majesty's ports, such breach of the peace is to be inquired of and tried in virtue of a commission of oyer and terminer as this is, in such county, liberty, or place as His Majesty 156 STATES. [part I. shall please to direct — so long an arm hath God by the laws given to his vicegerent the King.' * * * " Venice, in like manner, laid claim to the Adriatic, Genoa to the Ligurian Sea, Denmark to a portion of the North Sea. " The Portuguese claimed to bar the ocean route to India and the Indian Seas to the rest of the world, while Spam made the like assertion with reference to the "West. " All these vain and extravagant pretensions have long since given way to the influence of reason and common sense. " If, indeed, the sovereignty thus asserted had a real existence, and could now be maintained, it would of course, independently of any question as to the three-mile zone, be conclusive of the present case. But the claim to such sovereignty, at all times unfounded, has long since been abandoned. Xo one would now dream of asserting that the sovereign of these realms has any greater right over the surround- ing seas than the sovereigns on the opposite shores ; or that it is the especial duty and privilege of the Queen of Great Britain to keep the peace in these seas; or that the Court of Admiralty could try a foreigner for an offense committed hi a foreign vessel in all parts of the Channel. " Xo writer of our day, except Mr. Chitty in his treatise on the prerogative, has asserted the ancient doctrine. Blackstone, in his chapter on the prerogative in the Commentaries, while he asserts that the narrow seas are part of the realm, puts it only on the ground that the jurisdiction of the Admiralty extends over these seas. " He is silent as to any jurisdiction over foreigners within them. The concensus of jurists, which has been so much insisted on as authority, is perfectly unanimous as to the non-existence of any such jurisdiction. Indeed, it is because this claim of sovereignty is admitted to be untenable that it has been fomid necessary to resort to the theory of the three-mile zone. " It is in vain, therefore, that the ancient assertion of sovereignty over the narrow seas is invoked to give countenance to the rule now sought to be established, of jurisdiction over the three-mile zone. " If this rule is to prevail, it must be on altogether different grounds. To invoke, as its foundation or in its support, an assertion of sover- eignty which, for all practical purposes, is, and always has been, idle and unfounded, and the invalidity of which renders it necessary to have recourse to the new doctrine, involves an inconsistency, on which it would be superfluous to dwell. I must confess myself unal)le to comprehend liow, when the ancient doctrine as to sover- eignty over the narrow seas is adduced, its operation can be confined CHAP. I.] THE QUEEN V. KEYN. 157 to the three-mile zone. If the argument is good for anything, it must apply to the \Aiiole of the surrounding seas. But the counsel for the Crown evidently shrank from applying it to this extent. Such a pretension Avould not be admitted or endured by foreign nations. That it is out of this extravagant assertion of sover- eignty that the doctrine of the three-mile jurisdiction, asserted on the part of the Crown, and which, the older claim being necessarily abandoned, we are now called upon to consider, has sprung up, I readily admit. * * * " With the celebrated work of Grotius, published in 1609, began the great contest of the jurists as to the freedom of the seas. " The controversy ended, as controversies often do, in a species of compromise. While maintaining the freedom of the seas, Grotius, in his work De Jure Belli et Pads, had expressed an opinion that, while no right could be acquired to the exclusive possession of the ocean, an exclusive right or jurisdiction might be acquired in respect of particular portions of the sea adjoinmg the territory of indi- vidual states. * * * " Other writers adopted a similar principle, but with very varying views as to the extent to which the right might be exercised. Alberi- cus Gentiles extended it to 100 miles; Baldus and Bodinus to sixty. " Loccenius {De Jure 3Iaritimo, cli. iv., s. 6) puts it at two days' sail ; another writer makes it extend as far as could be seen from the shore. Valin, in his Commentary on the French Ordinances of 1681 (ch. v.), w"ould have it reach as far as bottom could be found with the lead line. * * * "Differing altogether from these writers as to the extent of maritime sovereignty, Bynkershoek, an advocate, like Grotius, for the mare liberiim, and who entered the lists against Selden as to the dominion of England in the so-called English Sea, in his treatise De Dominio JIaris, published in 1702, follows up the idea of Grotius as to a limited dominion of the sea from the shore. * * * " After combating the doctrine of a mare clausum as regards the sea at large, and enumerating these inconsistent opinions, wdiich he seems little disjDOsed to respect, Bynkershoek continues : ' Hinc videas priscos juris magistros, qui dominium in mare proximum ausi sunt agnoscere, in regundis ejus finibus admodum vagari incer- tos.' ' Quare omnino videtur rectius,' he adds, after disposing of the foregoing opinions, ' Eo potestatem terras extendi, quo- usque tormenta exploduntur; eatenus quippe, cum imperare, turn possidere videmur. Loquor autem de his temporibus ; quibus illis machinis utimur ; alioquin generaliter decendum esset, potestatem terrse flniri, ubi finitur armorum vis ; etenim haec, ut diximus, pos- sessionem tuetur.' 158 STATES. ^ [part I. " We have here, for the first time, so far as I am aware, a sugges- tion as to a territorial dominion over the sea, extending as far as cannon-shot \Yould reach — a distance wliich succeeding writers fixed at a marme league, or three miles. Prior to this, no one had suggested such a limit, " The jurisdiction, assumed in the Admiralty commissions, or exercised by the Court of King's Bench in the time of the Edwards, was founded on the King's alleged sovereignty over the whole of the narrow seas ; it had no reference whatever to any notion of a terri- torial sea. To English lawyers the idea of this limited jurisdiction was utterly unknown. " With Selden and Hale, tliey stood up stoutly for the King's undivided dominion over the four seas, Xo English author makes any distinction, as regards the dominion of the Crown, between the narrow seas as a whole and any portion of them as adjacent to the shore. The doctrine was equally unknown to the Scotch lawyers. * * * " Even to our times the doctrine of the three-mile zone has never been adopted by the writers on English law. To Blackstone who, in his Commentaries, treats of the sea with reference to the prerogative, as also to his modern editor, Mr. Stephen, it is unknown ; equally so to Mr. Chitty, whose work on the prerogative is of the present century. It was not till the beginning of this centur}^ that any mention of such a doctrine occurs in the courts of this country. But to the continental jurists, the suggestion of Bynkershoek seemed a happy solution of the great controversy as to the freedom of the sea; and the formnla,, potestas Jimtiir tibi Jrnitxir armoruni vis, Avas a taking one ; and succeeding publicists adopted and repeated the rule which their predecessor had laid down, without much troubling themselves to ascertain or inquire whether that rule had been rec- ognized and adopted by the maritime nations who were to be affected by it. * * * " But to what, after all, do these ancient authorities amount ? Of what avail are they towards establishing that the soil in the three- mile zone is part of the territorial domain of the Crown ? These assertions of sovereignty were manifestly based on the doctrine that the narrow seas are part of the realm of England. But that doctrine is now exploded. Who at this day would venture to affirm that the sovereignty thus asserted in those times now exists ? What Eng- lish lawyer is there who would not shrink from maintaining — what foreign jurist who would not deny — what foreign government which would not repel such a i^retension? I listened carefully to see whether such an assertion would be made ; but none was made. CHAP. T.] THE QUEEN oj, KEYN". 159 No one has gone the length of suggesting, much less of openly as- serting, that the jurisdiction still exists. It seems to me, that when the sovereignty and jurisdiction from which the property in the soil of the sea Avas inferred is gone, the territorial property which was sug- gested to be consequent upon it, must necessarily go with it, * * * " It thus appearing, as it seems to me that the littoral sea beyond low-water mark did not, as distinguished from the rest of the high seas, originally form part of the territory of the realm, the question again presents itself, when and how did it become so ? Can a portion of that which was before high sea have been converted into British territory, without any action on the part of the British government or legislature — by the mere assertions of writers on public law — or even by the assent of other nations ? " And when in support of this position, or of the theory of the three-mile zone in general, the statements of the writers on inter- national law are relied on, the question may well be asked, upon what authority are these statements founded ? " When and in what manner have the nations, who are to be af- fected by such a rule as these w-riters, following one another, have laid down, signified their assent to it ? to say nothing of the difficulty which might be found in saying to which of these conJfiicting opin- ions such assent had been given. " For, even if entire unanimity had existed in respect of the im- portant particulars to which I have referred, in place of so much dis- crepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civ- ilized nations of the world. " For writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of govern- ments, or may be implied from established usage, — an instance of which is to be found in the fact that merchant vessels on tlie high seas are held to be subject only to the law of the nation under wiiose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would war- rant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act 160 STATES. [part I. of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably nsurping- the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law, but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas. " When I am told that all other nations have assented to such an absolute dominion on the part of the littoral state, over this por- tion of the sea, as that their ships may be excluded from it, and that, without any open legislation, or notice to them or their sub- jects, the latter may be held liable to the local law, I ask first what proof there is of such assent as here asserted ; and, secondly, to what extent has such assent been carried ; a question of infuiite im- portance, when undirected by legislation, we are called upon to apply the law on the strength of such assent. It is said that we are to take the statements of the publicists as conclusive proof of the as- sent in question, and much has been said to impress on us the re- spect which is due to their authority, and that they are to be looked upon as witnesses of the facts to which they speak, witnesses whose statements, or the foundation on which those statements rest, we are scarcely at liberty to question. I demur altogether to this position. I entertain a profound respect for the opinion of jurists when dealing with the matters of judicial principle and opinion, but we are here dealing with a question not of opinion but of fact, and I must assert my entire liberty to examine the evidence and see upon what foundation these statements are based. " The question is not one of theoretical opinion, but of fact, and, fortunately, the writers upon whose statements we are called upon to act have afforded us the means of testing those statements by reference to facts. They refer us to two things, and t j these alone — treaties and usage. " Let us look a little more closely into both. " First, then, let us see how the matter stands, as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the ad- jacent territory, so that the state shall have exclusive dominion over it, and that the law of the latter shall l)e generally applicable to those passing over it in the ships of other nations, has never been made the subject matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has ever been the sub- ject of diplomatic discussion. It has been entirely the creation CHAP. I.] THE QUEEN V. KEYN, 161 of the writers on international law. It is true that the writers who have been cited, constantly refer to treaties in support of the doc- trine they assert. But when the treaties they refer to are looked at, they will be found to relate to two subjects only — the observance of the rights and obligations of neutrality, and the exclusive right of fishing. In fixing the limits to which these rights should extend, nations have so far followed the writers on international law as to adopt the three miles range as a convenient distance. There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other's coasts as neutral territory, within which no w'arlilce operations sliould be carried on ; instances of which will be found in the various treatises on international law. Thus for instance, in the treaties of commerce, between Great Brit- ain and France, of September, 1786; between France and Russia of January, 1787 ; between Great Britain and the United States, of October, 1794, each contracting party engages, if at war with any other nation, not to carry on hostilities within cannon shot of the coast of the other contracting party ; or, if the other should be at w^ar, not to allow its vessels to be captured within the like distance. There are many other treaties of the like tenor, a list of which is given by Azuni (vol., II p. 78) ; and various ordinances and laws have been made by the different states m order to give effect to them. " Again, nations, possessing opposite or neighboring coasts, border- ing on a common sea, have sometimes found it expedient to agree tliat the subjects of each shall exercise an exclusive right of fishing to a given distance from their own shores, and here also have accepted the three miles as a convenient distance. Such, for in- stance, are the treaties made between this country and the United States, in relation to the fishery oft" tlie coast of Newfoundland, and those between this country and France, in relation to the fisliery on their respective shores ; and local laws have been passed to give effect to these engagements. " But in all these treaties this distance is adopted, not as matter of existing right established by the general law of nations, but as matter of mutual concession and convention. Instead of upholding the doctrine contended for, the fact of these treaties having been entered into has rather the opposite tendency ; for it is obvious that, if the territorial right of a nation bordering on the sea to tliis por- tion of the adjacent waters had been established by the common assent of nations, these treaty arrangements would have been wholly superfluous. 11 162 STATES. [part I. "Each nation would have been bound, independently of treaty engagement, to respect the neutrality of the other in these waters as mach as in its inland waters. The foreigner invading the rights of the local fisherman would have been amenable, consistently with international law, to local legislation prohibiting such infringement, without any stipulation to that effect by treaty. For what object, then, have treaties been resorted to ? Manifestly in order to obviate all questions as to concurrent or conflicting rights arising under the law of nations. "Possibly, after these precedents and all that has been written on this subject, it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes, to the local state. " But it is scarcely logical to infer, from such treaties alone, that, because nations have agreed to treat the littoral sea as belonging to the country it adjoins, for certain specified objects, they have there- fore assented to forego all other rights previously enjoyed in common, and have submitted themselves, even to the extent of the right of navigation on a portion of the high seas, and the liability of their subjects therein to the criminal law, to the will of the local sovereign, and the jurisdiction of the local state. Equally illogical is it, as it seems to me, from the adoption of the three-mile distance in these particular instances, to assume, independently of everything else, a recognition, by the common assent of nations, of the principle that the subjects of one state passing in shijis within three miles of the coast of another, shall be in all respects subject to the law of the latter. It may be that the maritime nations of the world are pre- pared to acquiesce in the appropriation of the littoral sea ; but I can- not think that these treaties help us much towards arriving at the conclusion that this appropriation has actually taken place. At all events, the question remains, whether judicially we can infer that the nations who have been parties to these treaties, and, still further, those who have not, have thereby assented to the application of the criminal law of other nations to their subjects on the waters in question, and on the strength of such inference so apply the crimi- nal law of this country. " The uncertainty in which we are left, so far as judicial knowl- edge is concerned, as to the extent of such assent, likewise presents, I think, a very serious obstacle to our assuming the jurisdiction we are called upon to exercise, independently of the, to my mind, still more serious difficulty, that we should be assuming it without legis- lative warrant. " So much for treaties. Then how stands the matter as to usage, CHAP. I.] THE QUEEN V. KEYN. 1G3 to which reference is so frequently made by tlie publicists in support of their doctrine ? " When the matter is looked into, the only usage found to exist is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined. Usage as to the application of the general law of the local state to foreigners on the littoral sea, there is actually none. No nation has arrogated to itself the right of excluding foreign vessels from the use of its external littoral waters for the purpose of navigation, or has assumed the power of making foreigners in foreign ships passing through these waters subject to its law, otherwise than in respect of the matters to which I have just referred. Nor have the tribunals of any nation held foreigners in these waters amenable generally to the local criminal law in respect of offenses. It is for the first time in the annals of jurisprudence that a court of justice is now called upon to apply the criminal law of the country to such a ease as the present. " It may well be, I say again, that — after all that has been said and done in this respect — after the instances which have been mentioned of the adoption of the three-mile distance, and the repeated asser- tion of this doctrine by the writers on public law, a nation which should now deal ^\ath this portion of the sea as its own, so as to make foreigners witliin it subject to its law, for the prevention and punishment of offenses, would not be considered as infringing the rights of other nations. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but, from the acquiescence of other states, some out- ward manifestation of the national will, in the shape of open prac- tice or municipal legislation, so as to amount, at least constructively, to an occujaation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control. " That such legislation, whether consistent with the general law of nations or not, would be binding on the tribunals of this country — leaving the question of its consistency with international law to be determined between the governments of the respective nations — can of course admit of no doubt. The question is whether such legislation would not, at all events, be necessary to justify our courts in applying the law of this country to foreigners under entirely novel circumstances in which it has never been applied before. * * * "It is unnecessary to the defense, and equally so to the de- cision of the case, to determine whether Parliament has the right 1G4 STATES. [part I. to treat the three-mile zone as part of the reahu consistently with international law. " That is a matter on which it is for Parliament itself to decide. It is enough for us that it has, so far as to be binding upon us, the power to do so. The question is whether, acting judicially, we can treat the power of Parliament to legislate as making up for the ab- sence of actual legislation. " I am clearly of opinion that we cannot, and that it is only in the instance in which foreigners on the sea have been made specifically liable to our law by statutory enactment that that law can be applied to them.* * * "Hitherto, legislation, so far as relates to foreigners in foreign ships in this part of the sea, has been confined to the maintenance of neutral rights and obligations, the prevention of breaches of the revenue and fishery laws, and, under particular circumstances, to cases of collision. " In the two first the legislation is altogether irrespective of the three-mile distance, being founded on a totally different principle, namely, the right of a state to take all necessary measures for the protection of its territory and rights, and the prevention of any breach of its revenue laws. * * * "It is apparent that, with the exception of the penalties im- posed for violation of neutral duties or breaches of the revenue or fishery laws, there has been no assertion of legislative authority in the general application of the penal law to foreigners within the three- mile zone. The legislature has omitted to adopt the alleged sover- eignty over the littoral sea, to the extent of making our penal law applicable generally to foreigners passing through it for the purpose of navigation. Can a court of justice take upon itself, in such a mat- ter, to do what the legislature has not thought fit to do — that is, make the whole body of our penal law applicable to foreign vessels within three miles of our coast ? " It is further apparent from these instances of specific legislation that, when ascertaining its power to legislate with reference to the foreigner within the three-mile zone. Parliament has deemed it neces- sary, wherever it was thought right to subject him to our law, ex- pressly to enact that he should be so. We must take this, I think, as an exposition of the opinion of Parliament that specific legislation is here necessary, and consequently, that without it the foreigner in a foreign vessel will not come within the general law of this country in respect of matters arising on the sea. "Legislation, in relation to foreign ships coming into British ports CHAP. I.] THE QUEEN V. KEYX. 105 and Avaters, rests on a totally different principle, as was well explained by Dr. Lushington, in the case of The Annapolis.^ " ' The Parliament of Great Britain it is true,' says Dr. Lushington, 'has not, according to the principles of public law, any authority to legislate for foreign vessels on the high seas, or for foreigners out of the limits of British jurisdiction ; though, if Parliament thought fit so to do, this court, in its instance jurisdiction at least, would be bound to obey. In cases admitting of doubt, the presumption would be that Parliament intended to legislate without violating any rule of international law, and the construction has been ac- cordingly. " ' Within, however, British jurisdiction, namely, within British territory, and at sea within three miles fr^m the coast, and within all British rivers intra faiices, and over foreigners in British ships, I apprehend that the British Parliament has an undoubted right to legislate. I am further of opinion that Parliament has a perfect right to say to foreign ships that they shall not, without complying with British law, enter into British ports, and that if they do enter they shall be subject to penalties, unless they have previously complied •with the requisitions ordained by the British Parliament whether those requisitions be, as in former times, certificates of origin, or clear- ance of any description from a foreign port, or clean bills of health, or the taking on board a pilot at any place in or out of British juris- diction before entering British waters. " ' ^Yhether the Parliament has so legislated is now the question to be considered.' * * * " In the result, looking to the fact that all pretension to sov- ereignty or jurisdiction over foreign ships in the narrow seas has long since been wholly abandoned — to the uncertainty which attaches to the doctrine of the publicists as to the degree of sovereignty and jurisdiction which may be exercised on the so-called territorial sea — to the fact that the right of absolute sovereignty therein, and of penal jurisdiction over the subjects of other states, has never been expressly asserted or conceded among independent nations, or, in practice, exercised, and acquiesced in, except for violation of neutral- ity or breach of revenue or fishery laws, which, as has been pointed out, stand on a different footing as well as to the fact that, neither in legislating with reference to shipping, nor in respect of the crim- inal law, has Parliament thought proper to assume territorial sover- eignty over the three-mile zone, so as to enact that all offenses committed upon it, by foreigners in foreign ships, should be within the criminal law of this country, but, on the contrary, wherever it 1 Lush. Adm. 295. 166 STATES. [part I. was thought right to make the foreigner amenable to our law, has done so by express and specific legislation. I cannot think that, in the absence of all precedent, and of any judicial decision or authority applicable to the present purpose, we should be justified in holding an offense, committed under such circumstances, to be punishable by the law of England, especially as in so holding we must declare the whole body of our penal law to be applicable to the foreigner passing our shores in a foreign vessel on his way to a foreign port. * * * " Having arrived at this conclusion, it becomes necessary to con- sider the second point taken on the part of the Crown, namely, that though the negligence of which the accused was guilty occurred on board a foreign ship, yet, the death having taken place on board a British ship, the offense fvas committed within the jurisdiction of a British court of justice. * * * "The question is — and this appears to me to have been lost sight of in the argument — not whether the death of the deceased, which no doubt took place in a British ship, was the act of the de- fendant in such ship, but whether the defendant, at the time the act was done, was himself within British jurisdiction. "But in point of fact, the defendant was, at the time of the oc- currence, not on board the British ship, the Strathclyde, but on a foreign ship, the Franconia. * * * "But in order to render a foreigner liable to the local law, he must, at the time the offense was committed, have been within British territory if on land, or in a British ship if at sea. I cannot think that if two ships of different nations met on the ocean, and a person on board of one of them were killed or wounded by a shot fired from the other, the person firing it would be amenable to the law of the ship in Avhich the shot took effect." Lush, J., said, in part : " In the reign of Richard II., the realm consisted of the land within the body of the counties. All beyond low- water mark was part of the high seas. " At that period the three-mile radius had not been thought of. International law, which, upon this subject at least, has grown up since that period, cannot enlarge the area of our muncipal law, nor could treaties with all the nations of the world have that effect. That can only be done by Act of Parliament. As no such act has been passed, it follows that what was out of the realm then is out of the realm now, and what was part of the high seas then is part of the high seas now ; and upon the high seas the Admiralty jurisdic- tion was confined to British ships. Therefore, although, as between nation and nation, these waters are British territory, as being under the exclusive dominion of Great Britain, in judicial language they CHAP. I.] THE QUEEN V. KEYN. 167 are out of the realm, and any exercise of criminal jurisdiction over a foreign ship in these waters must in my judgment be authorized by an Act of Parliament." Lord Coleridge, C. J., dissenting from the opinion of the majority, said, in part * * * " But, first, I think the offense was committed Avithin the realm of England ; and if so, there was jurisdiction to try it. * * * "Kow the offense was committed much nearer to the line of low- water marlc than three miles ; and therefore, in my opinion, upon English territory. I pass by for the moment the question of the exact limit of the realm of England beyond low-water mark, I am of opinion that it does go beyond low- water mark; and if it does, no limit has ever been suggested which would ex- clude from the realm the place where this offense was committed. But for the difference of opinion of the Bench, and for the great def- erence which is due to those who differ from me, I should have said it was impossible to hold that England ended with low-water mark. I do not of course forget that it is freely admitted to be within the competency of Parliament to extend the realm how far soever it pleases to extend it by enactments, at least so as to bind the tribu- nals of the country ; and I admit equally freely that no statute has m plain terms, or by definite limits, so extended it. " But, in my judgment, no Act of Parliament was required. The proposition contended for, as I understand, is that for any act of violence committed by a foreigner upon an English subject within a few feet of low- water mark, unless it happens on board a British ship, the foreigner cannot be tried, and is dispunishable. * * * "By a consensus of writers, without one single authority to the contrary, some portion of the coast-waters of a country is considered for some purposes to belong to the country the coasts of which they wash. * * * "This is established as solidly, as, by the very nature of the case, any proposition of international law can be. Strictly speaking, international law is an inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a law- givei", and a tribunal capable of enforcing it and coercing its trans- gressors. " But there is no common law-giver to sovereign states and no tribunal has the power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and 168 STATES. [PAKT I. acts of state are but evidence of the agreement of nations, and do not in this connty at least ^:)er se hind the tribunals. Neither, certainly does a consensus of jurists ; but it is evidence of the agreement of nations on international points ; and on such points, when they arise, the English courts give effect, as part of English law, to such agree- ment. * * * "We find a number of men of education, of many different nations, most of them uninterested in maintaining any particular thesis as to the matter now in question, agreeing generally for nearly three centuries in the proposition that the territory of a mari- time country extends beyond low-water mark. " I can hardly myself conceive stronger evidence to show that, as far as it depends on the agreement of nations, the territory of mari- time countries does so extend. * * * "If the matter were to be determined for the first time, I should not hesitate to hold that civilized nations had agreed to this prolongation of the territory of maritime states, upon the authority of the writers who have been cited in this argument as laying down the affirmative of this proposition. * * * " Furthermore, it has been shown that English judges have held repeatedly that these coast waters are portions of the realm. It is true that this particular point does not seem ever distinctly to have arisen. Bat Lord Coke, Lord Stowell, Dr. Lushington, Lord Hatherley, L. C, Erie, C. J., and Lord Wensleydale (and the catalogue might be largely extended) have all, not hastily, but in writing, in prepared and deliberate judgments, as part of the reasoning necessary to support their conclusions, used language, some of them repeatedly, which I am unable to construe, except as asserting, on the part of these eminent persons, that the realm of England, the territory of England, the property of the state and Crown of Eng- land over the water and the land beneath it, extends at least so far beyond the line of low water on the English coast, as to include the place A^'here this offense was connnitted. * * * The English and American text writers, and two at least of tlie most eminent Ameri- can judges, Marshall and Story, have held the same thing. "Further — at least in one remarkable instance — the British Parliament has declared and enacted this to be the law. In the pres- ent reign two questions arose between Her Majesty and the Prince of Wales as to the property in minerals below high-water mark around the coast of Cornwall. The first question was as to the prop- erty in minerals l:)etween high and low-water mark around the coasts of that county ; and as to the property in minerals below low- water mark avou by an extension of Avorkings begun above low- water mark. CHAP. I.] THE QUEEN V. KEYN. 169 "The whole argument on the part of the Crown was fonndecl on the proposition that tlie fundus maris below low-water mark, and therefore beyond the limits of the county of Cornwall, belonged in property to the Crown. The Prince was in possession of the dis- puted mines ; he had worked them from land undi)ubtedly his own ; and, therefore, unless the Crown had a right of property in the bed of the sea, not as first occupier — for the Prince was first occupier, and was inoccupation — the Crown must have failed. * * * Sir John Patterson * * * thus expressed himself. — ' I am of opinion, and so decide, that the right to the minerals below low- water mark remains and is vested in the Crown, although those minerals may be won by workings commenced above low-'u-ater mark and extended below it,' and he recommended the passing of an Act of Parliament to give practical effect to his decision, so far as it was in favor of the crown. The Act of Parliament accordingly was passed, the 21 & 22 Vict. c. 109. " We have therefore, it seems, the express and definite authority of Parliament for the proposition that the realm does not end with low- water mark, but that the open sea and the bed of it are part of the realm and of the territory of the sovereign. If so, it follows that British law is supreme over it, and that the law must be administered by some tribunal. It cannot, for the reasons assigned by my Br(3ther Brett, be administered by the judges of oyer and terminer ; it can be, and always could be, by the Admiralty, and if by the Admiralty, then by the Central Criminal Court." The Court quashed the conviction. The majority of the Court was composed of Cockburn, C. J., Kelly, C. B., Bramwell, J. A., Lush and Field, JJ., Sir P. Phillimore and Pollock, B. — Lord Coleridge, C. J., Brett, and Amphlett, J. A., Grove, Denman and Lindley, JJ., dissenting.^ 1 On account of the extreme length of the opinion of the Lord Cliief Justice, a considerable part of it — and' a part interesting and valuable — has been necessarily omitted. This is true notably of that portion consisting of the analysis of cases, and of the abstract of the opinions of text writers. It is regretted, too, that the opinions of the other judges cannot be given. For criticisms of the judgment in this case, see Stephen's History of the Criminal Law, IL, 29-42; Maine's International Law, p. .38; Judge Foster, in the Am. Law Rev., July, 1877; Walker's Science of International Law, p. 173. In consequence of the decision in this case, an act was passed in the session of 1878 (41 and 42 Yict. c. 73), which would seem to adopt the view of the minority of the court. The preamble declares that '" the rightful jurisdiction of her Majesty, her heirs and successors extends and has always extended over the open seas adjacent to the coasts of the United Kingdom, and of all other parts of her Majesty's dominions to such a distance as is necessary for the defense and security of such dominions,"' and that " it is expedient that all offenses committed in tlie open sea within a certain distance of the coasts of the United Kingdom and of all other parts CHAPTER 11. TERRITORIAL JURISDICTION. Section 7. — Rights, Privileges and Immunities of Foreign Sovereigns. (a) Right of Foreign Sovereign to siie in Cotirts of Foreign State. THE REPUBLIC OF MEXICO v. FRANCISCO DE ARRANGOIZ, AND OTHERS. Supreme Court of the City of New York, 1855. (11 Howard's Practice Reports, 1.) Hoffman, Justice. The defendant, Francisco de Arrangoiz, having been arrested under an order made by one of the justices of this court, and given bail to the amount of $60,000, now applies to be discharged upon the insufficiency of the affidavit on which the order was granted, and upon further affidavits and documents on his own part. The first question relates to the form of the undertaking given upon the arrest, and this materially depends upon the correct under- standing of the position of the plaintiff upon the record. The right of a foreign sovereign to sue in the courts of England, upon which Lord Thurlow entertained doubts, has been fully settled and sustained. In the case of The King of Spain v. Machado, 4 Rus- sell, 560, and 1 Bligh, N. S. 60, Lord Redesdale speaks of it as one of of her Mnjesty's dominions, by whomsoever committed, should be dealt with according to law." Tlie act is entitled the Territorial Waters Jurisdiction Act, 1878; and enacts that, " An offense committed by a person, whetlier he is or is not a subject of her Majesty, on tlie open sea within the territorial waters of her Majesty's dominions, is an offense wit'.iin the jurisdiction of tlie Admiral, altliough it may have been committed on board or by means of a foreign ship, and the person who committed such offense may be arrested, tried, and punished accordingly. "But no proceedings under this act are to be instituted against a foreigner, without the consent and certificate of a Secretary of State, or in the case of a colony, the cer- tificate of the Governor. " The Territorial waters of her Majesty's dominions, in reference to the sea, means Buch part of the sea adjacent to the coast of tlie United Kingdom, or tiie coast of some other part of her Majesty's dominions, as is deemed by international law to be within tlie territorial sovereignty of her Majesty; and for the purpose of any offense declared by this act to be within the jurisdiction of the Admiral, any part of tlie open sea witliin one marine league of the coast measured from low-water mark shall be deemed to be open sea within the territorial waters of her Majesty's dominions." — Ed. CHAP. II.] KEPUBLIC OF MEXICO V. ARRANGOIZ. 171 the clearest cases that could be stated : " That he sues as a sovereign, either on liis own behalf, or on behalf of his subjects." See, also, The Nabob of the Carnatic v. East India Company, 1 Vesey, jr., 371 ; The King of Ranover V . Wheatley, 4 Beavan, 78; Hullett v. The King of Spain] 2 Bligh, N. S. 31, and 1 Clark & Finnelly, 33. It will be seen, that in all the English cases in which the right to sue has been admitted, the plaintiff "was a monarch, and was treated as an individual. The case of The City of Berne v. The Bank of Eng- land, 9 Vesey, 348, was decided upon the point of the State not having been recognized by the British government. It is also to be noticed that the bill was by a common councilman, on behalf of himself and his associates in the government. This appears from the report of the case of Bolder y. The Bank of England, 10 Vesey, 353; and in Bolder v. Hiintingfield, 11 Vesey, 283, the suit was by individuals de- scribing themselves as Llandamman and tw^o Statholders of the Hel- vetic Eepublic, in -whom the executive power Avas vested by the constitution. When the case of The King of Spain v. Machado was first before the court, it was held that two persons, the agents of the king, and to whom he had given a power of attorney to collect and deposit the funds, but who hail no interest in the amount, could not be joined with the king as co-plaintiffs. 4. Kussell's Eep. 255. The case of the Colombian Government v. Rothschild, 1 Simons' Rep. 103, is of importance in ascertaining the English rule, not merely be- cause it was decided by a very able judge (Sir John Leach), but that it has received the sanction of Lord Eldon, Lord Redesdale, and Lord Brougham. (Compare the report in the House of Lords in 1 Dow, & Clark, with that in 1 Clark & Finnelly, 33.) The bill was, in form, by the government of the State of Colombia, and Don Manuel T. Hutado, a citizen of such state, and minister plenipotentiary from the same to the court of his Britannic majesty, the place of his residence stated. On general demurrer, it was held that the bill could not be sustained. The vice-chancellor said, that a foreign state is as well entitled to the aid of the court, in asserting its rights, as any individual ; but it must sue in a form that makes it pos- sible for the court to do justice to the defendants. It must sue in the name of some public officers, who are entitled to sue in the name of the state, and upon whom jDrocess can be served on the part of the defendants, and who can be called upon to answer a cross-bill. The general description of the Colombian government precluded the de- fendants from these just rights, and no instance could be stated in which the court had entertained the suit of a foreign state, by such a description. 172 TERRITORIAL JURISDICTIOX. [PART I. The English authorities appear to settle these points. That the sovereign of a foreign state ma\^ sue in the tribunals of the realm, but he sues as an individual. An action cannot be sustained in the name of his agent, although they may be empowered to act in the identical business. He is the partj" in interest. He must swear to answer a cross-bill, if one is required. He would be the party to be examined personall}', whenever such an examination was warranted by the rules of the court. Again : If a State sues, without the individuality of a monarch, some public officer representing it must be upon the record ; and it seems that a minister plenipoteutiary is not such an officer. I cannot think that an examination of the old cases, referred to by counsel in The Xahob of the Carimtic v. The Uast India Compariij, will tend to prove that an ambassador may sustain an action on behalf of his sovereign, notwithstanding the doubts of Lord Kosslyn upon the subject. 3 Vesey, 431. In The King of Spain v. Oliver, 1 Peter's C. C. Eep. 217, 276, an ac- tion for the recover}- of dnties, alleged to be payable to the Crown, was brought in the circuit court, and decided upon its merits. It appears that an application was made for a continuance, to take testimony under a commission, upon the affidavit of the Spanish minister. These are all the authorities I have been able to find upon the sub- ject; and I believe the question is entirely new in our country. The principle which pervades the English case.'? is marked b}- that spirit of equality and justice which is the inmate of English tribunals, and that principle places the sovereign and the peasant on the same footing. But the reason of the English rule lies deeper. It has its origin in that leading doctrine of European policy which, in the language of Guizot, places "the personification of the state in the institution of monarchy." This embodiment of the commonwealth in the individual has given way, over the continent of America, to the idea of the con- centration of the power in the people in an abstraction. Legitimate sovereignty does not find its representative in a king with his person- ality, but in a republic with its idealism. Still there is the same brotherhood and communion of states to be recognized. The same family of nations, though with different names and different forms, exist ; and their rights, and their responsibilities, must be forever the same. The catholic law of nations is identical in its application to all. We must, then, admit these recognized governments to sue in our courts under their federative title, and adapt our forms of proceeding, CHAP. II.] PUIOLEAU V. UNITED STATES. 173 if possible, so as to do justice to all parties ; or we must allow an indi- vidual representative, clothed witli competent authority from his gov- ernment, to act on its behalf, and thus have a party on the record who can. be strictly subjected to those forms. In my opinion, the action can be maintained in tlie name of the re- public as an aggregate body ; and the modes of proceeding in cases of foreign corporations, and of other States of the Union, may be resorted to for the regulations of the practice. Before the Revised Statutes had embodied the law into an express provision, Chancellor Kent had decided that a foreign corporation could file a bill in our Court of Chancery, as well as sustain a suit at law. Silver Lake Bank of Pennsylvania v. North, 4 Jolin. C. R. 371. Such a suit was brought in this court in The Holyoke Bank v. Hast- ings, 4 Sandf. Rep. 675. Our highest court has also settled, that either of the States of the Union may sue in our State courts ; and difficulties of practice are not found insuperable. State of Illinois v. Delafield, 2 Hill, 159, 8 Paige, 527 ; State of Indiana v. Woram, 6 Hill, 36. "With these views, I consider the objection to the undertaking not tenable. The language of the Code admits of the court treating an undertaking, signed by an admitted agent of a foreign government ap- pointed to sue, to be an undertaking on the part of the plaintiff. In the case of Richardson v. Crary, 1 Duer, 666, referred to by the coun- sel of the defendant, the instrument was executed by sureties alone; neither by the plaintiff nor by any one on his behalf.^ PRIOLEAU V. UNITED STATES AND ANDREW JOHNSON. In Equity, 1866. (Law Reports, 2 Equitj, 659.) This was a cross-bill to a suit of United States v. Prioleau. (Siqjra, § 5, a.) The original suit M^as instituted, by the United States of America suing in their corporate capacity to establish their rights to cotton shipped at Galveston, Texas, during the rebellion and consigned to the defendants, for sale in England for the benefit of the de facto Cou- 1 Remainder of opinion omitted. Affirmed on nppeal. 5 Duer, 634. In Kiufj of Pruss'd v. Kiipper, 185G, 22 Mo. 550, citing with approval tlie principal case, it was held that a foreign sovereign could sue in a Missouri court, and that such sovereign may be plaintiff in either State or Federal courts. — Ed. 174 TEKRITORIAL JURISDICTION. [PART I. federate Government. The United States, as plaintiffs, moved for an injunction to restrain the defendants from obtaining- possession of the cotton from the Dock and Harbor Board, and from deahng with it otlierwise than under the direction of tlie phiintiffs, who claimed it as State property to which they had succeeded on the dis- solution of the so-called Confederate Government, The Vice- Chancellor made an order appointing Mr. Prioleau receiver of the cotton under bond of £20,000. Messrs. Prioleau filed this cross-bill against the United State of America and President Andrew Johnson, for the purpose of obtaining discovery m reference to the matters in question in the suit. Xo answer having been put in by President Johnson, the plaint- iffs in the cross -suit moved that the time for closing the evidence in tlie first suit might be enlarged until one month after the defend- ants to the cross-bill had put in their answer, and that, failing such answer, the receivership of Prioleau might be discharged and his recognizances vacated. The following are extracts from the opiuion of Vice-Chancellor Sir W. Page AVood : — " The question in this case is one in some degree novel, but the general principles applicable to it are sufficiently established. The only difficulty in the present case is the particular mode selected by the plaintiffs in the cross-suit for arriving at the object they have in view. A bill being filed by the United States of America, under that description, against the defendants, a cross-bill is filed by the defendants for the purj^ose of obtaining discovery. They cannot, of course, obtain discovery upon oath from a body which is corporate — it is difficult to know how to express its position. It is not a corporation, strictly speaking, but it is a body so far corporate as not to present to the court as a suitor any one individual. Where the suitor is an individual, although he may be the sovereign of a foreign country, and may of himself in reality represent the whole country of which he is sovereign, this court has refused to acknowl- edge him when he comes here as a suitor in any other capacity than as a private individual. It has been determined by the highest au- thority that he must conform to the practice and regulations for administration of justice of the tribiinals to which he resorts for relief ; and among other things * * * he is obliged to answer upon oath. It is also established *** that all persons sued in this countr}'' as a body corporate are amenable to the process of the court, and must answer by one or other of their officers upon oath, inasmuch as it is considered essential to justice that answers shall be made ux)on oath. * * * Now it is quite impossible, on any principle CHAP. II.] UNITED STATES OF AMERICA V. WAGNER. 175 of analogy, to say that the President has "been properly selected, or that he is the person for whose answer npon oath the United States must wait before tliey proceed in tlieir original suit. * * * Now the selection of the President of tlie United States is open at once to tliis objection, tliat tlie court cannot take judicial notice — nor do I sup- pose it is a matter of fact — that the United States Government have control over their President or can compel him to produce papers or the like, and therefore I cannot make any order that the proceed- ings in the original suit be stayed until the President has put in his answer. * * * "I can do no more tlian make an order staying proceedings until the answer of the United States is put in." UXITED STATES OF AMEEICA v. WAGNER. Court of Appeals in Chancery, 1867. {Law Reports, 2 Chancer ij Appeals, 582.) The bill in this suit was filed by " The United States of America " against agents of the Confederacy, doing business at Liverpool. The bill alleges that the defendants liad large quantities of cotton consigned to them — that in 18G5 tlie rebellion -N^'as suppressed and that all the property held by the government of the so-called Con- federate States, including all moneys, goods and ships in tlie power of the defendants, had vested in the plaintiffs. The bill prayed for an account, and for an order of payment of the money in the hands of the defendants, and a delivery of the goods and cotton in their hands. The defendants demurred generally, objecting that the bill should put forward the President of the United States or some state officer, upon whom j)rocess might be served, and who might answer a cross-bill. The demurrer was allowed and now the plaintiffs appeal.^ The opinion of Lord Cairns, L. J., is as follows : — " It is admitted that, upon the statements in the bill, it must be taken that the property claimed in the suit belongs to the L'nited States of America, a foreign sovereign State, adopting the republican form of government, and recognized and treated with as such, and under that style, by Her Majesty; but it is contended that this foreign State, being a republic, cannot sue m its own name, 1 Statement by the editor. 176 TERRITORIAL JUIIISDICTIOX. [PAUT I. and must either associate with it as plaintiff, or proceed in the name of the President of the Republic, or some other officer of state. " A proposition so startling, so grave in its consequences, and in such apparent antagonism to the rules, that the proper plaintiff is to be sought in the owner of the subject matter of the suit, and that a foreign State is at liberty to sue in any of our courts, would seem to require some argument and authority to support it. It was contended then, that when a monarch sues in our courts, he sues as the rep- resentative of the State of which he is the sovereign ; that the property claimed is looked upon as the property of the people or State and that he is permitted to sue, not as for his own property, but as the head of the executive government of the State to which the property belongs : and it was contended, in like manner, that when the property belongs to a republic, the head of the executive, or in other words the President, ought to sue for it. " This argument, in my opinion, is founded on a fallacy. The sovereign, in a monarchical form of government, may, as between himself and his subjects, be a trustee for the latter, more or less limited m his powers over the property which he seeks to recover. But in the courts of Her Majesty, as in diplomatic intercourse with the government of Her ^Majesty, it is the sovereign, and not the State, or the subjects of the sovereign, that is recognized. From him, and as representing him individually, and not his State or kingdom, is an ambassador received. In him individually, and not in a representa- tive capacity is the public property assumed by all other States, and by the courts of other States, to be vested. In a republic, on the other hand, the sovereign power, and with it the public property, is held to remain and to reside in the State itself, and not in any officer of the State. It is from the State that an ambassador is ac- credited, and it is with the State that the diplomatic intercourse is conducted. " It was then contended that the republic of the United States as a body politic, being plaintiff', no effectual discovery could be had from it, or relief against it, on a cross-bill ; that it is a condition of obtaining relief in equity, that discovery may be had against the plaintiff on a cross-bill filed by the defendant ; and that in the case of a corporation, this right is preserved by the rule that its officers may be made co-defendants for discovery. " It is to be observed, however, with regard to the case of a cor- poration, where the court making an exception from its general rules allows persons who are merely witnesses to be made co- defendants for discovery, that the exception does not depend on any reasons springing out of the nature of bills and cross-bills ; for the CHAP. II.] UNITED STATES OF AMERICA V. WAGNER. 177 officers of a corporation may be sued with the corporation, even "where no litigation has been comnienced by the corporation ; nor does the Hability of the officers to discovery affect the question who is to be plaintiff ; for the corporation sues for the corporate property witliout joining any officer of the corporation as a co-plaintiff. " Tlie rule of the court as to corporations, if it proves anything, would seem to show that in a cross-bill against the United States, there would be a right to join some officer of the United States for the puri^ose of discovery. " The Vice-Chancellor appears to have thought that the President of the United States was not an officer who could thus be joined as a defendant, and I do not desire to express an opinion differing in that respect from the opinion of his Honor. But if the reference to suits against corporations does not establish a right to make some officer of the United States a co-defendant to a cross bill, it is, as I think, altogether irrelevant. It is, however, in my opinion, an error to suppose that the right of a plaintiff to sue depends in any way on the effectiveness of the discovery which on a cross-bill can be exacted from him. From an infant, a lunatic, a representative, trustee, or executor, wholly ignorant of the occurrences which are the subjects of the suit, no practical discovery can be obtained, and yet the}^ can maintain a suit. " I apprehend that the only rule is, that the person. State, or cor- poration which has the interest must be the plaintiff, and the court will do the best the law admits of to secure to the defendant such defensive discovery and relief as he may be entitled to. The court can in all cases suspend relief on the original bill until justice is in this respect done to the defendant. " The case of the Columbian Government v. Rothschild^ 1 Sim., 94, however, was said to be, and the Vice-Chancellor appears to have considered that it was, a binding authorit}'- against a suit in this form. I cannot so view that case. The bill was filed in the name of the State of Columbia, and if this bill had been filed in the name of the Government of the United States, the case would have been anala- gous. Dealing with the words before him. Sir John Leach appears to have held, and to have most properly held, that an unkno^^^l and undefined body, such as the government of a State, could not sue by that quasi- corporate name, and the expressions in his judgment seem to me to intimate no more than that if the persons so described could sue at all they must come forward as individuals, and show that they were entitled to represent their State. " Xothing could be more unreasonable than to suppose that by observations of this kiiid Sir John Leach meant to decide for the IJ 178 TERRITORIAL JURISDICTION. [PART I. first time, tliat a republic could not sue in its own Hame, but must have, or must create, some officer to maintam a suit on its behalf. "• I think the demurrer in this case must be overruled." ^ THE SAPPHIRE. Supreme Court of the United States, 1870. (11 Wallace, 164.) Mr. Justice Bradley delivered the opinion of the court. The first question raised is as to tlie right of the French Emperor to 1 Other cases bearing upon the subject of this section are: The King of Spain V. Ilullet and Widder, 1 Clarke and Finnelly, 34S {lS;i>o) : — Don Justo Jose de Machado was appointed by the Spanish government to receive money for that government due from France. Upon receiving it, Machado brouglit the money to England and deposited a considerable portion of it with tlie defendants. Tlie King of Spain applied to Machado for the money, but tliis demand was refused, wliere- upon the King brought a bill for discovery and for payment of the money into court, against Machado (who was out of the jurisdiction). The bill was demurred to for lack of parties, etc., but the demm-rer was overruled, and the defendants appealed, mainly on the ground that it had never been held that a foreign sovereign could sue in courts of equity in England, and on principle such suit slioidd not be allowed. This appeal was dismissed. Fifteen days later, the defendants filed a cross-bill in Chancery, the rules of which court compel tlie identical plaintiff in the original bill to himself swear to his answer to a cross-bill. The plaintiff asked to put in an answer either by his agent, or without oath or signature. Tlie House of Lords refused to deviate from the practice of the court. Rothschild v. Queen of Portugal, 3 Younge and Collyer 594, (1839):— The bill was brought for discovery from the Queen of Portugal, as to matters stated in the bill, and for a commission to examine witnesses in Portugal, and for an injunc- tion to restrain an action commenced against the plaintiff by tlie Queen of Portu- gal. This action was in contract, the Queen suing Messrs. Rothschild on some bonds deposited with them. The present plaintiffs now seek by this bill for dis- covery of certain correspondence and other matters to aid them in their defence. The Queen demurs to the bill on two grounds, (1) that as a sovereign, the suit was not maintainable against her — (2) that the plaintiffs had made no case for dis- covery. The first point only is considered. The court overruled the demurrer, and, in the course of its decision. Baron Alderson said: " I am therefore of opinion that Her Most Faithful Majesty being a suitor voluntarily in a court of English law, becomes subject, as to all matters connected with that suit, to the jurisdiction of the Coui-t of Equity." 1 In Emperor of Austria v. Dai/ ^ Kossuth, 1861, 2 Giff. 628, a foreign sovereign's right to sue was discussed with great learning, especially in Sir llugli Cairns' argument for tiio plaintiff (665-675 ). On appeal, tlie judgment of Vice-Chancellor Stuart grant- ing tiie injunction was affirmed by tlie House of Lords in 3 De Gex., F. & J. 217. The opinion of Lord Justice Turner is especially valuable — Eu. CHAP. II.] THE SAPPHIRE. 170 sue in our courts. On this point not the slightest difficulty exists. A foreign sovereign, as well as any other foreign person, who has a demand of a civil nature against any person here, may prosecute it in our courts. To deny him this privilege would manifest a want of comity and friendly feeling. Such a suit was sustained in behalf of the king of Spain in the third circuit by Justice Washington and Judge Peters in 1810.^ The Constitution expressly extends the judi- cial power to controversies between a State, or citizens thereof, and foreign states, citizens, or subjects, without reference to the subject- matter of the controversy. Our own Government has largely availed itself of the like privilege to bring suits in the English courts incases growing out of our late civil war. Twelve or more of such suits are enumerated in the brief of the appellees, brought within the last five 3'ears in the English law, chancery, and admiralty courts. There are numerous cases in the English reports in which suits of foreign sov- ereigns have been sustained, though it is held that a sovereign cannot be forced into court by suit.*^ The next question is, whether the suit has become abated by the re- cent deposition of the Emperor Napoleon. We think it has not. The reigning sovereign represents the national sovereignty, and that sov- ereignty is continuous and perpetual, residing in the proper successors of the sovereign for the time being. Napoleon was the owner of the Euryale, not as an individual, but as sovereign of France. This is sub- stantially averred in the libel. On his deposition the sovereignty does not change, but merely the person or persons in whom it resides. The foreign state is the true and real owner of its public vessels of war. The reigning Emperor, or National Assembly, or other actual person or party in power, is but the agent and representative of the national sovereignty. A change in such representative works no change in the national sovereignty or its rights. The next successor recognized by our Government is competent to carrj'on a suit already commenced and receive the fruits of it. A deed to or treaty with a sovereign as such inures to his successor in the government of the country. If a substitution of names is necessary or proper it is a for- mal matter, and can be made by the court under its general power 1 King of Spain v. Oliver, 2 Washington's Circuit Court, 431 2 King of Spain v. Ila/letf, 1 Dow & Clarke, 169 ; S. C, 1 Clark & Finnelly, 333 ; S. C, 2Bligl), N. S., 31; Emperor of Brazil, 6 Adolphus & Ellis, 801 ; Queen of Portugal,! Clark & Finnelly, 46(j; King of Spain, 4 Russell, 225; Emperor of Austria, 3 De Gex, Fisher & Jones, 174; King of Greece, 6 Dovvling's Practice Cases, 12 ; S. C, 1 Jurist, 914; United States Law Reports, 2 Equity Cases, 659; Ditto, lb. 2 Chancery Appeals, 582; Duke of Brunswick V. King of Hanover, 6 Beavan, 1; S. C, 2 House of Lords Cases. 1 ; De Haber v. Queen of Portugal, 17 Q. B. 169; also 2 Phillimore's International Law, part vi, chap, i; 1 Daniel's Chancery Practice, chap, ii, § 2. 180 TERRITORIAL JURISDICTION. [PART I. to preserve due symmetry in its forms of proceeding. No allegation has been made that any change in the real and substantial ownership of the Euryale has occurred by the recent devolution of the sovereign power. The vessel has always belonged and still belongs to the French nation. If a special case should arise in which it could be shown that injus- tice to the other party would ensue from a continiiance of the proceed- ings after the death or deposition of a sovereign, the court, in the exercise of its discretionary power, would take such order as the exi- gency might require to prevent such a result. The remaining question relates to the merits of the case. {()) Immunity of Foreign Sovereigyis from Suit. DE HABER v. QUEEX OF PORTUGAL. Queen's Bench, 1851. (17 Queen's Bench, 196.) The plaintiff commenced an action of debt in the court of the Lord Mayor of London against the Queen of Portugal. It appears that he brought action for 12,136/ sterling which he had left in the hands of Ferreiri, a Lisbon banker and which Ferreiri paid over to the Portuguese Government. The plaintilf, proceeding according to the custom of foreign attachment in London, sent outa sunnnons for the defendant to appear. The defendant being called and not appearing, tlie plaintiff alleged that Senhor Guilherne Candida X^avier De Urito, of London, the garnishee had money and effects of the defendant in his hands, and prayed to attach the defendant by that money. The judge awarded an attachment as prayed.^ The judgment of the court was delivered by Campbell, C. J. : — * * * ci Notwithstanding the dictum of Bynl^erslioeJc^ and the outlawry of the King of Spain, supposed to be related by Selden, we cannot doubt that the awarding of the attachment in the present case by the Lord Mayor's Court was an excess of jurisdiction, on the ground that the defendant is sued as a foreign potentate. * * * We have now to consider whether Ave can grant the prohibition on the appli- cation of the Queen of Portugal before she appears hi the Lord Mayor's Court. The plaintiff's counsel argue that, before she can be heard, she must appear and be put in bail, in the alternative, to pay 1 Sliort statement substituted for tliat of tlie reporter. — Ed. CHAP, ir.] DE HABEP. V. QUEEN OF PORTUGAL. 181 or to render. It would be very much to be lamented if, before doing justice to her, we were obliged to impose a condition upon her which would be a further indignity, and a further violation of the law of nations. If the rule were that the application for a prohibition can only be by the defendant after appearance, we should have had little scruple in making this an exception to the rule. But we find it laid down in books of the highest authority that, where the court to which the prohibition is to go has no jurisdiction, a prohibition may be granted upon the request of a strange?', as well as of the defendant himself. " Therefore this court, vested with the power of preventing all inferior courts from exceeding their jurisdiction to the prejudice of the Queen or her subjects, is bound to interfere when duly informed of such an excess of jurisdiction. What has been done in this case by the Lord Mayor's Court must be considered as peculiarly in con- tempt of the Crown, it being an insult to an independent sovereign, giving that sovereign just cause of complaint to the British Gov- ernment, and having a tendency to bring about a misunderstanding between our gracious Sovereign and her ally the Queen of Portugal. " Therefore, upon the information and complaint of the Queen of Portugal, either as the party grieved, or as a stranger, we think we are bound to correct the excess of jurisdiction brought to our notice, and to prohibit the Lord Mayor's Court from proceeding further in this suit. " Rule absolute for a prohibition." ' 1 In Miinden v. D»ke of Brunsicick, 1847, 10 Q. B. 655, it was held insufficient to state tliat defendant was sovereign at time of contracting tlie obligation ; it must be stated that sovereign is sovereign at time of suit filetl or of the i)lea pleaded. In Strousberg v. Republic of Costa Rica (1881), 44 Law Times. lO'J, James, L. J , lays down two exceptions to rule that sovereign may not be sued. " One is that, ' whore a foreign sovereign or state comes into the municipal courts of this country for liie purpose of obtaining a remed}^ then by way of defence to that proceeding — by way of counter claim if necessary to the extent of defeating that claim — the person sued Iiere may file a cross-claim, or take any other proceeding against that sovereign or state for the purpose of enabling com])lote justice to be done between tliem.' The other exception is 'the case iu wliicli a foreign sovereign luay be named as defendant for the purpose of giving him noti(;e of the claim which the plaintiff makes to fiimls in the hands of a third person or trustee over whom this court has jurisdiction.'" Laur- ance, J., in Migliell v. Sultan of Jahore, 1 Q. B. 1894, 149. This latter case practically decides the interesting question of a sovereign sued incognito. If he declares hiuiseif in his sovereign capacity, the suit must drop. In the recent case of So. African Nef>. v. La Compa'jnie Franco-Bdrje S,-c., 1898, L. R., 1 Ch. 190, a foreign sovereign brought suit in England to restrain defendants from using a fund in their liands in certain ways. Defendants set up a claim for damages, upon which it was held, that while a sovereign suing in England submits to the jurisdiction for the purposes of allowing discovery in aid of the defendant in his action he does not submit to what is in its real nature a cross 182 TERRITORIAL JURISDICTION. [PART I. VAVASSEUK V. KRUPP. Chancery, 1878. {Law Reports, 9 Chancery Div., 351.) Josiah Vavasseur, the plaintiff in this case, had brought an action against F. Krupp, of Essen, in Germany, Alfred Longsden, his agent in England, and Ahrens & Co., described as agents for the Government of Japan, claiming an injunction and damages for the infi'ingement of the plaintiffs patent for making shells and other projectiles. The shells in question had been made at Essen, in Germany, had been there bought for the Government of Japan, had been brought to this country and landed here in order to be put on board three ships of war which were being built here for the Govern- ment of Japan, to be used as ammunition for the guns of those ships. On the 18th of January, 1878, an injunction was, without prejudice to any question, granted, restraining the defendants and the owners of the wharf where the shells lay from selling or delivering the shells to the Government of Japan, or to any person on their behalf, or otherwise from parting with, selling, or disposing of the shells and projectiles. On the 11th of May an application to the court was made on be- half of the Mikado of Japan and his Envoy Extraordinary in this country, that, notwithstanding the injunction, the Mikado and his agents might be at liberty to remove the shells, and that if, and so far as might be necessary, the Mikado and his Envoy should for the purpose of making and being heard upon such application be added as defendants in the suit. Upon this application an order was made by the Master of the Rolls that on the Mikado by his counsel submitting to the jurisdic- tion of this court and desiring to be made a defendant, and on pay- ment into court by the Mikado of £100 as security for costs the name of the Mikado be added as a party defendant in the action. Notice of motion was then given on the part of the Mikado that action. Another claim arising: from another and distinct matter may not be set up. On this case of first impression, see 11 Harv. Law Rev. 551. The rule may be tlius expressed, "once a sovereign, always a sovereign," at least for anything done while and in tlie capacity of a sovereign. See Hutch v. Boez, 1876, 7 Hun, 596, cited a«te in UnJerhill v. Hernandez, 1895, 26 U. S. Appeals, 573, 578; Duke of Brunswick v. King of Ilanorer, 1848, 2 H. L. Cas. 1-16 cited 577-578 of same case. — Ed. CHAP. II ] VAVASSEUR V. KRUPP. 183 the injunction might be dissolved, and that the Mikado might be at liberty to take possession, and remove, out of the jurisdiction of the court, the shells in question, the property of his Imperial Majesty.^ James, L. J., Brett, L. J., and Cotton, L. J., concurred, each deliver- ing an opinion. The following is that of Brett, L. J. : — " It does not seem to me that in this case there is any fact whatever in dispute. " These shells were made by Krupp at Essen. That was no in- fiingenient of the plaintiff's patent. In Germany they were sold to the Mikado and paid for by the agents of the Mikado. Xone of these facts are in dispute ; and this purchase and sale was a perfectly lawful purchase and sale. The Mikado had three ships of war build- ing in this country, and he desired that these shells should be sent to this country and put on board these ships. They were sent to this country by the order and by the authority of the Mikado, through Ahrens & Co. They were brought into this country, and they were deposited on a wharf. The plaintiff then finding these shells in this countrj^ and finding, as he alleges, that the}^ were made according to the process of his patent, asserts that the bringing them into this country by Ahrens & Co. is an infringement of his patent by them ; and thereupon he brings an action against Ahrens & Co., for the in- fringement. In that action he claims an injunction against Ahrens & Co., and it may be that he claims an order from the court to destroy those shells because he says they are an infringement of his patent. In the course of that suit an injunction is obtained against Ahrens & Co., and against others, which injunction in terms forbids them from delivering these shells, which with other things are in their pos- session, to the ships of the Mikado, and in fact forbids them from sending the shells to Japan. To this action the Mikado was no party, but he or his agents here come forward and claim to have the delivery and possession of these shells. The defendants in the action are not unwilling to give the shells to the Mikado, but they say, ' If we do so, it may be said that we have broken the injunction, and we may therefore be liable to certain penalties.' It seems to me beyond dispute that this was the purpose for which the Mikado came in and desired to be made a party to the suit, and the Master of the Rolls thus descril)es the purpose. [His Lordship then read the judgment of the Master of the Rolls.] Now it is said that in the first place there is a dispute whether these shells are the property of the Mikado. It is argued that if he were a private individual, then, although he has purchased these shells and paid for them, yet, inas- 1 Short statement substituted for tliat of reporter. — Ed. 184 TEREITORIAL JITvISDICTION. [PART I. much as there has been an infringement of the patent, the property is not in liim, because the court may order the shells to be destroyed. Is that argument good or not? To my mind it is utterly fallacious. The patent law has nothing to do with the property. The facts here are undisputed that Krupp made them with his own materials in Germany, where he had a right to make them ; that he entered into a contract to sell specific shells to the Mikado ; that that contract was performed, and that the shells were paid for, and that they Avere delivered in Germany to the Mikado's agent. Well, unless the patent law prevents the property from passing, nobody can doubt that the property passed to the Mikado. Therefore the dispute is not upon facts, but upon a false theory of law, that the patent law prevented the property from passing. I am clearly of opinion that the patent law did not prevent the property from passing. The goods were the property of the Mikado. They were his property ao a sovereign ; they were the property of his country ; and therefore he is in the position of a foreign sovereign having property here. " Whether the fact of Ahrens & Co. bringing these goods into England under these circumstances, and with this intention, was an infringement of the patent, I decline to consider. I shall assume for this purpose that it was an infringement, and that we have in this country property of the Mikado which infringes the patent. If it is an infringement of the patent by the Mikado you cannot sue him for that infringement. If it is an infringement by the agents, you may sue the agents for that infringement, but then it is the agents whom you sue. The injunction is against the agents, the 3Iikado being then no party to the action, and not being forbidden to do anything. He then comes here as a sovereign, and requires the delivery of his own goods. His onlj difficulty is the injunction against the agents, and for the purpose of enabling the court to make an order, he what is called ' submits himself to the jurisdiction of the court.' I think the interpretation put by the Master of the Rolls upon the order then made is right, and that it was only an order that the Mikado might be made a defendant for the purpose of enabling the court to make the order which the court has made. He now says ' I know not, and I care not, whether my agents have infringed your patent law. I have property in the country, which property is my own. I demand that it shall be delivered to me, and I make myself a defendant in your court merely for the purpose of your modifying the order which you have made, so that my agents may not be injured in con- sequence of their delivering to me my own property.' " And the only order that the Master of the lioUs has made is that these goods may be delivered up to the Mikado ; the meaning CHAP. II.] VAVASSEUR V. KRUPP. 185 of which is that the mere fact of the Mikado taking these sliells away shall not be considered as against Ahrens & Co. an infringement of the injunction. That is tlie whole effect of this order. The ."Mikado has a perfect right to have these goods ; no court in this country can properly prevent him from having goods which are the public prop- erty of his own country. Therefore it seems to me that this order which is really made for the benefit of Ahrens & Co., was an order rightly made, and that this appeal cannot be sustained." In regard to the point of submission to the jurisdiction, Cotton, L. J., said : — " It is said that although under ordinary circumstances there is no jurisdiction as against a foreign sovereign, yet that in this pai'ticular case there is jurisdiction in consequence of the Mikado having come in and obtained the order of the 11th of May. It is said that a sovereign suing submits himself to the court as an ordinary plaintiff, and that the Mikado, in consequence of having obtained this order and acted upon it, puts himself in the position of an ordinary plaintiff. In the first place, there is this fallacy : the Mikado is not now in any Avay suing in the ordinary sense of the word, nor has he come to the court to establish as against an adverse claim his title to the property, which is really what is meant by a foreign sovereign coming here to sue to establish his rights. He is simply coming, and saying, ' The order of the court, possibly in- advertently, interferes with my sovereign rights. To prevent any question as to the defendants' committing a breach of the injunction by allowing me to remove the property, make an order that they be at liberty, notwithstanding the injunction, to hand them over to me! " So that, in my opinion, the very foundation for the suggestion fails. " But again, even if the Mikado had brought himself into court as an ordinary defendant, that, in my opinion, would not give the court jurisdiction as against the subject-matter, namely, jurisdiction to in- terfere with the public property of .Japan, Avhich is represented here by the Mikado. But Avhen one comes to look at the form of tlie order, the Mikado does not by it cg>me in as an ordinary defendant. By it he simply says ' I wish to bring before the court the facts : that these are my property, that the defendants were not constructing tliera under a contract for me, or using them under a contract with me, I wish to show that they are my property. I Avish to apply for liberty to remove them as the public property of the state of Japan, and for that purpose, if necessary, I ask to come in.' " In my opinion, the order taken fairly must be read with reference to the purpose for Avhich the Mikado applied, and that being so, al- though possibly the form is not very happy, it is like a conditional 186 TEREITORIAL JURISDICTION. [PART I. appearance entered where a defendant who considers himself improp- erly served with any proceeding, has entered a conditional appearance, in order to contest the questions, which he could not do without an appearance of some sort. It cannot, in my opinion, be said that the order puts the Mikado in the position of a plaintiff or of a person who is made simjyliciter a defendant. He came in for the particular purpose of raising this question, and the form of the order, in my opinion, ought not in any way to prejudice the rights which he would have had independently of that order." James, L. J. : — " This appeal is dismissed with costs." ^ JOSEPH D. BEEES v. THE STATE OF AEKANSAS. Supreme Court of the United States, 1857. (20 Howard, 527.) Mr. Chief Justice Taney delivered the opinion of the court. ^ This was an action of covenant, brought in the Circuit Court for Pulaski County, in the State of Arkansas, to recover the interest due on sundry bonds issued by the State, and which the State had failed to pay according to its contract. The constitution of the State provides, that "the General Assembly shall direct by law in what courts and in what manner suits may be commenced against the State." And in pursuance of this provision, a law was accordingly passed; and it is admitted that the present suit was brought in the proper court, and in the manner authorized by that law. ^ In Manning v. Nicaragua, 1857, 14 How. Pr, 517, it was held that although sovereigns, or sovereign states cannot be sued in the courts of another state or nation for the purpose of enforcing any remedy against them, yet a state may be made defendant in an action for the purpose of giving it an opportunity to appear, thus enabling a court to decide more intelligently and equitably, in relation to demands which are sought to be enforced against other defendants ; tliat states as well as individuals are the best judges of what affects their own dignity and advan- tage, and it may be safely left to their sovereign option to determine whether tiiey will take part or not in a judicial controversy — Ed. 2 Only the opinion of the court is given, and of this the last paragraph is omitted. — Ed. CHAP. II.] BEERS V. THE STATE OF ARKANSAS. 187 The suit was instituted in the Circuit Court on the 21st of Novem- ber, 1854. And after it was brought, and while it was pending in the Circuit Court, the Legislature passed an act, which was approved on the 7th of December, 1854, which provided, "that in every case in which suits or any proceedings had been instituted to enforce the collection of any bond or bonds issued by the State, or the interest thereon, before any judgment or decree should be rendered, the bonds should be produced and filed in the office of the clerk, and not with- drawn until final determination of the suit or proceedings, and full payment of the bonds and all interest thereon; and might then be withdrawn, cancelled, and filed with the State treasurer, by order of the court, but not otherwise." And the act further provided, that in every case in which any such suit or proceeding had been or might be instituted, the court should, at the first term after the commence- ment of the suit or proceeding, whether at law or in equity, or whether by original or cross bill, require the original bond or bonds to be produced and filed; and if that were not done, and the bonds filed and left to remain filed, the court should, on the same day, dis- miss the suit, proceeding, or cross-bill. Afterwards, on the 25th of June, 1855, the State appeared to the suit, by its attorney, and, without pleading to or answering the declaration of the plaintiff, moved the court to require iiim to file immediately in open court the bonds on which the suit was brought, according to the act of Assembly above mentioned; and if the same were not filed, that the suit be dismissed. Upon this motion, after argument by counsel, the court passed an order directing the plaintiS to produce and file in court, forthwith, the bonds mentioned and described in the declaration. But he refused to file them, and thereupon the court adjudged that the suit be dismissed, with costs. This judgment was afterwards affirmed in the Supreme Court of the State, and this writ of error is brought upon the last-mentioned judgment. The error assigned here is, that the act of Dec. 7, 1854, impaired the obligations of the contracts between the State and the plaintiff in error, evidenced by and contained in each of the said bonds, and the indorsement thereon, and was therefore null and void, under the Constitution of the United States. The objection taken to the validity of the act of Assembly cannot be maintained. It is an act to regulate the proceedings and limit the jurisdiction of its OAvn courts in suits where the State is a party defendant, and nothing more. It is an established principle of jurisprudence in all civilized 188 TERRITORIAL JCRISDICTIOX. [PAKT I. nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be con- ducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. Arkansas, by its Constitution, so far waived the privilege of sovereignty as to authorize suits to be instituted against it in its own courts, and delegated to its General Assembly the power of directing in what courts, and in what manner, the suit might be commenced. And if the law of 18.54 had been passed before the suit was instituted, we do not understand that any objection would have been made to it. The objection is that it was passed after this suit was iuotituted, and contained regulations with which the j^laintiif could not conveniently complv. But the prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the State consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterwards, if, upon experience, it was found that further provisions were neces- sary to protect the public interest; and no such contract can be im- plied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were then pending. That was a question for the consideration of the Legisla- ture. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the State, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this latter power, the State violated no contract with the parties; it merely regulated the proceedings in its own courts, and limited the jurisdiction it had before conferred in suits when the State consented to be a party defendant. Nor has the State court, in the judgment brought here for review, decided anything but a question of jurisdiction. It has given no deci- sion in relation to the validity of the contract on which the suit is brought, nor the obligations it created, or the rights of parties under it. It has decided, merely, that it has no right under the laws of the State to try these questions, unless the bonds given by the State are filed. The plaintiff refus6d to tile them pursuant to the order of the court, and the case was thereupon dismissed, for want of juris- diction in the court to proceed further in the suit. There is evi- CHAP, n.] HEATHFIELD V. CHILTON. 189 dently nothing in the decision, nor in the act of Assembly under which it was made, which in any degree impairs the obligation of the contract, and nothing which will authorize this court to reverse the judgment of the State court. The writ of error must therefore be dismissed, for want of jurisdic- tion in this court.* Section 8. — Immunities of Diplomatic Agents. HEATHFIELD v. CHILTOX. Court of King's Bench, 1767. (4 Burrow, 2015.) On showing cause why the defendant should not be discharged out of the custody of the marshal (upon 7 Ann. c. 12) as a domestic ser- vant to Paul Pierre Eussell, minister from the Prince Bishop of Liege — he swore himself to be bo7ia fide English secretary to him; and to have been bona fide hired by him as such ; and to have bona fide received wages as they became due, at the rate of £30 per annum. 1 See tlie very valuable note to this case in Lawyer's edition of Sup. Ct. Reports, 2d ed., in wliicli the learning on this subject is wellnigh exhausted. " This principle of immunity from suit," it is tliere said, " applies to every sovereign power, whether the form of government is monarchical or republican. It is essential to the common defence and general welfare. Briggs v. The Light Boats, 11 Allen, 162; The Siren, 7 Wall. 152 ; U. S. v. Lee, 106 U. S. 196. And but for the protection which it affords the Government would be unable to perform the various duties for which it was created. Nicholas v. U. S., 7 Wall. 122, 126." See, also, an instructive note in 15 Harv. Law Rev. 59. In tlie United States this immunity from suit is, however, subject to the constitutional provision by whicli States in certain cases are made suable (Art. IIL sect. 2). This is the familiar and elementary doctrine of the Supreme Court on this subject. A recent statement of it follows : " It is a fundamental prin- ciple of public law, affirmed by a long series of decisions of tliis court, . . . that no suit can be maintained against the United States or against their property, in any court, without express authority of Congress, 147 U. S. 512. See, also, Beliiap v. Schild, 161 U. S. 10. The United States, by various acts of Congress, have consented to be sued in their own courts in certain classes of cases; but they have never consented to be sued in the courts of a State in any case. Neither the Secretary of War nor tiie Attorney-General, nor any subordinate of either, has been authorized to waive the exemption of the United States from judicial process, or to submit the United States, or their property, to the jurisdiction of the court in a suit brought against their officers. Ca.se V. Terrell, 11 Wall. 199, 202; Carr v. U. S., 98 U. S. 4?A 438; U. S. v. Lee, 106 U. S. 196, 205." (Mr. Justice Gray in Stanley v. Schwalbi/, 1895, 162 U. S. 270.) - Kd. ' \»-aA^*.-- ■ ,- - ' ■ ■ - ;« • 190 TERRITORIAL JURISDICTION. [PART I. Both tlie minister himself and the relation of this man to him were objected to. But Chilton's own affidavit was positive, as to the service, and that it was real and not colorable ; and it was confirmed by a Mr. Chamber- layne, who called himself Secretary. He also swore that he was not an object of the bankrupt laws. He had been house-steward to Lord Northington. No certificate was produced, under the hand and seal of the minister; though the present application was made (as the attorney alleged) on the part of the minister; nor was it sufficiently sworn that the defendant was in the service of the minister, at the time when he was arrested. Lord jMaxsfield. — The privileges of public ministers and their retinue depend upon the law of nations; which is part of the com- mon laAV of England. And the act of Parliament of 7 Ann. c. 12 did not intend to alter, nor can alter the law of nations. His lordship recited the history of that act, and the occasion of it, and referred to the annals of that time. He said there is not one of the provi- sions in that act which is not warranted by the law of nations. The law of nations will be carried as far in England as anywhere, because the Crown can do no particular favors, affecting the rights of suitors, in compliment to public ministers, or to satisfy their points of honor. The law of nations, though it be liberal, yet does not give protec- tions to screen persons who are not bona fide servants to public min- isters, but only make use of that pretence in order to prevent their being liable to pay their just debts. The law of nations does not take in consuls, or agents of commerce; though received as such by the courts to which they are employed. This was determined in Barbuit's Case in Cane, which was solemnly argued before and determined by Lord Talbot on considering and well-weighing Barbeyrac, Binkershoek, Grotius, Wincquefort, and all the foreign authorities (for there is little said by our own writers on this subject). In that case several curious questions were debated. If I did not think there was enough in the present case, already appearing to the court, to enable us to form an opinion, I should desire to know in what manner this minister was accredited. Cer- tainly he is not an ambassador, which is the first rank. Envoy, indeed, is a second class ; but he is not shown to be even an envoy. He is called "minister," 'tis true, but minister (alone) is an equivo- cal term. I find this is not an application by the attornej'-general by the direction and at the expense of the Crown. That, indeed, would have CHAP, n.] HEATHFIELD V. CHILTON. 191 shown that the Crown thought this person entitled to the character of a public minister. It now remains uncertain what his proper character is. But supposing him to be a minister of such a kind as entitles him to privilege ; yet I think this is not a case of privilege by the law of nations, for the defendant does not appear to have been in the service of the minister at the time of the arrest. A public minister shall not take a man from the custody of the law; though the process of the law shall not take his menial servant out of his service. Here it is not sworn when the defendant came into the service. And upon the manner of swearing here used, the court must take it "that he was not in the minister's service at the time of the arrest." Mr. Justice Yates was not in court. Mr. Justice Ashtox concurred. The rule laid down by Lord Maxsfield is a very right one. The process of the law shall not, indeed, take a person out of the service of a public minister; but, on the other hand, a public minister cannot take a person out of the custody of the law. If a man has no such privilege at the time of his being arrested, no subsequent privilege can be given him, by being afterwards taken into the service of a public minister. Therefore, as it does not appear here that the defendant was then in the service, he cannot be entitled to this privilege. This is a true and right principle, and the establishing it may pre- vent many of these applications. Mr. Justice Hewitt concurred, and repeated and confirmed the principle; and agreed that it does not here appear that the defend- ant was, at the time of the arrest, in the service of this minister. Lord Mansfield took occasion to observe that the registering the name of the defendant in the Secretary of State's office, and transmit- ting it to the sheriff's office (mentioned in the fifth section), relates only to the bailitf who arrested him and is no condition precedent to the being entitled to the privilege of a public minister's servant. In this, Mr. Justice Ashton also concurred. Per cur. unanimously. Rule discharged.^ 1 See the early case of Cross v. Talbot, 10 Geo. 1, 8 Mod. 288 ; and see § 1, nnle, for Triquet V. Bath, 1704, 3 Burr. 1478. The following are famous cases from the te.\t- books, cited incidentally, but not decided in the law reports : A. Cases of criminal juris- diction : Case of Leslie, Bishop of Ross, 1571, to the effect that the ambassador of a deposed sovereign is entitled to diplomatic immunity, 2 Ward's Law of Nations, 486; Mendoza's Case, 1584, holding that an ambassador should not be punished, but may be sent out of the country, ib., 522j Case of Da Sa, 1653, in which the 192 TERRITORIAL JURISDICTION. [PART I. PAEKIXSOX V. POTTER. Queen's Bexch, 1885. {Law Reports, 16 Queen's Bench Div., 152.) Wills, J.^ The plaintiff in this case sues the defendant for paro- chial rates which he has paid, and which he contends he is entitled to be repaid by virtue of the defendant's covenant with him. The plaintiff is the owner and the defendant the lessee of a house, in respect of the occupation of which the rates were assessed. The defendant has assigned or sublet to Senhor Pinto de Basto, who is said to be an attache of the Portuguese embassy and who has on that ground refused to pay them. Under a local act the landlord is liable in such a case; and the first question that arises is whether the per- son in question was entitled to the immunity which he has claimed. The evidence that Senhor Pinto de Basto is an attache to the Portuguese legation is slight, but I think there is evidence of the fact. It seems that he is known at the embassy as an attache, and is there spoken to and spoken of as an attache, and treated as an attache. It seems that there is no salary attached to the post, but that the government of his country can exact from him certain small services; and that he has in fact been employed by the minister occa- sionally to write letters and to take messages, and to help in the translation of documents connected with the diplomatic work of the embassy, and that he goes often to the embassy and places him- self at the disposal of the ambassador. brotlier of an ambassador and a member of bis suite was executed for sedition and murder, ib. 537; Gyllenborg's Case, 1717, deciding tbat an ambassador who conspires to overtiirow tlie government to wiiicii be is accredited may be arrested and liis papers seized, ib. 548; Prince Cellamare's Case, 1718, wliere an ambassador was arrested and conducted across the frontiers into liis own countrj- for conspiring against tbe accrediting state, 1 Martens' Causes Cclebres, 149. B. Civil jurisdiction : Case of Peter tlie Great's Ambassador, 1708, § 1, ante, and 1 Black. Com. Cii. VIII; Case of Baron de Wrech, 1772, in wliich tbe Frencli Government witlilield a minister's pass- ports until bis debts were paid, 2 Martens' Causes Ce'lebrcs, 282; Wlieaton's Case, ISas), Dana's Wiieaton, 307-318; 5 Martens' C. C. 205; Dame v. nerran, 1863, 1 Daly (N. Y.), 344, 346; Dillon's Case, 1854, liolding tbat a treaty stipulation exempting consul from appearing as witness in court, yields to constitutional privilege of com- pulsory process to compel presence of witnesses, 1 Wliarton's Diucst, 665; [In Re Dillon, 1854, 7 Sawyer, 561, same case, 7 Fed. Cases, 10); Case of Dubois, 1856, recognizing that a foreign minister cannot be compelled to appear in court as a witness, Sen. Ex. Doc. No. 21, 34th Cong., .3d Rcss. — Ed. 1 The statement of the case and the opinion of Mathews, J., are omitted. In addi- tion to cases cited by Wills, J., see Hopkins v. De Robeck, 1789, .3 T. II. 79. — Ed. CHAP. II.] PARKINSON IK POTTER. 193 I think this is evidence upon which the county court judge might fairly find that he Avas an attache. If it be once ascertained that he was a person treated at the embassy as a member of the legation, possessing in diplomatic matters more or less of the confidence of the minister and employed from time to time by him in the work of the legation, I think it is not for us to measure the quantum of the services either required from or rendered by him. If there Avere any reason to suppose that the so-called appointment was a sham, as in a case reported in the books, in which a Christian clergyman was sup- posed to be domestic chaplain to the ambassador of the Emperor of ]\[orocco; if he were one of an inordinate number of idlers nominally attached to the embassy and not wanted there, or there were any other circumstances from which it might be gathered that the appointment was not bona fide, the case would be otherwise. But I can Very well understand that, seeing the close connection between diplomatic busi- ness and some of the matters which it falls to a consul-general to transact, there may be a convenience in clothing the consul-general with the additional character of an attach^, which may explain and justify his appointment in that capacity, although his services in a diplomatic character may be only slight and occasional. An attache is a well-known term in the diplomatic service. He forms part of the regular suite of an ambassador. He is classed by Calvo, the author of an elaborate French work on international law, published in 1880, and written with admirable clearness and with a copiousness of historical illustration which makes his treatise most interesting as well as instructive, along with "Conseillers et Secre- taires," and he gives a common description of the functions of all three classes of officers as consisting in supporting the minister in all things, in preparing and forwarding official despatches, in carry- ing out communications by word of mouth with the public adminis- trative authorities of the country to which the minister is accredited, in classifying and keeping charge of the archives of the mission, in ciphering and deciphering despatches, in making minutes of the letters which the minister may have to write, and similar services; and he treats the attache as undoubtedly entitled to all the immuni- ties accorded to the suite of an ambassador: Calvo, International Law, Vol. I., p. 486. One of these immunities, insisted upon by all writers on interna- tional law with whose works I have any acquaintance, as beyond question, is the complete exemption from the jurisdiction of the courts of the country to which the minister is accredited. They are all, so far as I have been able to ascertain, equally clear in the opinion that the exemption extends to the family and suite of 13 194 TETJEITORIAL JFEISDICTION. [PART I. the ambassador. "This immunity," says Wheaton, "extends not only to the person of the minister but to his family and suite, secretaries of legation and other secretaries, his servants, movable effects, and the house in which he resides " : International Law, Ed. 1863, p. 394:. Again, "the wife and family, servants, and suite of the minister participate in the inviolability attached to his public character": Ibid. 397. For these propositions he quotes Grotius, Bynkershoek, Vattel, and Martens, and he treats these privileges as essential to the dignity of his sovereign and to the duties he is bound to perform. Martens says, "The exemption from civil jurisdiction, contentious and voluntary alike, is general, and belongs to ministers throughout the whole extent of the country in which they reside. They enjoy it for themselves, for their suite, and for their effects, in as far, be it always understood, as they do not travel out of their diplomatic character " : Guide Diplomatique, Vol. I., p. 81. To the same effect is the statement by Calvo: "The staff of the mission, the v.'ife and family of the diplomatic agent, participate in these pre- rogatives," and amongst the prerogatives there enumerated is that "he is exempt from the local jurisdiction of the country into which he is sent; no legal process can be brought against him before the tribunals of the place of his residence ": Vol. I., p. 381. "The per- son who enjoys exterritoriality," says the German Bluntschli, "can- not be subjected to any impost " : International Law Codified, art. 138. "The family, the staff, the suite, and the servants of him who has the right of exterritoriality," says the same writer, "enjoy the same immunity as himself. His suite have the right but indirectly and on account of him to whom they are attached " : Art. 145. " Such persons are exempt from jurisdiction": Art. 147. "The immunity of the person exempted extends to the members of his suite": Heffter, International Law of Europe, sec. 42, VI. These are amongst the most recent French and German authorities upon the subject, and are for the most part subsequent to those cited in the elaborate arguments in Taylor v. Best, 14 C. B. 487, and Magdalena Steam Navigation Co. V. Martin, 2 E. »& E. 94; and, so far as I have been able to ascertain, no writer on international law appears to entertain any doubt upon this point. It was urged for tlie defendant that there are English authorities conflicting with these propositions. I do not think it is so, if they are carefully considered. It was said that in Fislier v. Begrez, 1 C. & M. 117, it was held that the goods of a chorister to the Bavarian embassy were not privileged from execution under a fi. fa. ; but in that case the sheriff had not executed they?. /a.; nor was the protec- tion of the court claimed by the ambassador or his servant. The CHAP. II.] . PAKKINbON V. POTTER. 195 sheriff claimed to be exempt from the duty of levying. The defend- ant had allowed himself to be sued and the action to proceed to judgment and execution without claiming the privilege, and the sheriff applied to the court upon affidavits which were quite insuffi- cient to show, and failed to satisfy the court, that there was any foundation for the allegation that the defendant was then in the service of the Bavarian minister. In Novella v. Toogood, 1 B. & C. 554, it was held that the goods of a chorister in the service of the Portuguese ambassador were not privileged from distress for poor-rates. But in that case the servant was carrying on the business of a lodging-house keeper in the house in question. j\[ost writers on international law say that with regard to an ambassador even, although he does not lose his privileges as an ambassador by engaging in trade in the country to which he is accred- ited, yet the immunity of his goods does not extend to protect his stock in trade. The ratio decidendi in Novello v. Tongood, supra, is that the plaintiff Novello, who claimed exemption from poor-rate, was carrying on the business of 3, lodging-house keeper in the house in question. An exception from the privilege of being exempt from jurisdiction is, by the statute of 7 Ann., c. 12, sec. 5, specifically applied to the case of an ambassador's servant carrying on a trade; and in Novello v. Toogood, supra, Abbott, G. J., so far from hinting a doubt as to the general principle that the immunity from process extends to the ser- vant of the ambassador, observes, "I do not say that he may not have a house lit and convenient for his situation as the servant of an am- bassador, nor that the furniture in such a house will not be privi- leged." It may be added that Novello was a British-born subject, and that most writers on international law are of opinion that a subject of the country in which the ambassador is resident remains subject to the law of his country, and that in respect of him the immunity which would be afforded to a foreigner cannot be claimed. Poitier v. Croza, 1 Wm. Bl. 48, was cited, but in that case the court was convinced that the alleged service was a sham. Eeliance was placed on Taylor v. Best, 14 C. B. 487, 490. But the substance of the decision in that case was that, where the ambassador had voluntarily appeared as one of several defendants, and defended the action up to judgment, he had waived his privilege, and it was too late for him to apply to have all further proceedings stayed or to have his own name struck out of the record. It is true that Maule, J., expressed doubts as to whether an ambassador in England could claim a complete immunity from all English process. But that doubt was removed and pronounced to be ill-founded in the considered and 196 TERRITORIAL JURISDICTION. [PART I. elaborate judgment of the court of Queen's Bench in Magdo.lena Steam Naviyation Co. v. Martin, 2 E. & E. 94, iu which it was held that the minister of a foreign country cannot be sued against his will in this country, although the action may arise out of commercial trans- actions carried on by him here. There is, therefore, nothing in the current of English authorities to contravene the doctrine of exemp- tion from process — a part of the privileges which constitute the "exterritoriality" of foreign jurists — as laid down by the writers on internatioiial law: and there is nothing in the circumstances of this case to prevent its application to Senhor de Basto. He is not carry- ing on trade nor letting lodgings; and the house in question is simply the private residence of himself and his family; and I am of opinion that he was not liable to pay the rates assessed upon him in respect of his occupation. It follows that under s. 190 of the local act the plaintiff, as the landlord of his house, was liable to pay them; and, having paid them, it is clear that, under the covenant sued upon, the defendant is bound to recoup him. The judgment of the county court judge was right, therefore, and the appeal must be dismissed with costs. Appeal dismissed.^ 1 In Macartney v. Garbutt, 1890, 24 Q. B. D. 3G8, it was held that this immunity extended to a diplomatic agent, although a subject of the receiving county, unless the immunity were specifically limited before receiving such agent. "Where, however, a British subject in debt was appointed honorary attache of the Persian embassy for the purpose of escaping bankruptcy, diplomatic immunity from suit was disallowed. (In Re Cloete, 1891, 65 L. T. 102, 7 Times R., 565.) In other words, for the immunity to attach, the claimant must be actually and bona fid" in the diplomatic service, either as agent or servant; if the claim be colorable merely it will be rejected. On this point the autliorities are numerous and unanimous: Lockwood V. Dr. Cui/sgarne, 1165, 3 Burr. 1676; Fisher v. Begrez, 1832, 1 C. & M. 117; same case, 2 C. & M. 240, and cases cited in argument of case as reported in 1 C. & M. While tlie diplomatic agent may waive immunity of his servant, he cannot in the United States waive his own immunity, as this is the privilege of his State, not a personal privilege. (U. S. v. Benner, 1830, Bald. 234.) In Guiteait's Trial (1881), 1 Wharton's Digest, 669, Senor Camacho, minister from Venezuela, who was present at President Garfield's assassination, was called as a wit- ness for the prosecution. Before he was sworn the following statement was made by the district attorney : " If your honor please, before the gentleman is sworn, I desire to state, or rather I think it due to the witness to state, that he is the minister from Venezuela to this Government, and entitled under the law governing diplomatic relations to be relieved from service by subpopna or sworn as a witness in any case. " Under tiie instructions of his government, owing to the friendship of that government for the United States, and the great respect for the memory of the man who was assassinated, they have instructed him to waive his rights and appear as a witness in the case, the same as an}' witness who is a citizen of this country." Jltsjmblica v. Ue Longchamps, 1 Dallas, 110 (1784): — The defendant threatened to CHAP, n.] IN EE BAIZ. ' 197 IN EE BAIZ. Supreme Court of tue United States, 1889o (135 United States, 403.) Mr. Chief Justice Fuller delivered the opinion of the court. ■^ The judicial power of the United States extends to "all cases affect- ing ambassadors, other public ministers, and consuls." Const. Art. Ill, sec. 2. By section 687 of the Revised Statutes, it is provided that the Supreme Court "shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have consistently assault the Secretary of the French Legation, the threats being made in the house of the Frencli minister. Tlie defendant was fined •'^500 and imprisoned two years. Unittd States v. Liddle, 2 Wash. Circ. Ct. 205 (1808) :— Indictment for assault and battery on a member of the Spanish Legation. The law is tiie same wiiether the attacked is a private party or an ambassailor, viz., if the ambassador was the prior assaulting party, the defendant is excused for his subsequent assault. The law of nations identifies the propertj' of tlie foreign minister, attaclied to his person or in his use, with his person. To insult them is an attack on the minister, and liis sovereign ; but to constitute an offence against a foreign minister, the defendant must have known tliat the house attacked was the domicile of a minister, for other- wise it is only an offence against the municipal laws of the state, U. S. v. Hand, 1810, 2 Wash. C. C. 435. United States v. Ortega, 4 Wash. Circ. Ct. 531 (1825) : — Indictment for an assault on the Spanish Ciiarge d'Affaires. Cites Liddle's case and affirms it: "A foreign minister, by committing the first assault, so far loses his privilege, that he cannot complain of an infraction of the law of nations ; if, in his turn, he should be assaulted by tlie party aggrieved." Nitchencoff's Case, 1865, 10 Solic. La%v Journal, 56 : " The French Court of Cassation has quaslied the appeal of Nitchencoff, tlie Russian sentenced to imprisonment for life for a murderous attack upon M. de Balsh, in the liouse of the Russian Ambassador in Paris. It will be remembered that this case gave rise to a diplomatic correspondence, the Russian Government having disputed the riglit of the French courts to try tiie murderer, and claimed a right to have him given up for trial in Russia. The court laid down the law that "the fiction of the law of nations, according to which tlie house of an ambassador is reputed to be a continuation of tlie territory of liis sovereign, only protects diplomatic agents and their servants, and does not exclude the jurisdiction of French courts, in case of a crime committed in such a locality by a person not belonging to the embassy, even although he is a subject of the nation from which the ambassador is accredited." On the subject generally see the excellent note to Dana's Wheaton, 303-307 ; 5 Op. Att. Gen. 76; U. S. Rev. St. 1875, §§ 4062-4005. — Ed. ^ Only so much of the opinion is given as relates to the claim of diplomatic im- munity. — Ed. 198 TERRITORIAL JURISDICTION. [PART I. with the law of nations ; and original, but not exclusive, jurisdictiou of all suits brought by ambassadors, or other public ministers, or in which a consul or a vice-consul is a party." By section 563 it is pro- vided that " the District Courts shall have jurisdiction as follows ; * * * Seventeenth. Of all suits against consuls or vice-consuls," except for certain offences. The petitioner has been, since July, 1887, the con- sul general of the Kepublic of Guatemala, and therefore the District Court had jurisdiction of the action in question, unless he belonged to the class of official personages subject to suits or proceedings only in this court. This he insists was the fact, and avers in his petition, as he did in his plea in the District Court, that at tlie time of the com- mencement of the action and until and including tlie 10th day of July, 1889, which was the eighth day after service of process upon him, he was " the acting minister and sole representative of said republic [of Guatemala] in the United States," and for that reason came witliiu the words of section 687, " other public ministers." The exemption asserted ceased on the lOth of July, 1889, and on the 17th of July the petitioner gave a general notice of appearance in the action, but did not set up the want of jurisdiction until the 25th of the following September. Suit could have been brought in that court against him on the 11th day of July, but as in his view this could not liave been done on the 29th of June or the 2d of July, he contends that the District Court should be ordered to dismiss the suit, though it could at once be recommenced tlierein. But it is said that the appearance did not waive the right to be sued in this court rather than in the District Court, because that was the privilege of the country or government which he represented. Without pausing to inquire how far this is a correct application of the international privilege of not being sued at all, its assertion, even in this restricted form, serves to emphasize petitioner's contention that he was at that time the minister or diplomatic agent of the republics of Guatemala, Salvador and Hon- duras in the United States, intrusted by virtue of his office with authority to represent those republics in their negotiations and to vindicate their prerogatives. Under section 2, Art. II., of the Consti- tution, the President is vested with power to '' appoint ambassadors, other public ministers and consuls," and by section 3 it is provided that "he shall receive ambassadors and other public ministers." These words are descriptive of a class existing by the law of nations, and apply to diplomatic agents whether accredited by the United States to a foreign power or by a foreign power to the United States, and the words are so used in section 2 of Art. III. These agents may be called ambassadors, envoys, ministers, commissioners, charge's d'affaires, agents, or otherwise, but they possess in substance the CHAP. II.] IN RE BAIZ. 199 same functions, rights and privileges as agents of their respective governments for the transaction of its diplomatic business abroad. Their designations are chiefly significant in the relation of rank, prec- edence or dignity. 7 Opinions Atty. Gen. (Cashing), 18G. Hence, when in subdivision fifth of section 1674 of the Eevised Statutes we find "diplomatic officer" defined as including "ambas- sadors, envoys extraordinary, ministers plenipotentiary, ministers resident, commissioners, charges d'affaires, agents and secretaries of legation, and none others," we understand that to express the view of Congress as to what are included within the term "public ministers," although the section relates to diplomatic officers of the United States. But the scope of the words " public ministers " is defined in the legislation embodied in Title XLVIL, " Foreign Relations," Rev. Stat., 2d Ed. 783. Section 4062 provides that " every person who violates any safe conduct or passport duly obtained and issued under authority of the United States; or who assaults, strikes, wounds, imprisons or in any other manner offers violence to the person of a public minister, in violation of the law of nations, shall be imprisoned for not more than three years, and fined, at the discretion of the court." Section 4063 enacts that whenever any writ or process is sued out or prosecuted by any person in any court of the United States, or of a State, or by any judge or justice, whereby the person of any public minister of any foreign prince or state, authorized and received as such by the President, or any domestic or domestic servant of any such minister, is arrested or imprisoned, or his goods or chattels are distrained, seized or attached, such writ or process shall be deemed void. Section 4064 imposes penalties for suing out any writ or process in violation of the preceding section; and section 4065 says that the two preceding sections shall not apply to any case where the person against whom the process is issued is a citizen or inhabitant of the United States "in the service of a public minister," and process is founded upon a debt contracted before he entered upon such service ; nor shall the preceding section apply to any case where the person against whom the process is issued is a " domestic servant of a public minister," unless the name of the servant has been registered and posted as therein prescribed. Section 4130, which is the last section of the title, is as follows : " The word ' minister,' when used in this title, shall be understood to mean the person invested with, and exercising, the principal diplo- matic functions. The word ' consul ' shall be understood to mean any person invested by the United States with, and exercising, the func- tions of consul general, vice-consul general, consul or vice-consul." Sections 4062, 4063, 4004 and 4065 were originally sections 25, 26, 200 TERRITORIAL JURISDICTION. [PART I. 27 and 28 of the Crimes Act of April 30, 1790, Cli. 9, 1 Stat. 118; and these were drawn from the statute 7 Anne, c. 12, which was declaratory simply of the law of nations, which Lord Mansfield observed, in Heath- field V. Chiton, 4 Burr, 2015, 2016, the act did not intend to alter and could not alter. In that case, involving the discharge of the defendant from custody, as a domestic servant to the minister of the Prince Bishop of Liege, Lord Mansfield said : "I should desire to know in what manner this minister was accredited — certainly, he is not an ambassador, which is the first rank — envoy, indeed, is a second class ; but he is not shown to be even an envoy. He is called ' minister,' 't is true ; but minister (alone) is an equivocal term." The statute of Anne was passed in consequence of the arrest of an ambassador of Peter the Great for debt, and the demand by the Czar that the sheriff of Middle- sex and all others concerned in the arrest should be punished with instant death, 1 Bl. Com. 254; and it was in reference to this that Lord Ellenborough, in Viveash v. Becker, 3 M. & S. 284, where it was held that a resident merchant of London, who is appointed and acts as consul to a foreign prince, is not exempt from arrest on mesne process, remarked: "I cannot help thinking that the act of Parlia- ment, which mentions only ' ambassadors and public ministers,' and which was passed at a time when it was an object studiously to com- prehend all kinds of public ministers entitled to these privileges, must be considered as declarator}^, not only of what the law of nations is, but of the extent to which that law is to be carried." Three cases are cited by counsel for petitioner arising under or in- volving the act of 1790. In United States v. Liddle, 2 Wash. C. C. 205, in tlie case of an indictment for an assault and battery on a mem- ber of a foreign legation, it was held that the certificate of the Secre- tar}^ of State, dated subsequently to the assault and battery, is the best evidence to prove the diplomatic character of a person accredited as a minister by the government of the United States. The certificate from the Secretary of State, Mr. Madison, stated that " wlien Mr. Feronda produced to the President his credentials as charge des affaires of Spain, he also introduced De Lima, as a gentleman attached to the legation and performing the duties o-f secretary of legation," and the certificate was held to be the best evidence to prove that Feronda was received and accredited, and that at the same time De Lima was pre- sented and received as secretary attached to the legation. In United States V. Ortega, 4 Wash. C. C. 531, there was produced in court an official letter from the Spanish minister to the Secretary of State, informing him that he had appointed Mr. Salmon charge d'affaires; a letter from the minister to Mr. Salmon ; a letter from the Secretary CHAP, n.] IN EE BAIZ. 201 of State addressed to the Spanish minister, recognizing the character of Mr. S-almon ; two letters from the Secretary of State addressed to Mr. Salmon as charge d'affaires ; and the deposition of the chief clerk of the State Department that Mr. Salmon was recognized by the Presi- dent as charge d'affaires, and was accredited by the Secretary of State. In United States v. Benupr, Baldwin, 234, the court was furnished with a certificate from the Secretary of State that the Danish minister had by letter informed the department that ]\Ir. Brandis had arrived in this country in the character of attache to the legation, and that said Brandis had accordingly, since that date, been recognized by the department as attached to the legation in that character. These cases clearly indicate the nature of the evidence proper to establish whether a person is a public minister within the meaning of the Constitution and the laws, and that the inquiry before us may be answered by such evidence, if adduced. Was Consul General Baiz a person '•' invested with and exercising the principal diplomatic functions," within section 4130, or a "diplo- matic officer," within section 1674 ? His counsel claim in their motion that he was "the acting minister or charge d'affaires of the E-epublics of Guatemala, Salvador and Honduras in the United States," and so recognized by the State Department, and that he exerciced diplomatic functions as such, and therefore was a public minister, within the statute. By the Congresses of Vienna and Aix-la-Chapelle four distinct kinds of representation were recognized, of which the fourth comprised charges d'affaires, who are appointed by the minister of foreign affairs, and not as the others, nominally or actually by the sovereign. Under the regulations of this Government the representatives of the United States have heretofore been ranked in thi-ee grades, the third being charges d'affaires. Secretaries of legation act ex officio as charges d'affaires ad interim, and in the absence of the secretary of legation the Secretary of State may designate any competent person to act ad interim, in which case he is specifically accredited by letter to the minister for foreign affairs. Wheaton says : " Charges d'affaires, accredited to the ministers of foreign affairs of the court at which they reside, are either charges d'affaires ad hoc, who are originally sent and accredited by their go\^- ernments, or charges d'affaires ad interim, substituted in the place of the minister of their respective nations during his absence." Elements Int. Law (8th Ed.), § 215. Ch. de Martens explains that " charges d'affaires ad hoc on perma- nent mission are accredited by letters transmitted to the minister of foreign affairs. Charges d'affaires ad interim are presented as such 202 TERRITORIAL JURIttDICTION. [PART I. by the minister of the first or second class when he is about to leave his position temporarily or permanently." Guide Diplomatique, Vol. I, p. 61, § 16. "They," observes Twiss in his Law of Nations, 192, "are orally invested with the charge of the embassy or legation by the ambassador or minister himself, to be exercised during his absence from the seat of his mission. They are accordingly announced in this character by him before his departure to the minister of foreign affairs of the court to which he is accredited." Diplomatic duties are sometimes imposed upon consuls, but only iu virtue of the right of a government to designate those who shall represent it in the conduct of international affairs, 1 Calvo, Droit Int. 586, 2d Ed., Paris, 1870, and among the numerous authorities on inter- national laws, cited and quoted from by petitioner's counsel, the atti- tude of consuls, on whom this function is occasionally conferred, is perhaps as well put by De Clercq and De Vallat as by any, as follows : " There remains a last consideration to notice, that of a consul who is charged for the time being with the management of the affairs of the diplomatic post; he is accredited in this case in his diplomatic capacity, either by a letter of the minister of foreign affairs of France to the minister of foreign affairs of the country where he is about to reside, or by a letter of the diplomatic agent whose place he is about to fill, or finally by a personal presentation of this agent to the min- ister of foreign affairs of the country." Guide Pratique des Consulats, Vol. 1., p. 93. That it may sometimes happen that consuls are so charged is rec- ognized by section 1738 of the Revised Statutes, which provides : "No consular officer shall exercise diplomatic functions, or hold any diplomatic correspondence or relation on the part of the United States, in, with, or to the government, or country to which he is appointed, or any other country or government when there is in such country any officer of the United States authorized to perform diplomatic functions therein ; nor in any case, unless expressly authorized by the President so to do." But in such case their consular character is necessarily subordinated to their superior diplomatic character. " A consul," observed Mr. Justice Story, iu The Anne, 3 Wheat. 435, 445, " though a public agent, is supposed to be clothed with authority only for commercial purposes. He has an undoubted right to interpose claims for the restitution of property belonging to the subjects of his own country ; but he is not considered as a minister, or diplomatic agent of his sovereign, intrusted by virtue of his office, with authority to represent him in his negotiations with foreign states, or to vindicate his prerog- CHAP. IT.] IN RE BAIZ. 203 atives. There is no doubt that his sovereign may specially intrust liim with such authority; but in such case his diplomatic character is superadded to his ordinary powers, and ought to be recognized by the government within whose dominions he assumes to exercise it." When a consul is appointed charge d'affaires, he has a double political capacity; but though invested with full diplomatic privileges, he becomes so invested as charge d'affaires and not as consul, and though authorized as consul to communicate directly with the govern- ment in which he resides, he does not thereby obtain the diplomatic privileges of a minister. Atty. Gen. Cusliing, 7 Opinions, 342, 345. This is illustrated by the ruling of ]\[r. Secretary Blaine, April 12, 1881, that the Consul General of a foreign government was not to be regarded as entitled to the immunities accompanying the possession of diplomatic character, because he was also accredited as the ''political agent" so-called of that government, since he was not recognized as performing any acts as such, which he was not equally competent to perform as Cousul General. 1 Whart. Dig. Int. Law, 2d Ed., ch. 4, § 88, p. 624. "We are of opinion that Mr. Baiz was not, at the time of the com- mencement of the suit in question, charge d'affaires ad interim of Guatemala, or invested with and exercising the principal diplomatic functions, or in any view a " diplomatic ofJicer." He was not a pub- lic minister within the intent and meaning of § 687 ; and the District Court had jurisdiction. Mr. Baiz was a citizen of the United States and a resident of the city of New York. In many countries it is a state maxim that one of its own subjects or citizens is not to be received as a foreign diplo- matic agent, and a refusal to receive, based on that objection, is always regarded as reasonable. The expediency of avoiding a possible con- flict between his privileges as such and his obligations as a subject or citizen, is considered reason enough in itself. Wheaton, 8th Ed., § 210 ; 2 Twiss, Law^ of Nations, 276, § 186; 2 Phill. Int. Law, 371. Even an appointment as consul of a native of the place where consular ser- vice is required, is, according to Phillimore, " perhaps, rightfully pro- nounced, by a considerable authority, to be objectionable in principle." Vol. II., p. 291, citing De ]\Lartens & De Cussey, Eecueil des Traites, Index Explicatif, p. xxx.. Tit. " Consuls." "Other powers," says Calvo, Vol. I., p. 559, 2d Ed., "admit without difficulty their own citizens as representatives of foreign states, but imposing on them the obligation of amenability to the local laws as to their persons and property. These conditions, which, nevertheless, ought never to go so far as to modify or alter the representative char- acter, ought always to be defined before or at the time of receiving the 204 TERRITORIAL JURISDICTION. [PART I. agent ; for otherwise, the latter might find it impossible to claim the honors, rights and prerogatives attached to his employment." See also HefEter, 3d Fr. Ed., 387. In the United States, the rule is expressed by Mr. Secretary Evarts, under date of Sept. 19, 1879, thus : " This Government objects to receiving a citizen of the United States as a diplomatic representa- tive of a foreign power. Such citizens, however, are frequently rec- ognized as consular officers of other nations, and this policy is not known to have hitherto occasioned any inconvenience." And again, April 20, 1880, while waiving the obstacle in the particular instance, he says: "The usage of diplomatic intercourse between nations is averse to the acceptance, in the representative capacity, of a person who, while native born in the country which sends him, has yet ac- quired lawful status as a citizen by naturalization of the country to which he is sent." 1 Wharton Dig. Int. Law, 2d Ed., § 88a, p. 628. Of course the objection would not exist to the same extent in the case of designation for special purposes or temporarily, but it is one purely for the receiving government to insist upon or waive at its pleasure. The presumption, therefore, would ordinarily be against 'Mv. Baiz's contention, and, as matter of fact, we find that when, in 1886, he was appointed charge d'affaires of the Republic of Honduras to the Govern- ment of the United States, Mr. Secretary Bayard declined receiving him as the diplomatic representative of the government of that coun- try, because of his being a citizen of the United States, and advised h'un that: " It has long been the almost uniform practice of this Gov- ernment to decline to recognize American citizens as the accredited diplomatic representatives of foreign powers. Tlie statutory and juris- dictional immunities and the customary privileges of right attaching to the office of a foreign minister make it not only inconsistent, but at times even inconvenient, that a citizen of this country should enjoy so anomalous a position." And in a subsequent communication ren- dered necessary by a direct question of Mr. Baiz, the Secretary informs him " that it is not the purpose of the department to regard the sub- stitutionary agency, which it cheerfully admits in your case, as con- ferring upon you personally any diplomatic status whatever." This correspondence disposes of the question before us. Tlie objection which existed in 1886 to the reception of Mr. Baiz as charge d'affaires ad hoc or ad interim^ or according to him any diplomatic status what- ever, whether temporary or otherwise, existed in 1889 ; and it is out of the question to assume that the State Department intended to con- cede the diplomatic status between January 16 and July 10, 1889, upon the request of Seiior Lainfiesta that Consul General Baiz might be allowed to be a medium of communication during his absence, which CHAP. II.] IN RE BAIZ. 205 it had refused to accord to the Eepublic of Honduras itself. It is evident that the statement of the Assistant Secretary, October 4, 1889, was quite correct, that " the business of the legation [of Guatemala] •was conducted by Consul General Baiz, but without diplomatic character." Regarding the matter in hand as, in its general nature, one of delicacy and importance, we have not thought it desirable to discuss the suggestions of counsel in relation to the remedy, but have pre- ferred to examine into and pass upon the merits. "We ought to add that while we have not cared to dispose of this case upon the mere absence of technical evidence, we do not assume to sit in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister, and therefore have the right to accept the certificate of the State Depart- ment that a party is or is not a privileged person, and cannot properly be asked to proceed upon argumentative or collateral proof. Our conclusion is, as already stated, that the District Court had jurisdiction, and we accordingly discharge the rule and Deny the writs. ^ 1 Until recently the United States had no diplomatic representatives of the rank of ambassadors. Tiie right to appoint such was conferred by act of Mch. 1, 18U3 (27 St. L. 497). " Wiienever the President shall be advised that any foreign government is, or is about to be, represented in the United States by an ambassador ... he is author- ized, in his discretion, to direct that the representative of United States to such gov- ernment sliall bear the same designation. Tliis provision sliall in nowise affect the duties, powers, or salary of such representative." See elaborate opinions by C. Gushing in 7 Op. Atty. Gen. 186-229; 582-594. A consul is a commercial, not a diplomatic agent, and has no claim under interna- tional law to immunity from the civil or criminal jurisdiction of tlie country in which lie is stationed, Barbuifs Case, 1737, Cas. Temp. Talbot, 231 ; Clarke v. Cretico, 1808, 1 Taunt. 106; Viveash v. Becker, 1814, .3 M. & S. 281 ; Commonwealth v. Kosloff, 1816, 5 Serg. & Rawle (Pa.), 545. "Consuls," said Mr. Justice Swayne, in Coppell v. Hall, 1868, 7 Wall. 542, 553, " are approved and admitted by the local sovereign. If guilty of illegal or improper conduct, the exequatur which has been given may be revoked, and they may be punished, or sent out of the country, at tlie option of the offended government. In civil and criminal cases, they are subject to the local law in the same manner with other foreign residents owing a temporary allegiance to the state (Dana's Wheaton, § 249 ; 1 Kent's Commentaries, 53). A trading consul, in all that concerns his trade, is liable in the same way as a native mercliant (2 Piiillimore's International Law, ccli.) Tlie character of consul does not give any protection to that of merchant when they are united in the same person. (The Indian Chief, 3 C. Robinson, 27; Arnold v. The U. S. Insurance Co., 1 Johnson's Cases, 363)." See also opinion of C. Cushing, 8 Op. Atty. Gen. 169. American consuls are forbidden in a large number of places to trade (11 U. S., St. L. c. 127, p. 55, § 5). And such seems also to be the modern Knglisli policy (Abdy's Kent, 131, note 1). While consuls are and always have been liable to suit in the United States, they, 20G TERRITORIAL JURISDICTION. [PART I. GEORGE WILSON v. GUZMAN BLANCO. Superior Court of the City of New York, 1889. (56 New York Superior Court, 582.) Appeal from an order of the special term vacating the judgment in this action and setting aside the service of the summons therein upon Guzman Blanco. The following opinion was delivered by the court at special term: O'GoRMAjf, J. Guzman Blanco, being an envoy extraordinary and minister plenipotentiary, duly accredited from Venezuela to France, and recognized as such by the Government of the United States, and while in the City of New York, waiting to take early means of convey, ance from this city to France, was served with a summons in this action. Failing to make any appearance in the action, judgment was recovered against him for the sum of $2,194,536. A motion is now made to set aside the judgment, and vacate the service of summons upon him, on tlie ground that he was, wlien so served, an ambassador, and as such, not amenable to any civil suit brought against him in this city or State. It is conceded for the purposes of this motion that he could not lawfully have been arrested, while tlius in the City of New York, and this concession is in accordance with the judgment of this court in Holhrook V. Henderson, 4 Sand. Super. Ct. &2Q. The court there, however, went farther, and expressed the opinion tliat the privilege of an ambassador extended to immunity against all civil suits sought to be instituted against him in the courts of the country to which he was accredited, as well as in those of a friendly country through which he was passing on his way to the scene of his diplomatic labors, and to this privilege the learned court held that he was en- titled, as representative of his sovereign, and also because it was necessary for his free and unimpeded exercise of his diplomatic duties. This opinion of the Superior Court is in accord with that of might only be sued in the Federal courts, act of 1789. (Rev. St. § 711, cl. 8 ) ; but this clause was repealed by act of Congress, Feb. 18, 1875, 18 St. L., p. 318, with the result that State and Federal courts now exercise concurrent jurisdiction in suits against consuls and vice consuls as appears from an excellent O[)inion of Mr. Justice Harrison, in the recent case of Wilcox v. Luco, 1898, 118 Cal. 630. In a note to this case in 45 Lawyer's Reports Annotated, 579, the e.vemptions and privileges of consuls are learnedly treated. — Ed. CHAP. II.] GEORGE WILSON V. GUZMAN BLANCO. 207 AVheatoii, as set forth in his book on the Law of Nations, in which he has collected and condensed the views of numerous jurists of rec- ognized authority on the subject. Wheaton's Law of Nations, p. 240 et seq. This rule of international law derives support from the legal fic- tion that an ambassador is not an inhabitant of the country to which he is accredited, but of the country of his origin and whose sovereign he represents, and within whose territory he, in contemplation of law, always abides. When, therefore, a claim is made against him in the country to which he is sent, for payment of a debt incurred by him, the creditor must proceed against him exactly as if he were not resident there, and as if he had not contracted the debt there, and as if he had no property there, in his quality of ambassador. Wheaton's Law of Nations, p. 242. If he has contracted debts, and has no real property in the country to which he is sent, he should be requested to make payment, and, in case of refusal, application should be made to his sovereign; and as a necessary consequence of this rule of extraterritorial residence, he is always considered as retaining his original domicil, and may be proceeded against in the competent court of his own country, and he cannot set up the plea of absence in the service of the State as a bar to a suit in the domestic forum, since the law supposes him still to be present there. From these views, I am led to the conclusion that the service made on Guzman Blanco in this case, and the judgment entered against him, are of no force and void. The fact, rather suggested than positively averred in the complaint, that he was connected as a partner in a mercantile business in New York, is not material. It does not appear that the cause of action arose out of that mer- cantile relation, or business, or out of any contract or transaction which arose in the State of New York, or the United States. The motion to vacate the judgment against Guzman Blanco, and to set aside the service of the summons upon him, is granted, with ten dollars costs. ^ ^ The arguments of counsel on rehearing are omitted: at the conclusion of these the order appealed from was affirmed in the following sentence : " Per Curiam. — Order affirmed with •'SIO costs, for the reasons assigned hy Judge O'Gorman for jiranting the motion." In the case of the .Vew Chili Gold Mininrj Co. v. Blanco ^ Another, 1888, 4 Times Law, o46, the court took time to consider their judgment and delivered it in tavor of the ilefendants, on the ground that, in the e.Nercise of their judicial discretion, they did not consider it right to allow a foreign niiniBter (Blanco), resident at a foreign 208 TERRITORIAL JURISDICTION. [PART I. Section 9. — Immunities of Public Ships. (ff) Shijjs of War. THE SCHOONER "EXCHANGE" v. M'FADDON & OTHERS, Supreme Coukt of the United States, 1812. (7 Cramh, 116.) Appeal from the sentence of the circuit court of the United States for the district of Pennsylvania. The schooner Exchange, owned by John M'Faddon and William Greetham, sailed from Baltimore, October 27, 1809, for St. Sebastians, in Spain. On the 30th of December, 1810, she was seized by the order of Napoleon Bonaparte ; and was then armed and commis- sioned as a public vessel of the French government, under the name of Balaou. On a voyage to the West Indies, she put into the port of Philadelphia, in July, 1811, and on the 24th of August was libelled by the original owners. As no claimant appeared, Mr. Dallas, the attorney of the United States for the district of Pennsylvania filed (at the suggestion of the executive department of the United States, it is believed) a suggestion that inasmuch as there was peace between France and the United States, the public vessels of the former may enter into the ports and harbors of the latter and depart at will without seizure or detention in any way. The district judge dismissed the libel, on the ground that a public armed vessel of a foreign power, at peace with the United States, is not subject to the ordinary judicial tribunals of the country, so far as regards the question of title, by which the foreign sovereign claims to hold her. The libellants appealed to the circuit court, where the sentence court (France), to be sued in the. courts of tliis country, at all events on a cause of action not arising in this country. The case was however, decided on anotlier point. The immunity of a diplomatic agent continues for a reasonable time after recall, Dupmt V. Pkhon, 1805, 4 Dall. 321 ; Torlade v. Bnrrozo, 1800, 1 Miles, Pa. 306; Musiivus Bej V. Gadbnn, 1 Q B. 633 (1894) ; same case on appeal, 2 Q. B. 352 (18'.)4). The autliorities on this question are collected and analyzed in a note to U. S. v. Ortega, 1820, 11 Wheat. 4G7 as reported in 6 Lawyer's, Co-operative Ed. 522. — Ed. CHAP. II.] THE SCHOONER "EXCHANGE'* V. M'FADDON. 209 was reversed — from the sentence of reversal, the district attorney appealed to this court. Marshall, C. J. : — " This case involves the very delicate and impor- tant inquiry, whether an American citizen can assert, in an American court, a title to an armed national vessel, found within the waters of the United States. "The question has been considered with an earnest solicitude, that the decision may conform to those principles of national and municipal law by which it ought to be regulated. " In exploring an unbeaten path, with few, if any aids, from jjre- cedents or written law, the court has found it necessary to rely much on general principles, and on a train of reasoning, founded on cases in some degree analogous to tliis. "The jurisdiction of courts is a branch of that which is possessed by the nation as an independent sovereign power. "The jurisdiction of the nation within its own territory is neces- sarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its own sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restric- tions. " All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. " This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction ; but, if understood, not less obligatory. " The world being composed of distinct sovereignties, possessing equal rights and equal independence, whose mutual benefit is pro- moted by intercourse with each other, and by an interchange of those good offices which humanity dictates and its wants require, all sovereigns have consented to a relaxation in practice, in cases under certain peculiar circumstances, of that absolute and complete juris- diction within their respective territories which sovereignty confers. "This consent may, in some histances, be tested by common usage, and by common opinion, growing out of that usage. "A nation would justly be considered as violating its faith, al- though that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. "This full and absolute territorial jurisdiction being alike the at- 14 210 TERRITORIAL JURISDICTION. [PAET I. tribute of every sovereign, and being incapable of conferring extra- territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing liimself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his in- dependent sovereign station, will be extended to him. " This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. " 1st. One of these is admitted to be the exemjition of the person of the sovereign from arrest or detention within a foreign territory. " If he enters that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempt- ing his person from arrest, is universally understood to imply such stipulation. " Why has the whole civilized world concurred in this construc- tion ? The answer cannot be mistaken. A foreign sovereign is not understood as intending to subject himself to a jurisdiction incom- patible with his dignity and the dignity of his nation, and it is to avoid this subjection that the license has been obtained. The char- acter to whom it is given, and the object for which it is granted, equally require that it should be construed to impart full security to the person who has obtained it. This security, however, need not l)e expressed ; it is implied from the circumstances of the case. Should one sovereign enter the territory of another, without the consent of that other, expressed or implied, it would present a ques- tion which does not appear to be perfectly settled, a decision of which is not necessary to any conclusion to which the court may come in the cause under consideration. If he did not thereby expose himself to the territorial jurisdiction of the sovereign, whose dominions he had entered, it would seem to be because all sovereigns impliedly engage not to avail themselves of a power over their equal, which a romantic confidence in their magnanimity has placed in their hands. " 2d. A second case, standing on the same principles with the first, is the immunity which all civilized nations allow to foreign ministers. CHAP. II.] THE SCHOONER " EXCHANGE " V. M'FADDON. 211 "Whatever may be the principle on \A'hich this immunity is establislied, whether we consider liim as in the place of the sovereign he represents, or by a political fiction suppose him to be extra- territorial, and therefore, in point of law, not within the jurisdiction of the sovereign at whose court he resides ; still the immunity itself is granted by the governing power of the nation to which the minister is deputed, his fiction of extra-territoriality could not be erected and supported against the will of the sovereign of the terri- tory. He is supposed to assent to it. " This consent is not expressed. It is true that in some countries, and in this among others, a special law is enacted for the case. But the law obviously proceeds on the idea of prescribing the punishment of an act previously unlawful, not of granting to a foreign minister a privilege which he would not otherwise possess. " The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers, is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe tem- porary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power ; and therefore a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain, privileges which are essential to the dignity of his sovereign, and to the duties he is bomid to perform. " In what cases a minister, by infracting the laws of the country in which he resides, may subject himself to other punishment than will be inflicted by his own sovereign, is an inquiry foreign to the present purpose. If his crimes be such as to render him amenable to the local jurisdiction, it must be because they forfeit the priv- ileges annexed to his character ; and the minister, by violating the conditions under which he was received as the representative of a foreign sovereign, has surrendered the immunities granted on those conditions ; or, according to the true meaning of the original assent, has ceased to be entitled to them. "3d. A third case in which a sovereign is understood to cede a portion of his territorial jurisdiction is, where he allows the troops of a foreign prince to pass through his dominions. "In such case, without any express declaration waiving jurisdic- tion over the army to which this right of passage has been granted, 212 TERRITORIAL JURISDICTION. [PART I, the sovereign who should attempt to exercise it would certainly be considered as violating his faith. By exercising' it, the purpose for which the free passage Avas granted would be defeated, and a por- tion of the military force of a foreign independent nation would be diverted from those national objects and duties to which it was applicable, and would be withdrawn from the control of the sover- eign whose power and whose safety might greatly depend on retain- ing the exclusive command and disposition of this force. The grant of a free passage, therefore, implies a waiver of all jurisdiction over the troops during their passage, and permits the foreign general to use that discipline, and to inflict those punishments which the government of his army may require. "But if, without such express permit, an army should be led through the territories of a foreign prince, might the jurisdiction of the territory be rightfully exercised over the mdividuals composing this army ? " Without doubt a military force can never gain immunities of any other description than those which war gives, by entering a foreign territory against the will of its sovereign. But if his consent, instead of being expressed by a particular license, be expressed by a general declaration that foreign troops may pass through a specified tract of country, a distinction between such general permit and a particular license is not perceived. It Avould seem reasonable that every immunity which would be conferred by a special license, would be, in like manner conferred by such general permit. We have seen that a license to pass throngli a territory implies immu- nities not expressed, and it is material to inquire why the license itself may not be presumed ? ^ " It is obvious that the passage of an army through a foreign terri- tory will probably be at all times inconvenient and injurious, and would often be imminently dangerous to the sovereign through whose dominion it passed. Such a practice would break down some of the most decisive distinctions between peace and war, and would reduce 1 In Neal Dow v. Johnson, 1879, 100 U. S. 158, at 170, Field, J., speaking for tlie court, said : " Tlie question liere is, wliat is the law wliicli governs an army invading an enemy's country? It is not tlie civil law of tlie invaded country ; it is not tlie civil law of the conquering country; it is military law — the law of war — and its supremacy for the protection of the officers and soldiers of the army, when in service in the field in tiie enemy's country, is as essential to the efficiency of the army as the supremacy of the civil law at home, and, in time of peace, is essential to the preservation of liberty." To the same effect, Coleman v. Tennessee, 1878, 97 U. S. 500, per Field, .1. In like manner, a State court may not exercise jurisdiction for violation of a State statute in a military reservation, Wills v. State, 1871, 3 lleisk. (Tenn.), 141. — Ed. CHAP. 11.] THE SCHOONKR "EXCHANGE" V. M'FADDON. 213 a nation to tlie necessity of resisting by war an act not absolutely hostile in its character, or of exposing itself to the stratagems and frauds of a power whose integrity might be doubted, and who might enter the country under deceitful pretexts. It is for reasons like these that the general license to foreigners to enter the dominions of a friendly power, is never understood to extend to a military force ; and an army marching into the dominions of another sover- eign, may justly be considered as committing an act of hostility ; and if not opposed by force, acquires no privileges by its irregular and improper conduct. It may, however, well be questioned whether any other than the sovereign power of the state be capable of decid- ing that such military commander is without a license. " But the rule which is applicable to armies, does not appear to be equally applicable to ships of war entering the ports of a friendly power. The injury inseparable from the march of an army through an inhabited country and the dangers often, indeed generally, at- tending it, do not ensue from admitting a ship of war, without a special license, into a friendly port. A different rule, therefore, with respect to this species of military force has been generally adopted. If, for reasons of state, the ports of a nation generally, or any par- ticular ports be closed against vessels of war generally, or the vessels of any particular nation, notice is usually given of such determina- tion. If there be no prohibition, the ports of a friendly nation are considered as open to the public ships of all powers with whom it is at peace, and they are supposed to enter such ports and to re- main in them while allowed to remain, under the protection of the government of the place. " In almost every instance, the treaties between civilized nations contain a stipulation to this effect in favor of vessels driven in by stress of weather or other urgent necessity. In such cases the sovereign is bound by compact to authorize foreign vessels to enter his ports. The treaty bids him to allow vessels in distress to find refuge and asylum in his ports, and this is a license which he is not at liberty to retract. If would be difficult to assign a reason for withholding from a license thus granted, any immunity from local jurisdiction which would be implied in a special license. " If there be no treaty applicable to the case, and the sovereign, from motives deemed adequate by himself, permits his ports to re- main open to the public shi[)S of foreign friendly powers, the con- clusion seems irresistible, that they enter by his assent. And if they enter by his assent necessarily implied, no just reason is per- ceived by the court for distinguishing their case from that of vessels which enter by express assent. In all the cases of exemption which have been reviewed, much has been implied ; but the obligation of 21-4 ' TERRITORIAL JURISDICTION. [PART T. what was implied has been found equal to tlie obligation of that which was expressed. Are there reasons for denying the applica- tion of this principle to ships of war ? " In this part of the subject a difficulty is to be encountered, the seriousness of which is acknowledged, but which the court will not attempt to evade. " These treaties which provide for the admission and safe depart- ure of public vessels entering a port from stress of weather, or other urgent cause, provide in like manner for the private vessels of the nation ; and where public vessels enter a port under the general license which is implied merely from the absence of a prohibition, they are, it may be urged, in the same condition with merchant vessels entering the same port for the purposes of trade who cannot thereby claim any exemption from the jurisdiction of the country. It may be contended, certainly with much plausibility if not cor- rectness, that the same rule, and same principle are applicable to j)ublic and private ships ; and since it is admitted that private ships, entering without special license become subject to the local juris- diction, it is demanded on what authority an exception is made in favor of ships of war. " It is by no means conceded, that a private vessel really availing herself of an asylum provided by treaty, and not attempting to trade, would become amenable to the local jurisdiction unless she committed some act forfeiting the protection she claims under com- pact. On the contrary, motives may be assigned for stipulating and according immunities to vessels in cases of distress, which would not be demanded for, or allowed to those which enter voluntarily, and for ordinary purposes. On this part of the subject, however, the court does not mean to indicate any opinion. The case itself may possibly occur, and ought not to be prejudiced. " Without deciding how far such stipulations in favor of distressed vessels, as are usual in treaties, may exempt private ships from the jurisdiction of the place, it may safely be asserted that the whole reasoning upon which such exemption has been implied in other cases, applies with full force to the exemption of ships of war in this. " ' It is impossible to conceive,' says Vattel, ' that a prince who sends an ambassador or any other minister can have any intention of sub- jecting him to the authority of a foreign power, and this considera- tion furnishes an additional argument, which completely establishes the independency of a public minister. If it cannot be reasonably presumed that his sovereign means to subject him to the authority of the prince to whom he is sent, the latter, in receiving the minis- CHAP. II.] THE SCHOONEPw "EXCHANGE" V. m'FADDON. 215 ter, consents to admit him on tlie footing of independency ; and thus there exists between the two princes a tacit convention, wliich gives a new force to the natural obligation.' " Equally impossible is it to conceive, whatever may be the con- struction as to private ships, that a prince who stipulates a passage for his troops, or an asylum for his ships of war in distress, should mean to subject his army or his navy to the jurisdiction of a foreign sovereign. And if this cannot be presumed, the sovereign of the port must be considered as having conceded the privilege to the ex- tent in which it must have been understood to be asked. " To the court, it appears, that where, without treaty, the ports of a nation are open to the private and public ships of a friendly power, whose subjects have also liberty without special license, to enter the country for business or amusement, a clear distinction is to be drawn between the rights accorded to private individuals or trading vessels, and those accorded to public armed ships which constitute a part of the military force of the nation. " The preceding reasoning, has maintained the propositions that all exemptions from territorial jurisdiction must be derived from the consent of the sovereign of the territory ; that this consent may be implied or expressed ; and that, when implied, its extent must be regulated by the nature of the case and the views under which the parties requiring and conceding it must be supposed to act, " When private individuals of one nation spread themselves through another as business or caprice maj^ direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenal)le to the jurisdiction of the country. Xor can the foreign sovereign have any motive for wishing such exemption. His sub- jects thus passing into foreign countries, are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter, can never be construed to grant such exemption. But in all respects different is the situation of a public armed ship. She constitutes a part of the military force of her nation ; acts under the immediate and direct command of the sovereign ; is employed by him in national objects. He has many and powerful motives for preventing those oljjects from being defeated by the interference of 216 TERRITORIAL JURISDICTION. [PART I. a foreign state. Such interference cannot take place without affect- ing' his po\A'er and his dignity. The implied license, tlierefore, under which sucli vessel enters a friendly port, may reasonably be construed, and, it seems to the court, ought to be construed, as containing an exemption from the jurisdiction of the sovereign, within whose ter- ritory she claims the rites of hospitality. " Upon these principles, by the unanimous consent of nations, a foreigner is amenable to the laws of the place; but certainly in practice, nations have not j^et asserted their jurisdiction over the public armed ships of a foreign sovereign, entering a port open for ^ their reception. " Bynkershoek, a jurist of great reputation, has indeed maintained that the property of a foreign sovereign is not distinguishable by any legal exemption from the property of an ordinary individual, and has quoted several cases in which courts have exercised jurisdiction over causes in which a foreign sovereign was made a party defend- ant. " Without indicating any opinion on this question, it may safely be affirmed, that there is a manifest distinction between the private property of the person who happens to be a prince, and that mili- tary force which supports the sovereign power, and maintains the dignity and the independence of a nation. A prince, by acquiring private property in a foreign country, may possibly be considered as subjecting that property to the territorial jurisdiction ; he maybe considered as so far laying down the prince, and assuming the char- acter of a private individual ; but this he cannot be presumed to do with respect to any portion of that armed force, which upholds his crown, and the nation he is intrusted to govern. " The only applicable case cited by Bynkershoek, is that of the Spanish ships of war, seized in Flushing for a debt due from the King of Spain. In that case the states generally interposed ; and there is reason to believe, from the manner in which the trans- action is stated, that, either by the interference of government, or the decision of the court, the vessels were released. This case of the Spanish vessels is, it is believed, the only case furnished by the history of the world, of an attempt made by an individual to assert a claim against a foreign prince, by seizing the armed vessels of the nation. That this proceeding was at once arrested by the govern- ment, in a nation which appears to have asserted the power of pro- ceeding in the same manner against the private property of the prince, would seem to furnish no feeble argument in support of the universality of the opinion in favor of the exeinption claimed for ships of war. The distinction made in our own laws between public and private ships would appear to proceed from the same opinion. CHAP. II.] THE SCHOONER "EXCHANGE" V. M'FADDON. 217 " It seems, then, to the court, to be a principle of pubhc law, tliat national ships of war, entering the port of a friendly power open for their reception, are to be considered as exempted by the con- sent of that power from its jurisdiction. " Without doubt, the sovereign of the place is capal)le of destroy- ing this implication. He may claim and exercise jurisdiction, either by employing force, or by subjecting such vessels to the ordi- nary tribunals. But, until such power be exerted in a manner not to be misunderstood, the sovereign cannot be considered as having imparted to the ordinary tribunals a jurisdiction, which it would be a breach of faith to exercise. Those general statutory provisions, therefore, which are descriptive of the ordinary jurisdiction of the judicial tribunals, which give an individual whose property has been wrested from him, a right to claim that property in the courts of the country in which it is found, ought not, in the opinion of this court, to be so construed as to give them jurisdiction in a case in which the sovereign power has impliedly consented to waive its juris- diction. " The arguments in favor of this opinion which have been drawn from the general inability of the judicial power to enforce its decis- ions in cases of this description, from the consideration that the sovereign power of the nation is alone competent to avenge wrongs committed by a sovereign, that the questions to which such wrongs give birth are rather questions of policy than of law, that they are for diplomatic, rather than legal discussion, are of great weight, and merit serious attention. But the argument has already been drawn to a length which forbids a particular examination of these points. " The prmciples which have been stated will now be applied to the case at bar. " In the present state of the evidence and proceedings, the J^x- chaitge must be considered as a vessel which was the property of the libellants, whose claim is repelled by the fact, that she is now a national armed vessel, commissioned by, and in the service of the Emperor of France. The evidence of this fact is not controverted. But it is contended that it constitutes no bar to an inquiry into the validity of the title, by which the emperor holds this vessel. Every person, it is alleged, \vho is entitled to property brought within the jurisdiction of our courts, has a right to assert his title in those courts, unless there be some law taking his case out of the general rule. It is therefore said to be the right, and if it be the right, it is the duty of the court, to inquire whether this title has been ex- tinguished by an act, the validity of which is recognized by national or municipal law. 218 TERRITORTAL JURISDICTION. [PART I. " If the preceding reasoning; be correct, the Exchange^ being a public armed ship, in the service of a foreign sovereign, with whom the government of tlie United States is at peace, and having entered an American port open for lier reception, on the terms on M-hich sliips of war are generally permitted to enter the ports of a friendly power, must be considered as having come into the American territory, under an implied promise, that while necessarily within it, and de- meaning herself in a friendly manner, she should be exempt from the jurisdiction of the country." ^ THE " COXSTITUTTOX." High Court of Admiralty, 1879. (48 Laic Journal, P. D. cj- J. 13.) The facts are sufficiently stated in the opinion. Sir Robert Phillimore : — "In this case an application was made to the court to allow a warrant to issue of a peculiar character — a warrant which was to be served upon a ship of war belonging to an independent state at amity with Her Majesty. The court directed the case to stand over, and suggested that it would be proper that notice should be given to his Excellency, the American Minister in London, and to Lord Salisbury, as Secretary for Foreign Affairs. The court has reason to congratulate itself that it took that step, for the result has been that it has had the advantage of hearing the opinion of counsel on behalf of the United States and of the learned gentleman representing the Crown. It appears from telegrams which have passed in the case that a claim has been made by the owner of the tug for 1,500^., but that the American Consul at Portsmouth has forwarded simply a cheque for 200/., in recognition of the services which the tug has rendered. The owner of the tug was dissatisfied with that amount ; and consequently made an application to this court for an order to issue a warrant to arrest the Constitution and her cargo. 1 See tlie S'lthi, 1855 (C. Cusliing), 7 Op. Atty.-Gen. 122. For a technical definition of a ship of war, and for tlie exact moment when a vessel in construction becomes a warship and entitkd to rights, privileges, and immunities thereof, see Tucker v. Alexandoff, 1901, 183 U. S. 424, which is, broad!)- speaking, a commentary on the judgment and dicta of tiie principal case. For criticism on the case see 15 Ilarv. Law Rev. 057. — Ed. CHAP. II.] THE " CONSTITUTTON." 219 " The question, therefore, which is raised under these proceedings is whether I have any jurisdiction to permit the arrest of a foreign ship of war helonging to an independent state in amity witli our sovereign, and T liardly tliinlc that it can be denied that if I were to exercise tlie jurisdiction wliich is craved in the present case, I should be doing that for wiiich there exists no direct precedent. On the contrary, I have no doubt as to this general proposition — that ships of war belonging to another nation with whom we are at peace are exempt from the civil jurisdiction of the courts of this countr}'- ; and I have listened in vain for any peculiar circumstances which would take this case out of that general proposition. It has happened to me more than once to have been requested by foreign states to sit as arbitrator, and to make awards in diflferences which had arisen between them and British subjects. Had such an application been made in the present instance I would have gladly undertaken the duty sought to be imposed upon me; but that is not the state of matters I have now to consider. All that I have now to determine is the simple question of jurisdiction. Various cases have been cited before me in argument, all of which, with one exception, were discussed in the case of the Chiwkieh, but that was a wdiolly different case because the Khedive of Egypt was not an independent sovereign, and the Charkieh herself formed one of a fleet of merchantmen. I may in the lengthy judgment which I delivered m that cause, have let drop some expression which may have given rise to an impression that a foreign ship of war is liable to arrest, but, in that case this question, as it is here raised, liad not to be decided. Now that it comes before me in this plain and simple form, I feel no doubt that it would be improper for me to accede to the request of the owner of the steam-tug, nor do I think, as I have said above, that the Constitution is liable to the process of this court. In regard to the question of the liability of the cargo, I must say I see no distinction between the issue of a w^arrant in the case of the ship and in the case of this cargo; it is on board a foreign vessel of war, and is under the charge of a foreign government for public purposes. So that, having no authority to issue either of the warrants prayed for, and as no precedent exists for such a course, I must dismiss this motion with costs.^ " ^Mr. Cobbett (Cases on International Law, .35,) says: "Before the decision in the case of the Constitution, some doubt seems to have existed as to Avliether salvage pi-oceedings might not be instituted in the English Court of Admiralty against a public vessel. In the case of the Charkieh, Sir E. Pliillimore had said, ' It is by no means clear that a ship of war to which salvage services have been rendered, may not. JH?-e gentium, be liable to bo proceeded against in the Court of Admiralty for the remuneration due for such services.' 220 TERRITORIAL JURISDICTION. [PART I. (b) Other Public Ships. THE "PAELEMEXT BELGE." Court of Appeals, 1878, (Law Reports, 5 Prolate Die, 197.) On an appeal on behalf of the Crown from a decision of Sir Eobert Phillimore, the judgment of the court, James, Baggallay, and Brett, Lord .Justices, by Brett, L. J.^ : — " In this case proceedings in rem on behalf of the owners of the Darhuj were instituted in the Admiralty Division, in accordance with the forms prescribed by the Judicature Act, against the Parlement Beige, to recover redress in respect of a collision. A writ was served in the usual and prescribed manner on board the Parlement Beige. No appearance was entered, but the Attorney-General, in answer to a motion to direct that judg- " In a much, earlier case, of the Prlns Frederlk (2 Dods., 451), a Dutch man-of- war, whilst ou a voyage from Batavia to the Texel, was partially disabled by stress of weather off the Scilly Isles, and was Ijro light into Mount's Bay with the assist- ance of the master and crew of a British brig, belonging to the port of Penzance. The Prins Frederlk was at the time employed in bringing home a cargo of spice belonging to the Dutch Government, and for this purpose some of her guns had been removed. The salvors instituted salvage proceedings against the vessel, on the ground that she had for the time being, at least, lost the character and privileges of a public vessel, and also on the further ground that such proceedings being in rem, and not against the King of the Xetherlands personally, were under any cir- cumstances admissible. According to Lord Campbell, who quoted this case, in 1851 (17 Q. B., 212), Lord Stowell took a strong view against the asserted jurisdiction. To avoid difficulty. Lord Stowell caused a representation to be made to the Dutch government, who consented to his disposing of the matter as arbitrator. Acting under this authority. Lord Stowell awarded the sum of £800 and costs to the salvors." Mr. Dana, in liis note, Xo. 63, says : " It may be considered as established law, now, that the public vessels of a foreign state, coming within the jurisdiction of a friendly state, are exempt from all forms of process in private suits. Nor will such ships be seized, or in any way interfered with, by judicial proceedings in tlie name and by the authority of the state, to punish violations of public laws. In such cases, the offended state will appeal directly to the other sovereign. Any proceedings against a foreign public ship would be regarded as an unfriendly if not hostile act. in the present state of the law of nations." It may be of interest to know that this is tlie frigate Constitution, so justly famous for its exploits in the war of 1812. See Hollis, The Frigate Constitution (1901), pp. 237-2:]y.— Ku. 1 Statement of the Editor. CHAP. II.] THE " PARLEMENT BELGE." 221 ment with costs sliould be entered for the plaintiffs, and that a war- rant should be issued for the Parlement Beige, filed an information and protest, asserting that the court had no jurisdiction to entertain the suit. Upon the hearing of the motion and protest the learned judge of the Admiralty Division overruled the protest and allowed the warrant of arrest to issue. The Attorney-General appealed. The protest alleged that the Parlement Beige was a mail packet running between Ostend and Dover, and one of the packets mentioned in article 6 of the convention of the 17th of February, 1876, made be- tween the sovereigns of Great Britain and Belgium ; that she was and is the property of his Majesty the King of the Belgians, and in his possession, control and employ as reigning sovereign of the state, and was and is a public vessel of the sovereign and state, carrying his Majesty's royal pennon, and was navigated and employed by and in the possession of such government, and was officered by of&cers of the Royal Belgian navy, holding commissions, etc. In answer it was averred on affidavits, which were not contradicted, that the packet boat, besides carrying letters, carried merchandise and passengers and theii luggage for hire. * * * " The proposition raised by the first question seems to be as follows : Has the Admiralty Division jurisdiction in respect of a collision to proceed in rem against, and in case of non-appearance or omission to find bail, to seize and sell, a ship present in this country, which ship is at the time of the proceedings the property of a foreign sovereign, is in his possession, control, and employ as sovereign by means of his commissioned officers, and is a public vessel of his state, in the sense of its being used for purposes treated by such sovereign and his advisers as public national services, it being admitted that such ship, though commissioned, is not an armed ship of war or employed as a part of the military force of his country ? * * * "It is admitted that neither the sovereign of Great Britain nor any friendly sovereign can be adversely personally impleaded in any court of this country. It is admitted that no armed ship of war of the sovereign of Great Britain, or of a foreign sovereign can be seized by any process whatever, exercised for any purpose by any court of this country. But it is said that this vessel, though it is the property of a friendly sovereign in his public capacity and is used for pur- poses treated by him as public national services, can be seized and sold under the process of the Admiralty Court of this country, because it will, if so seized and sold, be so treated, not in a suit brought against the sovereign personally, but in a suit in rem against the vessel itself. This contention raises two questions ; first, sup- 222 TERRITORIAL JURISDICTION. [PART I. posing that aa action in rem is an action against the property only, meaning thereby tliat it is not a legal proceeding at all against the owner of the property, yet can the property in question be subject to the jurisdiction of the court ? " Secondly, is it true to say that an action in rem is only and solely a legal procedure against the property, or is it not rather a procedure indirectly, if not directly, impleading the owner of the property to answer to the judgment of the court to the extent of his interest in the property? * * * " Having carefully considered the case of the Charkieh^ we are of opinion that the proposition deduced from the earlier cases in an earlier part of this judgment is the correct exposition of the law of nations, viz., that as a consequence of the absolute independence of every sovereign authority and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction. " This proposition would determine the first question in the present case in favor of the protest, even if an action in rem were held to be a proceeding solely against i^roperty, and not a procedure directly or indirectly impleading the owaier of the property to answer to the judgment of the court. But we cannot allow it to be supposed that in our opinion the owner of the property is not indirectly impleaded. The course of proceeding, undoubtedly, is first to seize the property. It is undoubtedly, not necessary, in order to enable the court to pro- ceed further, that the owner should be personally served with any process. In the majority of cases, brought under the cognizance of an Admiralty Court, no such personal service could be effected. Another course was therefore taken from the earliest times. The seizure of the property was made by means of a formality which was as public as could be devised. That formality of necessity gave notice of the suit to the agents of the owner of the property, and so, in substance, to him. Besides which, by the regular course of the admiralty, the owner was cited or had notice to appear to show cause why his property should not be liable to answer to the com- l)lainant. The owner has a right to appear and show cause, a right which cannot be denied. It is not necessary, it is true, that the notice or citation should be personally served. But unless it were CHAP. II.] THE " PARLEMENT BELGE." 223 considered that, either by means of the pubUcity of the manner of arresting the property, or by means of tlie publicity of the notice or citation, the owner had an opportunity of protecting his property from a final decree by the court, the judgment in rem of a court would be manifestly contrary to natural justice. In a claim made in respect of a collision the property is not treated as the delinquent 2)erse. Though the ship has been in collision, and has caused injury by reason of the negligence or want of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to show that the liability to compensate must be fixed not merely on the property, but also on the owner through the property. " If so, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court. It is no answer to say that if the property be sold after the maritime lien has accrued, the property may be seized and sold as against the new owner. " This is a severe law, probably arising from the difficulty of other- wise enforcing any remedy in favor of an injured suitor. But the property cannot be sold as against the new owner, if it could not have been sold as against the owner at the time when the alleged lien accrued. This doctrine of the Courts of Admiralty goes only to the extent, that the innocent purchaser takes the property sub- ject to the inchoate maritime lien which attached to it as against him who was the owner at the time the lien attached. The new owner has the same public notice of the suit and the same oppor- tunity and right of appearance as the former owner would have had. He is impleaded in the same way as the former owner would have been. Either is affected in his interests by the judgment of a court which is bound to give him the means of knowing that it is about to proceed to affect those interests, and that it is bound to hear him if he objects. That is, in our opinion, an impleading. " The case of The Bold Buccleugh does not decide to the contrary of this. It decides that an action in rem is a different action from one i« /jersowam and has a different result. But it does not decide that a court which seizes and sells a man's property does not assume to make that man subject to its jurisdiction. To implead an inde- pendent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. AVe think that he cannot be so indirectly impleaded any more than he could be directly impleaded. The case is, upon 224 TEKRITOETAL JURISDICTION. [PAUT I. this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court. " But it is said that the immunity is lost by reason of the ship having been used for trading purposes. As to this, it must be maintained either that the ship has been so used as to have been employed substantially as a mere trading ship and not substantially for national purposes, or that a use of her in part for trading pur- poses takes away the immunity, although she is in possession of the sovereign authority by the hands of commissioned officers, and is substantially in use for national purposes. Both these propositions raise the question of how the ship must be considered to have been emploj'ed. " As to the first, the ship has been by the sovereign of Belgium, by the usual means, declared to be in his possession as sovereign, and to be a public vessel of the state. It seems very difficult to say that any court can inquire by contentious testimony wbether that declaration is or is not correct. To submit to such an inquiry before the court is to submit to its jurisdiction. It has been held that if the ship be declared by the sovereign authority by the usual means to be a ship of war, that declaration cannot be inquired into. That was expressly decided under very trying circumstances in the case of the Exchange. Whether the ship is a public ship used for national purposes seems to come within the same rule. But if such an inquiry could properly be instituted it seems clear that in the present case the ship has been mainly used for the purpose of carrying the mails, and only subserviently to that main object for the purposes of trade. The carrying of passengers and merchan- dise has been subordinated to the duty of carrying the mails. The ship is not, in fact, brought within the first proposition. As to the second, it has been frequently stated that an independent sovereign cannot be personally sued, although he has carried on a private trad- ing adventure. It has been held that an ambassador cannot be personally sued, although he has traded ; and in both cases because such a suit would be inconsistent with the independence and equality of the state which he represents. If the remedy sought by an action in rem against public property is, as we think it is, an indirect mode of exercising the authority of the court against the owner of the property, then the attempt to exercise such an authority is an at- tempt inconsistent with the independence and equality of the state which is represented by such owner. The property cannot, upon the hypothesis,be denied to be public property ; the case is within the terras of the rule ; it is within the spirit of the rule ; therefore, we are of opinion that the mere fact of the ship being used subor- CHAP. II.] WILDENHUS' CASE. 225 dinately and partially for trading purposes does not take away the general imniunit}'. For all these reasons, we are unable to agree with the learned judge, and have come to the conclusion that the judgment must be reversed." ^ Section 10. — Merchant Vessels. WILDENHUS' CASE. Supreme Court of the United States, 1886. (120 United States, 1.) While the Belgian steamer Noordland was moored to a dock in Jersey City, New Jersey, an affray arose between decks in which Joseph AVildenhus killed one Fijeus. AVildenhus was arrested by the Jersey City authorities; whereupon the Belgian consul applied to the U. S. Circuit Court for Kew Jersey, for his release upon a writ of habeas corjjus. The court refused to deliver the prisoner and to reverse that deci- sion. An appeal is taken to the U. S. Supreme Court. '^ jSIr. Chief Justice Waite delivered the opinion of the court. It is part of the law of civilized nations that when a merchant vessel of one country enters the ports of another for the purposes of trade, ^ Tn tlie case of Brigfjs v. Light-Boats in the Supreme Court of Massachusetts, 1865 (11 Allen, 157), the plaintiff liad built some floating lights for tlie United States government, and had delivered them and received the contract price ; and the title to them iiad vested in the United States, subject to the builder's lien. The plaintiff no\T sought to enforce his lien. Gray, J., says, in tlie course of his judgment, " wherever the question has been raised, courts of admiralty have generally declined to take jurisdiction of a libel in rem against a public ship, without the consent of the government. In every aspect in which we can look at these suits, in the lights of principle or of authority, we cannot escape the conclusion that the state courts have no jurisdiction or right to entertain them." Mr. Justice Gray's opinion, from which the above extracts are taken, gives a learned and exhaustive account of the origin and development of the doctrine that the sovereign may not be sued without his consent (pp. 106-186). — Ed. - A short statement is substituted for that of the reporter, and part of the opinion is omitted. — Ed. 15 226 TERPwITORTAL JURISDICTION. [PART I. it subjects itself to the law of the place to which it goes, unless by treaty or otherwise the two countries have come to some different understanding or agreement ; for, as was said by Chief Justice Marshall in The Exchange, 7 Cranch, 116, 144, "it would be obvi- ously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the Government to degradation, if such * * * merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country-." United States V. Dlekelman, 92 U. S. 520; 1 Phillimore's International Law, (3d Ed.) 483, § 351; Twiss' Law of Nations in Time of Peace, 229, § 159; Creasy 's International Law, 167, § 176; Halleck's Interna- tional Law, (1st Ed.) 171. And the English judges have uniformly recognized the rights of the courts of the country of which the port is part to punish crimes committed by one foreigner on another in a foreign merchant ship. Eegina v. Cunningham, Bell. C. C. 72; S. C. 8 Cox C. C. 104; Eegina v. Anderson, 11 Cox C. C. 198, 204; S. C. L. E. 1 C. C. 161, 165; Eegina v. Ke7jn, 13 Cox C. C. 403, 486, 525, s. c. 2 Ex. Div. 63, 161, 213. As the owner has volunta- rily taken his vessel for his own private purposes to a place within the dominion of a government other than his own, and from which he seeks protection during his staj', he owes that government sucli alle- giance for the time being as is due for the protection to which he becomes entitled. Erom experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of disci- pline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require. Bat if crimes are committed on board of a character to disturb the peace and tranquillit}- of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of the local laws for their punishment, if the local tribunals see fit to assert their authority. Such being the general public law on this subject, treaties and conventions have been entered into bv nations having commercial intercourse, the purpose of which was to settle and define the rights CHAP. II.] WILDENHUS' CASE. 227 and duties of the contracting parties with respect to each other in these particulars, and thus prevent the inconvenience that might arise from attempts to exercise conflicting jurisdictions. The first of these conventions entered into by the United States after the adoption of the Constitution was with France, on the 14th of November, 1788, 8 Stat. 106, "for the purpose of defining and estab- lishing the functions and privileges of their respective consuls and vice-consuls," Art. VIII. of which is as follows: "The consuls or vice-consuls shall exercise police over all the vessels of their respective nations, and shall have on board the said vessels all power and jurisdiction in civil matters, in all the disputes which may there arise ; they shall have an entire inspection over the said vessels, their crew, and the changes and substitutions there to be made; for which purpose they may go on board the said vessels when- ever they may judge it necessary. Well understood that the func- tions hereby allowed shall be confined to the interior of the vessels, and that they shall not take place in any case which shall have any interference with the police of the ports where the said vessels shall be." It was when this convention was in force that the cases of TAe Sally and The Neicton arose, an account of which is given in Wheaton's Elements of International Law (3d ed.), 153, and in 1 Phillimore's International Law (3d ed.), 484 and (2d ed.), 407. The Sally was an American merchant vessel in the port of Marseilles, and The Newton a vessel of a similar character in the port of Antwerp, then under the dominion of France. In the case of The Sally, the mate, in the alleged exercise of discipline over the crew, had inflicted a severe wound on one of the seamen, and in that of The Keu-ton one seaman had made an assault on another seaman in the vessel's boat. In each case the proper consul of the United States claimed exclusive jurisdiction of the offence, and so did the local authorities of the port; but the Council of State, a branch of the political de- partment of the government of France, to which the matter was re- ferred, pronounced against the local tribunals, "considering that one of these cases was that of an assault committed in the boat of the American ship Newton, by one of the crew upon another, and the other was that of a severe wound inflicted by the mate of the Ameri- can ship Sally upon one of the seamen for having made use of the boat without leave." This was clearly because the things done were not such as to disturb "the peace or tranquillity of the port." Wheaton's Elements of International Law (3d ed.), 154. The case of The Sally was simply a quarrel between certain of the crew while con- 228 TERRITORIAL JURISDICTION. [PART I, structively on board the vessel, and that of The Newton grew out of a punishment inflicted by an officer on one of the crew for disobedience of orders. Both were evidently of a character to affect only the police of the vessel, and thus within the authority expressly granted the consul by the treaty.^ The treaty [with Belgium, 1881] is part of the supreme law of the United States, and has the same force and effect in Xew Jersey that it is entitled to elsewhere. If it gives the consul of Belgium exclu- sive jurisdiction over the offence which it is alleged has been com- mitted within the territory of Kew Jersey, we see no reason why he may not enforce his rights under the treaty by writ of habeas corjms in any proper court of the United States. This being the case, the only important question left for our determination is whether the thiug which has been done — the disorder that has arisen — on board this vessel is of a nature to disturb the public peace, or, as some writers term it, the ** public repose" of the people who look to the State of New Jersey for their protection. If the thing done — "the disorder," as it is called in the treaty — is of a character to affect those on shore or in the port when it becomes known, the fact that only those on the ship saw it when it was done is a matter of no moment. Those who are not on the vessel pay no special attention to the mere disputes or quarrels of the seamen while on board, whether they occur under deck or above. Neither do they as a rule care for anything done on board which relates only to the discipline of the ship, or to the preservation of order and authority. Not so, however, with crimes which from their gravity awaken a public interest as soon as they become known, and especially those of a character which every civilized nation considers itself bound to provide a severe punishment for when committed within its own jurisdiction. In such cases inquiry is certain to be instituted at once to ascertain how or why the thing was done, and the popular excitement rises or falls as the news spreads and the facts become known. It is not alone the publicity of the act, or the noise and clamor which attends it, that fixes the nature to the crime, but the act itself. If that is of a char- acter to awaken public interest when it becomes known, it is a "dis- order" the nature of which is to affect the community at large, and consequently to invoke the power of the local government whose peo- 1 A murder was committed by one Frencliman upon another, on board a French merchant vessel, at anclior in a Mexican port; held that it is not necessarily a disturb- ance of the peace of the port, and therefore the Mexican courts would not assume juris- diction of the case, L'Anemonp, Supreme Ct. of Mexico, 1875 (Journal de Droit International Prive, 1876, p. 413). — Ed. CHAP. II.] WILDENHUS' CASE. 229 pie have been disturbed by what was done. The very nature of such an act is to disturb the quiet of a peaceful community, and to create, in the language of the treaty, a "disorder" which will "disturb tran- quillity and public order on shore or in tlie port." The principle which governs the whole matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with exclu- sively by the sovereignty of the home of the ship, but those which disturb the public peace may be suppressed, and, if need be, the offenders punished, by the proper authorities of the local jurisdiction. It may not be easy at all times to determine to which of the two jurisdictions a particular act of disorder belongs. Much will un- doubtedly depend on the attending circumstances of the particular case, but all must concede that felonious homicide is a subject for the local jurisdiction, and that if the proper authorities are proceeding with the case in a regular way, the consul has no right to interfere to prevent it. That, according to the petition for the habeas coritus, is this case. This is fully in accord with the practice in France, where the government has been quite as liberal towards foreign nations in this particular as any other, and where, as we have seen in the cases of The Sally and The Newton, by a decree of the Council of State, representing the political department of the government, the French courts were prevented from exercising jurisdiction. But afterwards, in 1859, in the case of Jally, the mate of an American merchantman who had killed one of the crew and severely wounded another on board the ship in the port of Havre, the Court of Cassation, the highest judicial tribunal of France, upon full consideration held, w^hile the Convention of 1853 was in force, that the French courts had rightful jurisdiction, for reasons which sufficiently appear in the following extract from its judgment:^ " Considering that it is a principle of the law of nations that every state has sovereign jurisdiction throughout its territory ; "Considering that by the terms of Article 3 of the Code Napoleon the laws of police and safety bind all those who inhabit French terri- tory, and that consequently foreigners, even tra7iseu7ites, find them- selves subject to those laws; "Considering that merchant vessels entering the port of a nation other than that to which they belong cannot be withdrawn from the territorial jurisdiction, in any case in which the interest of the state of which that port forms part finds itself concerned, without danger to good order and to the dignity of the government; " Considering that every state is interested in the repression of ^ Usually cited as the case of the Tempest. — Ed. 230 TERRITORIAL JURISDICTION. [PART I. crimes and offences that may be committed in the ports of its terri- tory, not only by the men of the ship's company of a foreign mer- chant vessel towards men not forming part of that company, but even by men of the ship's company among themselves, whenever the act is of a nature to compromise the tranquillity of the port, or the inter- vention of the local authority is invoked, or the act constitutes a crime by common law," (droit commun, the law common to all civil- ized nations), "the gravity of which does not permit any nation to leave it unpunished, without impugning its rights of jurisdictional and territorial sovereignty, because that crime is in itself the most manifest as well as the most flagrant violation of the laws which it is the duty of every nation to cause to be respected in all parts of its territory." 1 Ortolan Diplomatic de la Mer (4th ed.), pp. 455, 456; Sirey (n. s.), 1859, p. 189. The judgment of the Circuit Court is affirmed. THE "RELIANCE." U. S. Circuit Court for So. Dist. of N. Y., 1848. (1 Abbott's Adm. Rep., 317.) This was a libel in rem filed by the owner, master and crew of the bark Eeliance against One Hundred and Ninety-four shawls salved by the libellants from the wreck of the Lady Kemieway to recover salvage compensation. The Reliance was a British vessel which left Liverpool bound to New York. Near the coast of England, she fell in with the Lady KenneriKiy and boarded her, finding no person on board. The Lady Kenneway was a British East Indiaman, owned in London, on her way to London from Bombay. The master of the Reliance ordered several cases containing shawls to be taken from her, and then abandoned her. The Reliance pursued her way to New York, where she arrived December 1, 1847. A libel was filed against the chief part of the articles brought from the Lady Kenneway. The British consul, by leave of the court, intervened in behalf of the unknown British owners, praying the court to order restitution for their benefit of the property attached, after allowing the libellants a reasonable salvage, if, in the judg- ment of the court, " they proved a case of derelict, and their conse- quent right to salvage." CHAP. II.] THE " IIELIANCE." 231 The individual claimants, as well as the consnl, set up defenses against the award of salvage, charging waste, damage, and destruc- tion of the apparel and stores of the vessel. It is insisted that the court should decline jurisdiction in the case, because the Ladij Kenneway was an English vessel, then on a homeward voyage, with her cargo for an English market, and the Reliance at the time, was an English vessel, with a British crew on board, who had signed British articles and that accordingly both vessels and libellants were bound to return to terminate the voyage at a British port. ^ Betts, J. — " * * * As a general principle, the citizens or subjects of the same nation have no right to invoke a foreign tribunal to adjudicate between them, as to matters of tort or contract solely affecting themselves. It rests in the discretion of the court, whose authority is invoked, to determine whether it will take cognizance of such matters or not. * * * " As maritime courts proceed upon a common rule of right and compensation in salvage cases, the question of jurisdiction in that class of actions will seldom be raised or regarded before them. " The courts will take cognizance of those cases as matters of course, if either party is territorially within the jurisdiction of the court ; and the property being brought within their jurisdiction, although the salvors and claimants may be citizens or subjects of different nations, the court will unhesitatingly dispose of the sub- ject, if satisfied that the whole right is before it, — salvage being essentially a question of thej'«s gentium. * * * " I find no authority of weight which imposes on the courts of our country the necessity of determining controversies between for- eigners resident abroad, either in common-law actions, transitory in their nature, or maritime proceedings when the remedy is in rem. " If the doctrine were peremptory, imparting to suitors the right to such aid, and imposing on courts the obligation to afford it, actions for supplies and materials, on charter-parties and bills of lading, or by mechanics for labor, would be comprehended within the class, equally with suits for wages on bottomry bonds or for salvage compensation. " I am satisfied the law is not so. In my judgment it would be lamentable if courts were compelled to defer the business of the citizens of the country to bestow their time in litigation between parties owing no allegiance to its laws, and contributing in no Avay to its support. Should it transpire, in the progress of the litigation, ^ Statement of the case is shoitciiocl. — Ed. 232 TERRlTOPwIAL JURISDICTION. [PART I. that the law of the domicile of the parties must be ascertained in order to adjudge rightly on their claims, or that -witnesses must be examined there to fix the facts in controversy, the court might be compelled to suspend its movement and wait until these cardinal particulars could be supplied from abroad. Every tribunal expe- riences the inconvenience and unsatisfactoriness of so settling con- troversies between those even who can have no other means of re- dress, and will recognize the value of the principle which enables them, in regard to foreigners, to remit their controversies to their home tribunals, where the law is known, and the facts can be more surely determined. This court has, in repeated instances, acted upon this acceptation of the law ; and believing it to be the sound and safe rule, I shall adhere to it in all cases authorizing that exer- cise of discretion. " The question to be considered is, whether, in this case, the rights of parties would be best promoted by retaining the case and dispos- ing of the subject here, or by remitting it to the home courts of the salvors and claimants. "The answer advances many grave imputations against the con- duct of the master and seamen on board the wreck and after the property came into their possession, and these charges are not with- out color of proof to support them. Their case does not, accord- ingly, come before the court with the most persuasive claims to its interposition and favor. When salvage services are eminently mer- itorious, and the only inquiry to be made is the rate of award to be allotted. Admiralty Courts would be solicitous to give every practi- cable despatch to suits by the salvors, and relieve them both from delay and expense in obtaining their just reward. It would scarcely occur that any court would withhold its aid from such suitors. It is quite different when the foreign owner of the property charges his fellow-subject with embezzlement and spoliation, and other wanton misconduct in respect to it, and prays the privilege to con- test his claim to compensation before the authorities of their com- mon country. * * * " The termination of the voyage of the Reliance was in England, where it is to be presumed she would arrive within a short period after leaving this port, and it is most fitting that the question of the obligations and privileges of her master and crew, in respect to serv- ices rendered a Britisli vessel, a wreck or in distress on the English coast, should be determined in the courts of that nation. * * * " As the libellants may not reclaim the property attached in their behalf, the decree will make provision enabling the claimants who have intervened in their own right, and the British Consul in behalf CHAP. II.] THE "RKLIANCE." 233 of unknown owners, to take the goods out of court and ship thein to their port of destination." ^ iln the case of ylpri.sen v. Ship Aurora (1800), Bee's Adm. Reports, 161, the suit was brought for seamen's wages and to obtain a discharge on account of tlie captain's ill treatment. In the course of the judgment the judge said : "From this evidence I do not find sufficient evidence to entitle these three men to their discharge (from the completion of the voyage). " (1) Because no unlawful weapon was used. " (2) Sufficient provocation for the captain's acts. " This is the case of a neutral vessel, the crew of which are bound by their arti- cles to return to Hamburgh, before they are entitled to receive their wages, and the 12th of those articles stipulates that everything not specified therein shall be regu- lated according to the marine law of Hamburgh for regulating the conduct of officers and seamen aboard vessels belonging to that place." The suit was dismissed with costs. In Willend.'^on v. The FiJrsoket, 1 Peter's Adm., 197, the plaintiff, a sailor on a Danish ship, cited liis captain on a claim for wages. The judge, in the course of his opinion, says that his general rule has been not to take cognizance of disputes between masters and crews of foreign ships. " I have," said he, " * * * in peculiar cases * * * compelled the payment of wages * * * assisted in recovering deserters * * * (and in) reducing to obedience perverse and rebellious mariners. " In the case now before me I see no cause to warrant my taking cognizance. It is the duty of the master to return the seaman to his own country. This he offers to do. * * * He must give the sailor a certificate of forgiveness of past offenses, to avail him in his own country. * * * if* * * there shall appear no deception in the present offer (to carry the seaman home) I shall not fm-ther inter- fere, but dismiss the suit." Mr. Hamilton Fish, Secretary of State, in a dispatch to General Schenck, United States Minister in London (November 8, 1873), said : " Referring to the case of Albert Allen Gardner, master of the American ship Anna Camp, tried in the County Court at Liverpool, in May last, copies of certain papers relating to which were forwarded to you by General Badeau, I desire to call your attention to the claim of jurisdiction put forth by the local common-law courts of Great Britain in this and other similar cases. " It seems to be claimed by the courts in question that their jurisdiction extends to the hearing and determining of causes arising upon complaints between masters and mariners of vessels of the United States, not only where the occurrences upon which the complaint may be founded took place within British ports or waters, but also when the offense which is made the ground of action was committed on board the vessel on the high seas. " The exercise of this jurisdiction by the common-law courts at Liverpool has already been the cause of much annoyance and in some instances serious incon- venience to masters and owners of American vessels, and if persisted in may affect injuriously the interests of American shipping." Mr. Fish proceeds to quote from the decision of .Judge Betts, in the case of the Belhnice, and to commend the principles there set forth as the only proper rule to be followed. Compare the following two decisions in cases of merchant ships for alleged in- fringements of patent rights : Calilwell v. Van Vlissciirjcn, 1851, 9 Hare, 415, in which the vtssel was restrained from using the patent, and Brown v. Duchesne, 1857, 19 How. 183, in which the court refused its aid to the American patentee. — Ed. 234 TERRITORIAL JURISDICTION. [PART I. ELLIS V. MITCHELL. Supreme Court of Hong Koxg, 1874. {U. S. Foreign Relations, 1875, 600.) Judgment, Small, C. J. : — " Our decision in this appeal having been for some time come to, we handed to tlie registrar our concluded judgment and by our direc- tion he gave it out on the 7th of November last. Tliat decision was in the following terms : ' We have fully considered all the facts in this case and the very able arguments which, on the part of the appellant, Mr. Kingsmill submitted to us. The respondent did not appear. We are of opinion that the appellant has failed to show that the decision in the summary branch of this court is wrong. It is our duty, therefore, to dismiss this appeal.' The respondent has incurred no costs ; we say nothing as to costs. Some questions as to the duties and jurisdiction of consuls have arisen in this case to which we should wish to advert, but as these questions arise out of this case, rather than lead up to our decision, we purpose at a more convenient opportunity to refer to them. It seems to us that a some- what exaggerated notion as to the duties and jurisdiction of consuls in this colony is prevalent, " The grounds and reasons for the decision in this case were very carefully considered and conferred on between us. We were agreed in the conclusion that the appeal must be dismissed. In order that the parties might not be kept longer in suspense, we directed the decision which I have just read to be given out by the registrar on the 7th day of November, as I have already said. There seems to have been a grave misapprehension that this case came before Mr. Justice Snowden as an appeal from the decision of the consul of the United States. " It was not so. From the first it was treated by the learned judge as being untouched by decision, and, indeed, as a matter entirely ultra vires the consul of the United States. True it is that a dis- charge of the plaintiff from the ship, and an account taken in the presence of the consul of wages earned, were produced and relied on by the defendant, the master of the ship, as an answer to the plaint- iff's claim ; but it was held in the summary branch of this court, upon the evidence before it, that in no way was the consul acting or intervening judicially, either as to the discharge, or as to the account. No claim for unlawful dismissal had been raised before the consul. CHAP, II.] ELLIS V. MITCHELL. 235 It might have been properly raised before the proper judicial tribunal of and Avitliin the United States ; but no evidence was adduced to show that that authority was vested by the law of the United States in the consul here. Even if it had been so vested by any such law of the Union, it required the force of a treaty, and an act of Parliament, or local ordinance, to enable the consul to exercise any extra-territorial judicial power within British territory. Although some instructions to the consuls were produced to the court, no act of Congress was produced, nor was there any evidence that there was any such act, or common-law power in a consul. According to Chancellor Kent's Commentaries, vol. T., p. 50, et seq., ' consuls are connnercial agents. * * * In some places they have been invested witli judicial powers over disputes between their own merchants in foreign ports ; but in the commercial treaties made by Great Britain there is rarely any stipulation for clothing them with judicial authority, except in treaties with the Barbary powers. And in England it has been held that a consul is not strictly a judicial officer, and they have there no judicial power.' He cites Waldron v. Comhe^ 3 Taunton, 162. The words of the Chief-Justice Mansfield there are, ' The vice consul is no judicial officer.' At page 51 the very learned chancellor proceeds : ' No government can invest its consuls with judicial power over their own subjects in a foreign country without the consent of the foreign government, founded on treaty.' At page 52, he says : ' It is likewise made their duty (i. e. of consuls), where the laws of the country per- mit, to administer on the personal estates of American citizens dying within their consulates,' etc. And in note (6) he says, ' American consuls cannot take cognizance of the offenses of seamen in foreign ports, nor exempt the master from his own responsibility.' He cites Ware's Reports (American), 367. And to conclude all, he says at page 53 : ' The consular convention between France and this country {i. e. the United States) in 1778 allowed consuls to exercise police over all vessels of their respective nations witliin the interior of the vessels, and to exercise a species of civil jurisdiction by determining disputes concerning wages, and between the master and crews of vessels belonging to their own country. The jurisdiction claimed under the consular convention with France was merely voluntary, and although exclusive of any coercive authority, and we {i. e. the United States) have no treaty at present which concedes even such consular func- tions.' AVe quote the 9th edition of Kent's Commentaries (1858). We have before us the valuable work of Judge Bouvier, the law- dictionary, the 4th edition of 1872, and in it we find nothing to vary all that Chancellor Kent asserts. Parsons' Law of Shipping, pub- 236 TERRITORIAL JURISDICTION. [PART I. lished ill 1869, is to the same effect. One quotation from Parsons, vol. II., p. 56. " He there says, ' a discharge (?. e. of a seaman,) when made in a foreign port, is required to be made before the consul ; but the pay- ment of wages already due is not.' And this to such an extent that the learned author adds, ' and the consul has no right to charge a com- mission for witnessing the settlement,' in other words, he has nothing to do with the settlement of the wages due ; a fortiori he has no author- ity in reference to damages for breach of contract, or otherwise, be- tween the master and the seaman. Now, if the consul has no such au- thority, the authority must be somewhere, and it cann'ot be con- tended, upon any grounds of which we are aware, that this court has not the fullest authority over all such disputes. It is quite clear that the legislature of this country can, by statute or ordinance, give extra- territorial powers to consuls, but as all such powers are in derogation of the royal prerogative all such laws must be construed strictly. It appears to us that ordinance No. 4, of 1850, has no bearing on the ques- tion before us. It relates to cases of desertion from ships, and to nothing else. Ordinance Xo. 6, of 1862, is prohibitory. It says that no British seaman shall be discharged elsewhere than at the harbor- master's office, and that every seaman discharged from a foreign ship, represented by a consul here, ' shall, within twenty-four hours of being discharged at the office of his consul, or vice-consul, pro- duce at the harbor-master's office a certificate of his discharge.' Xow, this is not an enabling statute, and it gives no power to any consul which he had not before. All it does is to assume that every discharge of a foreign seaman will have been given at the office of the consulate of his country. But for legislation the dis- charge of a seaman is a matter between master and seaman only. No treaty has been produced, no act of Parliament or ordinance other than those above cited, has been brought to the notice of this court. In the absence of any such we are driven back to the international law, as laid down by Chancellor Kent, page 51, that the consul of the United States is not a judicial officer, 'that they have no judicial power' and, page 53, that there is no treaty with the United States which authorizes consuls to exercise a species of jurisdiction by de- termining disputes concerning wages between masters and crews belonging to their own country in this colonJ^ We conclude, there- fore, that the consul of the United States has no judicial powers or authority whatever in this colony as to wages or damages for wrongs, between United States masters and seamen, which the judicial authorities here can recognize, but that this court must decide such questions when brought before it. CHAP. IL] ELLIS V. MITCHELL. 237 " What we have said as to the consul of the United States applies to consuls from all other foreign states. Xo such claim is, we believe, set up in any other part of the British dominions. In China, every consul of every foreign power has judicial authority over its own subjects ; but this extra-territorial jurisdiction is the result of express treaty, and is conferred on them by the enactments of the legislative authority of each foreign state. The exaggerated notion as to consular authority here has probably arisen from the powers conceded to them in China, but which are not conceded here. " In a colony so distant as Hong-Kong is from London, convenience has rendered direct communication between the colonial government and consuls here on many subjects properly diplomatic, convenient for all parties. This has probably tended to induce an overestimate of the position of consuls here in reference to judicial authority. We feel great respect for the consuls in this colony, both officially and personally, but we must see that the authority of this court is not curtailed beyond what the law permits. If circumstances render it proper or convenient that judicial authority should in this colony vest in consuls, it must be obtained by treaty and legislation. This court has no power to concede it.'" ^ 1 "As a matter of law, foreign consuls have no jurisdiction within the territory of the United States, except by force of treaty stipulations. See Wiieat. Int. Law, 217. The judicial power of a consul depends upon tlie treaties between the nations con- cerned and tlie laws of tlie nation the consul represents. Dainese v. Hale, 91 U. S. 13. See tlie Ehcine Kreplin, 9 Blatclif. 438. Consular jurisdiction depends on the general law of nations subsisting treaties between the two governments affected by it, and upon tlie obligatory force and activity of the rule of reciprocity. 2 Op. Atty.-Gen. 878. " We conclude, therefore, that neither under international law, nor under the statute law of tlie United States, has a consular officer of a foreign government a right to sit as judge or arbitrator witliin our territory, and render decrees or orders affecting personal liberty, which orders or decrees the courts of the United States are authorized or required to enforce, unless the consent of the United States to such jurisdiction has been given either by express statute or treaty stipulation." Pardee, J., in Re Aubrey, 1885, 26 Fed. 848, 851. For the jurisdiction exercised by consuls in semi-civilized and non-cliristi:in countries, see Dainese v. U. S., 1879, 15 Ct. CI. 64 (an elaborate discussion of the question) ; and the following valuable opinions of C. Cushing : 7 Op. Atty.-Gen. 18, 342. See also U. S. Rev. St. §§ 4083-408G ; 4087-4089. —Ed. 238 TERRITORIAL JURISDICTION. [PART I. IN EE EOSS. United States Supreme Court, 1890. (140 United States, 453.) One John M. Koss served in 1880 as seaman on board tlie American ship Bullion, in the waters of Japan. While the vessel lay at anchor in the harbor of Yokohama, he assanlted Eobert Kelley, second mate of the Bullion, with a knife, inflicting in his neck a mortal wonnd of which he died in a few minntes, on the deck of the ship. Eoss was at once arrested hy direction of the master of the vessel, placed in irons, taken ashore, and confined in jail at Yokohama. The master filed a complaint with the American Consul General of Yokohama, charging Eoss with murder, and he was tried and convicted thereof in the American Consular Court of Japan. His sentence was com- muted by the President of the United States to life imprisonment in the Penitentiary at Albany. In 1890 he applied to the United States Circuit Court for the Northern District of New York for a writ of habeas coi'pus for his discliarge, which was duly issued. On hearing, the court denied the motion of the prisoner for his discharge and remanded him to the penitentiary. From that order, an appeal was taken to the Supreme Court. -^ Mr. George W. Kirch wey, for appellant. Mr. Assistant Attorney-General Parker, for appellee. Mr. Justice Field delivered the opinion of the court. ^ The Circuit Court did not refuse to discharge the petitioner upon any independent conclusion as to the validity of the legislation of Congress establishing the consular tribunal in Japan, and the trial of Americans for offences committed within the territory of that coun- try, without the indictment of a grand jur}^, and without a trial by a petit jury, but placed its decision upon the long and uniform acquies- cence by the executive, administrative, and legislative departments of the government in the validity of the legislation. Nor did the Cir- cuit Court consider whether the status of the petitioner as a citizen of the United States, or as an American within the meaning of the treaty with Japan, could be questioned, while he was a seaman of an American ship, under the protection of the American flag, but simply stated the view taken on that subject by the minister to Japan, the 1 Shortened statement substituted for that of the original report. — Ed. 2 Part of the judgment is omitted. — Ed. CHAP. II.] IN RE noss. 239 State Department, and the President. Said the court: "During the thirty years since the statutes conferring the judicial i)0\vers on min- isters and consuls, ■which have been referred to, weie enacted, that jurisdiction has been freely exercised. Citizens of tlie United States have been tried for serious offences before these officers, without pre- liminary indictment or a common-law jury, and convicted and pun- ished. These trials have been authorized by the regulations, orders, and decrees of ministers, and it must be presumed that the regula- tions, orders, and decrees of ministers prescribing the mode of trial have been transmitted to the Secretary of the State, and by him been laid before Congress for revision, as required by law. Unless the petitioner was not properly subject to this jurisdiction because he was not a citizen of the United States, his trial and sentence were in all respects modal, as well as substantial, regular, and valid under the laws of Congress, according to the construction placed upon these statutes by the acquiescence of the executive, administrative, and leg- islative departm.ents of the government for this long period of time." Under these circumstances the Circuit Court was of opinion that it ought not to adjudge that the sentence imposed upon the petitioner was utterly unwarranted and void, when the case was one in which his rights could be adequately protected by this court, and when a decision by the Circuit Court setting him at liberty, although it might be reversed, would be practically irrevocable. The Circuit Court might have found an additional ground for not calling in question the legislation of Congress, in the uniform prac- tice of civilized governments for centuries to provide consular tribu- nals in other than Christian countries, or to invest their consuls with judicial authoritj', which is the same thing, for the trial of their own subjects or citizens for offences committed in those countries, as well as for the settlement of civil disputes between them; and in the uni- form recognition, down to the time of the formation of our govern- ment^ of the fact that the establishment of such tribunals was among the most important subjects for treaty stipulations. This recognition of their importance has continued ever since, though the powers of those tribunals are now more carefully defined than formerly. Dainese V. Hale, 91 U. S. 13. The practice of European governments to send officers to reside in foreign countries, authorized to exercise a limited jurisdiction over vessels and seamen of their country, to watch the interests of their countrymen and to assist in adjusting their disputes and protecting their commerce, goes back to a very early period, even preceding what are termed the Middle Ages. During those ages these commercial magistrates, generally designated as consuls, possessed to some extent 240 TERRITORIAL JURISDICTION. [PART I. a representative character, sometimes discharging judicial and diplo- matic functions. In other than Christian countries they were, by treaty stipulations, usually clothed with authority to hear complaints against their countrymen and to sit in judgment wpon them when charged with public offences. After the rise of Islamism, and the spread of its followers over eastern Asia and other countries border- ing on the Mediterranean, the exercise of this judicial authority be- came a matter of great concern. The intense hostility of the people of Moslem faith to all other sects, and particularly to Christians, affected all their intercourse, and all proceedings had in their tribu- nals. Even the rules of evidence adopted by them placed those of different faith on unequal grounds in any controversy with them. For this cause, and by reason of the barbarous and cruel punishments in- flicted in those countries, and the frequent use of torture to enforce confession from parties accused, it was a matter of deep interest to Christian governments to withdraw the trial of their subjects, when charged with the commission of a public offence, from the arbitrary and despotic action of the local officials. Treaties conferring such jurisdiction upon these consuls were essential to the peaceful resi- dence of Christians within those countries and the successful prosecu- tion of commerce with their people. The treaty-making power vested in our government extends to all proper subjects of negotiation with foreign governments. It can, equally with any of the former or present governments of Europe, make treaties providing for the exercise of jiulicial authority in other countries by its officers appointed to reside therein. We do not understand that any question is made by counsel as to its power in this respect. His objection is to the legislation by which such treaties are carried out, contending that, so far as crimes of a felonious character are concerned, the same protection and guarantee against an undue accusation or an unfair trial, secured by the Consti- tution to citizens of the United States at home, should be enjoyed by them abroad. In none of the laws which have been passed by Con- gress to give effect to treaties of the kind has there been any attempt to require indictment by a grand jury before one can be called upon to answer for a public offence of that grade committed in those coun- tries, or to secure a jury on the trial of the offence. Yet the laws on that subject have been passed without objection to their constitution- ality. Indeed, objection on that ground was never raised in any quarter, so far as we are informed, until a i-ecent period. It is now, however, earnestly pressed by counsel for the petitioner, but we do not think it tenable. By the Constitution a government is ordained and established "for the United States of America," and not CHAP. IT.] ■ IN HE ROSS. 241 for countries outside of tlieir limits. The guarantees it affords against accusation of capital or infamous crimes, except by indictment or pre- sentment by a grand jur}-, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offences com- mitted elsewhere, and not to residents or temporary sojourners abroad. Cook v. United States, 1.38 U. S. 157, 181. The Constitu- tion can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such condi- tions as the two countries may agree, the laws of neither one being obligatory upon the other. The deck of a private American vessel, it is true, is considered for many purposes constructively as territory of the United States, yet persons on board of such vessels, whether officers, sailors, or passengers, cannot invoke the protection of the provisions referred to until brought within the actual territorial boun- daries of the United States. And, besides, their enforcement abroad in numerous plices, where it would be highly important to have con- suls invested with judicial authority, would be impracticable from the impossibility of obtaining a competent grand or petit jury. The re- quirement of such a body to accuse and to try an offender would, in a majority of cases, cause an abandonment of all -prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guarantees in the administra- tion of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of in- vesting the consul with judicial authority. While, therefore, in one aspect the American accused of crime committed in those countries is deprived of the guarantees of the Constitution against unjust accusa- tion and a partial trial, yet in another aspect he is the gainer, in being withdrawn from the procedure of their tribunals, often arbitrary and oppressive, and sometimes accompanied with extreme cruelty and tor- ture. Letter of Mr. Cashing to Mr. Calhoun of Sept. 29, 1844, accom- panying President's message communicating abstract of treaty with China, Senate Doc. 58, 28th Cong. 2d Sess. ; Letter on Judicial Ex- territorial Rights by Secretary Frelinghuysen to Chairman of Senate Committee on Foreign Relations of April 29, 1882, Senate Doc. 89, 47th Cong. 1st Sess.; Phillimore on Int. Law, Vol. 2, part 7; Halleck on Int. Law, c. 41. 16 2i2 TERRITORIAL JURISDICTION. [PART I. We turn now to the treaties between Japan and the United States. The treaty of June 17, 1857, executed by the consul general of the United States and the governors of Simoda, is the one which first con- ceded to the American consul in Japan authority to try Americans committing oifences in that country. Article IV. of that treaty is as follows : " Art. IV. Americans committing offences in Japan shall be tried by the American consul general or consul, and shall be punished according to American laws. Japanese committing offences against Americans shall be tried by the Japanese authorities and punished according to Japanese laws." 11 Stat. 723. Our government has always treated Article IV. of the treaty of 1857 as continuing in force, and it is published as such in the United States Consular Regulations, issued in 1S88. Appendix No. 1, p. 313. Its official interpretation is found in Article 71 of those regulations, which declares that " consuls have exclusive jurisdiction over crimes and offences committed by citizens of the United States in Japan." ]Mr. Bingham, our minister to that country for several years after the treaty of 1858, always assumed the incorporation into that treaty of all the provisions of the treaty of 1857, or that they were saved by it. When the prisoner reached San Francisco, on his way from Japan to Albany, he applied to the Circuit Court of the United States for a writ of habeas corpus, and cited the sixth article of the treaty of 1858, insisting that it only provided for the trial of Americans by American Consular Courts in Japan for offences committed against Japanese, and therefore he could not be held to answer for the murder of the second officer of the American ship Bullion, when in Japanese waters, because he was not a Japanese subject. In a communication made under date of June 8, 1881, by the minister to the Secretary of State, reference is made to this position, and the following language is used: "Nothing, in my opinion, could more strongly testify to the utter ■weakness of the claim made for Eoss against the government than this attempt to limit the jurisdiction of our consuls in Japan over Americans, guilty of crimes by them committed within this empire, to such crimes only as they should commit upon the persons of Jap- anese subjects. According to this logic, Americans may in Japan murder each other and the citizens or subjects of all lands save the subjects of Japan with impunity — as it is admitted by this govern- ment that it cannot try an American for any offence whatever — and it must also be conceded that the tribunals of no other government than our own can try Americans for crimes by them committed within this empire. In giving my reasons to the department for sustaining the jurisdiction of the United States in this case, and for approving CHAP. II.] • IN RE ROSS. 243 as I did the conviction of Eoss, in which the consul general and the four associates who sat with him had concurred, I cited Article IV. of our convention of 1857 'with Japan, to wit: ' That Americans com= mitting offences in Japan shall be tried by the American consul gen- eral or consul, and shall be punished according to American law.' This provision of the convention of 1857 and all other provisions thereof were saved and incorporated in our treaty of 1858 with Japan, Article XII. [quoted above]. You will observe that 'Sir. Townsend Harris was the consul general of the United States who negotiated both of these treaties with Japan, and that the treaty of 1858 was ratified April 12, 1860, and that thereafter, to wit, June 22, 1860, Congress passed the act to carry into effect this treaty %vith Japan, and provided that the minister and consuls of the United States in Japan be ' fully empowered to arraign and try in the manner (in said statute provided) all citizens of the United States charged with offences against law committed ' (by them in Japan) ; [sec. 4084, Kev. Stat.]; and also by section 4086 provided that the jurisdiction in both civil and criminal matters in Japan shall ' in all cases be exercised and enforced in conformity with the laws of the United States, which so far as necessary to execute such treaty are extended over all citizens of the United States therein, and over all others to the extent the terms of the treaty justify or require.' Here was the construction above stated by me asserted by the same Senate which ratified the treaty, and by the same President who approved both the treaty and the act of Congress. The President and the department have alwaj's construed the treaty of 1858 as carrying with it and in- corporating therein the fourth article and all other provisions of the convention of 1857." The legislation of Congress to carry into effect the treaty with Japan is found in the Revised Statutes, in sections most of which apply equally to treaties with China, Siam, Egypt, and Madagascar (sees. 4083-4091). Confining ourselves to the treaty with Japan only, we find that the legislation secures a regular and fair trial to Americans committing offences within that empire. It enacts that the minister and consuls of the United States, ap- pointed to reside there, shall, in addition to other powers and duties imposed upon them respectively, be invested with the judicial author- ity therein described, which shall appertain to their respective offices and be a part of the duties belonging thereto, so far as the same is allowed by treaty; and empowers them to arraign and try, in the manner therein provided, all citizens of the United States charged with offences against law committed in that country, and to sentence such offenders as therein provided, and to issue all suitable and neces- '244 TERRITORIAL JURISDICTION. [PART I. sary process to carry their authority into execution. It declares that their jurisdiction in both criminal and civil matters shall in all cases be exercised and enforced in conformity with the laws of the United States, which, so far as necessary to execute the treaty and suitable to carry it into effect, are extended over all citizens of the United States in Japan, and over all others there to the extent that the terms of the treaty justify or require. It also provides that where such laws are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies, the common law and the law of equity and admiralty shall be extended in like manner over such citizens and others; and that if neither the common law, nor the law of equity, or admiralty, nor the statutes of the United States, furnish appropriate and sufficient remedies, the minister shall, by decrees and regulations, which shall have the force of law, supply such defects and deficiencies. Each of the consuls is authorized, upon facts within his own knowledge, or which he has good reason to believe true, or upon complaint made or information filed in writing and authenti- cated in such way as shall be prescribed by the minister, to issue his warrant for the arrest of any citizen of the United States charged with committing in the country an offence against law; and to arraign and try any such offender; and to sentence him to punishment in the manner therein prescribed. The legislation also declares that insurrection or rebellion against the government, with intent to subvert the same, and murder, shall be punishable with death, but that no person shall be convicted thereof unless the consul and his associates in the trial all concur in the opinion, and the minister approves of the conviction. It also provides that whenever in any case the consul is of opinion that, by l-eason of the legal questions which may arise therein, assistance will be useful to him, or that a severer punishment than previously speci- fied in certain cases will be required, he shall summon to sit with him on the trial one or more citizens of the United States, not ex- ceeding four, and in capital cases not less than four, who shall be taken by lot from a list which has been previously submitted to and approved by the minister, and shall be persons of good repute and competent for the duty. The jurisdiction of the consular tribunal, as is thus seen, is to be exercised and enforced in accordance with the laws of the United States; and of course in pursuance of them the accused will have an opportunity of examining the complaint against him, or will be pre- sented with a copy stating the offence he has committed, Avill be entitled to be confronted with the witnesses against him and to cross- examine them, and to have the benefit of counsel ; and, indeed, will CHAP. II.] IN RE EOSS. 245 have the benefit of all the provisions necessary to secure a fair trial before the consul and his associates. The only complaint of this leg- islation made by counsel is that, in directing the trial to be had be* fore the consul and associates summoned to sit with him, it does not require a previous presentment or indictment by a grand jury, and does not give to the accused a petit jury. The want of such clauses, as affecting the validity of the legislation, we have already consid- ered. It is not pretended that the prisoner did not have, in other respects, a fair trial in the Consular Court. It is further objected to the proceedings in the consular court that the offence with which the petitioner was charged, having been com- mitted on board of a vessel of the United States in Japanese waters, was not triable before the Consular Court; and that the petitioner, being a subject of Great Britain, was not within the jurisdiction of that court. These objections we will now proceed to consider. The argument presented in support of the first of these positions is briefly this. Congress has provided for the punishment of murder committed upon the high seas, or any arm or bay of the sea within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular State; and has provided that the trial of all offences committed upon the high seas, out of the juris- diction of any particular State, shall be in the district where the offender is found or into which he is first brought. The term "high seas " includes waters on the sea coast without the boundaries of low- water mark; and the waters of the port of Yokohama constitute, within the meaning of the statute, high seas. Therefore it is con- tended that, although the ship Bullion was at the time lying in those waters, the offence for which the appellant was tried and convicted was committed on the high seas and within the jurisdiction of the domestic tribunals of the United States, and is not punishable else- where. In support of this position it is assumed that the jurisdic- tion of the Consular Court is limited to offences committed on land, within the territory of Japan, to the exclusion of offences committed on waters within that territory. There is, as it seems to us, an obvious answer to this argument. The jurisdiction to try offences committed on the high seas in the district where the offender may be found, or into which he may be first brought, is not exclusive of the jurisdiction of the consular tribu- nal to try a similar offence when committed in a port of a foreign country in which that tribunal is established, and the offender is not taken to the United States. There is no law of Congress compelling the master of a vessel to carry or transport him to any home port when he can be turned over to a Consular Court having jurisdiction of 246 TERKITORTAL JURISDICTIOX, [PART I. similar offences comraitted in the foreign conntn'. 7 Opinions Attys.- Gen. 722. The provisions conferring jurisdiction in capital cases upon the consuls in Japan, when the offence is committed in that country, are embodied in the Revised Statutes, with the provisions as to the jurisdiction of domestic tribunals over such offences com- mitted on the high seas; and those statutes were re-enacted together, and, as re-enacted, went into operation at the same time. To both effect must be given in proper cases, where they are applicable. "We do not adopt the limitation stated by counsel to the jurisdiction of the consular tribunal, that it extends only to offences committed on land. Neither the treaty nor the Revised Statutes to carry, them into effect contain any such limitation. The latter speak of offences com- mitted in the country of Japan — meaning within the territorial juris- diction of that country — which includes its ports and navigable waters as well as its lands. The position that the petitioner, being a subject of Great Britain, ■was not within the jurisdiction of the Consular Court, is more plau- sible, but admits, we think, of a sufficient answer. The national character of the petitioner, for all the purposes of the consular juris- diction, was determinable by his enlistment as one of the crew of the American ship Bullion. By such enlistment he becomes an American seaman — one of an American crew on board of an Ameri- can vessel — and as such entitled to the protection and benefits of all the laws passed by Congress on behalf of American seamen, and sub- ject to all their obligations and liabilities. Although his relations to the British Government are not so changed that, after the expiration of his enlistment on board of the American ship, that government may not enforce his obligation of allegiance, and he on the other hand may not be entitled to invoke its protection as a British sub- ject, that relation was changed during his service of seaman on board of the American ship under his enlistment. He could then insist upon treatment as an American seaman, and invoke for his protec- tion all the power of the United States which could be called into exercise for the protection of seamen who were native born. He owes for that time to the country to which the ship on which he is serving belongs, a temporary allegiance, and must be held to all its responsibilities. The question has been treated more as a political one for diplomatic adjustment, than as a legal one to be determined by the judicial tribunals, and has been the subject of correspondence between our government and that of Great Britain. The position taken by our government is expressed in a communi- cation from the Secretary of State, to the British Government, under date of June IG, 1881. It was the assertion of a principle which the CHAP. II.] IN EE EOSS. 247 Secretary insisted "is in entire conformity with the principles of English law as applied to a mercantile service almost identical with our own in its organization and regulation. That principle is that, when a foreigner enters the mercantile marine of any nation and be- comes one of the crew of a vessel having undoubtedly a national char- acter, he assumes a temporary allegiance to the flag under which he serves, and in return for the protection afforded him becomes subject to the laws by which that nation in the exercise of an unquestioned authority governs its vessels and seamen. If, therefore," he con- tinued, "the government of the United States has by treaty stipula- tion with Japan acquired the privilege of administering its own laws upon its own vessels and in relation to its own seamen in Japanese territory, then every American vessel and every seaman of its crew are subject to the jurisdiction whicli by such treaty has been trans- ferred to the government of the United States." " If Ross had been a passenger on board of the Bullion, or if, resid- ing in Yokohama, he had come on board temporarily and had then committed the murder, the question of jurisdiction would have been very different. But, as it was, he was part of the crew, a duly en- rolled seaman under American laws, enjoying the protection of this government to such an extent that he could have been protected from arrest by the British authorities ; and his subjection to the laws of the United States cannot be avoided just at the moment that it suits his convenience to allege foreign citizenship. The law which he vio- lated was the law made by the United States for the government of United States vessels; the person murdered was one of his own supe- rior officers whom he had bound himself to respect and obey, and it is difficult to see by what authority the British Government can as- sume the duty or claim the right to vindicate that law or protect that officer." " The mercantile service is certainly a national service, although not quite in the sense in which that term would be applied to the national navj\ It Is an organized service, governed by a special and complex system of law, administered by national officers, such as col- lectors, harbor masters, shipping masters and consuls, appointed by national authority. This system of law attaches to the vessel and crew when they leave a national port and accompanies them round the globe, regulating their lives, protecting their persons and punish- ing their offences. The sailor, like the soldier during his enlistment, knows no other allegiance than to the country under whose flag he serves. This law may be suspended while he is in tlie ports of a foreign nation, but where such foreign nation grants to the country which he serves the power to administer its own laws in such for- 248 TERRITORIAL JURISDICTION. [PART I. eign territory, then the law under which he enlisted again becomes supreme." The Secretary concluded his communication with the following expression of the determination of our government: " So impressed is this government with the importance and pro- priety of these views, that while it will receive with the most re- spectful consideration the expression of any different conviction Avhich her Britannic INIajesty's government may entertain, it will yet feel bound to instruct its consular and diplomatic officers in tlie East, that in China and Japan the judicial authority of the consuls of the United States will be considered as extending over all persons duly shipped and enrolled upon the articles of any merchant vessel of the United States, whatever be the nationality of such person. And all offences which would be justiciable by the Consular Courts of the United States, where the persons so offending are native born or naturalized citizens of the United States, employed in the merchant service thereof, are equally justiciable by the same Consular Courts in the case of seamen of foreign nationality." The determination thus expressed was afterwards carried out by in- corporating the doctrine into the permanent regulations of the depart- ment for the guide of the consuls of this country, 72d regulation. The views thus forcibly expressed present in our judgment the true status of the prisoner while an enlisted seaman on the American vessel, and give effect to the purpose of the treaty and the legisla- tion of Congress. The treaty uses the term "Americans" in speak- ing of those who may be brought within the jurisdiction of the Consular Court for offences committed in Japan. The statute desig- nates them as "citizens of tlie United States," and 3'et extends the laws of the United States, so far as they may be necessary to execute the treaty and are suitable to carry the same into effect, not only over all citizens of the United States in Japan, but also over "all others to the extent that the terms of the treaty ji'stify or require." E-eading the treaty and statute together in view of the purpose de- signed to be accomplished, we are satisfied that it was intended by them to bring within our laws all who are citizens, and also all who, though not strictly citizens, are by their service equally entitled to the care and protection of the government. It is a canon of inter- pretation to so construe a law or a treaty as to give effect to the object designed, and for that purpose all of its provisions must be examined in the light of attendant and surrounding circumstances. To some terms and expressions a literal meaning will be given, and to others a larger and more extended one. The reports of adjudged cases and approved legal treatises are full of illustrations of the ap- CHAP. IT.] IN RE ROSS. 249 plication of this rule. The inquiry in all such cases is as to Avhat was intended in the law by the legislature, and in the treaty by the contracting parties. In Gcofroy v. Biggs, 133 U. S. 258, which was before this court at the last term, it was held that the District of Columbia, as a political community, is one of "the States of the Union," within the meaning of that term as used in the consular convention of 1853 with France; such construction being necessary to give consistency to the provi- sions of the convention, and not defeat the consideration given by France for her concession of certain rights to citizens of the United States. And in the present case, to carry out the intention of the treaty and statute in question, they will be construed to apply to all parties who are by public law, or the law of the country, entitled to be treated for the time, from their employment and service, as citi- zens. There are many adjudications to the effect that such character will be ascribed to parties and they be held liable to all its conse- quences, and entitled to all its benefits, on other grounds than birth or naturalization. A statute of Henry VIIT. enacted that if an^^body should rob or take "the goods of the King's subjects within this realm," and be found guilty, the party robbed should have restitution of the goods. Of this statute Sir Matthew Haie said that "though it speaks of the King's subjects, it extends to aliens robbed; for though they are not the King's natural born subjects, they are the King's subjects Avhen in England, by local allegiance." 1 Hale's Pleas of the Crown, p. 542. In United States v. Holmes, 5 Wheat. 412, which is in point in the case before us, certain parties were indicted in the Circuit Court of the United States for the District of Massachusetts and convicted of murder on the high seas. It appeared that a vessel, apparently Spanish, was captured by privateers from Buenos Ayres, and a prize crew was put on board, of whom the prisoners Avere a part. One of them was a citizen of the United States and the others were for- eigners. The crime was committed by drowning the person, whose death was charged, by the prisoners driving or throwing him over- board. On motion for a new trial certain questions arose on which the judges were divided in opinion. One of these was, whether it made any difference as to the point of jurisdiction, whether the pris- oners or any of them were citizens of the United States, or that the offence was committed, not on board of any vessel, but on the high seas. The court said that the question contained two propositions; one as to the national character of the offender and the person against whom the offence was committed; and second as to the place where it was committed. In respect to the first the court was of the opin- 250 TERRITORIAL JURISDICTION. [PART I, ion that it made no difference whether the offender was a citizen of the United States or not; adding, "if it (the offence) be committed on board of a foreign vessel by a citizen of the United States, or on board of a vessel of the Untied States by a foreigner, the offender is to be considered, pro hue vice, and in respect to this subject, as be- longing to the nation under whose flag he sails." The views expressed by the Department of State, quoted above, are in harmony with the doctrine uniformly asserted by our government against the claim by England of a right to take its countrymen from the deck of an American merchant vessel and press them into its naval service. It is a part of our history that tlie assertion of this claim, and its enforcement in many instances, caused a degree of irri- tation among our people whicli no conduct of any other country has ever produced. Its enforcement was deemed a great indignity upon this country and a violation of our right of sovereignty, our vessels being considered as parts of our territory. It led to the war of 1812, and although that war closed without obtaining a relinquishment of the claim, its further assertion was not attempted. At last, in a communication by Mr. Webster, then Secretary of State, to Lord Ashburton, the special British minister to this country, on the 8th of August, 1842, the claim was repudiated, and the announcement made that it would no longer be allowed by our government and must be abandoned. The conclusion of j\[r. Webster's communication bears upon the question before us. After referring to the claim of Great Britain, and demonstrating the injustice of the position and its violation of national rights, he said: "In the early disputes be- tween the two governments, on this so long-contested topic, the dis- tinguished person to whose hands were first intrusted the seals of this department declared, that ' the simplest rule will be, that the vessel being American shall be evidence that the seamen on board are such.' Fifty years' experience, the utter failure of many negotiations, and a careful reconsideration now had of the whole subject at a moment when the passions are laid, and no present interest or emergency exists to bias the judgment, have convinced this government that this is not only the simplest and best, but the only rule which can be adopted and observed consistently with the rights and honor of the United States, and the security of their citizens. That rule an- nounces, therefore, what will hereafter be the principle maintained by their government. In every regularly documented American mer- chant vessel, the crew who navigate it will find their protection in the flag which is over them." Webster's Works, Vol. VI. p. 325. This rule, that the vessel being American is evidence that the sea- men on board are such, is now an established doctrine of this country; CHAP. II.] IN HE ROSS. 251 and in support of it there is with the American people no diversity of opinion and can be no division of action. We are satisfied that the true rule of construction in the present case was adopted by the Department of State in the correspondence with the English Government, and that the action of the consular tribunal in taking jurisdiction of the prisoner Ross, though an Eng- lish subject, for the offence committed, was authorized. While he was an enlisted seaman on the American vessel, which floated the American flag, he was, within the meaning of the statute and the treat3% an American, under the protection and subject to the laws of the United States equally with the seaman who was native born. As an American seaman he could have demanded a trial before the Con- sular Court as a matter of right, and must therefore be held subject to it as a matter of obligation. It is true that the occasion for consular tribunals in Japan may hereafter be less than at present, as every year that country pro- gresses in civilization and in the assimilation of its system of judi- cial procedure to that -of Christian countries, as well as in the improvement of its penal statutes; but the system of consular tribu- nals which have a general similarity in their main provisions, is of the highest importance, and their establishment in other than Chris- tian countries, where our people may desire to go in pursuit of com- merce, will often be essential for the protection of their persons and property. We have not considered the objection to the discharge of the pris- oner on the ground that he accepted the conditional pardon of the President. If his conviction and sentence were void for want of jurisdiction in the consular tribunal, it may be doubtful whether he was estopped, by his acceptance of the pardon, from assailing their validity; but into that inquiry we need not go, for the Consular Court having had jurisdiction to try and sentence him, there can be no ques- tion as to the binding force of the acceptance. Order afi&rmed.^ 1 By Treaty of Nov. 22, 1894 (Articles 17, 19), the United States consented to tlie abrogation of consular jurisdiction in Japan, aud on July 17, 1899, such Consular Courts ceased to exist. As regard to the nationality of a merchant vessel and the proof necessary to estab- lish its national character, it was said in The Brig Juno, 1901,36 Ct. CI. : "Tlie proof is suflBcicnt to show that the brig was duly registered, and the register suflBciently estab- lishes the nationality of the vessel." As to the papers carried by vessels as evidence of their nationality, see Hall, Int. Law (3d ed.). Appendix II; 4th ed. 766, note 1 ; Taylor's Int Law, § 552 ; 3 Wharton's Digest, §§ 408-410. — Ed, 252 TERRITORIAL JURISDICTION. [PART I. "THE CREOLE." Commission^ of Claims under Convention between United States AND Great Britain, February 8, 1853. {Report of Commission, 241.) This case was submitted to the umpire under the circumstances named in the preceding case of the Mermosa, to which reference is made. The facts in the case are briefly set forth above, and are also stated at length in the opinion of the umpire, so that further statement of them is unnecessary. Thomas, agent and counsel for the United States. Hannen, agent and counsel for Great Britain. Bates, umpire : This case having been submitted to the umpire for his decision, he hereby reports that the claim has grown out of the following circum- stances : The American brig, Creole, Captain Ensor, sailed from Hampton Roads, in the State of Virginia, on the 27th of October, 1841, having on board one hundred and thirty-five slaves, bound for New Orleans. On the 7th of November, at nine o'clock in the evening, a portion of the slaves rose against the officers, crew, and passengers, wounding severely the captain, the chief mate, and two of the crew, and murdering one of the passengers ; the mutineers, having got complete possession of the vessel, ordered the mate, under threat of instant death should he disobey or deceive them, to steer for Nassau, in the island of New Providence, where the brig arrived on the 9th of November, 1841. The American consul was apprised of the situation of the vessel, and requested the governor to take measures to prevent the escape of the slaves, and to have the murderers secured. The consul received reply from the governor, stating that under the circumstances he would comply with the request. The consiil went on board the brig, placed the mate in command in place of the disabled master, and found the slaves all quiet. About noon twenty African soldiers, with an African sergeant and corporal, commanded by a white officer, came on board. The officer was introduced by the consul to the mate as commanding officer of the vessel. The consul, on returning to the shore, was summoned to attend the governor and council, who were in session, who informed the consul that they had come to the following decision : CHAP, ir.] "the CREOLE." 253 "1st. That the courts of law have no jurisdiction over the alleged offences. "2d. That, as an information had been lodged before the governor, charging that tlie crime of murder had been committed on board said vessel while on the high seas, it was expedient that the parties, impli- cated in so grave a charge, should not be allowed to go at large, and that an investigation ought therefore to be made into the charges, and examinations taken on oath ; when, if it should appear that the original information was correct, and that a murder had actually been com- mitted, that all the parties implicated in such crime, or other acts of violence, should be detained here until reference could be made to the Secretary of State to ascertain whether the parties should be delivered over to the United States Government ; if not, how otherwise to dispose of them. "3d. That as soon as such examinations should be taken, all persons on board the Creole, not implicated in any of the offences alleged to have been committed on board that vessel, must be released from further restraint." Then two magistrates were sent on board. The American consul went also. The examination was commenced on Tuesday, the 9th, and was continued on Wednesday, the 10th, and then postponed until Friday, on account of the illness of Captain Ensor. On Friday morning it was abruptly and without any explanation, terminated. On the same day, a large number of boats assembled near the Creole, filled with colored persons armed with bludgeons. They were under the immediate command of the pilot who took the vessel into the port, who was an officer of the government, and a colored man. A sloop or larger launch was also towed from the shore and anchored near the brig. The sloop was filled with men armed with clubs, and clubs were passed from her to the persons in the boats. A vast concourse of people were collected on the shore opposite the brig. During the whole time the officers of the government were on board they encouraged the insubordination of the slaves. The Americans in port determined to unite and furnish the necessary aid to forward the vessel and negroes to Js'ew Orleans. The consul and the officers and crews of two other American vessels had, in fact, united with the officers, men, and passengers of the Creole to effect this. They were to conduct her first to Indian quay, Florida, where there was a vessel of war of the United States. On Friday morning, the consul was informed that attempts would be made to liberate the slaves by force, and from the mate he received information of the threatening state of things. The result was, the 254 TERRITORIAL JURISDICTION. [PART I. attorney-general and other officers went on board the Creole. The slaves identified as on board the vessel concerned in the mutiny, were sent on shore, and the residue of the slaves were called on deck by direction of the attorney-general, who addressed them in the following terms : '' My friends," or " my men, you have been detained a short time on board the Creole for the purpose of ascertaining what indi- viduals were concerned in the murder. They have been identified, and will be detained. The rest of you are free, and at liberty to go on shore, and wherever you please." The liberated slaves, assisted by the magistrates, were then taken on board the boats, and when landed were conducted by a vast assem- blage to the superintendent of police, by whom their names were registered. They were thus forcibly taken from the custody of the master of the Creole, and lost to the claimants. I need not refer to authorities to show that slavery, however odious and contrary to the principles of justice and humanity, may be estab- lished by law in any country ; and, having been so established in many countries, it cannot be contrary to the law of nations. The Creole was on a voyage, sanctioned and protected by the laws of the United States, and by the law of nations. Her right to navigate the ocean could not be questioned, and as growing out of that right, the right to seek shelter or enter the ports of a friendly power in case of distress or any unavoidable necessity. A vessel navigating the ocean carries with her the laws of her own countr}^, so far as relates to the persons and property on board, and to a certain extent retains those rights even in the ports of the foreign nations she may visit. Now, this being the state of the law of nations, what were the duties of the authorities at Nassau in regard to the Creole ? It is submitted the mutineers could not be tried by the courts of that island, the crime having been committed on the high, seas. All that the authorities could lawfully do, was to comply with the request of the American consul, and keep the mutineers in custody until a conveyance could be found for sending them to the United States. The other slaves, being perfectly quiet, and under the command of the captain and owners, and on board an American ship, the authorities should have seen that they were protected by the law of nations; their rights under which cannot be abrogated or varied, either by the Eman- cipation act or any other act of the British Parliament. Blackstone, 4th volume, speaking of the law of nations, states : "Whenever any question arises which is properly the object of its jurisdiction, such law is here adopted in its full extent by the common law." The municipal law of England cannot authorize a magistrate to CHAP. II.] " TEE CREOLE." 255 violate the law of nations by invading with an armed force the vessel of a friendly nation that has committed no offence, and forcibly dis- solving the relations which by the laws of his country the captain is bound to preserve and enforce on board. These rights, sanctioned by the law of nations — viz. : the right to navigate the ocean, and to seek shelter in case of distress or other unavoidable circumstances, and to retain over the ship, her cargo, and passengers, the laws of her own country — must be respected by all nations ; for no independent nation would submit to their violation. Having read all the authorities referred to in the arguments on both sides, I have come to the conclusion that the conduct of the authorities at Nassau was in violation of the established law of nations, and that the claimants are justly entitled to compensation for their losses. I therefore award to the undermentioned parties, their assigns, or legal representatives, the sums set opposite their names, due on the 15th of January, 1855.^ 1 See elaborate opinion on tlie same subject in the brig Enterprise, pp. 187-237, and tlie shorter one in the Hcrmosa, pp. 238-240, Keport of the Commission. Compare In re ^fol^can, 1882, 14 Fed. 44, and In re Ah Kee, 1884, 22 Fed. 619. In speaking of the umpire, Professor J. B. Moore says (1 International Arbitration 1898, 399-400) : " In more than one conjuncture his position, due not only to his exten- sive connections in business, but also to his high personal character, enabled him to con- tribute to the good relations between the country of his birth and that of his adoption. In 1852 he gave the first effective impulse " to the foundation on a broad basis of the Boston Public Library by a gift of fifty thousand dollars, which he afterwards more than doubled by the purchase and ilonaiion of books." The reading room in the new Boston Public Library, as was that in the old, is called Bates Hall, in memory of Joshua Bates. . . . "As umpire, Mr. Bates, if possible, more than fulfilled the expectations formed of him, and materially contributed to the happy results of the commission. On many of the most important and delicate questions before the board it became his duty to give the final decision. Though this circumstance rendered his labors arduous and his responsibility great, he decided all questions that came before him with promptitude, and with a sound, impartial, independent judgment, and although provision was made by the convention for the compensation of the umpire, he declined to receive for his services any remuneration whatever." In an action to recover insurance effected on the slaves and cargo of the Creole, the same doctrine was enforced. The Supreme Court of Louisiana held inter alia that ■where slaves were shipped from one part of the United States to another, and they rose against the officer of the vessel, and took it into a British port, they were still slaves, though in a state of insurrection ; that they did not cease to be the property of tlieir owners, thougli the riglit of property could not be asserted in a British court, nor enjoyed within the exclusive influence of British law. McCartjo v. N. 0. Ins. Co., 1845. 10 Rob. (La.), 202, 312-332. Mr. Dana criticises the decision of Mr. Bates in this case. " It may be conceded, as a general statement," he says, " that local authorities ought to give active aid to a master in defending and enforcing, against the inmates of his vessel, the rights with whicli his own nation has intrusted him, if these rights are of a character generally 16 25G TERPwITORIAL JURISDICTION. [PART I. Section 11. — Right of Asylum. (a) In Legations. UNITED STATES v. JEFFERS. United States Circuit Coukt for District of Washington, 1836. (4 C ranch, Circuit Court, 704.) Francis S. Key,^ Attorney of the United States for the District of Columbia, having laid before the court a letter to him from the Sec- retary of State, wherein it appeared that a constable, Madison Jeff ers, had removed from the house of Mr. Bankhead, the British Secretary of Legation, a colored lad employed for hire in his family in order to restore the said lad to his master ; it was, on the motion of said attorney of the United States, ordered, that the said Madison Jeffers be removed from the office of constable of the County of Washing- ton, unless he show cause to the contrary on the thirty-first day of May instant, provided, etc. " By order of the court. May 30th, 1836." The rule having been duly served, the said Madison Jeffers appeared on the 31st of ]\hxy and, by way of showing cause, filed his affidavit admitting the facts, but alleging his ignorance of the diplomatic privileges, and his belief that he was executing his duty lawfully, in arresting a fugitive slave, and disclaiming all intentional disre- sj)ect to Mr. Bankhead. recognized among all nations, and not proliibited by the law of the place. But it may well admit of doubt, whether tlie local authorities must give active aid to the master against persons on board his vessel who are doing no more than peacefully and quietly dissolving, or refusing to recognize, a relation which exists only by force of the law of the nation to which the vessel belongs, if the law is peculiar to that nation, and one which the law of the other country regards as against common right and public morals. The local authorities migiit not interfere to dissolve such relations, where the peace of tiie port or tiie public morals are not put in peril ; but they might, it would seem, decline to lend force to compel their continuance." See, also, the adverse criticism of Hall (Int. Law. 2o9). In the case of the Fortuna, 1803, 5 C. Rob. 27, the ship wns proceeded against for a violation of tiie blockade of the Weser. Tiie master of the captured vessel gave as an excuse for entering the blockaded place, the want of provisions, and a strong westerly wind. Sir W.Scott held that " want of provisions " was not such an "imperative and overruling compulsion " as to excuse a breach of blockade. But on the otiier ground, after further proof, tlie vessel was restored. See United States v. Dickelman, 1876, 92 U. S. :J2U, infra. — Ed. 1 Better known as author of " The Star Spangled Banner," 1814. — Ed. CITAP. II.] UNITED STATES V. JEFFERS. 257 His counsel, Mr. W. L. Brent, contended that Jeffers, as the agent of the owner of the shive, had a right to take liim anywhere ; and also that, as a constable, he had a right to take up a runaway, that the diplomatic i^rivilege extends only to foreign ministers and upon certains terms ; and not to servants of a secretary of legation. That the servant had not been registered according to the x\ct of Congress of 30th of April, 1790, § 2G (Stat, at Large, 112), and there- fore Jeffers had a right to arrest him ; because the act of Congress for punishing the violation of privilege does not extend to those who may arrest a servant not registered. By not registering his servant, the minister has waived his privilege, Seacourt v. Bowlney^ 1 Wils., 20. The court stopped Mr. Key in reply. Thurstox, J., said he wished no further time or argument. He was of opinion that Jeffers should be dismissed from office. MoRSELL, J., concurred. Cranch, C. J., Avould have taken time to consider ; but said that his present opinion coincided with that of the court. Whereupon the court passed the following order : " Madison Jeffers, upon whom a rule was laid on the 30th of May last, to show cause why he should not be removed from the office of constable for the county of Washington, upon the grounds therein stated, appeared and filed his affidavit, and the same was read and heard, and he was further heard by his counsel whereupon "It is considered by the court, that the said Madison Jeffers was guilty of a violation of the privileges of His Britannic Majesty's Envoy Extraordinary and Minister Plenipotentiary, as stated, in his letter to the Secretary of State referred to in the said rule ; and the said Madison Jeffers, having shown no sufficient cause to the contrary, it is thereupon considered by the Court, this 7th day of June, 1830, that the said ]\[adison Jeffers be, and he is hereby, removed from his said office of constable for the county aforesaid." ^ 1 In 1726, tlie Duke of Ripperdn, Spanish Minister of Finance and Foreign Affairs accused of favoring tlie interests of Holland and England, took refuge in the British legation in Madrid. The Spanish government demanded delivery of his person and papers, on refusal of which the Spanish authorities forced an entrance and arrested the Duke. This proceeding naturally added to the hard feeling already existing be- tween the two countries, and two years later war broke out between them (Martens, Causes Ce'lebres, I. 178). Vattel, writing thirty years later, says of the opinion of the Council of Castile, " On ne pent rien dire de plus vrai et de plus judicieux sur cette matiere." Merlin said, " On voit par ces details, que le droit d'asyle est, a I'egard des hotels des ambassadeurs, une source perpetuelle de dissensions et de querclles. Le bien des nations demanderait, sans doute, qu'on I'abolit tout-a-fait : et cela parait d'autant plus raisonable, qu'il y a plusieurs etats dans lesquels il n'est point connu." 17 258 TERRITORIAL JURISDICTION. [PART I. (b) On Board Ships of War. FORBES T. COCHRANE. King's Bench, 1824. (2 Barnii-eU ^ Cresswell, 448.) The declaration stated that the plaintiff was lawfully possessed of a certain cotton plantation, situate in parts beyond the seas, to wit, in East Florida, of large value, and on which plantation he employed divers persons, his slaves or servants. The first count charged the defendants with enticing the slaves away. The second count stated that the slaves or servants having wrongfully and against the plain- In 1747, a Swedish merchant of the name of Springer, accused of high treason, took refuge in the hotel of the English Ambassador, Colonel Guideckens, at Stockholm- The ambassador refused to surrender him; the Swedish government surrounded his house with troops, searched everybody wiio entered it, and caused the carriage of the ambassador, when he left the hotel, to be followed by a guard. Guideckens surren- dered Springer under a protest as to tlie violence done to liis ambassadorial privilege. England demanded reparation, and Sweden steadily refused to give it, and the ambas- sadors from the two courts were mutually withdrawn. Ripperda's case seems to have settled the law as regards asylum, and it is held as well establislied that a diplomatic agent has and can have the immunity only for him- self and his diplomatic or personal household, and that he cannot use his individual and official right to immunity to receive and protect from arrest citizens of the country to which he is accredited. In South America it is a general practice to claim and exercise the right and privi- lege as stated in above note, but the practice is bad, unreasonable, and so obviously a violation of local sovereignty that it cannot claim recognition as a principle of inter- national law. It is tolerated, rather than justified, by the exceptional circumstances in Central and South American republics. " In the United States," says Mr. J. B. Moore, " where the supremacy of the local law is rigorously maintained, diplomatic asylum has never existed. With this excep- tion, it is believed that examples may be found in every independent American state. In the countries that were formerly Spanish colonies, the practice may be said to have been inlierited; and in some of them it has been so far extended to include persons resting under civil and commercial responsibilities. The principal excuse for its con- tinuance has been found in the constantly recurring tumults which fill so many pages in the history of American republics, and which, by reason of their partisan complexion, Mr. Seward once described as representing 'a chronic revolutionary condition.' " The vexed question of asylums in legations and consulates and in vessels has lioen treated historically and logically in three articles by Mr. Moore, published in Political Science Quarterly for 1892. See, also, the more recent article by Mr. Barry Gilbert on The Right of Asylum in the L?gations of the United States in Central and South America, 15 Harvard Law Review, 11&-140. — Ed. CHAP. II.] FORBES V. COCHRANE. 259 tiff's will quitted and left the plantation and the plaintiff's service, and gone into the power, care, and keeping of the defendants; they, knowing them to be the slaves or servants of the plaintiff, wrongfully- received the slaves into their custody, and harbored, detained, and kept them from the plaintiff's service. The last count was for wrong- fully harboring, detaining, and keeping the slaves or servants of the plaintiff after notice given to the defendants that the slaves were the plaintiff's property, and request made to the defendants by the plain- tiff to deliver them up to him : plea, not guilty. At the trial before Abbott, C. J., at the London sittings after Trinity term, 1822, a verdict was found for the plaintiff', damages £3,800, subject to the opinion of the court on the following case. The plaintiff was a British merchant in the Spanish provinces of East and West Florida, where he had carried on trade for a great many years, and was principally resident at Pensacola in "West Florida. East and West Florida were part of the dominions of the king of Spain, and Spain was in amity with Great Britain. The plaintiff, before and at the time of the alleged grievances, was the proprietor and in the possession of a cotton plantation, called San Pablo, lying contiguous to the river St. John's, in the province of East Florida, and of about one hundred negro slaves whom he had purchased, and who were employed by him upon his plantation. The river St. John's is about thirty or forty miles from the confines of Georgia, one of the United States of America, which is separated from East Florida by the river St. Mary, and Cumberland Island is at the mouth of the river St. Mary on the side next Georgia, and forms part of that State. During the late war between Great Britain and America, in the month of February, 1815, the defendant, Vice- Adrairal Sir Alexander Inglis Cochrane, was commander-in-chief of His Majesty's ships and vessels on the North American station. The other defendant, Rear- Admiral Sir George Cockburn, was the second in command upon the said station, and his flag-ship was the Albion. The British forces had taken possession of Cumberland Island, and at that time occupied and garrisoned the same. The Albion, Terror Bomb, and others of His Majesty's ships of war, formed a squadron under Sir George Cockburn's immediate command off that island, where the headquarters of the expedition were.^ In the night of the 23d February, 1815, a number of the plaintiff's slaves deserted from his said plantation, and on the following day thirty-eight, of them were found on board the Teri'or Bomb, part of the squadron at Cumberland Island, and entered on her muster-books as refugees from St. John's. On the 26th of the same month of Feb- ^ The statement is condensed by omitting unnecessary facts. — Ed. 260 TERRITORIAL JURISDICTION. [PART I. luary, Sir George Cockburn received from the plaintiff a memorial. The i^laintift' prayed "that the" defendant, Sir G. Cockburn, would order the said thirty-eight slaves to be forthwith delivered to him, their lawful proprietor." Sir G. Cockburn told him he might see his slaves, and use any arguments and persuasions he chose to in- duce them to return. The plaintiff accordingly endeavored to per- suade them to go back to his plantation, and no restraint was put upon them, but they refused to go. The plaintiff then urged his claim very strongly to Sir G. Cockburn, and said he must get redress if he did not succeed in prevailing upon Sir G. Cockburn to order them back again, which Sir G. Cockburn said he could not do, because they w^ere free agents and might do as they pleased, and that he could not force them back. HoLROYD, J.^ I am also of opinion that the plaintiflF is not entitled to maintain the present action. The declaration alleges that the plaintiff was the proprietor, and in the possession of a cotton planta- tion lying contiguous to the river St. John's, in East Florida, on which land he employed divers persons, his slaves or servants. The plaintiff therefore claims a general property in them as his slaves or servants, and he claims this property, as founded, not upon any municipal law of the country where he resides, but upon a general right. This action is therefore founded upon an injury done to that general right. 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 him under any contract; and, accord- ing to the principles of the English law, such a right cannot be con- sidered as warranted by the general law of nature. I do not mean to say that particular circumstances may not introduce a legal relation 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 sub- mit. Now if the plaintiff cannot maintain this action under the gen- eral 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. If he, being a British subject, could show that the defendant, also a British subject, had entered the country where he, the plaintiff, was domi- ciled, and had done any act amounting to a violation of that right to the possession of slaves which was allowed by the laws of that coun- try, I am by no means prepared to say that an action might not be maintained against him. The laws of England will protect the rights 1 Tlie arguments of counsel, the opinion of Bayley, J., and part of tlie opinion of Best, J., are omitted. — Ed. CHAP. II.] FORBES V. COCHRANE. 261 of British subjects, and give a remedy for a grievance committed by one British subject upon another, in whatever country that may be done. Tliat, however, is a very different case from the present. Here, the plaintiff, a British subject, was resident in a Spanish colon}", and perhaps it may be inferred, from what is stated in the special case, that, by the law of that colony, slavery was tolerated. 1 am of opinion, that, according to the principles of the English law, the right to 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 to 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 prevailed, 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 particu- lar place only, does not continue, and there is no right of action against a party who merely receives the slave in that country, with- out doing any wrongful act. This has been decided to be the law with respect to a person who has been a slave in any of our West India colonies and comes to this country. The moment he puts his foot on the shores of this country his slavery is at an end. Put the case of an uninhabited island discovered and colonized by the sub- jects of this country the inhabitants would be protected and governed by the laws of this country. In the case of a conquered country, indeed, the old laws would prevail, until altered by the King in coun- cil; but in the case of the newly discovered countr}^ freedom would be as much the inheritance of the inhabitants and their children as if they were treading on the soil of England. Now, suppose a person who had been a slave in one of our own West India settlements, es- caped to such a country, he would thereby become as much a freeman as if he had come into England. He ceases to be a slave in England only because there is no law which sanctions his detention in slavery; for the same reason he would cease to be a slave the moment he landed in the supposed newly discovered island. In this case, 262 TERRITORIAL JURISDICTION. [PART I. indeed, the fugitives did not escape to any island belonging to Eng- land, but they went on board an English ship (which for this purpose may be considered a floating island), and in that ship they became subject to the English laws alone. They then stood in the same situation in this respect as if they had come to an island colonized by the English. It was not a wrongful act in the defendants to receive them, quite the contrary. The moment they got on board the Eng- lish ship there was an end of any right which the plaintilf had by the Spanish laws acquired over them as slaves. They had got beyond the control of their master, and beyond the territory where the law recog- nizing them as slaves prevailed. They were under the protection of another power. The defendants were not subject to the Spanish law, for they had never entered the Spanish territories, either as friends or enemies. The plaintiff was permitted to see the men, and to en- deavor to persuade them to return; but in that he failed. He never applied to be permitted to use force; and it does not appear that he had the means of doing so. I think that Sir G. Cockburn was not bound to do more than he did; whether he was bound to do so much it is unnecessary for me to say. It was not a wrongful act in him, a British officer, to abstain from using force to compel the men to return to slavery. It does not appear that he prevented force being used. I do not say that he might not have refused, but in fact there was no refusal. I have given my opinion upon this question, suppos- ing that there would be a right of action against these defendants, if a wrong had actually been done by them, but I am by no means clear that, even under such circumstances, any action would have been maintainable against them by reason of their particular situation as ofhcers acting in discharge of a public duty, in a place flagrante hello. I doubt whether the application ought not to have been made in such a case to the governing powers of this country for redress. The cases from the admiralty courts are distinguishable from the present, upon the grounds already stated by my Brother Bayley. In Madrazo v. Willes, 3 B. & Aid. 353, the plaintiif was a Spanish sub- ject, and by the law of Spain slavery and the trade in slaves being tolerated, he had a right, by the laws of his own country, to exercise that trade. The taking away the slaves was an active wrong done in aggression upon rights given by the Spanish law. That is very dif- ferent from requiring, as in this case, an act to be done against the slaves, who had voluntarily left their master. 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 slaves by the law which CHAP. II.] FORBES V. COCHRANE. 263 prevailed on board the British ship of war. I am, therefore, of opin- ion that the defendants are entitled to the judgment of the court. Best, J. The question is, were these persons slaves at the time when Sir G. Cockburn refused to do the aet which he was desired to do? I am decidedly of opinion that they were then no longer slaves. The moment they put their feet on board of a British man-of-war, net lying within the waters of East Florida (where, undoubtedly, the laws of that country would prevail), those persons who before had been slaves were free. The defendants were not guilty of any act prejudi- cial to the rights which the plaintiff alleges to have been infringed. Those rights were at an end before the defendants were called upon to act. Slavery is a local law, and, therefore, if a man wishes to pre- serve 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 tlie 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- deavor 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 had contributed to that death would, according to our laws, be guilty of murder? That is substantially decided by Som- mersett's case, from which, it is clear, that such would have been the consequence had these slaves been in England; and so far as this question is concerned, there is no difference between an English ship and the soil of England; 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? Judgment for the defendants.^ 1 The case usually cited on this subject is The Schooner Exrhnnqe v. ^ft•Faddon, (supra), which has been repeatedly affirmed and followed by the Supreme Court. The Saiitissima Trinidad, 1822, 7 Wheat. 352, in/ra, places the exemption that public 264 TERRITORIAL JURISDICTION. [PART I. (c) On Board Merchant Ships. UNITED STATES v. DIEKEL:\rAiS'. SuPKEME Court of the United States, 1875. (92 United States, 520.) Mr. Chief Justice Waite delivered the opinion of the court. This suit was brought in the Court of Claims under the authority of a joint resolution of both houses of Congress, passed May 4, 1870, as follows : — ships do undoubtedly enjoy upon tlie ground of comity, wliicii explanation is more in accordance with tlie facts and the inherent reason of the thing than the fiction of extraterritoriality. In the case of John Brown, 1820, Sir William Scott (Lord Stowell), wrote an elaborate opinion for the British foreign office, in which he vigorously maintained that the riglit of asylum, as regards political refugees, does not properly belong to ships of war. 1 Halleck, 228. On the other hand, a directly opposite view was expressed by Lord Palmerston, in 184'J. Mr. Addington, writing to tlie Secretary of the Admiralty, August 4th, said: — " Viscount Palmerston directs me to request that you "will acquaint the Hoard of Admiralty that his Lordship is of the opinion that it would not be right to receive and liarbor on board a British ship of war any person flying from justice on a criminal charge, or who was escaping from the sentence of a court of law. But a British man- of-war has always and everywhere been considered a safe place of refuge for persons of whatever country or party who had sought shelter under the British flag from persecution on account of their political conduct or opinions ; and this protection has been equally offered, whether the refugee was escaping from the arbitrary acts of a monarchical government, or from tlie lawless violence of a revolutionary com- mittee. * * * "Although the commander of a ship of war should not seek out or invite political refugees, yet he ought not to turn away or give up any who may re;ich his ship and liave obtained admittance on board. Such officer must of course fake care that such refugees sliall not carry on from on board his ship any poinicai correspondence with their partisans on shore, and he ought to avail himself of the earliest opportunity to send them to some place of safety elsewhere." Rep. of Royal Comm. on Fug. Slaves, p. 155. For a full discussion of the question of the extraterritoriality of sliips of war, see the separate reports of Lord Chief Justice Cockburn, and Mr. Rothery, in the Report of the Royal Commission on Fugitive Slaves, 1876. Mr. Rothery takes strong ground against the riglit of asylum on such ships. Sir James Fitzjames Stephen, another member of the commission, takes similar ground. Stephen's History of tlie Criminal Law, II., 43-58. As to American practice, Attorney-General Bradford held, in 1794, that a "writ of habeas corpus may be awarded to bring up an American subject unlawfully detained on board a foreign ship of war, the commander being amenable to the usual jurisdic- tion of the state where he happens to be, and not entitled to claim the extraterritoriality ■\viru;h is annexed to a foreign mim'ster and his doinicil." Wharton's Digest, I., 138. But in 1855, Attorney-General Cushing — a high authority — held that a "prisoner CHAP. II.] UNITED STATES V. DIEKELMAN. 265 "That the claim of E. Diekelman, a subject of the King of Prussia, for damages for an alleged detention of the ship Essex by the military authorities of the United States at New Orleans, in the month of September, 1862, be and is hereby referred to the Court of Claims for its decision in accordance with law, and to award such damages as may be just in the premises, if he may be found to be entitled to any damages." Before this resolution was passed, the matter of the claim had been the subject of diplomatic correspondence between the governments of the United States and Prussia. The following article, originally adopted in the treaty of peace between the United States and Prussia, concluded July 11, 1799 (8 Stat. 168), and revived by the treaty concluded jNfay 1, 1828 (8 Stat. o8i), was in force when the acts complained of occurred, to wit: — "Art. XIII. And in the same case, if one of the contracting parties, being engaged in war with any other power, to prevent all the diffi- culties and misunderstandings that usually arise respecting merchan- dise of contraband, such as arras, 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 individuals. 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 compensation 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 the case sup- posed of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed to be of contra- band nature, he shall be admitted to do it, and the vessel shall not, in that case, be carried into any port, nor further detained, but shall be allowed to proceed on her voyage." When the Essex visited New Orleans, the United States were en- of war on hoard a foreign ship of war, or of her prize, cannot be released by habeas corpiia issuing from courts of the United States or of a particular State." And again, in 1856, "sliips of war enjoy the full riglits of extraterritoriality in foreign ports and territorial waters." (Wharton's Digest, I., 138.) It would seem to follow, therefore, that right of asylum could be granted on American ships of war. In South American ports it has frequently been done. In 1 Halleik, 210, note 2, the various instances are enumerated in which a foreign ship of war is subject to jurisdiction of the port. — Ed. 266 TERRITORIAL JURISDICTION. [PART I. gaged in the war of the rebellion. The port of that city was, at the very commencement of the war, placed under blockade, and closed against trade and commercial intercourse; but, on the 12th of May, 1862, the President, having become satisfied that the blockade might "be safely relaxed with advantage to the interests of commerce," is- sued his proclamation, to the effect that from and after June 1 "com- mercial intercourse, * * * except as to persons, things, and informa- tion contraband of war," might " be carried on subject to the laws of the United States, and to the limitations, and in pursuance of the regula- tions * * * prescribed by the Secretary of the Treasury," and appended to the proclamation. These regulations so far as they are applicable to the present case, are as follows : — " 1. To vessels clearing from foreign ports and destined to * * * New Orleans, * * * licenses will be granted by consuls of the United States upon satisfactory evidence that the vessels so licensed will con- vey no persons, property, or information contraband of war either to or from the said ports; which licenses shall be exhibited to the col- lector of the port to which said vessels may be respectively bound, immediately on arrival, and, if required, to any officer in charge of the blockade; and on leaving either of said ports every vessel will be required to have a clearance from the collector of the customs accord- ing to law, showing no violation of the conditions of the license." 12 Stat. 1264. The Essex sailed from Liverpool for New Oideans June 19, 1862, and arrived August 24. New Orleans was then in possession of the military forces of the United States, with General Butler in com- mand. The city was practically in a state of siege by land, but open by sea, and was under martial law. The commanding general was expressly enjoined by the government of the United States to take measures that no supplies went out of the port which could afford aid to the rebellion; and, pursuant to this injunction, he issued orders in respect to the exportation of money, goods, or property, on account of any person known to be friendly to the Confederacy, and directed the custom-house officers to inform him whenever an attempt was made to send anything out which might be the subject of investigation in that behalf. In the early part of September, 1862, General Butler, being still in command, was informed that a large quantity of clothing had been bought in Belgium on account of the Confederate government, and was lying at Matamoras awaiting delivery, because that government had failed to get the means they expected from New Orleans to pay for it; and that another shipment, amounting to a half million more, was delayed in Belgium from coming forward because of the non-payment CHAP. II.] UNITED STATES V. DIEKELMAN. 267 of the first shipment. He was also informed that it was expected the first payment would go forward through the agency of some foreign consuls; and this information afterwards proved to be correct. He was also informed early in September by the custom-house offi- cers that large quantities of silver-plate and bullion were being shipped on the Essex^ then loading for a foreign port, by persons, one of whom had declared himself an enemy of the United States, and none of whom would enroll themselves as friends; and he thereupon gave directions that the specified articles should be detained, and their exportation not allowed until further orders. On the loth September, the loading of the vessel having been completed, the master applied to the collector of the port for his clearance, which was refused in consequence of the orders of General Butler, but without any reasons being assigned by the collector. The next day, he was informed, however, that his ship would not be cleared unless certain specified articles which she had on board were taken out and landed. Much correspondence ensued between General Butler and the Prussian consul at New Orleans in reference to the clearance, in which it was distinctly stated by General Butler that the clearance would not be granted until the specified goods were landed, and that it would be granted as soon as this should be done. Almost daily interviews took place between the master of the vessel and the collector, in which the same statements were made by the collector. The master refused to land the cargo, except upon the return of his bills of lading. Some of these bills were returned, and the property surrendered to the shipper. In another .case, the shipper gave an order upon the master for his goods, and they were taken away by force. At a very early stage in the proceeding, the master and the Prussian consul were informed that the objection to the shipment of the articles complained of was that they were contraband. A part only of the goods having been taken out of the vessel, a clearance was granted her on the 6fch of October, and she was per- mitted to leave the port and commence her voyage. Upon this state of facts, the Court of Claims gave judgment for Diekelman, from which the United States took an appeal. One nation treats with the citizens of another only through their government. A sovereign cannot be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty, except in performance of his obli- gations, by treaty or otherwise, voluntarily assumed. Hence, a citi- zen of one nation wronged by the conduct of another nation, must seek redress through his own government. His sovereign must 268 TERRITORIAL JURISDICTION. [PART I. assume the responsibility of presenting his claim, or it need, not be considered. If this responsibility is assumed, the claim may be prosecuted as one nation proceeds against another, not by suit in the courts, as of right, but by diplomacy, or, if need be, by war. It rests with the sovereign against whom the demand is made to determine for himself what he will do in respect to it. lie may pay or reject it; he may submit to arbitration, open his own courts to suit, or con- sent to be tried in the courts of another nation. All depends upon himself. In this case, Diekelman, claiming to have been injured by the alleged wrongful conduct of the military forces of the United States, made his claim known to his government. It was taken into con- sideration, and became the subject of diplomatic correspondence between the two nations. Subsequently, Congress, by joint resolu- tion, referred the matter to the Court of Claims "for its decision according to law." The courts of the United States were thus opened to Diekelman for this proceeding. In this way the United States have submitted to the Court of Claims, and through that court upon appeal to us, the determination of tlie question of their legal liability under all the circumstances of this case for the payment of damages to a citizen of Prussia upon a claim originally presented by his sover- eign in his behalf. This requires us, as we think, to consider the rights of the claimant under the treaty between the two governments, as well as under the general law of nations. For all the purposes of its decision, the case is to be treated as one in whicli the government of Prussia is seeking to enforce the rights of one of its citizens against the United States in a suit at law, which the two governments have agreed might be instituted for that purpose. We shall proceed upon that hypothesis. 1. As to the general law of nations. The merchant vessels of one country visiting the ports of another for the purposes of trade subject themselves to the laws Avhich govern the port they visit, so long as they remain; and this as well in war as in peace, unless it is otherwise provided by treaty. The Exchange v. McFaddon, 7 Cranch, 316. When the Essex sailed from Liverpool, the United States were engaged in war. The proclamation under which she was permitted to visit New Orleans made it a condition of her entry that she should not take out goods contraband of war, and that she should not leave until cleared by the collector of customs according to law. Previous to June 1 she was excluded altogether from the port by the blockade. At that date the blockade was not removed, but relaxed only in the interests of commerce. The war still remained paramount, and commercial intercourse subordinate CHAr. ir.] UNITED STATES V. DIEKELMAX. 269 only. When the Essex availed herself of the proclamation and entered the port, she assented to the conditions imposed, and cannot complain if she was detained on account of the necessity of enforcing her obligations thus assumed. The law by which the city and port were governed was martial law. This ought to have been expected by Diekelman when he despatched his vessel from Liverpool. The place had been wrested from the possession of the enemy only a few days before the issue of the proc- lamation, after a long and desperate struggle. It was, in fact, a garrisoned city, held as an outpost of the Union army, and closely besieged by laud. So long as it remained in the possession of the insurgents, it was to them an important blockade-running point, and after its capture the inhabitants were largely in sympathy with the rebellion. The situation was, therefore, one requiring the most active vigilance on the part of the general in command. He was especially required to see that the relaxation of the blockade was not taken advantage of by the hostile inhabitants to promote the inter- ests of the enemy. All this was matter of public notoriety; and Diekelman ought to have known, if he did not in fact know, that although the United States had to some extent opened the port in the interests of commerce, they kept it closed to the extent that was necessary for the vigorous prosecution of the war. When he entered the port, therefore, with his vessel, under the special license of the proclamation, he became entitled to all the rights and privileges that would have been accorded to a loyal citizen of the United States under the same circumstances, but no more. Such restrictions q,s were placed upon citizens, operated equally upon him. Citizens were gov- erned by martial law. It was his duty to submit to the same authorit3\ Martial law is the law of military necessity in the actual presence of war. It is administered by the general of the army, and is in fact his will. Of necessity it is arbitrary; but it must be obeyed. New Orleans was at this time the theatre of the most active and important military operations. The civil authority was overthrown. General Butler, in command, was the military ruler. His will was law, and necessarily so. His first great duty was to maintain on land the blockade which had theretofore been kept up by sea. The partial opening of the port toward the sea made it all the more important that he should bind close the military lines on the shore which he held. To this law and this government the Essex subjected herself when she came into port. She went there for gain, and voluntarily as- sumed all the chances of the war into whose presence she came. By 270 TERRITORIAL JURISDICTION. [PART I. availing herself of the privileges granted by the proclamation, she, in effect, covenanted not to take out of the port " persons, things, or information contraband of war." What is contraband depends upon circumstances. Money and bullion do not necessarily partake of that character; but, when destined for hostile use or to procure hostile supplies, they do. Whether they are so or not, under the circum- stances of a particular case, must be determined by some one when a necessity for action occurs. At New Orleans, when this transaction took place, this duty fell upon the general in command. Military commanders must act to a great extent upon appearances. As a rule, they have but little time to take and consider testimony before decid- ing. Vigilance is the law of their duty. The success of their opera- tions depends to a great extent upon their watchfulness. General Butler found on board this vessel articles which he had reasonable cause to believe, and did believe, Avere contraband, because intended for use to promote the rebellion. It was his duty, there- fore, under his express instructions, to see that the vessel was not cleared with these articles on board; and he gave orders accordingly. It matters not now whether the property suspected was in fact con- traband or not. It is sufficient for us that he had reason to believe, and in fact did believe, it to be contraband. No attempt has been made to show that he was not acting in good faith. On the contrary, it is apparent, from the finding of the court below, that the existing facts brought to his knowledge were such as to require his prompt and vigorous action in the presence of the imminent danger with which he was surrounded. Certainly enough is shown to make it necessary for this plaintiff to prove the innocent character of the property before he can call upon the United States to respond to him in damages for the conduct of their military commander, upon whose vigilance they relied for safety. Believing, then, as General Butler did, that the property was con- traband, it was his duty to order it out of the ship, and to withhold her clearance until his order was complied with. He was under no obligation to return the bills of lading. The vessel was bound not to take out any contraband cargo. She took all the risks of this obliga- tion when she assumed it, and should have protected herself in her contracts with shippers against the contingency of being required to unload after the goods were on board. If she failed in this, the con- sequences are upon her, and not the United States. She was operat- ing in the face of war, the chances of which might involve her and her cargo in new complications. She voluntarily assumed the risks of her hazardous enterprise, and must sustain the losses that follow. Neither does it affect the case adversely to the United States that CHAP. II.] UNITED STATES V. DIEKELMAN. 271 the property had gone on board withont objection from the custom- house officers or the military authorities. It is not shown that its character was known to General Butler or the officers of the custom- house before it was loaded. The engagement of the vessel was not to leave until she had been cleared according to law, and that her clear- ance might be withheld until with reasonable diligence it could be ascertained that she had no contraband property on board. This is the legitimate effect of the provisions of the treasury regulations, entitling her to a license " upon satisfactory evidence" that she would " convey no persons, property, or information contraband of war, either to or from " the port; and requiring her not to leave until she had "a clearance from the collector of customs, according to law, showing no violation of the license." Her entry into the port was granted as a favor, not as a right, except upon the condition of assent to the terms imposed. If the collector of customs was to certify that the license she held had not been violated, it was his duty to inquire as to the facts before he made the certificate. Every opportunity for the prosecution of this inquiry must be given. Under the circum- stances, the closest scrutiny was necessary. If, upon the examination preliminary to the clearance, prohibited articles were found on board, there could be no certificate such as was required, until their removal. It would then be for the vessel to determine whether she would re- move the goods and take the clearance, or hold the goods and wait for some relaxation of the rules which detained her in port as long as she had them on board. General Butler only insisted upon her remain- ing until she removed the property. She elected to remain. There was no time when her clearance would not have been granted if the suspected articles'were unloaded. We are clearly of the opinion that there is no liability to this plaintiff resting upon the United States under the general law of nations. 2. As to the treaty. The vessel was in port when the detention occurred. She had not broken ground, and had not commenced her voyage. She came into the waters of the United States while an impending war was flagrant, under an agreement not to depart with contraband goods on board. The question is not whether she could have been stopped and detained after her voyage had been actually commenced, without compensation for the loss, but whether she could be kept from entering upon the voyage and detained by the United States within their own waters, held by force against a powerful rebellion, until she had complied with regulations adopted as a means of safety, and to the enforcement of which she had assented, in order to get there. In our opinion, no 272 TERRITORIAL JURISDICTION. [PART I. provision of the treaties in force between the two governments inter- feres with the right of the United States, under the general law of nations, to withhold a custom-house clearance as a means of enforcing port regulations. Art. XIII. of the treaty of 1828 contemplates the establishment of blockades, and makes special provision for the government of the respective parties in case they exist. The vessels of one nation are bound to respect the blockades of the other. Clearly the United States had the right to exclude Prussian vessels, in common with those of all other nations, from their ports altogether, by establishing and maintaining a blockade while subduing a domestic insarrection. The right to exclude altogether necessarily carries with it the right of admitting through an existing blockade upon conditions, and of enforcing in an appropriate manner the performance of the conditions after admission has been obtained. It will not be contended that a condition which prohibits the taking out of contraband goods is un- reasonable, or that its performance may nor, be enforced by refusing a clearance until it has been complied with. Neither, in the absence of treaty stipulations to the contrary, can it be considered unreason- able to require goods to be unloaded, if their contraband character is discovered after they have gone on board. In the existing treaties between the two governments there is no such stipulation to the con- trary. In the treaty of 1799, Art. VI. is as follows: "That the ves- sels of either party, loading within the ports or jurisdiction of the other, may not be uselessly harassed or detained, it is agreed that all examinations of»goods required by the laws shall be made before they are laden on board the vessel, and that there shall be no examination after." While other articles in the treaty of 1799 were revived and kept in force by that of 1828, this was not. The conclusion is irre- sistible, that the high contracting parties were unwilling to continue bound by such a stipulation, and, therefore, omitted it from their new arrangement. It would seem to follow, that, under the existing treaty, the power of search and detention for improper practices con- tinued, in time of peace even, until the clearance had been actually perfected and the vessel had entered on her voyage. If this be the rule in peace, how much more important is it in war for the preven- tion of the use of friendly vessels to aid the enemy. Art. XIII. of the treaty of 1799, revived by that of 1828, evidently has reference to captures and detentions after a voyage has com- menced, and not to detentions in port, to enforce port regulations. The vessel must be "stopped" in her voyage, not detained in port alone. There must be "captors;" and the vessel must be in a con- dition to be •' carried into port " or detained from " proceeding " after CHAP. II.] UNITED STATES V. DIEKELMAN. 273 she has been "stopped," before this article can become operative. Under its provisions the vessel "stopped" might "deliver out the goods supposed to be contraband of war," and avoid further "deten- tion." In this case there was no detention upon a voyage, but a refusal to grant a clearance from the port that the voyage miglit be commenced. The vessel was required to "deliver out the goods sup- posed to be contraband " before she could move out of the port. Her detention was not under the authority of the treaty, but in conse- quence of her resistance of the orders of the properly constituted port authorities, whom she was bound to obey. She preferred detention in port to a clearance on the conditions imposed. Clearly her case is not within the treaty. The United States, in detaining, used the right they had under the law of nations and their contract with the vessel, not one which, to use the language of the majority of the Court of Claims, they held under the treaty " by purchase " at a stipulated price. As we view the case, the claimant is not "entitled to any damages" as against the United States, either under the treaty with Prussia or by the general law of nations. The judgment of the Court of Claims is, therefore, reversed, and the cause remanded with directions to dismiss-the petition.^ 1 See, also, the Kestor, 1901, 110 Fed. 4.32. Ill Sotelo's Case, 1840, 1 Calvo, 569, M. Sotelo, an ex-Spanish Minister of State, was taken off tiie French merciiant vessel L'Ocean on reaching Alicante, a Spanish port. To tlie same effect was the opinion of Lord Aberdeen, as appears from the following : " I am directed by Lord Aberdeen to acquaint you, for the information of the Lords Commissioners of tlie Admiralty, tliat tliere is no stipulation in the existing treaties bet A-een tliis country and Spain which can be deemed sufficient to debar tiie Spanish government from exercising tiie riglit which, in his lordship's opinion, appertains to tliat government of claiming its own subjects wlien they may be found in a Spanish port as passengers on board vessels hired to convey tlie m:iils between this country and tlie Peninsula." Viscount Canning to the Secretary of the Admiralty, March 20, 1844 ; Rep. of Royal Comm. on fugitive slaves, 154. The better American precedents are in accord : "Sir, — I have to acknowledge the receipt of your No. 316, of the 10th ultimo, in which you inclose copies of the correspondence between the legation at Guatemala and Mr. Leavitt, the United States consul at Managua, respecting the case of Jose' Dolores Gomez, and request more definite instructions for such cases. "It appears that Mr. Gomez, who is said to be a p ditical fugitive from Nicaragua, voluntarily took passage at San Jose de Guatemala for Punta Arenas, Costa Rica, on board the Pacific Mail steamship Honduras with the knowledge that tlie vessel would enter en route the port of San Juan del Sur, Nicaragua. " The government of Nicaragua upon learning of this fact ordered the commandant of the port of San Juaii del Sur to arrest Gomez upon the arrival of the Honduras at that port. 18 274 TERRITORIAL JURISDICTION. [pART I. Section 12. — Extradition — Interstate Rendition. UNITED STATES v. EAUSCHER. Supreme Court of the United States, 1886. (119 United States, 407.) Mr. Justice Miller delivered tlie opinion of the court. " This case comes before us on a certificate of division of opinion between the judges holding the Circuit Court of the United States " The minister for foreign affairs of Nicaragua informed Mr. Leavitt, United States consul at Managua, of the action of tiie government by a telegram, as follows : "'Government has ordered the commander of port San Juan del Sur to arrest Jose Dolores Gomez, a fugitive prisoner, wiio is on board of the steamer Honduras, now en route to tliat port. I suppose the captain will not interfere with tiie action of the commander, but to avoid wliatever difKculties likely to arise I suggest you to send a telegraphic message to the captain of the Honduras, at San Juan del Sur, stating tJiat the order has been issued by the government and recommending him to support the commander, as there is no ground on the part of the captain to hinder the execution of tlie government order.' " It appears that, before Mr. Leavitt had an opportunity to act upon this request, you telegraphed him as follows : '• ' Reported here arrest of a transit passenger bound to Panama on board steamer Honduras at San Juan del Sur. Say respectfully to Nicaraguan minister of foreign affairs that our Government never iias consented and never will consent to tlie arrest and removal from an American vessel in a foreign port, of any passenger in transit, much less if offense is political.' "It appears tiiat Mr. Leavitt declined to comply with the request of the minister of foreign affairs, and followed your instructions by submitting a copy in writing to the minister. " From the brief outline given by the consul of tlie subsequent proceedings, it appears thatjthe government autiiorities at San Juan del Sur, upon tlie arrival of the Honduras at that port, requested the captain to deliver up Mr. Gomez. This he declined to do and set sail without proper clearance papers. " The consul reports that for these offenses tlie captain has been tried by the Nicaraguan government and found guilty, and although he has not been able to learn tlie nature of the sentence, he is convinced, from the present attitude of the govern- ment, tliat tiie sentence will be executed in case of the return of the captain or the vessel within the jurisdiction of the government of Nicaragua. " As the nature and character of the proceedings against tlie captain of the Honduras are not known to this department, a full and detailed report should be made as early as practicable. It is clear that Mr. (Jomez voluntarily entered the jurisdiction of a country whose laws he had violated. . . . "It may be safely affirmed that when a merchant vessel of one country visits the CHAP. II.] UNITED STATES V. RAUSCHER. 275 for tlie Southern District of New York arising after verdict of guilty, and before judgment, on a motion in arrest of judgment. "The prisoner, William Rauscher, was indicted by a grand jury, for that on the 9th day of October, 1884, on the high seas, out of the jurisdiction of any particular state of the United States, and within the admiralty and maritime jurisdiction thereof, he, the said William Rauscher, being then and there second mate of the ship J. F. Chap- man, unlawfully made an assault upon Janssen, one of the crew of the vessel of which he was an officer, and unlawfully mflicted upon said Janssen cruel and unusual punishment. This indictment was found under § 5347 of the Revised Statutes of the United States. * * * " The prisoner having been extradited upon a charge of murder on the high seas of one Janssen, under § 5339 Rev. Stat., had the Circuit Court of the Southern District of Xew York jurisdiction to put him to trial upon an indictment under § 5347 Rev. Stat., charging him with cruel and unusual punishment of the same man, he being one of the crew of an Ameiican vessel of which the defendant was an officer, and ports of another for the purposes of trade, it owes temporary allegiance and is amenaljle to tlie jurisdiction of that country, and is subject to the laws wliicli govern tlie port it visits so long as it remains, unless it is otherwise provided by treaty. "Any exemption or iuiniunity from local jurisdiction must be derived from the consent of that country. No such exemption is made in the treaty of commerce and navigation concluded between this country and Nicaragua on the 21st day of June, 1867." (Bayard. Sec. of St., to Hall, March 12, 1884, in the case of Gomez, U. S. Foreign Relations, 1885, p. 82.) In the similar case of Barrundia, 1890, the government of the United States set up a different rule. Barrundia was a political refugee from Guatemala who took passage at a Mexican port, on tlie Pacific Mail Steamship Acapuico (American) for Salvador. The steamer was to call on the way at several ports of Guatemala ; and on learning of the movements of Barrundia, the government of Guatemala proposed to arrest him. Tiiat it could legally do so was the opinion of the American Minister, Mizner, and the American Consul-General Hosmer, and they so advised the captain of the Acapuico, and the authorities of Guatemala. In the attempt to arrest Barrundia on board the steamship, he resisted and was killed. For his part in the affair, Mr. Mizner was severely censured, and recalled from his post. Commander Keiter of tiie U. S. ship of war Ranger, wiio was present in the port at the time, was also sent into disgrace for not interfering to prevent the arrest. In his dispatch to Mr. Mizner of Nov. 18, 1890, Mr. Blaine reviews the facts and the law of the case ; much of his argument has no bearing on the case, and many of his citations go to disprove his own view of it. It is hardly too much to say that tiiere is no foundation in international law for the position of the United States in this affair. The only possible excuse for it is the assertion tliat the Spanish- American states do not possess all tlio rights of sovereign states, and that there should be an e.Kccptional rule ailopted in their case, in regard to asylum on merchant siiips, as there is in tlie case of legations. In addition to the authorities cited in note to U. S. v. Jeffers, ante, see 1 Wharton's Digest, § 104. — F.D. 276 TERRITORIAL JURISDICTION. [PART I. such punishment consistmg of the identical acts proved in the extra- dition proceedings ? " The treaty with Great Britain, under whicli the defendant was sur- rendered by that government to ours upon a charge of murder, is that of August 9, 1842. * * * The tenth article of the treat v is as follows : ' It is agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their muiisters, oflBcers, or au- thorities, 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 the jurisdiction of either, shall seek an asylum, or shall be found, within the territories of the other : provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the ftigitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offense had there been com- mitted ; and the respective judges and other magistrates of the two Governments shall have power, jurisdiction, and authority, upon com- plaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality maybe heard and considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive.' " Xot only has the general subject of the extradition of persons, charged with crime in one country, who have fled to and sought refuge in another, been matter of much consideration of late years by the executive departments and statesmen of the governments of the civilized portion of the world, by various publicists and writers on international law, and by specialists on that subject, as well as by the courts and judicial tribunals of different countries, but the precise questions arising under this treaty, as presented by the certificate of the judges in this case, have recently been very much discussed in this country, and in Great Britain. " It is only in modern times that the nations of the earth have im- posed upon themselves the obligation of delivering up these fugitives from justice to the states where their crimes were committed, for trial and punishment. This has been done generally by treaties made by one independent government with another. Prior to these trea- ties, and apart from them, it may be stated as tlie general result of the writers upon international law, that there was no well-defiiied CHAP. II.] UNITED STATES V. RAUSCHER. 277 oblis^ation on one country to deliver np such fugitives to another, and tliough such delivei'y was often made, it was upon the principle of comity, and Avithin the discretion of the government whose action was invoked ; and it has never been recognized as among those obli- gations of one government towards another which rest upon estab- lished jjrinciples of international law. " Whether in the United States, in the absence of any treaty on the subject with a foreign nation from whose justice a fugitive may be found in one of the states, and in the absence of any act of Con- gress upon the subject, a state can, through its own judiciary or execu- tive, surrender him for trial to such foreign nation, is a question wliich has been under consideration by the courts of this country without any very conclusive result. '•' In the case of Daniel Wasliburn, 4 Johns. Ch. 106 ; S. C. 8 Am. Dec. 548, who was arrested on a charge of theft committed in Canada, and brought before Chancellor Kent upon a writ of habeas corpus^ that distinguished jurist hel 1 that, irrespective of all treaties, it was the duty of a state to surrender fugitive criminals. The doctrine of this obligation was presented with great ability by that learned jurist ; but shortly afterward Chief Justice Tilghman, in the case of Short v. Deacon, 10 S. & E.. 125, in the Supreme Court of Pennsylvania, held the contrary opinion — that the delivery up of a fugitive was an affair of the executive branch of the national Government, to which the demand of the foreign power must be addressed ; that judges could not legally deliver up, nor could they command the executive to do so ; and that no magistrate in Pennsylvania had the right to cause a person to be arrested in order to afford the President of the United States an opportunity to deliv^er him up, because the President had already declared he would not do so. " There can be little doubt of the soundness of the opinion of Chief -.Justice Taney, that the power exercised by the governor of Vermont is a part of the foi-eign intercourse of this country, which has undoubtedh' been conferred upon the Federal government ; and that it is clearly included in the treaty making power and the cor- responding power of appointing and receiving ambassadors and other public ministers. There is no necessity for the states to enter upon the relations with foreign nations which are necessarily implied in the extradition of fugitives from justice found within the limits of the state, as there is none why they should, in their own name, make demand upon foreign nations for the surrender of svich fugitives. " At this time of day, and after the repeated examinations which have been made by this court into the powers of the Federal govern- ment to deal with all such mteruational questions exclusively, it can 278 TERRITORIAL JURISDICTION. [PART I. hardly be admitted that, even in the absence of treaties or acts of Congress on the subject, the extradition of a fugitive from justice can become tlie subject of negotiation between a state of tliis Union and a foreign government. " Fortunately, this question, Tvith others which might arise m the absence of treaties or acts of Congress on the subject, is now of very little importance, since, with nearly all the nations of the world with whom our relations are such that fugitives from justice may be found within their dominions or within ours, we have trea- ties which govern the rights and conduct of the parties in such cases. These treaties are also supplemented by acts of Congress, and both are in their nature exclusive. " The case we have under consideration arises under one of these treaties made between the United States and Great Britain, the country with which, on account of our intimate relations, the cases requiring extradition are likely to be most numerous. This treaty of 1842 is supplemented by the acts of Congress of August 12, 1848, 9 Stat,, 302, and March 3, 1869, 15 Stat,, 337, the provisions of which are embodied in §§ 5270, 5272 and 5275 of the Revised Statutes, under Title LXVI., Extradition.* * * "The treaty of 1842 being, therefore, the supreme law of the land, which the courts are bound to take judicial notice of and to enforce in any appropriate proceeding the rights of persons growing out of that treaty, we proceed to inquire, in the first place, so far as per- tinent to the question certified by the circuit judges, into the true construction of the treaty. We have already seen that, according to the doctrine of publicists and writers on international law, the country receiving the offender agamst its laws from another country had no right to proceed against him for anj' other offense than that for which he had been deliA^ered up. This is a principle which com- mends itself as an appropriate adjtinct to the discretionary exercise of the power of rendition because it can hardly be supposed that a government which was mider no treaty obligation nor any absolute obligation of public duty to seize a person Avho had foinid an asy- lum within its bosom and titrn him over to another country for trial, would be willing to do this, unless a case was made of some spe- cific offense, of a character which justified the government in depriv- ing the party of his asylum. It is unreasonable that the country of the asylum should be expected to deliver tip such person to be dealt with by the demanding government without any limitation, implied or otherwise, upon its prosecution of the party. In exercising its discretion, it might be very Avilling to deliver up offenders against such laws as were essential to the protection of life, liberty and CHAP. II.] UNITED STATES V. RAUSCHER. 279 person, while it would not be willing to do this on account of minor misdemeanors or of a certain class of political offenses in which it would liave no interest or sympathy. Accordingly, it has been the policy of all governments to grant an asylum to persons who have fled from their homes on account of political disturbances and who might be there amenable to laws framed with regard to such sub- jects, and to the personal allegiance of the party. In many of the treaties of extradition between the civilized nations of the world, there is an exfiress exclusion of offenders against such laws, and in none of them is this class of offenses mentioned as being the founda- tion of extradition proceedings. Indeed, the enumeration of offenses in most of these treaties, and especially in the treaty now under con- sideration, is so specific, and marked by such a clear line in regard to the magnitude and importance of those offenses, that it is impos- sible to give any other interpretation to it than that of the exclusion of the right of extradition for any others. " It is, therefore, very clear that this treaty did not intend to depart in this respect from the recognized public law which had prevailed in the absence of treaties, and that it was not intended that this treaty should be used for any other purpose than to secure the trial of the person extradited for one of the offenses enumerated in the treaty. This is not only apparent from the general principle that the specific enumeration of certain matters and things implies the exclusion of all others, but the entire face of the treaty, including the processes by which it is to be carried into effect, confirms this view of the subject. It is unreasonable to suppose that any demand for rendition framed upon a general representation to the govern- ment of the asylum (if we may use such an expression) that the party for whom the demand was made was guilty of some violation of the laws of the country which demanded him, without specifying any particular offense with wliich he was charged, and even without specifying an offense mentioned in the treaty, would receive any serious attention ; and yet such is the effect of the construction that the party is properly liable to trial for any other offense than that for which he was demanded, and which is described in the treaty. There would, under that view of the subject, seem to be no need of a description of a specific offense in inaking the demand. But, so far from this being admissible the treaty not only provides that the party shall be charged with one of the crimes mentioned, to Avit, murder, assault with intent to commit murder, piracy, arson, rob- bery, forgery or the utterance of forged paper, but that evidence shall be produced to the judge or magistrate of the country of which such demand is made, of the commission of such an offense, and 280 TERRITORIAL JURISDICTION. [PART I. that this evidence shall be snch as according to the law of that country would justify the apprehension and commitment for trial of the person so charged. If the proceedings under which the party is arrested in a country where he is peaceably and quietly living, and to the protection of whose laws he is entitled, are to have no influ- ence in limiting the prosecution in the country where the offense is charged to have been committed, there is very little use for this par- ticularity in charging a specific offense, requiring that offense to be one mentioned in the treaty, as well as sufficient evidence of the party's guilt to put him upon trial for it. Nor can it be said that, in the exercise of such a delicate power under a treaty so well guarded in every particular, its provisions are obligatory alone on the State which makes the surrender of the fugitive, and that that fugitive passes into the hands of the country which charges him with the offense, free from all the positive requirements and just impli- cations of the treaty under which the transfer of his person takes place. A moment before he is under the protection of a govern- ment which has afforded him an asylum from which he can only be taken under a very limited form of procedure, and a moment after he is found in the possession of another sovereignty by virtue of that proceeding, but divested of all the rights which he had the moment before, and of all the rights which the law governing that proceeding Avas intended to secure. " If upon the face of this treaty it could be seen that its sole object was to secure the transfer of an individual from the jurisdiction of one sovereignty to that of another, the argument might be sound ; but as this right of transfer, the right to demand it, the obligation to grant it, the proceedings under which it takes place, all show that it is for a limited and defined purpose that the transfer is made, it is impossible to conceive of the exercise of jurisdiction in such a case for any other purpose than that mentioned in the treaty, and ascertained by the proceedings under which the party is extradited, without an implication of fraud upon the rights of the party extra- dited, and of bad faith to the country which permitted his extra- dition. No such view of solemn public treaties between the great nations of the earth can be sustained by a tribunal called upon to give judicial construction to them. " The opposite view has been attempted to be maintained in this country upon the ground that there is no express limitation in the treaty of the right of the country in which the offense was com- mitted to try the person for the crime alone for which he was ex- tradited, and that once being within the jurisdiction of that country, no matter by what contrivance or fraud or by what pretense of CHAP. II.] UNITED STATES V. RAUSCHERo 281 establishing a charge provided for by the extradition treaty he may have been brought within the jurisdiction, he is, when liere, liable to be tried for any offense against the laws as though arrested here originally. This proposition of the absence of express restriction in the treaty of the right to try him for other offenses than that for whicli he was extradited, is met by the manifest scope and object of the treaty itself. The caption of the treaty, already quoted, declar- ing that its purpose is to settle the boundary line between the two governments ; to provide for the final suppression of the African slave trade ; adds, ' and for the giving up of criminals, fugitive from justice, in certain cases.'' The treat}^, then, requires, as we have already said, that there shall be given up, upon requisitions respect- ively made by the two governments, all persons charged Avitli any of the seven crimes enumerated, and the provisions giving a party an examination before a proper tribunal, in which, before he shall be delivered up on this demand, it must be shown that the offense for which he is demanded is one of those enumerated, and that the proof is sufficient to satisfy the court or magistrate before whom this examination takes place that he is guilty and such as the law of State of the asylum requires to establish such guilt, leave no rea- son to doubt that the fair purpose of the treaty is, that the person shall be delivered up to be tried for that offense and for no other. " If there should remain any doubt upon this construction of the treaty itself, the language of two acts of Congress, heretofore cited, incorporated in the Revised Statutes, must set this question at rest. Rev. Stat. §§ .3272, 3275. * * * " The obvious meaning of these two statutes, which have reference to all treaties of extradition made by the United States, is that the- party shall not be delivered up by this government to be tried for any other offense than that charged in the extradition proceedings ; and that, when brought into this country upon similar proceedings, he shall not be arrested or tried for any other offense than that with which he was charged in those proceedings, until he shall have had a reasonable time to return unmolested to the country from which he was brought. This is undoubtedly a congressional construction of the purpose and meaning of extradition treaties such as the one we have under consideration, and whether it is or not, it is conclusive upon the judiciary of the right conferred upon persons bought from a for- eign country into this under such proceedings. " That right, as we understand it, is that he shall be tried only for the offense with which he is charged in the extradition proceedings, and for which he was delivered up, and that if not tried for that, or after trial and acquittal, he shall have a reasonable time to leave the 282 TERRITORIAL JURISDICTION. [PART I. country before he is arrested upon the charge of any other crime committed previous to his extradition. * * * " Upon a review of tliese decisions of tlie Federal and State courts, to wliicli may be added tlie opinions of the distinguished writers wliich we have cited in tlie earlier part of this opinion, we feel author- ized to state that the weight of authority and of sound principle are in favor of the proposition, that a person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offenses de- scribed in that treaty, and for the offense with which he is charged in the proceedings for his extradition, until a reasonable time and oppor- tunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been for- cibly taken under those proceedings." * 1 Waite, C. J., dissented from the opinion of the court. Tiie decision in Rauscher's Case put an end to a controversy between the United States and England, of some years' standing, as to the interpretation of tlie e.xtradi- tion clause of tlie treaty of 1842. England had contended that a person surrendered under the treaty could be tried for no offence e-xcept the specific one for wliich extradition was accorded. The government of the United States had insisted, on the other hand, that a person once extradited could be indicted and tried for offences other than that charged in the demand for extradition. (See the cases of Lawrence and Winslow, Moore's Extradition, L, 196-219; Wiiarton's Digest, IL, § 270; U. S. Foreign Relations, 1876.) For English practice, see In re Windsor, 1865, B. «fe S. 52 ; Rex V. Dix, 1902, 18 T. L. 231 (K. B.), and a note to this case in 15 Harv. Law Rev. 674. The Supreme Court, in Rauscher's Case, upholds the English view of the question. Previous to this authoritative decision, judicial opinion had been divided. In accord •with this decision : Com. v. Hawes, 1877, 13 Bush. 697; Blanford v. The State, 1881, 10 Texas App. 627; Watt's Case, 1882,14 Fed. Rep. 139; State v. Vanderpoo!, 18SI, 39 Ohio State, 237. Contra : Cnldiuell's Case, 1871, 8 Blatch. 131 ; Lagarve's Case, 1873, 14 Abb. Pr. (N. S.), 333; In re Miller, 1885, 23 Fed. Rep. 32; Ex parte Hibhs, 1886, 26 Fed. Rep. 422. The decisions of the French Court of Cassation are in accord with tliat of the United States Supreme Court: Dalloz, 1867, p. 281, No. 6, and ib , 1874, p. 502 and notes. In Rauscher's Case, the Supreme Court expressed the opinion that, in the absence of treaty, tliere was under international law no riglit of extradition. And further that, in the United States, extradition is a matter exclusively in the control of the Federal Government. See Ex parte Holmes, 1840, 12 Vt. 631 ; Holmes v. Jennlson, 1840, 14 Peters, 540; People v. Curtis, 1872, 50 N. Y. 321. In 1864 President Lincoln surrendered to the Spanish authorities one Arguclles, an alleged fugitive from justice, without any treatj' stipulation. The case was unfavor- ably criticised at the time and since, so that it has not been followed as a precedent. — Ed. CHAP. II.] STATE V. PATTERSON. 283 STATE V. PATTERSON". Supreme Court of Missouri, 1893. (116 Missouri, 505.) Sherwood, J.^ The third question, presented by the record is that in relation to the jurisdiction of the court to try defendant on the third count of the indictment ; and this contention is made because it is said the affidavit of Huston, on which the requisition was based, was not sufficiently comprehensive to embrace the charge contained in that count, and this contention was set forth in the trial court by a plea to the jurisdiction. The decided cases show some divergence of opinion on the question whether a fugitive from justice, when brought back to the State where the alleged crime occurred, can be tried for crimes other than the one for which he was extradited, some authorities hold- ing that the fugutive cannot be tried except for the offence named in the warrant of extradition ; others that when a person is properly charged with crime in the courts of the State to which he is brought, they will not inquire into the means whereby his extradition was affected. 8 American and English Encyclopaedia of Law, pp. 648 et seq. As sustaining the latter view, a view entertained by the great preponderance and a majority of the authorities, are : ITfitn v. State, 4 Tex. App. 645; State v. Boss, 21 Iowa, 467 ; State ex rel. v. Steivart, 60 Wis. 587 ; Waterman v. State, 116 Tnd. 51 ; People v. Roice, 4 Park. Cr. 253; Ker v. Peojjle, 110 111. 627; LaGrave's Case, 59 N. Y. 110; People ex rel. v. Cross, 135 X. Y. 536 ; In re Miles, 52 Yt. 609 ; State v. Smith, 1 Bail. (So. Ca.), 283; Dows' Case, 18 Pa. St. 37 : Harland v. Territory, 3 Strune (Wasb.), 131 ; Commonwealth v. Wright, 158 Mass. 149; Kentucky v. Dennison, 24 How. (U. S.), QQ; In re Noyes, 17 Alb. L. J. 407; Ker v. Illinois, 119 U. S. 436; Mahon v. Justice, 127 U. S. 700; Cook V. Hart, 146 U. S. 183 ; 1 Bishop Cnininal Procedure [3d Ed.], sec. 224 h ; 2 Moore on Extradition, sec. 643 et seq. In the recent case of lascelles v. State, 16 S. E. Rep. 945 (1892), the Supreme Court of the State of Georgia, per Lumpkin, J., ruled tliat the defendant, though indicted for the offence of being a common cheat and swindler, and for larceny after trust, and extradited from the State of New York on those charges, could be indicted and tried for a forgery committed in that State prior to his extradition. This case 1 Only the opinion on this third point is given. — Ed. 284 TERRITORIAL JURISDICTION. [PART I. was brought on error to the Supreme Court of the United States, Lascelles v. Georgia, 148 U. S. 537, where, after a review of the au- thorities, the judgment was affirmed. In that case, decided April 13, 1893, the Supreme Court of the United States, as did the Supreme Court of Georgia, clearly pointed out the distinction which should be taken between those cases ot extradition arising between the several States of the Union under the Constitution and laws of Congress and those cases where a prisoner has been extradited from a foreign country under treaty stipulations, in which latter cases it has been ruled that a person tlius extradited could only be tried for the specific offence which caused his extradition. United States v. Rauscher, 119 U. S. 407. In Ker v. People, 110 111. 627, the defendant was kidnapped in Peru, and brought over to the State of California, where he was extradited on a requisition from the State of Illinois, on a charge of larceny, and returned to the State of Illinois whence he had fled, and there tried on a charge of embezzlement, and it was held that defendant had no valid ground of objection to the jurisdiction of the court which tried him. Carried on error to the Supreme Court of the United States, the judg- ment was affirmed. 119 U. S. 436. In Mahon v. Justice, 127 U. S. 700, the defendant was kidnapped in West Virginia and forcibly carried back to Kentucky and held for trial of a crime alleged to have been committed in that State. The Governor of West Virginia demanded that defendant be restored, and meeting with refusal, resorted to habeas corjuis in order to affect his restoration. The Circuit Court of the United States refused to discharge the defen- dant, and on appeal to the Supreme Court this judgment was affirmed. In that case it was contended that a right of asvlum in the State to which he had fled, was possessed by the fugitive, which the Federal courts should enforce ; but this right Avas declared in that case to have no existence under the laics of the United States, nor did the}^ make any provision for the return of parties who without lawful authority had been abducted from another State ; and that such forcible abduc- tion from another State did not affect or impair the jurisdiction of tlie State to which they were brought, to try them for crimes committed therein. That the jurisdiction of the court in which the indictment is found is not impaired by the method used to bring the accused before it, was the rule at common law and was declared in the early case of Ex parte Scott, 9 B. & C. 446. The result of the authorities heretofore cited is in the same direction. Tliere are a few others ojiposed to this view ; among them are State V. Hall, 40 Kan. 338 ; Ex parte MrKnighi (Ohio), 28 N. E. Eep. 1034; Cannon^ s Case, 4l1 Mich. 481; but we are quite satisfied, both upon reason CHAP. II.] IN RE CASTIONI. 2S5 and authority, that the rule announced in the former cases is the correct one and should prevail. Therefore judgment affirmed. All concur.^ In Re CASTIONI. Queen's Bench, 1890. (Z. R. Queen's Bench Uiv. 149.) On an application for a writ of habeas corpus^ the motion was made on behalf of Angelo Castioni, for an order nisi calling- upon the solic- itor to the Treasury, Franklin Lushington, Esq. , a metropolitan jDolice magistrate, and the consul-general of Switzerland, as repre- sentative of the Swiss Republic, to show cause why a writ of habeas corjnis should not issue to bring up the body of Castioni in order that he might be discharged from custody. The prisoner Castioni had been arrested m England on the requi- sition of the Swiss Government, and brought before the magistrate at the police court at Bow Street, and by him committed to prison for the purpose of extradition, on a charge of willful murder, alleged to have been committed in Switzerland. The facts, which were contained in depositions sent from Switzer- land, in the depositions taken before the magistrate at Bow Street, and in afiQdavits used on the hearing of the motion were shortly as follows : — The prisoner was charged with the murder of Luigi Rossi, by shoot- ing him with a revolver on September 11, 1890, in the town of Bel- linzona, in the canton of Ticino, in Switzerland. The deceased, Rossi, was a member of the State Council of the canton of Ticino, and was about twenty-six years of age. The prisoner, Castioni, was a citizen of the same canton ; he had resided for seventeen years in England, and arrived at Bellinzona on September 10, 1890. For some time previous to this date much dissatisfaction had been felt and expressed by a large number of the inhabitants of Ticino at the mode in which 1 The leading cases on interstate rendition are : Kentucky v. Dennison, 1860, 24 How. 66; Ex parte Reggel, 1885, 114 U. S. 642; Mahon v. Justice, 1887, 127 U. S. 700; Las- celles V. Georgia, 1892, 148 U. S. 537. State v. Patterson, sujira, states tiie law more briefly and cites authorities. As to tlie legal meaning of the phrase '■ fugitive from justice," see Kingsbury's Case, 1870, 106 Mass. 223, and Jones v. Leonard, 1878, 50 la. 100, and see valuable notes in 8 Harv. Law Rev. 404. On the subject in general, in addition to Moore's masterly treatise, see a brief note in 8 Harv. Law. Kev. 41G. — Ed. 286 TEKKITOEIAL JURISDICTION. [PART I. the political party then in power were conducting the government of the canton. A request was presented to the Government for a revision of the constitution of tlie canton, under art. 15 of the consti- tution, which provides that " Tlie constitution of the canton may be revised wliolly or partially. * * * (b) at the request of 7,000 citizens presented with the legal formalities. In this case the council shall within one month submit to the people the question whether or not they wish to revise the constitution," and a law of May 9, 1877, prescribes the course to be adopted for the execution of letter (b) of art. 15. The Government having declined to take a popular vote on the question of the revision of the constitution, on September 11, 1890, a number of the citizens of Bellinzona, among whom was Castioni, seized the arsenal of the town, from which they took rifles and am- munition, disarmed the gendarmes, arrested and bound or handcuffed several persons connected with the Government, and forced them to march in front of the armed crowd to the municipal palace. Ad- mission to the palace was demanded in the name of the people, and was refused by Rossi and another member of the Government, who were in the palace. The crowd then broke open the outer gate of the palace, and rushed in, pushing before them the Government officials whom they had arrested and bound; Castioni, who was armed with a revolver was among the first to enter. A second door, which was locked, was broken open, and at this time, or immediately after, Rossi, who was in the passage, was shot through the body with a revolver, and died very soon afterwards. Some other shots were fired, but no one else was injured. Two witnesses, who were present when the shot was fired, and were called before the magis- trate at Bow Street, identified Castioni as the person who fired the shot. One of the witnesses called for the prisoner was an advocate named Bruni, who had taken a leading part in the attack on the municipal palace. In cross-examination he said : " The death of Rossi was a misfortune, and not necessary for the rising." There was no evidence that Castioni had any previous knowledge of Rossi. The crowd then occupied the palace, disarmed the gendarmes who were there, and imprisoned several members of the Government. A provisional Government was appointed, of which Bruni was a member, and assumed the Government of the canton, which it re- tained until dispossessed by the armed intervention of the P'ederal Government of the Republic. The magistrate was of opinion that the identification of Castioni was sufficient, and held upon the evidence that the bar to extradition specified in § 3 of the Extradition Act, 1870 : " A fugitive criminal CHAP. II.] IN KE CASTIONI. 287 shall not be surrendered if the offence in respect, of which his sur- render is demanded is one of a political character, or if he prove to the satisfaction of the police magistrate, or the court before whom he is broiiglit 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," did not exist, and committed Castioni to prison. By the extradition treaty with Switzerland, dated Nov. 20^ 1880, article 11 : "A fugitive crim- inal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character, or if he prove that the requisition for his surrender has in fact been made with a view to try and punish him for an offence of a political character." Sir Charles Russell, for the prisoner; the Attorney-General, for the Crown. Denman, J. : — " Looking at the extreme importance of this case, I should have been disposed, if I had felt any serious doubt as to the course we ought to pursue, to have taken time, not so much to con- sider what our judgment should be, as to take care to put it in the best possible shape, or even to reduce it to writing. But there are many considerations which apply to cases of this sort. One is, that here is a man in custody who has been in custody for a considerable time, and no greater delay than is reasonably necessary ought to be interposed if our decision should be one to the effect that he ought not to be in custody any longer. I am unable to entertain a doubt that this is a case in which we ought to order that the j^risoner be discharged. " There has been no legal decision as yet upon the meaning of the words contained in the act of 1870, upon the true meaning of which this case mainly depends. We have had many definitions sug- gested, and great light has been thrown upon the possible and prob- able meaning of the words by the arguments that have been ad- dressed to us, applying not only the language of judges, but language used in text-books, language used by great political authorities, and in one case by a most learned philosopher. I think it has been useful in such a case as this that we should hear a discussion as to the pos- sible meaning of the words, as it has occurred that they ought to be construed to people such as those whose opinions have been cited, and especially I may apply that observation to the case of my very learned brother whose assistance we have on this occasion in deciding the present case. I do not think it is necessary or de- sirable that we should attempt to put into language, in the shape of an exhaustive definition, exactly the whole state of things, or every state of things which bring a particular case within the description 288 TERRITORIAL JURISDICTION. [PART I. of an offence of a political character. I wish, however, to express an opinion as to one matter upon which I entertain a very strong opinion. That is, that if the description given by Mr. John Stuart Mill, ' Any offence committed in the course of or furthering of civil war, insurrection, or political commotion,' were to be construed in the sense that it really means any act which takes place in the course of a political rising without reference to the object and inten- tion of it, and other circumstances connected with it, I should say that it was a wrong definition and one which could not be legally ap- plied to the words in the Act of Parliament. Sir Charles Russell suggested that 'in the course of was to be read with the words fol- lowing, ' or in furtherance of,' and that ' in furtherance of ' is equiv- alent to ' in the course of.' I cannot quite think that this was the intention of the speaker, or is the natural meaning of the expression ; but I entirely concur with the observation of the Solicitor-General that in the other sense of the words, if they are not to be construed as merely equivalent expressions, it would be a wrong definition. I think that in order to bring the case within the words of the Act and to exclude extradition for such an act as murder, which is one of the extradition offences, it must at least be shown that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a polit- ical rising, or a dispute between two parties in the state as to which is to have the government in its hands, before it can be brought within the meaning of the words used in the act. " Sir Charles Russell has argued that in every case it is for the party seeking extradition to bear the onus of affirmatively bringing it within the meaning of those words. On the other hand, it has been contended that if there be an extraditable offence, the onus is upon the person seeking the benefit of those words to show a case in which extradition can be avoided. I do not myself think that it is possible to decide a case such as this, or the true meaning of those words, by api^lying any such test as on whom is the onus. I do not think it is intended that a scrap of a prima facie case on the one side should have the effect of throwing upon the other side the onus of proving or disproving his position. I look at the words of tha act themselves and I think that they are against any such narrow technical mode of dealing with the case. The words of s. 3, subd. 1, are 'a fugitive criminal shall not be surrendered if the offence in respect of which his surrender is demanded is one of a political character.' The section itself begins : ' The following restrictions sliall be observed with respect to the surrender of fugitive criminals.' There is nothing said as to upon whom is the onus prohandi^ or tliat CHAP. II.] IN RE CASTIONI. 289 it shall be made to appear by one side or the other in such a case. It is a restriction upon the surrender of a fugitive criminal, and however it appears, if it does appear, that the act Avas, in the judg- ment of the court, an offence which would otherwise be an offence according to the laws of this country, but an offence of a political character, then wholly irrespective of any doctrine of onus on the one side or the other, that is within the jurisdiction, and he cannot be surrendered. It was at first contended, in opposition to the application for a habeas corpus, that if the magistrate upon this question once made up his mind, the court had no jurisdiction to deal with it. It appears to me that this proposition cannot be maintained on the very face of the act itself, which requires by s. 11 that the magistrate shall inform the prisoner that he may apply for a habeas corpus, and if he is entitled to apply for a habeas corpus, I think it follows that this court must have power to go into the whole matter, and in some cases, certainly if there be fresh evidence, or perhaps upon the same evidence, might take a different view of the matter from that taken by the magistrate. " It seems to me that it is a question of mixed law and fact — mamly indeed of fact — as to Avhether the facts are such as to brmg the case within the restriction of s. 3, and to show that it was an offence of a political character. I do not think it is disputed, or that now it can be looked upon as in controversy, that there was at this time existmg in Ticino a state of things which would certainly show that there was more than a mere small rising of a few people against the law of the State. I think it is clearly made out by the facts of this case, that there was something of a very serious character going on — amounting, I should go so far as to say, in that small com- munity, to a state of war. There was an armed body of men who had seized arms from the arsenal of the State ; they were rushing into the municipal council chamber in which the government of the State used to assemble ; they demanded admission ; admission was refused ; some firing took place ; the outer gate was broken down ; and I think it also appears perfectly plain from the evidence in the case that Castioni was a person who had been taking part in that movement at a much earlier stage. He was an active party in the movement ; he had taken part in the binding of one member of the government. Some time before he arrived with his pistol in his hand at the seat of government, he had gone with multitudes of men, armed with arms from the arsenal, in order to attack the seat of government, and I think it must be taken that it is quite clear that from the very first, he was an active party, one of the rebellious party who was acting and in the attack against the government. 19 290 TERRITORIAL JURISDICTION. [PART I. Now, that being so, it resolves itself into a small point, depending on the evidence which was taken before the magistrate, and any- thing that we can collect from the evidence that we have before us and from the whole circumstances of the case. " Before dealing with the evidence, I will say one thing about the message which was objected to and which was read after a slight discussion, upon the understanding that we were not going to use that document as evidence of any particular fact, but that it would be only used as an important document showing that the govern- ment of the country had themselves looked upon this as a serious political rising, and a serious state of violence by a very large body of the people against the government. I mean so to use it, and I have never thought of using it in any other way. I think that was the understanding upon which we allowed it to be read, and I feel that I am not justified in using it for any other purpose. Then it is reduced to the question of whether, upon the depositions sent over, and upon the depositions before the magistrate and upon the fresh facts, if there be any, which are broaght before us on the affidavits, we think that this was an act done, not only in the course of a po- litical rising, but as part of a political rising. Here I must say at once that I assent entirely to the observation that we cannot decide that question merely by considering whether the act done at the moment at which it was done was a wise act in the sense of being an act which the man who did it would have been wise in doing with the view of promoting the cause in which he was engaged. I do not think it would be at all consistent with the real meaning of the words of the statute if we were to attempt so to limit it. I mean, I do not think it would be right to limit it in the way suggested by the cross-examination of Bruni, namely, by considering whether it was necessary at tlrat time that the act should be done. The ques- tion really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part. Now, the only shadow of a suggestion of evidence to the contrary, I think, is the suggestion which appears on the face of some of the documents that he said something about his brother having been assassinated some years before. It was said in the message, which I have already said I do not rely upon as a statement of fact, that he did at the time he fired use the expression, ' My brother's death cries for vengeance!' That is in the document, and is a statement of fact which I do not rely upon, and I do not think that I am justified in relying upon it, though if I commented on that, I CHAP. II.] IN RE CASTIONI. 291 should certainly say it was quite as capable of the construction put upon it by Sir Charles Russell, that he was not intending to murder Rossi, of whom he knew nothing, and of whose connection with any injury towards his brother there is not the slightest par- ticle of evidence, as that it means anything of the kind suggested. Then it amounts to a very little, and it comes to discussion as to the facts of the case, and as to what was taking place at the exact mo- ment at which the shot was fired. I have carefully followed the discussion as to the facts of the case, and if it were necessary I could go through them all one by one, and point out, I think, that, looking at the way in which that evidence was given, and at the evidence itself, there is nothing in my judgment to displace the view which I take of the case, that at the moment at which Castioni fired the shot, the reasonable i^resumption is, not that it is a matter of absolute certainty (we cannot be absolutely certain about anything as to men's motives) but the reasonable assumption is that he, at the moment knowing nothing about Rossi, having no spite or ill- will against Rossi, as far as we know, fired that shot ; that he fired it thmking it would advance, and that it was an act which was in furtherance of, and done intending it to be in furtherance of the very object which the rising had taken place in order to promote, and to get rid of the Government, who, he might, until he had ab- solutely got into the place, have supposed were resisting the en- trance of the people to that place. That, I think, is the fair and rea- sonable presumption to draw from the facts of the case. I do not know that it is necessary to give any opinion as to the exact mo- ment when the shot was fired ; there is some conflict about it. There is evidence that there was great confusion ; there is evidence of shots fired after the shot which Castioni fired ; and all I can say is, that looking at it as a question of fact, I have come to the conclu- sion that at the time at which that shot was fired he acted in the fur- therance of the unlawful rising to which at that time he was a party, and an active party — a person who had been doing active work from a very much earlier period, and in which he was still actively en- gaged. That being so, I think the writ ought to issue, and that we should be acting contrary to the spirit of this enactment, and to the fair meaning of it, if we were to allow him to be detained in cus- tody longer." Hawkins, J., said, among other things, " Xow what is the meaning of crime of a political character ? I have thought over this matter very much indeed, and I have thought whether any definition can be given of the political character of the crime — I mean to say, in language which is satisfactory. I have found none at all, and I can 292 TERRITORIAL JURISDICTION. [PART I. imagine for myself none so satisfactory, and to my mind so complete, as that which I find in a work which I have now before me, and the language of which for the purpose of my present judgment I en- tirely adopt, and that is the expression of my brother Stephen in his History of the Criminal Law of England in vol. ii., pp. 70, 71. I will not do more than refer to the interpretations, other than those with which he agrees, which have been given upon this expression, ' political character ' ; but I adopt his definition absolutely. ' The third meaning which may be given to the words, and which I take to be the true meaning, is somewhat more complicated than either of those I have described. Au act often falls under several differ- ent definitions. For instance, if a civil war were to take place, it would be high treason by levying war against the Queen. Every case in which a man was shot in action would be murder. When- ever a house was burnt for military purposes arson would be com- mitted. To take cattle, etc., by requisition would be robbery. Ac- cording to the common use of language, however, all such acts would be political offences, because they would be incidents in carrying on a civil war. I tliink, therefore, that the expression in the Extradi- tion Act ought (unless some better interpretation of it can be suggested) to be interpreted to mean that fugitive criminals are not to be surrendered for extradition crimes, if those crimes were incidental to and formed a part of political disturbances. I do not wish to enter into details beforehand on a subject which might at any moment come under judicial consideration.' Tlie question has come under judicial consideration, and having had the opportunity before tliis case arose of carefully reading and considering the views of my learned brother, having heard all that can be said upon the subject, I adopt his language as the definition ' that I think is the most perfect to be found or capable of being given as to Avhat is tlie meaning of the phrase which is made use of in the Extradition Act. * * * " I cannot help thinking that everybody knows there are many acts of a political character done without reason, done against all reason ; but at the same time, one cannot look too hardly and weigh in golden scales the acts of men hot in their political excitement. We know that in heat and in heated blood men often do things which are against and contrary to reason; but none the less an act of this description may be done for the purpose of furthering and in further- ance of a political rising, even though it is an act which may be de- plored and lamented, as even cruel and against all reason, by those who can calmly reflect upon it after the battle is over. " For the reasons I have expressed, I am of opinion that this rule CHAP, ir.] IN RE CASTrONI. 293 ought to be made absolute, and that the prisoner ought to be dis- charged." ^ 1 In Re Ezeta, 1894, 62 FeJ. Reporter, 072, tlie court says: "In the Castioni Case, sujira, decided in 1891, the question was discussed by the most eminent counsel at the EngMsii bar, and considered by distinguished judges, witliout a definition being found that would draw a fixed and certain line between a municipal or common crime and one of a political character. . . . Applying, by analog}-, the action of the English court in that case to the four cases now before me, under consideration, tlie conclusion fol- lows that tlie crimes charged iiere, associated as they are with the actual conflict of armed forces, are of a political character," pp. 998-909. For furt;lier illustrations of political and non-e.\traditabIe offences see Cazo^s Case, 1887, in 1 Moore on E.xtradition, 324; The St. Albans Raid, 18G4, ib. 322; Bwiei/'s Case, 1864, ib. 319. Political offences: — "Most codes extend tlieir definitions of treason to acts not really against one's country. They do not distinguish between acts against tiie government and acts against the oppressions of the government. The hitter are virtues, yet liave furnished more victims to the executioner than the former. * * * The unsuccessful strugglers against tyranny have been the chief m:irt\"rs of treason laws in all countries. * * * Treasons, then, taking the simulated whh the )-eal, are sufficiently punished by exile." Jefferson to Carmichael and Short, 1792. 1 Am. St. Pap. For. Re!., 2-58. In recent years there has been much discussion as to the nature of the crime com- mitted in the assassination of the head of a government and of other public officials; wliether it is to be put upon the footing of ordinary murder, or whether it shall be classed among those political offences which are exempt from extradition proceedings. Is it possible to make a distinction, as Mr. Jefferson suggests, between acts directed against tyranny, and those of a mere common-law character? Some such distinction has probably influenced statesmen in their dealings with the question of extradition. But as offences of this class have become more common and have invaded the domin- ions of the most liberal governments, public opinion would seem to be undergoing a change in regard to them. Soon after the assassination of President Garfield, the United States Government entered into two treaties of extradition — that with Belgium of 1882, and that with Luxembourg of 1883 — in which it is stipulated that "an attempt against the life of the head of a foreign government or against that of anj' member of his family, when such attempt comprises the act either of murder or assassination or of poisoning, shall not be considered a political offence or an act connected with such an offence." An extradition treaty between the United States and Russia, 1893, contains a similar clause. By an agreement between the governments of Russia and Prussia in 1888, for the basis of an extradition convention, attempts against the life of the Emperor of Russia or the members of his family are to be considered as extraditable offences. And further, " the fact that the crime or offence, in respect whereof extradition is demanded, lias been committed for a political object, shall in no case be a reason for refusing extradition." Lowe's Life of Bismarck, II , 19. <.)n this subject, see Moore's Extradition, I., -303-326. It is not usual for nations to surrender their own subjects even although they may be guilty of the crime with which they are charged. To prevent disputes of tliis na- ture it is customary to exclude such citizens from the operation of the treaty, by an express clause to that effect. See Trimble's Case, 1884, 1 Moore on Extradition, 166. 294 TERRITORIAL JURISDICTION". [PART I. Section 13. — Jurisdictiox of Offexces Committed Abroad. UNITED STATES v. DAVIS. United States Circuit Court, District of Massachusetts, 1873. (2 Sum?ier, 482.) On an indictment for manslaughter it appeared that a gun was fired by defendant Davis, master of an American whale ship lying in the harbor of one of the Society Isles, by which a person on board a schooner (belonging to the natives and likewise lying within the same harbor) was killed.^ Story, J. "We are of the opinion that, under the circumstances established in evidence, there is no jurisdiction in this cause. The "The exemption of citizens from extradition has been maintained on various grounds. The only one which need seriously be noticed is that by the laws of most countries provision is made for the trial and punishment of their citizens for offences committed abroad, and that a state should not deliver up one of its citizens to be tried before a foreign tribunal when he can be punished at home under its own laws. By England and the United States alone are offences, even when committed by their citizens or subjects, treated as entirely local." Moore's Extradition, I.. 153. In negotiating extradition treaties these two states have tlierefore been willing to stipulate for the rendition of their own subjects or citizens. Indeed, the United States for a time refused to enter into extradition treaties on any otlier basis; but since 1852 this objection appears to iiave been waived, and a large number of our treaties of extradition, as that with Mexico, exempts each party from the obligation to surrender its own citizens. But as this exemption from the obligation to surrender citizens was doubtless inserted in these treaties in deference to the opinion of other states, it is not probable that it was intended as an absolute prohibition upon tiie President of the United States ; indeed, the wording of the clause would seem to imply a discretion on the part of the contracting parties. In 1880, tlie Institute of International Law, after an exhaustive discussion of the subject of extradition, adopted a series of resolutions, the sixth of which was as follows : — " Between countries whose criminal legislation rests on similar foundations, and which have confidence in each other's judicial institutions, the extradition of their own citizens would be a means of securing the good administration of criminal justice, because it ought to be desirable that the authorities of the forvm delicti commissi should, if possible, be called upon to try the case." See on this subject: Moore's Extradition. I., 152; Dana's Wheaton, pp. 189-191, notes. — Ed. 1 Short statement substituted for that of the original report. — Ed. CHAP. 11.] UNITED STATES V. DAVIS. 295 Crimes Act of 1790, ch. 36, § 12, on which this indictment is founded gives to this court jurisdiction of the crime of manslaughter only when committed "on the high seas." We do not absolutely decide, whether the place where this offence, if any, was committed, was the high seas or not ; because that might be affected by considerations of a very delicate and difficult nature, as whether it was high or low tide ; for a place may at high water be the high seas, and yet at low water be strictly a part of the land, as is the case on our seashore, according to the well-known doctrine in Constahle^s Case, 5 Co. R. 106 a. In the present case, at high water tlie tide of the ocean had full sweep over the place in question ; and it may be matter of grave consideration, whether, if the whole reef was at tlie time covered with water, the whole, including the place where the schooner lay, ought not to be deemed the high seas. But on this we give no opinion. What we found ourselves upon in this case is, that the offence, if any, was committed, not on board of the American ship Rose ; but on board of a foreign schooner belonging to inhabitants of the Society Isl- ands, and, of course, under the territorial government of the king of the Society Islands, with which kingdom we have trade, and friendly intercourse, and which our Government may be presumed (since we have a consul there) to recognize as entitled to the rights and sover- eignty of an independent nation, and of course entitled to try offences committed witliin its territorial jurisdiction. I say the offence was committed on board of the schooner ; for although the gun was fired from the ship Rose, the shot took effect and the death happened on board of the schooner; and the act was, in contemplation of law, done where the shot took effect. So the law was settled in the case of Rex v. Coomhs, 1 Leach. Cr. Cas. 432, where a person on the high seas was killed by a shot fired by a person on shore, and the offence ■was held to be committed on the high seas, and to be within the ad- miralty jurisdiction. Of offences committed on the high seas on board of foreign vessels (not being a piratical vessel), but belonging to per- sons under the acknowledged government of a foreign countrj^, this court has no jurisdiction under the Act of 1790, ch. 36, § 12. That "was the doctrine of the Supreme Court in United States v. Palmer, 3 Wheat. R. 610, and United States v. Klintock, 5 Wheat. R. 141, and United States v. Holmes, 5 Wheat. R, 412 ; applied, it is true, to another class of cases, but in its scope embracing the present. We lay no stress on the fact, that the deceased was a foreigner. Our judgment would be the same, if he had been an American citizen. We decide the case wholly on the ground, that tlie schooner was a foreign vessel, be- longing to foreigners, and at the time under the acknowledged jurisdic- tion of a foreign government. We think, that under such circumstances, 296 TERRITORIAL JURISDICTION. [PART I. the jurisdiction over the offence belonged to the foreign government, and not to the courts of the United States under the act of Congress. The jury immediately returned a verdict of not guilty. STATE V. CHAKLES WYCKOFF. Supreme Court of New Jersey, 1864. (2 Vroom, 65.) Beaslet, C. J. The defendant was convicted before the Court of Oyer and Terminer, on an indictment containing two counts, the first of which charges him with the larceny of certain goods of a value exceeding twenty dollars, and the other with receiving goods know- ing them to be stolen. It appeared tliat the defendant was in New York at the time of the theft, and while in that State he made an arrangement with one Kelly to come into this State and steal the articles in question and to bring and deliver them to him in New York. This arrangement was car- ried into effect. The articles being stolen by Kelly and delivered to the defendant in New York. The defendant was not in this State at any time, from the inception to the conclusion of the transaction. The Court of Oyer and Terminer have asked the advisory opinion of this court upon two points. First. Whether proof of the above stated facts will support the indictment. Second. Has the defendant committed any offence indictable by the laws of this State? In regard to the first point. The circumstances proved on the trial established the fact that Kelly was guilty of the crime of grand lar- ceny in this State. Kelly therefore committed a felony, and conse- quently, as the defendant was not present, either actually or constructively, at the commission of the offence, he could not be a principal therein, but was an accessory before the fact. Kelly did the act and the defendant's will contributed to it, but it was com- mitted while he was too far from the act to constitute him a principal. The distinction in felonies between the principal and accessories before and after the fact, is certainly technical, and has been some- times regarded as untenable, but it is too firmly established to be exploded by judicial authority. It has always been regarded, in its essential features, as a part of the criminal law of this State, and its CHAP. II.] STATE V. WYCKOFF. 297 existence is recognized both in our statutes and in a number of the reported decisions. State v. Cooper, 1 Green, 373, 'Johnson v. Sta'e. 2 Ducther, 324; Cook v. State, 4 Zab. 845. The first count, therefore, charging the defendant as a principal in the Lirceny, is not sustained by the evidence. The crime of the acces- sory being dissimiLar from that of the principal in its fundamental characteristics, must be distinctly charged in the pleadings. It has never been supposed that a count containing a statement of facts evincive of the fault of the party accused as a principal in a felonj'', was sufficient to warrant the conviction of such party as an accessory, 1 Chit. Crim. Law, 271, 2 id. 4; Wharton's Free, of Indict. 97; State V. Seran, 4 Butcher, 519. In the case of Rex v. Plant, 7 Car. & P. 575, it was expressly held that one indicted as principal in a felony could not be convicted of being an accessory before the fact. See, also, Whart. C. L. 115. Xeither will the second count of the indictment sustain the convic- tion. The evidence shows that the stolen goods were received by the defendant, with guilty knowledge, in the State of New York. But this was no offence against the laws of this State. The defendant therefore cannot be legally sentenced upon the conviction founded on the present indictment. The remaining question is, has the defendant committed any offence indictable by the laws of this State? His act was to incite and procure his agent or accomplice to enter this State and commit the felony. If the defendant had been in this State at the time of such procurement and indictment, he would have been guilty as an accessor}- before the fact; but what he did was done out of the State. Did he thereby become amenable to our criminal jurisdiction? As the defendant did not act within this State in his own person, the point to be decided is, Did he do such act in this State by con- struction or in contemplation of law? It is undoubtedly true that personal presence within the jurisdiction in which the crime is committed is not in all cases requisite to confer cognizance over the person of the offender, in the tribunals of the government whose laws are violated. In some cases the maxim ap- plies. Crimen trahit persoyiam. Thus, where a person being within one jurisdiction, maliciously fires a shot which kills a man in another jurisdiction, it is murder in the latter jurisdiction, the illegal act being there consummated. So in the case of The United States v. Davies, 4 Sumner, 485, the defendant was accused of shooting from an American ship and killing a man on board a foreign scliooner. Chief Justice Story said, "the act was, in contemplation of law. done 298 TERRITOEIAL JURISDICTION". [PART I. where the shot took effect. He would be liable to be punished by the foreign government." The same principle was recognized by this court in the case of The State v. Carter,^ 3 Dutcher, 499. So when a crime is committed by an innocent living agent, the projector of such crime being absent from the country whose laws are infringed. Such was the case of The Teople v. Adams, 3 Denio, 190. In this latter case the facts were these : the defendant was indicted in the City of New York for obtaining money from a firm of commission merchants in that city, by the exhibition of fictitious receipts. The defendant pleaded that he had never been in the State of New York — that the receipts were drawn and signed in Ohio, and that the offence was committed by their being presented to the firm in New York by inno- cent agents employed by the defendant in Ohio. It was held that such plea was bad and disclosed no defence. A number of authori- ties maintaining the same view will be found collected in the opinion of the judge who delivered the decision of the court in the case last cited. The rule, therefore, appears to be firmly established, and upon very satisfactory grounds, that where the crime is committed by a person absent from the country in which the act is done, through the means of a merely material agency or by a sentient agent who is innocent, in such cases the offender is punishable where the act is done. Tlie law implies a constructive presence from the necessity of the case; other- wise the anomaly would exist of a crime but no responsible criminal. But the more difficult question remains to be considered, which is — in case of a felony committed here by a responsible agent, who is therefore the principal felon and punishable by our laws — can the 1 In this case it was held that an indictment charging a felonious assault and battery in New York, and that the party injured came into and died from its effects in New Jersey, charges no crime against this State; that tlie New Jersey statute can- not embrace cases where the act complained of has been wholly done within the territorial limits of another State ; that in such a case the State (New York) in which the crime was committed has jurisdiction and a New Jersey statute to punish a New York crime is necessarily void. It should be noted, however, that when the offence is committed in both States, as in shooting and killing across the line, for instance, either or both States might take cognizance of the act and punish the crime, or to cite the exact language of the case, at p. 500 : " This is not the case where a man stands on the New York side of the line, and shooting across the border, kills one in New Jersey. When that is so, the blow is in fact struck in New Jersey. It is the defendant's act in this State. The passage of the ball, after it crosses the boundary, and its actual striking, is the continuous act of the defendant. In all cases the criminal act is the impinging of the weapon, wherever it may be, on the person of the party injured, and that must necessarily be where tiie impingement happens. Whether the sword, the ball, or any other missile, passes over a boundary in the act of striking, is a matter of no consequence. The act is where it strikes, as much where the party who strikes stands out of the State, as where he stands in it." — Ed. CHAP. II.] STATE V. WYCKOFF. 299 procurer, who is an accessory before the fact and whose acts of pro- curement have been done in a foreign jurisdiction, be indicted and punished for such procurement in this State? The general rule of the law has always been that a crime is to be tried in the place in which the criminal act has been committed. It is not sufficient that part of such act shall have been done in such place, but it is tlie completed act alone which gives jurisdiction. So far has this strictness been pushed that it has been uniformly held, that if a felony was committed in one county, the accessory having incited the principal in another county, such accessory could not be indicted in either. This technicality, which, when applied to the several counties of the same kingdom or state, appears to have little to recommend it, was nevertheless so firmly established that it re- quired the statute of 2 and 3 Ed. VI., c. 24, to abolish it, and this statute has been re-enacted in this State. Kix. Dig. 199. Rev., p. 282, sect. 78. And so in like manner the same rigor existed in cases in which death ensued out of the kingdom from a felonious stroke inflicted within it, it being decided that neither the principal nor accessory was, under such circumstances, indictable. This imperfection in the criminal system was removed by the statute of 2 Geo. IT., c. 21, and which has been substantially copied in the third section of the act of this State before referred to in Nix. Dig. 200, sujyra. For the rules of law which were thus modified by statute, see 3 Inst. 48; Lacye's Case, 1 Leo. 270; 2 Rep. 93. If, then, the accessory by the common law was answerable only in the county in which he enticed the principal, and that, too, when the criminal act was consummated in the same county, it would seem to follow necessarily in the absence of all statutory provision, that he is wholly dispunishable when the enticement to the commission of the offence has taken place, out of the State in which the felony has been perpetrated. Under such a condition of affairs it is not easy to see how the accessory has brought himself within the reach of the laAvs of the offended State. His offence consists in the enticement to com- mit the crime; and that enticement, and all parts of it, took place in a foreign jurisdiction. As the instrumentality employed was a con- scious guilty agent, with free will to act or to refrain from acting, there is no room for the doctrine of a constructive presence in the procurer. Applying to the facts of this case the general and recognized princi- ples of law, it would seem to be clear that the offence of which the defendant has been guilty is not such as the laws of this State can take cognizance of. We must be satisfied to redress the wrong which has been done to one of our citizens, and to vindicate the dignitj^ of our laws by the punishment of the wrongdoer who came within our 300 TERRITORIAL JURISDICTION. [PART I. territorial limits. As for the defendant, who has never been, either in fact or by legal intendment, within our jurisdiction, he can be only- punished by the authority of the State of New York, to whose sover- eignty alone he Avas subject at the time he perpetrated the crime in question. The principle involved in this case has not often been the subject of judicial consideration, nor has it received much attention from the text writers. But in the few cases to be found in the reports upon the point, a view similar to the above has been expressed. The case of The State v. Moore, 6 Foster, 448, was, in all its features, identical with that now before this court, and the result was a discharge of the prisoner, on the ground that the crime of the accessory had not been committed within the jurisdiction of New Hampshire. The case Ex parte Smith, 6 Law Reporter, 57, was to the same effect. The same principle was again considered, though in a some- what different aspect, in the case of Tlie State v. Knigltt,^ 1 Taylor's 1 By a North Carolina statute of 1784, Cli.25, § 4, counterfeiting and passing in a foreign or neigliboring State such counterfeit bills of North CaroHnawas made punisliable as if committed in North Carolina. A Virginian named Kniglit was convicted under this statute, and on appeal the court said : " This State cannot declare that an act done in Virginia by a citizen of Virginia, shall be criminal and punishable in this State: our penal laws can only extend to the limits of this State, except as to our own citizens ; but granting that our Legislature could enact laws for the punishment of offences com- mitted in Virginia, still this clause only extends by implication to acts done in Virginia ; and no penal law can be construed by implication nor otherwise than by the express letter." Defendant was therefore discharged. In Commonwealth v. Macloon, 18G9, 101 Mass. 1, it was held in an elaborate opinion by Mr. Justice Gray that a citizen of another state or of a foreign country may be con- victed, under a statute of Massachusetts, of the manslaughter of a person who died within Massachusetts, from injuries inflicted upon him by the accused in a foreign merchant vessel upon the high seas ; that in sucli a case the " mortal wound given or other violence or injury inflicted" took effect within and was therefore punishable in Massachusetts. See the adverse criticisms of this case and its doctrine in 1 Bisiiop's New Criminal Law, §§ Uo-llO, note 1, pp. 60-R6. In illustrating the doctrine that acts done out of the country but taking effect here may rightly be punished where they take effect, Bishop says (§ 110 of the same work) : " Where a man, standing beyond the outer line of our territory, by discharging a ball over the line kills another within it; or, himself being abroad, circulates libels here; or in like manner obtains here goods by false pretences ; or does any other crime in our own locality against our law ; he is punishable, though absent, the same as if he were present." Thus, in the thorougldy excellent case of Commonwenlth v. B/and/nrj, 1825, 3 Pick. Mass. 304, it was proved that the defendant delivered the writing set forth in the indictment to the printer of the Providence Gazette, at Providence, in the State of Rhode Island, and that it was publislied in that paper at the request of the defendant, who acknowledged that he was the author of it; it was likewise proved that the i)aper circulates in Kehoboth (in the county of Bristol, Mass.), and has so circulated previ- ously to such publication ; and that the number containing this writing was received and circulated in that town. On this statement of facts, the defendant was convicted CHAP. II.] STATE V. WYCKOFF. 301 Rep. (X. C), Q6, and the opinion intimated by the court entirely accorded with those expressed in the two cases first above cited. These are the only judicial examinations of the matter now in hand which I have met with in the course of my research. Upon authority, then, as well as upon principle, I think the present indictment cannot be sustained, and that the defendant has not com- mitted any offence which is indictable by force of the laws of this State. Let the Court of Oyer and Terminer be advised accordingly. for libel and conviction was affirmed on appeal. See, also, Hex v. Jolmson, 1804, 7 East, 65. Calling's Case, which excited so luucli interest and comment in intcrnutional circles was on all fours with this. One Cutting, an American citizen, published a libel in a Texan paper reflecting on the character of one Medina, a Mexican. Tlie paper cir- culated in Mexico, as in the case of Commomveahh v. B'anding tlie paper, circulated in Massaclmsetts, and on being found in Mexico, Cutting was apprehended, tried and sentenced to fine and imprisonment. The American Government demanded an indemnity for Cutting's imprisonment. See report on Cutting's Case by J. B. Moore, 1887. The position of the United States in Catling's Case, that the Mexican law giving to its courts the jurisdiction of extraterritorial offences, is contrary to custom and inter- national law, and that the principles involved in it are practically obsolete in practice, would seem not to be borne out by facts. Aside from the question whether the com- mon-law doctrine of territorial jurisdiction is the more expedient practical rule, it may at least be said that it is by no means so universally prevalent as to warrant the assertion that it has become a rule of international law. Not only are there many codes which go quite as far in the direction of extraterritorial jurisdiction as that of Mexico, but there is probably not a state which adiieres strictly to the territorial tiieory. In the first place, practically all states punish tlieir own citizens for offences of one kind or another committed in foreign countries. Even England punishes not only for treasonable acts, but also for bigamy, murder, manslaughter committed abroad by her subjects. The laws of the United States, too, provide for the punishment of cer- tain offences committed abroad by their citizens. Revised Statutes, § 5335; and see acts of August 18, 185G, and February 25, 1863. Secondly, in regard to foreigners, tiiere are a large number of codes which take juris- diction of offences against the state committed by them in foreign states; and a lesser number which go fartlier, and extend tiieir jurisdiction to offences against indi- viduals. Of this number are Austria, Hungary, Italy, Norway, Sweden, Russia, Greece, and Brazil, as well as Mexico. As previously said, the Catling Case is similar to that of Commonwealth v. Blanding, being a libel uttered in Texas, but circulated and liaving its effect in Mexico; is the offence different in principle from that of wounding a man in one state by firing across the boundary from another state ? Among jurists tliere is a wide difference of opinion in regard to the merits of the two systems — tlie " territorial " and the " personal " tlieories of jurisdiction. (T. E. Holland, Jurisprudence, 9th ed , pp. 400-405; F. Wharton, Philosophy of Criminal Law, p. 309 et seq. ; L. v. Bar, Private International Law, Translation by G. U. Gillespie, p. 620 et seq. ; Wharton's Conflict of Laws, § 1810 ; " Case of A. K. Cutting, by the Minister of Foreign Relations of tlie Republic of Mexico," 1888; Hall's Foreign Powers and Jurisdiction of the British Crown, 1-15.) — Ed. 302 TERRITORIAL JURISDICTION. [PART I. THE UNITED STATES v. THOMAS J. L. SMILEY et al. United States Circuit Court, District of Califorxia, 1864. (6 Sawyer, 640.) The steamer Golden Gate left Sau Francisco for Panama on July 21, 1862, and had on board " treasure " amounting to $1,450,000. On July 27, when three miles and a half from the jMexican shore, fire broke out, the steamer headed for the shore and went to pieces about two hundred and fifty feet from the shore, at a point fifteen miles north of Manzanillo, in Mexico. Of the money on board $1,200,000 were ultimately recovered in port by Smiley and his associates. The ship- pers and Smiley disagreeing about his share of the recovered treasure, he was indicted in March, 1864, in U. S. Circuit Court for plundering and stealing the treasure from the Golden Gate, under the ninth sec- tion of act of Congress of March 3, 1825 (4 St. L., 116) which provides "that if any person . . . shall plunder, steal or destroy any money, goods, merchandise or other effects from or belonging to any ship or vessel or boat or raft, which shall be wrecked, lost, stranded, or cast away upon the sea, or upon any reef, shore, bank, or rocks of the sea, or in any other place within the admiralty and maritime jurisdiction of the United States," he " shall be deemed guilty of a felony," &c.^ By the court, Mr. Justice Field. We are not prepared to decide that the statute does not apply to a case where the vessel has gone to pieces, to which the goods belonged of which larceny is alleged. It would fail of one of its objects if it did not extend to goods, which the officers and men of a stranded or wrecked vessel had succeeded in getting ashore, so long as a claim is made by them to the property, though before its removal the vessel may have been broken up. We are inclined to the conclusion that, until the goods are removed from the place where landed, or thrown ashore, from the stranded or wrecked vessel, or cease to be under the charge of the officers or other parties interested, the act would apply if a larceny of them were committed, even though the vessel may in the mean time have gone entirely to pieces and disappeared from the sea. But in tliis case the treasure taken had ceased to be under the charge of the officers of the Golden Gate, or of its underwriters, when the expedition of Smiley was fitted out, and all efforts to recover the property had been given up by them. The treasure was then in the situation of derelict or abandoned prop- 1 This statement is substituted for that of the report. — Ed. CHAP. II.] UNITED STATES V. SMILEY. 303 erty, which could be acquired by any one who might have the energy and enterprise to seek its recovery. In our judgment the act was no more intended to reach cases where property thus abandoned is recovered, than it does to reach property voluntarily thrown into the sea, and afterwards fished from its depths. But if the act covered a case where the property was recovered after its abandonment by the officers of the vessel and others interested in it, we are clear that the circuit court has not jurisdiction of the offence here charged. The treasure recovered was buried in the sand several feet under the water, and was within one hundred and fifty feet from the shore of Mexico. The jurisdiction of that country over all offences committed within a marine league of its shore, not on a vessel of another nation, was complete and exclusive. Wheaton, in his treatise on International Law, after observing that " the maritime territory of every state extends to the ports, harbors, bays, and mouths of rivers and adjacent parts of the sea inclosed by headlands, belonging to the same state," says : " The general usage of nations superadds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon-shot will reach from the shore, along all the coasts of the state. Within these limits its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation." (Pt. 2, c. 4, sec. 6.) The criminal jurisdiction of the government of the United States — that is, its jurisdiction to try parties for offences committed against its laws — may in some instances extend to its citizens everywhere. Thus, it may punish for violation of treaty stipulations by its citizens abroad, for offences committed in foreign countries where, by treaty, jurisdiction is conceded for that purpose, as in some cases in China and in tlie Barbary states ; it may provide for offences committed on de- serted islands, and on an uninhabited coast, by the officers and seamen of vessels sailing under its flag. It may also punish derelictions of duty by its ministers, consuls, and other representatives abroad. But in all such cases it will be found that the law of Congress indicates clearly the extraterritorial character of the act at which punishment is aimed. Except in cases like these, the criminal jurisdiction of the United States is necessarily limited to their own territory, actual or constructive. Their actual territory is coextensive with their posses- sions, including a marine league from their shores into the sea. This limitation of a marine league was adopted because it was formerly supposed tliat a cannon-shot would only reach to that extent. It is essential that the absolute domain of a country should extend into the sea so far as necessary for the protection of its inhabitants against injury from combating belligerents while the country itself is 304 TERRITORIAL JURISDICTION. [PART I. neutral. Since the great improvement of modern times in ordnance, the distance of a marine league, which is a little short of three English miles, may, perhaps, have to be extended so as to equal the reach of the projecting power of modern artillery. The constructive territory of the United States embraces vessels sailing under their flag; wher- ever they go they carry the laws of their country, and for a violation of them their officers and men may be subjected to punishment. But when a vessel is destroyed and goes to the bottom, the jurisdiction of the country over it necessarily ends, as much so as it would over an island which should sink into the sea. In this case it appears that the Golden Gate was broken up ; not a vestige of the vessel remained. Whatever was afterwards done with reference to property once on board of her, which had disappeared under the sea, was done out of the jurisdiction of the United States as completely as though the steamer had never existed. We are of opinion, therefore, that the Circuit Court has no jurisdic- tion to try the offence charged, even if, under the facts admitted by the parties, any offence was committed. According to the stipulation, judgment sustaining the demurrer will be, therefore, entered and the defendants discharsred.^ ■^o^ ^ " In England and America, the jurisdiction is generally assumed over its citizens in respect to all civil acts, transactions, rights, or duties done or arising abroad. This is true, even though tiie act be a tort, and though it amount to a breach of the peace. Thus a British subject is liable to a civil action in England for an assault and battery committed by him, say in Italy. Tlie same would be true in the United States. But by a very ancient principle of the English common law, adopted in tliis country, all crimes are strictly local, and the offenders are justiciable only in the countries where the criminal act is done." Pomeroy's Int. Law, 205. It is, however, true that in a few instances English and American courts take jurisdic- tion of crimes connnitted by their respective subjects and citizens beyond their terri- torial limits, other than on the high seas, but they do not, as is commonly the case on the Continent, try foreigners for offences against their nmnicipal laws. In Mdcleod v. Atti/.-CJeu., 1891, A. C. 465, Halsbury, L. C, laid down as English law tliat " all crime is local. Tiie jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects. Her Majesty and the Imperial Legislature has no power whatever." " It is, hov/ever, a decided and settled principle in the English and American law, that the penal laws of a country do not reach in their disabilities or penal effects, beyond the jurisdiction where they are establislied. Folliott v. Otjden, 1 H. Black. 12.3, 135; Lord Ellenborougii, Wulfl \. Oxholm, 6 M. & S. 99; Commonwealth of Massachusetts v. Green, 17 Mass. 514, 539-543 ; Sroville v. Canfiehl, 14 Johns. 338, 440" (1 Kent, Com. 38, note b). See also, U. S. v. Pelican Ins. Co., 1887, 127 U. S. 205, 289-91 and Hall, Int. Law, 218-222.— Ed. CHAP. II.] BURON V. DENMAN. 305 Section 14. — Extraterritorial Acts by Order of the State. BUROX Y. DEXMAK. Court of Exchequer, 1848. (2 Exchequer, 167.) Parke, B.^ (in summing up). — "With respect to the issue, whether the plaintiff was possessed of these slaves, your verdict must be for the plaintiff. Tlie law on the subject of slaves has been settled by the case of Le Louis, 2 Dod. 210, which has been referred to. That case was decided, in the year 1817, by Sir William Scott, who went fully into the question of the legality of the slave trade, and laid down cer- tain positions, which have since been acquiesced in, both in this country and abroad. Those positions are, first, that dealers in slaves are not pirates b}- the law of nations, and can only be made so by and accord- ing to the terms of a treaty with the country to which they belong prohibiting the slave trade ; secondly, that trading in slaves is not a crime by the law of nations ; thirdly, that the right of stopping and searching ships in time of peace is not a right which can belong to any nation except by contract with the nation to which such ships belong; and, fourthh^, that if there be a law in a particular country ])rohibiting the slave trade, it is not open to every one to punish the offender against that law, but proceedings must be taken in the tribunals of his own country. Those propositions being clear, a question arises, whether the plaintiff can maintain this action for taking away his slaves. It is not necessary to decide whether, if he had been simply in the actual possession of slaves, using them as slaves, he could have recovered against any person who took them away : on that point it is not necessary to give an opinion, because, according to the evidence on both sides, he was living at Gallinas, where it was lawful to possess slaves. It is contended that, by the law of Spain, the plaintiff cannot possess a property in slaves for the purpose of exporting them, as slaves, to the West Indies. However, there is no evidence of such law, and we are all, therefore, of opinion that the second and four- teenth issues, both as to the slaves and the goods, must be found for the plaintiff. The principal question is, whether the conduct of the defendant, in carrying away the slaves, and committing the other alleged trespasses, ^ Statement of the case is omitted. — Ed. 20 S06 TERKITOPcIAL JURISDICTION. [PAET I. can be justified as an act of state, done by authority of the Crown. It is not contended that there was any previous authority. If the defendant had merely instructions according to the terms of the treaty set out in the act of Parliament, those instructions would only have extended to the stopping of ships on the high seas, within the limits agreed to by the treaty with the Spanish crown. Therefore the justi- fication of the defendant depends upon the subsequent ratification of his acts. A well-known maxim of the law between private individuals is, "Omuis ratihabitio retrotrahitur et mandato aequiparatur." If, for instance, a bailiff distrains goods, he may justify the act either by a previous or subsequent authority from the landlord ; for, if an act be done by a person as agent, it is in general immaterial whether the authority be given prior or subsequent to the act. If the bailiff so authorized he a trespasser, the person whose goods are seized has liis reraed}'' against the principal. Therefore, generally speaking, between subject and subject, a subsequent ratification of an act done as agent is equal to a prior authority. That, however, is not universally true. In the case of a tenant from year to year, who has, by law, a right to a half-year's notice to quit, if such notice be given by an agent, without the authority of the landlord, the tenant is not bound by it. Such being the law between private individuals, the question is whether the act of the sovereign, ratifying the act of one of his officers, can be distinguished. On that subject I have conferred with my learned brethren, and they are decidedly of opinion that the ratification of the Crown, communicated as it has been in the present case, is equivalent to a prior command. I do not say that I dissent; but I express my concurrence in their opinion with some doubt, because on reflection there appears to me a considerable distinction between the present case and the ordinary case of ratification by subsequent authority between private individuals. If an individual ratifies an act done on his behalf, the nature of the act remains unchanged, it is still a mere trespass, and the party injured has his option to sue either; if the Crown ratifies an act, the character of the act becomes altered, for the ratification does not give the party injured the double option of bringing his action against the agent who committed the trespass or the principal who ratified it, but a remedy against the Crown only (such as it is), and actually exempts from all liability the person who commits the trespass. "Whether the remedy against the Crown is to be pursued by petition of right, or whether the injury is an act of state without remedy, except by appeal to the justice of the state which inflicts it, or by application of the individual suffering to the government of his country, to insist upon compensation from the government of this — in either view, the wrong is no longer action- CHAP. II.] BURON V. DENMAN. 307 able. I do not feel so strong upon the point as to say that T dis- sent from the opinion of my learned brethren; therefore, you have to take it as the direction of the court, that if the Crown, with knowledge of what has been done, ratified the defendant's act by the Secretaries of State or the Lords of the Admiralty, this action cannot be maintained. In the documents which have been read there is ample evidence of ratification, for the Secretary of State for Foreign Affairs, the Lords of the Admiralty, and the Secretary of State for the Colonial Department, on receiving the report of the Governor of Sierra Leone, and the account of the transactions given by the defend- ant himself, expressed their approbation of what he had done. The acts, indeed, have never been published, and that is one of the cir- cumstances which created a doubt in my mind. But, although the ratification was not known before this action was commenced, that fact makes no difference in the opinion of the court. A previous command would be unknown, if given verbally ; and a subsequent ratification, though unknown, will have the same effect. It is argued, on the part of the plaintiff, that the Crown can only speak by an authentic instrument under the Great Seal, and that, therefore, the ratification ought to have been under the Great Seal. We are clearly of opinion, that, as the original act would have been an act of the Crown, if communicated by a written or parol direction from the Board of Admiralty, so this ratification, communicated in the way it has been, is equally good. I should observe that the court ''are of opinion that it is not necessary for the defendant to prove the pleas which expressly state the authority of the Crown ; for if this act, by adoption, becomes the act of the Crown, the seizure of the slaves and goods by the defendant is a seizure by the Crown, and an act of state for which the defendant is irresponsible, and, therefore, entitled to a verdict on the plea of "i^ot guilty." The jury found that the Crown had ratified the act of the defendant, with full knowledge of what he had done, whereupon a verdict was taken for him on the 4th, 9th, and IGth pleas. A verdict was found- for the plaintiff on the pleas of not possessed of the slaves and goods ; and the plea of " Not guilty " was entered, by consent, for the plaintiffs. F. Robinson tendered a bill of exceptions to the above ruling ; but the plaintiff afterwards obtained an order to discontinue, certain terms of settlement of this and other similar actions having been agreed to.^ 1 In speaking of acts of state, Sir James Stephen uses the following well-chosen language : " The leading case on this subject is Buron v. Deiiman. * * * Tiiis principle has been asserted and acted upon in many later cases. One of the most pointed is The Secretari/ of State for India v. Kamachee Dai/e Sahiba. In this case the Uajah of 308 TERRITORIAL JURISDICTION. [PART Section 15. — Extraterritorial Acts done by a State, in Self- Defence. COMMONWEALTH v. BLODGETT AND ANOTHEE. Supreme Judicial Court of Massachusetts, 1846. (12 Metcnlf, 56). Shaw, C. J.^ The great Rhode Island controversy, threatening, and at one time involving, the dangers and troubles of insurrection and Tanjore, liavlng died without issue male, the East India Company seized the Rajah on the ground that the dignity was extinct for want of a male heir, and that the property lapsed to the British Government. The judicial committee of the Privy Council held, on a full examination of the facts, tliat tlie property claimed by the Rajah's widow "had been seized by the British Government, acting as a sovereign power, tiirough its delegate, the East India Company, and that tiie act so done, with its consequences, was an act of state over which the Supreme Court of Madras had no jurisdiction. * * * Even if a wrong had been done, it is a wrong for which no municipal court can afford a remedy." " In order to avoid misconception it is necessary to observe that the doctrine as to acts of state can apply only to acts which affect foreigners, and wiiich are done by the orders or with the ratification of the sovereign. As between the sovereign and his subjects there can be no such thing as an act of state. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty'of the proper courts of justice to determine whether it is lawful or not. On this ground the courts were prepared to examine into the legality of the acts done under Governor Eyre's authority in the sup- pression of the insurrection in Jamaica. The acts affected British subjects only. But as between British subjects and foreigners, the orders of the Crown justify what they command so far as British courts of justice are concerned. In regard to civil rights, this, as I have shown, has been establislied by express and solemn decisions ; and it is im- possible to suppose that a man should be a criminal when he is not even a wrongdoer," (Stephen's History of Criminal Law, Vol. II., pp. G4-6o.) See, also. Pollock's Torts, 8th ed., pp. 110-113. Dicey (Law of the Constitution, 5th ed., p. 287) says: " Biiron v, Denman, 2 Ex., 167, is sometimes cited as showing that obedience to the orders of the Crown is a legal justification to an officer for committing a breach of law, but the decision in that case does not, in any way, support the doctrine erroneously grounded upon it. What the judgment in Baron v. Denman shows is that an act done by an English military or naval officer in a foreign country to a foreigner in discharge of 1 Statement of the case, as well as part of the opinion, omitted. For a detailed statement of the rebellion out of which the case in the text arose, see A. M. Mowry's Dorr War, 1901. — Ed. CHAP, ir.] COMMONWEALTH V. BLODGETT. 309 civil war, out of which this case grew, having happily passed away, the case itself has lost much of the interest with which it was once invested. It presents questions of unusual magnitude and importance, lying beyond the scope of those investigations with which the adminis- tration of the criminal law is usually conversant; but happily they are questions of rare occurrence. We shall allude to the facts, very briefly, to make the points intelligible. The indictment was originally returned against three persons, of whom one was acquitted and the others convicted. It was founded on the provisions of the Rev, Sts., c. 125, § 20, which prohibit the unlaw- ful and forcible seizure, imprisonment, or abduction of persons. The proof, on the part of the prosecution, tended to show that the orders received from the Crown maybe an act of war, but does not constitute any breacli of law for wliich an action can be brought against the officer in an Englisii court. Compare Feut further; the prayer for instruction assumed that the acts done by the defendants, with the armed party accompanying them, who proceeded to Bellingham, entered the house of Crooks, and seized and carried away Oluey and others as rebels against the authority of the State of Rhode Island, were done under the sovereign authority of the State, either by a previous order, emanating from the govern- •ment. or that the acts done in their name were subsequently, in due form, ratified, adopted and expressly sanctioned by the authority of the State of Ehode Island, so as to transfer the responsibility, what- ever it was, from the individuals to the State. But so far from this, the case shows that they acted under the authority of an order, given by Major Martin, to do the specific duty, in conformity with a more general direction from the military commanding ofiicer, directing the officers and soldiers to scour the countr}^, to the distance of fifty miles, without regard to State lines, in order to secure the insurgents who had fled. Tlie specific order to cross the lines of Massachusetts did not emanate from the government; it was an ordinary military operation, undertaken by the military officers, in pursuance of their general duty to defend the State against the insurgent forces. And so far from being specifically ratified, sanctioned and adopted, by the State of Rhode Island, the Governor, when applied to for that pur- pose by the Governor of ^lassachusetts, declined so to do, but repudi- ated it, and denied that it was done by authority of the State. And the act, stated in the bill of exceptions, passed by the Legislature of Rhode Island, to indemnify these defendants, against certain ex- penses occasioned by their prosecution, is far from that express adop- 316 TERRITORIAL JURISDICTION. [PART I. tion which will secure the citizen by taking the responsibility upon the State. The other matters assumed in the prayer in question relate to the particular situation of the men at the time, as being captured just over the lines, etc. These are not of much importance, but do not seem to be warranted by the evidence. And the court are also of opinion, that the instruction actually given, under this prayer, viz., that the acts of the defendants were unlawful, unless done in the necessary defence of the lives and prop- erty of the citizens of Khode Island, or in the necessary defence of the State, was sufficiently favorable to the defendants. The last prayer for instruction is thus stated : The counsel for the defendants further prayed the court to instruct the jury, that if they found that the said Blodgett and Hendrick were citizens of Rhode Island, actually serving as soldiers in the ranks, with the troops of Hhode Island, under regular military command, in time of civil war and domestic insurrection in said State, and under martial law, and were duly ordered by their lawful military superiors, acting under and by authority of the State of Rhode Island, to cross the lines and arrest, within the territory of Massachusetts, the said Olney, Ballon, Whipple and Walker, rebel citizens of Rhode Island, recently fled to Massachusetts, for refuge merely, from the troops of Rhode Island, they were not personally liable, in the criminal courts of Massachu- setts, for executing such orders without excess or unnecessary vio- lence; but that the State of Rhode Island was alone responsible to the State of Massachusetts for the violation of her territorial rights. This instruction the court refused to give, but did instruct the jury that the defendants were personally liable, in the criminal courts of this Commonwealth, for the acts done by them as aforesaid, under the orders of the State of Rhode Island, notwithstanding such orders given, and only by them faithfully executed. Upon this ground, the main argument, in justification or excuse of the defendants, has been placed. We are to presume that the in- structions and directions asked for were so asked for in reference to the case stated in the bill of exceptions, and not as mere abstract propo- sitions; and, as such, their correctness in point of law, and their adaptation to the case on trial, are to be considered. It was then a request to the judge to instruct the jury that if the ordinary mili- tary officers of a State, in the exercise of the military powers vested in them foi* the defence and protection of the State against an insur- rection, after martial law declared by the Legislature, should order subordinate officers and soldiers to enter a neutral territory, the terri- tory of another State, to arrest and secure the persons of rebel citi- CHAP. II.] COMMONWEALTH V. BLODGETT. 317 zens, recently in arms, the persons thus ordered, being bound to obey, uuder the penalties of disobedience of a military command which they have no means of resisting, would not subject themselves to the animadversion of the criminal laws of the State whose territory is thus violated. This proposition, we think, cannot be maintained upon any well-recognized principle of public law. It would be an authority to every military officer, superior or subordinate, by means of orders to those under him, in all cases where military forces are raised and organized, to extend hostilities indefinitely into the terri- tories of neutral and independent States, to the imminent danger of the lives, property and possessions of the subjects of such neutral State; and the only remedy for the injured party would be by way of remonstrance to the government of the party doing such wrong. But, surely, this is not one of the ordinary or incidental powers con- ferred upon military officers by their own government. They are indeed to defend the territory and the just rights of their States by warlike measures; but these must be taken in reference to the just rights and limited powers of the State itself, under whose authority they act, and they cannot, by force of such authority, commit hostile acts against independent States, with whom their own State is at peace. If such military entry into the territory of a neutral State is supposed necessary, such act is a high prerogative of sovereignty, and the necessity of it must be judged of, and the warrant for it must be given by the express command or direction of the sovereign authority. Any other principle would make the peace of any State depend upon the judgment and discretion, or even the rash and ill- judged act, of every military officer, in time of war. It has been argued upon the ground that men ought not to be held responsible for acts done in obedience to orders which they are com- pelled to obey, under severe military discipline. But this is not the true principle; and it would be dangerous in the extreme to carry it out into its consequences. The more general and the sounder rule is, that he who does acts injurious to the rights of others can excuse himself, as against the party injured, by pleading the lavful com- mands only of a superior, whom he is bound to obey. A man may be often so placed in civil life, and more especially in military life, as to be obliged to execute unlawful commands, on pain of severe penal consequences. As against the party giving such command, he will be justified; in foro conscientice he may be excusable; but towards the party injured, the act is done at his own peril, and he must stand responsible. Had the government of Rhode Island ordered the expedition into Massachusetts, it would have presented the question argued in the 318 . TEREITORIAL JURTSDICTIOK. ' " [PART L. present case, viz., whether the men would have been protected by such order, and the State alone be responsible. War may be made without being declared; and when it is so made and recognized by the governments of the respective parties, then the rights belonging to belligerents, and incident to war, attach to the States and their respective citizens and subjects, in arms or otherwise. The argument in excuse of the defendants, to be effectual, must be put upon the ground, and go to the extent, that in the actual state of things, there was war de facto, between Rhode Island and Massachusetts. But this is too extravagant a view to be taken by any aspect in which, upon the facts, the case can be placed. These facts show that the proceeding of Blodgett and others, in passing over the lines of Massa- chusetts, and doing the acts which are the subject of this prosecution, though ordered by Major Martin, acting under the general authority of Major-General McNeill, was not the act of the State of Rhode Island, either by previous special authority, or subsequent ratification or adoption. The authority of the commanding and other military officers is prima facie limited to the defence of the territory and terri- torial rights of the State appointing them, and must stand so limited, unless it is shown that an authority was specially vested in them by the State, to enter the territory of another State. In the present case, if the act itself was equivocal, it was put beyond doubt, by the answer and denial of the Governor of Rhode Island, that the act was not authorized or adopted as the act of the State. The acts of the defendants then, being plainly a violation of the rights and laws of Massachusetts, and of the legal rights of persons lawfully within its protection, and being denied and repudiated as an act of the State of Rhode Island, it follows, as a necessary legal consequence, that it was a lawless and unjustifiable act of violence on the part of the defendants, subjecting them, and all who assisted them, to be pun- ished for such violation, by our laws. If these States had stood in the relation, in all respects, of foreign states (which is the supposition in the argument, and the one, per- haps, most favorable to the defendants), we do not see how they could make out their justification, since the executive of Rhode Island has repudiated the act as an act of the State. Whether, if the measure of sending a military force into Massachu- setts, being in its nature an act of war, would have justified, and ren- dered the persons sent free from punishment, the facts of this case do not require us to consider. It would depend upon questions arising out of the peculiar relations in which the States stand to each other and to the general government. The Constitution of the United States still recognizes that qualified sovereignty of a State, so far as CHAP. II.] COMMONWEALTH V. BLODGETT. 319 to raise military forces for their own protection and defence, against both foreign invasion and domestic insurrection. The first security of a State against violence is to be sought in the duty imposed on the United States Government, to take order in that respect. If, for any cause and by any means, imperious necessity or otherwise, that fails, and the State in which insurrection arises is left to take care of its own defence, it may be a grave question, whether such State would not be remitted to its natural and original rights of sovereignty, with its recognized incidents, to the extent necessary to meet that exigency, and for that purpose to issue the necessary declarations, enter into stipulations with other States, and the like. But even in that case, soldiers and others, acting in the defence of such a State, could have no higher rights, no higher claim of impunity for acts done to the injury of others, than the citizens and subjects of a sovereign and independent State, acting under like circumstances. On the whole, the court are of opinion that the instructions were correct and carefully considered, as well as the refusal of instructions prayed for, and therefore that the exceptions must be overruled.^ 1 The case of the Caroline (tlie vessel referred to in notice of McLeod's case as given in Underhill v. Hernandez, ante, 67) is tlie one generally referred to for the doctrine tliat tlie violation of foreign territory may be justified on tlie ground of the necessity of self-ilefence (1 Wharton's Digest, § 50 c). Perhaps the most satisfactory as well as final judicial account of the McLeod and Caroline episodes is to be found in the Deci- sions of the Commission of Claims under Convention between U. S. and Gt. Br., Feb. 8, 1853, at pp. 314-327. The statements of the various transactions attending the different phases of the cases are here quoted from p. 314 of the report : " Where a citizen of Canada was arrested in the State of New York, for a criminal offence against the laws of the State, arising from his being engaged in the destruction of the steamer Caroline, in New York, with a party from Canada, during an insurrec- tion in that province, and Great Britain demanded his release on tlie ground that the acts complained of were done by the orders of that government, and that the nation was responsible and not the individual; and where the difiiculties arising from these causes were afterwards adjusted between the two governments, held that such adjust- ment barred all claims of citizens of either country against the other for individual damage sustained, and that such cases were not within the provisions for the settle- ment 'of outstanding claims,' under the convention of February 8, 1853. " Where a citizen of another governinent was arrested in this country for a criminal offence and claimed his discharge on the ground that the acts complained of were done under the authority of his government, it does not necessarily entitle him to a release. Time must be had for the action of the proper tribunals on such plea, and the ultimate decision of a court in the last resort, where the same becomes necessary. " Neither does any claim for damage arise where the means provided by law for the adjustment of such questions are less speedy than would be desirable, and may require amendment, or error has arisen, in courts of subordinate jurisdiction, from which appeal might have been taken or correction had. " Alexaniler McLeod, a British subject resident in Canada, was arrested in Lewis-, town, in the State of Nevr York, in November, 1840, on a charge of being concerned 320 TERRITOEIAL JURISDICTION. [PART I. Sectiox 16. — Injury to Foreigners by Mob Violence. THE CITY OF NEW ORLEANS v. ABBAGNATO. United States Circuit Court of Appeals, Fifth Circuit, 1894. (62 Federal Reporter, 240.) Pardee, Circuit Judge. The treaty between the kingdom of Italy and the United States proclaimed Nov. 23, 1871, guarantees to the in the seizure and destruction of the steamer Caroline, attended with loss of life, in the State of New York, on the 29th of December, 1837. "During the pendency of the prosecution, Great Britain notified the government of the United States that the seizure of the Caroline was made under the authority of Great Britain, and claimed the discharge of McLeod on that ground. He was not dis- charged, but was tried and acquitted, and now brings his claim before this commission for damages and expenses arising from liis detention and trial." Further Instances are : the seizure of Saint Marks (1 Wiiarton's Digest, 224) hold- ing that necessity justifies an invasion of foreign territory so as to subdue an expected assailant, and the seizure of Amelia Island, in 1817 (1 Wiiarton's Digest, § 50 o). In tlie technical language of private as distinguished from public law, these transactions amounted to the abatement of a nuisance, the right to do which e.xists in the aggrieved party. Its exercise, however, is decidedly hazardous (3 Black. Com. 5 and Pollock's Torts, 8th ed. p. 404). These instances were on land: the case of the Virginius was on the high seas. The Virginlvs was registered in tlie United States and carried the American flag; but, as it eventually appeared, slie was really tiie property of certain Cuban insurgents, and was employed in aid of tlie rebellion in Cuba. On the 9th of July, 1873, she arrived at Kingston, Jamaica, and on the 23d of October slie cleared ostensibly for Llmon Bay in Costa Rica, but really for the coast of Cuba. Being chased by a Span- ish warship, she put into Port-au-Prlnce, Hayti. Thence she proceeded again to the coast of Cuba, and was again cliased by a Spanish war vessel, the Tornado, and was captured ten or fifteen miles from the coast of Jamaica, on the 31st of October. She was taken to Santiago de Cuba, where a court was assembled for tlie trial of the per- sons found on board — 155 in number. Of these four were tried on the 3d of Novem- ber, and sliot on the 4th, thirty-seven on the 7tli, and sixteen on the 8th. Among those executed were nine Americans and sixteen Britisli subjects. Tlie government of tlie United States, supposing that its rights on the high seas had been violated, demanded reparation. And by an agreement of the 29th of Novem- ber, Spain stipulated to restore the Virqimus and the survivors of the passengers and crew, and to salute the flag of the United States on the 2oth of December following, unless Spain sliould in tlie mean time prove that the vessel was not entitled to carry said flag. The matter was submitted to the Attorney-General of the United States, who, after careful examination, reported on the 12th of December that the registry of the Virrjtnius was fraudulent, and that she had tiierefore no right to carry the American flag. But he added, " I am also of opinion that she was as much exempt CHAP. II.] CITY OF NEW ORLEANS V. ABBAGNATO. 3-21 citizens of either nation in the territory of the other "the most con- stant protection and security for their persons and property," and further provides that 'Hhey shall enjoy in this respect the same rights and jDrivileges as are or shall be granted to the natives on their sub- mitting themselves to the conditions imposed upon the natives." from interference on the liigli seas by any other power, on tliat ground, as though she had been lawfully registered. Spain, no doubt, has a right to capture a vessel, witli an American register, and carrying the American flag, found in her own waters assist- ing, or endeavoring to assist, tlie insurrection in Cuba, but slie has no right to capture such a vessel on the higli seas upon an apprehension that, in violation of the neutrality or navigation laws of the United States, slie vvas on her way to assist said rebellion. Spain may defend her territory and people from the hostile attacks of what is, or appears to be, an American vessel; but she has no jurisdiction whatever over the ques- tion as to whether or not such vessel is on the high seas in violation of any law of the United States." Spain having proved her point, the salute to the flag was dispensed •with. The vessel was delivered to the United States authorities on the 16th of De- cember, 1873; but on her way north, sank, off Cape Fear, on the 26th of that month. Both the United States and England demanded reparation for the persons of their respective nationalities wlio had been executed by the captors of the Virginias ; and tills Spain eventually agreed to make. Even assuming that the vessel was lawfully seized, it was contended that there could be no justification of the summary e.\ecution of foreigners by order of a drum-head court-martial. The position of the Attorney-General, tliat Spain had no right to capture such a vessel on the high seas, etc.. has called forth much adverse criticism. Both Woolsev and Dana justified the capture at the time. " Tiie register of a foreign nation," said Dana, " is not, and by the law of nations is not recognized as being, a national voucher and guaranty of national character to all the world, and nations having cause to arrest a vessel, would go behind such a document to ascertain the jurisdictional fact which gives character to the document, and not the document to the fact." It was the duty of the Spanish captain, says Woolsev, to defend the coasts of Cuba against a vessel •which w as known to be under the control of the insurgents, for which he had been on the lookout, and against which the only effectual security was capture on the high seas. Woolsey's International Law, 6th ed., pp. 368, 369. In a pamphlet on the " Case of tlie Virginius," Mr. George T. Curtis took similar ground. " We rest the seizure of this vessel," he says, "on the great right of self- defence, which, springing from the law of nature, is as thoroughly incorporated into the law of nations as any right can be. No state of belligerency is needful to bring the right of self-defence into operation. It existed at all times — in peace as well as in war. The only questions that can arise about it relate to the modes and places of its exercise." See, also, on the question of self-defence, Great Britain's seizure of Danisli Fleet ia 1807, Hall's Int. Law, 285. The right to visit and search foreign merchant vessels upon the liigli seas does not exist in time of peace, other than as the result of treaty stipulation. It is essentially a war power and its exercise is rightly incident thereto, infra, § 47. Unrecognized insurgents have been and are by a rigid adherence to the traditional law of nations held and punished as political pirates — subject to universal capture, and the right of visit and search is necessarily included, indeed it is preliminary to seizure. In this case, therefore, the Virginias was rightly captured by the Spanish authorities, provided it was, and such was the fact, in the employ of the Cuban 22, 530, 533. Indeed the United States Court of Admi- ralty would have no jurisdiction in such a case. Steamboat Co. v. Chase, 16 Wall. 522, 530, 533 ; Sherlock v. Allen, 93 U. S. 99, and there is no greater objection to extending the operation of a statute of this description to a vessel at sea than there was to giving similar operation to a State insolvent law." Dr. Wharton (Commentaries on American Law, 1884, § 308) says: " A ship at sea is, by the prevalent opinion, a part of the territory of the State whose flag she b3ars, and is consequently governed by the laws of such State. As between the several States of the American Union, a ship is governed by the law of the State in which she is registered. A ship in port, however, is governed by port law, though this does not apply to ships of war." For ships of war, see Exchange v. McFaddon, 1812, 7 Cr. 116, ante. In The Lamington, 1898, 87 Fed. 752, Thomas, J., said : " Tlie first question is this : Did the accident occur on British territory ? Every vessel outside the jurisdiction of a foreign power is a detached, floating portion of the territory of the country whose CHAP. III.] REGINA V. ANDERSON. 333 At the .time of tlie offence committed the vessel was in the river Garonne, within the boundaries of the French empire, on her way up to Bordeaux, which city is by the course of the river about ninety miles from the open sea. The vessel had proceeded about half-way up the river, and was at the time of the offence about three hundred yards from the nearest shore, the river at that place being about half a mile wide. The tide flows up to the place and beyond it. No evidence was given whether the place was or was not within the limits of the port of Bordeaux. It was objected for the prisoTier that the offence having been com- mitted within the empire of France, the vessel being a colonial vessel, and the prisoner an American citizen, the court had no jurisdiction to try him. I expressed an opinion unfavorable to the objection, but agreed to grant a case for the opinion of this court. The prisoner was convicted of manslaughter. J, BARJfARD ByLES. BoviLL, C. J.-^ There is no doubt that the place where the offence was committed was within the territory of France, and that the pris- oner was therefore subject to the laws of France, which the local authorities of that realm might have enforced if so minded ; but at the time, in point of law, the offence was also committed within British ter- flag it flies, anil under wliose laws it is registered. The Scotia, 14 Wail. 170, 184; Crapo V. Kellij, 16 Wall. 610, 624 ; Wilson v. McXamee, 102 U. S. 572, 574 ; In re Mon- can, 14 Fed. 44 ; In re Ak Sing, 13 Fed. 286; U. S. v. Bennett, S Hughes. 466, Fed. Cas. No. 14,574; McDonald v. Mallory, 11 N. Y. 546, 551, 553; Wlieat. Int. Law (Dana's ed.) § 106; 3 Whart. Int. Law Dig. 228; Whart. Conf. Laws, § 356; 1 Kent, Comm. 26; Vatt. Law Nat. bk. 1, ch. 19, § 216; 1 Calvo, 552; Bluntschli, § 317 ; 1 Martens (French Trans, of Leo), 496; Seagrove v. Parks, 1 Q. B. Div. 551. The authorities noted so perfectly maintain the doctrine stated tiiat quotation, amplification or illus- tration is unnecessary. The broad and fundamental principle is that the sovereignty of a nation e.xtends to its private ships, and this dominion is never shared by a foreign power where tlie internal affairs of the vessel are alone involved, and where it is not within the territorial domain of such power. It results from the foregoing : (1) That tortious acts are governed by tlie law of the place where they are done. (2) That a foreign tribunal will never afford reparation for such acts, unless they are unjustified both by the law of the place where they occurred and by the law of the forum. (3) That a contract creating the relation of master and servant, made in a country for a service to be rendered in such country, imposes only such obligations, and confers only such rights, as tlie terms of the contract stipulate, and the laws of such country imply. (4) That the vessels of sucli country are, even upon the high seas, a detached, floating portion of its territory, and exclusively witliin tlie influence of its laws, so far as the internal economy of the vessel is concerned." — Ed. 1 Arguments of counsel and the concurring opinions of Channell, B., and Lush, JJ., are omitted. — Ed. 384 JURISDICTION ON THE HIGH SEAS. [PART I. ritoi-y, for the prisoner was a seaman on board a merchant vessel, which, as to her crew and master, must be taken to have been at the same time under the protection of the British flag, and, therefore, also amen- able to the provisions of the British law. It is true that the prisoner was an American citizen, but he had with his own consent embarked on board a British vessel as one of the crew. Although the prisoner was subject to the American jurisprudence as an American citizen, and to the law of France as having committed an offence within the terri- tory of France, yet he must also be considered as subject to the juris- diction of British law, which extends to the protection of British vessels, though in ports belonging to another country. From the pas- sage in the treatise of Ortolan, already quoted, it appears that, with regard to offences committed on board of foreign vessels within the French territory, the French nation will not assert their police law unless invoked by the master of the vessel, or unless the offence leads to a disturbance of the peace of the poi't ; and several instances where that course was adopted are mentioned. Among these are two cases where offences were committed on board American vessels — one at the port of Antwerp, and the other at Alarseilles — and where, on the local authorities interfering, the American court claimed exclusive jurisdiction. As far as America herself is concerned, it is clear that she, by the statutes of the 23d of March, 1825, has made regulations for persons on board her vessels in foreign parts, and we have adopted the same course of legislation. Our vessels must be subject to the laws of the nation at any of whose ports they may be, and also to the laws of our country, to which they belong. As to our vessels when going to foreign parts we have the right, if we are not bound, to make regu- lations. America has set us a strong example that we have the right to do so. In the present case, if it were necessary to decide the ques- tion on the 17 & 18 Vict., c. 104, I should have no hesitation in saying that we not now only legislate for British subjects on board of British vessels, but also for all those who form the crews thereof, and that there is no difficulty in so construing the statute ; but it is not neces- sary to decide that point now. Independently of that statute, the general law is sufficient to determine this case. Here the offence was committed on board a British vessel by one of the crew, and it makes no difference whether the vessel was within a foreign port or not. If the offence had been committed on tlie high seas it is clear that it would have been within the jurisdiction of the admiralty, and the Central Criminal Court has now the same extent of jurisdiction. Does it make any difference because the vessel was in the river Garonne half-way between the sea and the head of the river ? The place where the offence was committed was in a navigable part of the river below CHAP. III.] KEGIN^A V. ANDERSON. 335 bridge, and where the tide ebbs and flows, and great ships do lie and hover. An offence committed at such a place, according to the author- ities, is within the Admiralty jurisdiction, and it is the same as if the offence had been committed on tlie high seas. On the whole I come ' to the conclusion that the prisoner was amenable to the British law, and that the conviction was right. Byles, J. I am of the same opinion. I adhere to the opinion that I expressed at the trial. A British ship is, for the purposes of this question, like a floating island ; and, when a crime is committed on board a British ship, it is within the jurisdiction of the Admiralty Court, and therefore of the Central Criminal Court, and the offender is as amenable to British law as if he had stood on the Isle of Wight and committed the crime. Two English and two American cases de- cide that a crime committed on board a British vessel in a river like the one in question, where there is the flux and reflux of the tide, and wherein great ships do hover, is within the jurisdiction of the Ad- miralty Court; and that is also the opiuiou'expressed in Kent's Com- mentaries. The only effect of the ship being within the ambit of French territory is that there might have been concurrent jurisdiction had the French claimed it. I give no opinion on the question whether the case comes within the enactment of the ]Merchant Shipping Act. Reg. V. Lopez., 7 Cox C. C. 431 ; Reg. v. Armstrong., 13 Cox C. C. 184. Blackburn, J. I am of the same opinion. It is not necessary to decide whether the case comes within the Merchant Shipping Act. If the offence could have been properly tried in any English court, then the Central Criminal Court had jurisdiction to try it. It has been decided by a number of cases that a ship on the high seas, carrying a national flag, is part of the territory of that nation whose flag she carries; and all persons on board her are to be considered as subject to the jurisdiction of the laws of that nation, as much so as if they had been on land within that territory. From the earliest times it has been held that the maritime courts have jurisdiction over offences committed on the high seas where great ships go, which are, as it were, common ground to all nations, and that the jurisdic- tion extends over ships in rivers or places where great ships go as far as the tide extends. In this case the vessel was within French terri- tory, and subject to the local jurisdiction, if the French authorities had chosen to exercise it. Our decisions establish that the admiralty jurisdiction extends at common law over British ships on the high seas, or in waters where great ships go as far as the tide ebbs and flows. The cases Rex v. Allen and Rex v. Jemot are most closely in point, and establish that offences committed on board British ships in places where great ships go are within the jurisdiction of the Court 336 JURISDICTIOX ON THE HIGH SEAS. [PAPwT I. of Admiralty, and consequently of the Central Criminal Court. In America it appears, from the case of The United States v. Wilthen/er, that it was held that the United States had no jurisdiction in the case of the crime of manslaughter committed on board a United States vessel in the river Tigris in China; but, as I understand the Amer- ican cases of Thomas v. Lane and The United States v. Coombes, a rule more in conformity with the English decisions was laid down ; and upon whose authority I take it that the American courts would agree with us. It is clear, therefore, that a person on board an American ship is subject to the American law. My view is, that when a person is on board a vessel sailing under the British flag, and commits a crime, that nation has a right to punish him for the crime com- mitted by him; and clearly the same doctrine extends to those who are members of the crew of the vessel. Conviction affirmed.^ 1 In U. S. V. Bennett, 1877, 3 Hughes, 466, Fed. Cas. No. 14,574, the crime was com- mitted on tiie Garonne near tlie city of Bordeaux, and tlie decision was tiie same. See, also, Rerj. v. Lopez, and Re(/. v. Saltier, 1858, D. «& B. 525. In 1851, a case arose in reference to seamen, supposed not to be citizens of the United States, wlio, having committed a mutiny at sea, on board of tlie American vessel Atalanfa, were brougiit back in the vessel to Marseilles, where, on the applica- tion of tlie consul of the United States, they were received and imprisoned by tlie local autliorities on shore. Six of them were afterwards on his application taken from prison and placed on board the Atalnnta for conveyance to the United States under charge of crime. Tiien, with notice to the consul, but in spite of his remonstrance, the local authorities went on board of the Atalanta, forcibly resumed possession of the prisoners, and replaced them in confinement on shore. Mr. Mason, in a note of the 27th of June, 1856, says : " It is the first instance, in which a vessel wearing the flag of the United States, lying in a French port, or a French ship lying in a port of the United States, has, since the date of the treaty, been visited by police officers without the authority of the consul." (MS. Department of State.) The correspondence between the two govern- ments having been submitted to the Attorney-General of the Un'ted States, he con- curred in opinion with tlie American Minister, " that the local authority of Marseilles exceeded its lawful power in substance, as well as in form, and tliat there could be no conflict on the part of France with other powers on account of the nationality of the prisoners, for they were always in the constructive, if not in the actual, custody of the United States." 8 Opin. Att'y-Gen. 73. In the case of John Anderson, 1879, Great Britain admitted the contention of the United States, that a crime committed upon an American merchant vessel while sailing on the high seas was properly triable in the United States, and the action of the Indian authorities in trying Anderson in Calcutta, in which port the vessel sub- sequently arrived, was disavowed by the British Government. 1 Wharton's Digest, 123, 125. — Ed. CHAP, in.] KEGINA V. LESLEY. 337 REGTNA V. LESLEY. Court for Crown Cases Eeserved, 1860. {Bell's Crown Cases, 220.) The prosecutor and others were Chilians who were banished by their government from Chili to England. The government of Chili hired the defendant to take the banished men to England in his ves- sel, then lying in the territorial waters of Chili. This plan was carried out and now the defendant is prosecuted for false imprisonment.^ Ekle, C. J. : — ''In this case the question is whether a conviction for false imprisonment can be sustained upon the following facts. (Stating substantially as above.) " Then, can the conviction be sustained for that which was done within the Chilian waters ? We answer no. " We assume that in Chili the act of the government toward its subjects was lawful ; and although an English ship in some respects carries with her the laws of her country in the territorial waters of a foreign state, yet in other respects she is subject to the laws of that state as to acts clone to the subjects thereof. " We assume that the government could justify all that it did within its own territory, and we think it follows that the defendant can justify all that he did there as agent for the government and under its authority. " In Dobree v. Napier^ 2 Bing. N. C, 781', the defendant, on behalf of the Queen of Portugal, seized the plaintiff's vessel for violating a blockade of a Portuguese port in time of war. The plaintiff brought trespass; and judgment was for the defendant, because the Queen of Portugal, in her own territory, had a right to seize the vessel and to employ whom she would to make the seizure ; and therefore the defendant, though an Englishman seizing an English vessel, could justify the act under the employment of the Queen, " We think that the acts of the defendant in Chili became lawful on the same principle, and that there is therefore no ground for the conviction. " The further question remains, Can the conviction be sustained for that which was done out of the Chilian territory ? and we think it can. " It is clear that an English ship on the high sea, out of any for- ^ Sliort statement substituted for that of the report. —Ed. 22 838 JURISDICTION ON THE HIGH SEAS. [PART I. eign territory, is subject to the laws of England ; and persons, whether foreign or English, on board such ship, are as much amenable to English law as they would be on English soil. " In Eegina \. /Sattler, Dears. & Bell's C. C, 525, this principle was acted on, so as to make the prisoner, a foreigner, responsible for mur- der on board an English ship at sea. The same principle has been laid down by foreign writers on international laAV among which it is enough to cite Ortolan, ' Sur la Diplomatic de la Mer,' liv. 2, cap. 13. "The merchant shipping Act, 17 & 18 Vict. C. 104, § 267, makes the master and seamen of a British ship responsible for all offences against property or person committed on the sea out of her Majesty's do- minions as if they had been committed within the jurisdiction of the admiralty of England. " Such being the law, if the act of the defendant amounted to a false imprisonment, he was liable to be convicted. Now, as the con- tract of the defendant was to receive the prosecutor and the others as prisoners on board his ship and to take them, without their consent, over the sea to England, although he was justified in first receiving them in Chili, yet that justification ceased when he passed the line of Chilian jurisdiction and after that it was a wrong which was inten- tionally planned and executed in pursuance of the contract, amounting in law to a false imprisonment. " It may be that transportation to England is lawful by the law of Chili, and that a Chilian ship might so laAvfully transport Chilian subjects ; but for an English ship, the laws of Chili, out of the state, are powerless, and the lawfulness of the acts must be tried by Eng- lish law. " For these reasons, to the extent above mentioned, the conviction is affirmed." THE '^ BELGENLAND." Supreme Court of the United States, 1884. (114 United States Reports, 355.) This case grew out of a collision in mid-ocean between the Norwe- gian banpie J^una and the Belgian steamer lielgenltntd, in consequence of which the Luna was run down and sunk. Part of the crew of the Luna., including the captain, were rescued by the steamer and brought to Philadelphia. The captain at once libelled the Belyen- CHAP, in.] THE " BELGENLAND." 339 land. The District Court decided in favor of the UbeHant, giving a verdict for $50,000. The Circuit Court confirmed the verdict, and the libellee now appeals to the U. S. Supreme Court. Only so much of tlie case is given as refers to jurisdiction. Mr. Justice Bradley delivered the opinion of the court : ^ * * * We shall content ourselves with inquiring what rule is followed by Courts of Admiralty in dealing with maritime causes arising between foreigners and others on the high seas. " This question is not a new one in these courts. Sir William Scott had occasion to pass upon it in 1799. An American ship was taken by the French on a voyage from Philadelphia to London, and afterwards rescued by her crew, carried to England, and libelled for salvage ; and the court entertained jurisdiction. The crew, however, though engaged in the American ship, were British born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however, made the following remarks : 'But, it is asked, if they were American seamen, would this court hold plea of their demands ? It may be time enough to answer this question whenever the fact occurs. In the meantime, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case ; or conversely, if American courts were to hold pleas of this nature respecting the merits of British seamen on such occasions. For salvage is a ques- tion of jus gsntinm, and materially different from the question of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained by its own particular rules. There might be good reason, therefore, for this court to decline to interfere in such cases and to remit them to their own domestic forum ; but this is a general claim, upon the general ground of qxiantxiin 'meruit, to be governed by a sound discretion, acting on general principles ; and I can see no reason why one country should be afraid to trust to the equity of the court;? of another on such a question of such a nature, so to be determined.' The Tioo Friends, 1 Ch. Rob., 271, 278. The law has become settled very much in accord with these views. That was a case of salvage ; but the same principles would seem to apply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas between persons of different nationalities, come within the domain of the general law of nations, or communis juris, and are prima facie proper subjects of 1 Short statement substituted for that of the report and portions of the judgment are omitted. — Ed. 840 JURISDICTION ON THE HIGH SEAS. [PART I. inquiry in any court of admiralty wliicli first obtains jurisdiction of the rescued or offending sliip at the solicitation in justice of the meritorious, or injured, parties. The same question of jurisdiction arose in another salvage case which came before this court in 1804, 3Iasoii v. The J3laireau, 2 Cranch, 240. There a French ship was saved by a British ship, and brought into a port of the United States ; and the question of jurisdiction was raised by Mr. Martin, of Maryland, who, howev-er, did not press the point, and referred to the observations of Sir William Scott in T/te Two Friends. Chief Justice Marshall, speaking for the court, disposed of the question as follows : — ' A doubt has been suggested,' said he, 'respecting the jurisdiction of the court, and upon reference to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy, this court ought not to take cognizance of a case entirely between foreigners, than from any positive inca- pacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to over- balance those against it, and it is the opinion of this court, that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it.' * * * In the absence * * * of treaty stipulations, however, the case of for- eign seamen is undoubtedly a special one, when they sue for wages under a contract which is generally strict in its character, and framed according to the laws of the country to which the ship belongs ; framed also with a view to secure, in accordance with those laws, the rights and interests of the ship-owners as well as those of master and crew, as well when the ship is abroad as wlien she is at home. Nor is this special character of the case entirely absent when for- eign seamen sue the master of their ship for ill-treatment. On general principles of c6mity, Admiralty Courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so, and will require the foreign consul to be notified, and, though not absolutely bound by, will always pay due respect to, his wishes as to taking jurisdiction. But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising l)eyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are co7nrmtnis jxris, that is, wliere they arise under the connnon law of nations, special grounds should appear to induce the court to deny its aid to a foreign suitor CFTAP. III.] THE " BELGENLAND." 341 when it has jurisdiction of the ship or party charged. The exist- ence of jurisdiction in all such cases is beyond dispute ; the only question will he, whether it is expedient to exercise it. * * * In another case, Justice Story examined the subject very fully, and came to the conclusion that, wherever there is a maritime lien on the ship, an Admiralty Court can take jurisdiction on the prin- ciple of the civil law, that in proceedings in rem the proper forum is the locus rei sitce. He added : ' With reference, therefore, to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Xor am I able to perceive how the exer- cise of such judicial authority clashes with any principles of public policy.' That, as we have seen, was a case of bottomry, and Justice Stort in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said : ' In respect to maritime contracts, there is still less reason to decline the jurisdiction, for in ahnost all civilized countries these are in general substantially governed by the same rules.' Justice Story's decision in this case was referred to by Dr. Lushington with strong approbation in the case of the Golubchick 1 W. Rob., 143, decided in 1840, and was adopted as authority for his taking jurisdiction in that case. * * * A Danish ship was sunk by a Bremen ship, and on the latter being libelled, the respondents entered a protest against the jurisdic- tion of the court. But jurisdiction was retained by Dr, Lushixgtox who, amongst other things, remarked : 'An alien friend is entitled to sue (in our courts) on the same footing as a British-born subject, and if the foreigner in this case had been resident here, and the cause of action had originated infra corpus co7nitatus, no objection could have been taken. lieference being made to the observations of Lord Stowell in cases of seamen's wages, the judge said: 'All questions of collision are qaei^tionii communis juris ; but in case of mariners' wages, whoever engages voluntarily to serve on board a foreign ship, necessarily undertakes to be bound by the law of tlie country to which such ship belongs, and the legality of his claim must be tried by such law. One of the most important distinctions, therefore, respecting cases where both parties are foreigners is, whether the case he communis Juris ov not. * * * If these parties must wait until the vessel that has done the injury returned to its own country, their remedy might be altogether lost, for she might never return, and, if siie did, there is no part of the world to which they might not be sent for their redress.' 342 JURISDICTION ON THE HIGH SEAS. [PAKT I. In the subsequent case of the Griefs^cald, 1 Swabey, 430, de- cided by the same judge in 1859, which arose out of a collision betAveen a British barque and a Persian ship in the Dardanelles, Dr. LusHiNGTON" said : ' In cases of collision, it has been the practice of this country, and, so far as I know, of the European States and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable.' The subject has frequently been before our own Admiralty Courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that they will exercise it unless special circumstances exist to show that justice would be better subserved by declining it. * * * Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts ; neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one commu- nis juris^ and can generally be more impartially and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to which the litigants belong. As Judge Deadt very justly said, in a case before him in the district of Oregon: 'The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is com- mon to them both by the jus gentium is any court of admiralty within the reach of Avhose process they may both be found.' Bern- hard V. Greene^ 3 Sawyer, 230, 235. As to the law which should be applied in cases between parties, or ships, of different nationalties, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted.^ ^ See The Lannngion, 1898, 87 Fed. 752, which states and follows tiie fundamental principles of this case. — Ed. CHAP. III.] CHURCH V. HUBBART. 343 Section 18. — Municipal Seizures beyond the Three-Mile Limit. CHURCH V. HUBBART. Supreme Couht of the United States, 1804. (2 Cranch, 187.) AVhile the American vessel Aurora was between four and five leagues from the Brazilian coast she was seized by the government of Brazil for attempting to carry on illicit trade with its citizens. Maushali,, Ch. J., delivered the opinion of the court.^ As a general principle, the nation which prohibits commercial inter- course with its colonies must be supposed to adopt measures to make that prohibition effectual. They must, therefore, be supposed to seize vessels coming into their harbors or hovering on their coasts in a con- dition to trade.* * * To reason from the extent of protection a nation will afford to foreigners to the extent of the means it may use for its own security does not seem to be perfectly correct. It is opposed by principles which are universally acknowledged. The authority of a nation within its own territory is absolute and exclusive. The seizure of a vessel within the range of its cannon by a foreign force is an inva- sion of that territory and is a hostile act, which it is its duty to repel. But its power to secure itself from injury may certainly be exercised beyond the limits of its territory. Upon this principle the right of a belligerent to search a neutral vessel on the high seas for contra- band of war, is universally admitted, because the belligerent has a right to prevent the iujury done to himself by the assistance in- tended for his enemy ; so, too, a nation has a right to prohibit any commerce with its colonies. Any attempt to violate the laws made to protect this right, is an injury to itself which it may prevent, and > it has a right to use the means necessary for its prevention. These means do not appear to be limited within any certain marked boun- daries, which remain the same at all times and in all situations. * * * In different seas and on different coasts, a wider or more contracted range, in which to exercise the vigilance of tlie govern- ment of the country, will be assented to. Thus in the channel * * * 1 Statement of the case is omitted and only so much of the opinion is given as re- lates to tl'.e hgiit of the Bnuiliaii Government to seize a foreign vessel so situated. — Ed. 34-4 JURISDICTION ON THE HIGH SEAS. [PART T. the seizure of vessels on suspicion of attempting an illicit trade must necessarily be restricted to very narrow limits, but on the coast of South America, seldom frequented by vessels but for the purpose of illicit trade, the vigilance of the government may be ex- tended somewhat further. * * * The right of the Spaniards was supposed to be exercised un- reasonably and vexatiously, but it never was contended that it could only be exercised within the range of the cannon from their bat- teries. Indeed, the right given to our own revenue cutters, to visit vessels four leagues from our coast, is a declaration that in the opinion of the American government, no such principle as that con- tended for, has a real existence.^ 1 Mr. Dana, in speaking of tiiis decision (Dana's Wlieaton, 259, note), saj's, as to the assertion tliat the seizure of a vessel four leagues from tlie coMst does not render the seizure invalid, " this remark must now he treated as an unwarranted admission. ... It may he said tiiat the j)rinciple is settled, that municipal seizures cannot he made, for any purpose, heyond territorial waters. It is also settled, tliat the limit of these waters is, in the absence of treaty, the marine league or the cannon-shot. It cannot now be successfully maintained, either that municipal visits and search may he beyoiul the territorial waters for special purposes, or tliat there are different bounds of that territory for different objects. ... In tlie earlier cases, the courts were not strict as to standards of distance, where no foreign powers intervened in the causes. In later times, it is safe to infer that judicial as well as political tribunals will insist on a line of marine territorial jurisdiction for the exercise of force on foreign vessels in time of peace for all purposes alike." There still stands upon the statute book of the United States a law passed in 1799 authorizing their revenue officers to stop and visit foreign vessels four leagues from the coast. The British " Hovering Act," passed in 1734, and which doubtless suggested the American act, contained a similar provision. But this, says Mr. Boyd (Boyd's Wlieaton, 241), has long since been repealed. "The present custom's legislation makes a distinction as regards the extent of jurisdiction claimed for revenue purposes, between ships belonging to British subjects and ships belonging to foreigners." There is no longer any autiiority under English laws to visit a foreign vessel beyond the three-mile limit. See Custom's Consolidations Act, 1876, Sec. 134. See further on this subject, the case of Hose v. Himeli/, 1808, 4 Cranch, 241, in which the Supreme Court of the United States held that a seizure, under customs regulations, of a foreign vessel be^'ond the territorial waters of a State, was not valid : See, also, the case of Hudson v. Guestiev, 1810, 6 Cranch, 281; The Apollon, 1824, 9 Wheat. 362. In The Itata (United States and Chilean Claims Commission, convention of Aug. 7, 1892), 3 Moore, Int. Arb. 3007-3071, the question of seizure in foreign juris- diction for violation of our neutrality laws was carefully considered. The judgment was as follows: "After an examination of many authorities on international law, and numerous decisions of courts, we are of opinion that the United States committed an act for which they are liable in damages and for which they should be held to answer." For facts of the case, see U. S. v. Trumbull, in/ni, 731. — Ed. CHAP, III.] OPINION OF SIR LEOLINE JENKINS. 3i5 Section 19. — Piracy. OPIXIOX OF SIE LEOLIXE JEXKINS. Charge to the Jury, 1GC8. [Life of Sir Leoliiie Jenkins, I., LXXXVI.) " There are some sorts of felonies and offences, which cannot be committed anywliere else but upon the sea, within the jurisdiction of the Admiralty. These I shall insist upon a little more particu- larly, 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 humam 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 commissioned, and is to be armed against them, as agauist 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. Xow robbery, as 'tis dis- tinguished 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, "^^■ithout a lawful commission of war or reprisals, it is down- right 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 murdered 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 published, 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." ^ ' For the leading case of U. S. v. Smith, 1820, 5 Wlieat. 153, see § 1, si/pm. — Ed. 346 JURISDICTION ON THE HIGH SEAS. [PART I. UNITED STATES y. THE " A:\IBR0SE LIGHT." United States District Court for So. Dist. of N. Y., 1885. (25 Federal, 408.) The libel in this case was filed to procure the condemnation of the brig Ainhrose Light, which was brought into this port as prize on June 3, 1885, by Lieut. "Wright and a prize crew, detached from the L^nited States gun-boat Alliance, under Commander Clarke, by whose orders the brigantine had been seized on the twenty-fourth of April. The seizure was made in the Caribbean sea, about twenty miles to the westward of Cartagena. The commander was looking for the insurgent Preston, by whose order Colon had shortly before been fired, to the great loss and injury of our citizens. Observing the brigantine displaying a strange flag, viz. , a red cross on a white ground, he bore down upon her, and brought her to by a couple of shots across her bows. Before coming to, she exhibited the Colombian flag. On examination, some sixty armed soldiers were found concealed below her decks, and one cannon was aboard, with a considerable quantity of shot, shell, and ammunition. Preston was not found. Her papers purported to commission her as a Colombian man-of-war, and read as follows : (Translation.) " I, Pedroa Lara, governor of the province of Barranquilla, in the state of Bolivia, in the United States of Colombia, with full powers conferred by the citizen president of the state, I give to whom it may concern this ^>a.w facto become such, it would have been futile to name them in all of these acts as a class distinct from our citizens. That Congress has, by various special 394 NATIONALITY. [PART I. acts, many of which are referred to in the opinion of Chief Justice Fuller in Boyd v. jS^ebt'aska, li3\J.S.15S, 12 Sup. Ct. Rep. 375, natural- ized certain classes of persons who had not complied with the terms of the general laws on this subject, is not important here, because the plaintiff is not a member of any class thus naturalized. Nor is the decision in Boyd v. Nebraska, supra, in point in this case, because Gov- ernor Boyd was there held to be one of a class of foreign -born residents that was naturalized by the acts of Congress admitting the State of Nebraska into the Union. These acts conferred the rights of citizen- ship upon foreign-born residents of Nebraska who had declared their intention to become citizens. The plaintiff was a resident of Minnesota. A single argument remains to be noticed, and that is that the State of Minnesota has conferred on plaintiff the elective franchise, the right to hold any office in its gift, and, in reality, all the rights and privi- leges of citizenship in its power to bestow ; and therefore it is said he is a citizen of that State, and not a foreign subject, and the Federal court has no jurisdiction of this action. It may be conceded that a State may confer on foreign citizens or subjects all the rights and privileges it has the power to bestow, but, when it has done all this, it has not naturalized them. They are foreign citizens or subjects still, within the meaning of the Constitution and laws of the United States, and the jurisdiction of the Federal courts over controversies between them and citizens of the States is neither enlarged nor restricted by the acts of the State. The power to naturalize foreign subjects or citizens was one of the powers expressly granted by the States to the national government. By section 8, art. 1, of the Constitution of the United States, it was provided that " the Congress shall have the power to establish a uniform rule of naturalization." Congress has exercised this power, established the rule, and expressly declared that foreign- born residents may be naturalized by a compliance Avith it, and not otherwise. This power, like the power to regulate commerce among the States, was carved out of the general sovereign power held by the States when this nation was formed and granted by the Constitution to the Congress of the United States. It thus vested exclusively in Congress, and no power remained in the States to change or vary the rule of naturalization Congress established, or to authorize any foreign subject to denationalize himself, and become a citizen of tlie United States, without a compliance with the conditions Congress had pre- scribed. Dred Scott v. Sandford, 19 How. 393, 405; Slaughter House Cases, 16 Wall. 36, 73; 2nnor v. Happersett, 21 How. 162; Boyd v. Ne- hraska, 143 U. S. 135, 160, 12 Sup. Ct. Rep. 375. In like manner, the States granted to the judiciary of the nation the power to determine a controversy between a State or citizens thereof CHAP. IV.] CITY OF MINNEAPOLIS V. REUM. 395 and foreign states, citizens, or subjects (Const. U. S. art. 3, § 2), and Congress conferred that power upon the circuit courts. The extent of the jurisdiction of those courts is measured by the Constitution and the acts of Congress. A foreign-born resident, who has not been naturalized according to the acts of Congress, is not a "citizen" of the United States or of a State, within the definition given by the Four- teenth Amendment to the Constitution, but remains a foreign subject or citizen ; and any controversy between liim and a citizen of a State which involves a sufficient amount is thus clearly Avithin the jurisdic- tion of the circuit courts, under any fair construction of the Constitu- tion and laws of the United States. The jurisdiction thus conferred ic is not in the power of any State, by its legislative or other action, to take away, restrict, or enlarge, and the action of the State of Min- nesota regarding the citizenship of the plaintiff was not material in this case. Toland v. Sprague^ 12 Pet. 300, 328 ; Cowless v. Mercer Co., 7 Wall. 118; Railway Co. v. Whitton, 13 Wall. 270, 286; Phelps v. Oaks, 117 U. S. 236, 239, 6 Sup. Ct. Eep. 714; O'Connell v. Reed, 56 Fed. Rep. 531. The result is that the power granted to Congress by article 1, § 8, of the Constitution of the United States, to establish a uniform rule of naturalization, is exclusive ; and the naturalization laws enacted by Congress in the exercise of this power constitute the only rule by ■which a foreign subject may become a citizen of the United States or of a State, within the meaning of the Federal Constitution and laws. It is not in the power of a State to denationalize a foreign subject who has not complied with the Federal naturalization laws, and constitute him a citizen of the United States or of a State, so as to deprive the Federal courts of jurisdiction over a controversy between him and a citizen of a State, conferred upon them by article 3, § 2, of the Constitution of the United States, and the acts of Congress. A foreign subject who is qualified to become a citizen of the United States, under section 2167 of the Revised Statutes, does not become such by filing his declaration of intention so to do. That section re- quires that he shall renounce allegiance to the sovereignty of which he he is a subject, take the oatli of allegiance to th'.' United States, and comply with the other conditions prescribed in the second and third paragraphs of section 2165 of the Revised Statutes, in order to become naturalized ; and until he does so he remains a foreign subject. The court below was right in denying the motion to dismiss this action for want of jurisdiction, and the judgment below is affirmed, with costs.^ 1 According to Boyd v. Thayer, 1891, 143 U. S. 1.35, p. 162, "Naturalization is the act of adopting a foreigner, and clothing him with the privileges of a native citizen. 396 NATIONALITY. [PART I. In Re MOSES. United States Circuit Court, S. D. New York, 1897. (83 Federal, 995.) Petition of Marcus Moses for writ of habeas corjius. Lacombe, Circuit Judge. The act of Aug. 18, 1894, c. 301 (28 Stat. 390), provides that: *' In every case where an alien is excluded from admission into the United States under any law or treaty now existing or hereafter made, the decision of the appropriate immigration or custom officers, if ad- verse to the admission of such alien, sJiall be final, unless reversed on appeal to the Secretary of the Treasury." If, therefore, the petitioner's wife and children are " aliens," this court cannot inquire into the correctness of the decision of the immi- gration officers. Lem Moon Sutg v. U. S., 158 U. S. 540, 15 Sup. Ct. 967. In other words, the only jurisdictional facts which it is necessary * * *. Congress, in the exercise of the power to establish a uniform rule of naturaliza- tion, has enacted general laws under which individuals may be naturalized, but the instances of collective naturalization by treaty or by statute are numerous. * * * Manifestly the nationality of tiie inhabitants of territory acquired by conquest or cession becomes that of the government unde-r wliose dominion they pass, subject to the right of election on their part to retain tlieir former nationality by removal or otherwise, as may be provided." The learned Chief Justice proceeds to an enumera- tion of the many instances of CviUective naturalization in our history. A much shorter and more recent discussion of the subject (collective naturalization on annexation of Texas) is found in Cuntzen v. U. S., 1900, 179 U. S. 191-196. See, also, Behrensmeyer V. Kreitz, 1891, 135 111. 591. Chancellor Kent said, in considering the subject of naturalization ; " Perhaps there might be difficulties also as to the copper-colored natives of America, or the yellow or tawney races of Asiatics, and it may well be doubted whetlier any of them are white persons, witliin the purview of the law." (2 Com. 73.) The act of Congress of May 6, 1882, removed the doubt as to " the yellow or tawny races of Asiatics " by providing " that hereafter no State court or court of the United States shall admit Chinese to citizenship ; and all laws in conflict with this act are hereby repealed." (22 Stat. 61 ; In re Saito, 1894, 02 Fed. 126.) The African is covered by section 2109 of the Revised Statutes: "The provisions of this title shall apply to aliens (being free white persons, [In re Cynk. p. 127. Agreeably to this statement {Lord Camden v. Home, 4 Term R. 387), we find that Sir William Scott granted a munition against the master and owner of a privateer not commissioned against the Dutch, to bring in proceeds of a Dutch prize. The party appearing acknowl- edged that he had no commission, but prayed to be admitted as a joint captor. The court did not even suffer the case to be argued, but observed: "The person admits that he had no commission. It is therefore impossible for him to contend for a legal interest in joint capture. If hs thinks he has any equitable claims, arising from any service he has performed, they may be represented to the admiralty. The former proceedings (of condemnation at Jamaica) on the part of the non-commissioned captor are mere nullities; and the property must be proceeded against as droits of admiralty." 4 C. Rob. Adm. 72. The case of the Eebeckah, which was a question of interest in the capture of a vessel made by naval officers from the island of St. Marcou, a naval station, used for the temporary accommodation of the crews of ships of war, gave occasion to remarks from Sir William Scott, very applicable to the case now before me. "1 accede," saj-s he, " entirely to what has been laid down, that a capture at sea, made by a force upon land (which is a case certainly possible, though not frequent), is considered generally as a non-commissioned capture, and inures to the benefit of the lord high admiral. Thus, if a ship of the enemy was compelled to strike by a firing from the castle of Dover, or other garrisoned fortress upon land, that ship would be a droit of admiralty, and the garrison must be content to take a reward from the bounty of the admiralty, and not a prize interest, under the king's proclamation. All title to sea-prize must be derived from commissions under the admiralt}', which is the great fountain of maritime authority; and a military force upon the land is not in- vested with any commission so derived, impressing on them a mari- time character, and authorizing them to take, upon that element, for their own benefit. I likewise think cases may occur in which naval persons, having a real authority to take upon the sea for their own advantage, might yet entitle the admiralty, and not themselves, by a capture made upon the sea, by the use of a force stationed upon the land. Suppose the crew, or part of the crew, of a man-of-war were landed, and descried a ship of the enemy at sea, and that they took possession of any battery or fort upon the shore, and by means thereof, compelled such ship to strike. I have no doubt that such a capture, though made by persons having naval commissions, yet being 470 MEASURES SHORT OF ACTUAL WAR. [PART IT. made by means of a force vipon the land, would be a droit of admi- ralty, and nothing more." C. Rob. Adm. 227. The only question, then, which remains to be considered is, have the laws of the United States given to the military any share in prizes taken by troops so circumstanced? As to the laws of the United States respecting property captured by the public force, the most material is the act of the 23d April, 1800, for the better government of the navy. This act gives to the captors the proceeds of vessels and goods taken on board of them when adjudged good prize. But this act is a law expressl}^ for the government of the navj' of the United States; and, indeed, it does not appear to be contended that it can by any rule of construction be extended to the army. Private commissoned vessels, in like manner, deserve their right to appropriate to themselves the prizes they make, from the "act concerning letters of marque, prizes, and prize goods," passed on the 26th day of June, 1812. This act, after stating the conditions on which authority should be given to our vessels to cap- ture the vessels and property of the enemy, proceeds to vest the same, when taken under such authority, in the owners, officers, and crews of the vessels by which prizes should be made. 11 Laws (Weightman's ed.), p. 240 (2 Stat. 759). Had it been the intention of the govern- ment that non-commissioned vessels should be entitled to the proceeds of prizes made, or that any person in the employ of the United States, and not belonging to the navy or marines, should be entitled to the benefit of all enemy's property taken by them, it would surely have been natural that such intention should have been expressed in these or some other legislative acts. Moreover, indeed, it does not appear what occasion there could be to provide regulations and bonds for the government and good conduct of vessels applying for commissions to make prizes; if all vessels of any description were authorized to take and to appropriate to their own use the property of the enemy, merely because, as it hath been contended, the fortune of war had thrown it in their way. In the whole view of the case, therefore, now before the court, it is adjudged and decreed, that the plea be overruled, and dismissed, with costs in court occasioned by the plea, and that the schooner Active and cargo be condemned as good and lawful prize of the United States. Davis, J., in Dole v. Merchanfs Mutual Marine Ins. Co., 1863, 51 Maine, 465, 470. That they were liable to be regarded as "enemies," is undoubtedly true. This implies the existence of "war." But every forcible contest between two governments, de facto or dejure, is war. War is an existing /aci, and not a legislative decree. Con- gress alone may have power to "declare" it beforehand, and thus CHAP. I.] THE " TEUTONIA." 471 cause or commence it. But it may be initiated by other nations, or by traitors; and then it f^-isfs, whether there is a declaration of it or not. It may be prosecuted without any declaration ; or Congress may, as in the ^lexican war, declare its previous existence. In either case it is the fact that makes "enemies," and not any legislative act.^ THE "TEUTOXIA." PravY Council, 1870. {Law Reports, 4 Privy Council, 171.) Lord Justice Mellisii. "This is an appeal in a cause instituted under the 6th section of the Admiralty Court Act, 1861, on behalf of Messrs. Duncan, Fox & Co., the consignees of a bill of lading of the cargo laden on board the ship Teutonia, against that ship and her freight, and against the owner of the vessel. The Teutonia ^vas a Prussian brig, subject to the laws of Prussia, and her master and crew were subjects of the King of Prussia. And by the charter-party referred to in the bill of lading it was agreed that, "after receiving on board the said cargo, the said vessel shall proceed either to Cork, Cowes, or Falmouth, at the option of the master, where he shall receive orders from charterer's agents within three days after his arrival to proceed to any one safe port in Great Britain or on the Continent between Havre and Hamburgh, both included, and there, according to bills of lading and charter- party, deliver the cargo, the act of God, the Queen's enemies, fire, and all and every other risk, dangers, and accidents of the seas, rivers, and navigation of whatever nature and kind soever ex- cepted, freight to be paid in manner herein mentioned on a true and right delivery of the cargo in the port of discharge at and after the rate of 45s. British sterling per ton." The vessel arrived at Falmouth on lOtli of July ; and the master, whilst there, heard rumours that war was probable between France and Prussia. On the 11th of July, the master received orders from the consignees to discharge the cargo at Dunkirk ; and he at once set sail for Dunkirk, and arrived at a distance of about fourteen miles off that port, at 12 o'clock at night of the 16tli, which was a Saturday ; and the master says that, after lying to for about two 1 For the twofold division of liostilities into "perfect" and "imperfect" war, see Bas V. Tinf],!, 1800, 4 Dall. 37, ciied in Gray's Adm. v. U. S., 188G, 21 Ct. CI. 340, § 24. ante, and Talbot v. Seeman, 1801, 1 Cr. 1. — Ed. 472 MEASURES SHORT OF ACTUAL "^AR. fPART TI. hours, a regular pilot, in official uniform, came on board ; that he asked the pilot about the "war ; that the pilot told him it had been declared two daj's ago; that he asked the pilot where he could bring-to in safet}', so that he might ascertain whether war was act- ually declared or not ; that the pilot offered to take him to Flushing, or the Downs, or wherever he liked. The master elected to go to the Downs; and he anchored there on Sunday morning, the 17th, at 10 o'clock. He says, that on that day he could obtain no advice or information ; that on the Monday, the 18th, he was on shore at Deal, and the German consul told him that war had broken out. He telegraphed to the owner, who was his father, and received an answer, forbidding him to go to Dunkirk ; and on Tuesday the 19th he took the ship into Dover, as the nearest port. On the same 19th of July, the French declaration of war was delivered to the Prussian Government at Berlin, which was known the same day by telegraph in England. On the 23d of July, an agent of the plaintiffs went to Dover, and required the master to proceed to Dunkirk, which he refused to do. Afterwards, on the 1st of August, the plaintiffs required the master to deliver them the cargo at Dover, which he refused to do unless he was paid his freight. Under these circumstances, the plaintiffs allege that the master has committed two breaches of contract or duty : first in refusing to proceed to, and deliver the cargo at, Dunkirk ; and secondly, they complain that, when the performance of the contract became impos- sible, and the contract was, as they allege, dissolved by the war, the master was not justified in refusing to deliver the cargo to the plaint- iffs at Dover without payment of freight. The first question to be considered is, whether the master was bound to have entered the port of Dunkirk on the 17th of July ; and on that question, the learned Judge (Sir R. Phillimore) in the court below has found that on the 16th of Juh^, the Teutonia could not have entered the port of Dunkirk with her cargo without being exposed to the penalties of trading with the enemy of her country ; but that, if this was an erroneous application of the law to the facts at that date, the circumstances justified the master in pausing and making further inquiries as to the existing relations between his own coun- try and France, and that he did not exceed the limits of a reasonable time in making the inquiry. Their Lordships have great difficulty in agreeing with the learned Judge that the Teutonia could not hftve entered Dunkirk without being exposed to the penalties of trading with the enemy of its country on the IGth of July. There does not appear to their CHAP. I.] THE '' TEUTOXIA." 473 Lordships to be any satisfactory evidence tliat a state of M'ar existed between France and Prussia prior to the 19th of July. Their Lordships do not think tliat either tlie declaration made by the French Minister to the French Chambers on the IGth of July, or the telegram sent by Count Bismarck to the Prussian Am- bassador in London, in which he states that that declaration appears to be equal to a declaration of war, amounts to actual declaration of war. And though it is true, as stated by the learned Judge, that a war may exist de facto without a declaration of war, yet it appears to their Lordships that this can only be effected by an actual com- mencement of hostilities, which, in this case, is not alleged. It is, however, unnecessary further to consider this part of the case, because their Lordships agree with the learned .Judge that the master of the Teutonia., wiien he was informed, on his arrival off Dunkirk, by the pilot, although incorrectly, that war had been actually declared two days before, was entitled to pause and to take a reasonable time to make further inquiries, and that he did not exceed the limits of a reasonable time in making inquiries. If the master had entered Dunkirk, and it had turned out that war had been previouslj^ declared, he w^ould have entered it with notice that he was entering an enemy's port, and this would have obviously exposed his ship to condemnation, and might have exposed himself to severe penalties when he returned to his own country. It seems obvious that, if a master receives credible information that, if he continues in the direct coarse of his voyage, his ship will be exposed to some imminent peril, as, for instance, that there are pirates in his course, or icebergs, or other dangers of navigation, he must be justified in pausing and deviating from the direct course, and taking any step which a prudent man Avould take for the purpose of avoiding the danger. And their Lordships agree, if authority was wanting, that the case of Pole v. Cetcovitch, 9 C. B. (n. s.), 430, is an authority in point. It was argued, however, on the part of the appellants, that, to justify this course, both ship and cargo must be exposed to a common peril, whilst in the present case the cargo, being the property of a neutral owner, would have been in no danger from being carried into a French port, and it was argued that though a master nn'ght be justified in deviating from the direct course of the voyage for the purpose of avoiding a danger to which both ship and cargo were exposed, although it might after- wards turn out that the information upon which the jnaster acted was incorrect, yet that if the reported danger was a danger to the ship alone, the master would commit a breach of contract by deviat- ing from the direct course of the voyage unless the danger actually 474 MEASURES SHORT OF ACTUAL WAR. [PART II. existed, and tlie master could allege that he was prevented by one of the perils excepted in the bill of lading from pursuing his voyage in the direct course. It nppears to their Lordships, however, that there is no sound ground for this distinction; if the cargo had been a Prussian cargo it would have been exposed to the same danger as the ship from entering the port at Dunkirk, and it appears to their Lordships that when an English merchant shijis goods on board a foreign ship, he cannot expect that the master will act in any respect differently towards his cargo than he would towards a cargo shipped by one of his own country, and that it cannot be contended that the master is deprived of the right of taking reasonable and prudent steps for the preservation of his ship, because from the accident of the cargo not belonging to his own nation, the cargo is not exposed to the same danger as the ship. On the whole, therefore, tlieir Lordships are of opinion, on this part of the case, that the master was justified in going to the Downs for the purpose of ascertaining whether war had actually been declared ; and tliey also entirely agree with the opinion of the learned Judge, that the master was guilty of no unreasonable delay in not returning to Dunkirk before war was actually declared on the 19tli of July. [The Lords next consider " Whether the master was bound to deliver the cargo at Dover without any payment in respect of freiglit?" The decision is made in accordance with English lav/, and, in sub- stance, is as follows : While the breaking out of the war did render it illegal for the Teutonki to enter a French port, yet the contract, mider the particular terms of the charter-party, could be legally per- formed by the delivery of the cargo at some of tlie other ports men- tioned in the charter-party — that the contract was not dissolved by the impossibility of delivering the cargo at Dunkirk, and that the ship-owner had not lost his chartered freight nor his lien for it at the time when the cargo was demanded at Dover.] ^ 1 In the case of The Panama, decided at tlie same time as the Buena Ventura, 1808, 87 Fed. 927, 933, Locke, J., said : " The Panama sailed from New York before the "ilst of April, 1898, and was upon the high seas at that time and at the time of capture. The fact that there had been no formal proclamation or declaration of war before she had saileil or at the time she was captured, or that she had at a recent date left a port of the United States, cannot be considered as exempting her from the liabilitv of an enemy's property to capture, unless coming directly within the langua^'e of tiie President's proclamation. Tlie practice of a formal proclamation before recog- nizing an existing war and capturing enemy's property has fallen into disuse in m idern times, and actual hostilities may determine the date of the commencement of war, although no proclamation may have been issued, no declaration made or no action CHAP. I.] THE PRIZE CASES. 475 THE rPJZE CASES. Supreme Court of the Uxited States, 1862. (2 Black, 665.) Mr. Justice Grier.^ "There are certain propositions of law wiiich must necessarily affect the ultimate decision of these cases, and many others, which it will be proper to discuss and decide before "we notice the special facts peculiar to each. "They are, 1st. Had the President a right to institute a block- ade of ports in possession of persons in armed rebellion against the government, on the principles of international law, as known and acknowledged among civilized states? "2d. Was the property of persons domiciled or residing within those States a proper subject of capture on the sea as 'enemies' property? ' "I. iSTeutrals have a right to challenge the existence of a block ade de facto, and also the authority of the party exercising the right to institute it. They have a right to enter the ports of a friendly of tlie legislative department of tlie government had. This date has been declared by tlie act of Congress of April 25, 1808, and by the proclamation of the President of the next day to have been April 21, 1808, including that day, so that any Spanish property afloat, captured from that time, became liable to condemnation, unless exempt by the executive proclamation." [Articles 4 and 5.] Tiiis case was affirmed on appeal, The Panama, 1899, 176 U. S. 535. While formal declaration is clearly unnecessary to create war and the rights and obligations arising from such a status, it is of the gravest importance that it should be known as soon as possible to belligerents and neutrals alike. Tlie parties to the war necessarily submit to its hardships and inevitable consequences with or without formal declaration, but inasmuch as war affects and seriously limits tlie rights and privileges of neutrals for the exclusive benefit of the belligerents : liability to confiscation for carrying contraband ; inhibition to trade with blockaded ports ; the subjection of neutral commerce on the high seas to visit and search, as will sufficiently appear later, it would be thoughtle.^sness or indifference amounting to bad faitli if the belligerents failed to inform the neutrals of the existence of war. As a matter of fact, " there have been only eleven formal declarations of war be- tween civilized states since 1700, whereas the present century has seen over sixty words or acts of reprisal begun without formal notice to the power attacked." Law- rence's Int. Law, 800. See Hall's Int. Law, 391-399 ; Owen, Declaration of War, 1899. No formal declaration of war by Congress, nor proclamation by tlie President Is necessary to define and characterize an Indian war; it is sufficient if hostilities exist and military operations are carried on. Alire's Case, 1865, 1 Ct. CI. 233, 238; Marks v. U. S., 1893, 28 Ct. CI. 147. — Ed. 1 Statement of the facts is omitted. The second part of the opinion is given in § 32, infra. — Ed. 476 MEASURES SHORT OF ACTUAL WAR. [PART II. nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion, for the purpose of subduing the enemy. That a blockade de facto actually existed, and was formally de- clared and notified by the President on the 27tli and 30tli of April, 1861, is an admitted fact in these cases. Tliat the President, as the Executive Chief of the Government and Commander-in-chief of the Army and Navy, was the proper person to make such notification, has not been, and cannot be dis- puted. The right of prize and capture has its origin in the '■jus helU^ and is governed and adjudged under the law of nations. To legiti- mate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory, in x^ossession of the other. Let us inquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force. AVar has been well defined to be, "That state in which a nation prosecutes its right by force." The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign states. A war may exist where one of the belligerents claims sovereign rights as against the other. Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the Government. A civil war is never solennily declared ; it becomes such by its acci- dents — the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory ; have declared their independence ; have cast off their allegiance ; have organized armies ; have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a u-ar: Thei/ claim to be in arms to establish their liberty and independence, in order to become a sovei-eign state, Avhile the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished Avith death for their treason. The laws of war, as established among nations, have their foundation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil CHAP. I.] THE PRIZE CASES. 477 war usually concede to each other belligerent rights. They exchange prisoners, and adopt the other courtesies and rules common to public or national wars. "A civil war," says Vattel, "breaks the bands of society and gov- ernment, or at least suspends their force and effect ; it produces in the nation two independent parties, who consider each other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. " This being the case, it is very evident that the common laws of war — those maxims of humanity, moderation, and honor — ought to be observed by both parties in every civil war. Should the sovereign conceive he has a right to hang up his prisoners as rebels the opposite party will make reprisals, etc., etc.; the war will become cruel, horrible, and every day more destructive to the nation." As a civil war is never publicly proclaimed, eo nomine against insurgents, its actual existence is a fact in our domestic history which the court is bound to notice and to know. The true test of its existence as found in the writing of the sages of the common law, may be thus summarily stated: ''When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil icar exists and hostilities may be prosecuted on the same footing as if those opposing the Govern- ment were foreign enemies invading the land." By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution. The Constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Connnander-in-chief of the Army and Xavy of the TTnited States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States. If a M'ar be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not 478 MEASURES SHORT OF ACTUAL WAR. [PART II, initiate the war, but is bound to accept the challenge without wait- ing for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be ' unilateral.' Lord Stowell (1 Dodson, 247) observes, " It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A decla- ration of war by one country only, is not a mere challenge to be ac- cepted or refused at pleasure by the other." The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the Act of Congress of May 13th, 1846, which recognized "rt state of roar as existin?J^^■s ratihahitio retrotrahitur, et inandato equqxiratur^''^ this ratification has operated to perfectly cure the defect. In the case of -Brown v. United States (8 Cr., 131, 132, 133), Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, " I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?" Although Mr. Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority. The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law. On this first question, therefore, we are of opinion that the Presi- dent had a right, Ji^re belli, to institute a blockade of ports in posses- sion of the States in rebellion, which neutrals are bound to regard. ^ 1 In Miller V. U. S., 1870, 11 Wall. 2G8, 307-8, Mr. Justice Strong said : " War exist- ing, the United States were invested with belligerent rights in addition to the sovereign powers previously held. Congress had then full power to provide for the seizure and confiscation of any property which the enemy or adherents of the enemy could use for the purpose of maintaining the war against the government. It is true the war was not between two independent nations. But because a civil war, the government was not shorn of any of those rights that belong to belligerency. Mr. Wheaton, in his work on International Ltiw (§ 296), asserts the doctrine to be that ' the general usage of nations regards such a war as entitling both the contending parties to all the rights of war as against each other and even as it respects neutral nations.' It would be absurd to hold that, while in a foreign war enemy's property may be captured and confiscated as a means of bringing the struggle to a successful completion, in a civil war of equal dimensions, requiring quite as urgently the employment of all means to weaken the belligerent in arms against the government, the right to confiscate tJie property that may strengthen such belligerent does not exist. There is no such dis- tinction to be made. Every reason for tlie allowance of a right to confiscate in case of foreign wars exists in full force when the war is domestic or civil. In the Amy Witrwick-, 2 Sprague, 12o, and in tlie Prize Cases, 2 Black, G73, it was decided that in the war of the rebellion the United States sustained the double character of a bel- ligerent and a sovereign, and had the rights of both. Rose v. Himely, 4 Cranch, 272 ; Cherriot v. Foussat, 3 Binney, 252 ; Dobree v. Napier, 3 Scott, 225; Santissima Trinidad, 7 Wheaton, 30G ; United States v. Palmer, 3 Wheaton, 635." To the same effect, CHAPTER II. EFFECTS OF WAR AS BETWEEN ENEMIES. Section 27. — Enemy's Property within the Territory and Debts DUE to the Enemy. HAMILTON V. EATOK Circuit Court of the Central States, N. Carolina District, 1706. (2 Martin's N. Carolina Reports, 83.) Ellsworth, C. J.^ It is admitted that the bond on which this suit is brought, was executed by the defendant to the plaintiffs ; and that the plaintiffs have not been paid. But the defendant pleads, that since the execution of the bond a war has existed, in which the plaintiffs Tyler v. Defrees, 1870, 11 Wall. 331, 345, reiterating the doctrine and afBrming the judgment of Miller v. U. S. In StovalPs Adm'r v. U. S., 18f)l, Ct. CI. 226, 240, Chief Justice (then Justice) Nott, said : "It has been held in an unbroken series of decisions (from the Prize Cases, in 1 Black's Reports to Young, Assignee of Collie, in 97 U. S. Reports) that the civil war in all hostile operations must be regarded as international, and that ' all property within enemy's territory is in law enemy's property, just as all persons in the same territory are enemies.' Chief Justice Waite, 97 U. S. R. 60. When the United States ac- corded to the Confederate States the rights of a belligerent they became a hostile power and their inhabitants public enemies. The obligations of the Constitution do not extend across military lines nor into hostile territory. The law which governed the transactions of the civil war was not constitutional law, but international. It has been closely adhered to ; so closely, that under the decisions of the court of last resort the loyal citizens of the North were practically e.xcluded from the benefits of the Captured Property Act, and after non-intercourse began could do nothing to save their property in the South from Confederate confiscation ; and though they acted in good faith, with no purpose to aid the rebellion, seeking simply to save their own property in the Soutli by directing its investment there — sending nothing into the insurgent districts and bringing nothing out, but leaving the resources of the rebellion precisely as they found them — their acts were held to be intercourse between enemies, and the investments of their agents illegal and void. Grossinayer's Case (9 Wall. R. 72) ; Dillon (5 Ct. CI. 1 Statement of facts omitted and only the opinion of Chief Justice Ellsworth is given, — Ed. 31 482 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. were enemies; and that during the war this debt was confiscated and the money paid into the treasury of the State. And the plaintiffs reply, that by the treaty which terminated the war, it was stipulated, that " creditors on either side should meet with no lawful impediment, to the recovery of bona fide debts heretofore contracted." Debts contracted to an alien are not extinguished by the interven- tion of war with his nation. His remedy is suspended while the war lasts, because it would be dangerous to admit him into the country, or to correspond with agents in it ; and also because the transfer of treasure from the country to his nation, would diminish the ability of the former, and increase that of the latter, to prosecute the war. Bat with the termination of hostilities, these reasons and the suspension of the remedy cease. As to the confiscation here alleged it is doubtless true, that enemy's property so far as consists in barring the creditor, and compelling pay- ment from the debtors for the use of the public, can be confiscated; and that on principles of equity, though perhaps not of policy, they may be. For their confiscation as well as that of property of any kind, may serve as an indemnity for the expenses of war, and as a security against future aggression. That such confiscations have fallen into disuse, has resulted not from the duty which one nation, independent of treaties, owes to another, but from commercial policy, which European nations have found a common, and indeed a strong interest, in supporting. Civil war, which terminates in a severance of empire, does, perhaps, less than any other, justify the confiscation of debts; because of the special relation and confidence subsisting, at the time they were con- tracted, and it may have been owing to this confiscation as well as others, that the American States, in the late revolution, so generally forbore to confiscate the debts of British subjects. In Virginia, they were only sequestered ; in South Carolina, all debts to whomsoever due were excepted from confiscation ; as were in Georgia, those of " British R. 586. Affirmed witliout opinion); Cntner (17 Wall. R. 617); Lapene (id. 601); Montgomery (16 id. Sito) ; Stoddard (6 id. 340)." Of the many State cases, Hubbard v. Ilomden Express Co., 1872, 10 R. I. 244, gives an exhaustive survey of relation of insurgent to legitimate government ; Smith v. Braze/ton, 1870, 1 Heisk.44, summarizes the autliorities in a singularly interesting and felicitous manner. Article III., § of the Constitution declares tliat "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving tliem aid and comfort. No person sliall be convicted of treason unless on tlie testimony of two witnesses to the same overt act, or on confession in open court." For the judicial construction of this section and the terms emploj-ed in the definition, see U. S. V. Greathouse and others, 1863, 4 Sawy. 457. The same case is given in abbreviated form in McClain's excellent Cases on Constitutional Law, 641. — Ed. CHAP. II.] HAMILTON V. EATON. 483 merchants and others residing in Great Britain." And in the other States, except this, I do not recollect that British debts were touched. Certain it is, that the recommendation of Congress on the subject of confiscation did not extend to tliem. North Carolina, however, judg- ing for herself, in a moment of severe pressure, exercised the sovereign power of passing an act of confiscation, which extended, amongst others, to the debts of the plaintiffs. Providing, however, at the same time, as to all debts which should be paid into the treasury, under that act, that the State would indemnify the debtors, should they be obliged to pay them. Allowing, then, that the debt in question was in fact of right con- fiscated, can the plaintiffs recover by the treaty of 1783 ? The fourth article of that treaty is in the following words : "It is agreed that creditors on either side shall meet with no lawful impedi- ment to the recovery of the full value in sterling money, of all bona Jide debts heretofore contracted." There is no doubt the debt in question was a " bona Jide " debt, and theretofore contracted, i. e., prior to the treaty. To bring it within the article, it is also requisite that the debtor and creditors should have been on different sides, with reference to the parties to the treaty, and as the defendant was confessedly a citizen of the United States, it must appear that the plaintiffs were subjects of the King of Great Britain; and it is pretty clear, from the pleadings and the laws of the State, that they were so. It is true that on the 4th of July, 1776, when Xorth Carolina became an independent State, they were inhabitants thereof, though natives of Great Britain ; and they might have been claimed and holden as citizens, whatever were their sentiments or inclinations. But the State afterwards, in 1777, liberally gave to them, with others similarly circumstanced, the option of taking the oath of allegiance, or of departing the State under a prohibition to return, with the indulgence of a time to sell their estates, and to collect and remove their effects. They chose the latter ; and ever after adhered to the King of Great Britain, and must therefore be regarded as on the British side. It is also pertinent to the inquiry, whether the debt in question be within the before-recited article, to notice an object which has been stated by the defendant's counsel, viz., that at the date of the treaty, what is now sued for as a debt, was not a debt, but a nonentity ; pay- ment having been made, and a discharge effected, under the act of con- fiscation ; and therefore that the stipulation concerning debts did not reach it. In the first place, it is not true that in this case there was no debt at the date of the treaty. A debt is created by contract, and exists till 484 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. the contract is performed. Legislative interference, to exonerate a debtor from the performance of his contract, whether upon or without conditions, or to take from the creditor the protection of law, does not in strictness destroy the debt, though it may, locally, the remedy for it. The debt remains, and in a foreign country payment is frequently enforced. Secondly, it was manifestly the design of the stipulation, that where debts had been therefore contracted, .there should be no bar to their recovery, from the operation of laws passed subsequent to the con- tracts. And to adopt a narrower construction, would be to leave creditors to a harder fate than they have been left to, by any modern treaty. Upon a view, then, of all the circumstances of this case, it must be considered as one within the stipulation, that there should be "no law- ful impediment to a recovery." And it is not to be doubted, that impediments created by the act of confiscation, are laicful impediments. They must therefore be disregarded, if the treaty is a rule of decision. Whether it is so or not, remains to be considered. Here it is contended by the defendant's counsel, that the confiscation act has not been repealed by the State ; that the treaty could not repeal or annul it ; and therefore that it remains in force, and secures the defendant. And further, that a repeal of it would not take from him a right vested, to stand discharged. As to the opinion, that a treaty does not annul a statute, so far as there is an interference, it is unsound. A statute is a declaration of the public will, and of high authority ; but it is controllable by the public will and subsequently declared. Hence the maxim, that when two statutes are opposed to each other, the latter abrogates the former. Nor is it material, as to the effect of the public will, what organ it is declared by, provided it be an organ constitutionally authorized to make the declaration. A treaty when it is in fact made, is, with regard to each nation that is a party to it, a national act, an ex- pression of the national will, as much as a statute can be. And it does, therefore, of necessity, annul any prior statute, so far as there is an interference. The supposition that the public can have two wills at the same time, repugnant to each other, one expressed by a statute, and another by a treaty, is absurd. The treaty now under consideration was made, on the part of the United States, by a Congress composed of deputies from each State, to whom were delegated by the articles of confederation, expressly, <' the sole and exclusive right and power of entering into treaties and alliances;" and being ratified and made by them, it became a com- plete national act, and the act and law of every State. CHAP, ir.] HAMILTON V. EATOK. 485 If, however, a subsequent sanction of this State was at all necessary to make the treaty law here, it has been had and repeated. By a statute passed in 1787, the treaty was declared to be law in this State, and the courts of law and equity were enjoined to govern their decisions accordingly. And in 1789, was adopted here the present Constitution of the United States, which declared, that all treaties made, or which should be made, under the authority of the United States, should be the supreme law of the land; and that the judges in every State should be bound thereby ; any act in the constitution or laws of any State to the contrary notwithstanding. Surely, then, the treaty is now law in this State, and the confiscation act, so far as the treaty interferes with it, is annulled. Still it is urged, that annulling the confiscation act cannot annul the defendant's right of discharge, acquired while the act was in force. It is true, that the repeal of a law does not make void what lias been well done under it. Eat it is also true, admitting the right here claimed by the defendant, to be as substantial as a right of property can be, that he may be deprived of it, if the treaty so requires. It is justifiable and frequent, in the adjustment of national differences, to concede for the safety of tlie State, the rights of individuals. And they are afterwards indemnified or not, according to circumstances. What is most material to be here noted is, that the right or obstacle in question, whatever it may amount to, has been created by law, and not by the creditors. It comes within the description of " lawful impediments ; all of which, in this case, the treaty, as I apprehend, reuioves. Let judgment be for the plaintiffs.^ 1 A much more cited case is Ware v. Hi/Iton, 1796, 3 Dall. 19f), from wliicli the most important parts of the judgments and opinions of the Justices are given: Cliase, J. — "Tlie defendant in error, on the . . . day of July, 1774, passed tlieir penal bond to Farrell and Jones for the payment of £2,976 Us. 6'/., of good British money. In 1777, the war of the revolution having broken out, the Legislature of Vir- ginia passed a law to sequester British property ; the 3d section of which was as follows : " ' That it should he lawful for any citizen of Virginia, owing money to a subject of Great Britain, to pay the same, or any part thereof, etc., . . . into the loan-office, taking tiiereout a certificate for tlie same, in the name of the creditor, with the in- dorsement, under the hand of the commissioner of said office, expressing the name of the payer.' The governor and council were to see to the safekeeping of such sums, subject to the future directions of the Legislature. In 1780 the defendants (in error) paid into the loan-office a part of their debt, in accordance with stipulations of the above law. After the return of peace, tiiey were sued in the above bond in the circuit court of Virginia; and pleaded the said law of the Legislature of Virginia, and the pa.v- ment thereunder, in bar of so much of the plaiatifE's debt. The plaintiff, to avoid this 486 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. BROWN V. THE UNITED STATES. Supreme Court of the Uxited States, 1814. (8 Cranch, 110.) The Emulous, owned by John Delano and others, citizens of the United States, was chartered to a company carrying on trade in Great Britain, one of wlioin was an American citizen, for the purpose of carrying a cargo from Savannah to Plymouth (England). After bar, replieil the fourth article of the treaty of peace between Great Britain and tlie United States, of 178j. For tliis replication there was a general demurrer and re- joinler. The circuit court allowed the demurrer, and the plaintiff brought the present writ of error. " The counsel for the plaintiff denied that the Virginia Legislature was competent to pass such a law ; first, because it was contrary to the law of nations, relying on Vattel (lib. 3, c. 5, sec. 77); and, secondly, that the Legislature was not competent, in- asmucli as all sucli power belonged e.Kclusively to Congress. But it was held by the court that at the time of passing the law, Virginia was a free and independent State, inasmuch as Congress as well as the several individual States had declared their in- dependence; and the articles of confederation had not yet been ratified. Supposing a general right to confiscate British property is admitted to be in Congress, then the same right belonged to the Legislature of Virginia at the time of passing the act. 'Jlie legislative power of every nation can only be restrained by its own constitution ; and it is tiie duty of its courts of justice not to question the validity of any law made in pursuance of the constitution. In this case the law is obligatory on the courts of Vir- ginia, and in my opinion on the courts of the United States. If Virginia, as a sov- ereign State, violated the ancient or modern law of nations, in making the law of the 20th October, 1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in consequence of that law. " It ap[)ears to me that every nation at war with another is justified, by the general and strict law of nations, to seize and confiscate all movable property of its enemy (of any kind or nature whatever) wherever found, whether within its territory or not." (Bynkershoek, Q. J. P. de rebus bellices, lib. 1, c. 7, 175, 177; Vattel, B. 4, sec. 221; Sir Thomas Parker's Rep. 267.) " The right to confiscate the property of enemies during war is derived from a state of war; and is called the rights of war. This right originates from self-preservation, and is adopted as one of the means to weaken an enemy, and to strengthen ourselves. Justice, also, is another pillar on which it may rest ; to wit, a right to reimburse the expense of an unjust war. Vattel. lib. 3, c. 8, sec. 138 ; and c. 9, sec. 161. " Vattel is the only author relied on (or that can be found) to maintain the distinc- tion between confiscating private debts, and other property of an enemy. Mr. Lee says, ' By the law of nations, riglits and credits are not less in our power than other goods ; why, tlierefore, should we regard the rights of war in regard to one, and not as to the otiiers ? And when nothing occurs which gives room for a proper distinc- tion, tlie general law of nations ought to prevail.' He gives many examples of confis- CHAP. II.] BROWN V. THE UNITED STATES. 487 the cargo was put on board, the vessel was stopped in port by the embargo of the 4th of April, 1812. On the 25th of the same month, cacing debts, anil concludes (p 119), 'All which prove, that not only actions, but all -other things wiiatever, are forfeited in time of war.' Lee on Capture, c. 8, p. 118. * * * '■ If a nation, during war, conducts lierself contrary to the law of nations, and no notice is talcen of such conduct in the treaty of peace, it is tliereby so far considered lawful, as never afterwards to be revived, or to be a subject of complaint. * * * " Tlie validity of such a law (the act of the Virginia Legislature) would not be questioned in the Court of Chancery of Great Britain ; and tlie doctrine seemed strange to me in an American court of justice." See Lord Chancellor Thurlow in Wright v. Nutt, 1782, H. Black. Rep. p. 13o, 149 ; 3 Term. Rep. 726. Tlie other justices expressed their individual opinions in the case. Patterson, J., admitted, that in strict law, debts miglit be confiscated, but spoke strongly against the policy of doing so. Wilson, J., thought the confiscation of debts disreputable. Gushing, J., admitted the riglit to confiscate debts, but thought the fourth article of tiie treaty annulled the statute of Virginia ; and further that the State ought to be responsible to the debtor for the amount paid into the loan-office. The si.xtli article of the preseut Constitution of the United States, " Tiiat all treaties made or which sliall be ma le, 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, any- thing in the constitution, or laws, of any State to the contrary notwithstanding," was held to have a retroactive effect, and to be considered in the same ligiitas if the Con- stitution had been established before the making of the treaty of 1783; and that Con- gress was competent to make the fourth article of the said treaty, which is to the following effect : " It is agreed that creditors, on either side, sliall meet with no lawful impediment to the recovery of the full value, in sterling money, of all bona fide debts, heretofore contracted." And, farther, the said fourth article of the treaty annulled the act of confiscation of the Legislature of Virginia, and the payment under it. And on that ground the judgment of the circuit court was reversed; and judgment on the demurrer for plaintiff in error, with costs in the circuit court and the costs of the appeal. The case above referred to as reported in Parker (11 William III.) is Attorney- Gen- eral V. Weeden and Shales. This was tlie case of a naturalized Frenchman who died during the war, leaving in his will several legacies to Frenchmen living in Bordeaux. A commission was issued to investigate the matter; but peace was made meantime, ten days before the inquisition was found and returned. And after long debate it was resolved: "First, tliat choses in action which belonged to an alien enemy were for- feitable to tlie Crown. " Secondly, that this ought to be found by inquisition to make a title to the King and that this was an inquisition of entitling, and not of instruction. Paje's Case, 5 Co. 52. " Tiiirdly, that the peace, being concluded before the inquisition was taken, dis- charged the. cause of forfeiture. "Fourthly, that the inquisition taken afterwards did not relate to set up this for- feiture, for the cause was but temporary ; and that cause being removed before the King's title was found, the finding after sliould not relate." See, also, FoHiott v. Ogden, 178^, I H. Black. 123, in which it was held infer alia that the State of New York, during the American Revolution possessed the right inherent in a sovereign nation to confiscate the debts and private property belonging to the enemy (loyalists). But see same case on error in IL B., 1793, 3 Term R. 725, where 488 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11. it was agreed between the master of the ship and the agent of the shippers, that she should proceed with her cargo to Xew Bedford, Avhere her owners resided. While the ship was lying at New Bed- ford, war was declared (18th of June) ; and in October or Novem- ber the cargo, consisting of pine timber, staves, and laths, was unloaded, the timber being put in a salt-water creek — not navigable, and on the 7th November was sold by the agent of the owners, an American citizen, to the claimant, Armitz Brown, who was also an American citizen. On the 19th April, 1813, a libel was filed by the attorney for the United States in the District Court of Massachusetts against the said cargo, as well on behalf of the United States as for and in behalf of John Delano, and for all others concerned. The attorney had no instructions from his superior, the President of the United States, but acted at the instance of Delano, the owner of the Eimdous. The District Court dismissed the libel. The Circuit Court (Story, Justice), reversed this sentence, and condemned the pine timber as enemy's property forfeited to the United States. The claimant ap- pealed to the Supreme Court. -^ j\i.VRSiiALL, C. J., delivered the opinion of the court: — The material question made at bar is this : can the pine timber, even admittmg the property not to be changed by the sale in No- vember, be condemned as prize of war ? The cargo of the Emulous having been legally acquired and put on board the vessel, having been detained by an embargo not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a stipulation to reland the cargo in some port of the United States, the re-landing having been made with respect to the residue of the cargo, and the pme timber having been floated into shallow water, where it was secured and in the custody of the owner of the ship, an American citizen, the Court cannot j^erceive any solid distinction, so far as respects confiscation, between this property and other British property found on land at the commencement of hostilities. it was distinctly held by Lord Kenyon, C. J., that acts of confiscation passed in the several States of Xortli America after the Declaration of Independence, 1776, and before the treaty of peace, 1783, by which Great Britain acknowledged their inde- penJence, are considered as a nullity in British courts of justice. See, however, the comment on this case by Loughborough (as Lord Chancellor) in Bmclay v. Russell, 1797, 3 Vcs. Jr. 423, 428. This latter case, dealing with the claim of Maryland to succeed to assets of the proprietary government, should be considered in connection with the effect of change of sovereignty. — Ed. 1 Tile statement of th.e case is abridged and part of the opinion of the learned chief justice has been omitted. — Ed. CHAP. II.] BROWN" V. THE UNITED STATES. 489 It will therefore be considered as a question relating to such prop- erty generallj^ and to be governed by the same rule. Respecting the power of government no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court. The questions to be decided by the court are : 1st. May enemy's property, found on land at the commencement of hostilities, be seized and condemned as a necessary consequence of the declaration of war ? 2d. Is there any legislative act which authorizes such seizure and condemnation ? Since, in this country, from the structure of our government, pro- ceedings to condemn the property of an enemy found within our territory at the declaration of war, can be sustained only upon the principle that they are instituted in execution of some existing law, we are led to ask : Is the declaration of war such a law ? Does that declaration, by its own operation, so vest the property of the enemy in the govern- ment, as to support proceedings for its seizure and confiscation, or does it vest only a right, the assertion of which depends on the will of the sovereign power ? The universal practice of forbearing to seize and confiscate debts and credits, the principle universally received, that the right to them revives on the restoration of peace, would seem to prove that war is not an absolute confiscation of this property, but simply confers the right of confiscation. Between debts contracted under the faith of laws, and property acquired in the course of trade, on the faith of the same laws, reason draws no distinction ; and, although, in practice, vessels with their cargoes, found in port at the declaration of war, may have been seized, it is not believed that modern usage would sanction the seizure of the goods of an enemy on land, wiiich were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the right of war. But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The inquiry is whether 490 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART If. such property vests in the sovereign by the mere declaration of war, or remains subject to a riglit of confiscation, the exercise of which depends on the national will : and the rule which applies to one case so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of a sovereign to confiscate debts being precisely the same with the right to confiscate other property found in the country, the operation of a declaration of war on debts and on other property found in the country must be the same. What, then, is this operation ? Even Bynkershoek, who maintains the broad principle, that in war everything done against an enemy is lawful ; that he may be destroyed, though unarmed and defenceless ; that fraud or even poison, may be employed against him ; that a most unlimited right is acquired to his person and property ; admits that war does not transfer to the sovereign a debt due to his enemy ; and, therefore, if payment of such debt be not exacted, peace revives the former right of the creditor ; "■ because," he says, " the occupation which is had by war consists more in fact than in law." He adds to his observations on this subject, "let it not, however, be supposed that it is only true of actions, that they are not condemned ipso Jure, for other things also belonging to the enemy, may be conceded and escape condemnation." Yattel says, that " the sovereign can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration." It is true that this rule is, in terms, applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities ; but it applies equally to things in action and to things in possession ; and if war did, of itself, with- out any farther exercise of the sovereign will, vest the property of the enemy in the sovereign, his presence would not exempt it from this operation of war. Nor can a reason be perceived for maintain- ing that the public faith is more entirely pledged for the security of property trusted in the territory of the nation in time of peace, if it be accompanied by its owner, than if it be confided to the care of others. Chitty, after stating the general right ot seizure, says, "but, in strict justice, that right can take effect only on those possessions of a belligerent which have come to the hands of his adversary after the declaration of hostilities." (P. 67.) The modern rule, then, would seem to be, that tangible property belonging to an enemy and found in the country at the commence- CHAP. II.] BROWN V. THE UNITED STATES. 401 ment of war, ought not to be immediately confiscated; and in almost every commercial treaty an article is inserted stipulating for the right to withdraw such property. "This rule seems to be totally incompatible with the idea that war does of itself vest the property in the belligerent government. It may be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not itself confiscate the property of the enemy; and their nules go to the ex- ercise of this right. " The Constitution of the United States was framed at a time when this rule, introduced by commerce in favor of moderation and human- ity, was received throughout the civilized world. In expounding that Constitution, a construction ought not lightly to be admitted which would give to a declaration of war an effect in this country it does not possess elsewhere, and which would fetter that exercise of entire discretion respecting enemy property, which may enable the Govern- ment to apply to the enemy the rule that he applies to us. "If we look to the Constitution itself, we find this general reasoning much strengthened by the words of that instrument. "That the declaration of war has only the effect of placing the two nations in a state of hostility, of producing a state of war, of giving those rights which war confers; but not of operating, by its own force, any of those results, such as a transfer of property, which are usually produced by ulterior measures of government, is fairly de- ducible from the enumeration of powers which accompanies that of declaring war. 'Congress shall have power' — 'to declare war, grant letters of marque and reprisal, and make rules concerning cap- tures on land and water.' "It would be restraining this clause within narrower limits than the words themselves import, to say that the power to make rules con- cerning captures on land and water is to be confined to captures which are exterritorial. If it extends to rules respecting enemy property found within the territory, then we perceive an express grant to Congress of the power in question as an independent sub- stantive power, not included in that of declaring war. " The acts of Congress furnish many instances of an opinion that the declaration of war does not, of itself, authorize proceedings against the persons or property of the enemy found, at the time, within the territory. "War gives an equal right over persons and property; and if its declaration is not considered as prescribing a law respecting the per- son of an enemy found in our country, neither does it prescribe a law for his property. The act concerning alien enemies, which confers 492 EFFECTS OF "WAR AS BETWEEN ENEMIES. [PART IL on the President very great discretionary powers respecting their persons, affords a strong implication that he did not possess those powers by virtue of the declaration of war. *' The ' act for the safe-keeping and accommodation of prisoners of war, ' is of the same character. "The act prohibiting trade with the enemy contains this clause: " ' And be it further enacted, that the President of the United States be and he is hereby authorized to give, at any time within six months after the passage of this act, passports for the safe transpor- tation of any ship or other property belonging to British subjects, and which is now within the limits of the United States.' "The phraseology of this law shows that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war; and the authority which the act confers on the President is manifestly considered as one which he did not previously possess. " The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent, is believed to be entirely free from doubt. Is there in the act of Congress, by which war is declared against Great Britain, any expression which would indicate such an intention? "That act, after placing the two nations in a state of war, authorizes the President of the United States to use the whole land and naval force of the United States to carry the war into effect, and 'to issue to private armed vessels of the United States commissions or letters of marque and general reprisal against the vessels, goods and effects of the government of the United Kingdom of Great Britain and Ireland, and the subjects thereof.' "That reprisals may be made on enemy property found within the United States at the declaration of war, if such be the will of the nation, has been admitted; but it is not admitted that, in the decla- ration of war, the nation has expressed its will to that effect. "It cannot be necessary to employ argument in showing that when the attorney for the United States institutes proceedings at law for the confiscation of enemy property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel. "The 'act concerning letters of marque, prizes and prize goods,' certainly contains nothing to authorize this seizure. "There being no other act of Congress which bears upon the subject, it is considered as proved that the legislature has not confiscated enemy property which was within the United States at the decla- CHAP. II.] BROWN V. THE UNITED STATES. 493 ration of war, and that this sentence of condemnation cannot ba sustained. " One view, however, has been taken of this subject which deserves to be further considered. "It is urged that, in executing the laws of war, the executive may seize and the courts condemn all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confis- cated. "This argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other jjrecepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by hira without obloquy, yet it may be disregarded. "The rule is, in its nature, flexible. It is subject to infinite modifi- cation. It is not an immutable rule of law, but depends on political considerations which may continually vary. "Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy will be applied by him to the property of our citizens. Like all other questions of policy, it is proper for the consideration of a departmeut which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary. "It appears to the court, that the power of confiscating enemy prop- erty is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war. The court is therefore of opinion that there is error in the sentence of condemnation pronounced in the Circuit Court in this case^ and doth direct that the same be reversed and annulled, and that the sentence of the District Court be affirmed." ^ 1 Mr. Justice Story, with a minority of the court, held that,' the right of confisca- tion existing, it was witliin the power of the executive to enforce confiscation, in the same manner that the executive established blockades and authorized the capture of the enemy's property at sea, and contraband goods. Dr. Wharton, iu his Commentaries on American Law (§ 216, pp. 307-309), collects 494 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET U. Ex Pai-te BOUSSMAKEE. Chakcerv, 1S06. (13 Veseij Jun. 71.) This was a petition to be admitted to prove a debt under a com- mission of bankruptcy; which the commissioners refused to admit, upon the objection that tlie creditors apphung to prove were alien enemies. the authorities and states the following as the result of his stud}' and investigation: " It has been held that the act of Congress declaring war against Great Britain did not work such confiscation. The Juniata, Newberry, 352. In Brown v. U. S. ut sup., the right to confiscate debt was asserted ; and Ware v. Hi/iton, 3 Dall. 19'.), was relied on as authority. But the better view is that tlie property of the inhabitants of an invaded country should not be taken by an invading army witliout remuneration. U. S. t. Stevenson, 3 Benedict, 119; Bluntschli, § 657. In the United States Articles of War, 1863, § 2, art. 37, it is said: ' The United States acknowledge and protect, in liostile countries occupied by tliem, religion and morality, strictly private property, tlie per- sons of tlie inliabitants, especially those of women, and the sacredness of tlie domestic relations. Offences to the contrary shall be rigorously punished.' To the effect that private property cannot be seized by an invading army, unless contraband, see Kent's Com.,i. 'dZetseq.; U. S. v. Homeijer, 2 Bond, 217; Transactions of the National Asso- ciation for the Promotion of Social Science, 1860, pp. 103, 279; id., 1861, pp. 126, 748, 794; id., 1862, pp. 89, 896, 899; id., 1863, pp. 851, 878, 884; id., 1864, pp. 596, 656; id., 1868, pp. 168-187 ; Hautefeuille, Droits et Devoirs, i., 340-44; Martens, Essai surles Armateurs, s. 45; and otlier autliorities given in Field, ut !inion and practice is opposed to the exercise of that right. In the case of Hanger v. Abbott, 18G7, 10 Wall. 532, the Supreme Court of the United States said : "In strictness it (the right of confiscating such debts) may still be said to exist, but it may well be considered as a naked and impolitic right, condemned by the en- lightened conscience of modern times." On the other hand, property of the enemy found afloat in ports at the outbreak of war, as ships with their cargoes, has generally, in the absence of a contrary agreement, CHAP. II.] HOARE V. ALLEN. 499 peared that the plaintiff was a British subject, resident in London; that Amos Strettle was his attorney in fact, at the time of the execu- tion of the mortgage and after; but it did not appear, wliethcr he continued to act as such subsequent to the war. He resided in the State till his death, which was about * * * The question that was made in this cause was, whether interest should run during the war? By the Court: — This action is brought on a mortgage for £16,000, payable on 4th December, 1774. No suit could be brought on the mortgage before the 4th December, 1775. Before that period the war commenced, and on the 10th September, 1775, the Congress prohibited the exportation of commodities, etc., to Great Britain, or any of her dominions. This was obligatory on their constituents, and it became unlawful to make any remittances after this to the enemy. During a war all civil actions between enemies are suspended; debts are suspended also, but restored by the peace. For the term of seven and a half years, viz., from the 10th September, 1775, to the lOtli March, 1783, the defendant could not have paid this money to the plaintiif, who was an alien enemy, withouta violation of the positive laws of this country, and of the laws of nations. They ought not, therefore, to suffer for their moral conduct, and their submission to the laws. Interest is paid for the use or forbearance of money. But in the case before us, there could be no forbearance; because the plaintiff could not enforce the payment of the principal; nor could the defend- ants pay him, consistent with law; nor could they pay it without going into the enemy's country, where the plaintiff was. Where a person is prevented, by law, from paying the principal, he shall not be compelled to pay interest during the prohibition, as in the case of a garnishee, in a foreign attachment. It is urged, that a remittance in bills of exchange furnished the enemy with no money. Yet, it is clear that it would furnish the enemy with the means of carrying on the war, within the bowels of the country, without bringing any money into it. It is well known that the bills drawn by the British army were the principal bills that were bought and sold; those drawn by American citizens were gen- erally protested. It has been said that it might have been paid to Strettle; but that been cnnfiseatecl, following the rules still in practice in respect of private property of the enemj' at sea. In Brown v. The United Staffs, supra, the Supreme Court was care- ful to exclude from the rule of the decision property found afloat in ports. Rut here, too, tliere are strong indi(!ations of a milder rule, if indeed it is not already firmly established. Tiie most recent practice of the United States appears in the President's Proclamation of April 26, 1898; its official construction and judicial interpretation in the case of tlie Buena Ventura, 1899, 175 {J ^. 384. — Ed, 500 EFFECTS OF WAR AS BETWEEN ENE]\nES. [PART II. depended upon liis pleasure, whether he chose to act as attorney or not. I have searched for precedents both in the civil law, and in the books of reports; but could find none. We, therefore, determine on principle and analogy, and are unanimously of opinion, that the plaintiff is not entitled to interest from the 10th September, 1775, to 10th March, 1783; but during the rest of the time he must be allowed full interest. The jur}^ adopted the principles of the charge; but struck off seven and a half years' interest.^ HANGER V. ABBOTT. Supreme Court of the United States, 1867. (6 Wallace, 532.) Error to the Circuit Court for the Eastern District of Arkansas. J, & E. Abbott, of New Hampshire, sued Hanger, of Arkansas, in assumpsit. The latter pleaded the statute of limitations of Arkan- sas, which limits such action to three years. The former replied the rebellion, which broke out after the cause of action accrued, and closed for more than three years all lawful courts. On demurrer, and judgment against it, and error to this court, the question here was, simply, whether the time during which the courts in Arkansas were closed on account of the rebellion, was to be excluded from the computation of time fixed by the Arkansas statute of limitations within which suits on contracts were to be brought, there being no exception by the terms of the statute itself for any such case.-^ Mr. Justice Clifford delivered the opinion of the court: — "Proclamation of blockade was made by the President on the 1 In the interesting case of Foxcmft osition, that it is unlawful to have communication or trade with an enemy. To suppose a commercial partnersliip (such as this was) to be continued, and recognized by law as subsisting, when the same law bad severed the subjects of the two countries, and declared them enemies to each other, is to suppose the law chargeable with incon- sistency and absurdity. For what use or purpose could the law uphold such a connection, when all further intercourse, communica- tion, negotiation, or dealing between the partners, was prohibited, as unlawful ? '^Vhy preserve the skeleton of the firm, when the sense and spirit of it has fled, and when the execution of any one article of of fact, not of law, and the case as reported in 1 Dill. 372 is an admirable statement and exposition of the law on tliis subject. See, also, Stewart v. Kahn, 1870, 11 Wall. 493. holding that an act of Congress providing a statute of limitations is constitutional and binding on State as well as Federal courts; Levy v. Stewart, 1870, 11 Wall. 244. In OWeal \. Boone, 1869, 53 111. 35, it was held that the benefit of tlie Statute of Limi- tations did not accrue to a citizen of a loyal State who voluntarily crossed and resided within Confederate lines. — Ed. 1 Short statement substituted for that of the report. — Ed. * Only parts of the opinion of tiie learned Ciiancellor are given. — Ed. CHAP. II.] GRISWOLD V. AVADDINGTON, 505 it by either, would be a breach of his allegiance to his country ? In short, it must be obvious to every one, that a state of war creates disabilities, imposes restraints, and exacts duties altogether incon- sistent with the continuance of that relation. Why does war dissolve a charter-party, or a commercial contract for a particular voyage? Because, says Valin, (torn. 1 p. 62G,) tlie war imposes an insurmount- able obstacle to the accomplishment of the contract; and this obsta- cle arising from a cause beyond the control of the party, it is very natural, he observes, that the charter-party should be dissolved, as of course. Why should the contract of partnership continue by law when equally invincible obstacles are created by law to defeat it ? If one alien enemy can go and bind his hostile partner, by contracts in time of war, when the other can have no agency, consultation, or con- trol concerning them, the law would be as unjust as it would be extravagant. The good sense of the thing as applicable to this sub- ject, is the rule prescribed by the Roman law, that a copartnership in any business ceased when there was an end put to the business itself. Item si alicKjus rei societas sit, et Jinis negotio impositus est, Jiinitur societas. (Inst. 3, 26, 6.) " The doctrine, that war does not interfere with private contracts, is not to be carried to an extent inconsistent with the rights of Avar. " Suppose that II. &, J, W. had entered into a contract before the war, which was to continue until 1814, by which one of them was to ship, half yearly, to London, consigned to the other, a cargo of pro- visions, and the other, in return, to ship to Xew York a cai-go of goods. The war which broke out in 1812, would surely have put an end to the further operation of this contract, lawful and innocent as it was when made. Xo person could raise a doubt on this point ; and what sanctity or magic is there in a contract of copartnership, that it must not yield to the same power ? " If we examine, more particularly, the nature and objects of com- mercial partnerships, it would seem to be contrary to all the rules by which they are to be construed and governed, that they should contmue to exist, after the parties are interdicted by the govern- ment, from any connuunication with each other, and are placed in a state of absolute hostility. It is of the essence of the contract that each party should contribute something valuable, as money, or goods, or skill and labor on joint account, and for the common benefit; and that the object of the partnership should be lawful, and honest business. "But how can the partners have any unity of interest, or any joint object that is lawful, when their pursuits, in consequence of the war, and in consequence of the separate allegiance which each owes to his own government, must be mutually hostile ? 506 EFFECTS OF WAE AS BETWEEN ENEMIES. [PART n. " The commercial business of each country, and of all its people, is an object of attack, and of destruction to the other. One party may be engaged in privateering, or in supplying the fleets and armies of his country with provisions, or with munitions of war ; and can the law recognize the other partner as having a joint interest in the l^roflts of such business ? It would be impossible for the one partner to be concerned in any commercial business, which was not auxiliary to the resources and efforts of his country in a maritime war. And shall the other partner be lawfully drawing a revenue from such employment of capital, and such personal services directed against his own country ? We cannot contemplate such a confusion of obli- gation between the law of partnership and the law of war, or such a conflict between his interest as a partner, and his duty as a patriot, without a mixture of astonishment and dread. Shall it be said that the partnership must be deemed to be abridged during war, to busi- ness that is altogether innoxious and harmless ? " But I would ask, how can we cut down a partnership in that manner, without destroying it ? The very object of the partnership, in this case, was, no doubt, commercial business between England and the United States, and which the hostile state of the two coun- tries interdicted ; or it may have been business in wliich the personal communication and advice of each partner was deemed essential, and without which the partnership would not have been formed. It is one of the principles of the law of partnership, that it is dissolved by the death of anyone of its members, however numerous the asso- ciation may be ; and the reason is this ; the personal qualities of each partner enter into the consideration of the contract, and the survivors ought not to be held bound without a new assent, when perhaps, the character of the deceased partner was the inducement to the connection. " Shall we say that the partnership continues during war, in a quiescent state, and that the hostile partners do not share in each other's profits, made in carrying on tlie hostile commerce of each country ? "It would be then most unjust to make the party who did not share in profit to share in loss, and to be bound by the other's con- tracts ; but if one partner does not share in profit, that alone de- stroys a partnership. It would be what the Roman lawyers called Societas leonina, in allusion to the fable of the lion, who, having entered into a partnership with the other animals of the forest in hunting, appropriated to himself all the prey. "It is one of the fundamental principles of every commercial partnership, that each partner has the power to buy and sell and CHAP. TI.] GRISWOLD V. WADDTNGTON. 507 pay and receive, and to contract and bind the firm. But then, again, as a necessary check to tliis power, eacli partner can interfere and stop any contract about to be made by any one of tlie rest. This is an elementary rule, derived from tlie civil law. In re x>ari potiorem causam esse prohibentis constat. (Pothier, Trait, du Cont. sec. n. 90.) " But if the partnership continues in war between hostile asso- ciates, this salutary power is withdrawn, and each partner is left defenceless. If the law continues the connection, after it has de- stroyed the check, the law is then cruel and unjust. "In speaking of the dissolution of partnerships, the French and civil law writers say, that partnerships are dissolved by a change of the condition of one of the parties which disables him to perform his part of the duty, as by a loss of liberty, or banishment, or bank- ruptcy, or a judicial prohibition to execute his business, or by confis- cation of his goods. " The English law of partnership is derived from the same source ; and as the cases arise, the same principles are applied. The princi- ple here is, that when one of the parties becomes disabled to act, or when the business of the association becomes impracticable, the law, as well as common reason, adjudges the partnership to be dis- solved. * * * "Another objection was raised, from the want of notice of the dissolution of the partnership. The answer to this is extremely easy, and perfectly conclusive. Notice is requisite when a partner- ship is dissolved by the act of the parties, but it is not necessary when the dissolution takes place, by the act of the laws. The declaration of war, from the time it was duly made known to the nations, put an end to all future dealings between the subjects and citizens of the two countries, and, consequently, to the future opera- tion of the copartnership in question. " The declaration of war was, of itself, the most authentic and monitory notice. Any other notice, in a case like this, between two public enemies, who had each his domicil in his own country, would have been useless. All mankind were bound to take notice, of the war, and of its consequence. The notice, if given, could only be given by each partner in his own country ; and there it would be useless, as his countrymen could not hold any lawful intercourse with the enemy. It could not be given as a joint act, for the partners cannot lawfully commune together. " But, it was said, that the peace had a healing influence, and restored the parties to all their rights, and arrested all confiscations, and forfeitures, which had not previously and duly attached. I do 508 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. not know that I differ from the counsel in any just application of this doctrine. " As far as the war suspended the right of action existing in the adverse party prior to the war, that riglit revived ; but if the contract in this case was unlawful, peace coald not revive it, for it never had any legal existence. So, too, the copartnership being once dissolved by the war, it was extinguished forever, except as to matters exist- ing prior to the war." MATTHEWS v. McSTEA. Supreme Court of the United States, 1875. (01 United States, 7.) Mr. Justice Stron'g delivered the opinion of the court. The single question which this record presents for our considera- tion is, whether a partnership, where one member of the firm resided in New York and the others in Louisiana, was dissolved by the war of the rebellion prior to April 23, 1S61. That the civil war had an existence commencing before that date must be accepted as an established far-t. This was fully determined in The Prize Cases, 2 Black, 635; and it is no longer open to denial. The President's proclamation of April 19, 1861, declaring that he had deemed it advisable to set on foot a blockade of the ports within the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana, and Texas, was a recognition of a war waged, and conclu- sive evidence that a state of war existed between the people inhabit- ing those States and the United States. It must also be conceded, as a general rule, to be one of the imme- diate consequences of a declaration of war and the effect of a state of war, even when not declared, that all commercial intercourse and dealing between the subjects or adherents of the contending powers is unlawful, and is interdicted. The reasons for this rule are obvious. They are, that, in a state of war, all the members of each belligerent are respectively enemies of all the members of the other belligerent; and, were commercial intercourse allowed, it would tend to strengthen the enemy, and afford facilities for conveying intelligence, and even for traitorous correspondence. Hence it has become an established doctrine, that war puts an end to all commercial dealing between the citizens or subjects of the nations or powers at war, and "places every individual of the respective governments, as well as the governments CHAP. II.] MATTHEWS V. McSTEA. 509 themselves, in a state of hostility: " and it dissolves commercial part- nerships existing between the subjects or citizens of the two contend- ing parties prior to the war; for their continued existence would involve community of interest and mutual dealing between enemies. Still further, it is undeniable that civil war brings with it all the consequences in this regard which attend upon and follow a state of foreign war. Certainly this is so when civil war is sectional. Equally with foreign war, it renders commercial intercourse un- lawful between the contending parties, and it dissolves commercial partnerships. But, while all this is true as a general rule, it is not without ex- ceptions. A state of war may exist, and yet commercial intercourse be lawful. They are not necessarily inconsistent with each other. Trading with a public enemy may be authorized by the sovereign, and even, to a limited extent, by a military commander. Such per- missions or licenses are partial suspensions of the laws of war, but not of the war itself. In modern times, they are very common. Bynkershoek, in his Quaest. Jur. Pub., lib. 1, c. 3, while asserting as a universal principle of law that an immediate consequence of the commencement of war is the interdiction of all commercial intercourse between the subjects of the states at war, remarks: "The utility, however, of merchants, and the mutual wants of nations, have almost got the better of the laws of war as to commerce. Hence it is alter- natively permitted and forbidden in time of war, as princes think it most for the interests of their subjects. A commercial nation is anxious to trade, and accommodates the laws of war to the greater or lesser want that it may be in of the goods of others. Thus sometimes a mutual commerce is permitted generally; sometimes as to certain merchandise only, while others are prohibited; and sometimes it is prohibited altogether." Halleck, in his "Treatise on the Laws of War," p. 676 et seq., discusses this subject at considerable length, and remarks: "That branch of the government to which, from the form of its constitution, the power of declaring or making war is intrusted, has an undoubted right to regulate and modify, in its dis- cretion, the hostilities which it sanctions. * * * In England, licenses are granted directly by the crown, or by some subordinate officer to whom the authority of the crown has been delegated, either by special instructions, or under an act of Parliament. In the United States, as a general rule, licenses are issued under the authority of an act of Congress; but in special cases and for purposes immediately con- nected with the prosecution of the v/ar, they may be granted by the autliority uf the President, as commander-in-chief of the military and uaval forces of the United States. 510 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. It being, then, settled that a war may exist, and yet that trading with the enemy, or commercial intercourse, may be allowable, we are brought to inquire whether such intercourse was allowed between the loyal citizens of the United States and the citizens of Louisiana until the 23d of April, 1861, when the acceptance was made upon which this suit was brought. And, in determining this, the character of the war and the manner in which it was commenced ought not to be overlooked. No declaration of war was ever made. The President recognized its existence by proclaiming a blockade on the 19th of April; and it then became his duty as well as his right to direct how it should be carried on. In the exercise of this right, he was at liberty to allow or license intercourse; and his proclamations, if they did not license it expressly, did, in our opinion, license it by very cogent implications. It is impossible to read them without a con- viction that no interdiction of commercial intercourse, except through the ports of the designated States, was intended. The first was that of April 15, 1861. The forts and property of the United States had, prior to that day, been forcibly seized by armed forces. Hostilities had commenced; and, in the light of subsequent events, it must be considered that a s-tate of war then existed. Yet the proclamation, while calling for the militia of the several States, and stating what would probably, be the first service assigned to them, expressly de- clared that, " in every event, the utmost care would be observed, consistently with the repossession of the forts, places, and property which had been seized from the Union, to avoid any devastation, destruction of or interference with property, or any disturbance of peaceful citizens in any part of the country." Manifestly, this dec- laration was not a mere military order. It did not contemplate the treatment of the inhabitants of the States in which the unlawful com- binations mentioned in the proclamation existed as public enemies. It announced a different mode of treatment, — the treatment due to friends. It is to be observed that the proclamation of April 15, 1861, was not a distinct recognition of an existing state of war. The Presi- dent had power to recognize it. The Prize Cases, svpra ; but he did not i)rior to his second proclamation, that of April 19, in which he announced the blockade. Even then the war was only inferentially recognized; and the measures proposed were avowed to be "with a view to * * * the protection of tlie public peace and the lives and property of quiet and orderly citizens pursuing their lawful occupa- tions, until Congress shall have assembled." The reference here was ]daiiily to citizens of the insurrectionary States; and the purpose avowed appears to be inconsistent with their being regarded as public enemies, and consequently debarred from intercourse with the inhabi- CHAP. II.] MATTHEWS V. McSTEA. 511 tants of States not in insurrection. The only interference with the business relations of citizens in all parts of the country, contenii)lated by the proclamation, seems to have been such as the blockade might cause. And that it was understood to be an assent by the executive to continued business intercourse may be inferred from the subsequent action of the government (of which we may take judicial notice) iii continuing the mail service in Louisiana and the other insurrectionary States long after the blockade was declared. If it was not such an assent or permission, it was well fitted to deceive the public. But in a civil more than in a foreign war, or a war declared, it is important that unetjuivocal notice should be given of the illegality of traffic or commercial intercourse; for, in a civil war, only the government can know when the insurrection has assumed the character of war. If, however, the proclamations, considered by themselves, leave it doubtful whether they were intended to be permissive of commercial intercourse with the inhabitants of the insurrectionary States, so far as such intercourse did not interfere with the blockade the subse- quent act of Congress, passed on the thirteenth day of July, 1861, ought to put doubt at rest. The act was manifestly passed in view of the state of the country then existing, and in view of the proclamation the President had issued. It enacts that, in a case therein described, a case that then existed, " it may and shall be lawful for the President, by proclama- tion, to declare that the inhabitants of such State, or any section or part thereof where such insurrection exists, are in a state of insurrec- tion against the United States; and theveujjon all commercial inter- course by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease and be unlawful so long as such condition of hostility shall continue." Under au- thority of this act, the President did issue such a proclamation on the 16th of August, 1861; and it stated that all commercial intercourse between the States designated as in insurrection and the inhabitants thereof, with certain exceptions, and the citizens of other States and other parts of the United States, was unlawful. Both the act and the proclamation exhibit a clear implication that, before the first was enacted and the second was issued, commercial intercourse was not unlawful; that it had been permitted. What need of declaring it should cease, if it had ceased, or had been unlawful before? The enactment that it should not be permitted after a day then in the future must be considered an implied affirmation that up to that day it was lawful; and certainly Congress had the power to relax any of the ordinary rules of war. We think, therefore, the Court of Appeals was right in holding 512 * EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. that the partnership of Brander, Chambliss & Co. had not been dis- solved by the war, wlien the acceptance upon which the plaintiff in error is sued was made. The judgment is affirmed. NEW YORK LIFE INS. CO. v. STATHEM. SAME V. SEYMS. MANHATTAN LIFE INS. CO. v. BUCK, Executor. Supreme Court of the United States, 1876. (93 United States, 24.) The first of these cases is here on appeal from, and the second and third on writs of error to, the Circuit Court of the United States for the Southern District of Mississippi. The first case is a bill in equity, filed to recover the amount of a policy of life assurance, granted by the defendant (now appellant) in 1851, on the life of Dr. A. D. Stathem, of Mississippi, from the proceeds of certain funds belonging to the defendant attached in the hands of its agent at Jackson, in that State. It appears from the statements of the bill that the annual premiums accruing on the policy were all regularly paid, until the breaking out of the late civil war, but that, in consequence of that event, the premium due on the 8tli of December, 1861, was not paid ; the jjarties assured being residents of Mississippi, and the defendant a corporation of New York. Dr. Stathem died in July, 1862. The other cases are sindlar. Each policy contained various conditions, upon the breach of which it was to be null and void ; and amongst others the following : " That in case the said (assured) shall not pay the said premium on or before the several days hereinbefore mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured, or in any part thereof, and this policy shall cease and determine." The Manhattan policy contained the additional provision, that, in every case where the policy should cease or become null and void, all previous payments made thereon should be forfeited to the com- pany. The non-payment of the premiums in arrear was set up in bar of the actions ; and the plaintiffs respectively relied on the existence CHAP. II.] NEW YORK LIFE INS. CO. V. STATllEM. 513 of the war as an excuse, oflfeiing to deduct the premiums hi arrear from the amounts of the poUcies. The decree and judgments below were against the defendants. Mr. Justice Braolev, after stating the case, delivered the opinion of the court. " We agree with the court below, that the contract is not an assurance for a single year, with a privilege of renewal from year to year by paying the annual premium, but that it is an entire con- tract of assurance for life, subject to discontinuance and forfeiture for non-payment of any of the stipulated premiums. Such is the form of the contract, and such is its character. * * * " Each instalment is, m fact, part consideration of the entire in- surance for life. It is the same thing, where the annual premiums are spread over the whole life. * * * " The case, therefore, is one in which time is material and of the essence of the contract. Non-payment at the day involves absolute forfeiture, if such be the terms of the contract, as is the case here. Courts cannot with safety vary the stipulation of the parties by in- troducing equities for the relief of the insured against their own negligence. " But the court below bases its decision on the assumption that, when performance of the condition becomes illegal in consequence of the prevalence of public war, it is excused, and forfeiture does not ensue. It supposes the contract to have been suspended during the war, and to have revived with all its force when the war ended. " Such a suspension and revival do take place in the case of ordi- nary debts. But have they ever been known to take place in the case of executory contracts in which time is material ? If a Texas merchant had contracted to furnish some Northern explorer a thou- saiid cans of preserved meat by a certain day, so as to be ready for his departure for the North Pole, and was prevented from furnish- ing it by the civil war, would the contract still be good at the close of the war five years afterwards, and after the return of the ex- pedition ? " If the proprietor of a Tennessee quarry had agreed, in 1860, to furnish, during the two following years, ten thousand cubic feet of marble, for the construction of a building in Cincinnati, could he have claimed to perform the contract in 1865, on the ground that the war prevented an earlier performance ? " The truth is, that the doctrine of tli^ revival of contracts sus- pended during the war is one based on considerations of equity and justice, and cannot be mvoked to revive a contract which it would be unjust or inequitable to revive. 83 514 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. " In the case of life insurance, besides the materiality of time in the performance of the contract, anotlier strong reason exists why the policy should not be revived. The parties do not stand on equal ground in reference to such a revival. "It would operate most unjustly against the company. The business of insurance is founded on the law of averages ; that of life insurance eminently so. The average rate of mortality is the basis on which it rests. By spreading their risks over a large num- ber of cases, the companies calculate on this average with reasonable certainty and safety. Anything that interferes with it deranges the security of the business. If every policy lapsed by reason of the war should be revived, and all the back premiums should be paid, the companies would have the benefit of this average amount of risk. " But the good risks are never heard from ; only the bad are sought to be revived, where the person insured is either dead or dying. Those in health can get new policies cheaper than to pay arrearages on the old. To enforce a revival of the bad cases, Avhilst the company necessarily lose the cases, which are desirable, would be manifestly unjust. An injured person, as before stated, does not stand isolated and alone. His case is connected with and correlated to the cases of all others insured by the same company. " The nature of the business, as a whole, must be looked at to understand the general equities of the parties. " We are of opinion, therefore, that an action cannot be maintained for the amount assured on a policy of life-insurance forfeited, like those in question, by non-payment of the premium, even though the payment was prevented by the existence of the war. " The question then arises. Must the insured lose all the money which has been paid for premiums on their respective policies ? If they must, they will sustain an equal injustice to that which the companies M^ould sustain by reviving the policies. At the very first blush, it seems manifest that justice requires that they should have some compensation or return for the money already paid, otherwise the companies would be the gainers from their loss ; and that from a cause for which neither party is to blame. The case may be illustrated thus ; Suppose an inhabitant of Georgia had bargained for a house, situated in a Northern city, to be paid for by instal- ments, and no title to be made until all the instalments were paid, with a condition that on the failure to pay any of the instalments when due, the contract should be at an end, and the previous pay- ments forfeited ; and suppose that this condition was declared by the parties to be absolute and the time of payment material. Now, CHAP. II.] NEW YORK LIFE INS. CO. V. STATHEM. 515 if some of the instalments were paid before the war, and others ac- cruing during the war were not i:)aid, the contract, as an executory- one, Avas at an end. If tlie necessities of the vendor obliged him to avail himself of the condition, and to resell the property to another party, would it be just for him to retain the money he had received? Perliaps it might be just if the failure to pay had been voluntary, or could, by possibility, have been avoided. " But it was caused by an event beyond the control of either party, —an event which made it unlawful to pay. In such case, whilst it would be unjust, after the war, to enforce the contract as an execu- tory one against the vendor contrary to his will, it would be equally unjust in him, treating it as ended, to insist upon the forfeiture of the money already paid on it. An equitable right to some compensation or return for previous payments would clearly result from the circumstances of the case. The money paid by the pur- chaser, subject to the value of any possession which he may have enjoyed, should, ex cequo et bo7io, be returned to him. This would clearly be demanded by justice and right. " And so, in the present case, whilst the insurance company has a right to insist on the materiality of time in the condition of payment of x^remiums, and to hold the contract ended by reason of non-pay- ment, they cannot with any fairness insist upon the condition, as it regards the forfeiture of the premiums already paid ; that would be clearly unjust and inequitable. The insured has an equitable right to have this amount restored to him, subject to a deduction for the value of the assurance enjoyed by him whilst the polic}^ was in ex- istence ; in other words, he is fairly entitled to have the equitable value of his policy. * * * " We are of opinion, therefore, first, that as the companies elected to insist upon the condition in these cases, the policies in question must be regarded as extinguished by the non-payment of the premi- ums, though caused by the existence of the war, and that an action will not lie for the amount insured thereon. " Secondly, that such failure being caused by a public war, without the fault of the assured, they are entitled ex cequo et bono to recover the equitable value of the policies with interest from the close of the war. * * * " In estimating the equitable value of a policy, no deduction should be made from the precise amount which the calculations give, as is sometimes done where policies are voluntarily surrendered, for the purpose of discouraging such surrenders ; and the value should be taken as of the day when the first default occurred in the payment of the premium by which the policy became forfeited. In each case 516 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART U. the rates of mortality and interest used in the tables of the company "will form the basis of the calculation. " The decree in the equity suit and the judgments in the actions at law are reversed, and the causes respectively remanded to be pro- ceeded "uith according to law and the directions of this opinion. Clifford, J., (with whom concurred PIuxt, J.,) dissenting : — " Where the parties to an executory monej^-conti-act live in different countries, and the governments of those countries become involved in public war witli each other, the contract between such parties is suspended during the existence of the war, and revives when peace ensues ; and that rule, in my judgment, is as applicable to the contract of life-insurance as to any other executory con- tract. " Consequently, I am obhged to dissent from the opinion and judgment of the court in these cases." ^ 1 In Xew York Life Ins. Co. v. Davis, 1877, 95 U. S. 425, tlie facts were the same, except that the Insurance Co. liad an agent in tlie Confederacy to wliom the insured, a Major in tlie Confederate service, vainly tendered the premium as it fell due. Under the circumstances, the court, following the principal decision, eaid per Mr. Justice Bradley : — " We do not mean to say that, if the defendant had continued its authority to the agent to act in the receipt of premiums during the war, and he had done so, a payment or tender to him in lawful money of the United States would not have been valid; nor that a stipulation to continue such authority in case of war made before its occur- rence would not have been a valid stipulation ; nor that a policy of life insurance on which no premiums were to be paid, though suspended during the war, might not have revived after its close. We place our decision simply on the ground that the agency of Garland was terminated by the breaking out of the war, and that, although by the consent of the parties it might have been continued for the purpose of receiving pay- ments of premiums during the war, there is no proof that such assent was given, either by the defendant or by Garland; but that, on the contrary, the proof is positive and uncontradicted that Garland declined to act as agent." In the course of the opinion the court considers and approves the following authori- ties as payment to agents in an enemy's country : Conn v. Penn., 1818, Pet. C. C. 40G (the leading authority) ; Dennison v. Imhrie, 1818, 3 Wash. 306; Buchanan v. Curri/, 1821, 19 Johns. 137; Ward v. Smith, 1868, 7 Wall. 447; Brown v. Hiatts, 1872, 15 Wall. 177; Montgomery v. U. 5., 1872, 15 Wall. 395; Fretz v. Stover, 1874, 22 Wall. 198. In regard to the influence of war on life insurance policies it may be said that three essentially distinct views have been held by courts of last resort, and reference is made to Abell v. Penn. Mutual Life Ins. Co., 1881, 18 West Va. 400, 423-435 for their enumeration, and criticism of the authorities cited. In Semtncs v. Hartford Ins. Co., 1871, 13 Wall. 158, the action was upon a policy of fire insurance containing the express stipulation that no suit should be sustainable thereunder unless brought within twelve months after the loss or damage occurred. The civil war broke out during the twelve months within which the suit should and no doubt would have been brought. As it was impossible to bring suit during the war, CHAP. II.] WARE V. JONES. 517 WAEE V. JONES. SUPEEME COUKT OF ALABAMA, 1878. (61 Alabama, 288.) Brickell, C. J. The instructions given the jury, and the first instruction requested by the appellant and refused, involve the same question — the validity of a contract made during the war, for the sale of property, real and personal, the seller knew the purchaser was buying, to be used in the making of iron for the Confederate States, to aid and assist them in the prosecution of hostilities against the United States. The question has been several times, in various forms, presented to this court, and with one exception such contracts have been declared void- In Shepherd v. Reese, 42 Ala. 329, a horse was purchased, the note given for the price, expressing that the horse was "to go in Captain Smith's mounted company, the horse to be paid for as he draws his money." The proof showed the horse was purchased for use in the service of the Confederate States. The question was, whether a recovery could be had on the note. The court pronounced it void, as opposed to the national policy and the Constitution. At the succeed- ing term, in Pattoii v. Gilmer, 42 Ala. 548, the facts were that the State of Alabama had advanced a large sum of money to an associa- tion or corporation, organized for the manufacture of arms, upon a contract to deliver to the State, arms of a certain number and descrip- tion, and the corporation had given bond for the performance of the contract. The action was upon the bond, assigning several breaches of the contract, and it was held the action could not be maintained. The principle of the decision is, that all contracts which are hostile to, or violative of the Constitution or laws of the United States, are invalid, whether made by individuals, or the State. And that though the contract was made during the war, when the authority and laws tliis condition was not performed. It was held by the court that the condition was entire and not divisible ; that as performance became impossible by operation of law, the assured was entirely released from the obligation of bringing suit within the twelve months ; that the action could, therefore, be maintained at any time witiiin tiie statute of limitations. In otlier words, war suspends but does not extinguish con- ditions of a contract, so tliat on the return of peace the entire conventional stiimlation as regards time revives as of right. In case of a statutory limitation witliin which the suit may or must be brought, tlie period during wiiich the courts were closed by reason of war is deducted and the plaintiff is given tlie balance of time to bring the action wliich the war prevented him from doing. See Wambaugh, Cases on In- surance (1902), 651, note, for an exhaustive citation of adjudicated cases. — Ed. 518 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. of the United States were by force superseded, and the authority and laws of the Confederate States were dominant, it cannot now be enforced in the courts of the State, bound to the Constitution of the United States, as the supreme law of the land. In Oxford Iron Com- jjany v. Quinchett, 44 Ala. 487, a contract for the loan or hire of mules to a party, known at the time to be engaged in the manufacture of iron for the Confederate government, with a knowledge on the part of the bailor that they were to be employed in the work, was declared invalid. In Oxford Iron Company v. Spradley, 46 Ala. 98, a promis- sory note given by a corporation for the loan of money, to be used in erecting iron works and making iron for the Confederate government, if at the time of the loan the lender knew the purposes for which it Avas borrowed, was pronounced void. In Milner v. Patton^ 49 Ala. 423, the action was on an account for goods sold and delivered, the seller knowing the purchaser intended to use them in clothing Con- federate soldiers, and it was held the action was not maintainable. Opposed to these cases stands the case of Thedford v. McCUntoch, 47 Ala. 423, which was expressly overruled in the case of Milner v. Patton, supra. See, also, Bibb v. Commissioner'' s Court, 44 Ala. 119; Sjjeed V. Cocke, 57 Ala. 209. These decisions must be taken as settling definitely, and finally, the law of this State, upon the question now involved; as they are supported by the decisions of the Supreme Court of the United States, though they may be opposed to the decisions of other States, we are not inclined to re-open a discussion of the reasoning on which they proceed. Hanauer v. Doane, 12 Wall. 342; Hanauer v. Wood- ruff, 15 Wall. 439. The act of Congress of August 6, 1861 (U. S. Stat. Vol. XII, 319), subjected to confiscation jjroperty of any kind or description purchased or acquired, or sold, with intent to use or employ the same, or to suffer the same to be used or employed in aiding or abetting or promoting the insurrection. The property in this case was not only sold with a knowledge that it was to be so used, but the seller was a member of the corporation formed to pro- mote the use, and suffered it to be used first in the completion of a contract he had made to supply a contractor with the Confederate States with iron for making arms, and then in supplying the govern- ment itself. Such, at least, there was evidence tending to show, and it was in reference to the evidence the instructions were given and refused. Contracts prohibited by a statute, even when a penalty is not imposed for a violation, are void. McGehee v. Lindsay, 6 Ala. 16. It is said this statute was not operative in Alabama when this contract was made. l>ut it is now of force, and as obligatory on the courts of justice within the State, as if Alabama had then, as now CHAP. II.] WARE V. JONES. 519 recognized the Constitution and laws of the United States, as the supreme law. The answer of Judge, J., to a similar argument in Shepherd v. Reese, supra, was: "The contract stands, therefore, as one executed in a foreign government; and testing its legality by the lex loci contractus, it must be pronounced to have been a valid contract at the time and place it was made. But can it be enforced in a court acting under the authority and Constitution of the United States? We understand the law to be well settled that it cannot be if it is opposed to the national policy or national Constitution?" In the in- structions given and refused, we are considering, the Circuit Court did not err. The second instruction requested by the appellant asserts there is material difference between a sale to the Confederate States, or to its agents for its use, and a sale to an individual who expected to profit by it in making contracts for its use with the Confederate States. The instruction does not point out in what the difference consists. The guilty knowledge of the seller which avoids the contract may be more apparent in the one instance than the other, from the character of the person with whom the contract is made. But in the legal con- sequences resulting from the contract there is no difference. The reason in either instance the contract is held void is, because it can- not be reasonably supposed, that a party knowing another intended an illegal purpose, would directly or indirectly furnish the means of accomplishing it, if he did not intend to aid and assist it. Degroot V. Van Duger, 20 Wend. 390; Hanauer v. Doane, supra; Story's Con. Laws, §§ 253, 254. Expressions may be found in judicial decisions, and in text-books, which seem to cast reproach on a party resisting the performance of contracts into which he has voluntarily entered, because of their illegality, and would indicate that the law looks upon the defence with disfavor. Similar expressions may be found in reference to the statute of limitations, and at one time, courts were so far led astray by them, that the statute lost much of its vigor. Such expressions are the individual opinions of the judge, or the text-writer, employ- ing them, and are not to be accepted as rules of law. The law does not regard the defence with favor or disfavor — it does not inquire whether there are or are not circumstances in the particular case, which render the defence immoral and dishonest, or render it merito- rious, and a shield to the party making it, from an unconscionable demand by his adversary, who may be cruelly standing on the letter of the bond. The law does not look with favor or disfavor to the one party or the other, declares them in pari delicto, and abstains from all interference between them. 520 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. The presumption of law is in favor of the legality of contracts, and ■when on the court is devolved the duty of construction, if it is fairly and reasonably susceptible of two interpretations — one rendering it legal, and the other illegal, that interpretation will be adopted which will support, rather than that which will defeat it. 1 Brick. Dig. 886, § 164; 2 Chit. Con. 977. Following out the principle, illegality of consideration will not be inferred, when the evidence is justly and reasonably capable of being reconciled with the hypothesis of legal- ity. The general rule applies, that fraud or illegality is not to be presumed; the party affirming the one or the other, must prove it clearly if it is denied. 2 Chit. Con. 978. It is enough, however, if the evidence is sufficient to produce in the minds of the jury that degree of conviction essential in civil cases — it is not necessary, as in criminal cases, that it should remove all reasonable doubt. If the appellant had requested the court simply to instruct the jury, that the defence in the present case ought to be clearly proved, we do not inquire whether the instruction ought to have been given — without an explanation it would have probably misled; and instructions requested which, without explanation, may mislead, are properly refused. The instruction as to the clearness of the evidence was connected with the affirmation that the law disfavored the defence as immoral and dishonest, which was not correct, and being incorrect in part, was refused properly; for it was not the duty of the court to analyze the charge disconnecting the correct from the incorrect. Let the judgment be affirmed.'^ 1 In Wliitis V. Polk, 1871-2, 36 Tex. 602, a carefully considered find authoritative case, it is said, at p- 627 : " The public policy of tlie United States during the war was to stop all commerce or trade by the rebel States or tlie citizens thereof with the out- side world, to prevent all intercourse whatever — even with neutral governments — that all aid or comfort might be cut off, to the end that the rebel power might the sooner be put down and the citizens forced to their rightful allegiance. This was a policy the government had a right to inaugurate, and to put in force to any extent. The contract sued on was in direct conflict with this policy, and for that reason is en- titled to no favorable consideration by the courts. That contracts against the law and public policy cannot be enforced is fully recognized in Coppell \.Hull,l Wallace, 543, and in Hanauer v. Doane, 12 Wallace, 342 ; Hunt's heirs v. Hunt, 1 Texas, 758 ; Goodman v. McGehee, .31 Texas, 253, and Gris>vnld v. Waddington, 16 Johnson, 438. " Again, if this contract was made in aid of the then existing rebellion, it was null and void, and should not now he enforced. This doctrine has been so often and with 60 great unanimity announced by almost every court in the country, that we deem it unnecessary to refer to but few authorities. In the case of Hanauer v. Doanp, 12 Wallace, Justice Bradley, after a very thorough examination of authorities on tliat question, comes to the conclusion that ' he wiio, being bound by his allegiance to a government, sells goods to an agent of an armed combination to overthrow that gov- ernment, knowing that the purchaser buys tliem for that treasonable purpose,' or does any otiier act to aid that combination, ' is himself guilty of treason or mispriaioa chap.il] the "hoop." 521 Section 29. — Trade witu the Enemy. THE "HOOP." High Court of Admiralty, 1799. (1 C. Robinson, 196.) Judgment. — Sir W. Scott. — " This is the case of a ship laden with flax, madder, geneva, and cheese, and bound from Rotterdam osten- sibly to Bergen; but she was in truth coming to a British port, and took a destination to Bergen to deceive the French cruisers; and, as thereof.' The appellee in tliis case, knowhig that the only resource for tlie Confed- erate array in obtaining clothing and supplies, consisted in the cotton of the country, and knowing also tliat very rigid e-xactions were laid upon all cotton in the State by the Confederate authorities, even to one-half of tlie entire crop, and knowing also that no cotton could be got out of the country without satisfying those e.xaclions in one way or the other, voluntarily purchased Bowles's cotton for the purpose of sending the same out of the country to market, and then made a bargain with the appellant to pay tlie Confederate exactions, and procure what were known as permits for sending the same beyond the Confederate lines, and at tlie same time knowing that the whole transaction was in direct violation of the laws and public policy of the United States, can now hardly plead innocence, or an exemption from the legitimate conse- quence of his acts. He is to all intents and purposes as culpable as though his con- tract had been made directly with the Confederate authorities, in which he had bound himself to buy cotton and give one-half to the Confederacy for permits to ship the other half; and the one entered into was in direct aid of the rebellion, to a very large amount. It is entirely immaterial how appellent procured the permits from the Confederate agents, or whether the Confederacy was paid a part of the identical cotton turned over by appellee, or whether it was paid out of other cotton, or in money ; yet the permits represented the interest of the Confederate authorities, and appellee agreed to give all tliat they represented ; and that agreement was in aid of the rebellion, and therefore treasonable and void, and the courts cannot now be prostituted to take jurisdiction of or aid either party in the enforcement of the execution of the same. Ilanauer v. Doane, 12 Wallace; Goodman v.Mcdehee, 31 Texas, 254; Pridgeon v. Smith, 31 Texas, 171; Ransom v. Alexander, 31 Texas, 443 ; also, Emancipation Cases, 31 Texas, 534." In Isadcs, Tai/lor ^ Williams v. Citi/ of Richmond, 1803, 60 Va. 30. 36, it is held, inter alia, that fifteen thousand dollars paid " on account of a house and furniture for Mr. Davis " fell within expenditure in aid of rebellion and therefore illegal. In Dewing v. Perdicaries, 1877, 96 U. S- 193, court said : " Nothing is better settled in the jurisprudence of this city than that all acts done in aid of the rebellion were illegal and of no validity. The principle has become axiomatic. It would be a mere waste of time to linger upon the point for the purpose of discussing it, Texas v. White, 7 Wall. 700 ; Hickman v. Jones, 9 id. 197 ; Ilanauer v. Doane, 12 id. 342 ; Knox v. Lee, id. 457 ; Hanauer v. Woodruff, 15 id. 439; Cornet v. Williams, 20 id. 220; Sprott v. United States, id. 459." To which may be added, although axiomatic, the following two authorities : (J. S. v. Iluckhee, 1872, 16 Wall. 414 ; Whitfield v. U. S., 1875, 92 U. S. 165. See, also, Bragg v. Tuffts, 1887, 49 Ark. 454, 562. — Ed. 522 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. the claim discloses (of which I see no reason to doubt the trutli), the goods were to be imported on account of British merchants, being most of them articles of considerable use in the manufactures and commerce of this country, and being bi'ought under an assurance from the commissioners of customs in Scotland that they might be lawfully imported without any license, by virtue of the statute 35 Geo. 3, c. 15, § 180. ^ " It is said that these circumstances compose a case entitled to great indulgence ; and I do not deny it. But if there is a rule of law on the subject binding the court, I must follow where that rule leads me ; though it leads to consequences which I may privately regret, when I look to the particular intentions of the parties. " In my opinion there exists such a general rule in the maritime jurisprudence of this country, by which all trading with the public enemy, unless with the permission of the sovereign, is interdicted. It is not a principle peculiar to the maritime law of this country ; it is laid down by Bynkershoek as an universal principle of law. — ' Ex natura, belli commercia inter hostes cessare non est dubitandum. Quamvis nulla specialis sit commerciorum prohibitio, ipso tamen jure belli commercia esse vetita, ipsse indictiones bellorum satis de- carant, etc' He proceeds to observe, that the interests of trade, and the necessity of obtaining certain commodities have sometimes so far overpowered this rule, that different species of traffic have been permitted, '■ proict e re sua, suhdUoruynque suormn esse censent jjrui- cipes ' (Bynk. Q. J. P. B. 1, c. 3.) But it is in all cases the act and permission of the sovereign. Wherever that is permitted, it is a suspension of the state of war quo ad hoc. It is, as he expresses it, ^pro parte sic belluni, pro parte pax inter suhditos 'iitriusque principes? It appears from these passages to have been the law of Holland ; Valin, 1. iii., tit, 6, art. 3, states it to have been the law of France, whether the trade was attempted to be carried on in national or in neutral vessels ; it will appear in a case which I shall have occa- sion to mention, Tlie Fortuna, to have been the law of Spain ; and it may, I think, without rashness be affirmed to have been a general princii)le of law in most of the countries of Europe. " By the law and constitution of this country, the sovereign alone has the power of declaring war and peace. He alone therefore who 1 The 35 G. 3, c. 15 (March 16, 1795), enacts, "that it shall be lawful to import such goods belonging to subjects of the United Provinces, or to any who were sub- jects before the llitli of January, 1795, or to any subject of his Majesty, to be landed and secured in wareliouses for tiie benefit of the proprietor, and for the se- curity of tlie revenue." Subsequent acts contain further regulations for property coming from Holland, in the ambiguous situation of the two countries at that time. CHAP, rr.] THE " HOOP." 523 has the power of entirely removing the state of war, has the power of removing it in part, by permitting, where he sees proper, that commercial intercourse which is a partial suspension of the war. There may be occasions on which such an intercourse may be highly expedient. But it is not for individuals to determine on the expe- diency of such occasions on their own notions of commerce, and of commerce merely, and possibly on grounds of private advantage not very reconcilable with the general interest of the state. It is for the state alone, on more enlarged views of policy, and of all circum- stances which may be connected with such an intercourse, to deter- mine when it shall be permitted, and under what regulations. In my opinion, no principle ought to be held more sacred than that this intercourse cannot subsist on any other footing than that of the direct permission of the state. Who can be insensible to the conse- quences that might follow, if every person in a time of war had a right to carry on a commercial intercourse with the enemy, and un- der color of that, had the means of carrying on any other species of intercourse he might think fit ? The inconvenience to the public might be extreme ; and where is the inconvenience on the other side, that the merchant should be compelled, in such a situation of the two countries, to carry on his trade between them (if necessary) un- der the eye and control of the government, charged with the care of the public safety ? "Another prmciple of law, of a less public nature, but equally general in its reception and direct in its application, forbids this sort of com- munication as fundamentally inconsistent with the relation at that time existing between the two countries; and that is, the total in- ability to sustain any contract by an appeal to the tribunals of the one country, on the part of the subjects of the other. In the law of almost every country, the character of alien enemy carries with it a disability to sue, or to sustain in the language of the civilians a per- sona standi injudicio. The peculiar law of our own country applies this principle with great rigor. The same principle is received in our courts of the law of nations ; they are so far British courts, that no man can sue therein who is a subject of the enemy, unless under particular circumstances tliat p>7'o ^mc vice discharge him from the character of an enemy; such as his coming under a flag of truce, a cartel, a pass, or some other act of public authority that puts him in the King's peace jy^'o hdc vice. But otherwise he is totally ex. lex ; even in the case of ransoms which are contracts, but contracts aris- ing ex jure belli, and tolerated as such, the enemy was not permitted to sue in his own proper person for the payment of tlie ransom bill ; but the payment was enforced by an action brought by the impris- 524 EFFECTS OF WAE AS BETWEEX ENEMIES. [PAKT II. onecl hostage in the courts of his own country, for the recovery of his freedom. A state in which contracts cannot be enforced, cannot be a state of legal commerce. If the parties who are to contract have no right to compel the performance of the contract, nor even to appear in a court of justice for that purpose, can there be a stronger proof that the law imposes a legal inability to contract ? To such transactions it gives no sanction ; they have no legal existence ; and the whole of such commerce is attempted without its protection and agamst its authority. Bjnikershoek expresses himself with great force upon this argument in his first book, chapter 7, where he lays down that the legality of commerce and the mutual use of courts of justice are inseparable ; he says, that cases of commerce are undis- tinguishable from cases of any other species in tliis respect. ' Si hosti semel permittas actiones exercere, difficile est distinguere ex qua causa oriunter, nee potui animadvertere illam distinctionem usu fuisse servatani.' " Upon these and similar grounds it has been the established rule of law of this court, confirmed by the judgment of the Supreme Court, that a trading with the enemy, except under a royal license, subjects the property to confiscation; — and the most eminent persons of the law sitting m the SuiDreme Court have uniformly sustamed such judgments. * * * i " I omit many other cases of the last and the present war merely on this ground that the rule is so firmly established, that no one case exists which has been permitted to contravene it, — for I take upon me to aver, that all cases of this kind which have come before that tribunal have received an uniform determination. The cases which I have produced, prove that the rule has been rigidly enforced : — where acts of parliament have on different occasions been made to relax the navigation-law and other revenue acts ; where the govern- ment has authorized, under the sanction of an act of parliament, a homeward trade from the enemy's possession, but has not especially protected an outward trade to the same, though intimately con- nected with that homeward trade, and almost necessary to its exist- ence ; that it has been enforced where strong claim not merely of 1 In support of this rule Sir W. Scott reviews a large number of cases decided on appeal by the Lords of Appeal. These cases are the following : The Rin(]ende Jacob, 1750; The Lady Jane, 1749; Deergaden, 1747; The Elizabeth, 174!); The Juffiow Louisa Marijnretha, 1781; The St. Louis, \1%\ ; The Victoria, 1781; The Comfe de Wohrour/off, 1781; The Guidila, 1785; The Eenigheid, 1795; The Fortu)ia, 1795; The Freedom, 1795; The William, 1795. Tliese were all cases in which tlie property in question was condemned, though some of tlieni, like the case of the IIoop, were cases of great hardship upon Britisii merchants. — Ed. CHAP. II.] POTTS V. EELL. 525 convenience, but almost of necessity, excused it, on behalf of the individual ; that it has been enforced where carriages have been laden before the war, but where the parties have not used all possible dili- gence to countermand the voj-age after the first notice of hostilities ; and that it has been enforced not only agahist the subjects of the crown, but likewise against those of its allies in the war, upon the supposition that the rule was founded on a strong and universal principle, which allied states in war had a right to notice and apply, mutually, to each other's subjects. Indeed it is the less necessary to produce these cases, because it is expressly laid down by Lord Mansfield, as I understand him, that such is the maritime law of England." {Gist v. Mason, 1 T. R., 85.) [In conclusion. Sir W. Scott held that the acts of Parliament in question were not intended to legalize the trade without special licenses ; and that the law advisers of the commissioners were wrong in their conclusions to that effect. The property was therefore con- demned according to the strict rule of law.] POTTS V. BELL. Kixg's Bench, 1800. (8 Term Repoiis, 548.) This was the case of a neutral ship captured by a French cruiser on a voyage from Rotterdam to Hull, for having on board enemy property (English). These goods were bought in Rotterdam by the agent of an English house, after the breaking out of hostilities between France and England, and insured in an English company. An action was brought on the insurance policy. The defendant insisted that the plaintiff was not entitled to re- cover ; because the policy was void, inasmuch as it was not lawful to trade with the enemy. The Common Pleas found for the plaint- iffs. But on appeal, this judgment was reversed : Judgment, — Lord Kexyon, Ch., J. : — " The court had very fully con- sidered the case immediately after the very learned argument which had been made by the King's advocate. Sir J. Xicholl, in the last term. That the reasons which he had urged and the authorities he had cited were so many, so uniform, and so conclusive to show that a British subject's trading with an enemy was illegal, that the ques- tion might be considered as finally at rest. That those authorities, it was true, were mostly drawn from the decisions of the admiralty 526 EFFECTS OF WAK AS BETWEEN ENEMIES. [PAE-T II. courts ; and that though all diligence had been used, there was only one direct authority on the subject to be found in the common-law books, and that one was to the same effect. But that the circum- stances of there being that single case only was strong to show that the point had not been since disputed, and that it might now be taken for granted that it was a j^rinciple of the common law that trading with an enemy without the King's license was illegal in British subjects. That it was therefore needless in this case to delay giving judgment for the sake of pronouncing the opinion of the court in more formal terms ; more especially as they could do little more than recapitulate the judgment with the long train of authorities, already to be found in the clearest terms in the principal report of the case of the Hoop published by Dr. Robinson. That the consequence was that the judgment of the court of Common Pleas must be reversed." FLINDT V. SCOTT. SAME V. CROCKATT. In the Exchequer Chamber, 1814. (5 Taunton, 674 ) Thomson, C. B. His lordship stated the declaration and the special verdict at large. The merits of this case must mainly, if not entirely, depend on the effect and operation of the license, under which the cargo, the subject of the insurance in question, was shipped. If the shipment made under the sanction of the license is legal, then the insurance on it must be so, too, and the underwriter is responsible for the loss that has happened by the seizure of the cargo, unless he can establish some good ground for being discharged from that responsibility. It is proper to consider the nature and end of such a license as the present, issued by the government of this coun- try during hostilities with foreign nations; there can be no doubt that the sovereign may, during a war, equally license the trading of any of his subjects with an enemy, or license enemies to trade with his subjects. The great object of obtaining such an intercourse by such license was to provide the means of exporting, notwithstanding the pressure of war, the manufacturers of this country, and to receive in return from the other country such articles as we most stood in need of; and that was particularly the case with respect to Eussia : we wanted the produce of that country in general, and espe- CHAP. II.] FLINDT V. SCOTT. 527 cially the article of naval stores. And these licenses to trade, how- ever they may have been formerly construed strictly, are now in all courts construed more liberally, and favorably to trade, in order to effectuate the benefits intended to result from them. There is in the present instance nothing, either in the terms of the license, or in the principles of public policy, which ought to restrict the operation of the authority given to the exportation of property belonging to the subjects of this country only; on the contrary, the license is granted to Gustavus Flindt and Co. of London, merchants, on behalf of them- selves and others, to export a cargo from London to Archangel, being an enemy's port, and to import from thence in the same ship a cargo of such goods as are permitted by law to be imported (with some exceptions), to any port in the United Kingdom, notwithstanding all the documents which accompany the ship and cargo may represent the same to be destined to any neutral or hostile port, and to whom- soever such property may appear to belong: terms, which to me suffi- ciently indicate thab the cargo, either outwards or homewards, might legally comprehend the property of enemies. And these terms have been adopted for that very purpose, which terms in the opinion of the very learned judge of the Court of Admiralty (as appears from the case of the Cousine Marianne), have in that court been held to exclude all inquiry in whom the property is vested. Our government, in licensing a trade directly with the enemy at this port, must have had a view both to exportation and importation. Why may not the license be construed to permit the exportation of a cargo by an enemy to that hostile port, from whence the return cargo is to be imjDorted? The cargo exported from this country must necessarily be consigned to, and ultimately become the property of a foreigner at that port: why then may it not be permitted to the foreigner at once to acquire the property here, and to export the goods by his agent in this country? In Feise and Another v. Bell, 4 Taunt. 4, under a license to a British merchant by name, on behalf of himself and others, to export a cargo to St. Petersburg, and to import a cargo from thence; though an alien enemy was interested both in the exported and im- ported cargoes, yet the Court of Common Pleas held that it was no objection to the plaintiff's recovering on their insurance. In Morgan V. Oswald, 3 Taunt. 554, a question arose upon a license granted to a British merchant, that a ship might go to an hostile port, and bring home a cargo of goods. It permitted a vessel, bearing any flag except the French, to proceed in ballast from any port north of the Scheldt, to Archangel, or any other port in the White Sea, there to load a cargo of such goods as were permitted by law to be imported (with some exceptions), and to proceed with the same to a port of the 528 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. United Kingdom. It was held, that license authorized the importa- tion of goods, the property of an alien enemy, the subject of that hostile country; and therefore authorized him to insure and to en- force his contract of insurance in the courts of this country. In the case of Bobinsoii v. Touray, 1 Maule & Selw. 217, which arose on the same ship, license and policy, the Court of King's Bench adopted the same doctrine. In the case of Fenton and Another, Assirjnees of Rennauds, Banknqjts, v. Pearson, 15 East, 419, the Court of King's Bench determined that a trading license from the crown to British merchants to send a ship in ballast to an enemy's port, there to receive and load a cargo, and import it into this country, by legaliz- ing the purchase by the subject, legalized the sale by the enemy, and impliedly legalized his right to stop the goods hi transitu, after their arrival in port here, upon the intermediate insolvency of the vendees, the whole price not being paid, and the part that had been paid being offered to be refunded; and that the alien enemy was permitted to employ an agent here for that purpose. The assignees of the ven- dees, who had become bankrupts, were therefore not allowed to recover against him in an action of trover. The second objection made to the plaintiff's recovering in this case was, that the under- writers were not answerable for this loss, because it was occasioned by the act of the Russian Government, to which the persons interested must be supposed to have given their assent, they being Russians. And in support of that position two cases were cited, Touteng v. Hub- hard, 3 Bos. & Pull. 291, and Conway v. Gray, 10 East, 554. The first was a case where a British merchant chartered a Swedish ship on a voyage to St. Michael's for a cargo of fruit, and the charter- party contained the usual exception against the restraint of princes; and the ship being prevented from reaching St. Michael's within the fruit season by an embargo laid on Swedish vessels by the British Government, the question was, whether the Swedish owner acquired a right, by proceeding on the voyage after the embargo was taken off (when it was too late to obtain a cargo), to recover the freight against the British merchant. The court determined that he had no such right; and they went farther, and determined, what was not then a question before them, that an insurance upon the property of a for- eigner against a loss remotely occasioned by an act of his own state would be illegal. It was not the main question in that case, though certainly it was so decided. The case of Conway v. Gray proceeded in a degree on the authority of Touteng v. Hubbard. In that case it was decided, that an American subject could not recover for a loss sustained by reason of an embargo laid on in one of the ports of his own country by his own government. But these decisions, even sup- CHAP. II.] FLINDT V. SCOTT. 529 posing them to be correct as applied to the cases in which they were made, do not affect the present case; for if this license is to be deemed (which I think it is) sufficient to cover the Russian j)roperty, and authorizes a trading to the enemy's port, that incidentally legal- izes the insurances made on that property, which must protect it throughout, till the conclusion of that risk, just as if it had belonged to British subjects. The underwriters, knowing that these goods are going to llussia, to an enemy's port, and being willing that the adventure should proceed with simulated papers and documents, assent to the design of the owners of the goods to contravene the regulations of that country, to which they are to be consigned, and take on themselves the risk of confiscation in the event of the fraud being detected. The effect of the license is, to convert this Russian, though an alien enemy, as it were, into an alien friend, and so far to separate him from the acts of his government, as concerns the subject matter of this license. Lord Ellenborough, in the case of TJsparicha V. Noble, 13 East, 332, has delivered himself so forcibly and clearly on th:it point, and the circumstances of that case in many respects resemble the present so much, that I shall make no apology for stat- ing that judgment at large. [His lordship then stated that case, and read the whole of Lord Ellenborough's judgment thereon], add- ing, This opinion seems to go all the length of establishing the righj; of this plaintiff to sue and recover in the present cause, though it is perfectly well known that his lordship has not entirely adhered to the judgment he had formerly given, but that, on the contrary, in the case now in judgment he contrasts it with the opinion he had given in the case that has been cited. The result of the whole is, that we are clearly of opinion (though the reasons of that opinion, I ought to say, are ray own only) that as the case appears, the license legalizes the whole transaction, the insurance in question was prop- erly made, and the circumstance that the confiscation of the property was made by the Russian Government, will not affect the plaintiff's right to recover in this action. And therefore the judgment of the Court of King's Bench ought to be reversed, and judgment ought to be given for the plaintiff. I should add, that INIr. Baron Wood, who is prevented from attending by indisposition, concurs in the judgment of the court. ^ Judgment for the plaintiff.^ ^ This case was learnedly argued, the judgment carefully considered, and it has been repeatedly cited and approved. Tlie case of Usparicha v. Noble, 1811, 13 East, 322, held tliat a native Spaniard domiciled in Great Britain in time of war between Great Britain and Spain, having been licensed in general terms by tlie King of Great Britain to ship goods in a neutral vessel to certain points of Spain, such commerce is 3i 530 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAllT n. WILLIAMS V. MAKSHALL. Common Pleas, 1815. (6 Taunton, 390.) GiBBS, C. J. I should have been exceedingly glad to find that this license was substantially complied with. The voyage to be performed was illegal without a license : one of the terms on Avhich the license was granted is, that the goods shall be exported on or before the 10th September: these goods were not cleared at the custom house till the 9th of September : the ship had not sailed on the 10th of Sep- tember, On the 12th she was at Gravesend, but when she weighed it does not appear. Whether she was covered by this license, or not, depends on the question whether she sailed on the 10th. I cannot say, however I may be disposed to favor the plaintiffs, that the clearing at the custom house is an exportation. Considerable light is thrown on the question by the fact, that by the regulations, or at least by the practice of this country, the drawback is not paid till after the passing Gravesend; and therefore upon the interpretation, which has prevailed, of those acts of Parliament which give a draw- back, it appears that ships are not considered as having exported till after passing Gravesend; therefore, with every disposition to favor this action, we cannot say that the plaintiffs are entitled to recover. Rule absolute for a new trial, the defendant admitting the two policies as stated in the declaration.^ legalized for all purposes of its due and effectual prosecution, either for tlie benefit of tlie party himself or of his correspondents, althouglx residing in the enemy's country. — Ed. 1 A license to trade is not assignable (unless clearly general in its terms and intent) Feise V. Thompson, 1807, 1 Taunt. 121 ; The Acteon, 1815, 2 Dod. 48 ; if subject to condition, license is void if condition is not complied with, Camelo v. Britten, 1820, 4 B. & Aid. 184 : " We have arrived at this conclusion with great reluctance ; because it appears that in this case there was no intention to violate the law, and that this was the usual mode of carrying on the trade. We, however, feel ourselves obliged to say that the terms of the license have not been complied with: Tiie consequence of which is, that the plaintiff cannot recover" (per Abbott, C. J.) ; License to one set of British merchants cannot be used to cover trading by other British merchants, without connecting them together, Bush V. Bell, 1812, 16 East, 3; importation of more goods than license warrants will not vitiate insurance on goods licensed, Prischell v. Allnnt, 1813, 4 Taunt. 792 ; Keir v. Anrhdde, 1810, 2 Marsh. 190 ; license as to goods in siiip will legalize insurance on ship aud competent for British agent of both parties, in whose name insurance was CHAP. II.] THE " SEA LION." 531 THE "SEA LION." Supreme Court of the United States, 1S66. (5 Wallace, 630.) An act of Congress passed during the late rebellion (July 13th, 18G1), prohibited all commercial intercourse between the inhabitants of any State which the President miglit declare in a state of insur- rection, and tlie citizens of the rest of the United States; and enacted that all merchandise coming from such territory into other ports of the United States with the vessel conveying it should be forfeited. The act provided, however, that "the President'''' might "in /UES. [PART U. PEEKIXS V. EOGERS, 1871. (35 Indiana, 124, 167.) i BuSKiRK, J. The foregoing authorities clearly establish the fol- lowing propositions : First, that the war-making power is, by the Con- stitution, vested in Congress, and that the President has no power to declare war or conclude peace, except as he may be empowered by Con- gress. Second, that the existence of war and the restoration of peace are to be determined by the political department of the government, and that such determination is binding and conclusive upon the courts, and deprives the courts of the power of hearing proof and determin- ing as a question of fact either that war exists or has ceased to exist. Third, that the courts will take judicial notice of the existence of war or the restoration of peace when proclaimed by the President. Fourth, that the late rebellion did not become a civil war and was not governed by the rules of war, until the IGth of August, 1S61, when the President issued his proclamation under and in pursuance of the act of Congress of July 13, 1861. Fifth, that ci'^il war is governed by the same rules as a foreign war, and that the legal consequences are the same. Sixth, that the proclamation of the President placed all the inhabitants of the State of Louisiana in a state of insurrec- tion, made them the enemies of the United States and the inhabitants of the adhering States, and rendered all commercial intercourse un- lawful, except such as might be carried on under and by virtue of a special license and permit of the President under the rules and regu- lations prescribed by the Secretary of the Treasur3\ Seventli, that all contracts made during the war by belligerents, and not licensed and permitted by the President, were absolutely void. Eighth, that contracts made prior to the war were suspended during 'the existence Mesurier, 4 East, 407. The ground of tlie decisions was that a State could not put the same pressure on its enemy if the enemy knew it couhl be recouped at tlic end of the war hy subjects of that state. This principle applies witli equal if not greater force to insurance on goods seized by tiie government of the assured. Payment of sucli in- surance would be relieving the enemy's subject from the pressure put upon him by liis own government to carry on the war, and would in effect be paying the enemy's expenses. On principle and authority the case is wrong, though it has the practical advantage of affording relief to commerce." — Ed. ^ On the question of trading with the enemy across the lines between Louisiana and Indiana during the civil war, Mr. Justice liuskirk delivered an exceedingly elabo- rate opinion, in which the authorities are considered at length. It I'.igests admirably the doctrines of the previous sections. The part of the opinion printed above con- ciuded the judgment of the learned judge. — Ed. CHAP. II.] PERKINS V. ROGERS. 555 of such war; that the remedy upon such contracts was suspended until the restoration of peace, when the debt and the remedy revived. Ninth, that during the existence of the war an inhabitant of a State in rebellion had no right to institute or maintain any suit in any court in the adhering States, and that, consequently, the Statute of Limitations did not run against such person during the existence of the war. Tenth, that the only legal effect of the occupation of the City of New Orleans was to authorize the President to exercise the discretionary power vested in him by the proviso to the 5tli section of act of Congress of July 13, 1861 ; that by said act of Congress the President was authorized to license and permit limited commercial intercourse; that such persons as had a license and permit frcm the President might lawfully trade ; that such license and permit did not confer any right beyond that of trading; that no citizen of the State of Louisiana had the lawful right to carry on commercial intercourse without he had a license and permit from the President issued in strict conformity to the rules and regulations prescribed by the Secre- tary of the Treasury; that such occupation did not restore peace or release the inhabitants thereof from the legal consequences of their alienage and enmity, or give them a personal standing in our courts. Eleventh, that the plaintilf, being an inhabitant of the State of Louisiana during the war, was the enemy of all the inhabitants of Indiana, and consequently had no right during the existence of the war to institute and maintain an action on the contract sued on. Twelfth, that while the courts will take judicial notice that all the inhabitants of the State of Louisiana were in insurrection, they will not take judicial notice that any of such inhabitants maintained a loyal adhesion to the Union and Constitution, or that any part of said State was occupied and controlled by the forces of the United States engaged in the dispersion of the insurgents, or that any par- ticular person had a license or permit from the President to carry on commercial intercourse, but that a party relying upon such facts must allege and prove them. Thirteenth, that while actual hostilities ceased in April, 1865, peace with its legal consequences was not restored until the 20th of August, 1866, when the President issued his proclamation proclaiming that peace existed throughout the land. Fourteenth, that no part of the account sued on was created during the existence of civil war, and when commercial intercourse was unlawful. Fifteenth, that the time that intervened between the 16th of August, 1861, and the 20th of August, 1866, is not to be included in determining whether this action is barred by the statute of limi- tations, and that excluding such time the action is not barred. Six- teenth, that when a statute of limitations contains no exceptions, and it appears upon the face of the complaint that the action is barred, 556 EFFECTS OF WAR AS BETWEEN ENE>nES. [PART II. the question can be raised by demurrer, but where there are excep- tions, the statute must be pleaded, so as to give the plaintiff the opportunity of replying the facts tliat will bring it within the excep- tion. Seventeenth, the conclusions that we have reached in this case render it unnecessary to examine the question of whether this action was taken out of the operation of the Statute of Limitations by a new promise or acknowledgment, further than to sa}' that when the letter relied on was written, war existed, which rendered the parties ene- mies, and made all contracts entered into between them absolutely void. Section 30. — Duty of Subject or Citizen to come home on out- break OF AVar. Story, J., in the brig Joseph, 1813, 1 Gall. 545, 552: It has been farther argued, that a declaration of war is, in effect, a command to the citizens of the belligerent country abroad at the time to return home, and that the law allows a reasonable time and way to effect it. I am not aware of any principle of public law which obliges every absent citize:i to return to his country, on the breaking out of the war, nor has any autliority been produced which countenances the position. It may be admitted, that the sovereign power of the country has a right to require the services of all its citizens, in time of war, and for this purpose may recall them home under penalties for disobedience. But until the sovereign power has promulgated such command, the citizens of the country have a perfect right to pursue their ordinary business and trade in and with all other countries, except that of the enemy. Upon any other supposition all foreign commerce would, dur- ing war, be suspended ; for if it were tlie duty of absent citizens to return, it would, upon tlie same principle, be the duty of those at home to remain there. As to citizens in the hostile countr}', the dec- laration of war imports a suspension of all farther commerce with such country, and obliges them to return, unless they would be in- volved in all the consequences of the hostile character. If they wish to return, they must do it in a manner which does not violate the laws ; and their property cannot be removed with safety from the enemy country unless under the sanction of their own government. But even if the position were generally true, that is contended for, the law would never deem that a reasonable mode of conveying prop- erty home which involved it in a noxious trade with the public enem}-. That can never be held to be a reasonable mode of returning a ship to the United States which involves her in a traffic forbidden by the laws. CHAP, ir.] THE " RAPID." 557 THE ''RAPID." Supreme Court of the United States, 1814. (8 Cranch, 156.) This was an appeal fi-om the sentence of the circuit court, for the district of Massachusetts. The material facts in the case "were tliese. Jabez Harrison, a native American citizen, the claimant and ap- pellant in this case, liad purcliased a quantity of English goods in England, before the declaration of war by the United States against that country, and deposited them on a small island, belonging to the English, called Indian Island, and situated near the line between Nova Scotia and the United States. Upon the breaking out of the war, Harrison's agents in Boston hired the Jiapfd, a vessel licensed and enrolled for tlie cod fisliery, to proceed to the place of deposit and bring away the goods. The Rapid accordingly sailed from Bos- ton, on the 3d of July, 1812, with Harrison, the claimant, on board, proceeded to Eastport, where Harrison was left, and from thence, agreeably to Harrison's orders, to Indian Island, where the cargo in question was taken on board. On the eighth of July, while on his return, she was captured by the Jefferson Privateer, on the high seas, and brought into Salem, The goods, being libeled as prize, and claimed by Harrison as his property, were condemned in the circuit court of Massachusetts to the captors, on the ground that by " trading \\\X\\ the enemy," they had acquired the .character of enemies' property. A claim was also interposed by the United States, on the ground of a violation, by the Rapid^ of the ncm-intercourse act. This claim was also rejected. From the decree of the circuit court the United States and Harrison appealed ; at the trial before the Supreme Court the government of the United States did not interpose its claim. The Court dwelt at considerable length upon the general princi- ples of the rule which prohibited trading between enemies ; and as there was no question of the observance of this rule in international law, this part of the opinion is omitted. The claimant contended, however, that there was not a trading with the enemy in tliis case ; that on the breaking out of war, every citizen had a right to with- draw property lying in the enemy's country and purchased before the war. Only so much of the opinion as bears upon this point is given. 558 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET 11. Judgment, — Johnsox, J. : — u * * * After taking this general view of the principal doctrine on this subject, we will consider the points made in belialf of the claimant in this case, and, 1. Whether this was a trading, in the eye of the prize law, such as will subject the property to capture? " The force of the argument on this point depends upon the terms made use of. If by trading^ in prize law, was meant that signifi- cation of the term which consists in negotiation or contract, this case would certainly not come under the penalties of tlie rule. But the object, policy, and spirit of the rule is to cut off all communica- tion or actual locomotive intercourse between individuals of the belligerent states. Negotiation or contract has, therefore, no nec- essary connection with the offence. Intercourse inconsistent with actual hostility, is the offence against which the operation of the rule is directed ; and by substituting this definition for that of trad- ing with an enemy, an answer is given to this argument. " 2. Whether, on the breaking out of a war, the citizen has a right to remove to his own country with his property, is a question whicli we conceive does not arise in this case. This claimaint certainly had not a right to leave the United States, for the purpose of bring- ing home his property from an enemy's country ; much less could he claim it as a right to bring into this country, goods, the importa- tion of which was expressly prohibited. As to the claim for the vessel, it is founded on no pretext whatever ; for the undertaking, besides being in violation of two laws of the United States, was al- together voluntary and inexcusable. With regard to tlie importa- tions from Great Britain about this time, it is well known tliat the forfeiture was released on grounds of policy and a supposed obliga- tion induced by tlie assurances which had been held out by the American charge d'affaires in England. But this claimant could allege no such excuse. " 3. On tlie third pomt, we are of opinion that the foregoing obser- vations furnish a sufficient answer. " If the right to capture property thus offending, grows out of a state of war, it is enough to support the condemnation in this case, that the act of Congress should produce a state of war, and that the commission of the privateer should authorize the capture of any property that shall assume the belligerent character. " Such a character we are of opinion this vessel and cargo took upon herself ; or at least, she is deprived of the right to prove her- self otherwise. " We are aware that there may exist considerable hardship in this case ; the owners, both of vessel and cargo, may have been uncon- scious that they were violating the duties which a state of war im- CHAP, ir.] THE "ST. LAWRENCE," 559 posed upon them. It does not appear that they meant a daring violation either of the laws or belligerent rights of their country. But it is the unenvied province of this court to be directed by the head, and not by the heart. In deciding upon principles that must define the rights and duties of the citizen and direct the future de- cisions of justice, no latitude is left for the exercise of feeling." THE ''ST. LAWRE]^CE." SUPUEME CO'JRT OP THE UNITED SXATES, 1814-1815. (8 CrancJi, 434, and 9 Cranch, 120.) This was an appeal from the sentence of the United States Circuit Court for the district of New Hampshire. The ship St. Lawrence was captured on the 20th of .June, 1813, and, with her cargo, libeled as prize, in the District Court of Xew Hampshire. On the 5th of IVIay, 1813, a license was granted by the privy council of Great Britain to Thomas White of London, and others, permitting them to export, direct to the United States, an enumerated cargo in the St. Lawrence, provided she cleared out be- fore the last day of that month. On the 30th of May, 1813, she sailed from Liverpool for the United States with the cargo specified in the license. Mr. Alexander M'Gregor and his family were passengers on. board. It appeared from the examination of Mr. M'Gregor, that he was born in Scotland, was naturalized in the ITnited States in 1795, had lived, the last seven years, in Liverpool, and was returning in the St. Lawrence, with his family to the United States. There were several claimants, but only so much of the case is given as refers to the claims of M'Gregor and Penniman. Webster, for M'Gregor and Penniman, said : " We contend that a distinction is to be taken between an American citizen, domiciled hi England at the breaking out of the war, with- drawing his funds, and an American citizen who goes to England after the declaration of war, for the same purpose. That the former, whether a native or naturalized citizen, has a right (and perhaps it is his duty) to return to the United States with his effects. If he has no such right, why should the law of nations have provided a reasonable time for removing in case of war ? "This rule of the law of nations has been founded upon the necessity of the case, and upon the hardship which would attend the want of such a rule. A citizen of one country may lawfully go to any other 560 EFFECTS OF WAR AS BETWEEN EyE:MTES. [PATJT IT, country, in time of peace, and take up his residence there ; and it would be very hard if he must suffer by the sudden and unexpected breaking out of a war — an event over which he had no control. A neutral would be permitted to withdraw his funds in such a case ; and if we should allow the privilege to neutrals, why should we deny it to our own citizens ? 1 Rob., 1, The Yigilantid 1 / Bos. and PuL, 355, Bellx. Gitson. "The case of Escott, cited in The Hoo]-), 1 Rob., 165, 196, may per- haps be thought to make against our claim. " But the cases are not alike. In that case, Escott seiit for his prop- erty : here M'Gregor came with his. "A character gained by residence, is lost by non -residence. "When M'Gregor ceased to reside in England, his character, if hostile before, no longer continued liostile. That it was not his intention to continue his residence in England, is clearly evidenced by his actual return to the United States with his family. "With regard to his half of the ship, we contend that if he had a right to return, he had a right to use the means necessary for that purj^ose — he had a right to purchase a ship for the conveyance of himself and his family. So if it was lawful for him to withdraw his funds, he might la^^■fully invest those funds in merchandise, if he could not otherwise withdraw them. 4 Rob., 161, 195, Tlie JSLidonna delle Grade ; 3 Rob., 11, 1-2, The Indian Chief; 5 Rob., 248, The .Preside)it ; 5 Rob., 84,90, The Ocean; 5 Rob., 60, Tlie Dianar Judgment : — " It is not the intention, to express any opinion as to the right of an American citizen, on the breaking out of hostilities, to withdraw his property purchased before the war, from an enemy country. Admitting such right to exist, it is necessary that it should be ex- ercised with due diligence, and within a reasonable time after the knowledge of hostilities. To admit a citizen to withdraw property from an enemy country, a long time after the war, under the pretence of its having been purchased before the war, would lead to the most injurious consequences, and hold out strong temptations to every species of fraudulent and illegal traffic with the enemy. To such an unlimited extent we are all satisfied that the right cannot exist. The present shipment was not made until more than eleven months had elapsed after war was declared ; and we are all of opinion that it was then too late for the party to make the shipment, so as to exempt him from the penalty attached to an illegal traffic with the enemy. The consequence, is that the property of Mr. Penniman must be condemned. " And ilieir decision is fatal, also, to the claim of Mr. ^NFGregor. Independent, indeed, of the principle, there are many circumstances CHAP. II.] AMORY V. McGREGOR. 561 in the case unfavorable to the latter gentleman. In the first place, it is not pretended that the g-oods included in his claim were pur- chased before the war. In the next place, he was the projector of the present voyage, and became, as to one moiety, the charterer or purchaser of the ship. Nearly all the cargo consisted of goods belong- ing (as it must now be deemed) exclusively to British merchants. He was, therefore, engaged in an illegal traflBc of the most noxious nature ; a traffic not only prohibited by the law of war, but by the municipal regulations of his adopted country. His whole property, therefore, embarked in such an enterprise, must alike be mflicted with the taint of forfeiture." AMORY AND OTHERS v. McGREGOR. Supreme Court of New York, 1818. (15 Johnson, 24.) Thompson, C. J., delivered the opinion of the court.^ The first question that arises is, whether this shipment was not. made contrary to the non-intercourse act, so that the goods were there- by forfeited, and the plaintiff's title gone. If the non-intercourse law was in full force and operation at the time of the shipment, I do not see why the principles which governed the case of Fontaine v. The Phmnix Insurance Company, 11 Johns. Rep. 293, would not apply. The forfeiture was incurred by the act of putting the goods on board, with intent to import the same into the United States ; and, according to the principle adopted in that case, the owner loses his right to tlie property immediately on the commission of the act which produces the forfeiture. There is, however, a distinction between the two cases. Here the circumstances may warrant the conclusion that the shipment was made, under an impression and belief that the repeal of the orders in council would terminate the differences between tlie two nations, and that the non-intercourse act would not be enforced. And the subsequent act of the 2d of January, 1813, shows the reason- ableness of such opinion by remitting the forfeiture in cases where the shipment was made under such belief. But it has been decided, in the Supreme Court of the United States, that the declaration of war virtually repealed and annulled the non-intercourse act, as between us and Great Britain. In the case of The Sally, 8 Crancli, 384, the court say the municipal forfeiture, under the non-intercourse act, was ab- sorbed in the more general operation of the law of war. The prop- erty of an enemy seems hardly to be within the purview of mere 1 Statement of facts omitted, together with last paragraph of the opinion. — Ed. 36 662 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11, municipal regulations, but is confiscable under the jus gentium. If, by the declaration of war, on the 18th of June, 1812, the non-inter- cour.se act ceased to be in force, there was nothing making it unlawful for the plaintiffs to import the goods in question, except the existence of the war itself. The question is then presented as to the right of an American citizen, at the breaking out of war, to withdraw his goods from the enemy's country. Whether these goods were liable to British capture is not the question before us. This branch of the defence is placed on the ground that it was an illegal act, on the part of the jdaintiffs, to withdraw these goods ; and that, therefore, a court of justice will not enforce any contract growing out of such illegal con- duct. That all trading with an enemy is illegal is a general and well- settled rule. The principle is recognized and sanctioned, as well by the common law as by the maritime codes of all the European nations, 8 Term. Kep. 554. It is a wise and salutary rule ; but it Vv^ould re- quire the most direct and controlling authority, to satisfy my mind, that the mere act of withdrawing goods from the enemy's country, at the breaking out of a war, comes within the reason or policy of the rule ; and no case has fallen under my observation that has pressed the principle thus far. Several cases, in the Supreme Court of the United States, have been referred to as containing that doctrine ; but, on examination, they will not be found to support it. The case of The Bajj'id, 8 Cranch, 155, has been relied on as one of the strongest. But that case was essentially different from the present, and decided upon a very distinct principle. Harrison, the claimant, who was an American citizen, had purchased a quantity of English goods, before the declaration of war, and deposited them on a small island belonging to the English, near the line between the United States and Nova Scotia ; and after the declaration of war, he sent a vessel, licensed and enrolled for the cod fishery, and brought the goods away, which, on their return, were captured by an American privateer, and con- demned, in the Circuit Court of Massachusetts, for trading with the enemy. On appeal, this sentence was affirmed. Judge Johnson, in delivering the opinion of the court, expressly waives giving any opinion upon the point now under consideration, although in very strong and emphatic language he interdicts all intercourse with tlie enemy. In a state of war, he says, nation is known to nation only by their armed exterior, each tlireatening the other with conquest or annihilation. The individuals who compose the belligerent states exist, as to each other, in a state of utter occlusion. In war, every individual of one nation must acknowledge every individual of the other nation as his own enemy. Trading, says he, does not consist in negotiation, or contract, but the object, policy, and spirit of the rule is to cut off all communication, or actual locomotive intercourse, CHAP. II.] AMORY V. McGREGOR. 563 between individuals of the belligerent states. Contract has no con- nection with the offence. Intercourse inconsistent with actual hos- tility is the offence against which the operation of the rule is directed. But, after thus narrowing all intercourse, he says, whether on the breaking out of a war the citizen has a right to remove to his own country, with his property, is not the question before the court. The claimant had no right to leave the United States, for the purpose of bringing home his property from an enemy's country. This was the point on which the decision turned. So, again, in the case of The St. Lawrence, 8 Cranch, 434, the court say they do not mean to decide on the right of an American citizen, having funds in England, to with- draw them, after a declaration of war, or as to the latitude which he may be allowed in the exercise of such a right, if it exists. That Judge Story did not mean to be understood as deciding this question, in the case of The Rapid, is evident from what fell from him in the case of The St. Laxorence, when again before the court, 9 Cranch, 121 ; he says that it is not the intention of the court to express any opinion, as to the right of an American citizen, on the breaking out of hostili- ties, to withdraw his property, purchased before the war, from an enemy's country. Admitting such a right to exist, it should be ex- ercised with due diligence, and within a reasonable time after the knowledge of hostilities. Thus it will be seen that this question never has been decided in the Supreme Court of the United States. And, from the guarded and cautious manner in which that court has reserved itself, upon this par- ticular question, there is reason to conclude that, when it is distinctly presented, it will be considered as not coming within the policy of the rule that renders all trading or intercourse with the enemy illegal. In Hallett & Bowne v. Jenks, 3 Cranch, 219, the question before the court involved the inquiry as to what circumstances might excuse a trading vs^ithout incurring the penalties of the non-intercourse act of 1798. Ch. J. Marshall, in delivering the opinion of the court, observes that, even if an actual and general war had existed between this country and France, and the plaintiff had been driven into a French port, apart of his cargo seized, and he had been permitted to sell the residue, and purchase a new cargo, it would not have been deemed such a traffic with the enemy as would vitiate the policy upon such new cargo. According to this opinion, an actual trading with the enemy may, under some "circumstances, be deemed lawful. Inde- pendent, however, of this general question, the withdrawing of the goods in question may very fairly be considered as falling within the principle settled by the Supreme Court of the United States, in the case of TJie Thomas Gibbons, 8 Cranch, 421. It was there held that a shipment made, even after a knowledge of the war, may well be 564 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAKT IT. deemed to have been made in consequence of the repeal of the orders in council, if made within so early a period, as would leave a reason- able presumption that the knowledge of that repeal would induce a suspension of hostilities on the part of the United States ; and that Congress had acted upon that principle, by the act of the 2d of Jan- uary, 1813, ch. 149, and fixed the time, 15 Sept., 1812, before w'hich shipments might be reasonably made, upon the faith of that presum- tion. The same doctrine is again recognized, and more liberally applied, in the case of The Mary, 9 Cranch, 147. The shipment, in the case now before the court, was on the 21st of July, and before the declara- tion of war was known in England, From this view of the case, and the law applicable to it, we are satisfied that withdrawing the goods, under such circumstances, could not be considered an illegal act. The next inquiry is, whether anything, afterwards, occurred to exonerate the defendant from responsibility upon the bill of lading ; and we cannot perceive that there has. There can be no doubt that the admiralty proceedings against the property at New Providence, after the first release, were by the procurement of the agents of the defendant. The case states that the process was procured by Peter , McGregor, who sailed on board the vessel from Liverpool, who was the nephew of the defendant, and represented himself as his agent, on the suggestion in his petition that if the goods were brought into the United States they would be seized as imported contrary to law, and would be lost to the owners and underwriters, who were, as he alleged, British subjects. But, upon claim and answer, put in by the master, the petition was dismissed, and the vessel and cargo again liberated ; and the ship being about to sail, she was again stopped by a British armed vessel, by the solicitation and procurement of the same Peter McGregor, and one William Stewart, who was on board the ship and proceeding to New Orleans with her as the agent and consignee of the defendant, they giving the captain of the British sliip an indemnity for such seizure. The ship and cargo were then libelled, and claims interposed, by different persons, for different parts of the cargo ; and the goods in question were claimed as the property of Maitland & Co. The claimants all alleged that if the goods were transported to New Orleans, they would be seized and forfeited, as imported contrary to law ; and, in support of such allegation, produced Mr. Gallatin's letter of the 26th of August, 1812, giving instructions to the collectors on that subject. A decree was then pro- nounced, ordering the goods to be given up to the claimants, and they were sold, and the y)rocpeds disposed of as has been stated. There is no pretence that the persons who represented themselves to be the agents of the defendant, and who acted as such, were not so in fact ; and if so, he must be answerable for their acts. Nor is it pretended CHAP. II.] AMORY V. MCGREGOR. 565 that the goods in question belonged to Maitland & Co. All the repre- sentation on that subject was a mere cover to get hold of the property, which it was supposed would be seized and forfeited, if sent on to New Orleans. The goods have, therefore, been lost by the act of the defendant; for if they had gone on, and the non-intercourse act had been considered in force, there can be no doubt that, under the act of the 2d of January, 1813, the forfeiture would have been remitted; for the shipment was made within the time limited by that act, and under circumstances bringing the case expressly within its provisions. The only remaining question is as to the rule of damages by which the amount of the recovery is to be regulated. This, we think, ought to be the net value of the goods at Xew Orleans, the port of delivery. That was the rule adopted by this court, in the case of Watkinson v. Laughton^ 8 Johns. Rep. 213. Judgment for the plaintiffs. Clifford, J., in The WlUlam Bagalay, 1866, 5 Wall. 377, 408, duty of a citizen when war breaks out, if it be a foreign war, and he is abroad, is to return without delay; and if it be a civil war, and he is a resident in the rebellious section, he should leave it as soon as practicable and adhere to the regular established govern- ment. Domicile in the law of prize becomes an important considera- tion, because every person is to be considered in such proceedings as belonging to that country where he has his domicile, whatever may be his native or adopted country. Personal property, except such as is the product of the hostile soil, follows as a general rule the rights of the proprietor ; but if suffered to remain in the hostile country after war breaks out, it becomes im- pressed with the national character of the belligerent where it is situ- ated. Promptitude is therefore justly required of citizens resident in the enemy country, or having personal property there, in changing their domicile, severing those business relations, or disposing of their effects, as matter of duty to their own government, and as tending to weaken the enemy. Presumption of the law of nations is against one who lingers in the enemy's country, and if he continues there for much length of time, without satisfactory explanations, he is liable to be considered as remorant, or guilty of culpable delay, and an enemy. ^ 1 Reaffirmed in Gates v. Goodloe, 1879, 101 U. S. 612, 617. In the case of the Gray Jacket (1866), 5 Wall. 370, Mr. Justice Swayne, in giving tlie opinion of the court, said: " The only qualification of tliese rules (property coming from the enemy country to be condemned) is that when, upon breaking out of hos- tilities, or as soon after as possible, the owner escapes with such propert}' as he can take with him, or in good faith thus early removes his property, with the view of put- ting it beyond the dominion of the hostile power, the property in such cases is exempt from the liability which would otherwise attend it." In the case of Fiftij4wo Bales Cotton, Blatchford's Prize Cases, 664 (1863), the cot- 566 EFFECTS OF WAR AS BETAVEEN EXEMIES. [PAKT II. Section 31. — Eansom Bills and Permissible Tkauing. CORNU V. BLACKBURNE. King's Bench, 1781. (2 Douglas, 640 ) This was the case of an English vessel and cargo captured by a Frencli privateer and ransomed and a hostage taken as security ; but the privateer was in turn captured by two English frigates and taken into an English port. The ransom bill was concealed, how- ever, by the first captor, and not given up ; and the present suit is on the ransom bill. This document is as follows : " No. 66. Registered the present ransom bill at the Admiralty office, Boulogne, the 25th October, 1779, and delivered in double to Captain Robert Cornu, com- . manding, the cutter, the Princesse de Robecq privateer, of this port, by me under- written Chief Register. Signed, Merlin, Boulogne — We the underwitten Robert Cornu of Boulogne, commander of the ship the Princesse de Robecq, privateer of Boulogne, and Thomas Finchett of Liverpool, master of the ship the Dolly of Liver- pool, have agreed as followeth, viz. — That I, Robert Cornu, commander of the said privateer, acknowledge to have ransomed the said ship the Dolly of Liver- poole, belonging to John Blackburne, burgher of Liverpoole, burthen 105 tons, ton was captured on a flat-boat fastened to a wharf in Texas, and belonged to a citizen of New York, who went to Texas before tlie war to collect debts due to him. Tlie proceeds had been invested in this cotton, with a view to leave the hostile country after the breaking out of the war. Mr. Justice Nelson, in the circuit court for southern New York held that " the only pretext for condemnation is that the property in question was enemy's property-, wliich I think is not sustained. It appears to me that the claimant used all diligence to col- lect his effects, with a view to leave the hostile country, after tlie breaking out of the war, and is brought fairly within the principle of international law that protects him." In the case of the Sarah Starr and Cargo, 1863, Blatchford, 650, the same judge held that after the breaking out of war, citizens of the loyal States resident in the States in rebellion should be accorded a reasonable time to convert their property into funds which could be conveniently carried, and to withdraw frcjm their business con- nections in the enemy's country. To the same effect the case of the John Gilpin, 1863, Blatchford, 661, in which Nelson, J., overruled the decision of the District Court. Mr. Justice Nelson would seem to be more lenient in this class of cases than the majority of his colleagues on the supreme bench. In the Prize Cases, he dissented from tlie opinion of the majority, and asserted that there could be no illegal trading with the enemy prior to the proclamation of the President, on the 16th of August, 18G1. See further on the removal of property on the outbreak of war, the case of the Ocean, 5 C. Robinson, 90 (1804) ; and the President, 5 C. Robinson, 277 (1804). — Ed. CHAP. II.] CORNU V. BLACKBURNE. 567 on the 6tli of .Tune, in the year 17S0, at the heighth of Edinburgh, going from liynn to Liverpoole in England, under English colours, and passport of said Eng- land, loaded with wheat, for the account of John Blackburne, burgher of Liver- poole; which vessel I have agreed to ransom for the sum of 1.300Z. sterling, to be paid to Mr. Hauffoullier, litter of the said privateer at Dunkirk; in consideration of which I have set the said vessel at liberty to go to the port of Liverpoole, where she is to be arrived in the time and space of three months, after the expiration of which tills present agreement shall not clear her from being taken by any other privateers. For security of which ransom, I have received for hostage on board of the said ship, John Butler, cousin to the captain of the said vessel, desiring all friends and allies to let safely and freely proceed the said vessel lo the port of Liverpoole, without any let or molestation, during the said time or course of lier voyage; and I,Thomas Finchett, owner of the said ship and merchandizes, have voluntarily submitted to the payment of the said ransom, viz. i:^OOZ. sterling; for surety whereof I have delivered up the said John Butler of Liverpoole for hostage, promising not to go against the conditions of this present contract, whereof each of us have a copy by us, which we have signed, with the said hostage. Signed on board the said ship, the Gth of June in tlie year 1780. And it is further expressly covenanted and agreed, that I the said Thomas Finchett do bind and oblige myself, and engage my vessel and cargo, to pay or cause to be paid to the owners of the said privateer, the full amount of the said ransom, sliould the said hostage come to die, or to desert, or that the said privateer should perish, or be taken with tlie hostage on board, loUhout which condition the captain of the said pi-ivateer would not have consented to the above ransom, which, in all cases whatsoever, shall be well and tnily paid. — (Signed) Robert Cornu. Thomas Finchett. John Butler." Lord Mansfield : — " It is sound policy, .as well as good morality, to keep faith with an enemy in time of war. This is a contract which arises out of a state of hostility, and is to be governed by the law of nations, and the eternal rules of justice. The additional clause is particularly adapted to this case. There is no pretext to impeach it, on the ground of fraud or extortion. The bill was registered before the French ship sailed, with this clause in it. Nor does any inference arise, from its insertion, that the general law was understood to be otherwise ; for it is, also, stipulated, that the death of the hostage shall not vacate the contract, which stipulation the parties nuist be presumed to have known to be unnecessary, because the decision in Ricord v. Bettenham was notorious over all Europe. Learned lawyers were written to on that occasion, both in France and Holland, and Mr. Justice Blackstone shewed me several letters he had received from abroad, on the subject. It is said, that, by the law of nations, the recapture puts an end to the ransom bill ; and the argument is, that the court of Admiralty decrees salvage for retaking the ransom bill. " But what are the cases brought to prove this position ? None of them were litigated but the last, and, there, no ransom bill was forth- coming. I'^pon what was salvage given in that case ? They seem to have mistaken the nature of salvage. They seem to consider it 568 EFFECTS OF WAE AS BETWEEN ENEMIES. [PART II. as a debt which may be exacted. But no man can be compelled to 13ay salvage, unless he chooses to have the property back. They have confounded distinct subjects. What is the eighth part ct a ransom bill ? Can the eighth part of an hostage be claimed as salvage ? Could the recaptor make use of the ransom l^ill ? " Could he bring an action on it in the foreign captain's name ? When the owner gets possession of the ransom bill, it may be a dif- ferent consideration. But the present case is clear on two grounds. 1 . The special clause is decisive ; and, 2. Independent of that clause, there never has been any capture of the ransom bill. " The authority from Grotius is very strong on this last ground." WiLLEs, and Ashhurst, Justices, " of the same opinion." BiTLLER, Justice, " of the same opinion. — The last ground goes all the length ; for the bill was never taken. " The Postea to be delivered to the plamtiff." ^ THE ''CnARMING NANCY." Opinion of G. Hay, 1761. {Marsden's Admiralty Cases, 398.) The ship Charming Nancy (whereof James Fanneson now is or lately was master) being taken as prize by the French, was with her cargo ransomed by the master for the sum of £ ; and Francis Burt and one of the crew, whose name is unknown, consented to go as hostages for the payment of the said ransom ; in consequence whereof the said ship and cargo were released. The shij) afterwards arrived at her destined port, and has there unlivered part of her cargo, but the said ransom has not been paid, and the said hostages still remain prisoners. A suit is intended to be commenced in the Court of Admiralty by the relations of Burt to compel the payment of the said ransom, and thereby procure the release of the hostage, and it is uncertain whether the ship, and that part of the cargo which remains unlivered may be sufficient to answer the said ransom. 1 The case of Rlcord v. Bettenham, 3 Burrow, 1734 (1762), referred to by Lord Mansfield, Avas that of a Britisli ship captured and ransomed by a French captor, a liostage — Joseph Bell — being taken. The hostage died in prison ; and the present action was subsequently brought on the ransom bill by the captor. It was objected that, the plaintiff being an alien enemy at the time of the con- tract, the ransom bill was void, the hostage alone being entitled to bring an action. But the court overruled these objections and gave judgment for the plaintiff. — Ed. CriAP. ir.] THE " PATRIXENT." 569 Qnery. — "Have not Burt's relations a right to bring an action against the master, for the performance of whose contract the hostages became bound, as well [as] against the ship and goods, so that they may, if necessary, proceed against both ? And can a w^ar- rant on such action be refused? And, as the name of the other hostage is not at present known, may not such action be entered in the name of Burt and company as hostages ? " Ansioer. — " I do not know any instance of a warrant issuing against ^ the master in such a case. The ship and goods are in the first place answerable for the redemption of a hostage. " These may be arrested, and the suit may be brought by Burt's relations on behalf of both the hostages, naming the one and describ- ing the other of name at present unknown." G. Hay, January 24, 1761. " In the first instance I think you cannot proceed against the master. If the ship and goods will not produce the sum stipulated for the ransom, and you can show that the master fraudulently ran- somed, I think he may then be prosecuted on behalf of the hostages." THE 'PATRIXENT." Orixiox OF William "Wynne, 1781. {Mai'sden's Admiralty Cases, 398.) The ship Patrixent, Hannibal Lush, master, was taken by an American privateer, and was ransomed for £5,500 sterling, and an hostage delivered, who was carried to America. For the above sum the captain of the ransomed ship drew a bill upon Messrs. John Glassford &, Co., merchants in Glasgow, a copy of which is under- written, who are owners of the vessel. The ransom-bill was sent to Amsterdam, and from thence remitted to merchants in London, to recover the value of it. When it was first presented to the gentlemen upon whom it was drawn, they offered £1,000, part of it, as the value of the ship ; but it not being thought prudent to receive a part of the money, their offer was then refused : since which the said gentlemen, together with the owners of the cargo, have refused to pay the bill or any part of it. Your opinion is desired whether the holder of this ransom bill can maintain a suit in the Admiralty Court against the owners of the ship and cargo for the recovery of the sum for which such bill was 570 EFFECTS OF VTAPw AS BETWEEN ENEMIES. [PART II. given ? And whether such suit must be brought against every in- dividual owner of the sliip and cargo. Copy of the Bill. " £5,500. On board the schooner Hanna. July 26, 1779. " At ninety days' sight my second bill of exchange, first and third of the same tenor not paid, pay to Richard Jackson or order the sum of five thousand five hundred pound sterling, for the ransom of the ship Patrixent and her cargo. Haxxibal Lush. " To ^Messrs. Johx Glassfoed & Co., " Merchants, Glasgow." Anstcer. — " I think that the owner of this ransom-bill may main- tain a suit in the Court of Admiralty for the recovery of the sum for which the bill was given ; but I apprehend they must make it appear that the hostage is not at liberty, if he is living, before they can ob- tain payment of the money. The proper way of commencing such a suit would be by arresting the ransomed ship with the cargo on board. But if that cannot be done, I think it will be sufiicient to bring the suit against Lush, the master, who drew the bill, and Messrs. Glassford & Co., the owners of the vessel, upon whom it is drawn." "Wii. "Wyxxe, Doctors' Commons, July 25th, 1781.^ 1 Ransom Contracts. — In a subsequent case, Anthon v. Fisher, 2 Douglas, C-19, notp, it was settled in English law that an alien enemy cannot sue on a ransom bill for want of a persona standi injudicio. And so in the case of The Hoop, 1 C. Rob. 201. Sir W. Scott said, " Even in the case of ransoms which were contracts, but contracts arising ex jnri belli, and tolerated as such, the enemy was not permitted to sue in his own proper person for the payment of the ransom bill; but the payment was enforced by an action by the imprisoned hostage in the courts of his own country, for the recovery of liis freedom." "But tlie effect of such a contract,'" says Wheaton, Ed. of 1803, p. C95, "like that of every other which may be lawfully entered into between belligerents, is to suspend the character of an enemy, so far as respects the parties to the ransom bill ; and, con- sequently, the technical objection of the want of a persona standi in judicio cannot, on principle, prevent a suit being brought by the captor, directly on the ransom bill." And this appears to be the practice in tiie maritime courts of the European continent. Valin, Ord. de la Marine, liv. 3, tit. 0, art. 19 ; 1 Pistoye et Duverdy, 280 et seq. " If the ransomed vessel," says Wheaton, Ed. of 186.3, p. 694, " is lost by the perils of the sea, before her arrival, the obligation to pay the sum stipulated for her ransom is not thereby extinguished. * * * Even wliere it is expressly agreed that the loss of the vessel by these perils shall discharge the captured from the payment of the ran- CHAP. II.] GOODRICH AND DE FOREST V. GORDON. 571 GOODEICH & De forest v. GORDON. Supreme Court of New York, 1818. (15 Johnson, 6.) In 1813, the defendant, jointly with certain other persons, was owner of the sloop Hope, and he authorized one Napier, the master of the sloop, to ransom the vessel in case of capture, for a sum not ex- ceeding two thousand dollars, and bound himself to honor the bill if so drawn upon. During the voyage The Hojye was captured by the Brit- ish frigate Endijmion, and was ransomed by the master pursuant to defendant's instructions for the sum of $2,000, for which amount he drew a bill upon the defendant. Thompson, Ch. J,, delivered the opinion of the court. There can be no doubt that the contract for the ransom of the vessel was a lawful contract. Such contracts are sanctioned by the laws of nations, and are not deemed a trading with the enemy, 2 Azuni, 313, nor was the passport given by the captors, upon the ransom, and accepted by the master of the captured vessel, in violation of the act of Congress, 2d August, 1818. It was merely a certificate, given by the captors, to serve as a passport, and protect the ransomed vessel from all other armed vessels belonging to the nation of which the captors were sub- jects, and to prevent another capture, 2 Azuni, 316. It ma}', perhaps, come within the exception to the act of Congress (2d sec.) which declares that the act shall not prevent the acceptance of a passport, granted by the commander of any ship of war of the enemy, to any ship or vessel of the United States, which may have been captured and given up, for the purpose of carrying prisoners, captured by the enemy, to the United States. Admitting, however, that the instru- 8om, tliis clause is restrained to tlie case of a total loss on the high seas, and is not extended to shipwreck or standing, which niiglit afford tlie master a temptation fraudulently to cast away his vessel, in order to save the most valuable part of tlie cargo, and avoid the payment of the ransom. * * * So, if tlie captor, after having ransomed a vessel belonging to the enemy, is himself taken by the enemy, togctlier with the ransom bill, of wliich lie is the bearer, this ransom bill becomes a part of the capture made by the enemy ; and the persons of the hostile nation who were debtors of the ransom are thereby discharged from the obligation." On the subject of ransom generally, see Judge Story's opinion h\ Maisonnnire y. Keating, 1815, 2 Gall. 324, 337. In Miller v. Resolution, 1781, 2 Ball. 1,15, it was held that ransom bills are not con-I tracts with the enemy and that they bind not only contracting parties but also their" allies. 572 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. nieiit given in the case before us is not the one contemplated by this provision, still, I think, the act does not at all extend to such certificates. The only question in this case, then, is, whether the defendant is chargeable as an acceptor of this bill. In FUlans <£■ Rose v. Van Mierop & Hopldns^ 3 Burr. 1663, Lord Mansfield, and the whole court go the full length of saying that a promise to accept a bill is equivalent to an acceptance, whether it be before or after the bill is drawn. Lord Mansfield, however, afterwards, in the case of Pierson V. Dunlop, Cowp. 573, in some measure, limits and qualities his former doctrine. He observes that it has been truly said, as a general rule, that the mere answer of a merchant to the drawer of a bill, saying, I will duly honor it, is no acceptance, unless accompanied with cir- cumstances which may induce a third person to take the bill by in- dorsement ; but if there are any such circumstances, it may amount to an acceptance ; thereby confining the rule to cases where third persons have acted upon the faith of such assurances, and have been induced, in consequence thereof, to take the bill. In Jolinsonv. Collins^ 1 East, 98, the rule, as laid down in P'dlans v. Van Mieroj), is cer- tainly overruled; and, from the observations of the judges, the limita- tion and qualification, as contained in Pierson v. Dunlop, is not either sanctioned or approbated ; nor am I aware that it has been expressly adopted, in any subsequent decision, in the English courts. But I think it may fairly be inferred, from the observations of the late chief justice, in McEvers v. Mason, 10 Johns. Rep. 214, that the rule, as laid down in Pierson v. Duiilop, is approved of by this court. It is there said, every one will agree that an acceptance by a collateral paper may be good ; and if that paper be shown to a third person, so as to excite credit, and induce him to advance money on the bill, such third person ought not to suffer by the confidence excited. Whether these observations were intended to apply to collttteral acceptances of a bill already drawn, or to be afterwards drawn, does not appear. But I cannot see any sound principle upon which the cases can be dis- tinguished. No question of want of consideration can arise in either case, and it is the credit, which such acceptance or engagement to accept has given to the bill, which gives to it its binding operation. The testimony in the case before us is very full to show that this letter of the defendant, authorizing the drawing of the bill, accom- panied it, at all times, and that it was upon the credit of that letter that the bill was taken by the plaintiff. It appears to me to be a gross violation of good faith, in the defendant, now to disclaim the authority of the captain to draw the bill. The letter may well be considered an authority to draw, accompanied by a promise to accept. It was an authority given for the express purpose of enabling the CHAP. II.] ANTOINE V. MORSHEAD. 573 captain to draw the bill, which was an act done for the benefit of the defendant, and according to his instru(;tions; and I think it binding upon him as an acceptance ; and this is tlie opinion of the court. The plaintiff is, accordingly, entitled to judgment. Judgment for the plaintiff.^ ANTOINE V. MOESHEAD. Common Pleas, 1815. (6 Taunton, 332). This was an action upon five bills of exchange, all drawn by the father of the defendant, a British subject, on the 12th of September, 1806, while he was detained a prisoner at Verdun in France during the late war with that country, payable, some to Tyndall, some to Estwicke, both British subjects in like manner detained prisoners there, at one year after date, indorsed to the plaintiff, who was a French subject and a banker at Verdun, and accepted by the defend- ant. The cause was tried at Guildhall at the sittings after Easter term, 1815, before C. J., when it was contended on the part of the defendant, that it would be treason to pay the bills, by the statute 31 G. 3, c. 9, §§ 1, 4. GiBBs, C. J., refused to hear the objection : he did not know to what extent it might be carried, but if it could be supported to its full extent, many of our miserable fellow-subjects detained in France must have starved. It was also objected, that this being a contract with an alien enemy, was not merely suspended during the war, but absolutely void; the Chief Justice thought otherwise, and the jury found a verdict for the plaintiff. Vaughan, Serjt,, on a former day in this term moved for a rule nisi on both these objections, when, it being suggested on the part of the plaintiff, that the statute 34 G. 3, c. 9, had expired at the peace of 1800 and never been re-enacted, the court gave time to ascertain that fact, and that being found to be the case, Vaughan now moved upon the second objection only, namely, that the indorsement of the bill to an alien enemy was void. For this he cited Anthon v. Fisher^ where it is held that no action can be maintained by an alien in the 1 Vide Coolidge v. Paijson, 2 Wlieaton, 66, in which the Supreme Court of the United States decided, "upon a review of tlie cases whicli are reported, tliat a letter written witliin a reasonable time, before or after the date of a bill of exchange, ile- scribing it in terms not to be mistaken, and promising to accept it, is, if shown to the person who aftarwards takes tiie bill, on the credit of the letter, a virtual acceptance, binding the person who makea the promise." 574 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. courts of this country on a ransom bill, because it is a right claimed to be acquired by him in actual war. Lord Ashburton's argument in Rlcord v. Bettenham, 3 Burr., 1734, which decision is overruled by Ajithon v. Fisher, is to be called in aid. If a bond be given to an alien enemy, it is good quoad the obligor, that is, it enures only for the benefit of the Crown. And if so of a bond, the law must be the like on a bill of exchange. So is it of contracts of insurance made with an alien enemy. Flindt v. Waters, 15 East., 266, Lord Ellex- BOROLTGH, C. J., says the defense of alien enemy may go to the con- tract itself, on which the plaintiff sues, and operate as a perpetual bar; though in that case the contracting party havhig become an enemy after the contract, it was held to be only a temporary suspen- sion of the right to sue, but he showed a disposition to confirm the cases of Brandon v. JVesbitt, 6 T.R., 23, and Bristow v. Towers, 6 T. R., 35. No case has decided that a contract made with an alien enemy in time of war may be ever afterwards enforced. Chief Baron Gilbert lays it down, that upon the plea of alien enemy the right of the plaintiff is forfeited to the crown, as a species of reprisal upon the state committing hostility. GiBBs, C. J.: — " It will not be useless to consider what legal proposi- tions can be deduced from the cases cited on behalf of the defendant, and to try how far they are applicable to the present case. This is no bill of exchange drawn in favour of an alien enemy, but by one subject in favour of another subject, upon a subject resident here, the two first being both detained prisoners in France ; the drawer might legally draw such a bill for his subsistence. After the bill is so drawn, the payee indorses it to the plaintiff, then an alien enemy. How was he to avail himself of the bill, except by negotiating it, and to whom could he negotiate it, except to the inhabitants of that country in which he resided ? I can recollect but two principles from the cases cited by the counsel for the defendant, and they are principles on which there never was the slightest doubt. First, that a contract made with an alien enemy in time of war and that of such a nature that it endangers the security, or is against the policy of this country, is void. Such are policies of insurance to protect an enemy's trade. Another principle is, that however valid a contract originally may be, if the party become an alien enemy he cannot sue. The Crown, during the war, may lay hands on the debt, and recover it, but if it do not, then, on the return of peace the rights of the con- tracting alien are restored, and he may himself sue. Xo other prin- ciple is to be deduced. The first may be laid out of the case, for this was not in its creation a contract made with an alien enemy. The second question is, whether the bill came to the hands of the plaintiff CHAP. II.] CRAWFORD V. THE " WILLIAM PENN." 575 by a good title ? Under the circumstances of tliis case, not meaning to lay down any general rule beyond this case, I am of opinion that the indorsement to the plaintiff conveyed to him a legal title in this bill, on which the king miglit have sued in the time of the war, and he not having so done, the plaintiff might sue after peace was proclaimed." Heath, J., was absent. Chambre, J. — " I am perfectly of the same opinion, and it would be of very mischievous consequence if it were otherwise." Dallas, J. — " This is not a contract between a subject of this country and an alien enemy, nor is it a contract of that sort to which the principle can be applied. That principle is, that there shall be no communication with the enemy in time of war, but this is a con- tract between two subjects iu au enemy's country, which is perfectly legal. « Ruled refused." ^ CRAWFOED et al. v. THE "AVILLIAM PEXX." United States Circuit Court for Pennsylvania District, 1819. (3 Washington, Circvit Court, 484.) Washington, Justice, delivered the opinion of the Court : ^ — Having disposed of these preliminary points, we come to the consid- eration of the main question, — whether this contract, being made with an enemy, is void ? The general rule is admitted, that contracts made with an alien 1 Accord, Dauhuz v. Morshead, 1815, 6 Taunt. 332. This was an action upon a bill of exchange for £2,020 drawn by Sir John Rlorsliead, Bart., deceased, at Verdun, wliere he liad during the late war been detained by tlie French Government, and accepted by tlie defendant, his son, in favor of Borau Earti, and indorsed to tlie plaintiff. Upon tlie trial of tlie cause, at tiie sittings at Guildliall after Trinity term, 1815, before Gibbs, C. J., one line of defence taken, and proved, was, that as to all the contents of the bill, except £80, the plaintiff was only a trustee for a alien enemy. Gibbs, C. J., without pronouncing what would become of the money when recovered, and whether the Crown miglit or might not lay hands on it, tiiouglit the plaintiff entitled to recover the whole amount, and the jury accordingly found a verdict for the plaintiff. Lens, Serjt., now moved to set aside the verdict, and have a new trial, not impugn- ing the direction of the chief justice, but upon an affidavit that the bill was given, as to all, except £80, for a gaming debt; but his affidavit stating only information and belief, and there being evidence that the plaintiff liad by letter asked for time, and been indulged for several years, the court refused tlie rule — Ed. 2 For facts see next case. Part of opinion omitted. — Ed. 576 EFFECTS OF WAR AS BETWEEN EISTEMIES. [PART H. enemy are void. Such is the law of nations, and of most, if not of all, the civilized nations of the world. The English and American decisions are positive in the establishment of this doctrine. But to this, as to most general rules, there are exceptions. Con- tracts made with an enemy, under the license of the government, are valid ; and may, in certain cases, be enforced even during the war; and that, too, whether the contract arose directly or collaterally out of such licensed trade. So, if the enemy with whom the contract is made be in the hostile country by license of that government. So, a ransom bond, given to an enemy, to procure the discharge of the property and the person of the captured, we hold to be valid. Such was decided to be the law of England, in the case of Ricard v. Bettenham, 3 Burr. 1734, and in Cornu v. Blackburn, Dougl. 641. Such, too, is the law of other countries on the continent of Europe. We are aware of the decision in the case of Anthon v. Fisher, in the Exchequer, which is to the contrary, Dougl. 649, note ; but never having met with a full report of the case, it is not easy to understand what were the partipular reasons which led to that decision. How far it may have been influ- enced by the statute making it criminal to give a ransom bond, which had passed prior to this decision, but after the ransom, is not clear. At all events, it was a case decided long after our Declaration of Inde- pendence, and even after the treaty of peace ; and is therefore not to be considered as authority in the courts of this country, so as to overrule the decision in Ricard v. Bettenham, which was made in 1765. There are other cases, which are considered as exceptions, even in England, where the general rule is upheld with considerable rigor, founded upon the peculiar necessity of the case. The case of the Madona delle Grade, 4 Rob., is, to say the least of it, a very liberal relaxation of the general rule. It would seem, from the modern cases, that contracts made by prisoners of war in the enemy's country have been supported. In the case of Sjxirenhuryh v. . Bayinatijne, 1 Bos. & Pul. 163, Chief Justice Eyre observes that " modern civilization has introduced great qualifications to soften the rigors of war, and allows a degree of intercourse with enemies, and particularly with prisoners of war, which can hardly be carried on without the aid of our courts of justice." The other judges agree Avith him. Recoveries at Nisi Prius, we understand, are common, upon contracts made with the enemy by prisoners of war, upon parol, for their sub- sistence. WiUison V. Patterson, East, term, 1817, C. P. The case of Antoine v. Morehead, 6 Taunt. 237, is that of a bill of exchange drawn on England, in the enemy's country, by one British subject, a prisoner of war, in favor of another British subject, also a CHAP. II.] CRAWFORD V. THE " WILLIAM PENN." 577 prisoner of war, and by him indorsed to an alien enemy ; in which case the contract was supported. It is true that the court seem to rely very iiiuch upon the circumstance that the original contract was be- tween British subjects. But it is impossible not to perceive that the right of the alien enemy to recover upon such bill, after the return of peace, was founded upon a new contract with an alien enemy, by virtue of the indorsement ; and that, if in all cases a bill drawn by one sub- ject in favor of another, may pass, by indorsement, into the hands of an alien enemy, the general rule of law might be indirectly subverted. We understand this case, therefore, as going the full length of estal> dishing an exception to the general rule, in favor of prisoners of war, in the country of the enemy, contracting for necessaries. Chief Justice Gibbs seems to place it upon this ground ; by saying that, " if the objection could be supported, to its full extent, many of our miserable fellow subjects, detained in France, must have starved." The ease of Daubuz V. Jlorshead, 6 Taunt. 332, is a case like the former, in principle. The principle on which this doctrine is founded is strongly sup- ported by the decision of the Supreme Court of the United States, in the case of Hallet and Brown v. Jenks, 3 Cra. 210.^ That was the case of an insurance upon a cargo, purchased at St. Domingo, by the owner of an American vessel which had been forced into that island by dis- tress, and was compelled by the government to dispose of her outward cargo, with the proceeds of which the cargo insured was purchased. The objection made to the recovery was that the cargo so insured was purchased contrary to the express provisions of the non-intercourse law; and that the trade, being therefore illicit, the policy was void. But the Supreme Court maintained the validity of the contract, upon the ground that the vessel having been forced into the island by a cause which could not be resisted, and the owner having been compelled by the government of the country to dispose of his cargo, it was not a trading contrary to the spirit of the law to invest the proceeds in a return cargo. Xow, that was the case of a trading as expressly prohibited by the municipal laws of the United States, as a trading with the enemy is by the law of nations ; and found its justification in a necessity, not imperious and irresistible, but one which was induced by a desire to 1 Tliiscase arose in Xew York, wlicre it is reported ^^ Jenks arty with whom the contract is made, does not attach either to him or to the contract. '"He is to be regarded (in the words of Lord Ellenborough) virtuall}- as an adopted subject of Great Brit- ain, and his trade as British trade." If he is to be so considered, it would seem to follow, that all objection to a suit being maintained in CHAP. II.] CRAWFORD & McCLEAN V. THE " WILLIAM PENN." 583 the name of such adopted subject, would be at an end ; as much so if the pLaintiff were, at the time of bringing the suit, personally within the British dominions. It must, nevertheless, be acknowledged that, in the case of Kensinyton v. Inrjlis, 8 East, 273, the court seemed to be of opinion that, even in the case of a licensed trade, the suit cannot be maintained in the name of the alien enemy. But, as the suit was in the name of a subject, the opinion, as to this point, was not essential to the decision of the cause ; and, of course, it ought not to rank higher than an obiter dictum. This examination of the subject has been intended to show that, in cases where the contract upon which the suit is brought, arises out of a licensed trade, an objection founded upon the disability of the nomi- nal plaintiff to maintain the action, on the ground of alien enemy, is ex- tremely feeble; and can only be supported by a tenacious adherence to a rigid rule of the common law, notwithstanding the reason of the rule should, in this particular case, have ceased. The question, then, is, does this'rule apply in all its rigor to courts Acting under the general law of nations, and proceeding according to the civil law ? I think it does not. Bynkershoek (p. 55) appears to be very strong upon this subject. He says that where commerce is permitted amongst enemies, contracts, and actions founded upon them, are permitted; "for who," he asks, "will sell, and carry goods to an enemy, without the right of recovering the price of them? and what hope can there be of recovering that price, if one cannot judicially com- pel payment from his enemy purchaser." In cases of this nature, in courts proceeding according to tlie civil law, the only question is, has the plaintiff a. persona standi injudicio? Can he be heard as a plain- tiff in that court ? Bynkershoek, in the above quotations, gives the answer. The right to sue, and to compel payment, is a necessary inci- dent to his right to trade and to contract. This doctrine of Bynker- shoek has received the entire approbation of Sir William Scott, in the case of the Hoop, in which he gives the sense of that learned jurist as amounting to this, that the legality of commerce, and the mutual use of courts of justice, are inseparable, 1 Rob. 168. The distinction which I am endeavoring to maintain, founded upon the peculiar rules which prevail in the courts of common law, and those proceeding by the rules of the civil law, may be illustrated by analogous cases of every day's practice. No rule is more rigidly ad- hered to by the common-law courts of England, than that the assignee of a chose in action cannot maintain a suit in those courts, in his own name, upon common-law principles. Neither can a cestui que trust bring an action in his own name ; although, in botli cases, the court will, for certain purposes, take notice of those equitable interests. But 584 EFFECTS OF WAR AS BETWEEN EXE:SIIES. [PART II. in a court of equity, where the strict rules of the coramon-law courts do not obtain admission, the person having the beneficial interest is admitted to sue, and to assert his right, in his own name. In like manner, and within the same principle, it would seem reasonable that where the party is divested of his hostile character, by which he ac- quires a. persona standi hijudicio, the technical objection of the com- mon-law courts to his being heard, as plaintiff, ought to be disregarded in courts which proceed by different rules. The only remaining question is, can a contract, made with an alien enemy, by the owner or master of a cartel vessel, in relation to the navigation of that vessel, upon the service in which she is engaged, be enforced in a court proceeding according to the rules of the civil law, and having jurisdiction of the subject-matter ? AVhat is the character of a cartel vessel, and of the persons concerned in her navigation ? The flag of truce which she carries throws over her and them the mantle of peace. Slie is, pro liac vice, a neutral licensed vessel ; and all persons concerned in her navigation, upon the particular service in which both belligerents have employed her, are neutral, in respect to both, and under the protection of both. She cannot carry on commerce under the protection of her flag, because this was not the business for wliich she was employed and for which the immunities of that flag were granted to her. She is engaged in a special service, to carry- prisoners from one place to another; and, whilst so engaged, she is under the protection of both belligerents, in relation to every act necessarily connected Avith that service. It follows that all contracts made for equipping and fitting her for this service are to be considered as contracts made between friends, and consequently ought to be en- forced in the tribunals of either belligerents, having jurisdiction of the subject. The agreement of the two nations, by their agents to make her a cartel, amounts to a license by both to perform the service in which she is employed, and sanctifies all the means necessary to that end. Upon these principles, I am of opinion, that the libellants were capable of maintaining this suit; and that the plea of the claimants ought to be overruled. The proceedings have not been regular ; but I shall not go further, after reversing the sentence below, than to direct the appellants to answer the libel.^ 1 Tlie cartel need not be conclurlcd during, but may be made in peace in anticipa- tion of war, The Carolina, 1807, G C. Rob., 3-36; as it effects the excliange of prisoners, it is confined to the belligerents, TIte Rose in Bloom, 1811, 1 Dod. 57, CO. Vessels actually employeil under the agreement are protected both going and coming in the line of duty, but vessels about to enter or sailing with the intention CHAP. Il.J THE "HAKMONY." 585 Section 32. — Commercial Domicile. THE "HARMONY." High Court of Admiralty, 1800. (2 C. Robinson, 322.) This was one of several American vessels in which a claim had been reserved for part of the cargo, on further proof to be made of the national character of G. W. Murray, who appeared in the original case, as a i)artner of a house of trade in America, but personally resident in France; restitution had been decreed in the several claims to the house of trade in America, with a reservation of the share of this partner. G. W. Murray, a partner in a house of trade in New York, had gone to France, in 1794, as supercargo of a vessel, in behalf of his firm, to there dispose of the cargo ; but with the exception of a brief visit to America in 1795-96, he continued to reside in France, and to receive and dispose of cargoes sent out from New York. At the time of the first trial, Mr. G. W. Murray had not been in France a year ; but from the evidence of letters, etc.. Sir W. Scott thought the intention was to form a permanent residence and cor- resijondence in France. This belief was strengthened by the fact of entering into the service on reacliing: a particular port are not thus privileged and protected, The Daifjie, 1800, 3 C. Rob. 139, HI ; a formal contract is the rule, but an informal agreement followed by use as cartel ship will be enforced. La Gloire, 1804, 5 C. Rob. 102 ; a cartel ship is primarily for the ransom of prisoners, but not ex- clusively so; it may therefore be used to carry into effect previous treaty stipulations of the contracting parties, The Camlina, supra ; the court construes the cartel liber- ally and is satisfied with a bona fide and substantial performance of the require- ments, but trade of all kinds carried on in the vessel subjects the cargo. La Rosina, 1800, 2 C. Rob. 372, and at times the vessel to confiscation. The Venus, 1803, 4 C. Rob. 355; merchandise carried by express permission will not, though goods carried in excess of the permission will be confiscated, The Carolina, supra; pris- oners carried home are bound to refrain from hostilities of all kinds on board, hence capture or recapture from the enemy of a vessel of their own country is illegal and vests no title in the captor. The Man/, 1804, 5 C. Rob. 200; a cartel is not a treaty in the sense of the Constitution, and the cartel for the exchange of prisoners, between the United States and Great Britain, in 1813, was ratified by the Secretary of State, not the Senate (May 14), 2 Halleck, 32G ; but when concluded it is of such force that the sovereign power may not annul it. Henderson's Case, 1863, 2 Pittsburg R. 440. See case last cited for the question of parole, and for the matter of capitulation, see Rucker's Case, 1860, 1 Am. Law. Rev. 217. — Ed. 586 EFFECTS OF WAR AS BETWEEN ENE^HES. [PART U. that Ml'. Murray had returned to France in 1796 and remained there till 1800. Hence his return to America in 1795-96 was probably but temporary, and he was considered to have had a residence in France for six years. Judgment, — Sir W. Scott: — i " This is a question which arises on several parcels of property claimed on behalf of G. W. Murray ; and it is in all of them a ques- tion of residence or domicil, which I have often had occasion to ob- serve, is in itself a question of considerable difficulty, depending on a great variety of circumstances, hardly capable of being defined by any general precise rules. The active spirit of commerce now abroad •in the world, still farther increases this difficulty by increasing the variety of local situations, in which the same individual is to be found at no great distance of time ; and by that sort of extended cir- culation, if I may so call it, by which the same transaction commu- nicates with different countries, as in the present cases, in which the same trading adventures have their origin (perhaps) in America, travel to France, from France to England, from England back to America again, without enabling us to assign accurately the exact legal effect of the local character of every particular portion of this divided transaction. " In deciding such cases, the necessary freedom of commerce im- poses likewise the duty of a particular attention and delicacy; and strict principle of law must not be pressed too eagerly against it ; and I have before had occasion to remark, that the particular situa- tion of America, in respect to distance, seems still more jDarticularly to entitle the merchants of that country to some favourable distinc- tions. They live at a great distance from Europe ; they have not the same open and ready and constant correspondence with individ- uals of the several nations of Europe, that these persons have with each other ; they are on that very account more likely to have their mercantile confidence in Europe abused, and therefore to have more frequent calls for a personal attendance to their own concerns ; and it is to be expected that when the necessity of their affairs calls them across the Atlantic, they should make rather a longer stay in the country where they are called, than foreign merchants who stej) from a neighbouring country in Europe, to which every day offers a convenient opportunity of return. " In considering this particular case, it may not be improper to remark, that circumstances occur in the evidence that address them- selves forcibly to private commiseration, remarking, however, at the ^ Statement of case is varieJ and only part of tlie decision of tlie learned judge is given. — Ed. CHAP. II.] THE " HARMONY." 587 same time, that public duty can allow only a very limited effect to such considerations, and still less to another, that has been pressed upon me, that the money, if restored, is to go in payment of debts due to British creditors, from the bankrupt estate of this unfortunate person. " My business is to inquire whether he is entitled to recover it, without regard to the probable application of it, if it finds its way again into his possession. "Of the few prmciples that can be laid down generally, I may venture to hold, that time is the grand ingredient in constituting domicil, I think that hardly enough is attributed to its effects ; in most cases it is unavoidably conclusive ; it is not unfrequently said^ that if a person comes only for a special purpose, tJiat shall not fix a domicil. This is not to be taken in an unqualified latitude, and with- out some respect had to the time which such a purpose may or shall occupy ; for if the purpose be of a nature that may, prohahly, or does actually detain the person for a great length of time, I cannot but think that a general residence might grow upon the sj)ecial purpose. " A special purpose may lead a man to a country, where it shall detain him the whole of his life. A man comes here to follow a law- suit, it may happen, and indeed is often used as a ground of vulgar and unfounded reproach (unfounded as matter of just reproach though the fact may be true,) on the laws of this country, that it may last as long as himself. Some suits are famous in our juridical history for having even outlived generations of suitors. I cannot but think that against such a long residence, the plea of an original special purpose could not be averred ; it must be inferred in such a case, that other purposes forced themselves upon him and mixed themselves with his original design, and impressed upon him the character of the country where he resided. " Suppose a man comes into a belligerent country at or before the beginning of a war; it is certainly reasonable not to bind him too soon to an acquired character, and to allow him a fair time to disengage himself ; but if he continues to reside during a good part of the war, contributing, by payment of taxes, and other means, to the strength of that country, I am of opinion, that he could not jjlead his special purpose with any effect against the rights of hostility. If he could, there would be no sufficient guard against the fraud and abuses of masked, pretended, original, and sole purposes of a long- continued residence. There is a time which will estop such a plea ; no rule can fix the time a priori^ but such a time there tnust be. " In proof of the efficacy of mere time, it is not impertinent to remark, that the same quantity of business, which would not fix a 588 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART H. domicil in a certain space of time, would nevertli'eless have that eli'ect, if distributed over a large space of time. Suppose an Ameri- can comes to Europe, with six contemporary cargoes, of which he had the present care and management, meanuig to return to America immediately ; they would form a different case from that, of the same American, coming to any particular country of Europe, with one cargo, and fixing himself there, to receive five remaining cargoes, one m each j-ear successively. I repeat, that time is the great agent in this matter ; it is to be taken in a compound ratio, of the time and the occupation, with a great preponderance on the article of time: be the occupation what it may, it cannot happen, but with few ex- ceptions, that mere length of time shall not constitute a domicil. THE '-'IXDIAX CHIEF." High Court of AoMiRALxr, 1801. (3 C. Robinson, 12.) Judgment. — Sir W. Scott : ^ — •'This is the case of a ship seized in the port of Cowes, where she came to receive orders respecting the delivery of a cargo taken in at Batavia, with a professed original intention of proceeding to Hamburg; but on • coming into this country for particular orders, the ship and cargo were seized in port. It does not ap- pear clear to the court, that it might not be a cargo intended to be delivered in this country, as many such cargoes have been, un- der the Dutch property act : I mention this to meet an observation that has been thrown out, ' that it is doubtful whether the ship might not be confiscable on the ground of being a neutral ship com- ing from a colony of the enemy, not to her own ports or the ports of this country.' I cannot assume it as a demonstrated fact in the case, that the cargo was to be delivered at Hamburg. — The vessel sailed in 1795, and as an American ship with an American pass, and all American documents ; but nevertheless if the owner really resided here, such papers could not protect his vessel ; if the oAAnier was resident in England, and the voyage such as an English merchant could not engage in, an American residing here, and carrying on trade, could not protect his ship merely by putting American docu- ments on board ; his interest must stand or fall according to the 1 Statement of the case is omitted. — Ed. CHAP. 11.] THE " INDIAN CHIEF. .589 determination which the court shall make on the national character of such a person. " There are two propositions which are not to be controverted; that Mr. .Johnson is an American generally by birth, which is the circumstance that first impresses itself on the mind of the Court ; and also by the part which he took on the breaking out of the American war. He came hither when both countries were open to him ; but on the breaking out of hostilities, he made his election which country he would adhere to, and in consequence thereof went to France. As to the doubt that has been suggested, whether he would be deemed an American, not having been personally there at the time of the declaration of the independence of that country ; I think that is sufiBciently cleared up, by the circumstances of his being adopted as such by the act of the American government, declaring him and his family to be American subjects, and by the official character which that government has intrusted to him; I am of opinion, therefore, that he has not lost the benefit of his native American character. He came however to this country in 178.3, and engaged in trade, and has resided in this country till 1797; during that time he was undoubtedly to be considered as an English trader ; for no position is more established than this, that if a person goes into another country, and engages in trade, and resides there, he is, by the law of nations, to be considered as a merchant of that country ; I should therefore have no doubt in pronouncing that Mr, Johnson was to be considered as a merchant of this country, at the time of sailing of this vessel on her outward voyage. That leads me to take a view of the circumstances of this case ; the ship went out in 1795 with Mr. Plewlet on board, and Mr. Johnson says, ' he sent out Mr. Hewlet as supercargo, and put the vessel under his control to take freight for America, but that his designs were frustrated by- various circumstances ; ' and the ship actually went to Madeira, ]\hidras, Tranquahar, and Batavia, and from thence to Cowes where she was arrested. " Xow there can be no doubt that if Mr. Johnson had continued where he was at the time of sailing, if he had remained resident in England, it must be considered as a British transaction ; and there- fore a criminal transaction, on the common principle that it is illegal in any person owing an allegiance, though temporary, to trade with the public enemy. But it is pleaded that he had quitted this country before the capture, and that he had done this in consequence of an intention he had formed of removing much earlier, but that he had been prevented by obstacles that obstructed his wish ; to this effect the letter of March 1797, is ex- 590 EFFECTS OF WAR AS BETWEEN ENEMIES. [VAUT IT. hibited, which must have been preceded by private correspondence and application to some of his creditors. It does, I thinlv, breathe strong expressions of intention, and of an ardent desire to get over the restraint tliat alone detained him ; and it affords conclusive reason to believe that if he had been a free man, and at liberty to go where he pleased, he would have removed long before ; and that he was detained here as a hostage, as he describes himself, to his creditors, on motives of lionor creditable to his character. On the 9th of September 1797 he did actually retire ; of the sincerity of his quit- ting this country there can hardly be a doubt entertained; it is almost impossible to represent stronger or more natural grounds for such a measure; and I do not think the Court runs any risk of encountering a fraudulent pretension, put forward to meet the cir- cumstances of the moment, without anything of an original and bo?ia fide intention at the bottom of it. The ship was sent out under the management of the supercargo, and it is said that Mr. Hewlet exceeded his commission. The affidavit does not go so far ; it does not appear from that, tliat the agent had not the power to enter into such an engagement ; but this, I think, appears clearly, that it was the understanding both of Mr. Johnson, and of his agent, Mr. Hewlet, who had been his clerk, and to whom he refers for a confirmation of his avowed design of removing, that before the completion of such a voyage Mr. Johnson would be in America ; therefore if the illegality of the voyage must be supposed to have presented itself to their minds, as a British transaction, owing to Mr. Johnson's residence in England, there was reason enough for them to conclude that Mr. Johnson would be removed; and, on that view of the matter, although it is certain that an agent would bind his employer in such a case, there is ground sufficient to presume that the agent acted fairly and bona fide, and under the expectation that Mr. Johnson would be returned to America. "The ship arrives a few weeks after his departure; and taking it to be clear, that the national character of Mr. Johnson as a liritish merchant was founded in residence only, that it was actpiired by residence, and rested on that circumstance alone ; it must be held that from the moment he turns his back on the country where he has resided, on his way to his own country, he was in the act of re- ' suming his original character, and is to be considered as an Amer- ican : The character that is gained by residence ceases by residence : It is an adventitious character wliich no longer adheres to him, from the moment that he puts himself in, motion, bona fixle, to quit the country, sine animo revertendi. The courts that have to apply this principle, have applied it both ways, unfavorably in some cases, and CHAP. II.] THE " VENUS." 591 favorably in others. This man had actually quitted the country. Stronger was the case of Mr. Curtissos (The Snelle Zei/lder, Lds. Ap, 25, 1783); he was a British born-subject, that had been resident in Surinam and St. Eustatius, and had left those settlements with an intention of returning to this country ; but he had got no farther than Holland, the mother country of those settlements, when the war broke out. It was determined by the Lords of Appeal, that he was in itinere, that he had put himself in motion, and was in pursuit of his native British character : and as such, he was held to be entitled to the restitution of his property. So here, this gentleman was in actual pursuit of his American character ; and, I think, there can be no doubt that his native character was strongly and substantially revived, not occasionally, nor colorably, for the mere purpose of the present claim ; and therefore I shall restore the ship." ^ THE ''VENUS." Supreme Court of the United States, 1814 (8 C ranch, 253.) Washington, J., delivered the opinion of the majority of the court. ^ " * * * The great question involved in this, and many other of the prize cases which have been argued, is, whether the property of these claimants who were settled in Great Britain, and engaged in the commerce of that country, shipped before they had a knowledge of the war, but which was captured, after the declaration of war, by an American cruiser, ought to be condemned as lawful prize. It is contended by the captors, that as these claimants had gained a domicil in Great Britain, and continued to enjoy it up to the time war was declared, and when these captures were made, they musfe be considered as British subjects, in reference to this property, and, consequently, that it may legally be seized as prize of war, in like manner as if it had belonged to real British subjects. But, if not so, it is then insisted that these claimants, having, after their naturaliza- tion in the United States, returned to Great Britain, the country of 1 The cargo of this vessel belonged to Mr. Millar, reaident in Calcutta as American consul. He was held to be a British merchant engaged in trade with the enemv, and his goods were therefore condemned as droits of admiralty, being seized in a British port. His consular character made no difference whatever in protecting his trade. — Eu. ^ Statement of the case and part of the opinion of Washington, J., omitted. — Eu, 592 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. their birth, and there resettled themselves, they became redintegrated British subjects, and ought to be considered by this court in the same light as if they never had emigrated. On the othei' side it is argued, that American citizens settled in the country of the enemy, as these persons were, at the time war was declared, were entitled to a reason- able time to elect, after they knew of the war, to remain there, or to re- turn to the United States ; and that until such election was, bona fide, made, the courts of this country are bound to consider them as American citizens, and their property shipped before they had an opportunity to make this election, as being protected against Ameri- can capture. " There being no dispute as to the facts upon which the domicil of these claimants is asserted, the questions of law alone remain to be considered. They are two. — First, by what means and to what extent, a national character may be impressed uj^on a person different from that which permanent allegiance gives him ? and, secondly, what are the legal consequences to which this acquired character may expose him, in the event of a war taking place between the country of his residence and that of his birth, or in which he had been naturalized ? "1. The writers upon the law of nations distinguish between a temporary residence in a foreign country, for a special purpose, and a residence accompanied with an intention to make it a permanent place of abode. The latter is styled by Vattel, domicil., Avhich he defines to be, ' a habitation fixed in any place with an intention of always staying there.' * * * " The question whether the person to be affected by the right of domicil had sufficiently made known his intention of fixing himself permanently in the foreign country, must depend upon all the cir- cumstances of the case. If he had made no express declaration on the subject, and his secret intention is to be discovered, his acts must be attended to, as affording the most satisfactory evidence of his intention. On this ground it is, that the courts of England have decided, that a person who removes to a foreign country, settles himself there, and engages in the trade of the country, furnishes by these acts such evidence of an intention permanently to reside there, as to stamp liim with the national character of the state where he resides. In questions on this subject, the chief point to be considered, is the animus manendi ; and courts are to devise such reasonable rules of evidence as may establish the fact of intention. If it suf- ficiently appear that the intention of removing was to make a per- manent settlement, or for an indefinite time, the right of domicil is acquired by a residence even of a few days. This is one of the rules CHAP. II.] THE " VENUS." 59-3 of the British courts, and it appears to be perfectly reasonable. Another is, that a neutral or subject, found residing in a foreign country is presumed to be there animo manendi ; and if a state of war should bring his national character into question, it lies upon him to explain the circumstance of his residence — (the Bernon, 1 C. Rob., 86, 102). * * * " 2. The next question is, what are the consequences to which this acquired domicil may legally expose the person entitled to it, in the event of a war taking place between the government under which he resides and that to which he owes a permanent allegiance ? A neutral in his situation, if he should engage in open hostilities with the other belligerent Avould be considered and treated as an enemy. A citizen of the other belligerent could not be so considered, because he could not by any act of hostility, render himself, strictly speaking, an enemy, contraiy to • his permanent allegiance. But although he cannot be considered an enemy, in the strict sense of the word, yet he is deemed such, with reference to the seizure of so much of his property concerned in the trade of the enemy, as is connected with his residence. It is found adhering to the enemy. He is himself adhering to the enemy, although not criminally so, unless he engages in acts of hostility against his native country, or, probably, refuses, when required by his countrj^, to return. The same rule, as to property engaged in the connnerce of the enemy, applies to neutrals ; and for the same reason. The converse of this rule inevitably applies to the subject of a belligerent state domiciled in a neutral country ; he is deemed a neutral by both belligerents, with reference to the trade which he carries on with the adverse belligerent, and with all the rest of the world. " But this national character which a man acquires by residence may be thrown off at pleasure, by a return to his native country, or even by turning his back on the country in which he has resided, on his way to another. To use the language of Sir W. Scott, it is an adventitious character gained by residence, and which ceases by non-residence. It no longer adheres to the party from the moment he puts himself in motion, bona fide, to quit the country sine animo revertendi (3 C. Rob., 17,12, The Indian Chief). The reasonable- ness of this rule can hardly be disputed. Having once acquired a national character by residence in a foreign country, he ought to be bound by all the consequences of it, until he has thrown it off, either by an actual return to his native country, or to that where he was naturalized, or by commencing his removal bona fide, and without an intention of returning. If anything short of actual removal be admitted to work a change in the national character 38 594 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 'A. acquired by residence, it seems perfectly reasonable that the evidence of a honafide intention to remove should be such as to leave no doubt of its sincerity. Mere declaration of such an intention ought never to be relied upon, where contradicted, or at least rendered doubtful, by a continuance of that residence which impressed the character. They may have been made to deceive ; or, if sincerely made, they may never be executed. Even the party himself ought not to be bound by them, because he may afterwards find reason to change his determination, and ought to be permitted to do so. But when he accompanies those declarations with acts which speak a language not to be mistaken, and can hardly fail to be consummated by actual removal, the strongest evidence is afforded which the nature of such a case can furnisli. And is it not proper that the courts of a belligerent nation should deny to any person the right to use a character so equivocal, as to put it in his power to claim whichever may best suit his purpose, when it is called in question ? If his property be taken trading with the enemy, shall he be allowed to shield it from confiscation, by alleging that he had intended to remove from the country of the enemy to his own, then neutral, and, therefore, that, as a neutral, the trade was lawful ? If war ex- ists between the country of his residence and his native country, and his property be seized by the former, or by the latter, shall he be heard to say in the former case, that he was a domiciled subject of the country of the captor, and in the latter, that he was a native subject of the country of tliat captor also, because he had declared an intention to resume his native character ; and thus to parry the belligerent rights of both ? It is to guard against such inconsist- encies, and against the frauds which such pretensions, if tolerated, would sanction, that the rule above mentioned has been adopted. Upon what sound principle can a distinction be framed between the case of a neutral, and the subject of one belligerent domiciled in the country of the other at the breaking out of the war ? The prop- erty of each, found engaged in the commerce of their adopted country, belonging to them, before the Avar, in their character of subjects of that country, so long as they continued to retain their domicil ; and a state of war takes place between that country and any other, by which the two nations and all their subjects become enemies to each other, it follows that all the property, which was once the property of a friend, belongs now, in reference to that property, to an enemy. This doctrine of the common-law and prize courts of England is founded, like that mentioned under the first head, upon national law ; and it is believed to be strongly supported by reason and justice. It is laid down by Grotius, p. 563, ' that all CHAP. IT.] THE " VENUS." 595 the subjects of the enemy who are such from a permanent cause, that is to say, settled in the country, are Uable to the law of reprisals, whether they be natives or foreigners ; but not so if they are only trading or sojourning for a little time.' And why, it may be con- fidently asked, should not the property of such subjects be exposed to the law of reprisals and of war, so long as the owner retains his acquired domicil, or, in the words of Grotius, continues a permanent residence in the country of the enemy ? They were before, and continue after the war, bound, by such residence, to the society of which they are members, subject to the laws of the state, and owing a qualified allegiance thereto ; they are obliged to defend it (with an exception in favor of such a subject, in relation to his native country), in return for the protection it affords them, and the privi- leges which the laws bestow upon them as subjects. The property of such persons, equally with that of the native subjects in their totality, is to be considered as the goods of the nation, in regard to other states. It belongs, in some sort, to the state, from the right which she has over the goods of its citizens, which make a part of the sum total of its riches, and augment its power. Vatt., 147, and also B., 1, c. 14., § 182. In reprisals, continues the same author, we seize on the property of the subject, just as we would that of the sovereign; everything that belongs to the nation is subject to reprisals, wherever it can be seized, with the exception of a deposit entrusted to the public faith. B., 2, c. 18, § 344. Now if a perma- nent residence constitutes the person a subject of the country where he is settled, so long as he continues to reside there, and subjects his property to the law of reprisals, as a part of the property of the nation, it would seem difficult to maintain that the same consequences would not follow in the case of an open and public war, whether between the adopted and native countries of i^ersons so domi- ciled, or between the former and any other nation. If, then, nothing but an actual removal, or bona fide beginning to remove, can change a national character acquired by domicil, and if, at the time of the inception of the voyage, as well as at the time of capture, the prop- erty belonged to such domiciled person in his character of a subject, what is there that does, or ought to exempt it from capture by the privateers of his native country, if, at the time of capture, he con ■ tinues to reside in the country of the adverse belligerent? It is contended that a native or naturalized subject of one country, who \ is surprised, in the country where he was domiciled, by a declaration ^ of war, ought to have time to make his election to conthiue there, or I to remove to the country to which he owes a permanent allegiance,! and that, until such election is made, his property ought to be pro- 596 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. tected from capture by the cruisers of the latter. This doctrine is beheved to be as unfounded in reason and justice, as it clearly is in law. In the first place, it is founded upon a presumption that the person will certainly remove, before it can possibly be known whether he may elect to do so or not. It is said that this presumption ought to be made, because, on receiving information of the war, it will be his duty to return home. This position is denied. It is his duty to commit no acts of hostility against his native country, and to return to her assistance when required to do so ; nor will any just nation, regarding the mild principles of the law of nations, require him to take arms against his native country, or refuse her permis- sion to him to withdraw Avhenever he wishes to do so, unless under peculiar circumstances, which, by such removal at a critical period, might endanger the public safety. The conventional law of nations is in conformity with these principles. It is not uncommon to stipu- late in treaties that the subjects of each shall be allowed to remove with their property, or to remain unmolested. Such a stipulation does not coerce those subjects either to remove or to remain. They are left free to choose for themselves ; and when they have made their election, they claim the right of enjoying it under the treaty. But until the election is made, their former character continues unchanged. " Until this election is made, if his property found upon the high seas, engaged in the commerce of his adopted country, should be permitted by the cruisers of the other belligerent to pass free, under the notion that he may elect to remove, upon notice of the war, and should arrive safe, what is to be done in case the owner of it should afterwards elect to remain where he is ? or if captured and brought immediately to adjudication, it must, upon this doctrine, be acquitted until the election to remain is made known. In short, the point contended for would apply the doctrine of relation to cases where the party claiming the benefit of it may gain all, and can lose noth- ing. If he, after the capture, should find it his interest to remain where he is domiciled, his property embarked before his election was made, is safe ; and if he finds it best to return, it is safe of course. It is safe whether he goes or stays. This doctrine, producing such contradictory consequences, is not only unsupported by any authority, but it would violate principles long and well established in the prize courts of England, and wliich ought not, without strong reasons which may render them inapplicable to this country, to be dis- regarded l)y this court. The rule there is, that the character of the l)roperty, during war, cannot be changed in transitu, by any act of the party, subsequent to the capture. The rule indeed goes farther ; CHAP. II.] THE " VEXUS." 597 as to the correctness of which in its greatest extension, no opinion need now be given ; but it may safely be affirmed that this charge cannot and onght not to be affected by an election of the owner and shipper of it made subsequent to the capture, and, more especially, after a knowlege of the capture is obtained by the owner. Observe the consequences which would result froin it. The capture is made and known. The owner is allowed to deliberate whether it is his interest to remain a subject of his adopted, or of his native count^3^ If the capture be made by the former, then he elects to be a subject of that country ; if by the latter, then a subject of that. Can such a privileged situation be tolerated by either belligerent ? Can any system of law be correct, which places an individual who adheres to one belligerent, and, to the period of his election to remove, con- tributes to increase her wealth, in so anomalous a situation as to be clothed with the privilege of a neutral, as to both belligerents? This notion about a temporary state of neutrality impressed upon a sub- ject of one of the belligerents, and the consequent exemption of his property from capture by either, until he has had notice of the war and made his election, is altogether a novel theory, and seems, from the course of the argument, to owe its origin to a supposed hardship to which the contrary doctrine exposes him. But if the reasoning employed on this subject be correct, no such hardship can exist. For if, before the election is made, his property on the ocean is liable to capture by the cruisers of his native and deserted country, it is not only free from capture by those of his adopted countrj^, but is under its protection. The privilege is supposed to be equal to the disad- vantage, and is therefore just. The double privilege claimed seems too unreasonable to be granted. * * * ^ 1 Condemnation was pronounceti in all tlie cases. Chief Justice Marshall dissented in a vigorous opinion from so much of that opinion as subjects to confiscation the property of a citizen shipped before a Icnowledge of the i war, and wliicli disallows the defence founded on an intention to change his domicile ' and to return to tiie United States, manifested in such a manner, and within a reasona- ble time after knowledge of the war, although it be subsequent to the capture. In this dissent, Livingston, J., concurred. For an elaborate summary of this dissenting opinion, which seems more in accordance with reason than the one laid down by the majority of the bench, see 1 Duer's Marine Insurance, 505-509. — Ed. 598 EFFECTS OF WAE AS BETWEEN ENEMIES. [PART II. BEXTZEN V. BOYLE. Sl'preme Court of the Umted States, 1815. (9 Crunch, 191.) Marshall, Ch. J., delivered the opinion of the court. "The Island of Santa Cruz, belonging to the kingdom of Den- mark, was subdued during the late war, by tlie arms of his Britannic Majesty. Adrien Benjamin Bentzen, an officer of the Danish government, and a proprietor of land therein, withdrevv from the island on its surrender, and has since resided in Denmark. The property of the inhabitants being secured to them, he still retained his estate in the island under the management of an agent, who shipped thirty hogsheads of sugar, the product of that estate, on board a British sliip, to a commercial house in London, on account and risk of the said A. B. Bentzen. On her passage she was cap- tured by the American privateer, the Comet, and brought into Bal- timore, where the vessel and cargo were libelled as enemy property. A claim for these sugars was put in by Bentzen ; but they were con- demned with the rest of the cargo ; and the sentence was affirmed by the circuit court. The claimant then appealed to this court. Some doubt has been suggested whether Santa Cruz, while in the possession of Great Britain, could properly be considered as a British island. But, for this doubt there can be no foundation. Although acquisitions made during war are not considered as permanent until confirmed by a treaty, yet to every commercial and belligerent pur- pose, they are considered as a part of the domain of the conqueror, so long as he retains the possession and government of them. The island of Santa Cruz, after its capitulation, remained a British island until it was restored to Denmark. " Must the product of a plantation in that island, shipped by the proprietor himself, who is a Dane residing in Denmark, be con- sidered as British, and therefore enemy property ? "In arguing this question, the counsel for the claimant has made two points. 1. That this case does not come within the rule appli- cable to shipments from an enemy country, even as laid down in the British courts of admiralty. 2. That the rule has not been rightly laid down in those courts and consequently will not be adopted in this. 1. Does the rule laid down in the British courts of admiralty embrace this case ? CHAP, ir.] BENTZEN V. BOYLE. 699 "Tt appears to the court that the case of the Phoenix ^ is precisely in point. In that case a vessel was captured on a voyai^e from Suri- nam to Holland, and a part of the cargo was claimed by persons residing in Germany, then a neutral country, as the produce of their estates in Surinam. * " The counsel for the captors considered the law of the case as entirely settled. The counsel for the claimant did not controvert this position. They admitted it ; but endeavoured to extricate their case from the general principle by giving it the protection of the treaty of Amiens. In pronouncing his opinion, Sir William Scott lays down the rule thus : ' Certainly nothing can be more decided and fixed, as the principles of this court and the Supreme Court upon very solemn arguments, than that the possession of the soil does im- press upon the owner the character of the country, whatever the local residence of the owner may be. This has been so repeatedly decided, both in this and the Superior Court, that it is no longer open to discussion. No question can be made on the point of law, at this day.' " Afterwards, in the case of the Yrow Anna Oatharina, 5 C. Rob., 167, Sir William Scott lays down the rule, and states its reason. ' It camiot be doubted,' he says, ' that there are transactions so radi- cally and fundamentally national as to impress the national charac- ter, independent of peace or war, and the local residence of the parties. The produce of a person's own plantation in the colony of the enemy, though shipped in time of peace, is liable to be considered as the property of the enemy, by reason that the proprietor has incor- porated himself with the permanent interests of the nation as a holder of the soil, and is to be taken as a part of that country, in that particular transaction, independent of his own personal resi- dence and occupation.' " This rule laid down with so much precision, does not, it is con- tended, embrace Mr. Bentzen's claim, because he has not 'incorporated himself with the permanent interests of the nation.' He acquired the property while Santa Cruz was a Danish colony, and he with- drew from the island when it became British. « This distinction does not appear to the court to be a sound one. The identification of the national character of the owner with that of the soil, in the particular transaction, is not placed on the disposi- tion with which he acquires the soil, or on his general character. The acquisition of land in Santa Cruz binds him, so far as respects that land, to the fate of Santa Cruz, whatever its destiny may be. While that island belonged to Denmark, the produce of the soil, »5C. Rob., 20. 600 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. while unsold, was, according to this rule, Danish property, what- ever might be the general character of the particular proprietor. When the island became British, the soil and its produce, while that produce remained unsold, were British. "The general commercfal or political character of Mr. Bentzen could not, according to this rule, affect this particular transaction. Although incorporated, so far as respects his general character, with the permanent interests of Denmark, he was incorporated so far as respects his plantation in Santa Cruz, with the permanent interests of Santa Cruz, which was at that time British ; and though as a Dane, he was at war with Great Britain, and an enemy, yet, as a proprietor of land in Santa Cruz, he was no enemy ; he could ship his produce to Great Britain in perfect safety. " The case is certainly within the rule as laid down in the British courts. The next inquiry is : how far that rule will be adopted in this country ? " The law of nations is the great source whence we derive those rules, respecting neutral and belligerent rights, which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascer- tain that which is unwritten, we resort to the great principles of reason and justice; but, as these principles will be differently un- derstood by different nations under different circumstances, we con- sider them as being in some degree, fixed and rendered stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded on a law common to every country, will be received, not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be con- sidered in adopting the rule which is to prevail in this. "Without taking a comparative view of the justice or fairness of the rules established in the British courts, and of those established in the courts of other nations, there are circumstances not to be excluded from consideration, which give to those rules a claim to our attention, that we cannot entirely disregard. The United States having, at one time, formed a component part of the British Empire, tJieir prize law was our prize law. When we separated, it continued to be our prize law, so far as it was adapted to our circumstances and was not varied by the power which Avas capable of changing it. " It will not be advanced, in consequence of this former relation between the two countries, that any obvious misconstruction of public law made by the British courts, will be considered as forming a rule for the American courts, or that any recent rule of the British CHAP. II.] THE " PRIZE CASES." 001 courts is entitled to more respect than the recent rules of other countries. But a case professing- to be decided on ancient principles will not be entirely disregarded, unless it be very unreasonable, or be founded on a construction rejected by other nations. " The rule laid down in the Phoenix is said to be a recent rule, be- cause a case solemnly decided before the Lords Commissioners in 1783, is quoted in the margin as its authority, liut that case is not suggested to have been determined contrary to former practice or former opinions. Xor do we perceive any reason for supposing it to be contrary to the rule of other nations in a similar case. " The opinion that the ownership of the soil does, in some degree., connect the owner with the property, so far as respects that soil, is an opinion which certainly prevails very extensively. It is not an unreasonable opinion. Personal property may folloAV tlie person anywhere ; and its character, if found on the ocean, may depend on the domicil of the owner. But land is fixed. Wherever the owner ( may reside, that land is hostile or friendly according to the condition ■ of the country in which it is placed. It is no extravagant perversion . of principle, nor is it a violent offense to the course of human opinion'. to say that the proprietor, so far as respects his interest in this land, ' partakes of this character ; and tliat the produce, while the owner remains unchanged, is subject to the same disabilities. In condemn- ing the sugars of Mr. Bentzen as enemy property, this court is of opinion that there was no error, and the sentence is aflBrmed with costs." THE "PPvIZE CASES." Supreme Court ov the United States, 1862. (2 Black, 671.) 11.^ "We come now to the consideration of the second question. What is included in the term ' enemies' property ? ' "Is the property of all persons residing within the territory of the states now in rebellion, captured on the high seas, to be treated as ' enemy's property ' Avhether the owner be in arms against the government or not? "The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or de- struction of his property, is a necessary result of a state of war. ^ For first part of tlii» Ca»e, see p. 475, ante. — Ed. 602 EFFECTS OF WAR AS BET^YEEN ENEMIES. [PART 11. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is, that the laws of war rec- ognize the right of a belligerent to cut these sinews of the power of the enemy, by capturing his property on the high seas. " The appellants contend that the term ' enemy ' is properly ap- plicable to those only who are subjects or citizens of a foreign state at war with our own. They quote from the pages of the common law, which say, ' that persons who wage war against the king may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies.' " They insist, moreover, that the President himself, in his proc- lamation, admits that great numbers of the persons residing within the territories in the possession of the insurgent government, are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party and its ' de facto government ' to submit to their laws and assist in their scheme of revolution ; that the acts of the usurping government cannot legally sever the bond of their allegiance ; they have, therefore, a co-relative right to claim the protection of the government for their persons and prop- erty, and to be treated as loyal citizens, till legally convicted of having renounced their allegiance and made war against the govern- ment by treasonably resisting its laws. " They contend, also, that insurrection is the act of individuals, and not of a government or sovereignty ; that the individuals en- gaged are the subjects of law. That confiscation of their property can be effected only under a municipal law. That by the law of the land such confiscation cannot take place without the conviction of the owner of some offence, and finally that the secession ordinances are nullities and ineffectual to release any citizen from his allegiance to the national government, and consequently that the constitution and laws of the United States are still operative over persons in all the states for punishment as Avell as protection. " This argument rests on the assumption of two propositions, each of which is without foundation on the established law of nations. " It assumes that where a civil war exists, the party belligerent claiming to be sovereign, cannot for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign, he can exercise only sovereign rights over the other party. " The insurgents may be killed on the battle-field or by the ex- ecutioner ; his property on land may be confiscated under the munic- CHAP. II.] THE "PKIZE CASES." 003 ipal law ; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is 'unconstitutional ' ! ! ! Now, it is a i^roposition never doubted, that the belligerent party who claims to be sovereign, may exercise both belligerent and sovereign rights ; (see 4 Cr., 272). Treating the other party as a belligerent and using only the milder modes of coercion which the law of nations has in- troduced to mitigate the rigors of war, cannot be a subject of com- plaint by the party to whom it is accorded as a grace or granted as a necessity. We have shown that a civil war such as that now waged between the Northern and Southern states, is properly con- ducted according to the humane regulations of public law as regards capture on the ocean. " Under the very peculiar constitution of this government, al- though the citizens owe supreme allegiance to the Federal govern- ment, they owe also a qualified allegiance to the state in which they are domiciled, " Their persons and property are subject to its laws. "Hence, in organizing this rebellion, they have acted as states claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal government. Several of these states have combined to form a new confederacy, claiming to be acknowl- edged by the world as a sovereign state. Their right to do so is now being decided by wager of battle. " The ports and territory of each of these states are held in hostility to the general government. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force, — south of this line is enemies' territory, because it is claimed and held in pos- session by an organized, hostile and belligerent power. " All persons residing within this territory whose property may be used to increase the revenues of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast ofif their allegiance and made war on their government, and are none the less enemies because they are traitors. " But in defining the meaning of the term ' enemies' property,' we shall be led into error if we refer to Fleta and Lord Coke for their definition of the word ' enemy '. It is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distin- guished from the common law. " Whether property be liable to capture as ' enemies' property ' does not in any manner depend on the personal allegiance of the 604 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART IT. owner. ' It is the illegal traffic that stamps it as " enemies' prop- erty." It is of no consequence whether it belongs to an ally or a citizen. 8 Cr., 384. The owner, pro hac vice, is an enemy.' 3 Wash. C. C. R., 183. " The produce of the soil of the hostile territory, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength, are always regarded as legitimate prize, without regard to the domicil of the owner, and much more so if he reside and trade within their territory." ^ 1 Domicil. ^" A commercial domicil," says Mr. Dicey, "is such a residence in a country for the purpose of trading there as mikes a person's trade or business contrib- ute to or' form part of the resources of such country, and renders it, tlierefore, reason- able tiiat his hostile, friendly, or neutral character siiould be determined by reference !to the character of sucli country. When a person's civil domicil is in question, the , matter to be determined is wiiether he has or has not so settled in a given country as to have made it liis home. Wlien a person's commercial domicil is in question, the matter to be determined is whether lie is or is not residing in a given country with the intention of continuing to trade there." (Dicey on Domicil, 345; Conflict of Laws, 86 ef seq., especially appendix, note -3 on Definition of Domicil, 727-73-5 ; note 4, on Commercial domicil in time of war, 735-740, for reference to approved texts, cases, opinions, and criticisms tliereof.) In tlie case of the Antonia Johanna, 1816, 1 Wheaton, 1.51), the Supreme Court of the United States held that the share of a partner in a neutral house is, jure belli, sub- ject to confiscation where his own domicil is in a hostile country. 3 Wharton's Digest, 34.3. In the case of the Freundschafi, 1810, 4 Wheaton, 105, the court held, that the prop- erty of a house of trade established in the enemy's country is condemnable as prize, whatever may be the personal domicil of the partners. 3 Wharton's Digest, 343. In Xi!/el Go'd Afinin^ Co., Llm.r. Hoode, 1901. 17 L. T. U 711. it was iield tliat the company had only a commercial domicil in the Transvaal, and that this did not invest it witli enemy cliaracter. In a note to this case in 15 Harv. Law Rev. 237, it is said : " The status of the corporation and not that of its members was in question, and in the case of corporations, as in that of individuals, enemy character is deter- mined by domicil. Society, ^c. v. Wheeler, 2 Gall. 105, 131 ; The Danclehaar Afri- caan, 1 Rob. 107. Even if the plaintiff company be regarded as merely commercially domiciled, it takes enemy character on the outbreak of war, for when a foreign corpora- tion establishes a permanent agency in a state, it is, in time of war, as to the business transacted there, in the same position as a domestic corp'iration. Martino v. Interna- tional Life Ins. Soc., 53 X. Y. 339. Yet the law covering such a company as the plaintiff in the principal case is stronger still. An incorporated company that takes letters of incorporation in a second state has a separate legal domicil in that state. Martin v. Dultimore Sf Ohio R. R. Co., 151 U. S. 673. The plaintiff company must tiierefore be regarded as having enemy character. The court professes to bring the case within the rule of the Venus, 8 Cranch, 253. In that case the owner had aban- doned his foreign domicile and business bonajide; but in the principal case there was nothing equivalent to such abandonment by the corporation. The decision can be explained only by the supposed humanitarian tendency of the present day in applying the rules of war." Other cases on Commercial Domicil are : Bell v. Reid, 1 Maul. & Selw. 726 (1813) ; CHAP. II.] MITCHELL V. UNITED STATES. 605 MITCHELL V. UNITED STATES. Supreme Court of the United States, 1874. (21 Wallace, 350) Mr. Justice Swayxe delivered the opinion of the court, as follows: At the time when Mitchell passed within the rebel lines the war between the loyal and the disloyal States was flagrant. It speedily assumed the largest proportions. Important belligerent rights were conceded by the United States to the insurgents. Their soldiers when captured were treated as prisoners of war, and were exchanged and not held for treason. Their vessels when captured were dealt with by our prize courts. Their ports were blockaded and the blockades pro- claimed to neutral nations. Property taken at sea, belonging to persons domiciled in the insurgent States, was uniformly held to be confiscable as enemy property. All these things were done as if the war had been a public one with a foreign nation. The Prize Cases, 2 Black, 687; 3Irs. Alexander's Cotton, 2 Wallace, 417; Mauran v. Tlie Insurajice ConijKunj, 6 id. 1. The laws of war were applied in like manner to intercourse on land between the inhabitants of the loyal and the disloyal States. It was adjudged that all contracts of tlie inhabitants of the former with the inhabitants of the latter were illegal and void. It was held that they conferred no rights which could be recognized. Such is the law of nations, fiagrante hello, as administered by courts of justice. Vattel, § 220; Griswold v. Wad- dinrfton, 16 Johnson, 438 ; Cooledge v. Guthrie, 8 American Law Eegister, N. S. 20 ; Cojjjiel v. Hall, 7 Wallace, 542 ; United States v. Grossniaijer, 9 id. 72; Montgomery v. United States, 15 id. 400; United States v. Lapene, 17 id. 602; Cutner v. United States, id. 516. While such was the law as to dealings between the inhabitants of the respective territories, contracts between the inhabitants of the rebel States not in aid of the rebellion were as valid as those, between Wilson V. Mar„at, 8 T. R. 45 (1798) ; The San Jose Indiano, 2 Gall. 268 (1814) ; The Jun.je Klasslna, 5 C. Rob. 302-304 (1804) ; The Herman, 4 C. Rob. 228 (1802) ; Sparen- buni V. Bannalyne, 1 Bos. & Pul. 163 (1797) ; The Abo, 1 Spinks, 349 (1854) ; The Ger- a^iino, 11 Moo. P. C. C. 88 (1857) ; The Bnliicn, 11 Moo. P. C. C. 141 (1857) ; Airs. Alexander's Cotton, 2 Wall. 404 (1864) ; The Flying Scud, 6 Wall. 2(53 (1867). For the view that a neutral merchant domiciled in a belligerent country does not \ '^■ttwck Ru acquire a belligerent character, and that his property at sea is neutral property, see \ Le. Hardy v. La Vultigeante, Conseil des Prises, an ix. (1 Pistoye et Duverdy, 321). — Ed. QQQ EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. themselves, of the inhabitants of the loyal States. Henoe this case turns upon the point whether the appellant was domiciled in the Confederate States when he bought the cotton in question. When he took his departure for the South he lived and was in business at Louisville. He returned thither when Savannah was captured and his cotton was seized. It is to the intervening tract of time we must look for the means of solving the question before us. There is nothing in the record which tends to show that when he left Louisville he did not intend to return, or that while in the South he had any purpose to remain, or that when he returned to Louisville he had any intent other than to live there as he had done before his departure. Domicile has been thus defined : " A residence at a par- ticular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time." Guger v. Daniel^ 1 Binney, 349, note. This definition is approved by Phillimore in his work on the subject. Pane 13. By the term domicile, in its ordinary acceptation, is meant the place where a person lives and has his home. Story's Conflict of Laws, § 4L The place where a person lives is taken to be his domicile until facts adduced establish the contrary. Bruce v. Bruce, 2 Bosanquet & Puller, 228, note ; Bampde v. Johnstone, 3 Vesey, 201 ; Stanley v. Bernes, 3 Haggard's Ecclesiastical Reports, 437 ; Best on Presumptions, 235. The proof of the domicile of the claimant at Louisville is sufficient. There is no controversy between the parties on that proposition. We need not, therefore, further consider the subject. A domicile once acquired is presumed to continue until it is shown to have been changed. SomermUe v. SomervlUe, 5 Vesey, 787 ; Har- vard Coll. V. Gore, 5 Pickering, 370; Wharton's Conflict of Laws, § 55. Where a change of domicile is alleged the burden of proving it rests upon the person making the allegation. Crookenden v. Fuller, 1 Swabey & Tristam, 441 ; Hodgson v. De Buchesne, 12 Moore's Privy Council, 288 (1858). To constitute the new domicile two things are indispensable: First, residence in the new locality; and, second, the intention to remain there. The change cannot be made except facto et aninio. Both are alike necessary. Either without the other is insufficient. Mere absence from a fixed home, however long continued, cannot work the change. There must be the animus to change the prior domicile for another. Until the new one is acquired, the old one remains. Wharton's Conflict of Laws, § 55, and the authorities there cited. These principles are axiomatic in the law upon the subject. When the claimant left Louisville it would have been illegal to take up his abode in the territory whither he was going. Such a purpose is CHAP. II.] THE " SALLY." 607 not to be presumed. The presumption is the other way. To be established it must be proved. 12 Moore's Privy Council, supra. Among the circumstances usually relied upon to establisli the animus i manendi are : Declarations of the party ; the exercise of political | rights; the payment of personal taxes ;, a house of residence, and ai place of business. Phillimore, 100 ; Wharton, § 62, and jjost. All these indicia are wanting in the case of the claimant. The rules of law applied to the affirmative facts, without the aid of the negative considerations to which we have adverted, are conclusive against him. His purchase of the cotton involved the same legal consequences as if it had been made by an agent whom he sent to make it. Judgment affirmed. 'o Section 33. — Ownership of Goods in Transit. THE ''SALLY." Lords, 1795. (3 C. Robinson, 300, tiote.) The Salli/ was a case of a cargo of corn shipped ]\[rtreh, 1793, by Steward and Plunket, of Baltimore, ostensibly for the account and. risk of Conyngham, Xesbit & Co., of Philadelphia, and consigned to them o)- their assir/ns: By an endorsement of the bill of lading, it was further agreed that the ship should proceed to Havre de Grace, and there wait such time as might be necessary, the orders of the consignee of the said cargo (the mayor of Havre) either to deliver the same at the port of Havre, or proceed therewith to any one port without the ^Mediterranean, on freight at the rate of 5s. per barrel on delivery at Havre, and 5s. Qd. at a second port, the freight to be settled by the shippers in America according to agreement. Amongst the papers was a concealed letter from Jean Ternant, the minister of the French Republic to the United States, in which he informs the minister of foreign affairs in France. " The house of Conyngham & Co., alread}^ known to the ministers, by their former operations for France, is charged by me to procure without delay, a consignment of 22,000 bushels of wheat, 8,000 barrels of fine flour, 900 barrels of salted beef from New England. The conditions stipu- lated are the same as those of the contract of 2d Xovember, 1792, with the American citizens, Swan & Co., for a like supply to be made to the Antilles, namely, that the grain, flour, and beef are to be paid at the current price of the markets at the time of their bemg shipped ; that the freights shall be at the lowest course in the 608 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART IT. ports ; that an insurance should be on the whole ; and that a com- mission of five per cent, shall be allowed for all the merchants' expenses and fees. It has been, moreover, agreed, considering the actual reports of war, that the whole shall be sent as American property to Havre and to Nantes, with power to our government of sending the ships to other ports conditional on the usual freight. As you have not signified to me to whom these cargoes ought to be delivered in our ports, I shall provide each captain with a letter to the mayor of the place." There was also a letter from Jean Ternant to the mayor of the municipality of Havre. " Our government having ordered me to send supplies of provisions to your port, I inform you that the bearer of this, commanding the American ship, the Sally, is laden with a cargo of wheat, of which he will deliver you the bill of lading." To the 12th and COtli interrogatories the master deposed, "that he believes the flour was the property of the P^rench government, and, on being unladen^ tcould have immediately become the property of the French government." In the argument it Avas insisted, on the part of the claimants, that the cargo was to be considered as the property of the American merchants ; that it had been ordered by them, to be supplied and delivered at a certain place; and that under the general principle of law, property was not considered to be divested between the vendor and vendee till actual delivery. It was contended, that the contract remained executory till the completion by delivery in Europe; that the fiayment was contingent on the completion of the contract in this form, and that no money had passed, nor any compensation or agreement had intervened to produce an absolute conversion of the property ; and it was prayed that the court would admit farther proof to ascertain that circum- stance. On the part of the captors it was replied, that the general rule of law subsisting between vendor and vendee in a commercial trans- action, referring only to the contracting parties, and not affecting the rights of third persons, could not apply to contracts made in time of war, or in contemplation of war, where the rights of a bellig- erent nation intervened ; that the effect of such a contract as the present would be to protect the trade of the contracting belligerent from his enemy ; and that if it could be allowed, it would put an end to all capture. It was said to be a known principle of the prize court, that neutral property must be proved to be neutral at all periods from the time of shipment, without intermission, to the CHAP. II.] THE PACKET " DE BILBOA." 609 arrival and subsequent sale in the port of the enemy ; that the twelfth and twentieth interrogatories were framed with this view to inquire, " whether on its arrival, etc., it shall and will belong to tlie same owner and no other, etc.," and a reference was made to the case of the Charles Ilavenerswerth in 1741, in which the form of attestation was directed to be prepared by the whole bar, and was established in the present form to ascertain the property at the several periods of sJiipmeiit, and arrival in the enemy's j^orts, — in cases where affi- davits were to be received to supply the defects of the original evidence, in the place of plea and proof. The Court : — " It has always been the rule of the prize courts, that property going to be delivered in the enemy's country, and under a contract to become the property of the enemy immediately on arrival, if taken in transitu, is to be considered as enemies' property. Where ' the contract is made in time of peace or without any contemplation of a war, no such rule exists : — But in a case like the present, where the form of the contract w^as framed directly for the purpose of ob- viating the danger apprehended from approaching hostilities, it is a rule which unavoidably must take place. The bUl of lading expresses account and risk of the American merchants ; but papers alone make no proof, unless supported by the depositions of the master. Instead of supporting the contents of his papers, the master deposes, ' that on arrival tlie goods would become the property of the French government,' and all the concealed papers strongly support him in this testimony : The evidentia rei is too strong to admit farther . proof. Supposing that it was to become the property of the enemy | on delivery, capture is considered as delivery : The captors, by the rights of war, stand in the place of the enemy, and are entitled to a condemnation of goods passing under such a contract, as of enemy's property. On every principle on which Prize Courts can jDroceed, this cargo must be considered as enemy's property. "Condemned." THE PACKET '' DE BILBOA." High Court of Admiralty, 1799. (2 C. Robinson, 133.) Judgment, — Sir W. Scott : — " This is a claim of a peculiar nature for goods sent by British subjects to Spain, shipped before hostilities, during the time of that 39 610 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. situation of the two countries, of wliicli it was unknown, even to our government, what would be tlie issue between tliem. There appears to be no ground to say that tliis contract was influenced by speculations on the prospect of a war, or that anything has been specially done to avoid the risks of war. It is shown in the affida- vit of the claimant ' that this is the constant habit and practice of this trade ; ' whether it is the practice of the Spanish trade gen- erally, or only the particular mode of these individuals in carry- ing on commerce together is not material, as the latter would be quite sufficient to raise the subject of this claim. The question is, in whom is the legal title? Because, if I should find that the interest was in the Spanish consignee, I must then condemn, and leave the British party to apply to the Crown for that grace and favor which it is always ready to shew ; the property being con- demnable to the Crown as taken before hostilities. " The statement of the claim sets forth that these goods have not been paid for by the Spaniard ; — that would go but little Avay, — that alone would not do ; there must be many cases in which British merchants sufEer from capture, by our own cruisers, of goods shipped for foreign account before the breaking out of hostilities. It goes on to state, 'that, according to the custom of the trade, a credit of six, nine, or twelve months is usually given, and that it is not the custom to draw on the consignee till the arrival of the goods ; that the sea risk in peace as well as war is on the consignor ; that he insures, and has no remedy against the consignee for any accident that happens during the voyage.' Under these circum- stances, in whom does the property reside ? The ordinary state of commerce is, that goods ordered and delivered to the master are considered as delivered to the consignee, whose agent the master is in this respect ; but that general contract of the law may be varied by special agreement or by a particular prevailing practice, that pre- supposes an agreement amongst such a description of merchants. In time of profound peace, when there is no prospect of approach- ing war, there would unquestionably be nothing illegal in contract- ing, that the whole risk should fall on the consignor, till the goods came into possession of the consignee. In time of peace they may divide their risk as they please, and nobody has a right to say they shall not; it would not be at all illegal, that goods not shipped in time of war, or in contemplation of war, should be at the risk of the shipper. In time of war this cannot be permitted, for it would at once put an end to all captures at sea ; the risk would in all cases be laid on the consignor, wliere it suited the purpose of protection; on every contemplation of a war, this contrivance would be prac- ticed in all consignments from neutral ports to the enemy's country, CHAP, n.] THE PACKET " DE BILBOA. 611 to the manifest defrauding of all rights of capture ; it is therefore considered to be an invalid contract in time of war ; or, to express it more accurately, it is a contract Avliicli, if made in wai-, has this ef- fect ; that the captor has a right to seize it and convert the prop- erty to his own use ; for he having all the rights that belong to his enemy, is authorized to have his taking possession considered as equivalent to an actual delivery to his enemy ; and the shipper who put it on board during a time of war, must be presumed to know the rule, and to ^secure himself in his agreement with the consignee against the contingence of any loss to himself that can arise from capture. In other words, he is a mere insurer against sea risk, and he has nothing to do with the case of capture, the loss of which falls entirely on the consignee. If the consignee refuses payment and throws it upon the shipper, the shipper must be supposed to have guarded his own interests against that hazard, or he has acted im- providently and without caution. " The present contract is not of this sort ; it stands as a lawful agreement, being made whilst there was neither war nor prospect of war. The goods are sent at the risk of the shipper : if they had been lost, on whom would the loss have fallen but on him ? What surer test of property can there be than this ? It is the true criterion of property that, if j'ou are the person on whom the loss will fall, you are to be considered as the proprietor. The bill of lading verj'' much favors this account. The master binds himself to the shipper, ' to deliver for you and in your name,' by wdiich it is to be understood that the delivery had not been made to the master for the consignee, but that he was to make the delivery in the name of the shipper to the consignee, till which time the inference is that they were to remain the property of the shipper: as to the payment of freight, that is not material, as in the end the purchaser must necessarily pay the carriage. The other consideration — who bears the loss ? much outweighs that, — neither does the case put shew the contrary. The case put is — supposing Spain and England both neutral and that these goods had been taken by the French and sold to great profit, to whose advantage would it have been? The answer is, if the goods were to continue the property of the shipper till deliver}', it must have enured to /tis benefit, and not that of the consignee. To make the loss fall upon the shipper in the case of the present shipment would be harsh in the extreme. He ships his goods in the ordinary course of traffic, by an agreement mutually understood between the parties, and in no wise injurious to the rights of any third party ; an event subsequentl}'^ happens Avliich he could in no degree provide against. If he is to be the suft'erer he is 612 EFFECTS OF WAE AS BETWEEN ENEMIES. [PAET II. a sufferer without notice and without the means of securing' him- self ; he was not called upon to know that the injustice of the other party ^vould produce a war before the delivery of his goods. The consignee may refuse payment, referring to the terms of the con- tract which Avas made when it was perfectly lawful ; and under what circumstances and on what principles the shipper could ever enforce payment against the consignee is not easy to discover. The goods have never been delivered in Spain ; they were to have been at the risk of the shipper until delivery, and this under a perfectly fair contract. I must consider the property to reside still in the English merchant. It is a case altogether different from other cases which have happened on this subject flagrante hello. I am of opinion that, on all just considerations of ownership, the legal prop- erty is in the British merchant ; that the loss must have fallen on the shipper, and the delivery was not to have been made til] the last stage of the business, till they had actually arrived in Spain and had been put into the hands of the consignee ; and therefore I shall decree restitution of the goods to the shipper." On prayer that the captor's expenses might be paid, it was answered that they had already had the benefit of the condemnation of the ship. Court. — " I think there has been a great service performed to the shijiper. If the goods had not been captured they would have gone into the possession of the enemy. The captor did right in bringing the question before the court, and he ought by no means to be a loser. I shall not give salvage, but shall direct the expenses of the captor to be paid out of the proceeds." THE "ANNA CATHxVRINA." High Court of Admiralty, 1802. (4 C. Robinson, 107.) This was a case of a cargo of dry goods, etc., taken October, 1801, on a voyage from Hamburgh to La Guayra, and described in the ostensible papers and depositions, "as going to take the chance of the market." By the discovery of a letter, it afterwards appeared, that these goods were going under a special agreement and contract with the Spanish government of the Caracas. Judgment. — Sir W. Scott : — Taking the shippers to be neutral rnerchants "how does the * * * Tr CHAP. TI.] THE "ANNA CATHARINA." 613 character of the goods stand in this transaction? Was it not, in the first place, a cargo going to become the property of the Spanisli govern- ment immediately on arrival? "Was not the ^Spanish government en- titled to possession ? It was only on the violation of the contract, on the part of the Spanish government, that these goods were to take the chance of the market. The shippers considered themselves as bound to deliver them to the use of the Spanish government, under the agreement ; as entitled to the benefit, and subject to the obligations of that contract. "Were there any intermediate acts to be done after the arrival of the vessel? Or were the acts such, as would have the effect of substantially distinguishing this case from the AV/Z/y, and other cases ? Is there any act of ownership which the claimant was at liberty to exercise, so as to prevent the delivery ? If not the goods must be considered as having substantially become, in itinere^ the property of the enemy. * * * " It is said * * * that these goods do not exactly correspond with the enumeration in the agreement, that tliey are not contract goods ; and consequently, that without any violation of public faith, the acceptance of them was merely optional and contingent. But, I can- not think, that it is now open to the parties to make this averment ; when it is evident, on the face of their own letters, that they had relied on the clear and absolute obligation of the Spanish govern- ment to take them as such. * * * "These distinctions are, in ni}^ judgment, totally insufiicient to take the case out of the authority of the precedents alluded to. Where the goods are sent under a contract by the party, it surely cannot be permitted to the claimant himself to aver, that the goods so sent are not contract goods. * * * Under these circumstances, I am strongly disposed to hold, that this cargo was going in time of war to the port of a belligerent, there to become the property of the belligerent, immediately on arrival, and that the legal consequence of condemnation would on that ground alone attach upon it." ^ 1 Only so much of this case is given as refers to the siiipment of goods under con- tract to a beUigerent port. — Ed. 614 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. THE "SAX JOSE IXDIAXO." U. S. Circuit Court fob Massachusetts, 1814. (2 G'ai/i'soH, 2G8 ) Story, J. : * — " The next is the claim of Mr. J. Lizaur, of , in Brazil. "The shipment was made by Messrs. Dyson Brothers & Co., and by the bill of lading the goods are consigned to Messrs. Dyson Brothers and Finney, Rio de Janeiro. "The accompanying invoices express the shipment to be made by order and for account of Mr. J. Lizaur, and contain charges of freight, commission and insurance, and an acknowledgment of giving credit for three and six months. In a letter of the 4th of May, 1814, addressed by the shippers to the consignees, they say, 'for Mr. Lizaur we open an account in our books here, and debit him 1764/. lis. 7 f?. for 16 cases of cambrics, etc., at three months' credit; we cannot yet ascertain proceeds of his hides, etc., but find his order will far exceed amount of these shipments^ therefore consign the whole to youy so as you may come to a proper tinder standing. We have charged our usual commission of two and a half per cent, in the invoices, but should you have made any stipulation to the contrary, he can again bring same to our debit. Invoices, bills of lading and patterns of what goods are requisite we forward as usual in a small box to your address.' " The single question presented in this claim is, in whom the prop- erty vested during its transit ; if in Mr. Lizaur, then it is to be re- stored ; if in the shippers, then it is to be condemned. It is con- tended on behalf of the claimant, that the goods, having been pur- chased by order of Mr. Lizaur, the property vested in him immedi- ately by the purchase, and the contract being executed by the sale, no delivery was necessary to perfect the legal title ; that nothing was reserved to the shippers, but a mere right of stoppage in tran- situ^ and that if tliey had been burnt before the shipment, or lost during the voyage, the loss must have fallen on Mr. Lizaur. " As to the doctrine of stoppage irt transitu., I Cio not conceive it can apply to this case. That right exists in the sing-le case of insolv- ency, and presupposes, not only that the property in the goods has passed to the consignee, but that the possession is in a third person 1 Statement of case omitted and only so much of the opinion is {jiven as rehites to the question of stoj>p;ige in tiunsitu. — Ed. CHAP. II.] THE " SAN JOSE INDIAJSO." 615 in their transit to the consignee. It cannot, therefore, touch a case, where tlie actual or constructive possession still remains hi the shipper or his exclusive agents. " I agree also to the position, that in general the rules of the prize court, as to the vesting of property, are the same as those of the common la\A'', by which the thing sold, after the completion of the contract, is properly at the risk of the purchaser. But the question still recurs, when is the contract executed ? It is certainly com- petent for an agent abroad, who purchases in pursuance of orders, to vest the property, immediately on the purchase, in his principal. This is the case, when he purchases on the credit of his principal, or makes an absolute appropriation and designation of the property for his principal. But where a merchant abroad, in pursuance of orders, sells either his own goods, or purchases goods on his own credit (and thereby in reality becomes the owner), no property in the goods vests in his correspondent, until he has done some notorious act to divest himself of his title, or has parted with the possession by an actual and unconditional delivery for the use of such corre- spondent. Until that time he has in legal contemplation the exclu- sive property, as well as possession ; and it is not a wrongful act for him to convert them to any use, which he pleases. He is at liberty to contract upon any new engagements, or substitute any new con- ditions in relation to the shipment. And this, I understand, not only as the general law, but as the prize law pronounced by that high tribunal, whose decisions I am bound to obey. " In the Venus, 1814, on the claim of Magee and Jones, in deliver- ing the opinion of the court, Mr. Justice Washington observed : ' to effect a change of property, as between seller and buyer, it is essen- tial, that there should be a contract of sale agreed to by both par- ties, and if the thing agreed to be purchased is to be sent by the vendor to the vendee it is necessary to the perfection of the contract, that it should be delivered to the purchaser or to his agent, which the master (of a ship) to many purposes is considered to be." " And adverting to the facts of that claim he further says : ' The delivery of the goods to the master of the vessel was not for the use of Magee and Jones, any more than it was for the shipper solely, and consequently it amounted to nothing, so as to divest the property out of the shipper, until Magee should elect to take them on joint account, or to act as the agent of Jones.' "^ 1 Spvible, tliat by the French rule tlie neutnil shipper may assume the risk of goods 1 in tnuisit to enemy country. (The Trois Frlrts, Comite' ile Salut I'ublic, An III., ' 1 K et I). oo7.) — Ed. 616 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. Section 34. — Traxsfeks in Transitu. THE "YROW MARGARETHA." High Court of Admiralty, 1799. (1 C. Robinson, 33G.) Judgment, — Sir W. Scott : — " This is. a claim of Mr. Ph. Berkeymyer, of Hamburgh, for some parcels of wine which were seized on board three Dutch vessels de- tained by order of government in 1795. The ships have been since condemned ; the cargoes Avere described in the ship's papers, as far as the property was expressed, as belonging to Spanish merchants. It is material, in this case, to consider the relative situation of the countries from which, and to which these cargoes were going. Spain and Holland were then in alliance with this country and at war with France ; it might, therefore, be an inducement vnth a Spanish merchant to conceal the property of his goods, although it does not appear to have existed in any great degree, as the goods were coming under an English convoy, and as they were shipped ' as Spanish wines,' and destined, avowedly, to Holland ; there was, therefore, nothing in this part of the case to mislead our cruisers. Mr. Berkeymyer is allowed to be an inhabitant of Hamburgh, although he had made a journey, a short time previous to the ship- ment of these cargoes, to Spain (where he had resided some years before), to settle his affairs, and bring off the property which he had left behind him. He had quitted Spain, however, previous to the breaking out of Spanish hostilities, and had resumed his original character of a merchant of Hamburgh. The account which he gives of his transactions in Spain, as far as they regard this case, is, that he entered into a contract with two Spanish houses for some wines, which were at the time actually shipped, and in itinere towards Hol- land. The first objection that has been taken is, that such a transfer is mvalid, and cannot be set up in a Prize Court, where the property is always considered to remain in the same character in which it was shipped till the delivery. If that could be maintained there would be an end of the question, because it has been admitted that these Avines were shipped as Spanish property, and that Spanish property is now become liable to condemnation. But I apprehend it is a posi- tion which cannot be mamtained in that extent. In the ordinary CHAP, ir.] THE " VROW MARGARETHA." 617 course of things in time of peace — for it is not denied that such a contract may be made, and effectually made (according to the usage of merchants,) such a transfer in transitu miglit certainly be made. It has even been contended that a mere delivering of the bill of lading is a transfer of the property. But it might be more correctly expressed, perhaps, if said that it transfers only the right of delivery ; but that a transfer of the bill of lading, with a contract of sale ac- companying it, may transfer the property in the ordinary course of things, so as effectually to bind the parties, and all others, cannot well be doubted. When war intervenes, another rule is set up by Courts of Admiralty, which interferes with the ordinary practice. In a state of war, existing or imminent, it is held that the property shall be deemed to continue as it was at the time of shipment till the actual delivery ; this arises out of the state of war, which gives a belligerent a right to stop the goods of his enemy. If such a rule did not exist all goods shipped in the enemy's country would be protected by transfers which it would be impossible to detect. It is on that principle held, I believe, as a general rule, that property can- not be converted in transitu ; and in that sense I recognize it as the rule of this Court. But this arises, as I have said, out of a state of war, which creates new rights in other parties, and cannot be applied to transactions originating, like this, in a time of peace. The trans- fer, therefore, must be considered as not invalid in point of law, at the time of the contract ; and being made before the war it must be judged according to the ordinary rules of commerce. " It has been farther objected to the validity of this contract, that a part of the wines did actually reach Hamburgh, where they were sold, and the money was detained by the consignees in pay- ment of the advances which they had made. It is said that this annuls the contract — to the extent of that part it may do so, and the deficiency must be made up to the purchaser by other means ; but it appears that it has been actually supplied by bills of exchange, and an assignment of other wines sent to Petersburgh, It is not for me to set aside the whole contract on that partial ground, or to construe the defect in the execution of the contract so rigorously as to extend it to those wines which never went to Holland, and which never be- came de facto subject to be detained by the consignees. They are free for the contract to act upon ; and if the parties are desirous of adhering to their contract in its whole extent, it does not become other persons to obstruct them. "It comes then to a question of fact, whether it was a bo7ia fide transfer or not? I think the time is a strong circumstance to prove the fairness of the transaction. Had it happened three months t 618 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. later there might have been reason to alarm the prudence of Spanish merchants, and induce them to resort to the expedient of covering their property. But at the time of the contract there seems to have been no reason for apprehension, and therefore there is nothing to raise any suspicion on that point. " The instruments of sale have been produced, and no observation has been made upon them. The correspondence has been exhibited, and there is certainly some confusion in the dates. Explanations have been given, which are probable enough ; still they are but con- jectural. If the counsel for the captors require it I will order the original documents in proof of these explanations to be produced ; although I must say, at the same time, that the impression upon my mind is, that it is a fair transaction. " The originals decreed to be produced. " January 15th, 1800. The captors being satisfied with the farther proof produced, Mr. Berkeymyer's claims were restored without opposition." THE ''JAN FREDERICK." High Court of Admiiialtv, 1804. (5 C. Robinson, 128.) Judgment, — Sir W. Scott : — ^ " This question arises on parts of several cargoes put on board Dutch ships in January and February, 1803, and brought in under the general embargo on Dutch property, previous to hostilities, in the month of May. The property is documented for the account and risk of certain estates in Surinam ; and certainly, if it was not al- lowable under any considerations to aver against the evidence of the ship's documents, it must be subject to condemnation as Dutch property. But the Court has opened a door to such claims, in oppo- sition to the averment of the ship's papers ; and it has done this, on a consideration of the fair course of mercantile speculation in time of peace. It has even allowed a change of property in transitu, by the transfer of the bills of lading, Avhere it had been done without any view of acconniiodation to relieve the seller from the pressure or prospect of war. In the present instance, there is no proof of any transfer of ibe bills of lading, except as to one or two parcels of goods belonging to the widow Noble, which do, indeed, bear an en- 1 Facts are omitted and only extracts are given from tlie judgment. — Ed. CHAP. II.] THE " JAN FREDERICK." 619 dorsement, but whether they were so endorsed before or after the war, it does not appear. This alone would be sufficient to defeat the claim; since, till the bill of lading was so endorsed, the contract would, I apprehend, be a thing remaining in covenant only : it might subject the party to an action daiani dati, but it would not amount to a transfer, being only an engagement that the goods should be transferred when they arrived. That a transfer may take place in transitu, has, I have already observed, been decided in two or three cases, where there had been no actual war, nor any prospect of war, mixing itself with the transaction of the parties. But in time of war this is prohibited as a vicious contract, being a fraud on bellig- erent rights, not only in the particular transaction, but in the great facility which it would necessarily introduce, of evading those rights ; beyond the possibility of detection. It is a road that, in time of war, must be shut up ; for although honest men might be induced to travel it with very innocent intentions, the far greater proportion of those who passed would use it only for sinister purposes, and with views of fraud on the rights of the belligerent. "This, however, is not a contract made in time of war; and there- fore an important question is raised, whether the contemplation of ^oar would have the same effect in vitiating these contracts as act- ual war ? It cannot be said that all engagements in the proximity of war, into which the speculation of war might enter, as for in- stance, with regard to the price, would therefore be invalid. The contemplation of war is undoubtedly to be taken in a more restricted sense. But if the contemplation of war leads immediately to the ) transfer, and becomes the foundation of a contract, that would not , otherwise be entered into on the part of the seller ; and this is known ' to be so done, in the understanding of the purchaser, though on his part there may be other concurrent motives, as in the case of the Bendshorg (4 C. Rob., 121), such a contract cannot be held good, on the same principle that applies to invalidate a transfer in transitu in time of actual war. The motive may indeed be difficult to be proved — but that will be the difficulty of particular cases. Supposing the fact to be established, that it is a sale under an admitted necessity, arising from a certain expectation of war ; that it is a sale of goods not in the possession of the seller, and in a state where they could not, during war, be legally transferred, on account of the fraud on belligerent rights. I cannot but think that the same fraud is commit- ted against the belligerent, not, indeed as an actual belligerent, but as one who was, in the clear expectation of both the contracting par- ties, likely to become a belligerent before the arrival of the property, which is made the subject of their agreement. The nature ol both 620 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11. contracts is identically the same, being equally to protect the prop- erty from capture of war — not indeed in either case from capture at the present moment when the contract is made, but from the danger of capture, when it was likely to occur. The object is tlio same in both instances, to afford a guarantee against the same crisis. In other words, both are done for the purpose of eluding a belliger- ent right,' either present or expected. Both contracts are framed with the same amnio fraudaadi^ and are, in my opinion, justly subject to the same rule. * * * " I am of opinion, therefore, that if the papers and letters which have been produced, do suflBciently establish the purpose attributed to the contract, if it is proved to have been built immediately and fundamentally on the contemplation of war, on the part of the seller, and that it would not otherwise have fallen into the hands of the purchaser, it is an illegal contract, and must be held on every ground, on which similar contracts in time of war have been held to be invalid. * * * " But taking it to be a hona fide contract, yet being formed in transitu, for the purpose of withdrawing the property from capture, it does intimately partake of the nature of those contracts, which have, in the repeated decisions of this, and of the Supreme Court, been pronounced null and invalid; and I pronounce this property subject to condemnation." THE SHIP ''K^^ GREEN." U. S. Circuit Court for Massachusetts, 1812. (1 GaUison, 274.) Story, J. : ^ — " It has been further argued, that this capture, being made while the property was in transitu, and war intervening, it is to be consid- ered as enemy's property, because it would have become such upon arrival at the port of destination : and at all events it would have been liable to seizure and confiscation. As to the fact that the property was taken in transitu, I do not perceive how of itself it can affect the rights of the parties either way ; nor do I perceive how this property was to have become enemy's property on its arrival. The case proved is, that it was American property consigned for sale 1 Statement of the case is omitted and only so mucii of the opinion is given as relates to transfer in trausiiu. — Ed. CHAP. 11.] THE " BENITO ESTENGER." 621 only, and not a consignment where the property was, at the time of shipment or of arrival, to belong to the consignee. The cases are, as I think, settled upon just principles, that decide that in time of war, property shall not be permitted to change character in its transit ; nor shall property consigned, to become the property of the enemy on arrival, be protected by tlie neutrality of the shipper. Such con- tracts, however valid in time of peace, are considered, if made in war or in contemplation of war, as infringements of belligerent rights, and calculated to introduce the grossest frauds. In fact, if tliey could prevail, not a single bale of enemy's goods would ever be found upon the ocean." ( Vrow Marffciretha, 1 C. Rob., 336 ; Carl Walter, 4 C. Rob., 207; Jan Frederich, 5 C. Rob., 128; Tlie Constantia, 6 C. Rob., 321 ; The Anna Catharina, 4 C. Rob., 107 ; Packet De Bilhoa, 2 C. Rob., 133.)i THE "BEXITO ESTENGER." Supreme Court of the United States, 1899 (176 United States, 568 ) Mr. Chief Justice Fuller, after stating the case, delivered the opinion of the court. If the alleged transfer was colorable merely, and Messa was the owner of the vessel at the time of capture, did the District Court err in condemning the Benito Estenger as lawful prize as enemy property ? "Enemy property'' is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distinguislied from the common law. The general rule is that in war the citizens or subjects of the belligerents are enemies to each other without regard to individ- ual sentiments or dispositions, and that political status determines the question of enemy ownership. And by the law of prize, property en-; gaged in any illegal intercourse with the enemy is deemed enemy property, whether belonging to an ally or a citizen, as the illegal 1 In the case of the ship Francis and Cargo, 1813, 1 Gallison, 445, approved by tlie Supreme Court, 8 Cranch, 354 (1813), a sliipment made by an enemy shipper to liis correspondent in America, to belong to the latter at his election, in twenty-four hosirs after tlie arrival thereof, was held liable to condemnation as hostile property. In war, property cannot change its character in transitu ; and in this case, an elec- tion during the transit would not merge the hostile character of the property. On the subject of the sale in transitu by a belligerent to a neutral, see an article by T. S. M. Browne, in the Law Magazine and Review, 1870, Vol. xxix. p. 233. — Ed. 622 EFFECTS OF WAB AS BETWEEN ENEMIES. [PART H. traffic stamps it with the hostile character and attaches to it all the penal consequences. Prize Cases, 2 Black, 635, 674; The Salhj, 8 Craneh, 382, 384; Jecker y. Montrjomenj, 18 How. 110; The Peter- hoff, 5 Wall. 28 ; The Flying Scud, 6 Wall. 263. Messa was a Spanish subject, residing at Santiago, and for years engaged in business there. His vessel had a Spanish crew and Span- ish officers, and he testified that he was on board of her as supercargo. She had the Spanish flag in her lockers, though she was %ing tlie British flag at the moment, under a transfer, which, as presently to be seen, was colorable and invalid. There was evidence tending to show that Messa sympathized with the Cuban insurgents, but no proof that he was himself a Cuban rebel or that he had renounced his allegiance to Spain. The vessel carried to Manzanillo on this voy- age a cargo of provisions, consisting principally of eleven hundred barrels of flour. Manzanillo was a city of several thousand inhabitants and the first important place on the south Cuban coast between Santiago and Cienfuegos, lying inside the bay formed by the promontory which Cape Cruz terminates, and about sixty miles northeast of the cape. Cape Cruz is about due north from Montegro Bay on the northwestern shore of Jamaica, and about seventy-five miles distant, while Kings- ton is on the southeastern coast of Jamaica. The record lacks evi- dence of the condition of affairs there at that time, but official reports leave no doubt that it was defended by several vessels of war and by shore batteries, and was occupied by some thousands of Spanish sol- diers. On the 6th of April, 1898, the Secretary of the Navy had instructed Admiral Sampson, among other things, that the depart- ment desired, '' That in case of war, you will maintain a strict block- ade of Cuba, particularly the ports of Havana, Matanzas, and, if possible, Santiago de Cuba, Manzanillo and Cienfuegos." Manzanillo was the terminus of a cable which connected with Santa Cruz, Trini- dad, Cienfuegos and Havana, and Avas subsequently cut by the forces of the United States, in order to check the inland traffic with ]\ran- zanillo and to prevent the calling of re-enforcements to resist the cap- ture of that place. And it appeared that Admiral Sampson had been for some weeks endeavoring to stop blockade running on the south coast of Cuba, and that a large vessel with a heav}' battery was stationed at Cape Cruz. INIanzanillo was not declared blockaded, how- ever, until the proclamation of June 27, 1898 ; but the consul of the United States at Kingston had warned Messa and Beattie that a blockade in fact existed. The claimant testified that the vessel was chartered by Flouriache, a Cuban merchant, and that the cargo was consigned to Bauriedel and Company, at Manzanillo. The deposition CHAP. II.] THE "BENITO ESTENGER." 623 of neither of these was taken. According to the explicit testimony of the consul, he was informed by both tlie claimant and his brother that the flour was transferred by Bauriedel and Company, through a communicating way from their warehouse to the Spanish Government warehouse, immediately ujjon its delivery ; and no evidence to contra- dict this was introduced. The instructions of the Navy Department to "blockading vessels and cruisers,-"' in the late war, included, among articles conditionally contraband, ''provisions, when destined for an enemy's ship or ships, or for a place that is besieged." In The Commercen, 1 Wlieat. 382, 388, Mr. Justice Story said: "By the modern law of nations provisions are not, in general, deemed contraband; but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. * * * if destined for the ordinary use of life in the enemy's country, they are not, in general, contraband ; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband." In The Jonge Margaretha, 1 C. Kob. 189, 193, Sir "William Scott dis- cussed this question, and, after referring to many instances, concluded : " And I take the modern established rule to be this, that generally they are not contraband, but may become so under circumstances aris- ing out of the particular situation of the war, or the condition of the parties engaged in it." But, while alluding to this subject by way of illustration, we do not feel called on to consider under what particular circumstances, gener- ally speaking, provisions may be held contraband of war. It is enough that, in dealing with a vessel adjudicated to have been an enemy vessel, the fact of trade with the enemy, especially in supplies neces- sary for the enemy's forces, is of well-nigh decisive importance. In reply it is suggested that this cargo was intended for the Cuban insurgents, and a quotation is made from a letter of the consul to the effect that he had been " told privately by the president of the local junta, who has performed valuable services for me, that the proceeds of this cargo are to be forwarded to the Cuban Government and troops through the Cuban agent at Manzanillo." The suggestion derives no support from the record, and the facts remain that the provisions were delivered to the Spanish Government, and that the trade to this Span- ish stronghold constituted, under the laws of war, illicit intercourse with the enemy. This brings us to consider the contention that Messa had rendered important services to the United States ; that he was the friend and 624 EFFECTS OF AVAE, AS BETWEEN ENEMIES. [PART II. not the enemy of this government, and that there was an agreement between him and the United States consul which operated to protect the vessel from capture. But IMessa's status was that of an enemy, as already stated, and this must be held to be so notwithstanding individual acts of friendship, certainly since there was no open adher- ence to the Cuban cause, and allegiance could have been shifted with the accidents of war. The legal conclusion Avas not affected by the fact that Messa had, in cultivating friendly relations with the consul, given the latter au old government plan of the province of Santiago and an especially prepared chart of the harbor. Thus displaying his amicable inclinations, he endeavored to obtain from the consul a letter of protection for the voyage he was about to undertake, but this the consul declined to furnish, and informed him at the same time that Manzanillo was blockaded, and that the contemplated venture would be at his own risk. Nevertheless, the consul agreed to write the admiral, and did write him, June 23, that Messa offered to give certain information that might be valuable, and that he proposed to be off Cape Cruz on June 30, when he could be picked up there and taken to the admiral if he desired ; but the consul said : ■'' You quite understand that in dealing with those people, one is always more or less liable to imposition. I therefore make no recommendation of Messa to you." There was noth- ing to show that the voyage was undertaken on the strength of this letter or that it in any way contributed to the capture, nor that the admiral intended to avail himself of the suggestion in regard to Messa. The claimant asserted and the consul denied that protection to the voyage was extended by the latter. But we do not go at length into this matter because we tliink that no engagement with the United States nor any particular service to the United States Avas made out in that connection, and so far as appears the vessel was captured in the ordinary course of cruising duty at a time and under circum- stances when her liability was not to be denied. Moreover, a United States consul has no authority by virtue of his official station to grant any license or permit the exemption of a vessel of an enemy from capture and confiscation. This was so held by Judge McCaleb in Rogers v. The Amado, Xewberry, 400, in Avhich he quotes the language of Sir William Scott in The Hope, 1 Dodson, 226, 229 : " To exempt tlie property of enemies from the effect of hostilities, is a very high act of sovereign authority; if at any time delegated to persons in a subordinate situation, it must be exercised either by those who have a special commission granted to them for the par- ticular business, and who, in legal language, are termed mandatories CHAP. II.] THE " BENITO ESTENGER." 625 or b}' persons in whom such a power is vested in virtue of any official situation to which it may be considered incidental. It is quite clear that no consul in any country, particularly in an enemy's country, is vested with any such power in virtue of his station. ' Ei rel non 2)r(vj)onitur ; ' and therefore his acts relating to it are not binding." In Tlie Josejih, 8 Cranch, 451, the vessel was condemned for trad- ing with the enemy, and it was held that she was not excused b}^ the necessity of obtaining funds to pay the expenses of the ship, nor by the opinion of an American minister expressed to the master, that by undertaking the voyage he would violate no law of the United States. The court said that these considerations, " if founded in truth, present a case of peculiar hardship, yet they aiford no legal excuse which it is competent to this court to admit as the basis of its decision." This is equally true of the case before us, for even if the circum- stances may have justified liberal treatment, that cannot be permitted to influence our decision. It belongs to another department of the Government to extend such amelioration as appears to be demanded in particular instances. Neither the case Les Cinq Freres, 4 Leban's Xouveau Code des Prises, 63, nor that of The Jlarla, 6 C. Rob. 201, cited by counsel, is in point. In the former, the Committee of Public Safety in the year 3 of the Prench calendar of the Revolution decreed the condemnation of Les Cinq Freres as an enemy's vessel, and of her cargo, although belonuinir to Prenchmen, but further decreed restitution of the cars of war) from either belligerent, and the purchase is valid whctlier the subject of it be lying in a neutral or an enemy's port. See, also. The Georgia, 1868, 7 Wall. 32, citing with approval Rt. Hon. T. Pember- ton Leigh's judgment in The Baltica, and holding that a bona fide purchase for a com- mercial purpose by a neutral, in his own home port, of a ship of war of a belligerent that had fled to such a port in order to escape from enemy vessels in pursuit, but wliich was bona fide dismantled prior to the sale and afterwards fitted up for the mer- chant service, does not pass a title above tlie right of capture by tlie otlier belligerent. Perhaps the inexorable rule of law against transfers in transitu, unless (as Mr. Hall expresses it, in his Int. Law, p. 526), " the transferee has actually taken possession " is j nowhere better put than by Mr. Justice Swayne in delivering the opinion of the court in The Salli/,'!^^^, 3 Wall. 451, 460: " The ownership of property in such cases can- not be changed while it is in transitu. The capture clothes the captors with all the rights of the owner which subsisted at the commencement of the voyage, and any- thing done thereafter, designed to incumber the property, or change its ownership, is a nullity. Sound public policy and the right administration of justice forbid it. This rule is rigidly enforced by all prize tribunals. The property -was shipped to the G30 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. was prayed on the part of the neutral ship, that the priority of pay- ment might be given to freight, on the authority of the Bremen Flugge, I C. Rob., 90. Judgment, — Sir W. Scott : — " I have considered the cases which I directed to be looked np, and I see no reason to alter the opinion which I before expressed, that freight is, in all ordinary cases, a lien which is to take place of all others. The captor takes cum onere : It is the allowed privilege of neutral trade to carry the property of the enemy, subject to its capture, and to the teraporarj^ detention of his vessel ; and if the party does not prevaricate, or conduct him- self in any respect with ill-faith, he is entitled to his freight. This is the rule which I am disposed to apply in all cases of neutral ships carrying on their ordinary commerce. It is the general rale, which, may nevertheless be liable to be altered by circumstances. There is I one class of cases to which I think it ougJit not to be applied — I t mean the case of ships carrying on a trade between ports of allied enemies — a trade which may be said to arise in a great measure out of the circumstances of war, though not altogether : I say not altogether, because such a trade exists in a limited degree in times of peace. '• In sucli a course of trade, although the Court has not altogether refused freight to the neutral ship, yet it may not think it unreason- able that the captor should, in preference, be entitled to his expenses, inasmuch as the nature of such a trade cannot but very much influ- ence the judgment which he must unavoidably form of his duty to bring in the cargo for adjudication. In the present case, the voyage is not between the ports of allied enemies, but between the ports of two belligerents, from Valencia to London ; that constitutes, I I think, a sort of middle case, with respect to the obligation by which " the captor might conceive himself bound to bring the cargo to adju- dication. Tliere miglit be a presumption, undoubtedly, that the property belonged to the enemy exporter ; but there is a foundation also for presuming that it might belong to the consignee, and that it would not have been sent on a desthiation to this country, but under the protection of a license. " It is, therefore, a case of a mixed nature, to which I shall apply enemy. It was diverted from its course by the capture. The allegation of a lien wears the appearance of an afterthouglit. It strikes us as a scheme devised under pressure, to save, if possible, something from the vortex which it was foreseen inevita- bly awaited the vessel and cargo." On the question of colorable transfer in war, see, also, The Texan Star, 3 Moore Int. Arb. 23(J0, and cases there cited. — Ed. CHAP. TI.] THE "FORTUNA." 631 a sort of a middle judgment. I will allow the captor his law expenses, and direct the other expenses to be postponed to the pay- ment of freight." THE "FORTUXA." High Court of Admiralty, 1802. (4 C. Robinson, 278.) This was a case on petition of the captors, praying to be allowed freight for a cargo, which had been restored as neutral property. The demand for freight Avas founded on a suggestion, that the ship, which had been condemned, had actually performed the contract of the original affreightment, by carrying the cargo to the place of its destination. ^ Judgment, — Sir W. Scott : — " This is the case of a ship which had carried a cargo of corn to Lisbon, the original port of destination. In such a case I appre- hend the rule to be, that the captor is entitled to freight, and on the same principle, on which he would be held not to he entitled, where he does not proceed, and perform the original voyage. The specific contract is performed in the one case, and not performed in the other. It is the rule of practice laid down in the case of the Vrey- heid. Lords, 1784, a case perfectly within my recollection as a case very deliberately considered at the Cockpit. It is conformable to the text law, and the opinion of eminent jurists. ' Quod additur de vecturae pretiis solvendis (says Bynkershoek), ejus juris rationem non adsequor. Satis intelligo, qui navem hostilem occupant, etiam occupasse omne jus quod navi, sive navarcho debebatur, ob merces translatas in portum destinatum. Proponitur autem, navem in ipso itinere fuisse captam. Eccur igitur capienti solvam mercedes ? Si qui cepit navem, cam cum mercibus in locum destinatum perducere paratus sit, ejus juris rationem intelligerem, ceteroquin non in- telligo.' " In the case of the Vreyheid^ all the considerations that could be applied to this question were fully canvassed, and it was then recog- nized as the true rule, that the captor tcho has performed the con- 1 tract of the vessel is, as a matter of right, and de cursu^ entitled to \ freight; although, if he has done anything to the injury of the prop- erty, or has been guilty of any misconduct, he may remain answer- 1 The statement has been shortened and part of tlie opinion is omitted. — Ed. I 632 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART TT. able for the effect of such misconduct, or injury, in the way of a set- off against him. "The case then is reduced to a question, whether the captor, in this instance, has done anything to forfeit the right, which, under the general rule, he had acquired. * * * "Under the circumstances of this case, I am of opinion, that the captor has not forfeited the interest which he had acquired. ''Freight decreed to the captor." ^ THE "ANTONIA JOHANNA." Supreme Court of the United States, 1816. (1 Wheaton, 159.) A neutral ship was chartered for a voyage from London to St. Michaels, thence to Fayal, thence to St. I'etersburg or any port in the Baltic, and back to London, at the freight of 1,000 guineas. On her passage to St. Michaels she was captured and brought into the port of Wilmington, N. C, for adjudication. A part of the cargo was condemned, and part restored.^ Story, J., delivered the opinion of the court. " The next inquiry is, as to the freight decreed to the master. As no appeal was interposed to the decree of the District Court, allowing the whole freight for the whole voyage, the question, whether more than a j^^'o ^'f''^* freight was due (a question which would otherwise have deserved grave consideration), does not properly arise. The only discussion which can now be entertained is, whether the freight so decreed ought not to have been charged upon the whole cargo, instead of being charged upon a portion of it. And we are all of opinion that it was properly a charge upon the whole cargo. Although capture be deemed, in the prize courts, in many cases, equivalent to 1 Compare The Diana, 1803, 5 C. Rob. 67, and Vrow Anna Catharina, 1806, 6 C. Rob. 2G0, in whicli the special circumstances of The Diana are explained ; the rule of the text afSrnied and restated and the rule pro rata itineris rejected. In Palmer v. Lorillard, 1819, 16 Johns. 848, it was lield by Chancellor Kent that a contract of i affreightment is not dissolved by a hostile blockade or investment of tlie port of departure ; the performance of it is merely suspended and the shipowner may detain the goods until he can prosecute the voyage with safety or the freighter demand them on tendering the full freight. It is only when the voyage is broken up, on the part of the shipowner or master, or the completion of it has become unlawful, that the contract is dissolved. See, also. The Commcrcen, 1816, 1 Wheat, 382, infra. — Ed. 2 Statement by the editor and only so much of the judgment is given as relates to the question of freight. — Ed. \ CHAP. II.] THE " ANTOXIA JOHANNA." 633 deliveiy, j-et the captors cannot be liable for more than the freight of the goods actually received by them. The capture of a neutral ship, having enemy's property on board, is a strictly justifiable exercise of the rights of war. It is no wrong done to the neutral, even though the voyage be thereby defeated. The captors are not, therefore, answerable in pcenam to the neutral for the losses which he may sustain by a lawful exercise of belligerent rights. It is the misfortune of the neutral, and not the fault of the belligerent. By the capture, the captors are substituted in lieu of the original owners, and they take the property cum onere. They are, therefore, respon- sible for the freight which then attached upon the property, of which the sentence of condemnation ascertains them to be the rijjhtful owners succeeding to the former proprietors. So far the rule seems perfectly equitable ; but to press it farther, and charge them with the freight of goods w'hich they have never received, or with the burden of a charter party into which they have never entered, would be unreasonable in itself, and inconsistent with the admitted principles of prize law. It might, iu a case of justifiable capture, by the con- demnation of a single bale of goods, lead the captors to their ruin by loading them with the stipulated freight of a whole cargo." Decree affii'med, excep)t as to the freight.^ Davis, J., in Hooper, Adni'r, v. U. S., 1887, 22 Court of Claims, 408, 460. In case of capture the general rule is that the neutral carrier of enemy's property is entitled to his freight (Stor\', J., in The Comer- ceen, 1 Gallison, 264). Sir William Scott held very firmly by this rule in the case of Der Mohr, 3 C. Rob. 129, and 4 C. Rob. 315, a case 1 It has been held that tlie charter-party is not the measure by which tlie captor is, in all cases, bound, even where no fraud is imputed to the contract itself. When, by the events of war, navigation is rendered so hazardous as to raise the price of freight to an extraordinary height, captors are not, necessarily, bound to tliat inflamed rate of freiglit. When no such circumstances exist, when a ship is carrying on an ordinary trade, the charter-party is undoubtedly the rule of valuation, unless impeached ; the captor puts himself in the place of the owner of tlie cargo, and takes witli that specific lien upon it. But a very different rule is to be applied, when tlie trade is subjected to very extraordinary risk and hazard, from its connection with the events of war, and the redoubled activity and success of the belligerent cruisers. The Twilling Riget, 1804, 5 Rob. 82. See the ship Nathaniel Hooper, 3 Sumn. 1839, 549, where there is an elaborate review of authority that the doctrines of prize courts, in the administration of prize I law as to freigiit, are not generally applicable to cases of mere civil commercial ven- tures, or cases of civil salvage. See, also, 3 Kent's Com. 249 ; Carver's Carriage of Goods by Sea (3d ed. 1900), §§ 236, 237, 244-247, and cases cited in the rules to these sections. — Ed. 634 EFFECTS OP WAR AS BETWEEN ENEMIES. [PART II. of great hardship, appealing strongly to the sympathy of the court. In that case he said : " In an unfortunate case like the present, the court would certainly be disposed to give the captor all possible relief. I need not add that no relief is possible which cannot be given consistently with the justice due to the claimant. The demand of freight is, I apprehend, an absolute demand, in cases where the ship is pronounced to be innocently employed. * * * The freight is as much a part of the loss as the ship, for he (the captor) was bound to answer equally for both. The captor has, by taking possession of the whole cargo, deprived the claimant of the fund to which his security was fixed. He was bound to bring in that cargo subject to the demand for freight. He was just as answerable for the freight of the voyage as for the ship Avhich was to earn it, or which was rather to be considered as having already earned it. In the room of this fund the captor has substituted his own responsibility, for loss accrues by the fault of his agent. I see no distinction under which I can pronounce that the claimant is not as much entitled to the freight as to the vessel." See, also, 1 Gallison, 274, the Anna Green. Upon an open insurance policy gross freight is recoverable, 2 Phillips Ins. § 12.38. As to insurance, the inchoate right to freight vests directly " the ship has broken ground on the voyage described in the charter-party," and there is an insurable interest "where there is an expectancy coupled with a present existing title." Lucena v. Crawford, 2 Bos. and Pull. N. R. 269 ; 1 Phillips Ins., § 334, p. 192. Freight, then, is properly insurable and collectible. It has value, though the right as against the freighter may be inchoate until delivery. As to the freighter the shipowner is without redress, unless there be delivery in accordance with the contract, but as to an insurer or tort-feasor, there is a right to redress upon the happening of an. interruption of the voyage. The amount of that redress and the inethod of computing it in the cases now submitted to us of illegal capture are now to be decided. The shipowner has a right to a reasonable return upon his investment, for the risk to which his property is subjected, for its depreciation while engaged in the under- taking, and for the expenses to which he is subjected in carrying it out. The measure of that return, based upon the theory of a complete voyage, he has himself fixed in his contract of affreightment. If his voyage be not completed, but be interrupted and his property be lost by the act of a wrongdoer, then, as against that wrongdoer, the maxim restutio in inte grinn applies. If the voyage were completed the difficulty would not be serious, for as a guide we should have a contract made by parties opposed in interest and familiar with the CHAP. II.] HOOPER, ADM'r, V. UNITED STATES. 635 business. As the voyage "has not been completed, an allowance of gross freight would be more than a restitutio in integrum, and would neglect a deduction for expenses necessarily to be incurred in com- pleting the contract and in conveying the cargo to the point of delivery. To allow gross freight under these circumstances would in effect not merely reimburse the owner, but render the seizure a matter of profit to him, and we do not understand that punitive damages should be recovered in the cases now before us. The vessel having been destroyed before the completion of the voyage, has not been so long employed as the contract contemplated, her crew have received less wages, and her hull and outfit have received less deterioration. She has only earned freight pro tanto. On the other hand, the ex- penses of freight earning are much greater at the beginning of the voyage than at any other period, for then advances are made seamen, stores are shipped, port charges and the cost of loading have to be met. Therefore to divide the total freight by the number of days out of port would not be fair to the shipowner ; to deduct from the total freight the cost of the voyage from the place of destruction to port of destination would be a fairer rule, could those expenses be ascertained. To compute the amount of this freight in each instance is practi- cally impossible, so that the court is forced to the adoption of some general rule which in our opinion is a fair result. The difficulty is not a novel one, and the method of solution not without precedent. Those familiar with the proceedings of prize courts know that a substantially arbitrary rule is there often adopted in practice to en- force justice, and now, nearly a hundred years after the events from which these claims arise, when all witnesses are dead and many records destroyed, we are forced to this course, and it is evidently impossible to estimate in every instance precisely the proportion of freight earned. Where such an estimate can be made we shall make it, in other cases we shall adopt a general rule. In seeking for such a rule, we learn that in commercial cities, in the adjustment of average losses, there is a practice to award arbi- trarily two-thirds of the full freight on the immediate voyage. This course was in effect followed by the commissioners under the treaty of 1831 with France, who made a similar allowance as a fair measure of the increase in value of the cargo by reason of the distance to which it had been transported at the time of capture ; and the award was made to the shipper if he had paid freight ; to the shipowner if the freight had not been paid. After carefully examining the cases before us we conclude that this rule is substantially just, and we adopt it. 636 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. This brings us to another point. The Nancy was under charter for a round voyage — Baltimore to Jamaica and return. She was de- stroyed on the outward voyage. Is she entitled to an allowance for freight based upon the entire contract contained in the charter- party ? As against an insurer or tort-feasor the inchoate right to freight vests when the vessel breaks ground " on the voj'age described in the charter-party " (siqira). An insurable interest in freight cannot spring from a mere " expectancy," but may spring from an " expectancy " when this is coupled with " a present existing title." Lucena v. Crawford^ supra. In cases of general average for jettison, Lowndes states the rule to be that "when a ship is chartered to fetch or carry a cargo belong- ing to the charter, the freight under the charter must contribute to the general average, whether or not the cargo is on board the ship at the time of the general average act, since the loss of the chartered ship, whether laden or not, would deprive the shipowner of his ex- pected freight." Lowndes, on General Average, 236. It has been held in this country that where a gross sum was to be paid as freight for a voyage out and return, the principal object of the voyage being to obtain a return cargo, the freight for the whole trip must contribute to general average on the outward voyage. The Mary^ 1 Sprague's Decisions, 17. The same rule has been adopted in cases of salvage. The Nathaniel Hooper^ 3 Sumner, 542 ; The Prog- ress, Edwards, 210; The Dorothy Foster, 6 C. Eob. 88; see, also, Livingston v. Columbia Insurance Company, 3 Johns. (X. Y.), 49; Hart V. Delaware Insurance Company, 2 Wash. C. C. 346. The decisions on this question in the United States do not go so far as those in England, but we lean to the doctrine of Sir William Scott and Dr. Lushington, as better applicable to the cases now before us, that when a vessel is actually under contract for a voyage from I one port to another, thence to proceed to a third, she has such "a I present existing title " in the freight money of the entire voyage j as to authorize a recovery based upon the total freight money for the round trip. Of course she is not entitled to gross freight, and we must not be understood as intending any application of this principle to a vessel proceeding under a mere " expectancy " of finding her cargo at her first port of call. The principle only covers those cases where there is an assurance of freight from her first port of call to her second, and a price stipulated to be paid therefor. CHAP. II.] THE " CARLOS F. ROSES." 637 THE "CARLOS F. EOSES." Supreme Coubt of the United States, 1899. (177 United States, 655.) Mr. Chief Justice Fuller/ delivered the opinion of the court. The President's proclamation of April 26, 1898, declared the policy of the government in the conduct of the war would be to adhere to the rules of the Declaration of Paris therein set forth, one of them being thus expressed: "Neutral goods not contraband of war are not liable to confiscation under the enemy's flag." The question is whether this cargo when captured was enemy prop- erty or not. The district court held that both the title and right of possession were in these neutral claimants at the time of the capture, " as evidenced by the indorsed bills of lading and the paid bills of exchange," and, therefore, entered the decree in claimant's favor. As i the vessel was an enemy vessel the presumption was that the cargo I was enemy's property, and this could only be overcome by clear and ■ positive evidence to the contrary. The burden of proving ownership rested on claimants. Tlie London Packet, 5 Wheat. 132 ; The Sally Magee, 3 Wall. 451 ; The Benito Estenger, 176 U. S. 568. Further proofs on claimant's behalf were ordered to be furnished within sixty days from June 2 ; and the time was enlarged to August 31 ; and again to October 15. The proofs tendered were three affi- davits of claimants' manager sworn to September 27, October 12 and October 21, 1898, respectively, with accompanying papers. Such ex parte statements, where further proofs have been ordered, though ad- mitted without objection, are obviously open to criticism, but without pausing to comment on these in that aspect, we inquire whether they satisfy the requirements of the law of prize in respect of the establish- ment of the neutral character of this cargo under the circumstances. Gibernau and Company were citizens of a neutral state ; they were evidently commission merchants, and in each invoice a charge for their commission on the shipment appears. The invoices expressly provided that the goods were shipped "to order for account and risk and by order of the parties noted below." The consignees noted be- low in the invoice of the jerked beef were the owners of the vessel, " the expedition or voyage of the Carlos F. Roses " and " Mr. Pedro Pages of Havana," all Spanish subjects. The consignees of the gar- lic were '' Mr. Pedro Pages " and the undersigned ; that is, Gibernau 1 Statement of the facts is omitted. — Ed. 638 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART TI. itnd Company. There were three sets of bills of lading issued by the master to Gibernau and Company. One covered the portion of the shipment of jerked beef made for the account of the vessel ; another, the portion of that shipment made for the account of Page's; the third, the shipment of garlic made for the joint account of Pages and Giliernau and Company. All the bills set forth that the goods were taken for the account and at the risk of whom it might concern. The ship's manifest was signed tinder date March 15, and the destination of the cargo was stated thus : " Shipped by Pla Gibernau Co. To order.'' The vise of the counsel of Spain, dated the day before, was : " Good for Havana, with a cargo of jerked beef and garlic." As the vessel had a share in the shipment of the jerked beef, and the consignees were named in the invoices, which set forth that the shipments were made by their orders for their account and at their risk, it would ap})ear that the manifest was erroneous, and this and the fact that the bills of lading stated that the goods were taken " for account of whom it may con- cern," should be especially noted, since the reasonable inference is that the consignees must have been known to the master. And it also should be observed that there was no charter-party, which would have necessarily revealed the engagements of the vessel, but which naturally would not be entered into if the commercial venture was that of her owner. The general rule is that a consignor on delivering goods ordered, to a master of a ship, delivers them to him as the agent of the consignee so that the property in them is vested in the latter from the moment of such delivery, though the rule may be departed from by agreement or by a particular trade custom, whereby the goods are shipped as belonging to the consignor and on liis account and risk. We think that on the face of the papers it must be concluded that when these goods were delivered to the vessel they became the prop- erty of the consignees named in the invoices. Hence the shipments of jerked beef must be regarded as owned by Pages, or b}^ him and the owners of the Carlos F. Roses. One half of the garlic belonged to Pages, the remaining half was consigned to Gibernau and Company, and they did not claim, and have not claimed it, nor was it asserted that Gibernau and Company retained the ownership of any part of the cargo after its delivery to the vessel. Property so long unclaimed may be treated as in any view good prize. The Adeline, 9 Cranch, 244 ; Tlie Harrison, 1 Wheat. 298. In fact, claimants admit that the whole cargo " was ultimately destined for Don Pedro Pages of Havana." The bill of exchange drawn by Gibernau and Company named Kleinwort Sons and Company as accepters, and directed them to charge the amount to the account of " Pedro Pagtis of Havana as per CHAP. IL] the " CARLOS F. ROSES." 639 advice." The bill drawn by Maristany also named Kleinwort Sons and Company as drawees, and directed them to charge the amount " to P. Eoses Valenti of Barcelona as per advice." In neither of them was there any reference to the cargo, and, so far as appeared, the amounts were at once charged up to the person named. Harcke said that when the bills of exchange were accepted by Kleinwort Sons and Company bills of lading covering the shipment of 110,256 kilos of jerked beef and of the garlic were delivered to them in consideration of the acceptance of the draft for £2,714 13s 8d, and that bills of lading for the 365,354 kilos of jerked beef were after- wards delivered in consideration of the acceptance of the draft for £3,583 lis 6d. But the date of the latter delivery was not given, and it affirmatively appeared that whenever these bills of lading reached Kleinwort Sons and Company they were retained "pending the dis- posal of the cargo." Both drafts were accepted April 6, and the bills of lading for the 110,256 kilos of jerked beef and for the garlic were forwarded to Gelak and Company on April 9, but the bills for the 165,384 kilos of jerked beef, whenever received, never were. The in- structions to Gelak and Company were not put in evidence, nor any of the correspondence with Valenti or Pages. In June, Gelak and Com- pany cabled that the bills sent to them had not been received ; in Sep- tember they turned up, but no information was aiforded as to how they came into Gelak and Company's possession ; and in October duplicates were also received by claimants from Gelak and Company, with, so far as disclosed, no accompanying explanation. And Harcke's affi- davits failed to set forth the relations, transactions or correspondence existing and passing between claimants and the enemy owners of the cargo. This, although, as Sir William Scott said in The Magnus, 1 C. Eob. 31, " the correspondence of the parties, the orders for purchase, and the mode of payment, would have been the points to which the court would have looked for satisfaction." The affidavits alleged that claimants were wholly unindemnified ex- cept by the proceeds of the cargo and the insurance thereon, by which the insurers were subrogated to their own rights, but did not state whether the insurance contemplated a Avar risk, or why the bills of lading for the larger portion of the beef were retained by claimants and not sent to their Havana agents, or whether they retained them upon instructions from the enemy owners ; or whether they came to claim- ants from Spain ; nor did anything appear in respect of tlie interest of Pages as consignee for himself, or in a representative capacity; nor of Valenti, the owner of the enemy vessel, who resided at Barcelona. The evidence of enemy interest arising on the face of the documents called on the asserted neutral owners to prove beyond question their 6-10 EFFECTS OF WAPw AS BETWEEN ENEMIES. [PART II. right anrl title. And still, for all that appears, the documents may have been sent merely to facilitate delivery to the agent of the enemy owners. Bills of lading stand as the substitute and representative of the goods described therein, and while quasi negotiable instruments, are not negotiable in tlie full sense in which that term is applied to bills and notes. The transfer of the bill passes to the transferee the transferor's title to the goods described, and the presumption as to ownership arising from the bill may be explained or rebutted by other evidence showing where the real ownership lies. A pledgee to whom a bill of lading is given as security gets the legal title to the goods and the right of possession only if such is the intention of the parties, and that intention is open to explanation. Inquiry into the transaction in Avhich the bill originated is not precluded because it came into the hands of persons who may have innocently paid value for it. Pollard V. Vbitoii, 105 U. S. 7; Shaiv v. Railroad Company, 101 U. S. 557. Generall}' speaking, in the purchase and shipment of goods on bills of lading attached to bills of exchange drawn against them, the bill of exchange is drawn on the consignee and purchaser, and sent forward for collection through the banker at the place of shipment, who ad- vances on the draft, and thereafter realizes on it through his corre- spondents, or by sale as exchange ; or the banker at some other point, or at the general exchange centre, may be the drawee of the bill of exchange instead of the consignee or real owner, the banker standing in the place of the owner, in virtue of some arrangement with his cus- tomer, or on the faith of a running account, the pledge of other securities, or the customer's personal liability, so that the draft may be charged up at once, and, at all events, the control of the goods is not the sole reliance of the banker. In the case in hand, the captors succeeded to the enemy owners' rights, and could have introduced evidence as to the real nature of the transactions, and so have rebutted any presumption in favor of the bankers as purchasers for value, and although they did not do this, the question still remains that in prize courts it is necessary for claimants to show the absence of anything to impeach the transaction, and at least to disclose fully all the surrounding circumstances. And this we think claimants have failed to do. The right of capture acts en the proprietary interest of the thing captured at the time of the capture and is not affected by the secret liens or private engagements of parties. Hence the prize courts have rejected in its favor the lien of bottomry bonds, of mortgages, for sup- plies, and of bills of lading. The assignment of bills of lading trans- CHAP. II.] THE " CARLOS F. ROSES." 641 fers the jxis ad rem, but not necessarily the jus in rem. The jus in re • or in. rem implies the absolute dominion, — the ownersliip inde- pendently of any particular relation with another person. The jus ad rem has for its foundation an obligation incurred by another. Sand. Inst. Just. Tntrod., xlviii; 2 Marcade, Expl. du Code Napoleon, .350; 2 Bouvier (Rawle's Revision), 73; The Young Mechanic, 2 Curtis, 404. Claimants did not obtain the jus in rem, and, according to the great weight of authority, the right of capture was superior. In The Frances, 8 Cranch, 418, a New York merchant claimed two shipments of goods, one in consequence of an advance made to eneni}^ shippers by him in consideration of the consignment, and the other in virtue of a general balance of account due to him from the ship- pers as their factor. Both consignments were at the risk of the enemy shippers. The goods were condemned as enemy property, and the sentence was affirmed. This court said : "The doctrine of liens seems to depend chiefly upon the rules of jurisprudence established in different countries. There is no doubt but that, agreeably to the principles of the common law of England, a factor has a lien upon the goods of his principal in his possession, for tlie balance of account due to him; and so has a consignee for ad- vances made by him to the consignor. * * * But this doctrine is ; unknown in prize courts, unless in very peculiar cases, where the lien ) is imposed by a generpJ law of the mercantile world, independent of ^itirv«j.-< any contract between the parties. Such is the case of freight upon f^'y- enemies' goods seized in the vessel of a friend, which is alwa^'s de- creed to the owner of the vessel. * * * But in cases of liens S. created by the mere private contract of individuals, depending upon ; the different laws of different countries, the difficulties wliich an ex- ' amination of such claims would impose upon the captors, and even upon the prize courts, in deciding upon them, and the door which such a doctrine would open to collusion between the enemy owners of the property and neutral claimants, have excluded such cases from the consideration of those courts. * * * The principal strength of the argument in favor of the claimant seemed to be rested upon the position that the consignor in this case could not have coun- termanded the consignment after delivery of the goods to the master of the vessel ; and hence it was inferred that the captor had no right to intercept the passage of the property to the consignee. This doctrine would be well founded, if the goods had been sent to the claimant upon his account and risk, except in the case of insolvency. But when goods are sent upon the account and risk of the shipper, the i delivery to the master is a delivery to him as agent of the shipper, I not of the consignee ; and it is competent to the consignor, at any 41 \ 642 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. time before actual delivery to the consignee, to countermand it, and thus to prevent his lien from attaching. Upon the whole, the court is of opinion that, upon the reason of the case, as well as upon authority, this claim cannot be supported, and that the sentence of the court below must be affirmed with costs." In The Mary and Susan, 1 Wheat. 25, an American merchantman bound from Liverpool to New York, was captured by a privateer of the United States during the war of 1812. In her cargo were certain goods which had been shipped by British subjects to citizens of the United States, in pursuance of orders received before the declaration of war. Previous to the execution of the orders the shippers became embarrassed, and assigned the goods to certain bankers to secure ad- vances made by them, with a request to the consignees to remit the amount to the bankers, who also repeated the same request, the in- voices being for gain and risk of the consignees, and stating the goods to be then the property of the bankers, and it was held that the goods having been purchased and shipped in pursuance of orders from the consignees, the property was originally vested in them, and was not divested by the intermediate assignment, which was merely intended to transfer the right to the debt due from the consignees. In The Hampton, 5 Wall. 372, the schooner Hampton and her cargo had been captured, libelled and condemned as prize of war. The master of the vessel was her owner, but interposed no claim ; nor did any one claim the cargo. One Brinckley appeared and claimed the vessel as mortgagee. The bona fides of this mortgage was not dis- puted, nor that he was a loyal citizen. But his claim was dismissed, and, the case having been certified to this court, it was held that in proceedings in prize, and under tlie principles of international law, mortgages on vessels captured jure belli are to be treated only as liens subject to be overriden by the capture. ]\Ir. Justice Miller said: "The ground on which appellant relies is, that the mortgage, being a jus in re held by an innocent party, is something more than a mere lien, and is protected by the law of nations. The mortgagee was not in possession in this case, and the real owner who was in possession admits that his vessel was in delicto by failing to set up any claim for her. It would require pretty strong authority to induce us to import into tl)e prize courts the strict common-law doctrines, which is some- times applied to the relation of a mortgagee to the property raort- giged. It is certainly much more in accordance with the liberal principles which govern admiralty courts to treat mortgages as equity courts treat them, as a mere security for the debt for which they are given, and therefore no more than a lien on the property conveyed. But it is unnecessary to examine this question minutely, because au CHAP, ir.] THE "CARLOS F. ROSES." 643 obvious principle of necessity must forbid a prize court from recog- nizing the doctrine here contended for. If it were once admitted in these courts, there would be an end of all prize condemnation. As : soon as a war was threatened, the owners of vessels and cargoes which might be so situated as to be subject to capture, would only have to raise a sufficient sum of mouey ou them, by bona Jide mortgages, to in- demnify them in case of such capture. If the vessel or cargo was seized, the owner need not appear, because he would be indifferent, hav- ing the value of his property in his hand, already. The mortgagees having an honest mortgage which he could establisli in a court of prize, would either have the property restored to him or get the amount of the mortgage out of the proceeds of the sale. The only risk run by enemy vessels or cargoes on the high seas, or by neutrals engaged in an effort to break the blockade, would be tlie costs and expenses of capture and condemnation, a risk too unimportant to be of any value to a belligerent in reducing his opponent to terms. The principle which thus abolishes the entire value of prize capture ou the high seas, and deprives blockades of all danger to parties disposed to break them, cannot be recognized as a rule of prize courts." In The Battle, 6 Wall. 498, the steamer Batth and cargo were cap- tured on the high seas as prize of war, brought into port and con- demned, for breach of blockade and also as enemy property. Two claims were set up against the steamer in the court below, one for sup- plies, and another for materials furnished and for work and labor in building a cabin on the boat. These claims were dismissed, and the decree aflfirmed by this court, ]\Ir. Justice Xelson delivering the opinion, saying : '* The principle is too well settled that capture as prize of war, jure helll, overrides all previous liens, to require examina- tion." Such is the rule in the British prize courts. The Tobago, 5 C. Eob. 24S ; The Marianna, 6 C. Eob. 24; The Ida, Spinks Prize Cases, 26. The Tobago was a case of claim to a captured French vessel, made on behalf of a British anerchant as the holder of a bottomry bond executed and delivered to him by the master of the ship before the commencement of hostilities between Great Britain and France. Sir William Scott said : " The integrity of this transaction is not impeached, but I am called upon to consider whether the court can, consistently with the prin- ciples of law that govern its practice, afford relief. It is the case of a bottomry bond, given fairly in times of peace, without any view of infringing the rights of war, to relieve a ship in distress. * * * But can the court recognize bonds of this kind as titles of property, so as to give persons a right to stand in judgment, and demand 644 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET II. restitution of such interests in a court of prize ? * * '^ The person advancing money on bonds of this nature, acquires, by that act, no property in the vessel ; he acquired the jus in rem, but not the jus in re until it has been converted and appropriated by the final process of a court of justice. * * * But it is said that the captor takes cian miere, and, therefore, that this obligation would devolve upon him. That he is held to take cum onere is undoubtedly true, as a rule which is to be understood to apply where the onus is immediately and visibly incumbent upon it. A captor who takes the cargo of an enemy on board the ship of a friend, takes it liable to the freight due to the owner of the ship ; because the owner of the ship has the cargo in his possession, subject to that demand by the general law, independent of all contract. * * * But it is a proposition of much wider extent, Avhich affirms that a mere right of action is entitled to the same favor- able consideration in its transfer from a neutral to a captor. It is very obvious that claims of such a nature may be framed as that no powers belonging to this court can enable it to examine them with effect. They are private contracts, passing between parties who may have an interest in colluding ; the captor has no access whatever to the original private understanding of the parties in forming such con- tracts ; and it is, therefore, unfit that he should be affected by them. His rights of capture act upon the property, without regard to secret liens possessed by third parties. * * * I am of opinion that there is no instance in which the court has recognized bonds of this kind as titles of property, and that they are not entitled to be recognized as such in the prize courts." In The Marlanna, the vessel had been sold at Buenos Ayres by American owners to a Spanish merchant ; the purchase-money, how- ever, had not been paid in full, but was to be satisfied out of the proceeds of a quantity of tallow on board the vessel for sale, consigned to the agents of the American vendors at London. The vessel was seized on her voyage to England, documented as belonging to a Span- ish merchant, and sailing under the flag and pass of Spain. The former American proprietors made claim to the cargo, but the claim was disallowed because the claimants' interest was not sufficient to support it ; and the court said : " Captors are supposed to lay their hands on the gross tangible property, on which there may be many just claims outstanding, between other parties, which can have no operation as to them. If such a rule did not exist, it would be quite impossible for captors to know upon what grounds they were proceeding to make any seizure. The fairest and most creditable documents, declaring the property to belong to the enemy, would only serve to mislead them, if such CHAP. II.] THE " CARLOS F. ROSES." 645 documents were liable to be overruled by liens which could not in any manner come to their knowledge. It would be equally impossible for the court, wliich has to decide upon the question of property, to admit such considerations. The doctrine of liens depends very much on the particular rules of jurisprudence which prevail in different countries. To decide judicially on such claims would require of the court a perfect knowledge of the law of covenant, and the application of that law in all countries, under all the diversities in which that law exists. From necessity, therefore, the court would be obliged to shut the door against such discussions and to decide on the simple title of property, with scarcely any exceptions. * * * As to the title of property in the goods, which are said to have been going as the funds out of which the payment for the ship was to have been made. Tliat they were going for the payment of a debt will not alter the property ; there must be something more. Even if bills of lading are delivered, that circumstance will not be sufficient, unless accompanied with an understanding that he who holds the bill of lading is to bear the risk of the goods as to the voyage, and as to the market to which they are consigned; otherwise, though the security may avail j^ro tanto, it cannot be held to work any change in the property." These cases were cited by Dr. Lushington in The Ida as settling the law. In that case claim was made by a neutral merchant to a cargo of coffee which had been consigned to him by an enemy on the credit of certain advances, as security for payment of which bills of lading covering the cargo had been delivered to him. But the court declined to recognize the lien, and condemned the cargo as enemy property. Dr. Lushington referred to The San Jose Indiana and Cargo, 2 Gallison, 267, and subscribed to what was there said by Mr. Justice Story, but thought his remarks inapplicable to the case in hand. The case referred to was affirmed by this court. 1 Wheat. 208. Goods were shipped by Dyson, Brothers and Company of Liverpool on board a neutral ship bound to Rio de Janeiro, which was captured and brought into the United States for adjudication. The invoice was headed : " Consigned to Messrs. Dyson, Brothers and Finnic, by order and for account of J. Lizaur." In a letter accompanying the bill of lading and invoice, Dyson, Brothers and Company wrote Dyson, Brothers and Finnie : " For Mr. Lizaur we open an account in our books here, and debit him, &c. We cannot yet ascertain the proceeds of his hides, &c., but find his order for goods will far exceed the amount of these shipments, therefore we consign the whole to you, that you may come to a proper understanding with him." The two houses consisted of the same persons. It was held that the goods were, during their transit, the property and at the risk of the enemy 646 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. shippers, and therefore subject to condemnation. Lizaur's claim was rejected although Dj'son, Brothers and Company had the proceeds of his hides in their hands. The Lynchburg, Blatchford's Prize Cases, 57, and The Amy War- wlck, 2 Sprague, 150, are cited on behalf of claimants, but, as we read them, they do not sustain their contention. The schooner Lynchburg/ with a cargo of coffee had been libelled during the civil war as enemy property, and also for an attempt to violate blockade. Brown Brothers and Company, loyal citizens, intervened as claimants of 2,045 bags of coffee, part of the cargo. They alleged that they had made an advance of credit to ^laxwell, Wright and Company, neutral mer- chants of Rio de Janeiro, for the purchase of the coffee, under which credit Maxwell, Wright and Company drew drafts on Brown Brothers and Company for £6,000, on the condition expressed therein that the coffee purchased by claimants should be held until their advances were reimbursed thereon. It was admitted by the United States attorney that 1,541 bags of the coffee should be released to Bi'own Brothers and Company, and that was done. As to the remaining 504 bags embraced in the general claim of Brown Brotliers and Company, in which Wortham and Company, of Virginia, asserted an interest, it was held by the court that as no proof was given by claimants that the value of 1,541 bags restored to them was not equivalent to the sum of their advances used in purchasing the whole 2,045 bags, the reasonable presumption was that the restoration satisfied the entire advance. And Judge Betts said: "The claim to an absolute ownership of the 2,045 bags was placed before the court in the oral argument, and in the written points filed in the cause by the counsel for the claimants upon the proposition of law that a bill of lading, transmitted to them by tlie shipper to cover advances, passed to them the title to the cargo purchased therewith. If this doctrine be correct as to mere commercial transactions, it does not prevail in prize courts, in derogation of the rights of captors, when the interest of the claimants is only a debt, although supported by liens equitable and tacit, or legal and positive, even of the character of bottomry bonds, when not signified on the ship's papers at the time of her capture. The Frances, 8 Cranch, 418; The Tobayo, 5 C. Bob. 218; The Marianna, 6 C. Rob. 24. Here the vessel was an enemy bottom ; the bill of lading consigned the cargo to order or assigns, at large, at an enemy's port, and, on the surrender of the principal portion of the consignment to the claimants, no other evidence was given in estab- lishing the facts that the remainder of the shipment was owned by them, or yet stood under hypothecation to them on the bill of lading." The 504 bags were condemned, " because, by intendment of law, that CHAP. II.] THE " CARLOS F. ROSES." 647 portion belonged to Wovtham and Company, and was not shown by the proofs to be exempt from capture as prize." In The Amij Warwick, J. L. Fhipps and Company of Xew York, British subjects, purchased 4,700 bags of coffee, part of the cargo of an enemy vessel, which they had purchased through Fhipps Brothers and Co., their firm at Kio, with funds of an enemy firm, and £2,000 of their own money by draft on Phipps and Co., their firm at Liverpool. They took from the master a bill of lading which stated that Phipps Brothers and Company were the shippers of this coffee, and that it was to be delivered to their order. Indorsed on the bill of lading was a statement declaring that a portion of the coffee was the property of British subjects. Phipps Brothers and Company indorsed the bill of lading over to J. L. Phipps and Co. They also delivered to the master another part of the bill of lading, an invoice of the coffee, and a letter of advice to be conveyed to the firm in New York. This letter stated that the coffee was shipped for account of merchants at Richmond, Virginia, and that a bill of lading would have been sent to them had it not been deemed advisable by reason of the unsettled state of political affairs, for the better protection of the property, and to prevent privateers from molesting the vessel, to have it certified on the bill of lading that a portion of the coffee was British property, and that this referred to the portion against which they had valued on Liverpool. It was held that the facts led plainly to the conclusion that claimants ought to be repaid the amount they had expended from their own funds in the purchase of the coffee and that the residue of the proceeds should be condemned. It was said that as the coffee was purchased at Rio by the claimants, and shipped by them on board the vessel under a bill of lading by which the master was bound to deliver it to their order, and they ordered it to be delivered to J. L. Phipps and Co., that is, to themselves, they were the legal owners of the property, and could hardly be said to have a lien upon it. Their real character was that of trustees holding the legal title and possession with a right of retention until their advances should be paid. The doctrine of liens was considered, and The Frances, The Tohagoy The Marianna and other cases examined. Judge Sprague was of opinion that the rule in such cases ought not to be that which stops at the mere legal title, but that which ascertains and deals j with the real beneficial interest, " for, if the court were never to look i beyond the legal title, the result would be that when such title is held' by an enemy in trust for a neutral, the latter loses his whole, property ; but, when the legal title is in a neutral in trust for an enemy, the property is restored to the neutral, not for his benefit, ' but merely as a conduit through which it is to be conveyed to 64:8 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART IT. the enemy. To refuse to look beyond the legal title is to close our eyes for the benefit of the enemy. It would enable him always to protect his property by simply putting it in the name of a neutral trustee." We agree with counsel for the United States that, notwithstanding the indorsement of Gibernau and Company on the bills of lading, the proof of a neutral title was not sufficient. Even if when the neutral interest is adequately proven to be bona fide, the claim of the captors may be required to yield, yet in this case the belligerent right overrides the neutral claim, which must be regarded merely as a debt, and the assignment as a cover to an enemy interest. Something was said in argument in relation to the character of the cargo. It is true that by the modern law of nations, provisions, while not generally deemed contraband, may become so, although belonging to a neutral, on account of the particular situation of the war, or on account of their destination, as, if destined for military use, for the army or navy of the enemy, or ports of naval or military equipment. The Benito Estenger, 176 U. S. 568 ; The Panama, 176*U. S.ooo ; The Feterhoff, 5 Wall. 28; Grotius, De Jure Belli et Pacis, lib. III., c. 1, § 5 ; Hall, § 236. Doubtless, in this instance, the concentration and accumulation of provisions at Havana might fairly be considered a necessary part of Spanish military operations, imminente hello, and these particular provisions were perhaps especially appropriate for Spanish military use ; but while these features may well enough be adverted to in connection with all the other facts and circumstances, we do not place our decision upon them. We are of opinion that a valid transfer of title to this enemy property to claimants was not satisfactorily made out, and that The decree below must be reserved, and a decree of condemnation directed and be entered, and it is so ordered. ^ 1 Dissenting opinion of Mr. Shiras, in which Mr. Justice Brewer concurred, omitted. In The Siren, 1808, 7 Wall. 152, it was IielJ that a claim for damages exists against a United States vessel guilty of a maritime tort, as in the case of a merchant vessel; that such claim may not be enforced against the United States as a defendant, but if the United States enters the court as plaintiff, the court will take jurisdiction to the extent of the value of the property, but no judgment lies against the United States beyond the value of the property or for costs. Where, therefore, a prize of the United States ran into and sank another vessel, it was held that t!ie owners of sunken vessel and its cargo could intervene in prize proceedings and have tiieir damages assessed and paid out of the proceeds before distribution to the captors. — Ed. CHAP. II.J THE " SANTA CRUZ." 649 Sectiox 36. — Recapture — Rescue. THE "SANTA CRUZ." High Court of Admiralty, 1798. (1 C. Robinson, 49.) This was the case of a Portuguese vesssel taken by the French, August 1, 1796, and retaken by EngUsh cruisers, on the 28tli, after being a month in tlie possession of the enemy.^ Judgment, — Sir W. Scott : — u * * * Ij^ ^l;^e arguments of the counsel, I have lieard much of the rules which the law of nations prescribes on recapture, respect- ing the time when property vests in the captor; and it certainly is a question of much curiosity to inquire what is the true rule on this subject ; when I say the true rule, I mean only the rule to which civilized nations, attending to just principles, ought to adhere; for the moment you admit, as admitted it must be, that the practice of nations is various, you admit there is no rule operating with the proper force and authority of a general rule. " It may be fit there should be some rule, and it might be either the rule of immediate possession or the rule of pernoctation and twenty-four hours' possession ; or it might be the rule of bringing infra prcBsidia ; or it might be a rule requiring an actual sentence of condemnation ; either of these rules might be sufficient for general practical convenience, although in theory perhaps one might appear more just than another ; but the fact is, there is no such rule of practice ; nations concur in principle, indeed, so far as require firm and secure possession ; but their rules of evidence re- specting the possession are so discordant and lead to such opposite conclusions that the mere unity of principle forms no uniform rule to regulate the general practice. But were the public opinion of European States more distinctly agreed on any principle as fit to form the rule of the law of nations on this subject, it by no means follows that any one nation would lie under an obligation to ob- serve it. " That obligation could arise only from a reciprocity of practice in other nations ; for from the very circumstance of the prevalence of 1 Statement abridged and only part of the judgment given. — Ed. 650 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAllT 11. a different rule among other nations, it would become not only law- ful, but necessary to that one nation to pursue a different conduct : for instance, were there a rule prevailing among other nations that the immediate possession and the very act of capture should divest the property from the first owner, it would be absurd in Great Britain to act towards them on a more extended principle ; and to lay it down as a general rule, that a bringing infra prcesidia., though probably the true rule should in all cases of recapture be deemed necessary to divest the original proprietor of his rights; for the effect of adhering to such a rule would be gross injustice to British subjects. * * * " If I am asked, under the known diversity of practice on this subject, what is the proper rule for a State to apply to the recapt- ured property of its allies, I should answer that the liberal and ra- J tional proceeding would be, to apply in the first instance the rule of that country to which the recaptured property belongs. * * * " If there should exist a country in which no rule prevails, the recapturing country must then of necessity apply its own rule and rest on the presumption that that rule will be adopted and adminis- tered in the future practice of its allies. * * * I understand [the law of England] to be clearly this: That the I maritime law of England, having adopted a most liberal rule of restitution on salvage, with respect to the recaptured property of ^ its own subjects, gives the benefit of that rule to its allies, till it appears that they act towards British property on a less liberal prin- ciple. In such a case it adopts their rule and treats them according to their own measure of justice.^ THE ''CARLOTTA." High Court of Admiralty, 1803. (5 C. Robinson, 54.) This was a question of salvage, on the recapture of a Spanish ship and cargo from a French cruiser. Judgment. — Sir W. Scott: — "The question now to be decided is, whether salvage is due on the neutral property in this ship which has been recaptured out of 1 As Portugal had adopted the twenty-four-hour rule, that principle was applied to tliose ships recaptured during the time tliat rule prevailed in Portuf?al, and the rate of salvage decreed was the I'ortugese rate, oiie-eiglith to ships of war and one- fifth to privateers. The English rule allowed one-sixth to privateers. — Ed. CHAP. II.] THE "CARLOTTA." 651 the possession of the enemy. It certainly has not been the practice of this court to decree salvage under such circumstances generally ; but, in consequence of the violent conduct of France during the last war, it was thought not unreasonable on the part of neutral mer- chants themselves, that salvage should be allowed. * * * " I am, therefore, not disposed to hold generally that neutral property recaptured from French cruisers shall be subject to sal- 1 vage. The rule, so far as it can be considered a general rule, is rather to be laid down the other way. At the same time, if any edict can be appealed to or any fact established, by which it can be shewn that the property would have been exposed to condemnation in the courts of France, I shall hold that to be sufficient ground to induce me to pronounce for salvage in that particular case. AVith regard to the precedent of the Jonge Lamhert (5 C. Rob., 54, note), I think I am warranted to consider the authority of that case as in a great measure done away by the subsequent decision of the Lords in the late war, in which they have repeatedly pronounced for sal- vage on the recapture of neutral property. In departing from the old rule they have in some degree disclaimed the principle ; and, I think, with great propriety, as far as it could be considered as an universal principle, governing the practice of our prize courts in all possible cases, without any possible exception. In the present in- stance there does not appear to me to be any grounds on which it can be supposed that this property would have been condemned, merely because it came out of the hands of a British privateer, or because the original voyage had been the colony of Spain to London. No edict has been produced from the French code to shew that this property would have been subject to any such penalty on either of those accounts, in the prize courts of France. The ex- penses of the recaptors must be fully paid ; but I shall not pro- nounce salvage to be due." ^ 1 For an account of the laws of different countries on the subject of recapture and salvage, see Dana's Wheaton, 466-472. — Ed. 652 EFFECTS OF WAE AS BETWEEN ENEMIES. [PART II. THE "MARY FORD." Supreme Court of the United States, 1796. (3 Dallas, 188.) The Mary Ford was a British vessel, captured in 1790 by a French squadron and abandoned at sea. The George, an American vessel, took possession of the Mary Ford, and brought it into Boston har- bor, to save the ship and cargo, and then libelled it for salvage in the District Court. From a judgment in favor of the libellants, an appeal was taken to the Supreme Court. ^ By the Court : We are unamimously of opinion, that the District Court had jurisdiction upon the subject of salvage ; and that, conse- quently, they must have a power of determining to whom the residue of the property ought to be delivered. !In determining the question of property, we think that, immediately on the capture, the captors acquired such a right, as no neutral nation could justly impugn or destroy ; and, consequently, we cannot say that the abandonment of the Mary Ford, under the circumstances of this case, revived and restored the interest of the original British proprietors. Some doubts have been entertained by the court, whether on the principles of an abandonment by the French possessors, the whole property ought not to have been decreed to the American libellants, or, at least, a greater portion of it by way of salvage ; but as they have not appealed from the decision of the inferior court, we cannot now take notice of their interest in the cause. Upon the whole, let the decree be affirm ed.^ 1 This statement is substituted for that of tlie original report. — Ed. 2 In Hupner v. Applehj, 1828, 5 Mason, 71, 75, Story, J., said : " Some principles are extremely clear, and indeed are so well settled that nothing more is necessary to com- mand approbation tlian a simple enunciation of them. Neutral nations are bound equally by tiieir duty and their interest to consider the existing state of tilings be- tween belligerents as rightful. The right of capture by the law of war cannot be dis- fiputed, and the lawfulness of the possession thereby acquired cannot be inquired into ,by the tribunals of a neutral nation, with the single exception of cases where the cap- 'ture itself is an infringement of the jurisdiction or riglits of the neutral nation itself. In all other cases, the question of prize or no prize exclusively belongs to the cognizance of the courts of the capturing power. The possession of the captors is to be deemed a possession bona fide, and inviolable; and as was said by tlie Supreme Court in the case of The Mary Furd, 3 Dall. R. 188, 198, immediately upon the capture the captors acquire such a right as no neutral nation can justly impugn or desti'oy. The Josefa Se>/imda, 5 Wheaton R. 338, 357." And in Booth v. LEsperanza, 1798, Bee, 93 (3 Fed. Cas. 885), Bee, J., held, citing CHAP. II.] THE " BEAVER." 653 THE "BEAVER." High Court of Admiralty, 1801. (3 C. Robinson, 292.) This was a case of a British merchant ship, taken with a cargo of wine in sight of the English coast, by a French privateer; when all the crew, except the master and one boy had been taken out: the master seeing an opportunity rose upon five Frenchmen that had been put on board, and by knocking down the prize master, and possessing himself of his pistols, the only firearms on board, succeeded in driving the rest of the crew down below, and gained possession of the vessel. After he had steered a considerable time towards the English coast, a storm came on, in which the vessel was nearly lost: a British frigate coming in sight, the master obtained the assistance of twelve men, by whose aid he kept possession till it was thought she must inevitably perish: they then all returned to the frigate ; but the storm afterwards abating, the master requested that he might be permitted to go again to the ship to try if he could not save her ; and with the assistance of a boat's crew from the frigate, he succeeded and brought the vessel safe into port. Judgment. — Sir W. Scott. — This is a case of ver}^ peculiar merit on the part of the original salvors, the master and the boy, by whose distinguished gallantry the property was rescued out of the hands of the enemy. It is impossible to accede to the representation that has been given on the part of the King's ship, that the vessel is to be con- sidered as a derelict saved by their exertions. The vessel itself was never in the state of a derelict — the eye of the master was constantly upon it ; and if I may so say, kept a possession of it for the whole time, under the spes ac animus reciqjerancU. The actual recovery is attribu- table to him ; he and the boy were the only parties, in the first service ; and his advice, seconded by his example, it was, which operated most effectually to the final preservation of the vessel : from the beginning to The Mary Ford, supra, that a vessel in distress, met with at sea, and brought into the port of a neutral power, must be restored', after payment of salvage, to those who were in possession of her when she was met. And in L'lnvincible, 1816, 1 Wheat. '238, 258, Mr. Justice Johnson cites and explains the case in the text, holding that the courts of this country have no jurisdiction to redress any supposed torts committed on the high seas upon the property of its citizens by a cruiser regularly commissioned by a foreign and friendly power, except where such cruiser has been fitted out in violation of our neutrality. — Ed. 654 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. the end, lie is to be considered as most materially active in the whole affair: he is the person whose service must stand highest in the esti- mation of the court ; and I do not recollect to have seen any case of salvage in which personal merit of that species presented itself more strongly for encouragement and reward. On this part of the case I shall decree at least the usual salvage of a sixth. With respect to the King's ship, I cannot admit the propriety of the inflamed representation which has been offered of their services : It is the duty of every King's ship, and indeed of every other ship, to give assistance, as well against the elements as against the enemy. It was properly performed in this instance ; but what was the amount of their exertions? There were two acts; — one of sending some men on board, on the appearance of the vessel in distress, and the other of sending a cable and anchor with some men, when the storm abated; acts useful and meritorious, but ranking at the best but moderately in the scale of utility and merit. In these acts of assistance there was no personal danger : to call it a case of derelict, preserved by their in- terposition, does not accord with any view tliat I have been used to entertain of the legal nature of a derelict, or of a salvage service applied to property in that situation. The value of the property saved is about £6239. — I shall give a sixth of that sum, or £1000 to the master and boy. in this proportion, £850 to the master, and £150 to the boy; who, I observe, is described "as his apprentice" and rather above the condition of a common sea boy without articles: if half as much, or £500 is given to the King's ship, to be distributed amongst the whole number of persons on board, in the ordinary" pro- portions of a prize distribution, it is the utmost that can be allowed, upon the most liberal justice that can be due to their services. The expense of this application to tlie discretion of the court must be paid by the owners.* 1 In The Penns'ilvania, 1809, 1 Act. .3o, Sir William Grant held the master or crew of a neutral vessel captured not bound to assist in carrying the vessel into port for adjudication ; that resistance to the captors by the master or crew must be proved to Lave been actually made, in order to subject the vessel to condemnation on the prin- ciple of rescue. See The War Onskan, 1799, 2 C. Rob. 299. In Bas v. Ting;/, 1800, 4 Dall. 37, salvage was allowed for the recapture of an American vessel from French captors, and in Talbot v. Sefinan, l»Ol, 1 Cr. 1, for the capture of a neutral vessel; Clayton V. Shij) Harmony, 1 Pet. Adin. Dec. 70 ; .3 Kent's Com. 247 ; Williams v. Suffolk Jns. Co., 1888, 3 Sumn. 270, 275. Mr. Dana's digest of authority is as follows : — "In a case of rescue of a vessel nf commerce, tlie salvage is civil, and the cause docs not go into a prize court. Recapture from an enemy is cognizable by a prize court as a belligerent act, and presents a case of military salvage. If, in addition to the belligerent recapture, there has been a voluntary act of saving from a distinct marine peril, beyond the obligations of tl'o ])arties, civil salvage may be combined with the military, and incidentally adjudicaied by the prize court having cognizance of the CHAP. II.] "UNITED STATES V. EICE. 655 Section 37. — Hostile Occupatiox, Coxqcest, akd Cession. UNITED STATES v. RICE. Supreme Court of the United States, 1819. (4 Wheaton, 24C.) Story, J., delivered the opiniot) of the court: — "The single question arising on the pleadings in this case is, whether goods imported into Castine, during its occupation by the enemy, are liable to the duties imposed by the revenue laws upon recapture. It is the duty of persons in the naval service, in time of war, to recapture as much as to capture ; but it is a duty they owe to tlieir government ; and tlie policy and practice lias always been, if tlie owner claims liis vessel, to require him to pay , salvage to the recaptors, wliich is in lieu of tlie prize-money they Avould receive in case ■ the recaptured vessel had been condemned as prize. Tlie mariner's contract with the owners, in a vessel of commerce, does not oblige him to attempt a rescue, after capture by a belligerent enemy, in such a sense tliat liis refusal or failure to attempt it, in a proper case, would be a breach of liis contract. It is, therefore, always a case for salvage. Two Friends, 1 Rob. 271 ; The Li/la, 2 Sprague's Decisions, and 25 Law Reporter, 92 ; Helen, 3 Rob. 224. " If cruiser takes a prize and loses it, whether by rescue, recapture, or otherwise, and 1 she is again captured by a second cruiser of tlie same nation, it is not a recapture for \ the benefit of the first captor, subject to salvage, but an original capture. For these and like cases of mixed recapture, see Valin, Traite des Prises, ch. vi. § 1. The Polli/, Kov. 21, 1780, 4 Rob. 217, note ; The Marguerite, April 3, 1781 ; Astrea, 1 Wheat. 125 ; Lord Ne/sun, Edw. 79; Diligentia, 1 Dods. 404; John and Jane, 4 Rob. 210; Gage, 6 Rob. 272 ; Ordonnance de 1681, Des Prises, art. 9, ' De Proprie'tc'/ No. 99; Azuni, Partie II. ch. 4, §§ 8, 9 ; Emerigon, des Assurances, tit. i. pp. 504-5; 3 Phillimore's Intern. Law, § 424; Chitty's Law of Nations, 91; The Short Staple, 9 Cranch, 55; Bello, Princ. de Der. Nat. 193; Henry, Edw. 66. "Salvage is not due to a public ship for extricating anotlier public sliip from danger i of capture, in a common enterprise. The Bell, Edw. 66. Sir W. Scott said it would be converting every engagement into a struggle for salvage. " As to right of revenue cutters and privateers in recaptures, see The Wansiead, 1 Edw. 3G9 ; The Providence, li\. 270: The Dorothy Foster, & Rob. 88; The Bellona, Edw. 63; The Sedulous, 1 Dods. 253 ; U. S. Prize Act, 1864, ch. 174, §§ 10,32, 33 (13 U. S. Law, 306)." Dana's Wlienton, note No. 184. For the provisions of recapture, see U. S. Rev. St. § 4652; English Prize Act of \ 27 and 28 Vict. c. 25, § 40. The Emily St. Pierre, 1864, Dana's Wheaton, 475, note 18-3, established that it is not i the duty of a neutral government to restore a private vessel of one of its citizens which I lias been rescued by her crew from a belligerent captor before condemnation. See also Bernard, Neutrality of Great Britain, 325-329. Id the case of The Lone, 3 Op. Atty.-Gen. 377, this vessel had entered the port of Matamoras while it was blockaded by a French squadron (1838), and sailed thence for 656 EFFECTS OF WAR AS BETWEEN ENEJVOES. [PART H. goods imported into the United States. It appears, by the pleadings, that on the first day of September, 1814, Castine was captured by tlie enemy, and remained in his exclusive possession, under the com- mand and control of his military and naval forces, until after the rati- fication of the treaty of peace, in February, 1815. During- this period, the British government exercised all civil and military authority over the place ; and established a custom-house, and admitted goods to be imported, according to regulations prescribed by itself, and, among others, admitted the goods upon Avhich duties are now de- manded. These goods remained at Castine until after it was evacu- ated by the enemy, and upon the reestablishment of the American government, the collector of the customs, claiming a right to Amer- ican duties on the goods, took the bond in question from the defend- ant, for the security of them. " Under these circumstances, we are of opinion, that the claim for duties cannot be sustained. By the conquest and military occu- pation of Castine, the enemy acquired that firm possession Avhich enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhab- itants who remained and submitted to the conquerors. By the sur- render the inhabitants passed under a temporary allegiance to the British government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them ; for where there is no protection, or allegiance, or sovereignty, there can be no claim to obedi- ence. Castine was, therefore, during this period, so far as respected our revenue laws, to be deemed a foreign port ; and goods imported into it by the inhabitants, were subject to such duties only as tlie British government chose to require. Such goods were, in no cor- rect sense, imported into the United States. The subsequent evacu- ation by the enemy, and resumption of authority by the Uiiited States, did not, and could not, change the character of the previous transactions. " The doctrines respecting the Jus postUminii are wholly inapplica- New Orleans. On the voyage she was captured by a French cruiser ; but sonic days later slie was rescued by her captain, who brought lier into New Orleans. A demand was made on the President by tiie French Government for her return to the captors. Attorney-General Grundy advised tliat the President had no power to grant tiie demand, the case involving questions to be settled by the courts, and not by the executive, and that tiie claimants must go into tlie courts. He also advised that if a vessel, after escaping from her captors, terminated her voynge in safety, lier liability to condemnation for the escape entirely ceases. 3 Wharton's Digest, 179. — Ed. CHAP. II.] AMERICAN INSURANCE CO. V. CANTER. 057 ble to the case. The goods were hable to American duties, when imported, or not at all. That they were not so liable at the time of importation, is clear from what has been already stated ; and when, upon the return of peace, the jurisdiction of the United States was reassumed, they were in the same predicament as they would have been if Castine had been a foreign territory ceded by treaty to the United States, and the goods had been previously imported there. In the latter case, there would be no pretence to say that American duties could be demanded ; and, upon principles of public or munic- ipal law, the cases are not distinguishable. " The authorities cited at the bar, M'ould, if there were any doubt, be decisive of the question. But we think it too clear to requii'e any aid from authority." ^ THE AMERICAN INSURANCE COMPANY v. CANTER. Supreme Court of the United States, 1828. (1 Peters, oil.) Marshall, C. J.:"'^-" The course which the argument has taken will require, that, in deciding this question, the Court should take into view the relation m which Florida stands to to the United States. " The Constitution confers absolutely on the government of the Union the powers of making Avar and of making treaties ; conse- quently, that government possesses the power of acquiring territory either by conquest or by treaty. " The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military oc- cupation, until its fate shall be determined at the treaty of peace. If it be ceded by the treaty, the acquisition is confirmed and the ceded territory becomes a part of the nation to which it is an- nexed ; either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory, it has never been held, that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created between them and the government which has acquired their territory. The same act which transfers their country, transfers the allegiance of 1 In tlie United States v. IJayward, 1815, 2 G.ill. 485, Mr. Justice Story held tliHt Castine was to be considered a " foreign port," witli reference to tiie non- jnijiortation acts. — Ed. - Facts omitted and only so much of the opinion is given as relates to tlie status of Florida after the cession cf that territory to United States in 1819. — Ed. 42 658 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART IT. those who remain in it; and the law, which may be denominated po- litical, is necessarily changed, althougli that \vhicli reguhites the in- tercourse and general conduct of individuals, remains in force until altered by the newly-created power of the State. "On the 2d of Februarj', 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession contains the following provision : ' The inhabitants of the territories which his Catholic majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the federal Constitution ; and ad- mitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States.' " This treaty is the law of the laud and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government, till Florida shall become a state. In the meantime Florida continues to be a territory of the United States ; governed by virtue of that clause in the Constitution which em- powers Congress ' to make all needful rules and regulations re- specting the territory or other property belonging to tlie United States.' " 1 1 111 the head-note to Cross v. Harrison, 1853, 16 How. 164, the following account is given of tlie status of California under the military occupation of the United States. " In the war witli Mexico tiie port of San Francisco was conquered by tiie arms of the United States, in the year 1846, and shortly afterwards the United States had military possession of all of Upper California. Early in 1847 the President of the United States, as constitutional commander-in-chief of the army and navy, authorized the military and naval commanders of the United States forces in California to exercise the belligerent rights of a conqueror and to form a civil and military govern- ment for the conquered territory, witli power to impose duties on imports and tonnage for the support of such government and of the army which had the conquest in possession. " This was done, and tonnage and import duties were levied under a war tariff, which had been established by the civil government for that purpose until official notice was received by the civil and military governor of California, that a treaty of peace had been made witli Mexico by which Upper California had been ceded to the United States. " Upon receiving this intelligence the governor directed that import and tonnage duties should thereafter be levied in conformity with such as were to be paid in tlie other ports of the United States, by the acts of Congress ; and for such purpose he appointed the defendant in this suit collector of the port of San Francisco. "The plaintiffs now seek to recover from him certain tonnage duties and imposts upon foreign merchandise paid by them to the defendant as collector between th^ 3d of February, 1848 (the date of the treaty of peace), and the 13th of November, CHAP. II.] FLEMING V. PAGE. 659 FLEMING V. PAGE. Supreme Court of the United States, 1850. (9 Howard, 603.) This action is brought by the plaintiffs, merchants, residing in the city of Philadelphia, against the defendant, the late collector of the port of Philadelphia, to recover the sum of one thousand five hun- dred and twenty-nine dollars, duties paid on the 14tli of June, 1847, under protest, on goods belonging to the plaintiffs, brought from Tampico while that place was in the military occupation of the forces of the United States. On the loth of November, 1846, Commodore Conner took military possession of Tampico, a seaport of the State of Tamaulipas, and from that time until the treaty of peace it was garrisoned by Amer- ican forces, and remained in their military occupation. Justice was admmistered there by courts appointed under the military authority, and a custom-house was established there, and a collector appointed, under the military and naval authority. Upon a certificate of division in opinion in the Circuit Court the case came up to this court. Judgment, — Taxey, C. J. : — " The question certified by the Circuit Court turns upon the con- struction of the act of Congress of July 30, 1846. "The duties levied upon the cargo of the schooner Catharine were duties imposed by this law upon goods imported from a foreign country. And if at the time of this shipment Tampico was not a foreign port, within the meaning of the act of Congress, then the duties were illegally charged, and, having been paid under protest, 1849 (when the collector appointed by the President, according to law, entered upon the duties of his office), upon the ground that they had been illegally exacted. The formation of the civil government in California, when it was done, was the lawful exercise of a belligerent right over a conquered territory. It was the existing govern- ment when the territory was ceded to the United States, as a conquest, and did not cease as a matter of course, or as a consequence of the restoration of peace ; and it was rightfully continued after peace was made with Mexico, until Congress legislated otherwise, under its constitutional power, to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. " The tonnage duties and duties upon foreign goods imported into San Francisco were legally demanded and lawfully collected, and afterwards, from the ratification of the treaty of peace until the revenue s3-stem of the United States was put into practical operation in California under the acts of Congress passed for that purpose." — Ed. GGO EFFECTS OF WAR AS BETWEEN ENEMIES. [PAi:T U. the jDlaintiffs would be entitled to recover in this action the amount exacted by the collector. " The port of Tampico, at which the goods were shipped, and the Mexican State of Tamaulipas, in which it is situated, were undoubt- edly at the time of the shipment subject to the sovereignty and do- minion of the United States. The Mexican authorities had been driven out, or had submitted to our army and navy ; and the country was in the exclusive and firm possession of the United States, and governed by its military authorities acting under the orders of the President. But it does not follow that it was a part of the United States, or that it ceased to be a foreign country, in the sense in which these words are used in the acts of Congress. " The country in question had been conquered in war. But the genius and character of our institutions are peaceful, and the power to declare war was not conferred upon Congress for the purposes of aggression or aggrandizement, but to enable the general government to vindicate by arms, if it should become necessary, its own rights and the rights of its citizens. " A war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of terri- tory ; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and sub- due the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power. " It is true, that, when Tampico had been captured, and the State of Tamaulipas subjugated, other nations were bound to regard the counti-y, while our possession continued, as the territory of the United States, and to respect it as such. For, by the laws and usages of nations, conquest is a valid title, while the victor main- CHAP. II.] FLEMING V. PAGE. 661 tains the exclusive possession of the conquered country. The citi- zens of no other nation, therefore, had a right to enter it witliout the permission of the American autliorities, nor to hold intercourse with its inluibitants, nor to trade with them. As regarded all other nations, it was a part of the United States, and belonged to them as exclusively as the territory included in our established boundaries. " But yet it was not a part of this Union. For every nation wliicli acquires territory by treaty or conquest holds it according to its own institutions and laws. And the relation in which the port of Tanipico stood to the United States, while it was occupied by tlieir arms, did not depend upon the laws of nations, but upon our own Constitution and acts of Congress. The power of the President, under which Tampico and the State of Tamaulipas were conquered and held in subjection, was simply that of a mihtary commander prosecuting a war, waged against a public enemy, by the authority of his government. And the country from wliich tliese goods were imported was invaded and subdued, and occupied as the territory of a foreign hostile nation, as a portion of Mexico, and M^as held in pos- session in order to distress and harass the enemy. While it was occupied by our troops tliey were in an enemy's country, and not in their own ; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than the submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force whicli he is unuble to resist. But the boundaries of the United States, as they existed wlien war was declared against Mexico, were not extended by the conquest ; nor could they be regulated by the varying incidents of war, and be enlarged or diminished as the armies on either side advanced or retreated. They remained unchanged. And every place which was out of the limits of the United States, as previously established by the political authorities of the government, was still foreign ; nor did our laws extend over it. Tampico was, therefore, a foreign port when this shipment was made. " Again, there was no act of Congress establishing a custom-house at Tampico, nor authorizing the appointment of a collector ; and, consequently, there was no officer of the United States authorized by law to grant the clearance and authenticate the coasting manifest of the cargo, in the manner directed by law, where the voyage is from one port of the United States to another. The person who acted in the character of collector in this instance, acted as such under the authority of the military commander, and in obedience to his orders ; and the duties he exacted, and the regulations he adopted, were not those prescribed by law, but by the President in 662 EFFECTS OF WAK AS BETWEEN ENEMIES. [PART II. his character of comraander-in-chief. The custom-house was estab- Hshecl in an enemy's country, as one of the weapons of war. It was estabhshed, not for the purpose of giving to the people of Tamauli- pas the benefits of commerce with tlie United States, or with other countries, but as a measure of hostility, and as a part of tlie military operations in Mexico ; it was a mode of exacting contributions from the enemy to support our army, and intended also to cripple the resources of Mexico, and make it feel the evils and burdens of the war. The duties required to be paid were regulated with this view, and were nothing more than contributions levied upon the enemy, which the usages of war justify when an army is operating in the enemy's country. The permit and coasting manifest granted by an oflBcer thus appointed, and thus controlled by military authority, could not be recognized in any port of the United States, as the documents required by the act of Congress when the vessel is en- gaged in the coasting trade, nor could they exemjDt the cargo from the payment of duties. " This construction of the revenue laws has been uniformly given by the administrative department of the government in every case that has come before it. And it has, indeed, been given in cases where there appears to have been stronger ground for regarding the place of shipment as a domestic port. For, after Florida had been ceded to the United States, and the forces of the United States had taken possession of Pensacola, it was decided by the Treasury Department, that goods imported from Pensacola before an act of Congress was passed erecting it into a collection district, and author- izing the appointment of a collector, were liable to duty. That is, that although Florida had, by cession, actually become a part of the United States, and was in our possession, yet, under our revenue laws, its ports must be regarded as foreign until they were estab- lished as domestic, by act of Congress ; and it appears that this de- cision was sanctioned at the time by the Attorney-General of the United States, the law officer of the government. And, although not so directly applicable to the case before us, yet the decisions of the Treasury Department in relation to Amelia Island, and certain ports in Louisiana, after that province had been ceded to the United States, were both made upon the same grounds. And, in the latter case, after a custom-house had been established by law at New Orleans, the collector at that place was instructed to regard as fo?-- eign ports Baton Kouge and other settlements still in the possession of Spain, whether on the Mississippi, Iberville, or the sea-coast. The Department in no instance that Ave are aware of, since the establishment of the government, has ever recognized a place in a CHAP. II.] FLEMING V. PAGE. 663 newly-acqiiired country as a domestic port, from which the coasting' trade might be carried on, unless it liad been previously made so by act of Congress. "The principle thus adopted and acted upon by the executive department of the government has been sanctioned by the decisions in this court and the circuit courts whenever the question came before them. \Ye do not propose to comment upon the different cases cited in the argument. It is sufficient to say, that there is no discrepancy between them. And all of them, so far as they apply, maintain, that under our revenue laws every port is regarded as a foreign one, unless the custom-house from which the vessel clears is within a collection district established by act of Congress, and the officers granting the clearance exercise their functions under the authority and control of the laws of the United States. " In the view we have taken of this question, it is unnecessary to notice particularly the passages from eminent writers on the laws of nations which were brought forward in the argument. They speak altogether of the rights which a sovereign acquires and the powers he may exercise in a conquered country, and they do not bear upon the question we are considering. For in this country the sovereignty of the United States resides in the people of the sev- eral States, and they act through their representatives according to the delegation and distribution of powers contained in the constitu- tion. And the constituted authorities to whom the power of making war and concluding peace is confided, and of determining whether a conquered country shall be permanently retained or not, neither claimed nor exercised any rights or powers in relation to the territory in question but the rights of war. After it was subdued it was uniformly treated as an enemy's country and restored to the possession of the Mexican authorities when peace was concluded. And certainly its subjugation did not compel the United States, while they held it, to regard it as a part of their dominions, nor to give to it any form of civil government, nor to extend to it our laws. " Neither is it necessary to examine the English decisions Avhich have been referred to by counsel. It is true that most of the States have adopted the principles of English jurisprudence, so far as it concerns private and individual rights, and when such rights are in question we habitually refer to the English decisions, not only with respect, but in many cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty GQi EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. which belong to the English crown, that it would be altogether un- safe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own consatitution and form of government must be our . only guide. And we are entirely satisfied that, under the constitution and laws of the United States, Tampico was a foreign port, within the meaning of the act of 1846, when these goods Avere shipped, and that the cargoes were liable to the duty charged upon them, and we shall certify accordingly to the circuit court." Mr. Justice McLeax dissented. Order. — " This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Pennsylvania, and on the point or question on which the judges of the said circuit court were opposed in opinion and which was certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. — On consideration whereof, it is the opinion of this court, that Tampico was a foreign port within the meaning of the act of Congress of July 30, 1846, entitled 'An act reducing the duties on imports, and for other purposes,' and that the goods, wares, and mei'chandise as set forth and described in the record were liable to the duties charged upon them under said act of Con- gress. Whereupon it is now here ordered and adjudged by this court that it be so certified to the said circuit court." JECKER V. MONTGOMERY. Supreme Court of the United States, 1851. (13 Howard, 498.) After California had been occupied by the United States forces, during the war with Mexico, a Prize Court was set up at Monterey, at the request of Commodore Biddle, and sanctioned by the Presi- dent. An American vessel — the Admittance — was captured for trading with the enemy, April 7, 1847, and condemned by this court at Monterey ; and the vessel and cargo were sold under the sentence. The question finally came before the Supreme Court. Chief Justice Taney, in pronouncing the judgment, said in respect of the power of establishing courts : — CHAP. IT.] JECKER V. MONTGO^rERY. 6Qo a* * * jn relation to the proceedings in the court at ^lonterey, whicli is tlie subject of the first demurrer, tlie decision of the circuit court is correct. " All captures Jure belli are for the benefit of the sovereign under whose authority they are made ; antl the validity of the seizure and the question of prize or no prize can be determined in his own courts only, upon which he has conferred jurisdiction to try the question. And under the Constitution of the United States the judicial power of the general government is vested in one supreme court, and in such inferior courts as Congress shall, from time to time, ordain and establish. Every court of the United States, there- fore, must derive its jurisdiction and its authority from the Consti- tution or the laws of the United States. And neither the President I nor any military officer can establish a court in a conquered country, ' and authorize it to decide upon the rights of the United States, or of individuals in prize cases, nor to administer the law of nations. " The courts established or sanctioned in Mexico during the war by the commanders of the American forces were nothing more than the agents of the military power, to assist in preserving order in the conquered territory, and to protect the inhabitants in their persons and property while it was occupied by the American arms ; they were subject to the military power, and their decisions under its control, whenever the commanding officer thought proper to inter- fere. They were not courts of the United States, and had no right to adjudicate upon a question of prize or no prize. And the sentence ol condemnation in the court at Monterey is a nullity, and can have no effect upon the rights of any party. " The second demurrer denies the authority of the district court to adjudicate, because the property had not been brought within its jurisdiction. But that proposition cannot be maintained ; and a prize court, when a proper case is made for its interposition, Avill proceed to adjudicate and condemn the captured property or award restitution, although it is not actually in the control of the court. It may always proceed in rem whenever the prize or proceeds of the prize can be traced to the hands of any person whatever." ^ 1 In Leitensdorfer v. Webh, 1857, 20 How. 17G, 177-179, tlie court liclcl that wlien New Mexico was conquered it was only the allegiance of tlie people that changed; that their relation to each otiicr and their rigiits of property remained unchan>ied ; that tlie executive authority properly established a provisional government, which ordained laws and instituted a judicial system ; all of which continued after the war, until modified by the direct legislation of Congress or by the territorial government established by its authority, and that a suit brought in a court established by the pro- visional government was properly transferred to a court created by the act of Con- 666 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. UNITED STATES v. MORENO. (1 Wallace, iOO, 404.) Mr. Justice Swayne. California belonged to Spain by the rights of discovery and conquest. The government of that country estab- lished regulations for transfers of the public domain to individuals. When the sovereignty of Spain was displaced by the revolutionary action of Mexico, the new government established regulations upon the same subject. These two sovereignties are the spring heads of all gress establisliing the territory of New Mexico, the jurisdiction of which was fixed by H State statute. In the case of the Grapeshot, 1869, 9 Wall. 129, the Supreme Court decided that, during the civil war, when the national forces occupied parts of the revolted territory, it was within the authority of the President, as commander-in-chief, to establisli provi- sional courts to try causes arising under the laws of tiie State or of the United States. And as to the power of the military occupant, see \ew Orleans v. !Steamship Co., 1874, 20 Wall. 887 ; Mechanics' Sf- Traders' Bank v. Union Bank, 22 id. 220; Harrison v. Met/er, 1875, 92 U. S. Ill ; U. S. v. Diekelman, 1875, id. 520; Neal Duw v. Johnson, 1879, 100 id. 158 ; Gates v. Goodloe, 1879, 101 id. 612. As regards private property destroyed by military operations, see U. S. v. Pacijic R. R., 1886, 120 U. S. 227, holding that the United States is not responsible for the injury or destruction of private property caused by its military operations during the late civil war, and that private parties were not chargeable for works constructed on their property by the United States to facilitate such operations. See also Tai/lor v. Nashcille ^- Chattanooqa R. R. Co., 1869, 6 Cold. (Tenn.) 647. See also Magoon, Military Occupation, 345-350. As for martial, as distinguished from military law, see Ex parte Milllgan, 1867, 4 Wall. 2; Johnson v. Jones et ah, 1867, 44 III., 142 (per Lawrence, J.); In re D. F. Marais, [1902] A. C. 109. In this later case the facts briefly were: martial law had been proclaimed in Cape Colony owing to the Boer war, and tlie petitioner was arrested and kept in custody by tlie military authorities. Neither the district in which lie was taken, nor in whicii he was held, was the scene of active operations, and the ordinary courts were in session The petitioner applied to tlie Supreme Court of the colony to release him from military custody, and on the refusal of his application, prayed the Judicial Committee of the Privy Council for special leave to appeal; but the petition was denied (per Halsbury, L. C). This case has created much comment, and wide difference of opinion exists. In a temperate note in 15 Harv. Law IJev. 850, it is said: "The Supreme Court of the United States has said [in E.r parte Millirjan, supra'] that the continued sitting of the ordinary courts, and the absence of visiltle disorder, absolutely preclude a lawful exercise of martial law. The Judicial Com- mittee of the Privy Council takes an opposite view. It is submitted that the latter view is preferable. Under modern conditions it cannot truly be said that the absence of visible disorder shows there is no necessity for martial law. The continued sitting of courts is too artificial a test to be serviceable. Martial law is the law of necessity. The executive must be left unhampered in time of war to deal with problems sum- marily, and to take protective measures witliout waiting for tlie machinery of the courts." See martial law, military rule, in index to Magoon, np. cit., and an elaborate series of discussion in 18 Law Quarterly Review, 117-158. — Eo. CHAP. II.] FOURTEEN DIAMOND RINGS V. ITNITED STATES. 667 the land titles in California, existing at the time of the cession of that country to the United States by the treaty of Guadalupe Hildalgo. That cession did not impair the rights of private property. They were consecrated by the law of nations, and protected by the treaty. The treaty stipulation was but a formal recognition of the pre-exist- ing sanction in the law of nations. The act of March 3d, 1851, was passed to assure to the inhabitants of the ceded territory the benefit of the rights of property thus secured to them. It recognizes alike legal and equitable rights, and should be administered in a large and liberal spirit. A right of any validity before the cession was equally valid afterwards, and while it is the duty of the court in the cases which may come before it to guard carefully against claims originating in fraud, it is equally their duty to see that no rightful claim is rejected. No nation can have any higher interest than the right administration of justice. FOURTEEN DIAMOND RINGS v. UNITED STATES. SupREJiE Court of the United States, 1901. (183 United States, 176.) Mr. Chief Justice Fuller delivered the opinion of the court. Emil J. Pepke, a citizen of the United States and of the State of North Dakota, enlisted in the First Regiment of the North Dakota United States Volunteer Infantry, and was assigned for duty with his regiment in the island of Luzon, in the Philippine Islands, and con- tinued in the military service of the United States until the regiment was ordered to return, and, on arriving at San Francisco, was dis- charged September 25, 1899. He brought with him from Luzon fourteen diamond rings, which he had there purchased, or acquired through a loan, subsequent to the ratification of the treaty of peace between the United States and Spain, February 6, 1899, and the proclamation thereof by the President of the United States, April 11, 1899. In May, 1900, in Chicago, these rings were seized by a customs officer as having been imported contrary to law, without entry, or declaration, or payment of duties, and an information was filed to enforce the forfeiture thereof. To this Pepke filed a plea setting up the facts, and claiming that the rings were not subject to customs duties ; the plea was held insuffi- cient ; forfeiture and sale were decreed ; and this writ of error was prosecuted. 668 EFFECTS OF WAR AS BETWEEN ENEMIES. [PAET H. The tariff act of July 24, 1897, 30 Stat. 151, in regulation of com- m-irce with foreign nations, levied duties "upon all articles imported from foreign countries." "Were these rings, acquired by this soldier after the ratification of the treaty was proclaimed, when brought by him from Luzon to Cali- fornia, on his return with his regiment to be discharged, imported from a foreign country ? This question has already been answered in the negative, in respect of Porto Eico, in De Lima v. Bidwell, 182 U. S. 1, and nnless the cases can be distinguished, which we are of opinion they cannot be in this particular, that decision is controlling. The Philippines, like Porto Rico, became, by virtue of the treaty, ceded conquered territory or territory ceded by way of indemnity. The territory ceased to be situated as Castine was when occupied by the British forces in the war of 1812, or as Tampico was when occu- pied by the troops of the United States during the Mexican war, "cases of temporary possession of territory by lawful and regular gov- ernments at war with the country of which the territory so possessed was part." Thorhigton v. Smith, 8 Wall. 10. The Philippines were not simply occupied but acquired, and having been granted and deliv- ered to the United States, bv their former master, were no lonsrer under the sovereignty of any foreign nation. In Cross V. Harrison, IG How. 164, the question was whether goods imported from a foreign country into California after the cession were subject to our tariff laws, and this court held that they were. In De Lima v. Bidwell, the question was whether goods imported into New York from Porto Eico, after the cession, Avere subject to duties imposed by the act of 1897 on "articles imported from foreign countries," and this court held that they were not. That act regulated commerce with foreign nations, and Porto Eico had ceased to be within that category ; nor could territory be foreign and domestic at the same time. Among other things it was there said : " The theory that a country remains foreign with respect to the tariff laws until Congress has acted by embracing it witliin the customs union, presup- poses that a country may be domestic for one purpose and foreign for another. It may undoubtedly become necessary for the adequate ad- ministration of a domestic territory to pass a special act providing the proper machinery and officers, as the President would have no author- ity, except under the war power, to administer it himself; but no act is necessary to make it domestic territory if once it has been ceded to the United States. * * * This theory also presupposes that terri- tory may be held indefinitely by the United States; that it maybe CHAP. II.] FOURTEEN DIAMOND EINGS V. UNITED STATES. G09 treated in every particular, except for tariff purposes, as domestic ter- ritory ; that laws may be enacted and enforced by officers of the United States sent there for that purpose; that insurrections may be sup- pressed, wars carried on, revenues collected, taxes imposed; in short, tliat everything may be done which a government can do within its own boundaries, and yet that the territory may still remain a foreign country. That this state of things may continue for years, for a cen- tury even, but that until Congress enacts otherwise, it still remains a foreign country. To hold that this can be done as matter of law we deem to be pure judicial legislation. We find no warrant for it in the Constitution or in the powers conferred upon this court. It is true the non-action of Congress may occasion a temporary inconvenience ; but it does not follow that courts of justice are authorized to remedy it by inverting the ordinary meaning of words." No reason is perceived for any different ruling as to the Philippines. By the third article of the treaty Spain ceded to the United States "the archipelago known as the Philippine Islands," and the United States agreed to pay to Spain the sum of twenty million dollars within three months. The treaty w^as ratified ; Congress appropriated the money ; the ratification was proclaimed. The treaty-making power, the executive power, the legislative power, concurred in the completion of the transaction. The Philippines thereby ceased, in the language of the treaty, "to be Spanish." Ceasing to be Spanish, they ceased to be foreign coun- try. They came under the complete and absolute sovereignty and do- minion of the United States, and so became territory of the United States over which civil government could be established. The result was the same although there was no stipulation that the native inhabi- tants should be incorporated into the body politic, and none securing to them the right to choose their nationality. Their allegiance became due to the United States and they became entitled to its protection. But it is said that the case of the Philippines is to be distinguished from that of Porto Rico because on February 14, 1899, after the ratifi- cation of the treaty, the Senate resolved, as given in the margin,^ that 1 " Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That by the ratification of the treaty of peace with Spain it is not intended to incorporate the inhabitants of tlie Philippine Islands into citizenship of the United States, nor is it intended to permanently annex said islands as an integral part of the territory of the United States ; but it is the intention of the United States to establish on said islands a government suitable to the wants and (lon- ditions of the inhabitants of said islands to prepare them for local self-government, and in due time to make such disposition of said islands as will best promote the interests of the United States and the inhabitants of said islands." Cong. Rec. 5oth Cong. 3d Sess. Vol. 32, p. 1847. 670 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. it was not intended to incorporate the inhabitants of the Philippines into citizenship of the United States, nor to permanently annex those islands. We need not consider the force and effect of a resolution of this sort, if adopted by Congress, not like that of April 20, 1898, in respect of Cuba, preliminary to the declaration of war, but after title had passed by ratified cession. It is enough that this was a joint resolution ; that it was adopted by the Senate by a vote of 26 to 22, not two thirds of a quorum: and that it is absolutely without legal significance on the question before us. The meaning of the treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify it. What view the House might have taken as to the intention of the Senate in ratifying the treaty we are not informed, nor is it material; and if any implication from the action referred to could properly be indulged, it would seem to be that two thirds of a quorum of the Senate did not consent to the ratification on the grounds indi- cated. It is further contended that a distinction exists in that while com- plete possession of Porto Rico was taken by the United States, this was not so as to the Philippines, because of the armed resistance of the native inhabitants to a greater or less extent. We must decline to assume that the government wishes thus to dis- parage the title of the United States, or to place itself in the position of waging a war of conquest. The sovereignty of Spain over the Philippines, and possession under claim of title had existed for a long series of years prior to the war with the United States. The fact that there were insurrections against her, or that uncivilized tribes may have defied her will did not affect the validity of her title. She granted the islands to the United States, and the grantee in accepting them took nothing less than the whole grant. If those in insurrection against Spain continued in insurrection against tlie United States, the legal title and possession of the latter remained unaffected. We do not understand that it is claimed that in carrying on the pending hostilities the government is seeking to subjugate the people of a foreign country, but, on the contrary, that it is preserving order and suppressing insurrection in territory of the United States. It fol- lows that the possession of the United States is adequate possession under legal title, and this cannot be asserted for one purpose and denied for another. We dismiss the suggested distinction as untejr able. But it is sought to detract from the weight of the ruling in De Lima CHAP. II.] FOURTEEN DIAMOND RINGS V. UNITED STATES. 671 V. Bidwell because one of the five justices concurring in the judgment in that case concurred in the judgment in Downes v. Bldtcdl, 182 U. S. 244. In De Lima v. Bidwell, Porto Rico was held not to be a foreign country after the cession, and that a prior act exclusively applicable to foreign countries became inapplicable. In Downes v. Bidwell, the conclusion of a majority of the court was that an act of Congress levying duties on goods imported from Porto Kico into New York, not in conformity with the provisions of the Constitution in respect to the imposition of duties, imposts, and excises, was valid. Four of the members of the court dissented from and five concurred, though not on the same grounds, in this conclusion. The justice who delivered the opinion in De Lima's case was one of the majority, and was of opinion that although by the cession Porto Rico ceased to be a foreign country, and became a territory of the United States and domestic, yet that it was merely " appurtenant " territory, and "not a part of the United States within the revenue clauses of the Constitution." This view placed the territory, though not foreign, outside of the restrictions applicable to interstate commerce, and treated the power of Congress, when affirmatively exercised over a territory, situated as supposed, as uncontrolled by the provisions of the Constitution in respect of national taxation. The distinction was drawn between a special act in respect of the particular country, and a general and prior act only applicable to countries foreign to ours in everysense. The latter was obliged to conform to the rule of uniformity, which was wholly disregarded in the former. The ruling in the case of De Lima remained i;naffected, and controls that under consideration. And this is so notwithstanding four mem- bers of the majority in the De Lima case were of opinion that Porto Rico did not become by the cession subjected to the exercise of govern- mental power in the levy of duties unrestricted by constitutional limi- tations. Decree reversed and cause remanded with directions to quash the information. Mr. Justice Brown, concurring : I concur in the conclusion of the court in this case, and in the reasons given therefor in the opinion of the Chief Justice. The case is distinguishable from De Lima v. Bidwell, 182 U. S. 1, in but one particular, viz., the Senate resolution of February 6, 1899. With regard to this, I would say that in my view the case would not be essentially different if this resolution had been adopted by a unani- mous vote of the Senate. To be efficacious such resolution must be 672 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART 11. considered either (1) as an amendment to the treaty, or (2) as a legis- lative act qualifying or modifying the treaty. It is neither. It cannot be regarded as part of the treaty, since it received neither the approval of the President nor the consent of the other contracting power. A treaty in its legal sense is defined by Bouvier as " a com- pact made between two or more independent nations with a view to the public welfare " ( 2 Law Die. 1136), and by Webster as "an agree- ment, league, or contract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratitied by the sovereigns or the supreme power of each state." In its essence it is a contract. It differs from an ordinary contract only in being an agreement between independent states instead of private parties. Foster v. Neilson, 2 Pet. 253, 314 ; Head Money Cases, 112 U. S. 580. By the Constitution (art. 2, sec. 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." Obviously the treaty must contain the whole contract between the parties, and the power of the Senate is limited to a ratification of such terms as have already been agreed upon between the President, acting for the United States, and the commissioners of the other contracting power. The Senate has no right to ratify the treaty and introduce new terms into it, which shall be obligatory upon the other power, although it may refuse its ratification, or make such ratification conditional upon the adojjtion of amendments to the treaty. If, for instance, the treaty .with Spain had contained a provision instating the inhabitants of the Philippines as citizens of the United States, the Senate might have refused to ratify it until this provision was stricken out. But it could not, in my opinion, ratify the treaty and then adopt a resolution declaring it not to be its intention to admit the inhabitants of the Philippine Islands to the privileges of citizenship of the United States. Such resolution would be inoperative as an amendment to the treaty, since it had not received the assent of the President or the Spanish commissioners. Allusion was made to this question in the Neiv York Indians v. United States, 170 U. S. 1, 21, wherein it appeared that, when a treaty with certain Indian tribes was laid before the Senate for ratification, several articles were stricken out, several others amended, a new arti- cle added, and a proviso adopted that the treaty should have no force or effect whatever, until the amendment had been submitted to the tribes, and they had given their free and voluntary assent thereto. This resolution, however, was not found in the original or in the pub- lished copy of the treaty, or in the proclamation of the President, which contained the treaty without the amendments. With reference CHAP, ir.] FOURTEEN DFAMOND RINGS V. UNITED STATES. 673 to this the court observed: ''The power to make treaties is vested by the Constitution in the President and the Senate, and, while this pro- viso was adopted by the Senate, there was no evidence that it ever received the sanction or approval of the President. It cannot be con- sidered as a legislative act, since the i)ower to legislate is vested in the President, Senate, and House of Representatives. There is some- thing, too, which shocks the conscience in the idea that a treaty can be put forth as embodying the terms of an arrangement with a foreign power or an Indian tribe, a material provision of which is unknown to one of the contracting parties, and is kept in the background to be used by the other only when the exigencies of a particular case may demand it. The proviso appears never to have been called to the attention of the tribes, who would naturally assume that the treaty embodied in the Presidential proclamation contained all the terms of the arrangement." * In short, it seems to me entirely clear that this resolution cannot be considered a part of the treaty. I think it equally clear that it cannot be treated as a legislative act, though it may be conceded tlaat under the decisions of this court Con- gress has the power to disregard or modify a treaty with a foreign state. This was not done. The resolution in question was introduced as a joint resolution, but it never received the assent of the House of Representatives or the signature of the President. While a joint resolution, when approved by the President, or, being disapproved, is passed by two thirds of each House, has the effect of a law (Const, art. 1, sec. 7), no such effect can be given to a resolution of either House acting independently of the other. Indeed, the above clause expressly requires concurrent action upon a resolution " before the same shall take effect." This question was considered by Mr. Attorney-General Gushing in his opinion on certain Resolutions of Congress (6 Ops. Attys.-Gen. 680), in which he held that while joint resolutions of Congress are not dis- tinguishable from bills, and have the effect of law, separate resolutions of either House of Congress, except in matters appertaining to their own parliamentary rights, have no legal effect to constrain the action of the President or heads of departments. The whole subject is there elaborately discussed. In any view taken of this resolution it appears to me that it can be considered only as expressing the individual views of the Senators voting upon it. I have no doubt the treaty might have provided, as did the act of Congress annexing Hawaii, tliat the existing customs relations between the Spanish possessions ceded by the treaty and the United States 48 674 EFFECTS OF WAR AS BETWEEN ENEMIES. [PART II. should remain unchanged until legislation had been had upon the sub- ject ; but in the absence of such provision the case is clearly controlled by that of De Lima v. Bidivell. Mr. Justice Gray, Mr. Justice Shiras, Mr, Justice White, and Mi'. Justice McKenxa dissented, for the reasons stated in their opinions in De Lima v. Bidwell, 182 U. S. 1, 200-220; in Dooley v. United States, 182 U. S. 222, 236-243; and in Doivnes v. Bidwell, 182 U. S. 244,287- 347.1 1 De Lima v. Bidwell, 1900, 182 U. S. 1, is the present leading case on this subject ; its length prevents its insertion. Leaving out of question its importance in constitutional and international law, it should be consulted for a collation and examination of the autiiorities. In Dooley V. U. S., 1900, 182 U. S. 222, and Armstrong v. U. S., id. 243, it was held (Justices White, Gray, Shiras, and McKenna dissenting) that duties upon imports from the U. S. to Porto Rico, collected by Military Commander and the President as Commander- in-Chief, from time of taking possession of the island until ratification of the treaty of peace, were legally exacted under war power, but the right to exact duties so imposed ceased witli the ratification of tiie treaty. In Downes v. U. S., 1901, 182 U S. 244, it was held (Fuller, C. J., Harlan, Brewer, and Peckham, JJ., dissent- ing) that the Island of Porto Rico is " a territory appurtenant and belonging to the United States but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act (April 12, 1900) is constitutional, so far as it imposes duties upon imports from such islands and that the plaintiff cannot recover back the duties exacted in this case." Reafl3rmed and applied in Dooley v. U. S., 1901, 183 U. S. 151. As the judgment in Downes v. U. S., of vital importance to the United States, deals largely with (tlie powers of Congress over the internal organization and government of ) domestic territory of the United States, no abstract is here attempted. In Haus v. Neiu York S^- Steamship Co., 1901, 182 U. S. 392, it was held that vessels plying between Porto Rican ports and the U. S. mainland, engaged in "coasting," /. e. domestic, not foreign trade. The following are some leading foreign cases on the subject : In the case of Guerin, Court of Appeal of Nancy, 1872 (Dalloz, 1872, II. p. 185), it was held that the occupa- tion of a department of France by the troops of the enemy does not suspend therein I the civil and criminal laws of France ; that these continue obligatory upon all French- '. men so long at least as they have not been expressly and specifically abrogated by the exigencies of the war. This rule was enforced in respect to the custom laws, and even in that part of the occupied territory where the Germans collected and appropriated the duties. Dalloz, 1872, II. 185, notes 3, 4. In Mohr rcefidia^ and. even a sentence of condemnation, is necessary to convert the property ; and although in some instances positive institutions have determined, that a possession of a certain number of hours is sufficient, yet this proceeds upon the ground that a possession of so many hours is an evidence of firm possession. Here there was no bodily possession, nor indeed could there be; but still some judicial act might have been done declaratory of the forfeiture to the Crown of those rights Avhich vested in the claimant under the decree for costs and damages. It appears, how- ever, that no step was taken for this purpose on the part of the Crown ; and I am, therefore, of the opinion that the rights of the Spanish pro- prietor do revive, and I refer it to the registrar and merchants to ascertain the amount of the compensation to which he is entitled under the decree.^ THE -'PROTECTOR." Supreme Court of the United States, 1871. (12 Wallace, 700.) The question in this case was whether the suit was barred by the statute of liuiitations in Alabama. As the statute did not run during the period of the war, it was necessary to determine precisely the dates of beginning and end of the war. Judgment, — Chase, C. J. : — " The question, in the present case is, when did the rebellion begin and end ? In other words, what space of time must be considered as excepted from the operation of the statute of limitations by the war of the rebellion ? " Acts of hostility by the insurgents occurred at periods so various, and of such different degrees of importance, and in parts of the 1 Compare The Schooner Sophie, 1805, 6 C. Rob. 138, in wliich the defective title of the neutral purcliaser was eured by an intervening peace. — Ed. CHAP. II.] THE " TROTECTOR." 683 country so remote from each other, both at the commencement and the close of the late civil war, that it would be difficult, if not impossible, t to say on what precise day it began or terminated. It is necessary, i therefore, to refer to some public act of the political departments of the government to fix the dates ; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Con- gress, must be taken. " The proclamation of intended blockade by the President may, therefore, be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second. But | the war did not begin or close at the same time in all the States. ' There were two proclamations of intended blockade : the first of the 19th of April, 1861 (12 Stat, at Large, 1258), embracing the States of South Carolina, Georgia, Alabama, Florida, Mississippi, Louisiana and Texas ; the second, of the 27th of April, 1861 (12 Stat, at L., 1259), embracing the States of Virginia, and North Carolina ; and there were two proclamations declaring that the war had closed ; one issued on the 2d of April, 1866, (14 Stat, at Large, 811), embracing the States of Virginia, North Carolina, South Carolina, Georgia, Flor- ida, Mississippi, Tennessee, Alabama, Louisiana, and Arkansas, and the other issued on the 20tli of August, 1866 (13 Stat, at Large, 814), embracing the State of Texas. " In the absence of more certain criteria, of equally general appli- cation, we must take the dates of these proclamations as ascertain- ing the commencement and the close of the war in the states men- tioned in them. Applying this rule to the case before us, we find that the war began in Alabama on the 19th of April, 1861, and ended on the 2d of April, 1866. More than five years, therefore, had elapsed from the close of the war till the 17th of May, 1871, when this appeal was brought. The motion to dismiss, therefore, must be " Granted." ^ 1 See Brown v. HIatts, 1872, 15 Wallace, 177. In the case of Philips v. Hatch, 1 Dillon, 571 (1871), the United States Circuit Court for Iowa held tiiat a contract entered into in the spring of 1866 between a resilient of the State of Iowa and a resident of the State of Texas, was void as a contract between enemies. — Ed. CHAPTER III. KELATIONS BETWEEN BELLIGERENTS AND NEUTRALS. Section 39. —Belligerent Capture in Neutral Waters. THE "ANNA." High Court of Admiralty, 1805, (5 C. Robinson, 373.) This was the case of a ship under American colors, with a cargo of logwood, and about 13,000 dollars on board, bound from the Spanish main to New Orleans, and captured by the 3flnerva privateer near the mouth of the river Mississippi. A claim was given under the direction of the American Minister for the ship and cargo, as taken within the territory of the United States, at the distance of a mile and a half from the western shore of the principal entrance of the Mississippi, and within view of a port protected by a gun, and where is stationed an officer of the United States. Judgment. — Sir W. Scott : ^ — " 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 repre- sentations from the adverse parties. The capture was made, it seems, at the mouth of the river 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 ' terrse dominium flnitur, ubi finitur armorum vis,' and since the introduction of fire-arms that distance has usually been recognized to be about three miles from the shore. But it so happens in this case, that a question arises as to what is to be deemed the shore, since there are a 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 con- tended that these are not to be considered as any part of the terri- tory of America, that they are a sort of ' no man's land,' not of con- 1 Part of the judgment of this remarkable and learned judge is omitted. — Ed. CHAP. III.] THE "ANNA." 685 sisteiicy enough to support the purposes of life, uninhabited, and re- sorted to, only, for shooting and taking birds' nests. It is argued that the line of territory is to be taken only from the Balise, which is a fort raised on made land by the former Spanisli 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, in- deed, they are formed. Their elements are derived immediately from the territory, and on the principle of alluvium and increment, on which so much is to be found in the books of law. Quod vis Jluminis de tuo 2>^'Cfidio detraxerit^ and vicinoprcudio attulerit, palam tnum remanet^ even if it had been carried over to an adjoining terri- tory. 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 physi- cally 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 addressed to show that these islands are not to be considered as part of the territory of America. Whether they are composed of earth or solid rock, will not vary the right of dominion, for the right of dominion does not depend upon the texture of the soil. " I am of opinion that the right of territory is to be reckoned from those islands. That being established, it is not denied that the actual capture took place within the distance of three miles from the islands, and at the very threshold of the river. But it is said that the act of capture is to be carried back to the commencement of the pursuit, and that if a contest begins before, it is Ln\ful for a belligerent cruiser to follow, and to seize his prize within the terri- tory of a neutral state. And the authority of Bynkershoek is cited on this point. True it is, that that great man does intimate an opin- ion of his own to that effect ; but with many qualifications, and as an opinion, which he did not find to have been adopted by any other writers. I confess I should have been inclined to have gone along with him, to this extent, that if a cruiser, Avhich had before acted in a manner entirely unexceptionable, and free from all violation of territory, had summoned a vessel to submit to exam- ination and search, and that vessel had fled to such places as these, entirely uninhabited, and the cruiser had without injury or annoy- 686 BELLIGERENTS AND NEUTRALS. [PART H. ance to any person whatever, quietly taken possession of his prey, it would be stretching the point too hardly against the captor, to say that on this account only it should be held an illegal capture. If nothing objectionable had appeared in the conduct of the captors before, the mere following to such a place as this is, would, I think, not invalidate a seizure otherwise just and lawful. " But that brings me to a part of the case, on which I am of opin- ion that the privateer has laid herself open to great reprehension. Captors must understand that they are not to station themselves in the mouth of a neutral river, for the purpose of exercising the rights of war from that river, much less in the river itself. It appears from the privateer's own log-book that this vessel has done both ; and as to any attempt to shelter this conduct under the example of King's ships, which I do not believe, and which, if true, would be no justification to others, captors must, I say, be admonished, that the practice is altogether indefensible, and that if King's ships should be guilty of such misconduct, they would be as much sub- ject to censure as other cruisers. " It is unnecessary to go over all the entries in the log. The cap- tors appear by their own description to have been standi)ig off and on, obtaining information at the Balise, overhauling vessels in their course down the river, and making the river as much subservient to the purposes of war, as if it had been a river of their own country. This is an inconvenience which the states of America are called upon to resist, and which this court is bound on every principle to dis- courage and correct. "With respect to one vessel, it appears that the BUboa, under Spanish colors, and an undoubted Spanish ship, had been captured and carried into the river ; and it was stated in an affidavit which was exhibited to account for the absence of the usual witnesses in that case, that the prisoners had escaped. The cause was brought on upon the evidence of the releasing witnesses under this representa- tion. It now appears by an entry in this log, ' that the prisoners xoere set on shore ; "" an act highly unjustifiable, in its own nature, independent of the deception Avith which it has been accompanied. The prisoners are the King's prisoners, and captors are particularly enjoined by the instructions not to release any prisoners belonging to the ships of the enemy, and they violate their duty whenever they do. When I advert to the imposition that has been put upon the court in that transaction, how can I trust myself to any representa- tion coming from the same persons. Indeed, I think, I can perceive strong traits of bad faith running throughout the whole conduct of the captors in the present case. In answer to the complaint that CHAP, hi] the "anna." G87 has been made against the captors for bringhig this prize to Eng- land, it was said, that it was done at the desire of the master of tlie captured vessel ; though in the affidavit of the master, which is not contradicted, it is sworn, ' that the captors offered to set him on shore, but that he refused to be separated from his cargo.' " The conduct of the captors has on all points been highly repre- hensible. Looking to all the circumstances of previous misconduct, I feel myself bound to pronounce, that there has been a violation of territory, and that as to the question of property, there was not suf- ficient ground of seizure ; and tliat these acts of misconduct have been further aggravated, by bringing the vessel to England, without any necessity that can justify such a measure. In such a case it would be falling short of the justice due to the violated rights of America, and to the individuals who have sustained injury by such misconduct, if I did not follow up the restitution which has passed on the former day, with a decree of costs and damages," ^ 1 In The Twee Gebroeders, 1800, 3 C. Rob. 162, 164, the same great judge said : "I am of opinion that no use of a neutral territory for the purposes of war is to be per- mitted. I do not say remote uses, such as procuring provisions and refresliments, and acts of tliat nature, which the law of nations universally tolerates; but tliat no proxi- mate acts of war are in any manner to be allowed to originate on neutral grounds ; and I cannot but think that such an act as this, that a ship should station herself on neutral territory, and send out her boats (as was done in this case) on hostile enter- prises, is an act of hostility much too immediate to be permitted. For, suppose that even a direct hostile use should be required to bring it within the proliibition of the law of nations, nobody will say that the very act of sending out boats to effect a capture is not itself an act directly hostile, not complete, indeed, but inulioate, and clothed with all the characters of hostility. If tliis could be defended, it might as well be said that a ship lyiHg in a neutral station might fire shot on a vessel lying out of the neutral territory ; the injury in that case would not be consummated, nor received on neutral ground ; but no one would say that such an act wo ild not be an hostile act, immediately commenced within the neutral territory. And what does it signify to tlie nature of the act, considered for the present purpose, whether I send out a cannon- shot which shall compel the submission of a vessel lying at two miles distance, or whether I send out a boat armed and manned, to effect the very same tiling at the same distance ? It is in both cases the direct act of the vessel lying in neutral sround. The act of hostility actually begins, in the latter case, within the launching and manning and arming the boat that is sent out on such an errand of force." See also an early American case, Sou/t v. L'Africaine, 1804, Bee's R. 204. "In 1811 an American privateer, rhe Genera! Annsfroiirj, was found at anciior in Fayal harbor by an English squadron. A boat detachment from the latter ap- jiroaclied the privateer and was fired upon. The next day one of the vessels of the squadron took up position near the General Annsfronrj to attack her. The crew, not finding themselves able to resist, abandoned and destroyed her. The United States alleged that the Portuguese governor had failed in his duty as a neutral, and demanded a large compensation for the owners of the privateer. After much cor- respondence the affair was submitted in 1861 to the arbitration of the President of the French Republic, who held that as Captain Reid, of the privateer, ' had not applied at - HI. 688 BELLIGERENTS AND NEUTRALS. [PART II. THE ''AXXE." Supreme Court of the United States, 1818. (3 W/ieaton, 430.) This was the case of a British ship captured while lying at anchor near the Spanisli part of the island of St. Domingo, by the American Drivateer Ultor. ^ Story, J. : — " The claim of the Spanish government for the violation of its neutral territory being thus disposed of, it is next to be considered whether the British claimant can assert any title founded upon that circumstance. " By the return of peace, the claimant became rehabilitated with the capacity to sustain a suit in the courts of this country ; and the argument is, that a capture made in a neutral territory is void ; and, therefore, the title by capture being invalid, the British owner has a right to restitution. The difficulty of this argument rests in the incorrectness of the premises. A capture made within neutral waters I is, as between enemies, deemed, to all intents and purposes, rightful ; it is only by the neutral sovereign that its legal validity can be called ' in question ; and as to him and him only, is it to be considered void. The enemy has no rights whatsoever, and if the neutral sovereign omits or declines to interpose a claim, the property is condemnable, jure belli., to the captors. This is the clear result of the authori- ties ; and the doctrine rests on well established principles of public law. " There is one other point in the case which, if all other difficulties the beginning to the neutral, but liad used force to repel an improper aggression of which lie stated himself to be the object, he had himself disregarded the neutrality of the territory in which he was, and had consequently released its sovereign from all obligations to protect him otherwise tiian by his good offices; that from that moment the Portuguese Government could not be responsible for the results of a collision whicli had taken place in contempt of its sovereign rights.' " Hail's Int. Law, 648-G-19. See criticism of the award in Dana's Wheaton, note 208, p. 526, and for an elaborate account of the origin, history and final settlement of this interesting episode, see 2 Moore's Int. Arb. 1071-1132. In an early French case, The Perk (Conseil des Prises, "An VllI," 1 Pistoye et Duverdy, 100), it was decided that a belligerent capture in neutral waters is illegal whetlicr under the guns of a fort, or on the undefended coast; and the cnptured ship will be n stored by the courts (French) of the captor's country. — Kd. ^ Statement of the case is much abbreviated and only a part of the opinion is given. — Ed. CHAP, in.] THE " ANNE." 689 were removed, would be decisive against the claimant. It is a fact, that the captured ship first commenced hostilities against tlie priva- teer. This is admitted on all sides ; and it is no excuse to assert that it was done under a mistake of the national character of the privateer, even if this were entirely made out in tlie evidence. While the ship was lying in neutral waters, she was bound to abstain from all hostilities, except in self-defence. The privateer had an equal title with herself to the neutral protection, and was in no default in approaching the coast without showing her national character. It was a violation of that neutrality which the captured ship Avas bound to observe, to commence hostilities for any purpose in these waters ; for no vessel coming thither was bound to submit to search, or to account to her for her conduct or character. When, therefore, she commenced hostilities, she forfeited the neutral protection, and the capture was no injury for which any redress could be rightfully sought from the neutral sovereign. " The conclusion from all these views of the case is, that the ship and cargo ought to be condemned as good prize of war." ^ 1 In The Eliza Ann, 1813, 1 Dod. 244, three American ships were seized in Hanoe Bay, by tlie British sliip Vigo. A claim was given, under the direction of the Swedish minister, for the ships and cargoes "as taken within one mile of the mainland of Sweden * * * contrary to and in violation of the law of nations, and the territory and jurisdiction of his said [Swedish] Majesty." On these facts. Sir Wm. Scott said: "A claim has been given by the Swedish Consul, for these ships and cargoes, as having been taken within the territories of the King of Sweden, and in violation of his territorial rights. This claim could not have been given by the Americans themselves ; for it is the privilege, not of the enemy, but of the neutral countr\% which lias a right to see that no act of violence is committed within its jurisdiction. When a violation of neutral tsrritory takes place, tliat country alone, whose tranquillity has been dis- turbed, possesses tlie riglit of demanding reparation for the injury whicli slie has sustained \_Tlie Parissima Conception, 180-5, 6 C. Rob. 45; The Dilirjentia, 1814, 1 Dod. 404, 412], It is a principle that has been established by a variety of decisions, both in this and in the Superior Court (The Etrusco, Lords, 1795), tiiat the enemy, whose pro- perty has been captured, cannot himself give the claim, but must resort to the neutral for his remedy. Acts of violence by one enemy against another are forbidden within the limits of a neutral territory, unless they are sanctioned by the authority of the neutral state, which it has the power of granting to either of the belligerents, subject, of course, to a responsibility to tlie other. A neutral state may grant permission for such acts beforehand, or acquiesce in tiiem after they shall have taken place, or it may, as has been done in the present instance, step forward and claim the jjroperty." In the case of The Lilla, 2 Sprague, 1862, 177, it is said that, "it is undoubtedly true that no private person can rest a claim for the restoration of prize in the courts of the captor on the ground that the capture was made in neutral waters, and that the neutral nation whose rights have been infringed alone can interpose." In the case of The Adela. 1867, 6 Wall. 266, Chief Justice Chase, in delivering the judgment of the court, said : " It is claimed that tlie capture took place in British waters. It was made, in fact, near Great Abaco Island, which belongs to Great 44 690 BELLIGERENTS AND NEUTRALS. [PART II. THE "FLOPvIDA." Supreme Court of the United States, 1879. (101 Cnited States, 37.) jMr. Justice Swatxe, after stating the facts, delivered the opinion of the court. The legal principles applicable to the facts disclosed in the record are well settled in the law of nations, and in English and American jurisprudence. Extended remarks upon the subject are, therefore, unnecessary. See Grotius, De Jure Belli, b. 3, c. 4, sect. 8; Bynker- shoek, 61, c. 8; Burlamaqui, vol. ii. pt. 4, c. o, sect. 19; Vattel, b, 3, c. 7, sect. 132; Dana's Wheaton, sect. 429 and note 208; 3 Eob. Ad. E.ep. 373 ; 5 id. 21 ; The Anne, 3 Wheat. 435 ; La Amistad de Rues, 5 id. 385; The Santissima Trinidad, 7 id. 283, 496; The Sir William Feel, 5 Wall. 517; The Adela, 6 id. 266; 1 Kent, Com. (last ed.), pp. 112, 117, 121. Grotius, speaking of enemies in war, says : " But that we may not kill or hurt them in a neutral country, proceeds not from any privi- leges attached to their persons, but from the right of the prince in ■whose dominions they are." A capture in neutral waters is valid as between belligerents. Neither a belligerent owner nor an individual enemy owner can be Britain ; but the evidence is by no means convincing that it was made witliin three miles from the land. On the contrary, while it is not, perhaps, certain that The Afield was without the line of netitral jurisdiction when first required to lay to by the Quaker City, it cannot be doubted that she had passed beyond it when slie was actually captured. If, however, tlie capture had been actually made in neutral waters, that circumstance would not, of itself, prevent condemnation, especially in a case of capture made in good faith, without intent to violate neutral jurisdiction, or knowledge that any neutral jurisdiction was in fact infringed, and in the absence of all interven- tion or claim on the part of the neutral government (The Etrusco, 3 Robinson, 31; VroHw Anna Catharina, 5 id. 144). ' It might,' as was observed in the case of The Sir William Peel (b Wallace, 535), 'constitute a ground of claim by the neutral power whose territory had suffered trespass, for apology or indemnity. But neither an enemy, nor a neutral acting the part of a enemy, can demand restitution on the sole ground of capture in neutral waters.' " In the case of the Britisli ship Granrje, captured in Delaware Bay by a French pri- vateer (1793), it was held by Attorney-General Randolph (1 Op. Att.-Gen. 15), that if j the captured ship was brought within the jurisdiction of the United States, it was their I duty as neutrals to restore her to the owners. To the same effect, see La Estrella, lbl9. 4 Wheaton, 298. — Ed. CHAP, m.] THE " FLORIDA." 691 heard to complain. But the neutral sovereign whose territory has been violated may interpose and demand reparation, and is entitled to have the captured property restored. The latter was not done in tliis case because the captured vessel had been sunk and lost. It was, therefore, impossible. The libellant was not entitled to a decree in his favor, for several reasons. . The title to captured property always vests primarily in the govern- ment of the captors. The rights of individuals, where such rights ' exist, are the results of local law or regulations. Here, the capture was promptly disavowed by the United States. They, therefore, never had any title. The case is one in which the judicial is bound to follow the action of the political department of the government, and is concluded by it. PhiUips V. Payne, 92 U. S. 130. These things must necessarily be so, otherwise the anomaly would be possible, that, while the government was apologizing and making reparation to avoid a foreign war, the offending officer might, through the action of its courts, fill his pockets with the fruits of the offence out of which the controversy arose. When the capture was disavowed by our government, it became for all the purposes of this case as if it had not occurred. Lastly, the maxim, " ex turpi caxisa non oritur actio'"' applies with full force. No court will lend its aid to a party who founds his claim for redress upon an illegal act. The Brazilian Government was justified by the law of nations in demanding the return of the captured vessel and proper redress other- wise. It was due to its own character, and to the neutral position it had assumed between the belligerents in the war then in progress, to take prompt and vigorous measures in the case, as was done. The commander was condemned by the law of nations, public policy, and the ethics involved in his conduct. Decree affirmed.^ 1 See Hall, Int. Law, 644-645, for subsequent action of United States; Dana's Wheaton, notes 208, 209, pp. 524-528. On this whole subject, see note to The Twee Gebroeders in Tudor, Mercantile Cases, oded. 879-888. — Ed. 692 BELLIGERENTS AND NEUTRALS. [PART IL Section 40. — Equipment of Vessels of War in Neutral Tekritory. UNITED STATES NEUTRALITY ACTS OF 1794 AND 1818. (U. S. Statutes at Large, 1., 381, mid Revised Stat., § 5289.) Act of June 5, 1794 : Section 3. — " If any person shall within any of the ports, harbors, bays, rivers, or other waters of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arm- ing of any ship or vessel with intent 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 cruise or commit hostilities upon the subjects, citizens or property of another foreign prince or state [or of any colony, district or people], 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 in- tent that she may be emi^loyed as aforesaid, every such person so oftending shall, upon conviction, be adjudged guilty of a high mis- demeanor, and shall be fined and imprisoned at the discretion of the court in which the conviction shall be had, so as the fine to be im- posed shall in no case be more than five thousand [ten thousand by the act of 1818] dollars, and the term of imprisonment shall not exceed three years, and every such ship or vessel with her tackle, ap- parel and furniture together with all materials, arms, ammunition and stores which may have been procured for the building and equip- ment thereof shall be forfeited, one-half to the use of any person who shall give information of the offence, and the other half to the use of the United States. Section 7. — By this section the President is authorized to employ the land and naval forces or militia to execute the law. On account of the complaints of Spain and Portugal (1815-17), of infractions of neutrality on the part of citizens of the United States in the Avar which those states were then waging with their revolted South American colonies. President Madison sent a special message on the subject to Congress, and the result was the more stringent act of April 20, 1818. From a suggestion of the Spanish Minister, CHAP. III.] BRITISH FOREIGN ENLISTMENT ACTS. 693 that the South American provinces in revolt, and not recognized as independent, might not be included in the word " State," the words "colony, district, or people," were added, as given in brackets above. The new clauses of the act of 1818 of chief importance are those authorizing the detention of vessels on suspicion, and requiring the owners to give bonds on clearance. Act of 1818 (Revised Statutes, § 5289) : Section 10. — " The owners or consignees of every armed vessel sailing out of the ports of the United States, belonging wholly or in 'part to citizens thereof, shall, before clearing out the same, give bond to the United States, with sufficient sureties, in double the amount of the value of vessel and cargo on board, including armament, con- ditioned that the vessel shall not be employed by such owners to cruise 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." Section 11. — "The several collectors of customs shall detain any vessel manifestly built for warlike purposes, and about to depart the United States, the cargo of which principally consists of arms and munitions of war, when the number of men shipped on board, or other circumstances, render it probable that such vessel is intended to be employed by the owners to cruise or commit hostilities upon the subjects, citizens, or property of any foreign prince, etc., with whom the United States are at peace, until the decision of the Presi- dent is had thereon, or until the owner gives such bond and security as is required of the owners of armed vessels by the preceding section." BRITISH FOREIGX ENLISTMENT ACTS, OF 1819 AXD 1870. (59 Geo. in., c. 69, and 33 and 34 Vict, 90.) Act of Jul)/ 3, 1819.— Section 7. " If any person, within any part of the United Kingdom, or in any part of His Majesty's dominions beyond the seas, shall, without the leave and license of His Majesty for that purpose first had and ob- tained as aforesaid, equip, furnish, fit out, or arm, or attempt or en- deavor to equip, furnish, fit out, or arm, or procure to be equipped, furnished, fitted out, or armed, or shall knowingly aid, assist, or be concerned in the equipping, furnishing, fitting out, or arming of any ship or vessel, with intent, or in order that such ship or vessel shall be employed in the service of any foreign prince, state, or potentate, 694 BELLIGERENTS AND NEUTRALS. [PART II. or of any foreign colony, province, or part of any province, or people ; or if 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 cruise or commit hostilities against any prince, state, or potentate, or against the persons exercising or assuming to exer- cise 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 he at war ; or shall, within the United Kingdom, or any of His Majesty's dominions, or in any settlement, colony, '^ territory, island, or place belonging or subject to His Majesty, issue or deliver any commission for a ship or vessel, to the intent that such ship or vessel shall be employed as aforesaid, every such person so olt'ending shall be deemed guilty of a misdemeanor, and shall, upon conviction thereof, upon any information or indict- ment, be punished by fine and imprisonment, or either of them, at the discretion of the court in which such offender sliall be convicted; and every such ship or vessel, with the tackle, apparel, and furni- ture, 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 lawful 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 in- curred 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 ^lajesty's navy are empowered respectively to make seizures under the laws of cus- toms and excise, or under the laws of trade and navigation ; and that every such ship and vessel, with the tackle, apparel, and furni- ture, 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 manner, 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 ctistoms and excise, or of the laws of trade and navigation. Section 8 imposes penalties for the augmentation of force in British ports. The defect in this act was in the procedure under it rather than in the intention of the act itself. The evidence required in order to arrest or detain a vessel must be sufficient to satisfy a jury of the probable breach of the provisions of the act ; and such evidence CHAP. III.] UNITED STATES V. GDINET. 695 may be difficult to obtain. The local officers Avere wary of taking action for which they might be held liable in damages. The act of 1870 removed tliis defect of procedure, as well as any ambiguity there might be in the act itself. The question of the breach of the act is not to be determined by the mere " intent " of the builder. Act of 1^10: Sectiox 8. — " If any person within Her Majesty's dominions, etc., (1) Builds or agrees to build, or causes to be built, 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 " (2) Issues or delivers any commission for any ship with intent or knowledge, etc. ; or " (3) Equips any ships with intent or knowledge, etc. ; or " (4) Despatches, or causes or allows to be despatched, any ship with intent or knowledge, etc. "Such persons shall be deemed to have committed an offence against this Act, etc." > Section 23 empowers the Secretary of State on " reasonable and probable cause for believing " that a ship is being built contrary to this Act, to issue a warrant to seize and search such ship and to de- tain the same until it has been either condemned or released by process of law, or in manner hereinafter mentioned. Section 24 provides that " where it is represented to any local authority " that tliere is reasonable and probable cause for believing that a ship has been or is being built, commissioned or equipped 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 executive authority, who may then issue a warrant for detention, or release the vessel. UXITED STATES v. GUINET. United States Circuit Court. Pexxsylvaxia District, 1795. (2 Dallas, 321 ) Patterson, Justice : — This is an indictment against John Etienne Guinet, for being, knowingly, concerned in furnishing, fitting out, and arming Les Jumeaux, in the port and river Delaware, with intent that she should be employed in the service of the French Republic, to cruise, or commit hostilities, upon the subjects of Great Britain, with whom the XJuited States are at peace : And it is the province of the 69G BELLIGERENTS AND NEUTRALS. [PART II. jury to inquire, whether the proof exhibited on the trial, has fully maintained the charge contained in the indictment. Much has been said upon the construction of the 3d and 4th sections of the act of Congress ; but the court is clearly of opinion, that the 3d section was meant to include all cases of vessels, armed within our ports by one of the belligerent powers, to act as cruisers against another belligerent power in peace with the United States. Convert- ing a ship from her original destination, with intent to commit hostili- ties ; or in other words, converting a merchant ship into a vessel of war, must be deemed an original outfit ; for the act would, otherwise, I become nugatory and inoperative. It is the conversion from the peace- able use, to the warlike purpose, that constitutes tlie offence. The vessel in question arrived in tins port, with a cargo of cofTee and sugar, from the West Indies ; and so appears to have been em- ployed by her owner with a view to merchandise, and not with a view to war. The inquiry, therefore, is liuiited to this consideration, whether, after her arrival, she was fitted out, in order to cruise against any foreign nation, being at peace with the United States, It is true, she^left the wharf with only four guns, the number that she had brought into the port ; but it is equally true, that when she had dropped to some distance below, she took on board three or four guns more, a number of muskets, water-casks, &c. ; and, it is manifest, that other guns were ready to be sent to her by the pilot boat. These circum- stances clearly prove a conversion from the original commercial design of the vessel, to a design of cruising against the enemies of France ; and, of course, against a nation at peace with the United States, since the United States are at peace with all the world. Xor can it be reason- ably contended, that the articles thus put on board the vessel were articles of merchandise ; for, if that had been the case, they would have been mentioned in her manifest, on clearing out of the port, whereas it is expressly stated, that she failed in ballast. If they were not to be used for merchandise, the inference is inevitable, that they ■were to be used for war. Ko man would proclaim on the house-top, that he intended to fit out a privateer : the intention must be collected from all the circumstances of the transaction, which the jury will in- vestigate, and on which they must decide. But if they are of opinion, that it was intended to convert this vessel from a merchant ship into a cruiser, every man who was knowingly concerned in doing so, is guilty in the contemplation of the law. It will only, then, be necessary to ascertain, how far the defendant was knowingly concerned; for, though he were concerned, if he did not act with a knowledge of the real object, he would be innocent. It lias been alleged in his defence that he was merely an interpreter; and if, in fact, CHAP. III.] UNITED STATES V. RICHARD PETERS. 697 he had appeared in that character alone, we should not have thought it a sufficient ground for conviction. But the jury will collect from the other parts of the transaction, whether this is not used as a mask to cover his efficient agency in the equipment of the vessel. He carried orders from the owner to the ship carpenter; he told the pilot boy at what time the guns should be taken on board his boat, to be carried to the ship ; the account found in his possession states charges for supplies of cannon, ball, muskets, and commissions for services; and the whole is conducted in a secret and mysterious manner, under the shade of night. Would he have acted this part as a mere interpreter? If it had been fair mercantile business, involving nothing repugnant to our laws, would it have been so much a work of darkness ? This alone casts a gloom over the transaction, that will impress every just and ingenuous mind with an idea of fraud and delinquency. If the defendant has been concerned in the offence, there is no doubt that it is effected as far as it was in his power to complete it. Tlie illegal outfit of the vessel was accomplished; and that an additional number of cannon was not sent to augment her force, was not owing to his respect to the laws, but to the vigilance of the public police. Upon the whole, the jury will consider the indictment; and give such a verdict as shall comport with evidence and law. Verdict — Guilty. UNITED STATES v. RICHAED PETERS. SrPKEME Court of the United States, 1795. (3 Dallas, 121.) Rutledge, Chief Justice: — We have consulted together on this motion ; and, though a difference of sentiment exists, a majority of the court are clearly of opinion, that the motion ought to be granted. Therefore, Let a prohibition issue. The prohibition issued, accordingly, in the following form : " United States, S.S. : The President of the United States to the honorable Richard Peters, Esquire, Judge of the District Court of the United States, in and for the Pennsylvania district: It is shown to the judges of the Supreme Court of the United States, by Samuel B. Davis, That whereas by the laws of nations, and the treaties subsisting between the United States and the Republic of France, the trial of prizes 698 BELLIGERENTS AND NEUTRALS. [PART IL taken on the liigli seas, without the territorial limits and jurisdiction of the United States, and brought within the dominions and jurisdic- tion of the said republic, for legal adjudication by vessels of war belonging to the sovereignty of the said republic, acting under the same, and of all questions incidental thereto, does of right, and exclusively, belong to the tribunals and judiciary establishments of the said republic, and to no other tribunal, or tribunals, court, or courts, whatsoever : And whereas by the said law of nations, and treaties aforesaid, the vessels of war belonging to the said French Kepublic, and the officers commanding the same, cannot, and ought not, to be arrested, seized, attached, or detained, in the ports of the United States, by process of law, at the suit or instance of individ- uals, to answer for any capture or captures, seizure or seizures, made on the high seas, and brought for legal adjudication into the ports of the French Republic, by the said vessels of war, while belonging to, and acting under the authority and in the immediate service of the said republic : And whereas by the laws and treaties aforesaid, the District Courts of the United States have not, and ought not, to entertain jurisdiction or hold plea of such captures, made as aforesaid, under the above circumstances : And whereas by the laws of nations, the vessels of war of belligerent powers, duly by them authorized, to cruise against their enemies, and to make prize of their ships and goods, may, in time of war, arrest and seize the vessels belonging to the subjects or citizens of neutral nations, and bring them into the ports of the sovereign under whose commission and authority they act, there to answer for any breaches of the laws of nations, concerning the navigation of neutral ships, in time of war ; and the said vessels of war, their commanders, officers and crews, are not amenable before the tribunals of neutral powers for their conduct therein, but are only answerable to the sovereign in whose immediate service they were, and from w bona they derived their authority: And whereas, on or before the twentieth day of May, now last past, the said Samuel B. Davis, was, and now is, a lieutenant of ships in the navy of the said French Republic, and commander of a corvette, or vessel of war, called the Cassias, then, and now, the property of the said republic, and in her immediate service ; and on the said twentieth day of May, was duly commissioned, by and under the authority of the said republic, to cruise against her enemies, and make prize of their ships (as by his commission and the certificate of the minister plenipotentiary of the said republic to the United States, to the court shown, more fully appears). Nevertheless a certain James Yard, of the city of Phila- delphia, merchant, not ignorant of the premises, but contriving and intending to disturb the peace and harmony subsisting between the CHAP. 111.] UNITED STATES V. EICHAKD PETERS. 699 United States and the French Republic, and him, the said Samuel B. Davis, "wrongfully to aggrieve and oppress, and draw to another proof, him, the said Samuel B. Davis, and the said corvette, or vessel of war, of the French Republic, the Cassius, in the port of Philadelphia, under the protection of the laws of nations, and of the faith of treaties, has, by process out of the District Court of the United States, in and for the district of Pennsylvania, attached and arrested him, the said Samuel B. Davis, and the said corvette, or vessel of war, the Cassius, before the judge of the said District Court, contrary to the said law of nations, and treaties, and against the due form of the laws of the United States, hath unjustly drawn in plea, to answer to a certain libel, by him, the said James Yard, against him, the said Samuel B, Davis, and against the said corvette, or vessel of wai*, the Cassius, her tackle, apparel, and furniture, exhibited and promoted, craftily and subtly therein alleging, articulating, and objecting, that on the said twentieth day of May, now last past, the said Samuel B. Davis, then commander of the said corvette, or vessel, the Cassius, did, forcibly, violently, and tortiously, take on the high seas, a certain schooner, or vessel, belonging to the said James Yard, called the William Lindsey, and brought her into Port de Paix (in the dominion of the French Republic), where she still remains ; and also alleging and articulating that the said corvette, or vessel called the Cassius, was originally equipped and fitted for war, in the port of Philadelphia, in the United States, and that the said Samuel B. Davis was at the time of the said capture, and now is, a citizen of the United States: With- out this, however, and the said James Yard, not in any manner alleging, or articulating, that the said capture was made within the territory, rivers, or bays, of the United States, or within a marine league of the coast thereof, or that the said corvette or vessel, the Cassius, was so fitted or equipped for war in the United States by the said French Republic, her agent, or agents, with their knowledge, or by the means, or pi-ocurement, or by the said Samuel B. Davis, or that at the time of her being so equipped, or fitted for war, in the United States (if ever there she was so in any manner fitted or equipped), she was the property of the said French Republic, or that the said Samuel B. Davis was in any manner in the said equipment, or fitting for war, concerned ; and without this, also, and the said James Yard, not in any manner alleging that the said Samuel B. Davis was retained, or engaged, in the service of the French Republic, within the territory or jurisdiction of the United States : And that the said James Yard, him, the said Samuel B. Davis, and the said corvette, or vessel of war, called the Cassius, by force of the process aforesaid, out of the said District Court, had and obtained, as aforesaid, 700 BELLIGERENTS AND NEUTRALS. [PART II. still wrongfully detains, and the said Samuel B. Davis, and the French Republic, owner of the said corvette, or vessel of war, thereupon in the said District Court to answer, and in the premises, cause to be condemned, with all his power, endeavors, and daily contrives, in contempt of the government of the United States, against the laws of nations, and the treaties Subsisting between the United States and the French Eepublic, and against the laws and customs of the United States, to the manifest violation of the law of nations and treaties, and to the manifest disturbance of the peace and harmony happily subsisting between the United States and the French Eepublic : Wherefore the said Samuel B. Davis, the aid of the said Supreme Court most respectfully requesting, has prayed remedy by a wj-it of prohibition, to be issued out of the said Supreme Court, to you to be directed, do prohibit ^^ou from holding the plea aforesaid, the premises aforesaid any wise concerning, further before you: — You, therefore, are hereby prohibited, that you no further hold the plea aforesaid, the premises aforesaid in any wise touching, before you, nor anything in the said District Court attempt, nor procure to be done, which may be in any wise to the prejudice of the said Samuel B. Davis, or the said corvette, or vessel of war, called the Cassvus ; or in contempt of the laws of the United States : And also, that from all proceedings thereon you do, without delay, release the said Samuel B. Davis, and the said corvette, or vessel of war, called the Cassius, at your peril. Witness, the honorable John Rutledge, Esquire, Chief Justice of the said Supreme Court, at Philadelphia, this twenty-fourth day of August, in the year of our Lord one thousand seven hundred and ninety- five, and of the independence of the United States, the twentieth. I. Wagner, D. C. Sup. Ct., U. S.^ * 1 On release of tlie vessel pursuant to the writ of proliibition, a new libel was imme- diately filed in tlie Circuit Court by one of tlie former plaintiffs, on the ground of illegal equipment of the vessel the year before. — Ke/land v. The Cassius, 2 Dall. 365. At the October term, 1796, tlie question arose, whether tlie Circuit Court could take original cognizance of information for forfeiture under the Act of 1794; and the court dismissed the proceedings, on tlie ground that such proceedings must be instituted in the District Court. Ketland v. The Cassius, 2 Dall. 365. No further action was taken in the courts ; and it will thus be seen that the question of international law was left undecided. The French minister, M. Adet, had dismantled the ship and had formally abandoned her to the government of the United States. The practical result was that a foreign ship of war was libelled and detained by the courts of the United States, and the Federal Executive seemed unable to prevent it. In the United States v. Guinet, ante, the accused was tried and condemned to fine and imprisonment for aiding in fitting out the Cassius in contravention of the Act of 1794. —Ed. CHAP. III.] THE "SANTISSIMA TRINIDAD." 701 THE "SANTISSIMA. TRINIDAD." SUPKEME COUKT OF THE UxiTED StATP'.S, 1822. (7 Wheaton, 283.) This was a libel filed by the consul of Spain, in the district court of Virginia, in April, 1817, against eighty-nine bales of cochineal, two bales of jalap, and one box of vanilla, originally constituting part of the cargoes of the Spanish ships /Santissima Trinidad and St. Aiider, and alleged to be unlawfully and piratically taken out of those vessels on the high seas by a squadron consisting of two armed vessels called the Independencia del Sud and the Altravida, and manned and commanded by persons assuming themselves to be citizens of the United Provinces of the Rio de la Plata. The libel was filed, in behalf of the original Spanish owners, by Don Pablo Chacon, consul of his Catholic Majesty for the port of Norfolk; and as amended, it insisted upon restitution, principally for three reasons : (1) That the commanders of the capturing vessels, the Indepen- dencia and the Altravida^ were native citizens of the United States, and were prohibited by our treaty with Spain of 1795, from taking commissions to cruise against that power. (2) That the said capt- uring vessels were owned in the United States, and were originally equipped, fitted out, armed and manned in the United States, con-- trary to law. (3) That their force and armament had been illegally augmented within the United States. The district court, upon the hearing of the cause, decreed restitu- tion to the original Spanish owners. That sentence was affirmed in the circuit court, and from the decree of the latter the cause was brought by appeal to this court.' Judgment, — Story, J. : — " Upon the argument at the bar several questions have arisen, which have been deliberately considered by the court ; and its judg- ment will now be pronounced. The first in the order, in which we think it most convenient to consider the cause, is, whether the Indepen- dencia is in point of fact a public ship, belonging to the government of Buenos Ayres. The history of this vessel, so far as is necessary for 1 Tliis statement of tlie case is substituted for that of the report and jjurts of the judgment are omitted. — Ed. 702 BELLIGERENTS AND NEUTRALS. [PART U. the disposal of this point, is briefly this : Slie was originally built and equipped at Baltimore as a privateer during the late war with Great Britain, and was then rigged as a schooner, and called the Mammoth, and cruised against the enemy. After the jjeace she was rigged as a brig, and sold by her original owners. In January, 1816, she was loaded with a cargo of munitions of war, by her new own- ers, who are inhabitants of Baltimore, and being armed with twelve guns, constituting a part of her original armament, she was de- spatched from that port, under the command of the claimant, on a voyage, ostensibly to the Northwest Coast, but in reality to Buenos Ayres. By the written instructions given to the supercargo on this voyage, he was authorized to sell the vessel to the government of Buenos Ayres, if he could obtain a suitable price. She duly arrived at Buenos Ayres, having exercised no act of hostility, but sailed under the protection of the American flag, during the voy- age. At Buenos Ayres the vessel was sold to Captain Chaytor and two other persons ; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the government of Buenos Ayres ; and Captain Chay- tor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres ; and had received a commission to command the vessel as a national ship ; and invited the crew to enlist in the service; and the greater part of them accordingly enlisted. From this period, which was in May, 1816, the public functionaries of our own and other foreign governments at that port, considered the vessel as a public ship of war, and such was her avowed character and reputation. No bill of sale of the vessel to the government of Buenos Ayres is produced, and a question has been made principally from this defect in the evidence, whether her character as a public ship is established. It is not understood that any doubt is expressed as to the genuineness of Captam Chaytor's commission, nor as to the competency of the other proofs in the cause introduced, to corroborate it. We are of opinion that they do. 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 pro- duced. Nor will the courts of a foreign 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 CHAP. III.] THE "SANTISSIMA TKINIDAD." 703 courts are concerned, imports absolute verity, and the title is not examinable. The property nuist 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 com- mission in the present case is not expressed in the most unequivocal terras ; 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 w^ell 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 government, 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. * * * " The next question growing out of this record, is whether the property in controversy was captured in violation of our neutrality, so that restitution ought, by the law of nations, to be decreed to the libellants. Two grounds are relied upon to justify restitution : Firsts that the Independencia and Altravida were originally equipped, armed, and manned as vessels of war in our ports. Secondly^ that there was an illegal augmentation of the force of the hidependencia within our ports. Are these grounds, or either of them, sustained by the evidence ? * * * " The question as to the original illegal armament and outfit of the Independencia may be dismissed in a few words. It is appar- ent, that though equipped as a vessel of war, she was sent to Buenos Ayres on a commercial adventure, contraband, indeed, bat in no shape violating our laws on our national neutrality. If captured by a Spanish ship of war during the voyage she would have been justly condemned as good prize, and for being engaged in a trafiic prohib- ited by the law of nations. But there is nothing in our laws, or in the law of nations, that forbids our citizens from sending armed ves- sels, as well as munitions of war, to foreign ports for sale. It is a commercial adventure which no nation is bound to prohibit; and which only exposes the persons engaged in it to the penalty of con- fiscation. Supposing, therefore, the voyage to have been for com- mercial purposes, and the sale at Buenos Ayres to have been a bona fide sale (and there is nothing in the evidence before us to contradict it), there is no pretence to say, that the original outfit on the voyage 704 BELLIGERENTS AND NEUTRALS. [PAET II. was illegal, or that a capture made after the sale was, for that cause alone, invalid. " The most material consideration is as to the augmentation of her force in the United States, at a subsequent period. * * * " The Court is, therefore, driven to the conclusion, that there was an illegal augmentation of the force of the Lidependencia in our ports by a substantial increase of her crew ; and this renders it wholly unnecessary to enter into an investigation of the question, whether there was not also an illegal increase of her armament. * * * This view of the question renders it unnecessary to con- sider another which has been discussed at the bar respecting what is denominated the right of expatriation. * * * " And here we are met by an argument on behalf of the claimant, that the augmentation of the force of the Lidependencia within our ports, is not an infraction of the law of nations, or a violation of our neutrality ; and that so far as it stands prohibited by our municipal laws the penalties are personal, and do not reach the case of restitu- tion of captures made in the cruise, during which such augmenta- tion has taken place. It has never been held by this court that an augmentation of force or illegal outfit affected any captures made after the original cruise was terminated. By analogy to other cases of violations of public law the offence may well be deemed to be de- posited at the termination of the voyage, and not to affect future transactions. But as to captures made during the same cruise, the doctrine of this court has long established that such illegal augmen- tation is a violation of the law of nations, as well as of our own municipal laws, and as a violation of our neutrality, by analogy to other cases, it infects the captures subsequently made with the char- acter of torts, and justifies and requires a restitution to the parties who have been injured by such misconduct. It does not lie in the mouth of wrongdoers to set up a title derived from a violation of our neutrality. " The cases in which this doctrine has been recognized and applied, have been cited at the bar, and are so numerous and so uniform, that it would be a waste of time to discuss them, or to examine the rea- soning by which they are supported. More especially as no inclina- tion exists on the part of the court to question the soundness of these decisions. If, indeed, the question were entirely new, it would de- serve very grave consideration, whether a claim founded on a viola- tion of our neutral jurisdiction could be asserted by private persons, or in any other manner than a direct intervention of the government itself. In the case of a capture made within a neutral territorial jurisdiction, it is well settled, that as between the captors and the CHAP, in.] THE "SANTISSIMA TRINIDAD." T05 captured, the question can never be litigated. It can arise only upon a claim of the neutral sovereign asserted in his own courts or the courts of the power having cognizance of the capture itself for the purposes of prize. And by analogy to this course of proceeding, the interposition of our own government might seem fit to have been re- quired before cognizance of the wrong could be taken by our courts. But the practice from the beginning in this class of causes, a period ' of nearly 30 years, has been uniformly the other way ; and it is now too late to disturb it. If any inconvenience should grow out of it, from reasons of state policy or executive discretion, it is compe- tent for Congress to apply at its pleasure the proper remedy. * * * " Upon the whole, it is the opinion of the court that the decree of the circuit court be affirmed, with costs." ^ 1 In the case of La Amistad de Rues, 1820, 5 Wlieat. .385, it was held that a civil court { of a neutral country cannot adjudicate upon the validity' of a capture jure 6e///, as between tlie captor and the prize. Its only function is to vindicate the offended sove- reignty of its own country, wlien tlie capture was made in violation of its neutrality. In the case of TAfi Nerei/da, 8 Wheaton, 108 (18i3), a Spanish ship of war was captured by the privateer Irresistible, which was fitted out, owned and commanded by American citizens, cruising under a commission from Artigas, as chief of the Oriental Kepublic of Rio de la Plata. The prize was taken to ^Margarita, an island of Venezuela, and there condemned as prize, Venezuela being an ally of the Oriental Republic. She was there commissioned as a Venezuelan privr.teer, and came to Baltimore. Here she was lil)elled on behalf of the King of Spain on the ground that the Irresistible had been illegally fitted out in an American port. A claim was set up by one Francesche, who alleged that he had bought her at the prize sale. The Supreme Court (Story, J., giving the opinion) held that this purchase was not proved, and that she was still in the hands and ownership of the owners of the Irresistible ; that their title was not im- proved by the condemnation, if valid otherwise ; and restored her to the King of Spain. Dana's Wheaton, 555, note. Otlier early cases in the United States courts on this question are : The Befsei/, Bee, 67 ; The Brothers, Bee, 76 ; The Nanci/, Bee, 73 ; The Sloop Betsej/, 1794, 3 Dallas, 6 ; The Mafjdalena, 1790 {Talbot v.Jansen,^ Dallas, 133) ; The Alfred, 1790, 3 Dallas, 307; The Phoebe Ann, 1796, 3 Dallas, 319; The Alerfa, 1815, 9 Cranch, 359; The Invincible, 1816, 1 Wheaton, 238; The Estrel'a, 1819, 4 Wheaton, 298; La Conception, 1821, 6 Wheaton, 235; Bella Corrunes, 1821, 6 Wheaton, 152; Gran Para, 1822, 7 Wheaton, 471 ; Arrogante Barcelones, 1822, 7 Wheaton, 496 ; The Fanny, 1824, 9 Wheaton, 659. For an admirable digest of these cases, the doctrines they establish and for principal cases involving a breach of our neutrality acts, as well as Great Britain's shortcomings in the civil war, see Dana's Wheaton, note 215, pp. 535-581. — Ed. 45 706 BELLIGERENTS AND NEUTRALS. [PART II. UNITED STATES v. QUIXCY. Supreme Court of the United States, 1832. (6 Peters, 445.) Mr. Justice Thompson delivered the opinion of the court: ^ " This case comes up from tlie Circuit Court of the United States for the Maryland district, on a division of opinion of the judges, upon certain instructions prayed for to the jury. "The indictment upon which the defendant was put upon his trial, contains a number of counts, to which the testimony did not apply, and which are not now drawn in question. The twelfth and thirteenth are the only counts to which the evidence applied ; and the offence charged in each of these is substantially the same ; to wit, that the said John D. Quincy, on the 31st day of December, 1828, at the district of Maryland, etc., with force and arms, was knowingly concerned in the fitting out of a certain vessel called the Bolivar, otherwise called Las Damas Argentinas, with intent that such vessel 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, to commit hostilities against the subjects of a foreign prince ; that is to saj'', against the subjects of his imperial majesty, the con- stitutional emperor and perpetual defender of Brazil, with wliora the United States then were, and still are at peace, against the form of the act of Congress in such case made and provided. " The act of Congress under which the indictment was found, 6th Vol., Laws U. S., 321, sect. 3, declares, 'that if any person shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out, or arming of any ship or vessel, with intent that such ship or vessel shall be em- ployed in the service of any foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the sub- jects, citizens or property of any foreign prince or state, or of any colony, district or people with whom the United States are at peace, etc., every person so offending, shall be deemed guilty of a high mis- demeanor, and shall be fined not more than ten thousand dollars, and imprisoned not more than three years, etc' -" The testimony being closed, several prayers, both on the part of ' Suitement of tlie case omitted. — Ed. CHAP. III.] UNITED STATES I'. QUINCY. 707 the United States and of the defendant, "^ere presented to the court for their ophiion and direction to the jury ; and upon which the opinions of the judges were opposed, and whicli will now be noticed in the order in which they were made. " On the part of the defendant the court was requested to charge the jury, that if they believe that when the Bolicar left Baltimore, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, she was not armed, or at all prepared for war, or in a condition to commit hostilities, the verdict must be for the defendant. " The prayer on the part of the United States upon this part of the case, was, in substance, that if the jury find from the evidence that the defendant wds, within the district of Maryland, knowingly concerned in the fitting out the privateer J3olivai\ with intent that she should be employed in the manner alleged in the indictment, then the defendant was guilty of the offence charged against him, although the jury should find that the equipments of the said pri- vateer were not complete within the United States, and that the cruise did not actually commence until men were recruited, and further equipments were made at the island of St. Thomas in the West Indies. " The instruction wliich ought to be given to the jury under tliese prayers involves the construction of the act of Congress, touching the extent to which the preparation of the vessel for cruis- ing or committing hostilities must be carried before she leaves the limits of the United States, in order to bring the case Avithin the act. " On the part of the defendajit it is contended, that the vessel must be fitted out and armed, if not complete, so far at least as to be prepared for war, or in a condition to commit hostilities. " We do not think this is the true construction of the act. It has been argued that, although the ofl:ence created by the act is a mis- demeanor, and there cannot, legally speaking, be principal and ac- cessory, yet the act evidently contemplates two distinct classes of offenders. The principal actors, who are directly engaged in pre- paring the vessel, and another class, who, though not the chief actors, are in some way concerned in the preparation. " The act, in this respect, may not be drawn with very great per- spicuity. But should the view taken of it by the defendant's coun- sel be deemed correct (which, however, we do not admit), it is not perceived how it can affect the present case. For the indictment, according to this construction, places the defendant in the second- arj' class of offenders. He is only charged with being knowingly concerned in the fitting out the vessel, with intent that she should be employed, etc. 708 BELLIGERENTS AND NEUTRALS. [PAUT IL "To bring liim within the words of the act, it is not necessary to charge him with being concerned in fitting out and arming. Tlie words of the act are, fitting out or arming. Either Avill constitute the offence. But it is said such fitting out must be of a vessel armed and in a condition to commit hostilities, otherwise the minor actor may be guilty when the greater would not. For, as to the lat- ter, there must be a fitting out and arming in order to bring hira within the law. If this construction of the act be well founded, the indictment ought to charge, that the defendant was concerned in fitting out the Jiolivai; being a vessel fitted out and armed, etc. But this, we apprehend, is not required. It would be going beyond the plain meaning of the words used in defining the offence. It is suf- ficient if the indictment charges the oft'ence in the words of the act ; and it cannot be necessary to prove what is not charged. It is true, that, with respect to those who have been denominated at the bar the chief actors, the law would seem to make it necessary that they should be charged with fitting out and arming. These words may require that both should concur ; and the vessel be put in a con- dition to commit hostilities, in order to bring her within the law. But an attempt to fit out and arm is made an oft'ence. This is cer- tainly doing something short of a complete fitting out and arming. To attempt to do an act does not, either in law or in common par- lance, imply a completion of the act, or any defijiite progress to- wards it. Any effort or endeavor to effect it will satisfy the terms of the law. " This varied phraseology in the law was probably employed with a view to embrace all persons of every description wlio miglit be en- gaged, directly or indirectly in preparing vessels with intent that they should be employed in committing hostilities against any powers with whom the United States were at peace. Different de- grees of criminality will necessarily attach to persons thus engaged. Hence the great latitude given to the courts in affixing the punish- ment, viz., a fine not more than ten thousand dollars and imprison- ment not more than three years. " We are, accordingly, of opinion, that it is not necessary that the jury should believe or find that the Bolivar, when she left Balti- more, and when she arrived at St. Thomas, and during the voyage from Baltimore to St. Thomas, Avas armed, or in a condition to com- mit hostilities, in order to find the defendant guilty of the offence charged in the indictment. "The first instruction, therefore, prayed on the part of the de- fendant, must be denied, and that on the part of the United States given. CHAP. III.] UNITED STATES V. QUIXCY. 700 " The second and third instructions asked on the part of the de- fendant, were: " That if the jury beheve tliat, when the Bulicar was fitted and equipped at Baltimore, the owner and equipper intended to go to the West Indies in search of funds, with which to arm and equip the said vessel and had no jyresent intention of using or employing the said vessel as a privateer, but mtended, when he equipped her, to go to the West Indies, to endeavor to raise funds to prepare her for a cruise ; then the defendant is not guilty. " Or if the jury believe that, when the Bolivar was equipped at Baltimore, and when she left the United States, the equipper had no fixed intention to employ her as a privateer, but had a wish so to employ her, the fulfilment of which wish depended on his ability to obtain funds in the West Indies, for the purpose of arming and preparing her for war ; then the defendant is not guilty. "We think these instructions ought to be given. The offence consists principally in the intention with which the preparations were made. These preparations, according to the very terms of the act, must be made within the limits of the United States ; and it is equally necessary that the intention with respect to the employ- ment of the vessel should be formed before she leaves the United States. And this nmst be a fixed intention ; not conditional or con- tingent, depending on some future arrangements. This intention is a question belonging exclusively to the jury to decide. It is the material point on which the legality or criminality of the act must turn ; and decides whether the adventure is of a commercial or warlike character. " The law does not prohibit armed vessels belonging to citizens of the United States from sailing out of our ports ; it only requires the owners to give security (as was done in the present case) that such vessels shall not be employed \>^ them to commit hostilities against foreign powers at peace with the United States. The col- lectors are not authorized to detain vessels, although manifestly built for warlike purposes, and about to depart from the United States, unless circumstances shall render it probable that such vessels are intended to be employed by the owners to commit hostilities against some foreign power, at peace with the United States. " All the latitude, therefore, necessary for commercial purposes, is given to our citizens ; and they are restrained only from such acts as are calculated to involve the country in war. " The second and third instructions, asked on the part of the United States, ought also to be given. For, if the jury shall find (as the instructions assume) that, the defendant Avas knowingly 710 BELLIGERENTS AND NEUTRALS. [PART II. concerned in fitting out the Bolivar witliin the United States, with the intent that slie should he employed as set forth in the indict- ment, that intention being defeated by what might afterwards take place in the West Indies, would not purge the offence, Avhich was previously consummated. It is not necessary that the design or in- ' tention should be carried into execution in order to constitute the offence. " The last instruction or opinion asked on the part of the de- fendant, was : "■ That, according to the evidence in the cause, the United Prov- inces of Rio de la Plata is, and was, at the time of the offence al- leged in the indictment, a government acknowledged by the United States, and thus was a state, and not a joeojij^e, within the meaning of the act of Congress, under which the defendant is indicted ; the word people in that act being intended to describe communities under an existing government, not recognized by the United States ; and that the indictment cannot be supposed on this evi- dence. " The indictment charges that the defendant was concerned in fit- ting out 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. It was in evidence, that the United Provinces of Rio de la Plata had been regularly acknowl- edged as an independent nation by the executive department of the government of the United States, before the year 1827. And, there- fore, it is argued that the Avord people is not properly applicable to that nation or power. " The objection is one purely technical, and Ave think not Avell- i founded. The word pjeopjle, as here used, is merely descriptive of ' the power in whose service the vessel was intended to be employed ; and it is one of the denominations applied by the act of Congress to a foreign power. The words are, ' in the service of any foreign prince or state ; or of any colony, district or peop>le? The applica- tion of the word p>eo2iile is rendered sufficiently certain by Avhat fol- lows under the videlicet, ' that is to say, the United Provinces of Rio de la Plata.' This particularizes that which by the word people is left too general. The descriptions are no way repugnant or in- consistent with each other, and may Avell stand together. That which comes under the videlicet, only serves to explain what is doubtful and obscure in the word people. " This instruction must therefore be denied, and the one asked on the part of the United States, viz., that the indictment is sufficient in law, must be given. " These answers must accordingly be certified to the circuit court." CHAP. III.T UNITED STATES V. THE " METEOR." 711 -■ • UNITED STATES v. THE "METEOR." United States Cikcuit Court for So. New York, 1866. (3 American Law Review, 17.3.) The Meteor was built in the United States in I860, during the war then pending between Chile and Spain, and sold to the Chilean govern- ment, without armament, and then, it was alleged, commissioned when in the United States, as a Chilean privateer. She was libelled in New York and seized January 23, 1866. Upon a hearing before Judge Betts, that learned judge held that there must be a decree condemning and forfeiting the property under seizure, in accordance with the prayer of the libel. ^ Mr. Justice Nelson : — " This is an appeal in admiralty from a decree of condemnation in a libel of information for the violation of the neutrality laws of the United States. We have examined the pleadings and proofs in the case, and have been unable to concur in the judgment of the court below, but from the pressure of other business have not found time to write out at large the grounds and reasons for the opinion arrived at. We must, therefore, for the present, be content in the statement of our conclusions in the matter. " 1. Although negotiations were commenced and carried on be- tween the owners of the Jleteor and agents of the Government of Chile, for the sale of her to the latter, with the knowledge that she would be employed against the Government of Spain, with which Chile was at war, yet these negotiations failed and came to an end from the inability of the agents to raise the amount of the purchase- money demanded ; and if the sale of the vessel, in its then condition and equipment, to the Chilean Government would have been a viola- tion of our neutrality laws, of which it is unnecessary to express any opinion, the termination of the negotiation put an end to this ground of complaint. " 2. The furnishing of the vessel with coal and provisions for a voyage to Panama, or some other port of South America, and the purpose of the owners to send her thither, in our judgment, Avas not in pursuance of an agreement or understanding with the agents of the Chilean Government, but for the purpose and design of finding a market for her, and that the owners were free to sell her on her 1 Tlie a1)ove statement of the case is taken from 3 AVharton's Digest, 561. The case is briefly reported in the American Law Keview, 401. — Ed. 712 BELLIGERENTS AND NEUTRALS. [PART II. arrival there to the Government of Chile or of Spain, or of any other Government or person with whom they might be able to negotiate a sale. • " 3. The witnesses chiefly relied on to implicate the owners in the negotiations with the agents of the Chilean Government, with a view and intent of fitting out and equipping the vessel to be employed in the war with Spain, are persons who had volunteered to negotiate on behalf of the agents with the owners in expectation of large com. missions in the event of a sale, or persons in the expectation of em. ployment in some situation in the command of the vessel, and verj- clearly manifest their disappointment and chagrin at the failure of the negotiations, and whose testimony is to be examined with con- siderable distrust and suspicion. We are not satisfied that a case is made out, upon the proofs, f)f a violation of the neutrality laws of the United States, and must, therefore, reverse the decree below, and enter a decree dismissing the libel." ^ 1 An appeal was taken by tlie government from the decision of tlie Circuit Court to tlie Supreme Court of the United States, but was not prosecuted tea hearing, being dismissed by consent, November 9, 1868. For a criticism on Judge Betts' ruling, see an article in the "North American Review" for October, 1866 (Vol. 103, p. 188). Dana says of the Practice of the United States (note to Wlieaton, p. 562): "As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. If any person does any act, or attempts to do any act, toward such preparation, with the intent that the vessel shall be eniployed in hostile operations, he is guilty, without reference to the completion of tlie preparations, or to the extent to which they have gone, and although his attempt may have resulted in no definite progress towards the completion of the preparations. The procuring of materials to be used, knowingly and with the intent, etc., is an offence. * * * " On the point of the intent, more nicety and discrimination are necessary. If the person charged has himself the control of the vessel, to put her into foreign belligerent service, the question of the intent to employ her is simj)Ie. If he has not, he is still chargeable with doing acts, or being knowingly concerned in the doing of acts, of or towards the preparation, with the intent that the vessel shall be so employed though others may control her during the preparations. But the intent must be that she shall be so employed; and the intent must be a fixed and present intent, and not a wish or desire merely that she may be. If there is a contingency, it must, to exculpate the party, be one which forms a condition precedent to the intent, and not merely a condition precedent to the employment, or a condition subsequent which may defeat the intent. Thus, if the owner of a vessel, not completely ready for liostile operations, with instructions to her commander to complete her preparation and obtain letters of marque in the port of destination, and, in case of failure in obtaining the commission and equipment, to take a cargo and return, he would doubtless be guilty; for he has entered on the execution of his purpose, and those are only the ordinary contingencies to all employments, by which they may be defeated. But the purpose to which he shall put his vessel after her arrival may CHAP. III.] THE " ALABAMA " CLAIMS AND AWARD. 713 THE "ALABAMA" CLAIMS AND AWARD, 1872. Treaty between the United States and Great Britain, Concluded May 8, 1871. Article I. — Whereas differences have arisen between the Govern- ment of the United States and the Government of her Britannic Majesty, and still exist, growing out of the acts committed by the several vessels which have given rise to the claims generically known as the " Alabama claims " : And whereas her Britannic Majesty has authorized her High Com- missioners and Plenipotentiaries to express, in a friendly spirit, the depend on circumstances so entirely contingent and fortuitous, as to relieve from the charge of a fixed intent at the time he sends lier out. " It will be seen at once, by these abstract definitions, that our rules do not interfere witli bona Jide commercial dealings in contraband of war. An American merchant may build and fully arm a vessel, and supply her with stores, and offer her for sale in our own market. If he does any acts, as an agent or servant of a belligerent, or in pursuance of an arrangement or understanding with a belligerent, that slie shall be emph)yed in hostilities when sold, he is guilty. He 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 tiian 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 intent is all. The act is open to great suspicions and abuse, and the line may often be scarcely trace- able; yet the principle is clear enough. Is the intent one to prepare an article of con- ' traband merchandise, to be sent to the market of a belligerent, subject to the chances of capture and of the market 1 Or, on the other hand, is it to fit out a vessel which i shall leave our port to cruise, immediately or ultimately, against the commerce of a friendly nation ? The latter we are bound to prevent. The former tlie belligerent must prevent. In the former case, the ship is merchandise, under bona Jide neutral flag and papers, with a port of destination, subject to search and capture as contraband merchandise by the other belligerent, or to the risks of blockade, and with no right to resist search and seizure, and liable to be treated as a pirate by any nation, if she does any act of hostility to the property of a belligerent, as much as if she did it to that of a neutral. Such a trade in contraband, a belligerent may cut off by cruising the seas and by blockading his enemy's ports. But, to protect himself against vessels sailing out of a neutral port to commit hostilities, it would be necessary for him to liover off the ports of the neutral ; and, to do that effectually, he must maintain a kind of blockade of tlie neutral coast ; which, as neutrals will not permit, they ougiit not to give occasion for." In the Tercelra Affair, 1827, it appeared that an expedition left English ports to attack tlie government of Portugal. A Brilisli squadron was despatched in pursuit, and finding the vessels of the expedition in Portuguese waters, the English captnin kept a close Avatch upon them and finally ordered them out of the neighborhood, i'or further details, see 3 Phillimore, Int. Law, 287, — Ed. 714 BELLIGERENTS AND NEUTRALS. [PART II. regret felt by her Majesty's Government for the escape, under what- ever circumstances, of the Alabama and other vessels from British ports, and for the depredations committed by those vessels : Now, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims which are not admitted by her Britannic Majesty's Govern- ment, the high contracting parties agree that all the said claims growing out of acts committed by the aforesaid vessels and generically known as the "Alabama claims," shall be referred to a tribunal of arbitration composed of five arbitrators, to be appointed in the following manner, that is to say : One shall be named by the President of the United States ; one shall be named by her Britannic Majesty ; his Majesty the King of Italy shall be requested to name one ; the President of the Swiss Confederation shall be requested to name one ; and his Majesty the Emperor of Brazil shall be requested to name one. * * * Article II. — The arbitrators shall meet at Geneva, in Switzerland, at the earliest convenient day after they shall have been named, and shall proceed impartially and carefully to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and her Britannic Majesty respectively. All questions considered by the tribunal, including the final award, shall be decided by a majority of all the arbitrators. * * * Article VI. — In deciding the matters submitted to the arbitrators they shall be governed by the following three rules, which are agreed upon by the high contracting parties, as rules to be taken as applicable to the case, and by such principles of international law, not inconsistent therewith, as the arbitrators shall determine to have been applicable to the case. " RULES. "A neutral government is bound — "First. To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace ; and also to use like diligence to pre- vent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel liaving been specially adapted, in whole or in part, within such jurisdiction, to warlike use. " Secondly. Not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men. "Thirdly. To exercise due diligence in its own ports and waters, CHAP, m] THE "ALABAMA" CLAIMS AND A^yARD. 715 and as to all jiersons within its jurisdiction, to prevent any violation of the foregoing obligation and duties. " Her Britannic Majesty has commanded her high commissioners and plenipotentiaries to declare that Her Majesty's Government can- not assent to the foregoing rules as a statement of the principles of international law which were in force at the time when the claims mentioned in Article I. arose, but that Her Majesty's Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that in deciding the questions between the two countries, arising out of those claims, the arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these rules. " And the high contracting parties agree to observe these rules as between themselves in future, and to bring them to the knowledge of other maritime powers, and to invite them to accede to them." DECISION AND AWAKD. " The tribunal havhig since fully taken into their consideration the treaty and also the cases, counter-cases, documents, evidence, and arguments, and likewise all other communications made to them by the two parties during the progress of their sittings, and having impartially and carefully examined the same, " Has arrived at the decision embodied in the present award : " Whereas, having regard to the sixth and seventh articles of the. said treaty, the arbitrators are bound under the terms of the said sixth article, ' in deciding the matters submitted to them, to be gov- erned by the three rules therein specified and by such principles of international law, not inconsistent therewith as the arbitrators shall determine to have been applicable to the case ; ' " And whereas the ' due diligence,' referred to in the first and *, third of the said rules, ought to be exercised by neutral govern- ; ments in exact proportion to the risks to which either of the bellig- | erents may be exposed, from a failure to fulfill the obligations of neutrality on their part ; " And whereas the circumstances out of which the facts consti- tuting the subject-matter of the present controversy arose were of a nature to call for the exercise on the part of Her Britannic Majesty's Government of all possible solicitude for the observance of the rights and duties involved in the proclamation of neutrality issued by Her Majesty on the 13th day of May, 18G1. "And whereas the effects of a violation of neutrality, committed 716 BELLIGERENTS AND NEUTRALS. [PART IL by means of the construction, equipment, and armament of a vessel is not clone away with by any connnission which the govern- ment of the belligerent powder, benefited by the violation of neutrality, may afterwards have granted to that vessel; and the ultimate step, by which the offense is completed, cannot be admissible as a ground for the absolution of the offender, nor can the consummation of his fraud become the means of establishing his innocence. "xVnd whereas the privilege of extra-territoriality, accorded to vessels of war, has been admitted into the law of nations, not as an absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference between different nations, and, therefore, can never be appealed to for the protection of acts done in violation of neutrality ; " And whereas the absence of a previous notice cannot be re- garded as a failure in any consideration required by the law of na- tions, in those cases in which a vessel carries with it its own con- demnation ; And wdiereas, in order to impart to any supplies of coal a charac- ter inconsistent with the second rule, prohibiting the use of neutral ports or waters, as a base of naval operations for a belligerent, it is necessary that the said supplies should be connected with special circumstances, of time, of persons, or of place, wdiich may combine to give them such character ; " And whereas, with respect to the vessel called the Alabama, it clearly results from all the facts relative to the construction of the ship, at first designated by the number ' 290,' in the port of Liver- pool, and its equipment and armament in the vicinity of Terceira, through the agency of the vessels called the Agrippina and the Bahama, dispatched from Great Britain to that end, that the British Government failed to use due diligence in the performance of its neutral obligations, and especially that it omitted, notwithstanding the warnings and official representations made by the diplomatic agents of the United States during the construction of the said number '290,' to take in due time any effective measures of preven- tion, and that those orders which it did give at last, for the deten- tion of the vessel, were issued so late that their execution was not practicable ; " And whereas, after the escape of that vessel, the measures taken for its pursuit and arrest were so imperfect as to lead to no re- sult, and therefore cannot be considered sufficient to release Great Britain from the responsibility already incurred ; " And whereas, in despite of the violations of the neutrality of CHAP, in.] THE "ALABAMA" CLAIMS AND AWARD. 717 Great Britain, committed by the '290,' this same vessel, later known as the Confederate cruiser Ahihama^ was on several occa- sions freely admitted into the ports of the colonies of Great Britain, instead of being proceeded against as it ought to have been in any and every port within British jurisdiction in which it might have 1 been found; " And whereas the Government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insuffi- ciency of the legal means of action av hich it possessed : " Four of the arbitrators for the reasons above assigned, and the fifth, for reasons separately assigned by him, are of opinion that Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first and the third of the rules, established by the sixth article of the treaty of Washington. "And W'hereas, with respect to the vessel called the Florida, it results from all the facts relative to the construction of the Oreto in the port of Liverpool, and to its issue therefrom, which facts failed to induce the authorities in Great Britain to resort to measures ade- quate to prevent the violation of the neutrality of that nation, not- withstanding the warnings and repeated representations of the agents of the United States ; that Her Majesty's government has failed to use due diligence to fulfill the duties of neutrality ; " And whereas it likewise results from all the facts relative to the stay of the Oreto at Xassau, to her issue from that port, to her en- listment of men, to her supplies, and to her armament, with the co- operation of the British vessel Prince Alfred^ at Green Cay, that there was negligence on the part of the British colonial autho- rities ; " And whereas, notwithstanding the violation of the neutrality of Great Britain, committed by the Oreto, this same vessel, later known as the Confederate cruiser Florida, was, nevertheless, on several occasions freely admitted into the ports of British colonies ; " And whereas the judicial acquittal of the Oreto at Nassau can- not relieve Great Britain from the responsibility incurred by her under the principles of international law ; nor can the fact of the entry of the Florida into the Confederate port of Mobile, and of its stay there during four months, extinguish the responsibility pre- viously to that time incurred by Great Britain ; " For these reasons the tribunal, by a majority of four voices to one, is of opinion, that Great Britain has in this case failed, by omission, to fulfill the duties prescribed in the first, in the second, and in the third, of the rules established by Article \l., uf the Treaty of Washington. 718 BELLIGERENTS AND NEUTRALS. [PART IL " And whereas, with respect to the vessel called the Shenandoah, it results from all the facts relative to the departure from London of the merchant vessel, the Sea King, and to the transformation of that ship into a Confederate cruiser under the name of the Shenan- doah, near the island of Madeira, that the Government of Her Bri- tannic Majesty is not chargeable with any failure, down to that date, in the use of due diligence to fulfill the duties of neutrality ; " But wliereas it results from all the facts connected with the stay of the Shenandoah at Melbourne, and especially with the augmentation which the British Government itself admits to have been clandestinely effected of her force, by the enlistment of men within tliat port, that there was negligence on the part of the authorities at that place ; " For these reasons the tribunal is unanimously of opinion, that Great Britain has not failed, by any act or omission, ' to fulfill any of the duties prescribed by the tliree rules of Article YI. in the Treaty of Washington, or by the principles of international law not inconsistent therewith,' in respect to the vessel called the Shenan- doah, during the period of time anterior to her entry into tlie port of Melbourne ; " And, by a majority of three to two voices, the tribunal decides that Great Britain has failed, by omission, to fulfill the duties pre- scribed by the second and third of the rules aforesaid, in the case of this same vessel, from and after her entry into Hobson's Bay, and is, therefore, responsible for all acts cjmmitted by that vessel after her departure from Melbourne, on the 18tli day of February, 1865. "And so far as relates to the vessels called the Tuscaloosa (ten- der to the Alabama), the Clarence, the Tacony, and the Archer, (ten- ders to the Florida), the tribunal is unanimously of opinion, that such tenders or auxiliary vessels, being properly regarded as acces- sories, must necessarily follow the lot of their principals, and be sub- mitted to the same decision which applies to them respectively. "And so far as relates to the vessel called Iletribution,X\\Q tri- bunal, by a majority of three to two voices, is of opinion, that Great Britain has not failed, by any act or omission, to fulfill any of the duties prescribed by the three rules of Article VL, in the Treaty of Washington, or by the principles of international law not incon- sistent therewith. "And so far as relates to the vessels called the Georgia, the Sumpter, the Naslicille, the 2\dla/iassee, and the Chickaniauga, re- spectively, the tribunal is unanimously of opinion, that Great Brit- ain lias not failed, by any act or omission, to fulfill any of the duties prescribed by the three rules of Article VI., in the Treaty of CHAP. III.] THE "ALABAMA" CLAIMS AND AWAED. 719 Washington, or by the principles of international law not inconsist- ent therewith. " And so far as relates to the vessels called the Sallie, the Jeffer- son Davis, the Music, the Boston, and the V. II. Joy respectively, the tribunal is unanimously of opinion that they ought to be ex- cluded from consideration for want of evidence. "And whereas, so far as relates to the particulars of the indemnity claimed by the United States, the costs of pursuit of the Confederate cruisers are not, in the judgment of the tribunal, properly dis- tinguishable from the general expenses of the war carried on by the United States : "The tribunal is, therefore, of ophiion, by a majority of three to two voices, that there is no ground for awarding to the United States any sum by way of indemnity under this head. " And, whereas, prospective earnings cannot properly be made the j subject of compensation, inasmuch as they depend in their nature \ upon future and uncertain contingencies : " The tribunal is unanimously of opinion that there is no ground for awarding to the United States any sum by way of in- demnity under this head. "And, whereas, in order to arrive at an equitable compensation for the damages which have been sustained, it is necessary to set aside all double claims for the same losses, and all claims for 'gros5 freights,' so far as they exceed ' net freights ' ; " And, whereas, it is just and reasonable to allow interest at a reasonable rate ; " And, whereas, in accordance with the spirit and letter of the Treaty of Washington, it is preferable to adopt the form of adjudi- cation of a sum in gross, rather than to refer the subject of compen- sation for further discussion and deliberation to a board of assessors, as provided by Article X., of the said treaty : " The tribunal, making use of the authority conferred upon it by Article YII., of the said treaty, by a majority of four voices to one, awards to the United States a sum of $15,500,000 in gold, as the in- deuuiity to be paid by Great Britain to the United States, for the satisfaction of all the claims referred to the consideration of the tribunal, conformably to the provisions contained in Article YII., of the aforesaid treaty. "And, in accordance with the terms of Article XI. of the said treaty, the tribunal declares that ' all the claims referred to in the treaty as submitted to the tribunal are hereby fully, perfectly, and finally settled.' " Furthermore, it declares that ' each and every one of the said 720 BELLIGERENTS AND NEUTRALS. [PART II. claims, whether the same may or may not have been presented to the notice of, or made, preferred, or laid before the tribunal, shall henceforth be considered and treated as finally settled, barred, and inadmissible.'" In testimony whereof this present decision and award has been made in duplicate, and signed by the arbitrators who have given their assent thereto, the whole being in exact conformity with the provisions of Article VII., of the said Treaty of Washington. Made and concluded at the Hotel de Ville of Geneva, in Switzerland, the 14th day of the month of September, in the year of our Lord one tliousand eight hundred and seventy-two.^ Charles Francis Adams, Stampflt, Frederick Sclopis, Vicomte D'Itajuba. 1 The Three Rules of the Trent;/ of Washington have been the subject of widespread interest and discussion. Tiie question was immediately raised, wliether they formed, at the time of the American civil war, or indeed since that time, a true expression of the accepted principles of International Law. The English Government, at the time of the arbitration, announced that it did not accept them " as a statement of prin- ciples of International Law which were in force at the time when the claims arose; " and the view generally held in England was that they were ex post facto rules. On the other hand, continental jurists are inclined to regard these rules as a fair statement of modern International Law upon the subject to which they apply. See an article by Calvo in the Revue de Droit International, Vol. VI pp. 453-5:j2. See a careful study by C. F. Adams, The Treaty of Washington (Lee at Appomat- tox, 1902, pp. 31-255); Foster, Am. Dip. 357-400, 423-428; Taylor, Int. Law, §§ 614- 616 ; 1 Moore, Int. Arb. 495-682, 4 id. 4057-4178. The literature on the subject is care- fully and elaborately considered in Moore's masterly account. See also the elaborate monograplis by Montague Bernard, Historical Account of the Neutrality of Great Britain during tlie American Civil War (1870) ; Caleb Gushing, The Treaty of Wash- ington (1873). For the " Alabama" Claims Courts, see 5 Moore, Int. Arb. 4639-4685. In considering this question, it should be remembered that, by the introduction of steam as the motive power of ships, and of iron and steel as the material of their con- struction, the conditions of maritime warfare have been very radically changed. What might have been a reasonable rule as applied in the time of sailing ships might now, in the age of swift ironclads, be intolerably oppressive. In tiie cases of the Santissima Trinidad, U. S. v. Qniiicy, and the Meteor, the courts were dealing with small sail- ing vessels, which had been converted into privateers, the possession of which by one or the other belligerent made very little difference in the general result of the struggle; whereas, the possession of an ironclad ship might very well turn the scale one way or the other, as indeed it did in the war between Chile and Peru, in 1880-1881. Tliis great power of inflicting injury upon one of the belligerents, it is fair to say, ought not to be permitted to neutral citizens; and the neutral nation is alone in a position to restrain them. In view of these facts it is believed that the doctrine set up by the United States Neutrality Act and by the Federal Courts, that .the "intent" of the owner or ship, buililer is the criterion by which his guilt or innocence is to be judged, is wholly inad- equate; it would not for a moment stand the test of the rule of " due diligence," as applied l)y tiie Geneva tribunal. Tiie English Foreign Enlistment Act of 1870 is perhaps the best and fairest expres- sion of the modern rule anywhere to be found in public laws. — Ed. CHAP. III.] DE WUTZ V. HENDRICKS. 721 Section 41. — Aid to Insurgents. (a) LoiDi of Money. DE ^YUTZ V. HENDRICKS. Common Pleas, 1824. (9 Moore, 586.) This was an action of trover for certain papers, and which were described in the declaration to be a power of attorney, and sundry engravings. At the trial, before Lord Chief Justice Best, at Guildhall, at the Sittings after the last Term, it appeared that the plaintiff had pro- posed to raise money by w^y of loan, to espouse the cause of the Greeks against the government of the Porte. That he stated pub- licly that he was authorized to do so, and, in consequence, applied to the defendant, a stockbroker, to negotiate the loan, who required certain securities to be left with him for that purpose ; that the plaintiff accordingly lodged with him a power of attorney, which, he stated, was signed and executed abroad by the Exarch of liavenna, authorizing him, the plaintiff, to raise money for the Greek cause ; he also requested the defendant to procure certain scrip receipts to be engraved, which he accordingly did, and which were afterwards stamped at the stamp office, as such receipts. The defendant suspect- ing the accuracy of the plaintiff's statement or autliority, the intended loan failed, and no money was raised by him. The plaintiff then claimed the power of attorney and engraved scrip receipts from the defendant, which he refused to deliver up, until the engraver's bill and other expenses had been j)aid. On their amount being tendered, the defendant claimed a commission for scrip on part of the loan, which the plaintiff also offered to pay, provided the defendant would transfer the scrip to him, on which he claimed such commission; but none was in fact ever raised, as the projected loan fell to the ground in the first instance. The plaintiff' having again formally demanded the above documents from the defendant, who refused to deliver them up, he commenced the present action. For the defendant, it was submitted, that the whole of the trans- action was a fraud on the part of the plaintiff, as he had no authority to negotiate the loan in question. And his Lordship being of opinion, 46 722 BELTJGERENTS AND NEUTRALS. [PAET 11. that a resident in this country could not enter into an engagement to raise money by way of loan, to assist subjects of a foreign state, so as to enable them to prosecute a war against a government in alliance with our own, without the license of the Crown ; the Jury accordingly found a verdict for the defendant. Lord Chief Justice Best. — "I am of opinion, that the whole of the transaction on which the plaintiff rested his claim to recover the articles in question from the defendant, was bottomed in fraud ; the Jury so found at the trial ; and I am perfectly satisfied with their verdict. " I then thought that it was contrary to the law of nations, for persons residing in this country, to enter into engagements to raise money, by way of loan, for the purpose of supporting subjects of a foreign state in arms against a government in alliance with our own ; and that no right of action could arise out of such a transac- tion ; and I consequently suggested a nonsuit; but as it was not insisted on by the defendants' counsel, I allowed the cause to pro- ceed. A case in circumstances precisely similar to the present, except that a different loan was proposed to be raised, was lately decided in the Court of Chancery in which the Lord Chancellor enter- tained the same opinion as myself, and in which he is stated to have said, that English Courts of Justice will not take notice of, or afford any assistance to persons who set about raising loans for subjects of the King of Spain, to enable them to prosecute a war against that sovereign; or, at all events that such loans could not be raised without the license of the Crown. I left the question to the Jury on the merits, and they found that the power of attorney was an abro- gated fabrication. It appeared on the face of it to have been executed in Greece, it was drawn up in the modern Greek language, and was pretended to have been sent from that country. The plaintiff, how- ever, adduced no evidence to show that it was a genuine instrument; but, on the contrary, it was proved to have been executed in London, but by whom did not appear. The other articles sought to be re- covered, and described in the declaration as engravings, were scrip receipts, which could be of no value, as the whole of the transaction to which they were intended to be applied fell to tbe ground, as it was founded and bottomed in fraud. It was proved for the defend- ant, that he was employed by the plaintiff to negotiate the loan in question ; that many articles had been written on the subject, and that placards had been stuck up in the city, stating, that the plaintiff was not authorized by the Greek government to raise any money, and that it was altogether a fraud. " I told the Jury, that, with respect to the power of attorney, the CHAP. III.] KENNETT V. CHAMBERS. 723 plaintiff could not be entitled to recover, unless he shewed that it was a genuine instrument, as it was so described in the declaration ; and that to render it valid, he should have proved that it was ex- ecuted in Greece ; but there was no evidence whatever to shew that fact ; — on the contrary, it was proved to have been concocted and executed in ]\Iincing Lane. I also told the Jury, that if the plaintiff was attempting a fraud on the public by raising money under a false pretence, and that he caused the papers in question to be delivered to the defendant in furtherance of such attempt, he could not be entitled to recover them back in this action. The Jury, under these circumstances, wei'e fully warranted in considering the transaction as fraudulent ; and I am not only satisfied with their verdict, but am decidedly of opinion that there is no ground whatever to dis- turb it. ^' The rest of the Court concurring, Rule refused." ^ KENNETT V. CHAMBERS. Supreme Court of the United States, 1852. (14 Howard, 38.) Mr. Chief Justice Taney delivered the opinion of the court :^ — This is an appeal from the decree of the District Court of the United States for the District of Texas. The appellants filed a bill in that court against the appellee, to obtain the specific execution of an agreement which is set out in full in the bill ; and which they allege was executed at the city of Cincin- nati, in the State of Ohio, on or about the 16th of September, 18.36. Some of the complainants claim as original parties to the contract, and the others as assignees of original parties, who have sold and assigned to them their interest. The contract, after stating that it was entered into on the day and year above mentioned, between General T. Jefferson Chambers, of the Texan army, of the first part, and ]\rorgan Neville and six others, who are named in the agreement, of the city of Cincinnati, of the second part, proceeds to recite the motives and inducements of the parties in the following words: — 1 For the case of Thompson v. Powles, 1828, 2 Sim. 194, ante, 37. — Ed. 2 Tlie statement of the case is omitted. — Ed. 724 BELLIGERENTS AND NEUTRALS. [PART II. " That the said party of the second part, being desirous of assisting the said General T. Jefferson Chambers, who is now engaged in rais- ing, arming, and equipping volunteers for Texas, and who is in want of means therefor; and, being extremely desirous to advance the cause of freedom and the independence of Texas, have agreed to purchase of the said T. Jetferson Chambers, of his private estate, the lands hereinafter described." And after this recital follows the agreement of Chambers, to sell and convey to them the land described in the agreement, situated in Texas, for the sum of twelve tliousand five hundred dollars, which he acknowledged that he had received in their notes, payable in equal instalments of four, six, and twelve months, and he covenanted that he had a good title to this land, and would convey it with general warranty. There are other stipulations, on the part of Chambers, to secure the title to the parties, which it is unneces- sary to state, as they are not material to the questions before the court. After setting out the contract at large, the bill avers, that the notes given, as aforesaid, were all paid; and sets forth the manner in which the complainants, who were not parties to the original contract, had acquired their interest as assignees ; and charges that, notwithstand- ing the full payment of the money, Chambers, under different pre- texts, refuses to convey the land, according to the terms of his agreement. It further states, that they are informed and believe that he re- ceived full compensation, in money, scrip, land, or other valuable property, for the supplies furnished by him, and in arming and equipping the Texan army referred to in the said contract, and which it was in part the object of the said parties of the second part to assist him to do, by the said advances made by them, as before stated, and which said advances did enable the said Chambers so to do. To this bill the respondent (Chambers) demurred, and the principal question which arises on the demurrer is, whether the contract was a legal and valid one, and such as can be enforced by either party in a court of the United States. It appears on the face of it, and by the averments of the appellants in their bill, that it was made in Cincin- nati, with a general in the Texan army, who was then engaged in raising, arming, and equipping volunteers for Texas, to carry on hos- tilities with Mexico; and that one of the intlucements of the appel- lants, in entering into this contract and advancing the money, was to assist him in accomplishing these objects. The District Court decided that the contract was illegal and void, CHAP, in.] KEXNETT V. CHAMBERS. 725 and sustained the demurrer and dismissed the bill ; and we think tliat the decision was right. The validity of this contract depends upon the relation in which this country then stood to Mexico and Texas; and the duties which these relations imposed upon the government and citizens of the United States. Texas had declared itself independent a few months previous to this agreement. But it had not been acknowledged by the United States; and the constituted authorities charged with our foreign re- lations regarded the treaties we had made with Mexico as still in full force, and obligatory upon both nations. By the treaty of limits, Texas had been admitted by our government to be a part of the jMexi- can territory; and by the first article of the treaty of amity, com- merce, and navigation, it was declared, "that there should be a firni, inviolable, and universal peace, and a true and sincere friendship be- tween the United States of America and the United ]\rexican States, in all the extent of their possessions and territories, and between their people and citizens respectively, without distinction of persons or place." These treaties, while they remained in force, were, by the Constitution of the United States, the supreme law, and binding not only upon the government, but upon every citizen. No contract could lawfully be made in violation of their provisions. Undoubtedly, when Texas had achieved her independence, no pre- vious treaty could bind this country to regard it as a part of the Mexican territory. But it belonged to the government, and not to I individual citizens, to decide when that event had taken place. And that decision, according to the laws of nations, depended upon the question whether she had or liad not a civil government in successful operation, capable of performing the duties and fulfilling the obliga- tions of an independent power. It depended upon the state of the fact, and not upon the right which was in contest between the par- ties. And the President, in his message to the Senate of Dec. 22, I806, in relation to the conflict between Mexico and Texas, which was still pending, says: "All questions relative to the government of for- eign nations, whether of the old or the new world, have been treated by the United States as questions of fact only, and our predecessors have cautiously abstained from deciding upon them until the clearest evidence was in their possession, to enable them not only to decide correctly, but to shield their decision from every unworthy imputa- tion." Senate Journal of 1836, 37, p. 54. Acting upon these principles, the independence of Texas was not acknowledged by the government of the United States until the be- ginning of ]\Iarch, 1837. Up to that time, it was regarded as a part 726 BELLIGERENTS AND NEUTRALS. [PART U. of the territory of Mexico. The treaty which admitted it to be so, was held to be still in force and binding on both parties, and every effort made by the government to fviltil its neutral obligations, and prevent our citizens from taking part in the conflict. This is evi- dent, from an official communication from the President to the Gov- ernor of Tennessee, in reply to an inquiry in relation to a requisition for militia, made by General Gaines. The despatch is dated in August, 1836; and the President uses the following language: "The obligations of our treaty with Mexico, as well as the general prin- ciples which govern our intercourse with foreign powers, require us to maintain a strict neutrality in the contest which now agitates a part of that republic. So long as Mexico fulfils her duties to us, as they are defined by the treaty, and violates none of the rights which are secured by it to our citizens, any act on the part of the govern- ment of the United States, which would tend to foster a spirit of resistance to her government and laws, whatever may be their char- acter or form, when administered within her own limits and jurisdic- tion, would be unauthorized and highly improper. Ex. Doc. 1836, 1837, Vol. 1, Doc. 2, p. 58. And on the very day on which the agreement of wliich we are speaking was made (Sept. 16, 1836), Mr. Forsyth, the Secretary of State, in a note to the Mexican minister, assured him that the gov- ernment had taken measures to secure the execution of the laws for preserving the neutrality of the United States, and that the public officers were vigilant in the discharge of that duty. Ex. Doc. Vol. 1, Doc. 2, pp. 63-64. And still later, the President, in his message to the Senate of Dec. 22, 1836, before referred to, says: "The acknowledgment of a new State as independent, and entitled to a place in the family of nations, is at all times an act of great delicacy and responsibility; but more especially so when such a State has forcibly separated itself from another, of which it formed an integral part, and which still claims dominion over it." And, after speaking of the policy which our gov- ernment had always adopted on such occasions, and the duty of main- taining the established character of the United States for fair and impartial dealing, he proceeds to express his opinion against the acknowledgment of the independence of Texas, at that time, in the following words : — "It is true, with regard to Texas, the civil authority of Mexico has been expelled, its invading army defeated, the chief of the re- public himself captured, and all present power to control the newly organized government of Texas annihilated within its confines. P>ut, on the other hand, there is, in appearance at least, an immense dis- CHAP. III.] KENNETT V. CHAMBERS. 727 parity of physical force on the side of Mexico. The Mexican repub- lic, under another executive, is rallying its forces under a new leader, and menacing a fresh invasion to recover its lost dominion. Upon the issue of this threatened invasion, the independence of Texas may be considered as suspended; and, were there nothing peculiar in the relative situation of the United States and Texas, our acknowledg- ment of its independence at such a crisis would scarcely be regarded as consistent with that prudent reserve with which we have hereto- fore held ourselves bound to treat all similar questions." The whole object of this message appears to have been to impress upon Congress the impropriety of acknowledging the independence of Texas at that time ; and the more especiall}' as the American char- acter of her population, and her known desire to become a State of this Union, might, if prematurely acknowledged, bring suspicion upon the motives by which we were governed. We have given these extracts from the public documents not only to show that, in the judgment of our government, Texas had not established its independence when this contract was made, but to show also how anxiously the constituted authorities were endeavor- ing to maintain untarnished the honor of the country, and to place it above the suspicion of taking any part in the conflict. This being the attitude in which the government stood, and this its open and avowed policy, upon what grounds can the parties to such a contract as this, come into a court of justice of the United States and ask for its specific execution? Tt was made in direct opposition to the policy of the government, to which it was the duty of every citizen to conform. And, while they saw it exerting all its power to fulfil in good faith its neutral obligations, they made themselves par- ties to the war, by furnishing means to a general of the Texan army, for the avowed purpose of aiding and assisting him in his military operations. It might indeed fairly be inferred, from the language of the con- tract and the statements in the appellants' bill, that the volunteers were to be raised, armed, and equipped within the limits of the United States. The language of the contract is: "That the said party of the second part (that is the complainants), being desirous of assisting the said General T. Jefferson Chambers, who is now engaged in raising, arming, and equipping volunteers for Texas, and is in want of means therefor." And as General Chambers was then in the United States, and was, as the contract states, actually engaged at that time in raising, arming, and equipping volunteers, and was in want of means to accomplish his object, the inference would seem to be almost irresistible that these preparations were making at or near 728 BELLIGERENTS AND NEUTRALS. [PART IL the place where the agreement was made, and that the money was advanced to enable him to raise and equip a military force in the United States. And this inference is the stronger, because no place is mentioned where these preparations are to be made, and the agree- ment contains no engagement on his part, or pro%aso on theirs, which prohibited him from using these means and making these military preparations within the limits of the United States. If this be the correct interpretation of the agreement, the contract is not only void, but the parties who advanced the money were liable to be punished in a criminal prosecution, for a violation of the neu- trality laws of the United States. And certainly, with such strong indications of a criminal intent, and without any averment in the bill from which their innocence can be inferred, a court of chancery would never lend its aid to carry the agreement into specific execution, but would leave the parties to seek their remedy at law. And this ground would of itself be sufficient to justify the decree of the District Court dismissing the bill. But the decision stands on broader and firmer ground, and this agreement canuot be sustained either at law or in equity. The ques- tion is not whether the parties to this contract violated the neutrality laws of the United States or subjected themselves to a criminal prose- cution ; but whether such a contract, made at that time, within the United States, for the purposes stated in the contract and the bill of complaint, was a legal and valid contract, and such as to entitle either party to the aid of the courts of justice of the United States to enforce its execution. The intercourse of this country with foreign nations, and its policy in regard to them, are placed by the Constitution of the United States in the hands of the government, and its decisions upon these subjects are obligatory upon every citizen of the Union. He is bound to be at war with the nation against which the war-making power has declared war, and equally bound to commit no act of hostility against a nation with which the government is in amity and friendship. This prin- ciple is universally acknowledged by the laws of nations. It lies at the foundation of all government, as there could be no social order or peaceful relations between the citizens of different countries without it. It is, however, more emphaticall}'^ true in relation to citizens of the United States. For as the sovereignty resides in the people, every citizen is a portion of it, and is himself personally bound by the laws which the representatives of the sovereignty ma}^ pass, or the treaties into which they may enter, within the scope of their dele- gated authority. And when that authority has plighted its faith to another nation that there shall be peace and friendship between the CHAP. III.] KENNETT V. CHAMBERS. 729 citizens of the two countries, every citizen of the United States is equally and personally pledged. The compact is made by the depart- ment of the government upon which he himself has agreed to confer the power. It is his own personal compact as a portion of the sover- eignty in whose behalf it is made. And he can do no act, nor enter ^ into any agreement to promote or encourage revolt or hostilities > against the territories of a country with which our government is pledged by treaty to be at peace, without a breach of his duty as a citizen, and the breach of the faith pledged to the foreign nation. And if he does so he cannot claim the aid of a court of justice to enforce it. The appellants say, in their contract, tliat they were in- duced to advance the money by the desire to promote the cause of freedom. But our own freedom cannot be preserved without obedi- ence to our own laws, nor social order preserved if the judicial branch of the government countenanced and sustained contracts made in vio- lation of the duties which the law imposes, or in contravention of the known and established policy of the political department, acting within the limits of its constitutional power. But it has been urged in the argument that Texas was in fact inde- pendent, and a sovereign state at the time of this agreement; and that the citizen of a neutral nation may lawfully lend money to one that is engaged in war, to enable it to carry on hostilities against its enemy. It is not necessary, in the case before us, to decide how far the judicial tribunals of the United States would enforce a contract like this, when two states, acknowledged to be independent, were at war, and this country neutral. It is a sufficient answer to the argument to say that the question whether Texas bad or had not at that time become an independent state, was a question for that department of our government exclusively which is charged with our foreign rela- tions. And until the period when that department recognized it as an independent state, the judicial tribunals of the country were bound to consider the old order of things as having continued, and to regard Texas as a part of the JMexcian territory. And if we undertook to inquire whether she had not in fact become an independent sovereign state before she was recognized as such by the treaty-making power, we should take upon ourselves the exercise of political authoritv, for which a judicial tribunal is wholly unfit, and which the Constitution has conferred exclusively upon another department. This is not a new question. Tt came before the court in the case of Rose V. Hhnebj, 4 Cr. 272, and again in Hoyt v. Gelston, 3 Wheat. 324. And in both of these cases the court said, that it belongs ex- clusively to governments to recognize new states in the revolutions 730 BELLIGEKENTS AND NEUTRALS. [PART 11. which may occur in tlie world; and until such recognition, either by our own government or the government to which the new state be- lono-ed courts of justice are bound to consider the ancient state of things as remaining unaltered. It was upon this ground that the Court of Common Pleas in Eng- land, in the case of De Wutz v. Hendricks, 9 Moore's C. B. Reports, 586, decided that it was contrary to the law of nations for persons residing in England to enter into engagements to raise money by way of loan for the purpose of supporting subjects of a foreign state in arms against a government in friendship with England, and that no right of action attached upon any such contract. And this decision is quoted with approbation by Chancellor Kent, in 1 Kent's Com. 116. Nor can the subsequent acknowledgment of the independence of Texas, and her admission into the Union as a sovereign State, affect the question. The agreement being illegal and absolutely void at the time it was made, it can derive no force or validity from events wiiich afterwards happened. But it is insisted, on the part of the appellants, that this contract was to be executed in Texas, and was valid by the laws of Texas, and that the District Court for that State, in a controversy between indi- viduals, was bound to administer the laws of the State, and ought therefore to have enforced this agreement. This argument is founded in part on a mistake of the fact. The contract was not only made in Cincinnati, but all the stipulations on the part of the appellants were to be performed there and not in Texas. And the advance of money which they agreed to make for military purposes was in fact made and intended to be made in Cin- cinnati, by the delivery of their promissory notes, which were ac- cepted by the appellee as payment of the money. This appears on the face of the contract. And it is this advance of money for the purposes mentioned in the agreement, in contravention of the neutral obligations and policy of the United States, that avoids the contract. The mere agreement to accept a conveyance of land lying in Texas, for a valuable consideration paid by them, would have been free from objection. But had the fact been otherwise, certainly no law of Texas then or now in force could absolve a citizen of the United States, while he continued such, from his duty to this government, nor compel a court of the United States to support a contract, no matter where made or where to be executed, if that contract was in violation of their laws, or contravened the public policy of the government, or was in conflict with subsisting treaties with a foreign nation. CHAP. III.] UNITED STATES V. TRUMBULL. 731 We therefore hold this contract to be illegal and void, and affirm the decree of the District Court. Mr. Justice Daniel and Mr. Justice Grier dissented.^ (h) Sliijis, llumtions, and other Supplies. UNITED STATES v. TRUMBULL. U. S. District Court for California, 1891. (48 Federal Reporter, 99.) Indictment of Trumbull and Burt for violation of neutrality laws. Ross, J. : — "The indictment in this case contains 11 counts, the first 4 of which, in effect, charge that on the 9th day of May, 1891, at a certain designated place in this judicial district, near the island of San Clemente, the defendants unlawfully attempted to fit out and arm, fitted out and armed, procured to be fitted out and armed, and were knowingly concerned in furnishing, fitting out, and arming, a certain steamship called the Itata, which was then and there in the posses- sion and under the control of certain citizens of the republic of Chile, known as the 'Congressional Party,' and who were then and there, in said republic, organized and banded together in great numbers in armed rebellion and attempted revolution, and carrying on war against the republic of Chile, and the government thereof, Vv'ith which the United States, then and at the time of the finding of the indict- ment were at peace, with intent that said ship should be employed in the service of the aforesaid Congressional Party, to cruise or com- mit hostilities against the then established and recognized govern- ment of Chile, with which this government then was at peace, con- trary to the provisions of section 5283 of the Revised Statutes of the United States, which section is as follows : — " ' Every person who, within the limits of the United States, fits out and arms, or attempts to fit out and arm, or procures to be fitted out and armed, or know- ingly is concerned in the furnishing, fitting out, or arming of, any vessel, with intent that such vessel shall be employed in the service of any foreign prince or state, or of any colony, district or people, to cruise or commit hostilities against the subjects, citizens, or property of any foreign prince or state, or of any col- ony, district, or people, with whom the United States are at peace, or who issues and delivers a commission within the territory or jurisdiction of the United States, for any vessel, to the intent that she shall be so employed, shall be ^ On the subject of aid to insurgents, see 1 Halleck, 84, note 2. — Ed. 732 BELLIGERE^'TS AND NEUTRALS. [PART IT. 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 vessel, her tackle, apparel, and furniture, together with all materials, arms, ammunition, and stores, which may have been procured for the building or equipment thereof , shall be forfeited, one-half to the use of the informer, and the other haK to the use of the United States.' " The next three counts of the indictment, in effect, charge that the defendants, at the same time and place, increased, milawfully procured to be increased, and were knowingly concerned in increas- ing, the force of a certain ship of war and armed steamship called Itata^ which arrived at the port of San Diego in this judicial dis- trict on the 2d day of May, 1891, and was at the time of her said ar- rival, and to and including the 9th day of May, 1891 (during which time she remained within the jurisdiction of the United States, and of this court), a ship of war in tlie service of a certain foreign people called the ' Congressional Party,' then citizens of and residing in the republic of Chile, and who were then and there banded together in large numbers, in open-armed rebellion, and attempted forcible revo- lution, and making war against, and being at war with a certain foreign state, namely, the republic of Chile, and tlie lawful govern- ment thereof, with which the United States then, and at the finding of the indictment, were at peace, by adding to the force of said armed vessel an equipment solely applicable to war, viz., by adding to her equipment 10,000 rifles, 10,000 bayonets, and 500,000 cartridges there- for, contrary to the provisions of Section 5285 of the Revised Stat- utes of the United States, which is as follows : — " ' Every person who, within the territory or jurisdiction of the United States. increases or augments, or procures to be increased or augmented, or knowingly is concerned in increasing or augmenting, the force of any ship of war. cruiser, or other armed vessel, whicli,atthe time of her arrival within tlie United States, was a ship of war, or cruiser, or armed vessel, in the service of any foreign prince or state, or of any colony, district, or people, or belonging to the subjects or citizens of any such prince or state, colony, district or people, the same being at war with any foreign prince or state, or of any colony, district, or 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 caliber, or by adding thereto any equipment solely applicable to war, shall be deemed guilty of a high misdemeanor, and shall be fined not more than one thousand dollars, and imprisoned not more than one year.' " The last four counts of the indictment, in effect, charge that the defendants, at the same time and place, began, set on foot, provided the means for, and prepaied the means for, a certain militarj' expe- ditiriii to be cari'ied on from thence against the territor}^ and domin- CHAP. III.] UNITED STATES V. TRUMBULL. 733 ions of a foreign state, namely, tlie republic of Chile, — the United States, then and there, and at the time of the finding of the indict- ment, being at peace with said republic, — contrary to the provisions of section 5286 of the Revised Statutes of the United States, which is as follows : " ' Every person who, within the territory of the United States, begins or sets on foot, or provides or prepares the means for, any military expedition or enter- prise, to be carried on from thence against the territory or dominions of any foreign prince or state, or of any colony, district, or jieople, with whom the United States are at peace, shall be deemed guilty of a high misdemeanor, and shall be fined not exceeding three thousand dollars, and imprisoned not more than three years.' " The evidence introduced by the United States in support of the indictment being concluded, the court is asked by the defendants to direct the jury to i-eturn a verdict of not guilty, on the ground that the evidence introduced on the part of the prosecution is insufficient to sustain any count of the indictment. For the purposes of the motion, every fact that the evidence tends to establish must, of course, be considered as proven. " Briefly stated, these facts are as follows : In January of this year the steamship Itata was an ordinary merchant vessel. Early in that month she was captured in the harbor of Valparaiso, Chile, by the people designated in this indictment as the ' Congressional Party,' and who were then engaged in an effort to overthrow the then estab- lished and recognized government of Chile, of which Balmaceda was the head. The Itata was by the Congressional Party put in com- mand of one of its officers, and was used in their undertaking as a transport to convey troops, provisions, and munitions of war, and also as an hospital ship, and one in which to confine prisoners. Four small cannon were also put upon her decks and she carried a jack and pennant. Some time prior to the following April the de- fendant Trumbull came to the United States as an agent of the Con- gressional Party, and about the month of April went to the city of New York, and there bought from one of the large mercantile firms of that city, dealing in such matters, 5,000 rifles and 2,000,000 car- tridges therefor, with the intention and for the purpose of sending them to the Congressional Party in Chile for use in their efforts to overthrow the Balmacedan government. The sale and purchase of the arms and ammunition were made in the usual course of trade. Trumbull caused them to be shipped by rail to San Francisco, and engaged the defendant Burt to accompany them, wdiich he did. Ar- rangements had been made by Trumbull with his principals in Chile, 734 BELLIGERENTS AND NEUTRALS. [PART II. by which they were to send a vessel to the United States to get the arms and ammunition, and convey them to Chile for the use of the Congressional Party there. The Itata was dispatched by that party for that purpose, and was accompanied as far as Cape San Lucas by the Esmeralda, a war ship then in the service of the Congressional Party. At one of the Chilean ports the Itata took on board some soldiers, with their arms, by one witness stated to be about 150, and by another to be about 12, in number. " At San Lucas the captain of the Esmeralda took command of the Itata, and the captain of the latter was left there in command of the Esmeralda. The Itata then proceeded to San Diego, really in com- mand of the Esmeralda^ s captain, but ostensibly in command of an- other, who represented to the customs oflQcers at that port that she was an ordinary merchantman, and was bound to some port on the northern coast. Before coming into the port of San Diego, or into the waters of the United States, the Itata hauled down her jack and pennant, the cannon theretofore carried on her decks were removed and stowed in her hold, as were also the arms of the soldiers she carried ; and their uniforms, as well as those of the officers, were removed, and all appeared in civilian's dress. At that port she laid in stores of coal and provisions, all of which were bought in the open market, and some of which were marked ' Esmeralda.' " Meanwhile Trumbull had chartered a schooner, called the Robert and Minnie, in San Francisco to take the arms and ammunition from there to a point in this judicial district, then expected to be near the island of Catalina, where she could meet the Itata, and deliver them on board of her to be conveyed to Chile for the purposes already stated. The schooner Robert and Minnie accordingly took on board the arms and ammunition at the port of San Francisco, and, in charge of the defendant Burt, proceeded to the neighborhood of Catalina Island, where she expected to meet the Itata. In the meantime the suspicion of some of the officers of the United States that the neu- trality laws were being violated was aroused, and the marshal of this district was directed by the attorney-general to detain the Itata, if such was found to be the case ; and, acting upon those and certain instructions from the district attorney of the judicial district, he went on board the ship at San Diego, and put a keeper in charge of lier, and then went in search of the Robert and Minnie, which he did not tind in tlie waters of the L^nited States. Communication was, however, had between the Itata and the schooner and a point near San Clemente Island was fixed upon as the place of meeting for the purpose of transferring the arms and ammunition from the schooner to the ship. Accordingly, the Itata, on the 6th of May, 1891, with- CHAP. III.] UNITED STATES V. TRUMBULL. 735 out obtaining clearance pa|)ers, and against the protest of tlie person left on board and in charge of her by the marshal, weighed anchor, and steamed out of the harbor of San Diego, with him on board, to meet the llobert and Minnie^ and receive the arms and ammunition. The marshal's keeper was, however, put ashore at Point Ballast, before leaving the harbor. While steaming out of it, one or more of the ItatcCs cannon were brought on deck, and some of the soldiers on board of her appeared in uniform. On the 9tli of May, the Itata and Robert andMbinie came together about a mile and a half south- erly of San Clemente Island, and there the arms and ammunition in question were taken from the schooner, and put on board the ship in original packages, and the latter at once left with them for Chile. " No evidence was introduced tending to show that the Congres- sional Party ever received any recognition of any character from the government of the United States until September 4th, when it was recognized as the established and only government of Chile. " But since the argument and submission of the motion, the counsel for the United States have called the attention of the court to the following facts furnished by the respective departments, to-wit : On March 4th, the secretary of the navy cabled Admiral McCann ' to proceed to Valparaiso, and observe strict neutrality, and take no part in troubles between parties further than to protect American interests.' On March 26th, the secretary of the navy cabled Admiral Brown, who had superseded Admiral McCann, 'to abstain from pro- ceedings in nature of assistance to either, that is, the Balmaceda or Congressional Party ; that the ships of the latter were not to be treated as piratical, so long as they waged war only against the Bal- maceda government.' On April 25th, Secretary of State Blaine cabled the American minister, ' You can act as mediator with Bra- zilian minister and French charge d affaires? On May 5th, Minister Eagan cabled this government, ' Government of Chile and revolu- tionists have accepted mediation of the United States, Brazil, and France most cordially ; those of England and Germany declined.' On May 7th, Acting Secretary of State Wharton acknowledged the dispatch of Minister Eagan, and ' expressed hope that through com- bined efforts of the governments in question, the strife Avhich has been going on in Chile may be speedily and happily terminated.' On May 14th Acting Secretary of State Wharton cabled Minister Eagan that ' French minister reports threats to shoot the insurgent envoys by Balmaceda,' and directed that they should have ordinary treat- ment under flag of truce. " The foregoing are the facts of the case as now presented; and the question the court is called upon to decide is whether they are suffi- 736 BELLIGERENTS AND NEUTRALS. [PAET II. cient to justify a verdict against the defendants upon any count of the indictment. The counsel for the United States concede that they are insufficient to justify a verdict against the defendants under either of the counts that are based on section 5285 of the Revised Statutes. It seems to me the same thing is equally true in respect to those counts that are based on section 5286. The very terms of that statute imply that the military expeditions or enterprises there- by prohibited are such as originate within the limits of the United States, and are to be carried on from this country. ' Every person who, within the limits or jurisdiction of the United States, begins or sets on foot, or provides or prepares the means for, any military ex- pedition or enterprises, to be carried on from thence,' — that is to say, from the United States, — is the language of the statute. "If the evidence shows that in this case there ever was any mili- tary expedition begun or set on foot, or provided or prepared for, within the sense of this statute, it was begun, set on foot, provided and prepared for in Chile, and was to be carried on from Chile, and not from the United States. But I think it perfectly clear that the sending of a ship from Chile to the United States, to take on board arms and ammunition purchased in this country, and carry them back to Chile, is not the beginning, seiting on foot, providing or pre- paring the means for any military expedition or enterprise, within the meaning of section 5286 of the Revised Statutes. "The cases of The Manj A. Hogan, 18 Fed. Rep., 529; r. S. v. Two Hundred and Fourteen Boxes of Arrns^ etc., 20 Fed. Rep., 50 ; and U. S. v. Band, 17 Fed. Rep., 142, cited by counsel for the United States in support of their position in respect to this point, do not at all support it. In each of those cases there w^as a military expedi- tion, and it was organized within, started from, and was to be car- ried on from the United States. The facts of those cases are wholly different from the facts of the present case. " There remains for consideration the four counts of the indict- ment that are based on section 528-3 of the Revised Statutes. The first of these, as has been seen, charges that the defendants, on the 9th of May last, at a certain designated place within this judicial district, unlawfully fitted out and armed a certain steamship called the Bata, which was then and there in the possession and under the control of certain citizens of the republic of Chile, known as the ' Congressional Party,' and who were then and there, in said repub- lic, organized and banded together in great numbers in armed rebel- lion and attempted revolution, and carrying on war against the republic of Chile and the government thereof, with which the United States then, and at the time of the finding of the indictment, were at CHAP. III.] UNITED STATES V. TRUMBULL, 737 peace, with intent that said ship sliould be employed in the service of tlie aforesaid Congressional Party, to cruise or commit hostilities against the then established and recognized government of Cliile, with which this government then was at peace. The second count charges that the defendants, at the same time and place, attempted to do the same thing ; the third count charges that, at the same time and place, they unlawfully procured the same thing to be done ; and the fourth, that, at the same time and place, defendants were ' un- lawfully and knowingly concerned in the furnishing, flitting out, and arming of the Itata, with intent, etc. " It is contended on behalf of the defendants that section 5283 has no application to this case, for the reason that the people designated , in the indictment as the ' Congressional Party ' do not constitute a people, within the meaning of that section. It is beyond question that the status of the people composing the Congressional Party at the time of the commission of the alleged offense, is to be regarded by the court as it was then regarded by the political or executive department of the United States. This doctrine is firmly estab- lished. Gelston v. Jloi/t, 3 Wheat., 246, 324; U. S. v. Palmer, Id., 610, 635 ; Kemiett v. Chambers, 14 How., 38 ; ^yhart. Int. Law Dig., pp. 551, 552, and cases there cited. " If the dispatches from the secretary of the navy, the secretary of state, and acting secretary of state, already referred to, are to be considered as indicating the light in which the people composing the Congressional Party of Chile were regarded by the executive depart- ment of this government prior to their recognition, on the 4th of September, the position of the United States towards them seems to have been similar to that taken by the United States towards the insurgents against Ilayti in 1869. That position was thus stated by Mr. Fish, then secretary of state, in a letter dated September 14, 1869:— " ' (1) That we do not dispute the right of the government of Hayti to treat the officers and crew of the Quaker City and Florida (vessels in the service of the insurgents against Hayti) as pirates for all intents and purposes. How they are to be regarded by their own legitimate government is a question of municipal law, into which we have no occasion, if we had the right, to enter. "'(2) That this government is not aware of any reason which would require or justify it in looking upon the vessel named in a different light from any other vessel employed in the service of the insurgents. " ' (3) That, regarding them simply as armed cruisers of the in- surgents, not yet ackjiowledged by this government to have obtained 47 738 BELLIGERENTS AND NEUTIIALS. [PAP.T TI. belligerent rights, it is competent to the United States to deny and resist the exercises by those vessels, or any other agents of the rebellion, of the privileges which attend maritime war, in respect to our citizens or their property entitled to their protection. We may i or may not, at option, as justice or policy may require, treat them as pirates in the absolute and unqualified sense, or we may, as the cir- cumstances of any actual case shall suggest, waive the extreme right, and recognize, where facts warrant it, an actual intent, on the part of the individual offenders, not to depredate in a criminal sense and for private gain, but to capture and destroy Jtire belli. It is sufficient for the present purpose, that the United States will not admit any commission or authority proceeding from rebels as a jus- tification or excuse for injury to persons or i^roperty entitled to the protection of this government. They will not tolerate the search or stopping, by cruisers in the rebel service, of vessels of the United States, nor any other act which is only privileged by recognized bel- ligerency. " ' (4) While asserting the right to capture and destroy the ves- sels in question, and others of similar character, if any aggression upon persons or property entitled to the protection of this govern- ment shall recommend such action, we cannot admit the existence of any obligation to do so in the interest of Hayti or of the general security of commerce.' 3 Whart. Int. Law Dig., pp. 465, 466. " Does section 5283 of the Revised Statutes apply to any people whom it is optional with the United States to treat as pirates ? That section is found in the chapter headed ' Neutrality,' and it was car- ried into the Revised Statutes, and was originally enacted in fur- therance of the obligations of the nation as a neutral. The very idea of neutrality imports that the neutral will treat each contend- ing party alike; that it will accord no right or privilege to one that it withholds from the other, and will withhold none from one that it accords to the other. In the case of L\ S. v. Quincy, 6 Pet., 445, the Supreme Court of the United States said that the word 'people' in the 3d section of the act of April 20, 1818 (and from that carried into the Revised Statutes as section 5283), ' is one of the denomina- tions applied by the act of Congress to a foreign power.' This can hardly mean an association of people in no Avay recognized by the United States, or by the government against which they are rebel- ling, whose rebellion has not attained the dignity of war, and who may, at the option of the United States, be treated by them as pirates. Prior to the passage of the act of April 20, 1818, the ! Supreme Court of the United States, in the case of Gelston v. Hoyt^ \ 3 Wheat., 246, speaking through Mr. Justice Story, held that sec- CHAP. III.] UNITED STATES V. TRUMBULL. 739 tion 3 of the act of 1794, prohibiting tlie fitting out any ship, etc., for the service of any foreign prince or state, to cruise against the subjects, etc., of any foreign prince or state, with wliich the United States Avere at peace, did not apply to any new government, unless it had been recognized by the United States or by the government of the country to which such new country belonged ; and that a plea which set up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad, " Congress, in passing the subsequent act of April 20, 1818, by which the provision referred to of the act of 1794 was, in substance, re- enacted, must be presumed to have known the construction that had been theretofore put by the Supreme Court upon the words ' prince or state' in the act of 1794, and with that knowledge, in passing the act of 1818, inserted in the same clause the words 'colony, district, or jteople.' " This was done, according to Dana's "Wheat. Int. Law, § 439, note 215, and Wharton's Int. Law Dig., p. 561, upon the suggestion of the Spanish minister that the South American provinces, then in revolt, and not recognized as independent, might not be included in the word ' state.' But in every one of those instances the L^nited States had acknowledged the existence of a state of war, and, as a conse- quence, the belligerent rights of the j^rovinces. The Atnbrose Lights 25 Fed. Rep., 414, and references there made. " It will be observed that the Supreme Court, in the case of Gels- ton V. Iloyt did not say that the independence of the new govern- ment must have been recognized by the L^nited States to make the statute of which it was speaking applicable. There are different kinds or degrees of recognition, but can it be properly said that, in passing an act in furtherance of the obligations of the nation as a neutral. Congress was legislating with reference to a people not in any way recognized by the government of the Ignited States, and whom it might, at its option, treat as pirates ? ' To fall within the statute,' said Judge Brow^x, in the case of Tlie Carondelet, 87 Fed. Rep., 800, ' the vessel must be intended to be employed in the service of one foreign prince, state, colony, district, or jieople, to cruise or commit hostilities against the subjects, citizens, or property of an- other, with whom the L'nited States are at peace. The L^nited States can hardly be said to be at peace, in the sense of the statute, with a faction which they are unwilling to recognize as a government ; nor could the cruising or committing of hostilities against such a mere faction well be said to be committing hostilities against the ' sub- jects, citizens, or property of a district or peoi)le, within the meaning 740 BELLIGERENTS AND KEUTRALS. [PART IL of the statute. So on the other hand, a vessel, in entering the serv- ice of the opposite faction of Hippolyte, could hardly he said to enter the service of a foreign ' prince or state, or of a colony, district or people,' unless our government had recognized Hij)po]yte's faction as at least constituting a belligerent, which it does not appear to have done.' Attorney-General Hoar, hoAvever, in a letter to Mr. Fish, secretary of state, of date December 16, 1869 (13 Op. Atty. Gen. U. S., 177), said : — " ' Undoubtedly the ordinary application of the statute [in ques- tion] is to cases where the United States intends to maintain its neutrality in wars between tAVO other nations, or where both parties to a contest have been recognized as belligerents ; that is, as having a sufficiently organized political existence to enable them to carry on war. But the statute is not confined in its terras, nor, as it seems to me, in its scope and proper effect, to such cases. Under it, any per- sons who are insurgents, or engaged in what would be regarded under our law as levying war against the sovereign power of the nation, though few in number and occupying however small a territory, might procure the fitting out and arming of vessels with intent to commit hostilities against a nation AA'ith Avhich we were at peace, and with intent that they should be employed in the service of a colony, district, or people, not waging a recognized Avar.' " The attention of Attorney-General Hoar does not appear to haA^e been attracted to the decisions of the Supreme Court and other cases above cited, nor are any authorities cited in support of the vicAvs t expressed by him. In my opinion, it is, to say the least, extremely ' doubtful AA^hether section 5283 of the Revised Statutes applies to the present case. But, assuming that it does, the evidence does not sus- tain the charges based upon it. It does not show, or tend to show, that the defendants, or either of them, attempted to do, or procured to be done, or were concerned in doing, anything that they did not in fact do. " What the evidence shows that they did do has already been stated. If none of those acts constituted the arming, fitting out, or furnishing the Itata with the intent that she should be employed to cruise or commit hostilities against the then established government of Chile, it necessarily folloAvs that the prosecution has failed to prove the case alleged against the defendants, and the motion made on their behalf should be granted. One of the counsel for the United States conceded, on the argument, that the evidence is insufficient to show that the defendants fitted out and armed the Itata, but he con- tended strenuously that it is sufficient to shoAV that they Avere know- ingly concerned m 'furnishing' her. Of course, if he is right in the CHAT, irr.] UNITED STATES V. TRUMBULL. 741 concession, it results that the first count is not established by proof ; and, since the evidence does not tend to show that the defendants, or either of them, attempted to do, or procured to be done, anything they did not in fact do, the second and third counts would also fall. If, as is thus conceded, and as seems to me to be clear, the putting on board the Zta^rt of the arms and ammunition, under the circum- -^ stances and for the purposes stated, did not constitute the fitting out \ and arming of that vessel, it is difQcult to understand how the samel acts, committed under the same circumstances and for the same pur- 1 poses, constituted the 'furnishing' of her. There is nothing in the evidence tending to show that any of the arms or ammunition were intended for use by the Itata. On the contrar}^, the whole case shows that the defendants caused them to be put on board of her with the intention that she should transport them to Chile, for the use of the insurrecting party there. " This does not constitute the fitting out, arming, or furnishing of the Itata^ with intent that she should be employed to cruise or com- mit hostilities in the service of the insurrectionary party against the then government of Chile. In principle, the case is, I think, much like that of The Florida., decided by Judge Blatchford in 1871, and reported in 4 Ben., 452. This was a suit against the Florida for an alleged forfeiture incurred under the third section of the act of April 20, 181S, now, in substance, section 5283 of the Revised Statutes. " The court said : — '"Admitting that persons acting as agents of the insurrectionary party in Cuba were the real owners of the vessel and her cargo of arms and munitions of war, and that the transaction of the borrow- ing, by Darr from Castillo, of the money wherewith the vessel and her cargo were purchased, was a sham, and that the vessel was to proceed with her cargo to Vera Cruz, and there vessel and cargo were to be transferred by Darr, their nominal owner, to persons act- ing for the insurrectionary party in Cuba, and that thence the vessel was to take the cargo to some point off the coast of Cuba, and land it on the shore by the use of rafts made out of the lumber on board, towed by the steam-launch on board, through shallow water, to the shore, and that Darr and such real owners of the vessel and cargo had an intent to do all this in fitting out the vessel, and putting her cargo on boai'd, still a violation of the third section of the act 1818 is not thereby made out. A vessel fitted out with intent to do this, is not fitted out with intent to cruise or commit hos- tilities, within the sense of that section. If so, then every vessel fitted out to run a blockade, with a cargo of munitions of war, is necessarily fitted out, within the sense of that section, to commit 742 BELLIGERENTS AND NEUTRALS. [PAET TI. hostilities against the country whose forces have instituted the blockade. * * * There is no satisfactory evidence that the vessel was furnished or fitted out or armed, or attempted to be furnished or fitted out or armed, with intent that she should be employed to cruise or commit hostilities, in the sense of the third section of the act, in the service of the insurrectionary party in Cuba, against the government of Spain. There is no evidence that she was intended to do anything more than transport her cargo to the coast of Cuba, and cause it to be landed there on rafts, by the aid of the launch on board. To do this was no violation of the third section of the act, which is the one on which the libel is founded.' " In a letter from Attorney-General Speed to Mr. Seward, then secretary of state, he said : — " ' I know of no law or regulation which forbids any person or government, whether the political designation be real or assumed, from purchasing arms from the citizens of the United States, and shipping them at the risk of the purchaser.' 11 Op. Atty.-Gen. U. S., 452. " The fact that secrecy and deception were resorted to in the pres- ent case, as was also done in the case of the Florida, cannot bring it within the purview of the statute, if not otherwise within it ; nor can the circumstance that the Itata, in leaving the port of San Diego in the manner disclosed by the evidence, violated other provisions of law. The case alleged must, of course, be proved ; otherwise the defendants are entitled to a verdict of not guilty. " Entertaining the views above expressed, it becomes unnecessary to decide what effect, if any, should otherwise l)e given in this case to the recognition by the United States, on the 4th of September, of the government established by the Congressional Party, or to deter- mine other questions raised, all of which have been elaborately and very ably argued by counsel. " The evidence introduced on behalf of the prosecution being, in my opinion, insuflftcient to warrant a conviction under either count of the indictments, the motion made on behalf of the defendants is granted, and the jury are instructed to find a verdict of not guilt3\" * 1 Affirmed by tlie Circuit Court of Appeals, May 8, 1893, 56 Fed. 505. — Ed. CHAP. III.] THE "SALVADOR." 743 THE "SALVADOK." Pkivy Council, 1870. (3 Privy Council Rep. 218.) The Proclamation of the 24th of March, 1869, stated that an in- surrection against the Government of Spain was reported to have taken place, and to be then existing in the Island of Cuba, and upon the fact of that report being well-founded, and a state of insurrec- tion actually existing in Cuba, the Proclamation against Her Maj- esty's subjects in the Bahamas enlisting or engaging in a Foreign service in aid of such insurrection was legally and j)roperly issued. All the witnesses show, and the learned Judge of the Vice- Ad- miralty Court below himself admits, that there was a very serious insurrection or revolt in the Island of Cuba against the Spanish Government. But the learned Judge, though apparently satisfied that there was a state of insurrection in Cuba, hesitates to apply the penal section of the " Foreign Enlistment Act, because he cannot find that such insurrection is in favor of any persons assuming the j)owers of Government, or pretended Government, in the Island of Cuba ; though the nature and object of the expedition for which the Salvador was equipped and fitted-out is from the evidence proved to have been in aid of this insurrection, and she, being a British vessel, was engaged in and for a military expedition, for the purpose of attacking the dominions of a friendly Power, yet the Judge of the Vice-Admiralty Court refused to declare the vessel liable to for- feiture within the meaning of the 7th section of the Act. Their Lordships' judgment was delivered by Lord Cairns : — " 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, Avith regard to the ship Salvador, and seeking her confiscation. "The section in the Foreign Enlistment Act which has to be considered is the seventh. It has frequently been remarked, that the interpretation of that section is attended with some difficulty, mainly owing to the great quantity of words whicli are used in the clause ; but endeavoring for the moment to set aside the verbiage of the section, it is obvious that, hi order to constitute an offence under it, five propositions must be established. In the first place, the ship, I which in other respects is found to be acting within the meaning of 744 BELLIGERENTS AND NEUTRALS. [PART II. the section, must be acting without the leave and license of the Sovereign of this Country. That is the first element of the charge under the section. The second is this, the ship must be equipped, furnished, fltted-out or armed, or there must be a procuring, or an attempt or endeavor to equip, furnish, fit-out, or arm the ship. The third is, that the equipping, furnishing, fitting-out, or arming of the ship must be done with the intent or in order that the ship or vessel shall be employed in the service of some ' foreign Prince, State, or Potentate, or some foreign colony, province, or part of any province or people, or of any person or persons exercising, or assuming to ex- ercise, any powers of government in or over any foreign State, colony, province, or part of any province or people.' " Then the fourth element in the section is this, there must be an intent to employ the ship in one of two capacities either ' as a trans- port or storeship, against any Prince, State, or Potentate,' or ' with intent to cruise or commit hostilities against any Prince, State, or Potentate.' 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 storeship against any Prince, State, or Potentate ; ' but it is clear, open as the words may be to criticism, that the intent is, that the ship should be employed in one of the two capacities I have mentioned, and not only so, but employed ' against,' that is in the way of aggression against, some foreign Prince, Potentate, or State. This should be done, as 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 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.' And the fifth element is, that this foreign State or Potentate, and so on, should be one with whom the Sovereign of this country should not then be at war. "Those are the five elements which go to make up the whole charge under the 7th section. " Now, with regard to the first which I have mentioned, the ab- sence of leave and licence on the part of Her Majesty, no question arises. " With regard to the second, namely, that there must be an equip- ping, furnishing, fitting-up, or arming, or a procuring, or an attempt to do so, no question can arise in this case when Ave read the evidence of Mr. Dumaresq, the Receiver- General and Treasurer of the Island, who states the condition in which he found the ship, and the prep arations made on board of her, which seem to their Lordships to CHAP. III.] THE " SALVADOR." 745 amount to a fitting-out or arming, or an attempt to do so, within the meaning of this section. The learned Judge of the Vice- Admiralty- Court seems to have entertained no doubt himself upon this part of the case. " I pass over the third element which I mentioned, for the moment, in order to say that upon the fourth and fifth heads to which I have referred there can also be no douljt 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 in- tended to be used as a transport or storeship against a Prince, State, or Potentate with whom Her Majesty was not at war. She was to be used obviously as a transport or storeship for the purpose of con- veying to Cuba men and materials ; and in that way to do tlie duty of a transport ship, and so to inflict injury upon the Spanish govei-n- ment, who, at that time were, and are now, the lawful authority having the dominion over Cuba. Here, again, no doubt was enter- tained by the learned Judge in the Court below, and no doubt could be entertained by any one who looks at the evidence of Mr, Duma- resq, to whom I have already adverted, and also the evidence of Mr. Butler, the collector of revenue, 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 prepared 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 section, and it is upon that alone that the learned Judge of the Vice- Admiralty Court entertained any doubt. " The third element is, that the ship must be employed in this way in the service of some ' foreign Prince, State, or Potentate, or of any foreign colony, province, or part of any province or people, or of any person or persons exercising or assuming to exercise any powers of Government in or over any foreign State, colony, province, or part of any province or people.' It is to be observed that this part of the ^ section is in the alternative. The ship may be employed in the 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, 746 BELLIGERENTS AND NEtJTRALS. [PART IL or a part of the province or of the people, or the whole of the prov- ince or the people acting for themselves, that is sufficient. " But by way of alternative, it is suggested that there may be a case where, although you cannot say that the province, or the people, or a part of the province or people are enii^loying the ship, there yet may be some person or persons who may be exercising, or assuming to exercise, powers of Government in the foreign colony or State, drawing the whole of the material for the hostile proceedings from abroad ; and, therefore, by way of alternative, it is stated to be suffi- cient, if you find the ship prepared or acting in the service of ' any person or persons exercising, or assuming to exercise, any powers of Government in or over any foreign State, colony, province, or part of any province or people ; ' but that alternative need not be resorted to, if you find the ship is fitted-out and armed for the purpose of being ' employed in the service of any foreign State or j)eople, or part of any province or j^eople.' " 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 assum- ing 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 section, and in disregarding the first part of the alternative. It may be (it is not necessary to decide whether it is so or not) that you could not state who were the person or persons, or that there were any person or persons exercising, or assuming to exercise, powers of Government in Cuba, in opposition to the Spanish authorities. " That may be so : their Lordships express no opinion upon that subject, but they will assume that there might be a difficulty in bringing the case within that second alternative of the section ; but their Loidships are clearly of opinion, that there is no difficulty in bringing the case under the first alternative of the section, because their Lordships find these propositions established beyond all doubt, — there was an insurrection in the Island of Cuba ; there were in- surgents who had formed themselves into a body of people acting together, undertaking and conducting hostilities ; these insurgents, beyond all doubt, formed part of the province or people of Cuba ; and beyond all doubt the ship in question was to be employed, and was employed, in connection with and in the service of this body of insurgents. CFTAP. III.] THE " SALVADOR." 'r47 " Those propositions being established, as their Lordships think they clearly are established, both by the evidence of Dumaresq and Butler, to which I have already referred, and further, by the evidence of the three witnesses, Loinaz, Wells, and Mama, their Lordships think that the requisitions of the seventh section in this respect are entirely fulfilled, and that the case is made out under this head, as it is upon all other heads of the section. " Their Lordships, therefore, will humbly recommend to 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 last, there was a decree by their Lordships for the appraise- ment and sale of the vessel. She has been sold, and the net pro- ceeds, £163, 4s. 8f?., paid into Her Majesty's Commissariat Chest in the Bahamas. The Colonial Government, it appears, have incurred expenses to the amount of £145, 5s. lOcl 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."^ 1 During the Franco-Prussian war, tlie government of tlie United States pioceeded to sell a quantity of arms and munitions vvliicli it had accumulated during the civil war, but with no intention tiiat these articles should go into the hands of either bel- ligerent. The committee reported that the sale was lawful and proper, and would ; have been so, if the sale had been made directly to one of the belligerents. See the ). Senate Report, 42d Cong., 2d sess , Rep. 183. And see House Report, 46, 42d Cong., 2J sess. Perels, Int. Seerecht, 251, says that the Government of tlie United States sold in O itober, 1S70, at public auction, 000,000 muskets, 163 carbines, 25,000 revolvers, 40,000 sabres, 20,000 horse-trappings, and 50 batteries with ammunition ; and that the e.xport from New York to Prance from September to the middle of December of that year included 378,000 muskets, 45,000,000 patronen, 55 cannon, and 2,000 pistols. 3 Wharton's Digest, p. 513. It is to be hoped that the report of the Senate committee does not e.xpress the settled law of the United States upon this subject. It confounds the rights and duties of a neutral state with those of the private citizens of a neutral state, which is a very different matter. Such a transaction, however innocent the intention, can hardly fail to raise tlie suspicion of bad faith on the part of neutral government. For it is un- doubtedly true that a war between foreign states provides just tiie opportunity for tiie sale of such articles to the best advantage. — Ed. Y48 BELLIGERENTS AND NEUTRALS. [PART II. THE ''THREE FRIENDS." Supreme Court of the United States, 1896. (166 United States, 1.) The steamer Three Friends was seized November 7, 1896, by the collector of customs for the district of St. John's, Florida, as forfeited to the United States under section 5283 of the Revised Statutes, and thereupon, November 12, was libelled on behalf of the United States in the District Court for the Southern District of Florida. Mr. Chief Justice Fuller delivered the opinion of the court. ^ We agree with the district judge that the contention that forfeiture under section 5283 depends upon the conviction of a person or persons for doing the acts denounced is untenable. The suit is a civil suit in rem for the condemnation of the vessel only, and is not a criminal prosecution. The two proceedings are wholly independent and pur- sued in different courts, and the result in each might be different. Indeed, forfeiture might be decreed if the proof showed the prohibited acts were committed though lacking as to the identity of the particular person by whom they were committed. The Palmi/ra, 12 Wheat. 1, 14 ; The Ambrose Light, 25 Fed. Rep. 408 ; The Meteor, 17 Fed. Cas. 178. The Palmyra was a case of a libel of information against the vessel to forfeit her for a piratical aggression, under certain acts of Congress which made no provision for the personal punishment of the offenders, but it was held that, even if such provision had been made, conviction would not have been necessary to the enforcement of forfeiture. And Mr. Justice Story, delivering the opinion, said: "It is well known, that at the common law, in many cases of felonies, the party forfeited his goods and chattels to the Crown. The forfeiture did not, strictly speaking, attach in rem ; but it was a part, or at least a consequence, of the judgment of conviction. It is plain from this statement, that no right to the goods and chattels of the felon could be acquired by the Crown by the mere commission of the offence ; but the right attached only by the conviction of the offender. The necessary result was, that in every case where the Crown sought to recover such goods and chat- tels, it was indispensable to establish its right by producing the record of the judgment of conviction. In the contemplation of the common law, the offender's right was not divested until the conviction. But ^ Part of the opinion dealing with questions of procedure has been omitted. — Ed. CHAP. III.] THE "THREE FRIENDS." 749 this doctrine never was applied to seizures and forfeitures, created by statute, bi rem, cognizable on the revenue side of the Exchequer. The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing ; and this whether the offence be vuilum j)rohihitvm or malum in se. The same principle applies to proceedings in rem, on seizures in the Admiralty. Many cases exist, where the forfeiture for acts done attaches solely in rem, and there is no accompanying penalty in personam. Many cases exist where there is both a forfeiture in rem and a personal penalty. But in neither class of cases has it ever been decided that the prosecutions were dependent upon each other. But the practice has been and so this court understands the law to be, that the proceeding in rem stands independent of, and wholly unaffected by, any criminal proceeding in personamP And see The Malek Adhel, 2 How. 210; United States v. The Little Charles, 1 Brock. 347. The libel alleged that the vessel was "furnished, fitted out, and armed, with intent that she should be employed in the service of a certain people, to wit. certain people then engaged in armed resistance to the government of the King of Spain, in the island of Cuba, to cruise and commit hostilities against the subjects, citizens, and property of the King of Spain, in the island of Cuba, with whom the United States are and were at that date at peace." The learned district judge held that this was insufficient under sec- tion 5233, because it was not alleged "that said vessel had been htted out with intent that she be employed in the service of a foreign prince or state, or of any colony, district, or people recognized as such by the political power of the United States." In Wihorg v. United States, 163 U. S. G32, which was an indictment under section 5286, we referred to the eleven sections from 5281 to 5291, inclusive, which constitute Title LXVII. of the Revised Statutes, and said : " The statute was undoubtedly designed in general to secure neutrality in wars between two other nations, or between contending parties recognized as belligerents, but its operation is not necessarily dependent on the existence of such state of belligerency," and the con- sideration of the present case arising under section 5283 confirms us in the view thus expressed. It is true that in giving a resume of the sections, we referred to sec- tion 5283 as dealing " with fitting out and arming vessels in this country in favor of one foreign power as against another foreign power with which we are at peace," but that was matter of general descrip- tion, and the entire scope of the section was not required to be indicated. The title is headed "Neutrality," and usually called, by way of con- 750 BELLIGERENTS AND NEUTRALS. [PART IL venience, the " Neutrality Act," as the term " Foreign Enlistment Act " is applied to the analogous British statute, but this does not operate as a restriction. Neutrality, strictly speaking, consists in abstinence from any partic- ipation in a public, private or civil war, and in impartiality of conduct toward both parties, but the maintenance unbroken of peaceful relations between two powers, when the domestic peace of one of them is dis- turbed, is not neutrality in the sense in which the word is used when the disturbance has acquired such head as to have demanded the recognition of belligerency. And, as mere matter of municipal ad- ministration, no nation can permit unauthorized acts of war within its territory in infraction of its sovereignty, while good faith towards friendly nations requires their prevention. Hence, as Mr. Attorney-General Hoar pointed out, 13 Opinions, 177, 178, though the principal object of the act was " to secure the perform- ance of the duty of the United States, under the law of nations, as a neutral nation in respect of foreign powers,'"' the act is nevertheless an act ''to punish certain offences against the United States by fines, imprisonment, and forfeitures, and the act itself defines the precise nature of those offences." These sections were brought forward from the act of April 20, 1818, 3 Stat. 447, c. 88, entitled, " An act in addition to the ' Act for the punishment of certain crimes against the United States,' and to repeal the acts tlierein mentioned," which was derived from the act of June 5, 1794, 1 Stat. 381, c. 50, entitled, " An act in addition to the ' Act for the punishment of certain crimes against the United States,' " and the act of March 3, 3817, 3 Stat. 370, c. 58, entitled, "An act more effectu- ally to preserve the neutral relations of the United States." The piracy act of March 3, 1819, 3 Stat. 510, c. 77, Eev. Stat. §§ 4293, 4294, 4295, 4296, 5368, supplemented the acts of 1817 and 1818. The act of 1794, which has been generally recognized as the first instance of municipal legislation in support of the obligations of neu- trality, and a remarkable advance in the development of international law, was recommended to Congress by President Washington in his annual address on December 3, 1793 ; was drawn by Hamilton, and passed the Senate by the casting vote of Vice-President Adams. Ann. 3d Cong. 11, 67. Its enactment grew out of the proceedings of the then French minister, which called forth President Washington's proc- lamation of neutrality in the spring of 1793. And though the law of nations had been declared by Chief Justice Jay, in his charge to the grand jury at Richmond, May 22, 1793 (Wharton's State Trials, 49, 56), and by Mr. Justice Wilson, Mr. Justice Iredell and Judge Peters, on the trial of Henfield in July of that year (Id. G6, 84), to be capable CHAP. III.] THE "THREE FRIENDS." 751 of being enforced in the courts of tlie United States criminally, as well as civilly, without further legislation, yet it was deemed advisable to pass the act in view of controversy over that position, and, moreover, in order to provide a comprehensive code in prevention of acts b}' indi- viduals within our jurisdiction inconsistent with our own authority, as well as hostile to friendly powers. Section 5283 of the Revised Statutes is as follows : ^ — By referring to section three of the act of June o, 1794, section one of the act of 1817, and section three of the act of 1818. it will be seen that the words " or of any colony, district, or people " were inserted in the original law by the act of 1817, carried forward by the act of 1818, and so into section 5283. The immediate occasion of the passage of the act of INIarch 3, 1817, appears to have been a communication, under date of December 20, 1816, from the Portuguese minister to Mr. Monroe, then Secretary of State, informing him of the fitting out of privateers at Baltimore to act against Portugal, in case it should turn out that that government was at war with the "self-styled government of Buenos Ayres," and soliciting " the proposition to Congress of such provisions of law as will prevent such attempts for the future." On December 26, 1816, President Madison sent a special message to Congress, in which he referred to the inefficacy of existing laws "to prevent violations of the obligations of the United States as a nation at peace towards bellig- erent parties and other unlawful acts on the high seas by armed vessels equipped within the waters of the United States,"' and, " with a view to maintain more effectually the respect due to the laws, to the character, and to the neutral and pacific relations of the United States," recommended further legislative provisions. This message was trans- mitted to the minister December 27, and he was promptly officially informed of the passage of the act in the succeeding month of March. Geneva Arbitration, Case of the United States, 138. In Mr. Dana's elaborate note to § 439 of his edition of Wheaton, it is said that the words "colony, district, or people " were inserted on the suggestion of the Spanish minister that the South American provinces in revolt and not recognized as independent might not be included in the word " state." Under the circumstances this act was entitled as " to pre- serve the neutral relations of the United States," while the title of the act of 1794 described it as " in addition " to the Crimes Act of April 30, 1790, 1 Stat. 112, c. 9, and the act of 1818 was entitled in the same way. But there is nothing in all this to indicate that the words "colony, district, or people " had reference solely to communities whose belligerency had been recognized, and the history of the times, an 1 U. S. V. Trumbull, ante, p. 731. — Ed. 752 BELLIGERENTS AND NEUTEALS. [PART IL interesting review of whicli has been furnished us by the industry of counsel, does not sustain the view that insurgent districts or bodies, unrecognized as belligerents, were not intended to be embraced. On the contrary, the reasonable conclusion is that the insertion of the words " district or people " should be attributed to the intention to include such bodies, as, for instance, the so-called Oriental Kepublic of Artigas, and the governments of Petion and Christophe, whose atti- tude had been passed on by the courts of jSTew York more than a year before in Gelston v. Hoyty 13 Johns. 141, 561, which was then pending in this court on writ of error. There was no reason why they should not have been included, and it is to the extended enumeration as cover- ing revolutionary bodies laying- claim to rights of sovereignty, whether recognized or unrecognized, that Chief Justice Marshall manifestly referred in saying, in The Gran Para, T Wheat. 471, 489, that the act of 1817 " adapts the previous laws to the actual situation of the world." • At all events. Congress imposed no limitation on the words " colony, ' district, or people," by requiring political recognition. Of course a political community whose independence has been recog- nized is a '• state " under the act ; and, if a body embarked in a revolu- tionary political movement, whose independence has not been, but whose belligerency has been, recognized, is also embraced by that term, then the words " colony, district, or people," instead of being limited to a political community which has been recognized as a belligerent, must necessarily be held applicable to a body of insurgents associated together in a common political enterprise and carrying on hostilities against the parent country, in the effort to achieve independence, although recognition of belligerency has not been accorded. And as agreeably to the principles of international law and the reason of the thing, the recognition of belligerency, while not confer- ring all the rights of an independent state, concedes to the government recognized the rights, and imposes upon it the obligations, of an inde- pendent state in matters relating to the war being waged, no adequate ground is perceived for holding that acts in aid of such a government are not in aid of a state in the sense of the statute. Contemporaneous decisions are not to the contrary, though they throw no special light upon the precise question. Gelston V. Hoijt, 3 Wheat. 246, decided at February term, 1818 (and below January and February, 1816), was an action of trespass against the collector and surveyor of the port of New York for seizing tlie sliip American Earjle, her tackle, ap])arel, etc. The seizure was made July 10, 1810, by order of President Madison under section three of the a(;t of 1794, corresponding to section 5283. The ship was intended for tlie service of Petion against Christt)phe, who had divided the island of CHAP. IIL] the " THREE FRIENDS." 753 Hayti between them and were engaged in a bloody contest, but whose belligerency had not been recognized. It was held that tlie service of "any foreign prince or state" imported a prince or state which had been recognized by the gov'^ernment, and as there was no recognition in any manner, the question whether the recognition of the belligerency of a de facto sovereignty would bring it within those words, did not arise. The case of The Estrella, 4 Wheat. 298, involved the capture of a Venezuelan privateer on April 24, 1817. There was a recapture by an American vessel, and the prize thus came before the court at New Orleans for adjudication. The privateer was found to have a regular commission from Bolivar, issued as early as 1816, but it had violated section two of the act of 1794, which is the same as section two of the act of 1818, omitting the words "colony, district, or people" (and is now section 5282 of the Revised Statutes), by enlisting men at New Orleans, provided Venezuela was a state within the meaning of that act. The decision proceeded on the ground that Venezuela was to be so regarded on the theory that recognition of belligerency made the belligerent to that intent a state. In The Nueva Anna and Liehre, 6 Wheat. 193, the record of a prize court at "Galveztown," constituted under the authority of the "Mexican Republic," was offered in proof, and this court refused to recognize the belligerent right claimed, because our government had not acknowledged " the existence of any Mexican republic or state at war witli Spain ; " and in The Gran Para, 7 Wheat. 471, Chief Justice Marshall referred to Buenos Ayres as a state within the meaning of the act of 1794. Even if the word " state" as previously employed admitted of a less liberal signification, why should the meaning of the words " colony, district, or people " be confined only to parties recognized as belligerent ? Neither of these words is used as equivalent to the word " state,*' for they were added to enlarge the scope of a statute which already con- tained that word. The statute does not say foreign colony, district, or people, nor was it necessary, for the reference is to that which is part of the dominion of a foreign prince or state, though acting in hostility to such prince or state. Nor are the words apt if confined to a bellig- erent. As argued by counsel for the government, an insurgent colony under the act is the same before as after the recognition of belligerency, as shown by the instance of the colonies of Buenos Ayres and Para- guay, the belligerency of one having been recognized but not of the other, while the statute was plainly applicable to both. Nor is district an appropriate designation of a recognized power de facto, since such a power would represent not the territory actually held but the territory 48 754 BELLIGERENTS AND NEUTRALS. [PART II. covered by the claim of sovereignty. And the word " people," when not used as the equivalent of state or nation, must apply to a body of persons less than a state or nation, and this meaning would be satisfied by considering it as applicable to any consolidated political body. In United States v. Quincy, 6 Pet. 445, 467, an indictment under the third section of the act of 1818, the court disposed of the following, among other points, thus : " The last instruction or opinion asked on the part of the defendant was : That according to the evidence in the cause, the United Provinces of Rio de la Plata is, and was at the time of the offence alleged in the indictment, a government acknowledged by the United States, and thus was a 'state ' and not a ' people ' within ,the meaning of the act of Congress under which the defendant is in- dicted ; the word 'people' in that act being intended to describe com- munities under an existing government not recognized by the United States ; and that the indictment therefore cannot be supported on this evidence. " The indictment charges that the defendant was concerned in fitting out 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 Pro- vinces of Rio de la Plata. It was in evidence, that the United Provinces of Rio de la Plata had been regularly acknowledged as an independent nation by the executive department of the government of the United States, before the year 1827. And therefore it is argued that the word ' people ' is not properly applicable to that nation or power. " The objection is one purely technical, and we think not well founded. The word ' people,' as here used, is merely descriptive of the power in whose service the vessel was intended to be employed; and it is one of the denominations applied by the act of Congress to a foreign power. The words are, ' in the service of any foreign prince or state, or of any colony, district, or people.' The application of the word ' people ' is rendered sufficiently certain by what follows under the videlicet, ' that is to say, the United Provinces of Rio de la Plata.' This particularizes that which by the word 'people ' is left too general. The descriptions are no way repugnant or inconsistent with each other, and may well stand together. That which comes under the videlicet, only serves to explain what is doubtful and obscure in the word ' people.' " All that was decided was that any obscurity in the word " people " as applied to a recognized government was cured by the videlicet. Neshitt V. Lushington, 4 T. R. 783, was an action on a policy of in- surance in the usual form, and among the perils insured against were "pirates, rovers, thieves," and " arrests, restraints, and detainments of CHAP. III.] THE "THREE FRIENDS." 755 all kings, princes, and people, of what nation, condition, or quality soever." The vessel with a cargo of corn was driven into a port and was seized by a mob who assumed the government of her and forced the captain to sell the corn at a low price. It was ruled that this was a loss by pirates, and the maxim noscitur a sociis was applied by Lord Kenyon and ^Iv. Justice BuUer. Mr. Justice Buller said: " 'People' means ' the supreme power ; ' * the power of the country,' whatever it may be. This appears clear from another part of the policy ; for where the underwriters insure against the wrongful acts of individuals, they describe them by the names of ' pirates, rogues, thieves ; ' then having stated all the individual persons^ against whose acts they engage, they mention other risks, those occasioned by the acts of 'kings, princes, and people of what nation, condition, or quality soever.' Those words therefore must apply to ' nations ' in their collective capacity." As remarked in the brief of INlessrs. Richard H. Dana, Jr., and Horace Gray, Jr., filed by Mr. Cashing in Mauran v. Insurance Co., 6 Wall. 1, the words were "doubtless originally inserted with the view of enumerating all possible forms of government, monarchical, aristo- cratical, and democratic." The British Foreign Enlistment Act, 59 Geo. III. c. 69, was bottomed on the act of 1818, and the seventh section, the opening portion of which corresponded to the third section of that act. Its terms were, however, considerably broader and left less to construction. But we think the words "colony, district, or peo^jle " must be treated as equally comprehensive in their bearing here. In the case of The Salvador, L. R. 3 P. C. 218, the Salvador had been seized under warrant of the governor of the Bahama Islands and proceeded against in the Vice-Admiralty Court there for breach of that section, and was, upon the hearing of the cause, ordered to be restored, the court not being satisfied that the vessel was engaged, within the meaning of the section, in aiding parties in insurrection against a foreign government, as such parties did not assume to exercise the powers of government over any portion of the territory of such govern- ment. This decision was overruled on appeal by the Judicial Com- mittee of the Priv^y Council, and Lord Cairns, delivering the opinion, said : " It is to be observed that this part of the section is in the alter- native. 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 peo- ple, or the whole of the province or the people acting for themselves, that is sufficient. But by way of alternative it is suggested that there 756 BELLIGERENTS AND NEUTRALS. [PART II. may be a case where, although you cannot say that the province, or the people, or a part of the province or people are employing the ship, there yet may be some person or persons who may be exercising, or assuming to exercise, powers of government in the foreign colony or state, drawing the whole of the material aid for the hostile proceed- ings from abroad ; and, therefore, by way of alternative, it is stated to be sufficient, if you find the ship prepared or acting in the service of ' any person or persons exercising, or assuming to exercise, any powers of government in or over any foreign state, colony, province, or part of any province or people ; ' but that alternative need not be resorted to, if you find the ship is fitted out and armed for the purpose of being ' employed in the service of any foreign state or people, or part of any province or people/ * * * "It may be (it is not necessary to decide whether it is or not) that you could not state who were the person or persons, or that there were any person or persons exercising, or assuming to exercise, powers of government in Cuba, in opposition to the Spanish authorities. That may be so; their lordships express no opinion upon that subject, but they will assume that there might be a difficulty in bringing the case within that second alternative of the section, but their lordships are clearly of opinion that there is no difficulty in bringing the case under the first alternative of the section, 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 them- selves into a body of people acting together, undertakiug and conduct- ing hostilities; these insurgents, beyond all doubt, formed part of the province or people of Cuba; and beyond all doubt the ship in question Avas to be employed, and was employed, in connection with and in the service of this body of insurgents." We regard these observations as entirely apposite, and while the word " people " may mean the entire body of the inhabitants of a state ; or the state or nation collectively in its political capacity ; or the ruling power of the country ; its meaning in this branch of the section, taken in connection with the words " colony " and " district," covers in our judgment any insurgent or insurrectionary "body of people act- ing together, undertaking and conducting hostilities," although its belligerency has not been recognized. Nor is this view otherwise than confirmed by the use made of the same words in the succeeding part of the sentence, for they are there employed in another connection, that is, in relation to the cruising, or the commission of hostilities, "against the subjects, citizens, or property of any foreign prince or state, or of any colony, district, or peo])le, with whom the United States are at peace ; " and, as thus used, are affected by obviously different considera- CHAP. III.] THE " THREE FRIENDS." 757 tions. If the necessity of recognition in respect of the objects of hos- tilities, by sea or hind, were conceded, that woukl not involve the concession of such necessity in respect of those for whose service the vessel is fitted out. Any other conclusion rests on the unreasonable assumption that the act is to remain ineffectual unless the government incurs the restraints and liabilities incident to an acknowledgment of belligerency. On the one hand, pecuniary demands, reprisals, or even war, may be the consequence of failure in the performance of obligations towards a friendly power, while on the other, the recognition of belligerency involves the rights of blockade, visitation, search, and seizure of con- traband articles on the high seas, and abandonment of claims for repa- ration on account of damages suffered by our citizens from the prevalence of warfare. No intention to circumscribe the means of avoiding the one by im- posing as a condition the acceptance of the contingencies of the other can be imputed. Belligerency is recognized when a political struggle has attained a certain magnitude and affects the interests of the recognizing power; and in the instance of maritime operations, recognition may be com- pelled, or the vessels of the insurgents, if molesting third parties, may be pursued as pirates. The Ambrose L'lgld, 25 Fed. Rep. 408; 3 Whart. Dig. Int. Law, § 381 ; and authorities cited.^ 1 Treat, J. (in U. S. v. One Hundred Barrels. 1862, 27 Fed. Cas. 292, 297), said in speaking of results flowing from recognition of belligerency of Southern States : " Tiie position of foreign nations with respect to this insurrection * * * does not determine its status in American courts. The latter follow excl;isively the decision of the political department of the United States Government on that question. Even if other nations had recognized the so-called Confederate Government as an independent power, their recognition would bind themselves and their subjects alone — not the United States. Those foreign nations which have recognized a state of belligerency, and assumed the position of neutrals, estop their subjects from disputing the lawful- ness of captures on the high seas according to tlie laws of maritime warfare. The ships and cargoes of their subjects are to be judged accordingly. But rebel property thus captured is amenable to municipal authority. * * * In the adjudication of all such questions arising here, the United States statutes would furnish the rules of decision. In other words, as to all foreign nations, the United States Government is absolutely sovereign within its own territorial limits, and over its own subjects. Its internal constitution is a subject with which foreign powers have no right to inter- meddle. The equality and independence of nations could not otherwise exist. How- ever much the great jiowers of Europe have, in time past, violated that rule, thej' have 80 far recognized its riglitfulness, as to offer always in excuse for their violations of it, some real or supposed emergency, which they claimed worked a legitimate exception to its otherwise universal application — thus doing homage to the principle even when practically assailing it." Belligerency is a fact; when this fact exists, it not only may but should be 758 BELLIGERENTS AND NEUTRALS. [PART II. But it belongs to the political department to determine when bellig- erency shall be recognized, and its action must be accepted according to the terms and intention expressed. Tlie distinction between recognition of belligerency and recognition of a condition of political revolt, between recognition of the existence of war in a material sense and of war in a legal sense, is sharply illus- trated by the case before us. For here the political department has not recognized the existence of a de facto belligerent power engaged in 1 hostility with Spain, but has recognized the existence of insurrectionary ' warfare prevailing before, at the time and since this forfeiture is i alleged to have been incurred. On June 12, J895, a formal proclamation was issued by the Presi- dent and countersigned by the Secretary of State, informing the people of the United States that the island of Cuba was " the seat of serious civil disturbances accompanied by armed resistance to the authority of the established government of Spain, a power with which recognizee^. To " recognize " tliat which does not exist, is practically speaking to lielp to create it, and bring it into existence. Such action would be, to put it mild!}', the manifestation of an unfriendly feeling which amounts to little less than intervention. As to the exact period when recognition of belligerency is permissible, see Presi- dent Grant's Seventh Annual Message of Dec. 7, 1875 (7 Richardson's Messages & Papers, 33G-;140), refusing to recognize the " existence of war " in Cuba. "Unless 1 justified by necessity," he says, "it is always, and justly, regarded as an unfriendly I act and a gratuitous demonstration of moral support to the rebellion. It is necessary, and it is required, when tlie interests and rights of another government or of its people are so far affected by a pending civil conflic^t as to require a definition of its relations to the parties thereto. But this conflict must be one which will be recognized in the sense of international law as war. Belligerence, too, is a fact, the mere existence of contending armed bodies and their occasional conflicts do not constitute war in the sense referred to. * * * Such recognition entails upon the country according the rights which flow from it difficult and complicated duties, and requires tlie exaction from the contending parties of the strict observance of their rights and obligations. It confers tlie right of search upon the liigh seas by vessels of both parties; it would subject the carrying of arms and munitions of war, which now may be freely transported, freely and without interruption, in tlie vessels of the United States to detention and possible seizure; it would give rise to countless vexatious questions, would release the parent government from responsibility for acts done by the insurgents, and would invest Spain with the right to exercise the supervision recognized by our treaty of 1795 over our commerce on the high seas, a very large part of which, in its traffic between the Atlantic and the Gulf States and between all of them and the States on the Pacific, passes through tiie waters wliich wash the shores of Cuba." It will not be questioned that General Grant knew what war really was ; his statement of the rights flowing from it is equally clear, concise, and correct. It will be remembered that the late President McKinloy quoted this passage at length in his first Annual Message, December 6, 1807(10 Richardson, id. 132-133). Reference should be made to Dana's note 15 to p. 34 of his edition of Wheaton. It is not too much to say that this foot-note states tl e doctrine of international law on this vexed Hubjt'ct in a way which bids fair to render it a classic. — Ed. CHAP, in.] THE " THREE FRIENDS." 759 the United States are and desire to remain on terms of peace and amity ;" declaring that "the laws of the United States proliibit their citizens, as well as all others being within and subject to their juris- diction, from taking part in such disturbances adversely to such estab- lished government, by accepting or exercising commissions for war-like service against it, by enlistment or procuring others to enlist for such service, by fitting out, or arming, or procuring to be fitted out and armed ships of war for such service, by augmenting the force of any ship of war engaged in such service and arriving in a port of the United States, and by setting on foot or providing or preparing the means for military enterprises to be carried on from the United States against the territory of such government ; " and admonishing all such citizens and other persons to abstain from any violation of these laws. In his annual message of December 2, 1895, the President said : " Cuba is again gravely disturbed. An insurrection, in some respects more active than the last preceding revolt, which continued from 1868 to 1878, now exists in a large part of the eastern interior of the island, menacing even some populations of the coast. Besides deranging of the commercial exchanges of the island, of which our country takes the predominant share, this flagrant condition of hostilities, by arous- ing sentimental sympathy and inciting adventurous support among our people, has entailed earnest effort on the part of this government to enforce obedience to our neutrality laws, and to prevent the terri- tory of the United States from being abused as a vantage ground from which to aid those in arms against Spanish sovereignty. " Whatever may be the traditional sympathy of our countrymen as individuals with a people who seem to be struggling for larger auton- omy and greater freedom, deepened as such sympathy naturally must be in behalf of our neiglibors, yet the plain duty of their government is to observe in good faith the recognized obligations of international relationship. The performance of this duty should not be made more difficult by a disregard on the part of our citizens of the obligations growing out of their allegiance to their country, which should restrain them from violating as individuals the neutrality which the nation of which they are members is bound to observe in its relations to friendly sovereign states. Though neither the warmth of our people's sym- pathy with the Cuban insurgents, nor our loss and material damage consequent upon the futile endeavors thus far made to restore peace and order, nor any shock our humane sensibilities may have received from the cruelties which appear to especially characterize this sangui- nary and fiercely conducted war, have in the least shaken the determi- nation of the government to lionestly fulfil every international obligation, 760 BELLIGERENTS AND NEUTRALS. [PART II. yet it is to be earnestly hoped, on every ground, that the devasta- tion of armed conflict may speedily be stayed, and order and quiet re- stored to the distracted island, bringing in their train the activity and thrift of peaceful pursuits." July 27, 1896, a further proclamation was promulgated, and in the annual message of December 7, 1896, the President called attention to the fact that "the insurrection in Cuba still continues with all its per- plexities," and gave an extended review of the situation. We are thus judicially informed of the existence of an actual con- flict of arms in resistance of the authority of a government with which the United States are on terms of peace and amity, although acknowl- edgment of the insurgents as belligerents by the political depart- ment has not taken place ; and it cannot be doubted that, this being so, the act in question is applicable. We see no justification for importing into section 5283 words which it does not contain and which would make its operation depend upon the recognition of belligerency; and while the libel might have been drawn Avith somewhat greater precision, we are of opinion that it should not have been dismissed. Decree reversed. Skction 42. — Contraband of War. THE '•PETERHOFF." Supreme Court of the United States, 1866. (5 Wallace, 28, 58.) Mr. Chief Justice Chase: ^ — "The classification of goods as contraband or not contraband has much perplexed text-writers and jurists. A strictly accurate and satisfactory classification is perhaps impracticable ; but that which is best supported by American and English decisions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured and primarily and ordinarily used for military purposes in time of war; the second, of articles which may be and are used for purjDoses of war or peace, according to cir- cumstances ; and the third, of articles exclusively used for peaceful purposes. " Merchandise of the first class, destined to a belligerent country ^ Facts omitted and only tliat part of the opinion is given relating to contraband and its classification. — Ed. CHAP. III.] THE " PETERHOFF." 7G1 or places occupied by the army or navy of a belligerent, is always contraband; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent ; while merchandise of the third class is not contraband at all, though liable to seizure and condemnation for violation of blockade or siege. " A considerable portion of the cargo of the Peterhoff was of the third class, and need not be further referred to. " A large portion, perhaps, was of the second class, but is not proved, as we think, to have been actually destined to belligerent use, and cannot therefore be treated as contraband. Another por- tion was, in our judgment, of the first class, or, if of the second, destined directly to the rebel military service. This portion of the cargo consisted of the cases of artillery harness, and of articles de- scribed in the invoices as ' men's army bluchers,' ' artillery boots,' and 'government regulation gray blankets.' These goods come fairly under the description of goods primarily and ordinarily used for military purposes in time of war. They make part of the neces- sary equipment of an army. " It is true that even these goods, if really intended for sale in the market of Matamoras, would be free of liability; for contraband may be transported by neutrals to a neutral port, if intended to make part of its general stock in trade. But there is nothing in the case which tends to convince us that such was their real destina- tion, v/hile all the circumstances indicate that these articles, at least, were destined for the use of the reliel forces then occupymg Brownsville, and other places in the vicinity. "And contraband merchandise is subject to a different rule in re- spect to ulterior destination than that which applies to merchandise not contraband. The latter is liable to capture only when a viola- tion of blockade is intended ; the former when destined to the hostile country, or to the actual military or naval use of the enemy, whether blockaded or not. "The trade of neutrals with belligerents in articles not contra- band is absolutely free, unless interrupted by blockade ; the convey- ance by neutrals to belligerents of contraband and articles is always unlawful, and such articles may always be seized during transit by sea. Hence, while articles, not contraband, might be sent to Mata- moras and beyond to the rebel region, where the communications were not interrupted by blockade, articles of a contraband char- acter, destined in fact to a state in rebellion, or for the use of the rebel military forces, were liable to capture, thougli primarily des- tined to Matamoras. 7G2 BELLIGERENTS AND NEUTRALS. [PART II. "We are obliged to conclude that the portion of the cargo which we have characterized as contraband must be condemned. " And it is an established rule that the part of the cargo belonging to the same owner as the contraband portion must share its fate. This rule is well stated by Chancellor Kent, thus : * Contraband articles are infectious, as it is called, and contaminate the whole cargo belonging to the same owners, and the invoice of any particular article is not usually admitted, to exempt it from general confiscation.' " So much of the cargo of the Peterhoff^ therefore, as actually be- longed to the owner of the artillery harness, and the other contraband goods, must be also condemned." ^ THE "JONGE MAEGARETHA." High Court of Admikalty, 1799. (1 C. Robinson, 189.) This was a case of a Papenberg ship, taken on a voyage from Amsterdam to Brest with a cargo of cheese, April, 1797. Judgment, — Sir W. Scott : — " There is little reason to doubt the property in this case, and therefore passing over the observations which have been made on that part of the subject, I shall confine myself to the single ques- tion : Is this a legal transaction in a neutral, being the transaction of a Papenberg ship carrying Dutch cheese from Amsterdam to Brest, or Morlaix (it is said), but certainly to Brest ; or, as it may be otherwise described, the transaction of a neutral carrying a cargo of provisions, not the product and manufacture of his own country, but of the enemy's ally in the war — of provisions which are a capi- tal ship's store — and to the great port of naval equipment of the enemy. " If I adverted to the state of Brest at this time, it might be no unfair addition to the terms of the description, if I noticed, what was notorious to all Europe at this time, that there was in that port ^ For the Proclamation of Cliarles I., 1626, on contraband and the various articles enumerateil and designated as sucli, see Kobinson's Collectanea Maritima, 5i. \ In the civil war coin and bullion, etc., were considered contraband. U. S. v. Diekel- miui, 1875, 'J2 U. S. 520; likewise cotton. Mrs. Alexander's Cotton, 1864, 2 Wall. 404. Tiiat a submarine cable and vessel employed in laying it may, for a belligerent I under certain circumstances, partake of tlie nature of contraband, see The Tnternntional, 1871, L. H., 3 Adm. & Ecc. 321 at 336; Goffin, Submarine Cables in Time of War, 15 Law Quarterly Hev., 146-154; Liszt, 327; 25 Journal de Droit Int. Prive, 048-662, 69y-701. — Ed. CHAr. III.] THE " JOXGE MAEGARETHA." 763 a considerable French fleet in a state of preparation for sallying: forth on a hostile expedition; its motions at that time were watched with great anxiety by a ]>ritish fleet which lay off the harbor for the purpose of defeating its designs. Is the carriage of such a sup- ply to such a place, and on such an occasion, a traffic so purely neutral as to sul^ject the neutral trader to no inconvenience? " If it could be laid down as a general position, in the manner in which it has been argued, that cheese being a provision is uni- versally contraband, the question would be readily answered : but the court lays down no such position. The catalogue of contraband has varied very much, and sometimes in such a manner as to make it very difficult to assign the reason of the variations ; owing to par- ticular circumstances, the history of which has not accompanied the history of the decisions. In 1673, when many unwarrantable rules were laid down by public authority respecting contraband, it was expressly asserted by Sir R. Wiseman, the King's advocate, upon a formal reference made to him, that by the practice of the English Admiralty, corn, wine, and oil were liable to be deemed contraband. ' I do agree,' says he, reprobating the regulations that had been pub- lished, and observing that rules are not to be so hardly laid down as to press upon neutrals, ' that corn, wine, and oil will be deemed con- traband." " These articles of provisions then were at that time confiscable, according to the judgment of a person of great knowledge and expe- rience in the practice of this court. In much later times many other sorts of provisions have been condemned as contraband. In 1747, in the Jonge Andreas, butter, going to Rochelle, was condemned. How it happened that cheese at the same time was more favourably con- sidered, according to the case cited by Dr. Swabey, I don't exactly know. The distinction appears nice. In all probability the cheeses were not of the species which is intended for ship's use. Salted cod and salmon were condennied in the Jonge Frederick, going to Rochelle, in the same year. In 1748, in the Joannes, rice and salted herrinjTS were condemned as contraband. These instances show that articles of human food have been so considered, at least where it was probable that they were intended for naval or military use. " I am aware of the favourable positions laid down upon this mat- ter by Wolfius and Vattel, and other writers of the continent, although Yattel expressly admits that provisions may, under certain circumstances, be treated as contraband. And I take the modern established rule to be this, that generally they are not contraband,' but may become so under circumstances arising out of the particu- lar situation of the war, or the condition of the parties engaged in 764 BELLIGERENTS AND NEUTRALS. [PART II. it. The court must therefore look to the circumstances under which tliis supply was sent. "Aniojig tlie circumstances wliicli tend to preserve provisions from being liable to be treated as contralsand, one is, that they are of the growth of the country which exports them. In the present case they are the product of another country, and that a hostile country; and the claimant has not only gone out of his way for the supjDly of the enemy, but he has assisted the enemy's ally in the war by taking off his surplus commodities. " Another circumstance to which some indulgence, by the practice of nations, is shown, is, when the articles are in their native and un- manufactured state. Thus, iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly con- traband. Hemp is more favourably considered than cordage, and wheat is not considered as so noxious a commodity as any of the final preparations of it for human use. In the present case, the arti- cle falls under this unfavourable consideration, being a manufacture prepared for immediate use. " But the most important distinction is, whether the articles were intended for the ordinary use of life, or even for mercantile ship's use; or whether they were going with a highly probable destination to military use ? Of the matter of fact on which the distinction is to be applied, the nature and quality of the port to which the arti- cles were going is not an irrational test ; if the port is a general commercial port it shall be understood that the articles were going for civil use, although occasionally a frigate or other ships of war may be constructed in that port. Contra, if the great predominant character of a port be that of a port of naval military equipment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place, and although it is possible that the articles might have been applied to civil consump- tion ; for it being impossible to ascertain the final use of an article ancipitis usus, it is not an injurious rule which deduces both ways the final use from the innnediate destination ; and the presumption of a hostile use, founded on its destination to a military port, is very much inflamed if at the time when the articles were going, a consid- erable armament was notoriously preparing, to which a supply of those articles would be eminently useful. "In the case of the EendriKjht, cited for the claimant, the destina- tion was to Bourdeaux ; and though smaller vessels of war may be occasionally built and fitted out there, it is by no means a port of naval military equipment in its principal occupation, in the same manner as Brest is universally known to be. CHAP. III.] THE "COMMERCEN." 765 " The court, however, was unwilling in the present case to con- clude the claimant on the one point of destination, it being alleged that the cheeses were not lit for naval use, but were merely luxuries for the use of domestic tables. It therefore permitted both parties to exhibit affidavits as to their nature and qualit3^ The claimant has exhibited none ; but here are authentic certificates from persons of integrity and knowledge that they are exactly such cheeses as are used in British ships when foreign cheeses are used at all, and that they are exclusively used in French ships of war. " Attending to all these circumstances, I think myself warranted to pronounce these cheeses to be contraband, and condemn them as As such, ho^^■ever, the party has acted without dissimulation in the case, and may have been misled by an inattention to circum- stances, to which in strictness he ought to have adverted, as well as by something like an irregular indulgence on which he has relied ; I shall content myself with pronouncing the cargo to be contraband 1 without enforcing the usual penalty of the confiscation of the ship ' belonging to the same proprietor." ^ THE "COMMERCEN." Supreme Court of the United States, 1816. (1 Wheaton, 382.) This was the case of a Swedish vessel captured on the 16tli of April, 1814, bj^ the private armed schooner Laivrence, on a voyage from Limerick, in Ireland, to Bilboa, in Spain. The cargo consisted of barley and oats, the property of British subjects, the exportation of which is generally prohibited by the British Government ; and, as well by the official papers of the custom-house as by the private letters of the shippers, it appears to have been shipped under the special per- mission of the government for the sole use of his Britannic Majesty's forces then in Spain. Stoky, J. : — The single point now in controversy in this cause is, whether the ship is entitled to the freight for the voyage. The general rule that the neutral carrier of enemy's property is entitled to his 1 See to the same effect : The Frau Margarethn, 1805, G C. Rob. 92 ; The Zelden Rust, 1805, 6 C. Rob. 93; The Ranger, 1805, 6 C. Rob. 125 (ship's biscuit condemned) ; The Edward, 1801, 4 C. Rob. 08. " To escape from the contagion of contraband, the innocent articles must be the property of a different owner," per Sir Win. Scott, in The Staat Einlden, 1798, 1 C. Rob. 31. —Ed. 766 BELLIGERENTS AND NEUTRALS. [PART II. freight, is now too firmly established to admit of discussion. But to this rule there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or has interposed himself to assist the enemy in carrying on the war, he is justlj' deemed to have for- feited his title to freight. Hence, the carrying of contraband goods to the enemy ; the engaging in the coasting or colonial trade of the enemy ; the spoliation of papers, and the fraudulent suppression of enemy interests have been held to affect the neutral with the for- feiture of freight, and in cases of a more flagrant character, such as carrying despatches or hostile military passengers, an engagement in the transport service of the enemy, and a breach of blockade, the penalty of confiscation of the vessel has also been inflicted. By the modern law of nations, provisions are not, in general, deemed contra- band, but they may become so, although the property of a neutral, on account of the particular situation of the war, or on account of their destination. If destined for the ordinary use of life in the enemy's country they are not, in general contraband ; but it is otherwise if destined for military use. Hence, if destined for the army or navy of the enemy, or for his ports of naval or military equipment, they are deemed contraband.^ 1 Provisions. — In tlie case of Maissonnaire v. Keating, 1815, 2 Gallison, the question was as to tiie validity of a Russian document, in which the legality of tiie capture had to be passed upon. It was the case of a cargo of provisions ; and the court lield that provisions going to a port of naval equipment of tlie enemy, and a fortiori, if destined for the supply of his army, became contraband, and subjected the vessel (probably belonging to owner of cargo) and cargo to confiscation by the other belligerent. Res ancipilis usus. — As to the question : what articles shall be regarded as contra- band of war ? there has been, and still is, a wide difference of opinion. The English prize courts, as shown by the cases given, have treated provisions as contraband in certain circumstances ; and the American courts followed this practice. The French decrees and decisions, on the other liand, have taken the opposite view, that provisions are in no case to be treated as contraband. And yet, in 1885, the French Government announced that it proposed to treat rice bound for open Chinese ports as contraband of war. As to other articles ancipitis usus, those most in controversy have been naval stores, including in that term everything used in the construction of ships of war. The cases in which these articles liave been confiscated by the English prize courts are very numerous. A few of the leading cases are as follows : The Staat Embden, 1798,1 C. Rob. 26 (masts) ; The Endraught, 1798, 1 C. Rob. 22 (timber) ; The Jonge Tobias, 1799, 1 C. Rob. 329 (tar) ; The Sarah Christina, 1799, 1 C. Rob. 237, 241 (tar and pitch) ; The Ringende Jacob, 179d, 1 C. Rob. 89 (hemp, iron bars); The JVeptunus, 1800, 3 C. Rob. 108 (sail-cloth). TJie greater number of these articles were treated by Sir William Scott as goods absolutely contraband, if going to an enemy's port, without considering the nature of the port. Tlie government of the United States, in 1797, held the same view : "Ship timber and naval stores," said the Secretary of State, " are by the law of nations con- CHAP, ni.] THE " NEUTRALITET." 767 THE "NEUTRALITET." High Court of Admiralty, 1801. (3 C. Robinson, 295.) This was a case of a Danish ship taken with a cargo on a voyage from Archangel to Dordrecht. Tlie sliip had been a Dutch vessel, and was asserted to have been purchased by Mr. Schultz, of Altona. She then went from Holhind to Altona, and was from thence sent on to Archangel, to carry a cargo to Dordrecht, under a charter party made by the asserted owner. Judgment, — Sir W. Scott : — " The modern rule of the law of nations is, certainly, that the ship 5 shall not be subject to condemnation for carrying contraband ' articles. " The ancient practice was otherwise, and it cannot be denied, J that it was perfectly defensible on every principle of justice. If to traband of war." It will be seen by the French cases la Minerve and others, that the I French practice is the reverse of that of England and the United States. ' Tiie recent clianges in naval warfare, brought about by the introduction of steam power and steel ships, have introduced a large number of new articles into the list of contraband or "occasional contraband " goods. This may be seen in Mr. G. Lushing- ton's '• Manual of Naval Prize Law " (edition of 1866), in which goods absolutely con- traband are enumerated as follows : — "Arms of all kinds and machinery for manufacturing arms. Ammunition and materials for ammunition, including lead, sulpiiate of potash, muriate of potash, cldorate of potash, and nitrate of soda. Gunpowder and its materials, saltpetre and brimstone ; also gun-cotton. " Military equipments and clothing. Military stores. " Naval stores, such as masts, spars, rudders, and ship timber, hemp and cordage, sail-cloth, pitch, and tar; copper fit for sheatliing vessels ; marine engines, and the component parts thereof, including screw-propellers, paddle-wheels, cylinders, cranks, shafts, boilers, tubes for boilers, boiler-plates, fire-bars ; marine cement and the materials in the manufacture thereof, as blue-lias and Portland cement. Iron in any of the following forms : Anchors, rivet-iron, angle-iron, round bars from f to f of an inch diameter, rivets, strips of iron, sheet plate-iron exceeding ^ of an inch, and low-moor and bowling plates." Goods conditionally contraband comprise : " Provisions and liquors fit for the consumption of army or navy ; money; tele- graph materials, such as wire, porous cups, piatina, sulphuric acid, and zinc. Materials for the construction of a railway, as iron bars, sleepers, etc. " Coals, hay, horses, rosin, tallow, timber." France does not regard timber for the construction of ships as contraband of war. | II Vulaiite, 1807, Le Conseil des Prises (1 Pistoye et Duverdy, 409) ; (La Minerve, id. 410.) For a recent discussion and the views of publicists of different nationalities, see 25 Journal de Droit Int. Prive', 285, 441, 467, 493, 515, 535, 624, G52, 828, 1006, 1018. — Ed. 768 BELLIGERENTS AND NEUTKALS. [PART II. supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in effect- ing that illegal purpose cannot be innocent. The policy of modern times has however introduced a relaxation on this point ; and the g-eneral rule now is, that the vessel does not become confiscable for (that act. But this rule is liable to exceptions : Where a ship be- longs to the owner of the cargo, or where the ship is going on such service, under a false destination or false papers; these circum- stances of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient one. The circumstances of the present case compose a case of exception also ; for it is a case of singular misconduct on the part of the asserted ship owners. They are subjects of Denmark, and as such are under the peculiar obligations of a treaty not to carry goods of this nature for the use of the enemies of Great Britain. " A reference has been made to ancient cases of Dantzick ships, which were restored, though taken carrying masts to Cadiz. The particulars of those cases are not very exactly stated ; but they were clearly the cases of proprietors exporting the produce of their own territory, or of neighboring ports, without the breach of any obliga- tion but such as the general law of nations imposed. " In this instance the ship was freighted at Altona, to go to Arch- angel, for the purpose of carrying a cargo of tar to Holland, Avhich is a connnerce expressly prohibited by the Danish treaty. Tar is an article wliicli a Danish ship cannot lawfully carry to an enemy's port, even when it is the produce and manufacture of Denmark. This ship goes to a foreign port, to eft'ect that which she is pro- hibited from doing, even for the produce of her own country ; in this respect, throwing off the character of a Danish ship by vio- lating the treaties of her country ; and all this ia done with the full privity of the asserted owner, who is the person entering into the charter party. In such a case as the present, the known ground on which the relaxation was introduced, the supposition that freights of noxious or doubtful articles might be taken, without the personal knowledge of the owner, entirely fails ; and the active guilt of the ^ parties is aggravated by the circumstances, of its being a criminal r traffic in foreign commodities, and in breach of explicit and special ' obligations. The confiscation of a ship so engaged will leave the general rule still untouched, that the carriage of contraband works a forfeiture of freight and expenses, but not of the ship. " Ship condemned." CHAP. III.] CARRINGTON V. THE MERCHANTS' INS. CO. 7G9 CARRINGTON AND OTHERS v. THE MERCHANTS' INSUR- ANCE COMPANY. Supreme Court of the United States, 1834. (8 Peters, 495.) In 1824 a policy of insurance for )$ 10,000 was effected on the cargo of tlie General Carrington. At the commencement of the voyage, and until the final loss of the ship, open hostilities existed between Spain and the new governments or states of Chili and Peru. From the orders it was apparent that the object of the voyage was to sell the cargo in Chili and Peru. The ship was to proceed direct for Valpa- raiso, and was to enter that port under the plea of a want of water. Some portion of the cargo was expected to be sold at that port ; thence the ship was to proceed along the coast of Chili and Peru for the purpose of trade. There was no allegation that the underwriters were not well acquainted with the nature and objects of the voyage. While lying at anchor in Quilca, Peru, the vessel was seized by Spanish authorities. The policy was against the usual perils, and contained the following clause : "It is also agreed that the insurers shall not be answerable for any charge, damage, or loss which may arise in consequence of seizure or detention for or on account of illicit or prohibited trade, or trade in articles contraband of war." ^ Mr. Justice Story delivered the opinion of the court :"^ — This cause comes before the court upon a certificate of a division of opinion of the judges of the Circuit Court for the district of Massa- chusetts. Upon the trial of the cause upon the evidence, the parties pro- pounded certain questions, upon which the Cirouit Court (with the assent of the parties), certified a division of opinion, for the purpose of obtaining the final decision of this court in regard to them. The first is, whether a seizure and detention, to come within the exception of the policy relating to contraband and illicit trade, must be for a legal and justifiable cause. The question here propounded is not whether there must be a legal or justifiable cause for condemna- tion; but simply, whether there must not be such cause for the seizure and detention. And we are of opinion that the question ought to be ^ Tlie statement of the case is abbreviated. — Ed. 2 That part of the opinion dealing with "the fourth and fifth questions" is omitted. — Ed. 49 770 BELLIGERENTS AND NEUTRALS. [PART II. answered in the affirmative. The language of the exception, when properly construed, leads to this conclusion; and it is confirmed by authorities standing upon analogous clauses. The language is, "the assurers shall not be liable for any charge, damage, or loss which may arise in consequence of seizure or detention for or on account of illicit trade, or trade in articles contraband of war." It is not, then, every seizure or detention which is excepted ; but such only as is made for, and on account, of a particular trade. A seizure or detention, which is a mere act of lawless violence, wholly unconnected with any supposed illicit or contraband trade, is not within the terms or spirit of the exception. And as little is a seizure or detention not bona fide made upon a just suspicion of illicit or contraband trade, but the latter used as a mere pi-etext or color for an act of lawless violence ; for under such circumstances it can in no just sense be said to be made for or on account of such trade. It is a mere fraud to cover a wanton trespass ; a pretence and not a cause for the tort. To bring a case, then, within the exception, the seizure or detention must be bona fide, and upon a reasonable ground. If there has not been an actual illicit or contra- baml trade, there must at least be a well-founded suspicion of it, a probable cause to impute guilt, and justify further proceedings and inquiries ; and this is what the law deems a legal and justifiable cause for the seizure or detention. The general words of the policy cover the risks of restraints and detainments of all kings, princes, and people. The exception withdraws from it such as are bona fide made for, and on account of illicit or contraband trade. So that, upon the mere terms of the exception there would not seem any real ground for doubt. But if there were, the next succeeding clause associated with it demonstrates that such must have been the understanding of the parties. It is there said that the judgment of a foreign consular or colonial court shall not be conclusive upon the parties as to the fact of there having been articles contraband of war on board, or as to the fact of an attempt to trade in violation ef the laws of nations. Now, if a mere lawless seizure or detention, under the pretext of illicit and contraband trade, were within the exception, the inquiry, Avhether there had been contraband articles on board, or an attempt of illicit trade, would be in most, if not in all cases, wholly unimportant and nugatory to the assured, for whose benefit the clause is introduced ; since the sentence would always establish a pi-etence for the seizure and detention, although not a justifiable cause for it. The reasonable interpretation of the clause must be that it was introduced to enable the assured to disprove the existence of justifiaV)le cause for the seizure or detention, by showing that the facts did not warrant it. We think that the authorities cited at the bar lead to the same CHAP. III.] CARRINGTON V. THE MERCHANTS' INS. CO. 771 conclusion. In Church v. Hubbard, 2 Crancb, 187, 2 Contl. Rep. 385; where the exception was, " that the insurers do not take the risk of illicit trade with the Portuguese, and the insurers are not liable for seizure by the Portuguese for illicit trade ; '' the main question was, whether an attempt to trade, not consummated by actual trading, was within the exception. The court held that it was. On that occasion the chief justice said, " no seizure, not justiiiable under the laws and regulations established by the Crown of Portugal for the restriction of foreign commerce with its dependencies, can come within this part of this contract ; and every seizure which is justifiable by those laws and regulations must be deemed within it." And applying this language to the circumstances of the present case, we may add, that no seizure or detention not justifiable by the law of nations can come within the present exception, and every seizure which is justifiable by the law of nations must be deemed within it. The cases of Smith v. The Delatvare Insurance Company, 3 Serg. and Rawle, 74 ; and Faudel v. The Phcenix Insurance Company, 4 Serg. and Eawle, 29 ; Johnston and Weir v. Ludlow, 1 Gaines's Cas. in Error, 29; s. c. 2 Johns. Gas. 481. See a.\?,o Laiuff v. United Insurayice Company, 2 Johns. Gas. 174; s. c. 2 Johns. Cas. 487; Tucker v. Juhel, 1 Johns. E. 20, adopt a similar doctrine, if they do not proceed beyond it. The case of Higginson v. Pomroy, 11 Mass. E. 104, contained an exception of "illicit trade Avith the Spaniards ; " and the court held that the exception extended to every seizure and detention suggested by the prohibitions of trade and intercourse, as the means of enforcing them; and whether of prevention or of punishment for infraction ; and that, therefore, it extended to cases where the charge of illicit trade with tlie Spaniards might be ultimately repelled ; and where the property seized might be in consequence acquitted under the circumstances of the particular case. P)ut this supposes that there was probable or justifiable cause for the seizure, bona fide existing ; and the court explicitly assented to the general doctrine in Church v. Hubbard. It is true that the learned chief justice, in delivering the opinion of the court, added, that ^^ perhaps (we may add), although not necessary to the present decision, even arbitrary acts of the Spanish colonial governments, if assumed to be justified on their parts by the prohibitions of trade and inter- course, are, we think, within the exception of seizure for illicit trade." This is professedly a mere dictum of the court ; and giving it every reasonable force as authority, it proceeds on the supposition that such arbitrary acts are boiia fide done, and are not mere pretexts to cover an illegal seizure. The second question is, whether, assuming the other facts to be as stated and alleged above, and taking the authority of the seizing 772 BELLIGERENTS AND NEUTRALS. [PART II. vessel to be sucli as the plaintiffs allege (that is to say, of an armed vessel fitted out and commissioned at Callao by Rodil), there was a legal and justifiable cause for the seizure of the General Carrhigton and her cargo. The third is precisely the same in terms, except taking the authority of the armed vessel to be such as the defendants allege (that is to say, to be an armed vessel sailing under the royal Spanish flag, and acting by the royal authority of Spain). Both these questions present the same general point, whether there was, under the circumstances of the case, a legal and justifiable cause for the seizure and detention of the ship and her cargo. The facts material to be taken into consideration in ascertaining this point are, that the ship, when seized, had not landed all her outward cargo, but was still in the progress of the outward voyage originally designated by the owners ; that she sailed on that voyage from Providence with contraband articles on board, belonging, with the other parts of the cargo, to the owners of the ship; with a false destination and false papers, which yet accompanied the vessel ; that the contraband articles had been landed before the policy, which is a policy on time, designat- ing no particular voyage, had attached ; that the underwriters, though taking no risks within the exception, were not ignorant of the nature and objects of the voyage ; and that the alleged cause of the seizure and detention was the trade in articles contraband of war by the landing of the powder and muskets already mentioned. If by the principles of the law of nations there existed under these circumstances a right to seize and detain the ship and her remaining cargo, and to subject them to adjudication for a supposed forfeiture, notwithstanding the prior deposit of the contraband goods; then the questions must be answered in the affirmative, that there Avas a legal and justifiable cause. According to the modern law of nations, for there has been some relaxation in practice from the strictness of the ancient rules, the carriage of .contraband goods to the enemy subjects them, if captured, in delicto, to the penalty of confiscation ; but the vessel and the remaining cargo, if they do not belong to the owner of the contraband goods, are not subject to the same penalty. The penalty is applied to the latter only when there has been some actual co-operation on their part in a meditated fraud upon the belligerents ; by covering up the voyage under false papers and with a false destination. This is the general doctrine Avhen the capture is made in transitu, while the I contraband goods are yet on board. But when the contraband goods ' have been deposited at the port of destination, and the subsequent voyage has thus been disconnected with the noxious articles, it has ' not been usual to apply the penalty to the ship or cargo upon the CHAP. III.] CAKKINGTON V. THE MERCHANTS' INS. CO. 773 return voyage, although the latter may be the proceeds of the contra- band. And the same rule would seem by analogy to apply to cases j where the contraband articles have been deposited at an intermediate i port on the outward voyage, and before it had terminated ; although there is not any authority directly in point. But in the highest prize courts of England, while the distinction between the outward and homeward voyage is admitted to govern, yet it is established that it exists only in favor of neutrals who conduct themselves with fairness and good faith in the arrangements of the voyage. If, with a view to practice a fraud upon the belligerent, and to escape from his acknow- ledged right of capture and detention, the voyage is disguised, and the vessel sails under false papers, and with a false destination, the mere deposit of the contraband in the course of the voyage is not allowed to purge away the guilt of the fraudulent conduct of the neutral. In the case of The Franklin, in 1801, 3 Kob. 217, Lord Stowell said, " I have deliberated upon this case and desire it to be considered as the settled rule of law received by this court, that the carriage of contraband with a false destination will make a condemnation of the ship, as well as the cargo." Shortly afterwards, in the case of The Neutmlitet, 1801, 3 Rob. R. 295, he added, "The modern rule of the law of nations is, certainly, that the ship shall not be subject to condemnation for carrying contraband goods. The ancient practice was otherwise ; and it cannot be denied that it was perfectly justifiable in principle. If to supply the enemy with such articles is a noxious act with respect to the owner of the cargo, the vehicle which is instrumental in affecting that illegal purpose cannot be innocent. The policy of modern times has, however, introduced a relaxation on this point; and the general rule now is, that the vessel does not become confiscated for that act. But this rule is liable to exceptions. Where a ship belongs to the owner of the cargo, or where the ship is going on such service under a false destination or false papers ; these circumstances of aggravation have been held to constitute excepted cases out of the modern rule, and to continue them under the ancient rule." The cases in which this language was used were cases of capture upon the outward voyage. See also The Echcard, 4 Rob. R. 68. The same doctrine was afterwards held by the same learned judge to apply to cases where the vessel had sailed with false papers, and a false destination upon the outward voyage, and was captured on the return voyage. See The Nancy, 3 Rob. 122; The Christlanberg, C Rob. 376. And finally in the cases of The Rosalie and The Elizabeth, in 1802, 4 Rob, R., note to table of cases, the lords of appeal in prize cases held that the carriage of contraband outward with false papers will affect the return cargo with condemnation. These cases are not 774 BELLIGERENTS AND NEUTRALS. [PART II. reported at large. But iu the case of The Baltic, 1 Acton's R. 25, aud that of The Margaret, 1 Acton's R. 333, the lords of appeal deliberately reaffirmed the same doctrine. In the latter case Sir William Grant, in pronouncing the judgment of the courts said, " Tlie principle upon -which this and other prize courts have generally proceeded to adjudication in cases of this nature (that is, where there are false papers), appears simply to be this : that if a vessel carried contraband on the outward voyage she is liable to condemnation on the homeward voyage. It is by no means necessary that the cargo should have been purchased by the proceeds of this contraband. Hence we must pronounce against this appeal ; the sentence (of condemnation) of the court below being perfectly valid and consistent with the acknowledged principles of general law." We cannot but consider these decisions as very high evidence of the law of nations, as actually administered; and in their actual application to the circumstances of the present case, they are not, in our judg- ment, controlled by any opposing authority. Upon principle, too, we trust, that there is great soundness in the doctrine, as a reasonable interpretation of the law of nations. The belligerent has a right to require a frank and bona fide conduct on the part of neutrals in the course of their commerce in times of war; and if the latter will make use of fraud, and false j^apers, to elude the just rights of the belligerents, and to cloak their own illegal purposes, there is no injustice in applying to them the penalty of confiscation. The taint of the fraud travels with the party and his offending instrument during the whole course of the voyage, and until the enterprise has, in the understanding of the party himself, completely terminated. There are many analogous cases in the prize law where fraud is followed by similar penalties. Thus, if a neutral will cover up enemy's property under false pa2:)ers, which also cover his own property, prize courts will not disentangle the one from the other, but condemn the whole as good prize. That doctrine was solemnly affirmed in this court in the case of The St. Kicholas, 1 Wheaton, 417, 3 Cond. Hep. G14. Upon the whole, our opinion is, that the general question involved in the second and third questions, whether there was a legal and justifiable cause of capture under the circumstances of the present case, ought to be answered in the affirmative. The question as to the authority of the cruiser to seize, so far as it depends upon her com- mission, can only be answered in a general way. If she had a commission under the royal authority of Spain, she was beyond question entitled to make the seizure. If Rodil had due authority to grant the commission the same result would arise. If he had no such CHAP. III.] CARRINGTOX V. THE MERCHANTS' INS. CO. 775 authority, then she must be treated as a non-commissioned cruiser, entitled to seize for the benefit of the Crown; whose acts, if adopted and acknowledged by the Crown or its competent authorities, become equally binding. Nothing is better settled both in England and j America than the doctrine that a non-commissioned cruiser may seize for the benefit of the government; and if his acts are adopted by the government, the property, when condemned, becomes a droit of the government. The Amiable Isabella, 6 Wheat. Rep. 1, 5 Cond. Rep. 1; The Dos Hermanos, 10 Wheat. Rep. 306,6 Cond. Rep. 109; The Meloinane, 5 Rob. 41; The Elsebe, 5 Rob. 174; The Maria Frangoise, 6 Rob. 282. The sixth and last question is whether, supposing the ship to have traded in articles contraband of war in the ports of Chili, and to have been seized afterwards in a port of Peru, then under the royal authority, before she had discharged her outward cargo for and on account of such contraband trade, the underwriters be not discharged, whether the subsequent proceedings for her adjudication were regular or irregular. This question is understood to raise the point whether, if the seizure and detention be bona fide for and on account of illicit or contraband trade, a sentence of condemnation or acquittal, or other regular proceedings to adjudication, are necessary to discharge the under- writers. We are of opinion that they are not. If the seizure or detention be lawfully made for or on account of illicit or contraband trade, all charges, damages, and losses consequent thereon, are within the scope of the exception. They are properly attributable to such seizure and detention as the primary cause, and relate back thereto. If the underwriters be discharged from the primary hostile act, tliey are discharged from the consequences of it. The whole reasoning in Church V. Hubbard, 2 Cranch, 187, presupposes that if the underwriters be exempted from the risk of a justifiable seizure for illicit trade, they are not accountable for losses consequent thereon, whether arising from a sentence of condemnation or otherwise.^ 1 Tliis consequence does not attacli unless false papers have been used. " Tlie doctrine of tliese cases is not approved of b^' Wheaton or by foreijjn jurists ; and, while undoubteilly severe, it does not appear to be a necessary deduction from the general principles governing the forfeiture of contraband cargoes." Hall, Int. Law, p. 696. But see 1 Uuer, Marine Ins., 627, note c. In The Sarah Christiana, 1799, 1 C. Uob. 238,241, Sir Wm. Scott said: "In tlie practice of this court there is a relaxation of these articles (pitch and tar), heiiiff the produce of the claimant's country ; and it has been deemed a harsh exercise of a belliger- ent right to prohibit the carriage of these articles, which constitute so considerable a part of its native produce and ordinary commerce. But in the same practice this re- Lnxation is understood with a condition, that it may be brought in, not for confiscation, but for pre-emption ; no unfair compromise, as it should seem, between the belligerent's | rights, founded on the necessities of self-defence, and the claims of the neutral to 776 BELLIGERENTS AND NEUTRALS. [PART II. THE "IMINA." High Court of Admiralty, 1800. (3 C. Robinson, 138.) This was a case of a cargo of ship timber which had sailed July, 1798, from Dantzick, originally for Amsterdam, but, was going at the time of capture to Embden, in consequence of information of the blockade of Amsterdam. Judgment. — Sir W. Scott : — This is a claim for a ship taken, as it is admitted, at the time of capture sailing for Embden, a neutral port; a destination on which, if it is considered as the real destination, no question of contraband could arise ; inasmuch as goods going to a neutral port cannot come under the description of contraband, all goods going there being equally lawful. It is contended, however, that they are of such a nature as to become contraband if taken on a destination to a hostile port. On this point, some difference of opin- ion seems to have been entertained; and the papers which are brought in may be said to leave this important fact in some doubt. Taking it, ex[)ort his native commodities tliough immediately subservient to tlie purposes of hostility. To entitle tlie party to the benefit of tliis rule a perfect honajides on his part is required." On The Haahet, 1800, 2 C. Rob. 175 at p. 182, the same eminent judge said : '• It is a mitigated exercise of war on which any purchase is made, and no rule has established, that such a purchase shall be regulated exactly upon the same terms of profit which would have followed the adventure, if no such exercise of war liad intervened ; it is a reasonable indemnification and a fair jirofit on the commodity that is due, reference being had to the original price actuilly paid by the exporter, and the expenses which lie has incurred. * * * But certainly the capturing nation does not always take these cargoes on the same terms on which an enemy would be content to purchase them; much less are cases of this kind to be considered as cases of costs and damages, in which all loss of possible profit is to be laid upon unjust captors, for these are unjust captures, but authorized exercises of the right of war." See further. The Staat Embden, 1798, 1 C. Rob. 27 ; The Ringende Jacob, 1798, 1 C Rob. 89 ; The Maria, 1799, 1 C. Rob. 340 ; The Apollo, 1802, 4 C. Rob. 159 ; The Christina Maria, 1802, 4 C. Rob. 166; The Twee Jujfrowen, 1802, 4 C. Rob. 242; The Evert, 1803, 4 C. Rob. 354. "In strictness," says Hall (Int. Law, 690-691), "every article which is either necessarily contraband, or which has become so from the special circumstances of the war, is liable to confiscation ; but it is usual for those nations wiio vary their list of contraband to subject the latter class to pre-emption only, wliich by the English practice means purchase of the merchandise at its mercantile value, together with a reasonable profit, usually calculated at ten per cent on the amount. This mitigation of extreme belligerent privilege is also introduced in the case of products native to the exjjorting country, even when they are aflTected by an inseparable taint of contraband." — Ed. CHAP. III.] THE "IMINA." 777 however, that they are of such a nature as to be liable to be considered as contraband on a hostile distination, I cannot fix that character on them in the present voyage. The rule respecting contraband, as I have always understood it, is that the articles must be taken in deUcto, in the actual prosecution of the voyage to an enemy's port. Under the present understanding of the law of nations, you cannot generally take the proceeds in the return voyage. From tlie moment of quitting port on a hostile destination, indeed, the offence is complete, and it is not necessary to wait till the goods are actually endeavoring to enter the enemy's port ; but beyond that, if the goods are not taken in delicto, and in the actual prosecution of such a voyage, the penalty is not now generally held to attach. Some argument has been drawn in this case from the conduct of the owners. It is said, *' That they did not consider these articles as contraband ; they were sent openly and without suppression or disguise ; " perhaps that alone would not avail them. It appears, however, that Amsterdam was declared by this country to be in a state of blockade, a circumstance that would make it peculiarly criui- inal to attempt to carry a cargo of this nature to that port. The master receives information of this fact at Elsineur, and on consulta- tion with the consul of the nation to which the cargo belonged, changed his purpose, and actually shaped his course for Embden, to which place he was sailing at the time of capture. I must ask then, ■was this property taken under such circumstances as make it subject to the penalty of contraband ? Was it taken iti delicto, in the pi'os- ecution of an intention of landing it at a hostile part ? Clearly not. But it is said, that in the understanding and intention of the owner it was going to a hostile port; and that the intention on his part was complete, from the moment when the ship sailed on that destination ; had it been taken at any period previous to the actual variation, there could be no question but that this intention would have been sufficient to subject the property to confiscation; but when the variation had ac- tually taken place, however arising, the fact no longer existed. There is no corpus delicti existing at the time of capture. In this point of view I think the case is very distinguishable from some other cases in which, on the subject of deviation by the master into a blockaded port, the court did not hold the cargo to be necessarily involved in the con- sequences of that act. It is argued that as the criminal deviation of the master did not there immediately implicate the cargo; so here the favorable alteration cannot protect it, and that the offence must in both instances be judged by the act and designs of the owner. But in those cases there was the guilty act, really existing at the time of capture ; both the ship and cargo were taken m delicto ; and the only 778 BELLIGERENTS AND NEUTRALS. [PART II. question was to whom the delictum was to be imputed ; if it was merely the offence of the master, it might bind the owner of the ship, whose agent he was ; but the court held that it would be hard to bind the owners of the cargo by acts of the master, who is not de jure their agent, unless so specially constituted by them. In the present in- stance, there is no existing delictum. In those cases the criminal appearance, which did exist, was purged away by considering the owners of the cargo not to be necessarily responsible for the act of the master ; but here there is nothing requiring any explanation : The cargo is taken on a voyage to a neutral port. To say that it is never- theless exposed to condemnation on account of the original destina- tion, as it stood in the mind of the owners, would be carrying the penalty of contraband further than it has been ever carried by this or the Superior Court. If the capture had been made a day before, that is, before the alteration of the course, it might have been different; but however the variation has happened, I am disposed to hold that the parties are entitled to the benefit of it ; and that under that variation the question of contraband does not at all arise. I shall decree resti- tution ; but as it was absolutely incumbent on the captors to bring the cause to adjudication from the circumstance of the apparent original destination, I think they are fairly entitled to their expenses. Kestitution. Captor's expenses decreed.^ SETOJT V. LOW. Supreme Court of New York, 1799. (1 Johnson's Cases, 1.) This was an action on a policy of insurance, which included " all kinds of lawful goods and merchandises " on board the Hannah, &c. The ship having been captured and a part of the goods condemned as contraband, the defendants refused to pay the insurance, on the ground that the plaintiffs had not informed them of the nature of the cargo. ^ Kent, J. : — " Two question were raised on the argument in this case. "1. Whether the contraband goods were lawful, within the meaning of the policy. " 2. If lawful, whether the assured were bound to disclose to the defendant the fact, that part of the cargo was contraband of war. 1 See The Trende Sostre, 1800, cited in The Lisette, 6 C. Rob. 390 n., in whicli the same principle is held applicable to contraband. — Ed. 2 Short statement substituted for that of the reporter and only a brief extract from the opinion is given. — Ed. CHAP. HI.] SETOiS V. LOW. 779 " On the first point, I am of oj^inion, that the contraband goods were lawful goods, and that whatever is not prohibited to be ex- ported, by the positive law of the country, is lawful. It may be said, that the law of nations is part of the municipal law of the land, and that by that law (and which, so far as it concerns the present question, is expressly incorporated into our treaty of commerce with Great Britain) contraband trade is prohibited to neutrals, and, con- sequently, unlaw^f ul. This reasoning is not destitute of force, but the fact is, that the law of nations does not declare the trade to be unlawful. It only authorizes the seizure of the contraband articles by the bel- ligerent powers ; and this it does from necessity. A neutral nation has nothing to do with the war, and is under no moral obligation to abandon or abridge its trade ; and yet, at the same time, from the Jaw of necessity, as Vattel observes, the powers at war have a right to seize and confiscate the contraband goods, and this they may do • from the principle of self-defence. The right of the hostile power to seize, this same very moral and correct writer continues to ob- serve, does not destroy the right of the neutral to transport. They are rights which may, at times, reciprocally clash and injure each other. But this collision is the effect of inevitable necessity, and the neutral has no just cause to complain. A trade by a neutral in articles contraband of war is, therefore, a lawful trade, though a trade, from necessity, subject to inconvenience and loss." ^ ^ In Ex parte Chavasse, in Re Grazebrook, 1865, 34, L. J. k. s.. Bankruptcy, 17, Chavasse and Grazebrook went into partnership in the furnishing of contraband arti- cles to the Confederacy. Both parties became bankrupt, and the assignees of Chavasse presented a petition to have the proceeds of tliese transactions apportioned, Chavasse never having received anytliing from them. Tiiis petition was dismissed witli costs on the ground of the illegality of the contract. An appeal was allowed, Lord Chan- cellor Westbury considering that tiiere was a valid partnersliip. He cites the Suntis- sima Trinidad, 7 Wheat. 340, ante, and quotes the foUowing passage as a very correct representation of the present state of the law of England: — "There is nothing in our laws, or in the law 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 adventure whicii no nation is bound to prohibit, and which only exposes the persons engaged in it to tiie penalty of confiscation." He further said : " But this commerce, which was perfectly lawful for the neutral with either belligerent country before the war, is not made by tiie war unlawful or capable of being prohibited by both or either of the belligerents; and all that inter- national law does is to subject the neutral merchant wiio transports tlie contraband of war to the risk of having his ship and cargo captured and condemned by the bellig- erent power for whose enemy the contraband is destined." See also llie Helen, 1855, L. K., 1 Adm. & Ecc. 1, infra, 821. "The carrier of contraband may violate the proclamation of the neutral state of which he is a member and deprive himself of the right to protection from iier, but the punishment of iiis offence is, by the general law of nations, left to the belligerent who vJU. OLAl vTn-A 780 BELLIGERENTS AND NEUTRALS. [PART IL Section 43, — Despatcbes and Persons as Contraband. THE "ATALANTA." High Court of Admiralty, 1808. (6 C. Robinson, 440.) This was a case of a Bremen ship and cargo, captured on a voyage from Batavia to Bremen, on tlie 14th of July, 1797, having come last from the Isle of France ; where a packet containing dis- patches from the Government of the Isle of France to the Minister of Marine, at Paris, was taken on board by the master and one of the supercargoes, and was afterwards found concealed in the pos- session of the second supercargo, under circumstances detailed in the judgment. Extract from judgment, — Sir W. Scott : — " The question then is, what are the legal consequences attaching on such a criminal act ? — for that it is criminal and most noxious is scarcely denied. What might be the consequences of a simple trans- mission of dispatches, I am not called upon by the necessities of the present case to decide, because I have already pronounced this to be a, fraudulent case. That the simple carrying of dispatches, between the colonies and the mother country of the enemy, is a service highly injurious to the other Belligerent, is most obvious. In the present state of the world, in the hostilities of Evropean powers, it is an object of great importance to preserve the connection between the mother country and her colonies ; and to interrupt that connec- tion, on the part of the other Belligerent, is one of the most ener- getic operations of war. The importance of 'keeping up that connec- tion, for the concentration of troops, and for various military pur- poses, is manifest ; and I may add, for the supply of civil assistance, also, and support, because the infliction of civil distress, for the pur- pose of compelling a surrender, forms no inconsiderable part of the operations of war. It is not to be argued, therefore, that the im- lias tlie right to capture. The offence is not cognizable by the municipal law of this country." Sir Robt. Phillimorc in The International, 1871, 3 Adtn. & Ecc. 321, 336. The only penalty by the modern law of nations for carrying contraband is the loss of freight and expenses. The Ringende. Jacob, 1798, 1 C. Rob., 89; The Sarah Christina, IT'JO. Id. 242, and others. See also 11 Op. Atty.-Gen. 408, 410; Id. 451. On the subject of contraband geperally, see the excellent and elaborate digest-note to The Jonge Margaretha in Tudor's Mercantile Cases, 3d ed., 986-1010. — Eu. CHAP. III.] THE " ATALANTA." 781 portance of these dispatches might relate only to the civil wants of the colony, and that it is necessary to shew a military tendency ; because. the object of compelling a surrender being a measure of war, whatever is conducive to that event must also be considered in the contemplation of law, as an object of hostility, although not pro- duced by operations strictly military. How is this intercourse with the mother country kept up, in time of peace ? by ships of war or by packets in the service of the state. If a war intervenes and the other Belligerent prevails to interrupt that communication, any per- son stepping in to lend himself to effect the same purpose, under the privilege of an ostensible neutral character, does, in fact, place him- self in the service of the enemy-state, and is justly to be considered in that character. Xor let it be supposed, that it is an act of light and casual importance. The consequence of such a service is indefi- nite, infinitely beyond the effect of any contraband that can be con- veyed. The carrymg of two or three cargoes of stores is necessarily an assistance of a limited nature ; but in the transmission of dis- patches may be conveyed the entire plan of a campaign, that may de- feat all the projects of the other Belligerent in that quarter of the world. It is true, as it has been said, that one ball might take off a Charles the Xllth, and might produce the most disastrous effects in a campaign ; but that is a consequence so remote and accidental, that in the contemplation of human events it is a sort of evanescent quantity of which no account is taken ; and the practice has been accordinghj, that it is in considerable quantities only that the offence of contraband is contemplated. The case of dispatches is very dif- ferent ; it is impossible to limit a letter to so small a size, as not to be capable of producing the most important consequences in the operations of the enemy. It is a service, therefore, which, in what- ever degree it exists, can only be considered in one character, as an act of the most noxiotis and hostile nature. " This country, which — however much its practice may be misrep- resented by foreign writers, and sometimes by our own, has always administered the law of nations with lenit}^, adopts a more indulgent rule, inflicting on the ship only a forfeiture of freight in ordinary cases of contraband. But the offence of carrying dispatches is, it has been observed, greater. To talk of the confiscation of the nox- ious article, the disjyatches, which constitutes the penalty in contra- band, would be ridiculous. There would be no freight dependent on it, and therefore the same precise penalty cannot, in the natui-e of things, be applied. It becomes absolutely necessary, as well as just, to resort to some other measure of confiscation, which can be no other than that of the vehicle. 782 BELLIGERENTS AND NEUTEALS. [PART H. « Then comes the other question, whether the penalty is not also to be extended further, to the cargo, being the property of the same proprietors— not merely oh continentiam delicti, but likewise be- cause the representatives of the owners of the cargo, are directly in- volv^ed in the knowledge and conduct of this guilty transaction ? On the circumstances of the present case I have to observe, that the offence is as much the act of those who are the constituted agents of the cargo, as of the master, who is the agent of the ship. The I general rule of law is, that, where a party has been guilty of an in. I terposition in the war, and is taken in delicto, he is not entitled to J the aid of the court, to obtain the restitution of any part of his propertj^ involved in the same transaction. It is said, that the term., 'interposition in the war' is a very general term and not to be loosely applied. I am of opinion, that this is an aggravated case of active interposition in the service of the enemy, concerted and con- tinued in fraud, and marked with every species of malignaiit con- duct. In such a case I feel myself bound, not only by the general rule, oh continentiam delicti, but by the direct participation of guilt in the agents of the cargo. Their own immediate conduct not only excludes all favourable distinction, but makes them pre-eminently the object of just punishment. The conclusion therefore is, that I must, pronounce the ship and cargo subject to condemnation. " The court observed afterwards : — T will mention, though it is a cir- cumstance of no great consequence, that I have seen the dispatches in this case, and that they are of a noxious nature, stating the strength of the different regiments, &c., and other particulars en- tirely military." THE "PvAPID." High Coukt of Admiralty, 1810. (Edu-ards, 228.) This was the case of an American ship which was captured on her voyage from New York to Tonningen, on suspicion of an intention to push into the Texel. But the question of destination being abandoned by the cjiptors, they now contended that the case came within the principle laid down by the court in the case of the Ata- lanta, as it had been discovered, that among the papers given up by the master at the time of capture, there was a dispatch addressed to the Dutch colonial minister at the Hague, under cover to a commer- cial house at Tonningen. CHAP, m.l THE "KAPTD." 78 roo Judgment, — Sir Willia^i Scott : — " The question of destination being disposed of, I have now only to consider wliat \x\\\ be the legal effect of carrying these dis- patches ; and as it appears that the practice of conveying papers of this description, for the enemy, prevails to a considerable extent, I must take occasion to remind the proprietors of neutral A^essels, that wherever it is indulged, without sufficient caution, they will inevi- tably subject themselves to very grievous inconveniences. I should certainly be extremely unwilling to incur the imputation of im- posing any restrictions upon the correspondence which neutral na- tions are entitled to maintain with the enemy, or, as it was sug- gested in argument, to lay down a rule which would in effect deter masters of vessels from receiving on board any private letters, as they cannot know what they may contain. But it must be under- stood, that where a party, from want of proper caution, suffers dis- patches to be conveyed on board his vessel, the plea of ignorance will not avail him. His caution must be proportioned to the cir- cumstances under which such papers are received. If he is taking his departure from a hostile port in a hostile country, and still more, if the letters which are brought to him are addressed to persons resident in an hostile country, he is' called upon to exercise the ut- most jealousy with regard to what papers he takes on l)oard. On the other hand, it is to be observed, that where the commencement of the voyage is in a neutral country, and it is to terminate at a neutral port, or, as in this instance, at a port to which, though not neutral, an open trade is allowed, in such a case there is less to ex- cite his vigilance, and, therefore, it may be proper to make some al- lowance for any imposition which may be practiced upon him. But when a neutral master receives papers on board in a hostile port, he receives them at his own hazard and cannot be heard to aver his ignorance of a fact Avhich, by due enquiry, he might have made him- self acquainted with. The party in the present case has the benefit of the favourable distinction : these papers, with some others, were put on board in an envelope, addressed to a person at Tonningen, who was instructed to forward them to Holland, but of this the master swears he knew nothing. They turn out to be of a public nature, conveying intelligence of importance to the government of the enemy at the Hague, and they begin, I observe, with an as- sertion which I hope is not true. The writer says : ' The letter and accompanying inclosures which I this day dispatch to His Excel- lency, the minister of the colonies, via Tonningen, will, I expect, be communicated to you. I trust my conduct will be approved of by His Excellency, and that he will please explain himself, both with 784 BELLIGERENTS AND NEITTRALS. [PAET n. regard tliereto, as also respecting the contents of my letter to the Marshal Daandels. The surest mode of correspondence, is by way of England or Paris, through the channel of the Dutch minister, as the American minister toill not refuse to inclose for him, a letter to me in his dispatches? This, I hope, is rashly and injuriously said ; the tourt cannot bring itself to believe, that the accredited minister of a country in amity with this would so far lend himself to the pur- poses of the enemy as to be the private instrument of conveying the dispatches of the enemy's government to their agent. The papers in question come from a person who seems to be invested with something of a public character, though of a peculiar kind, and they are upon public business, but I do not know whether they come strictly within the definition of dispatches. The writer of them had been sent to America from Batavia by the governor, to beat up for volunteers among the American merchants, in the hope of inducing them to embark themselves in the trade of that settlement. IIow far he had been acknowledged by the American government does not appear ; from the contents of the papers themselves he seems to have been stationed in America, not by the government of Holland, but by the Dutch governor of Batavia, rather as a commercial agent to drive a bargain with individuals, and to induce them to join in these speculations for the relief of the Batavian trade, than for any purposes of a more diplomatic nature. His commission was such that it might exist Avithout his being acknowledged as a public ac- credited minister by the American government, and therefore the claimant is, perhaps, entitled to the benefit of the distinction which has been taken, that these papers, though mischievous in their own nature, proceed from a person who is not clothed with any public official character. They came to the hands of this Amei'ican master among a variety of other letters from private persons ; they were concealed in an envelope, addressed to a private person, and were taken on board in a neutral country; these are circumstances which would rather induce the court to consider this case as excepted from the general rule which does not permit a neutral master, carrying dispatches for the enemy, to shelter himself under the plea of ig- norance. In the present instance the American master denies all knowledge of the contents of these papers, and the benefit of that denial will extend to the cargo ; it is not, therefore, a case in which the property is to be confiscated, although in this, as in every other instance in which the enemy's dispatches are found on board a ves- tsel, he has justly subjected himself to all the inconveniences of seizure and detention and to all the expenses of those judicial in- quiries which they have occasioned." CHAP. III.] THE "OKOZEMBO." 785 THE "MADISON." High Court of Admiralty, 1810. (Edwards, 22i.) Judgment. — Sir Wm. Scott : ^ — "Now I am of opinion, that a communication from the Danish Government to its own consul in America, does not necessarily im- ply anything that is of a nature hostile or injurious to the interests of this country. It is not to be so presumed; such communica- tions must be supposed to have reference to the business of the con- sul-general's office, which is to maintain the commercial relations of Denmark with America. If such communications were interdicted the functions of the official persons would cease altogether. * * * "A Danish consul-general in America is not stationed there merely for the purpose of Danish trade, but of Danish-American trade; his functions relate to the joint commerce in which the two countries are engaged, and the case, therefore, falls within the prin- ciple which has been laid down in the case of the Caroline in regard to despatches from the enemy to his ambassador resident in a neu- tral country." THE "OEOZEMBO." High Court of Admiralty, 1807. (6 C. Robinson, 430.) This was a case of an American vessel that had been ostensibly chartered by a merchant at Lisbon " to proceed in ballast to Macao, and there to take a cargo to America," but which had been after- wards, by his directions, fitted up for the reception of three military oflBcers of distinction and two persons in civil departments in the government of Batavia, who had come from Holland to take their passage to Batavia, under the appointment of the Government of Holland. There were also on board a lady, and some persons in the capacity of servants, making in the whole seventeen passengers. Judgment, — Sir W. Scott : — " This is the case of an admitted American vessel ; but the title to ^ Facts omitted and only extracts from the opinion are given. — Ed. 50 ,786 BELLIGERENTS AND NEUTRALS. [PART IT. restitution is impugned, on the ground of its having been employed, at tlie time of tlie capture, in tlie service of the enemy, in transport- ing military persons first to Macao and ultimately to Batavia. That a vessel hired by the enemy for the conveyance of military persons is to be considered as a transport subject .to condemnation, has been in a recent case held by this court, and on other occasions. " What is the number of military persons that shall constitute such a case, it may be difQcult to define. In the former case there vt^ere many, in the present there are much fewer in number ; but I accede to what has been observed in argument, that number alone is an insignificant circumstance in the considerations, on which the principle of law on this subject is built, since fewer persons of high quality and character may be of more importance, than a much greater number of persons of lower condition. To send out one vet- eran general of France to take the command of the forces at Batavia, might be a much more noxious act than the conveyance of a whole regiment. The consequences of such assistance are greater; and therefore it is what the belligerent has a stronger right to prevent and punish. In this instance the military persons are three, and there are, besides, two other persons, who were going to be employed in civil capacities in the government of Batavia. Whether the prin- ciple would apply to them alone, I do not feel it necessary to deter- mine. I am not aware of any case in which that question has been agitated ; but it appears to me, on principle, to be but reasonable that, whenever it is of sufficient importance to the enemy that such persons should be sent out on the public service, at the public ex- pence, it should afl:ord equal ground of forfeiture against the vessel that may be let out for a purpose so intimately connected with the hostile operations. " It has been argued, that the master was ignorant of the charac- ter of the service on which he was engaged, and that, in order to support the penalty, it would be necessary that there should be some proof of delinquency in him, or his owner. Bat, I conceive, that is oiot necessary ; it will be suflicient if there is an injury arising to the belligerent from the employment in which the vessel is found. In the case of the Swedish vessel there was no me)is rea in the owner, or in any other person acting under his authority. The master was an involuntary agent, acting under compulsion, put upon him by the officers of the French government, and, so far as intention alone is considered, perfectly innocent. In the same manner, in cases of hona fide ignorance, there may be no actual dehnquency, but if the service is injurious, that will be sufficient to give the belligerent a right to prevent the thing from being done, or at least repeated, by enforcing CHAP. III.] THE " OROZEMBO." 787 the penalty of confiscation. If imposition has been practiced, it operates as force; and if redress in the way of indemnification is to be souglit against any person, it mnst be against those, wlio have, by means eitlier of compulsion or deceit, exposed the property to dan- ger. If, therefore, it was the most imiocent case on the part of the master, if there was nothing whatever to affect him with pi-ivity, the whole amount of this argument would be, that he must seek his re- dress against the freighter ; otherwise such opportunities of convey- ance would be constantly used, and it would be almost impossible, in the greater number of cases, to prove the knowledge, and privity of the immediate offender. " It has been argued throughout, as if the ignorance of the master alone would be sufficient to exempt the property of the owner from confiscation. But may there not be other persons, besides the mas- ter, whose knowledge and privity would carry with it the same consequences ? " Suppose the owner himself had knowledge of the engagement, would not that produce the }nens rea., if such a thing is necessary? or if those who had been employed to act for the owner, had thought fit to engage the ship in a service of this nature, keeping the master in profound ignorance, would it not be just as effectual, if the rnens rea is necessary, that it should reside in those persons, as in the owner ? " The observations which I sliall have occasion to make on the re- maining parts of this case will, perhaps, appear to justify such a supposition, either that the owner himself, or those who acted for him in Lisbon or in Holland, were connusant of the nature of the whole transaction. But I will first state distinctly, that the prin- ciple on which I determine this case is, that the carrying military persons to the colony of an enemy, who are there to take on them the exercise of their military functions, will lead to condemnation, and that the court is not to scan with minute arithmetic the number of persons that are so carried. If it has appeared to be of sufficient importance to the government of the enemy to send them, it must be enough to put the adverse government on the exercise of their right of prevention ; and the ignorance of the master can afford no i ground of exculpation in favour of the owner, who must seek his ' remedy in cases of deception, as well as of force, agauist those who have imposed upon him." ^ 1 See the cases of The Friendship, 1807, 6 C. Rob. 420 ; and The Caroline, 1802, 4 C. Rob. 256. In iill these cases the offence is rather the engagement of the vessel as an enemy }\ transport than the mere carrying of hostile persons as passenjjers. 788 BELLIGERENTS AND NEUTEALS. [PART II. "THE PANAMA." Supreme Court of the United States, 1899. (176 United States, 535.) At the time of the breaking out of the recent war with Spain, a Spanish mail steamship was on a voyage from New York to Havana, carrying a general cargo, passengers, and mails, and having mounted on board two breech-loading Hontoria guns of nine centimetre bore, and one Maxim rapid-tiring gun, and having also on board twenty Remington rifles and ten Mauser rifles, with ammunition for all the guns and rifles, and thirty or forty cutlasses. Her armament had been put on board more than a year before, for her own defence, as required by her owner's mail contract with the Spanish Government, which also provided that, in case of war, that government might take In a note to the case of The Friendship, Dr. Robinson says : "The act of carrying tlio soldiers of tiie enemy li.is been in former wars assinnlateJ to contraband, by public proclamation and instructions, and lias been declared to render tiie ship liable to condemnation. The declaration of war, 25th March, 1744, concludes with the following clause : " ' And we do hereby command our own subjects, and advertise all other persons of whatever nation soever, not to transport or carry any soldiers, arms, powder, am- munition, or other contraband goods, to any of their territories, lands, plantations, or countries of the said i'rench King, declaring, that whatsoever ship or vessel sliail be met withal transporting or carrying any soldiers, arms, powder, ammunition, or other contraband goods, etc. * * * ^ the same being taken, shall be condemned as good and lawful prize.' "The same declaration is also inserted in the second article of the instruction to cruisers, of the same date ; also in the second article of the instructions in the war witli Spain, 20th Dec, 1768. "In the celebrateil Trent case, occurring in 1862, Messrs. Mason and Slidell were removed from a British private vessel by Commodore Wilkes of the .San Jacinto, a public vessel of the United States. Great Britain insisted that the riglits of a neutral vessel not only had been violated, for which she demanded apolog}', but she insisted tiiat those persons should be replaced and returned on board a British ship. This was done, and they were actually placed on board a British vessel in or near the harbor of Boston. They were not British subjects, and tiieir return could only have been de- manded for tiie reason that they had been torn from Briti.sh soil, and tl)e sanctity of Uritish soil, as represented by a British ship, had been violated. Citizenship or resi- dence had no influence upon the question." Per Mr. Justice Hunt in Crapo v. Kelley, 1872, 16 Wall. 610, 0:51. It may be said that Mr. Seward, at tliat time Secretary of State, admitted that these persons could not lawfully be taken from the Trent at sea, but contended th;it it niijrht liMvc been l)roMghtMn as prize. See Lawrent-e's Wheaton, y.30; Dana's Wheaton, 611; :i Wharton's Digest, §§ :]2r), .'328, 329, ?,74 ; Bernard, Neutrality of Great Britain, 187-225. For a conservative British view, see Hall, Int. Law, 705-708. — Ed. CHAP. III.] THE " PANAMA." 789 possession of the vessel with her equipment, increase her armament, and use her as a war vessel, and, in these and other provisions, con- templated her use for hostile purposes in time of war. From the decree of the District Court for the Southern District of Florida, condemning the steamship, an appeal was taken to the Supreme Court of the United States.^ Mr. Justice Ghay delivered the opinion of the court.^ The recent war with Si)ain, as declared by the act of Congress of April 25, 1898, c. 189, and recognized in the President's proclamation of April 26, 1898, existed on and after April 21, 1898. 30 Stat. 364, 1770. This proclamation declared, among the rules on which the war would be conducted, the following: " 4. Spanisli merchant vessels, in anj' ports or places within the United States, shall be allowed till May 21, 1898, inclusive, for loading their cargoes and departing frcni such ports or places ; and sucii Spanish merchant vessels, if met at sea by any United States ship, shall be permitted to continue their voyage if, on examination of their papers, it shall appear that their cargoes were taken on board before the expira- tion of the above term: Provided, that nothing herein contained shall apply to Span- ish vessels having on board any officer in tiie military or naval service of the enemy, or any coal (except such as may be necessary for their voyage), or any other article proliibiied or contraband of war, or any despatch of or to tlie Spanish Government." "G. Tlie riglit of searcli is to be exercised with strict regard for tlie rights of neu- trals, and the voyages of mail steamers are not to be interfered with except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade." It has been decided by this court, in the recent case of The Buena Ventura, 175 U. S. 384, that a Spanish merchant vessel, which had sailed before April 21, 1898, from a port of the United States on a vovage to a foreign port, not having on board any officer in the mili- tary or naval service of Spain, nor any article contraband of war, nor any despatch of or to the Spanish Government, was protected by the fourth clause of the President's proclamation of April 26, 1898, from condemnation while on that voyage; but that her capture, before that proclamation was issued, was with probable cause ; and that she should therefore be ordered to be restored to her owner, but without damages or costs. That case would be decisive of this one, but for the mails and the arms carried by the Panama^ and the contract with the Spanish Government under which the arms were put on board. It was argued in behalf of the claimant that, independently of her being a merchant vessel, she was exempt from capture by reason of 1 The head-note of the official reporter so admirably states the case that it is substi- tuted for tlie statement of the court. — Ed. 2 Part of the opinion is omitted. — Ed. 790 BELLIGERENTS AND NEUTRALS. [PART II. her being a mail steamship and actually carrying mail of the United States. There are instances in modern times, in which two nations, by con- vention between themselves, have made special agreements concerning the mail ships. But international agreements for the immunity of the mail ships of the contracting parties in case of war between them have never, we believe, gone farther than to provide, as in the postal convention between the United States and Great Britain in 1848, in that between Great Britain and France in 1833, and in other similar conventions, that the mail packets of the two nations shall continue their navigation, without impediment or molestation, until a notifica- tion from one of the governments to the other that the service is to be discontinued; in which case they shall be permitted to return freely, and under special protection, to tlieir respective ports. And the writers on international law concur in affirming that no provi- sion for the immunity of mail ships from capture has as yet been adopted by such a general consent of civilized nations as to constitute a rule of international law. 9 Stat. 969; Wheaton (8th ed.), pp. 659- 661, Dana's note; Calvo (5th ed.), §§ 2378, 2809; De Boeck, §§ 207, 208. De Boeck, in § 208, after observing that, in the case of mail packets between belligerent countries, it seems difficult to go farther than in the convention of 1833, above mentioned, proceeds to discuss the case of mail packets between a belligerent and a neutral country, as follows : " It goes without saying that each belligerent may stop the departure of its own mail packets. But can either intercept enemy mail packets ? There can be no question of intercepting neu- tral packets, because communications between neutrals and belliger- ents are lawful, in principle, saving the restrictions relating to bloctk- ade, to contraband of war, and the like ; the right of search furnishes belligerents with a sufficient means of control. But there is no doubt that it is possible, according to existing practice, to intercept and seize the enemy's mail packets." The provision of the sixth clause of the President's proclamation of April 26, 1898, relating to interference with the voyages of mail steamships, appears by the context to apply to neutral vessels only, ' and not to restrict in any degree the authority of the United States, or of their naval officers, to search and seize vessels carrying the mails between the United States and the enemy's country. Nor can the autliority to do so, in time of war, be affected by the facts that before the war a collector of customs had granted a clearance, and a postmaster had put mails on board, for a port which was not then, but lias since become, enemy's country. Moreover, at the time of the capture of tlie Fanama, this proclamation had not been issued. With- CHAP. III.] THE " PANAMA." 791 -out an express order of the government, a merchant vessel is not privileged from search or seizure by the fact that it has a govern- ment mail on board. The Peterhoff, 5 Wall. 28, 61. The mere fact, therefore, that the Fanama was a mail steamship, or ■ that she carried mail of the United States on this voyage, does not 1 afford any ground for exempting her from capture. The remaining question in the case is whether the Panama came within the class of vessels described in the fourth clause of the Presi- dent's proclamation of April 26, 1898, as " Spanish merchant vessels," and as not " Spanish vessels having on board any officer in the mili- tary or naval service of the enemy, or any coal (except such as may be necessary for their voyage) or any other article prohibited or con- traband of war, or any despatch of or to the Spanish Government.'' On the part of the claimant, it was argued that the arms which the Panama carried, under the requirements of her mail contract and for the protection of the mails, are not to be regarded as contraband or munitions of war, within the sense of this clause ; that '' contraband," as therein referred to, means contraband cargo, not contraband por- tion of the ship's permanent equipment ; and that, if the furnishings of a ship could be regarded as contraband, every ship would have contraband on board. On the other hand, it was contended, in support of the condemna- tion, that the arms which the Panama carried, belonging to her owner, were contraband of war, and rendered her liable to capture ; and that by reason of her being so armed, and of the provisions of her mail contract with the Spanish Government, requiring her armament, and recognizing the right of that government, in case of a suspension of the mail service by war, to take possession of her for warlike pur- poses, she cannot be considered as a merchant vessel, within the mean- ing of the proclamation, but must be treated like any regular vessel of the Spanish navy under similar circumstances. The claimant much relied on a case decided in 1800 by the French Council of Prizes, in accordance with the opinion and report of Por- talis, himself a high authority. Wheaton (8th ed.), p. 400 ; De Boeck, § 81. In the case referred to, an American vessel, carrying ten can- non of various sizes, together with muskets and munitions of war, had been captured by French fi-igates; and had been condemned by two inferior French tribunals, upon the ground that she was armed for war, and had no commission or authoritj' from her own government. The claimants contended that their ship, being bound for India, was armed for her own defence, and that the munitions of war, the mus- kets and the cannon that composed her armament did not exceed what was usual in like cases for long voyages. Upon this point Por- 792 BELLIGERENTS AND NEUTRALS. [PART IT. talis, acting as commissioner of the French Government, reported his conclusion on the question of armament as follows : '' For my part, I do not think it is enou^^h to have or to carry arras, to incur the ' reproach of being armed for war. Armament for war is of a purely offensive nature. It is established when there is no other object in the armament than that of attack, or, at least, when everything shows that such is the principal object of the enterprise ; then a vessel is deemed enemy or pirate, if she has no commission or papers sufficient to remove all suspicion. But defence is a natural right, and means of defence are lawful in voyages at sea, as in all other dangerous occupations of life. A ship which had but a small crew, and a con- siderable cargo, was evidently intended for commerce, and not for war. The arras found on this ship were evidently intended, not for committing acts of rapine or hostility, but for preventing them ; not for attack, but for self-defence. The pretext of being armed for war therefore appears to rae to be unfounded." The Council of Prizes, upon consideration of the report of Portalis, adjudged that the cap- ture of the vessel and her cargo was null and void, and ordered them to be restored, with damages. The Pegou, or Piffoii, 2 Pistoye et Duverd}', Prises Maritiraes, 5.1; s. c. 2 Cranch, 96-98, and note. But in that case the only question at issue was whether a neutral merchant vessel, carrying arras solely for her own defence, was liable to capture for want of a commission as a vessel of war or privateer. That the capture took place while there was no state of war between France and the United States is shown by her being treated, throughout the case, as a neutral vessel ; if she had been enemy's property, she would have been lawful prize, even if she had a commission, or if she were unarmed. She was not enemy's property, nor in the enemy's possession, nor bound to a port of the enemy, nor had her owner made any contract with the enemy by which the enemy was, or would be, under any circumstances, entitled to take and use her, either for war, or for any other purpose. Generally speaking, arms and ammunition are contraband of war. In The Peterhoff, 5 ^Yall. 28, Chief Justice Chase, delivering the judg- ment of this court, said : " The classification of goods as contraband or not contraband has much perplexed text-writers and jurists. A strictly accurate and satisfactory classification is perhaps impractica- ble ; but that which is best supported by American and English deci- sions may be said to divide all merchandise into three classes. Of these classes, the first consists of articles manufactured, and prima- rily and ordinarily used, for military purposes in time of war; the the second, of articles which may be and are used for purposes of war or peace, according to circumstances; and the third, of articles CHAP. III.] THE " PANAMA." 793 exclusively used for peaceful purposes. Merchandise of the first class, destined to a belligerent country or places occupied by the army or navy of a belligerent, is always contraband ; merchandise of the second class is contraband only when actually destined to the military or naval use of a belligerent ; while merchandise of the third class is not contraband at all, though liable to seizure and condemna- tion for violation of blockade or siege." And it was adjudged that so much of the cargo of the Peferhoff, as consisted of artillery harness, artillery boots, and army shoes and blanket?, came fairly under the description of goods primarily and ordinarily used for military pur- poses in time of war; and, being destined directly for the use of the rebel military service, came within the second, if not within the first class of goods contraband of war. 5 Wall. 58. Yet it must be admitted that arms and ammunition are not contra- • band of war, when taken and kept on board a merchant vessel as part of her equipment, and solely for her defence against " enemies, pirates, and assailing thieves," according to the ancient phrase still retained in policies of marine insurance. Pratt, in his essay on the Law of Contraband of AVar, speaking of the class of '.' articles which are of direct use in war," says: "With respect to these no questions can arise. On proof of the use of the article being solely or particularly applicable to hostile purposes, the conveyance of it to the enemy would amount to such a direct interposition in the war as necessarily to entail the confiscation of the property." But he afterwards adds this qualification : " But even in the case of articles of direct use in war, an exception is always made in favor of such a quantity of them as may be supposed to be necessary for the use or defence of the ship." And again, speaking of " warlike stores," he says : " These are, from their very nature, evidently contraband ; but every vessel is, of course, allowed to carry such a quantity as may be necessary for purposes of defence ; this provision is expressly introduced in many treaties." Pratt, Contraband of War, xxii, xxv, xl. And at pages 239, 244, 245 of his appendix he quotes express provisions to tlnit effect in the treaties between Great Britain and Russia in ITGG, 1797, and 1801. See also Cases of Dutch and Spanish S/iijJS, 6 C. Rob. 48; The Hapjjy Covple, Stewart Adm. (Xova Scotia), 65, 69 ; Mad- ison, quoted in 3 Whart. Int. Law Dig. § 368, p. 313. But the fact that arms carried b}'- a merchant vessel were originally taken on board for her own defence is not conclusive as to her charac- ter. This is clearly shown by the case of The Amelia (1801), reported by the name of Talbot v. Seeman, 1 Cranch, 1. In that case, during the naval warfare between the United States and France near the end of the last century, a neutral merchant vessel, having eight iron can- 794 BELLIGERENTS AND NEUTRALS. [PART II. non and eight wooden guns mounted on board, and a cargo of mer- chandise, sailed from Calcutta for Hamburg, both being neutral ports ; and before reaching her destination was captured by a French cruiser, and put by her captors, with the cannon still on board, in charge of a French prize crew, with directions to take her into a French port for adjudication as prize ; and on her way thither was recaptured by a United States ship of war. The recapture was held to be lawful, and to entitle the recaptors to salvage before restoring the vessel to her neutral owner, because, as Chief Justice Marshall said, " The Amelia was an armed vessel commanded and manned by Frenchmen," " she was an armed vessel under French authority, and in a condi- tion to annoy the American commerce." 1 Cranch, 32. And in T/ie Charming Betsy, 1804, 2 Cranch, G4, that ease was expressly approved, as a precedent to be followed imder similar circumstances ; but was held to be inapplicable where the arms on board at the time of the recapture were but a single musket and a small amount of powder and ball. 2 Cranch, 121. Notwithstanding that the Amelia was a neutral vessel, Avith an armament originally taken on board for defence only, and therefore, while in the possession of her neutral owner, would not (according to the French case above cited) have I been liable to capture as an armed vessel, yet, after she had been taken possession of by the enemy, with the same armament still on board, and thus was in a condition to be used by the enemy for hostile purposes, the fact that the original purpose of the armament was purely defensive did not prevent her from being considered as an armed vessel of the enemy. While the authorities above referred to present principles and analogies worthy of consideration in the case at bar, they furnish no conclusive rule to govern its determination. The decision of this case must depend upon its own facts, and upon the true construction of the President's proclamation. As to the facts, there is no serious dispute. The matters stated in the test affidavits upon which the motion for further proof was based, add nothing of importance to the facts disclosed by the testimony in preparatorio, ?iwdi by the mail contract between her owner and the Spanish Government, which forms part of the ship's papers. That contract contains many provisions looking to the use of the company's steamships by the Spanish Government as vessels of war. Among other things, it requires that each vessel shall have the capac- ity to carry 500 enlisted men ; that that government, upon inspection of her plans as prepared for commercial and postal purposes, may order lier deck and sides to be strengthened so as to support additional artillery ; and that, in case of the suspension of the mail service by a CHAP. III.] THE " PANAMA." 79o naval war, or by hostilities in any of the seas or ports visited by the company's vessels, the government may take possession of them with their equipment and supplies, at a valuation to be made by a commis- sion; and shall, at the termination of the war, return them to the company, paying five per cent on the valuation while it has them in its service, as well as an indemnity for any diminution in their value. The Panama was not a neutral vessel ; but she was enemy property, and as such, even if she carried no arms (either as part of her equip- ment, or as cargo), would be liable to capture, unless protected by the President's proclamation. It may be assumed that a primary object of her armament, and, in time of peace, its only object, was for purposes of defence. But that armament was not of itself inconsiderable, as appears, not only from the undisputed facts of the case, but from the action of the District Court, upon the application of the commodore commanding at the port where the court was held, and on the recommendation of the prize commissioners, directing her arms and ammunition to be deliv- ered to the commodore for the use of the Navy Department. And the contract of her owner with the Spanish Government, pursuant to which the armament had been put on board, expressly provided that, in case of war, that government might take possession of the vessel with her equipment, increase her armament, and use her as a war vessel ; and, in these and other provisions, evidently contemplated her use for hostile purposes in time of war. She was, then, enemy property, bound for an enemy port, carrying an armament susceptible of use for hostile purposes, and herself liable, upon arrival in that port, to be appropriated by the enemy to such purposes. The intent of the fourth clause of the President's proclamation was to exempt for a time from capture peaceful commercial vessels ; not to assist the enemy in obtaining weapons of war. This clause exempts '' Spanish merchant vessels •' only ; and expressly declares that it shall not apply to " Spanish vessels having on board any officer in the mili- tary or naval service of the enemy, or any coal (except such as may be necessary for their voyage) or any other article prohibited or contra- band of war, or any despatch of or to the Spanish Government." Upon full consideration of this case, this court is of opinion that the proclamation, expressly declaring that the exemption shall not apply to any Spanish vessel having on board any article prohibited or contraband of war, or a single military or naval officer, or even a despatch, of the enemy, cannot reasonably be construed as including, in the description of "Spanish merchant vessel," which are to be tem- porarily exempt from capture, a Spanish vessel owned by a subject of 796 BELLIGERENTS AND NEUTKALS. [PAET 11. the enemy ; having an armament fit for hostile use ; intended, in the event of war, to be used as a war vessel; destined to a poi-t of the enemy ; and liable, on arriving there, to be taken possession of by the enemy, and employed as an auxiliary cruiser of the enemy's navy, in the war with this country. The result is, that the Panama was lawfully captured and con* demned, and that the decree of the District Court must be Affirmed. Mr. Justice Peckham, dissented. Section 44. — Blockade. THE "NEPTUNUS." High Court of Admiralty, 1799. (2 C. Robinson, 110.) This was a case of a vessel sailing on a voyage from Dantzic to Havre, 26th October, 1798, and taken in attempting to enter that port on 26th November. Judgment, — Sir Wm. Scott: — "This is a case of a ship and cargo seized in the act of entering the port of Havre in pursuance of the original intention nnder which the voyage began. The notification of the blockade of that port ■was made on the 23d January, 1798, and this transaction happened in November in that year; the effe(!t of a notification to any foreign government would clearly be to include all the individuals of that nation ; it would be the most nugatory thing in the world, if indi- viduals were allowed to plead their ignorance of it ; it is the duty of foreign governments to communicate the information to their sub- jects, whose interests they are bound to protect. I shall hold there- fore that a neutral master can never be heard to aver against a notification of blockade, that he is ignorant of it. If he is really ignorant of it, it may be a subject of representation to his own gov- ernment, and may raise a claim of compensaticm from them, but it can be no plea in the court of a belligerent. In the case of a block- ade de facto only, it may be otherwise, but this is the case of a blf)ckade by notifi(;ation ; another distinction between a notified blockade and a blockade existing da facto only, is that in the former^ CHAP. IIT.] THE "NEPTUNUS." 797 the act of sailing to a blockaded place is sufficient to constitute the offence. It is to be presumed that the notification will be fornuilly revoked, and that due notice will be given of it ; till that is done, the port is to be considered as closed up, and from the moment of quitting port to sail on such a destination, the offence of violating the blockade is complete, and the property engaged in it subject to confiscation : it may be different in a blockade existing de facto only ; there no presumption arises as to the continuance, and the ignorance of the party may be admitted as an excuse, for sailing on a doubtful and provisional destination. But this is a case of a ves- sel from Dantzick after the notification, and the master cannot be heard to aver his ignorance of it. He sails : — till the moment of meeting Admiral Duncan's fleet, I should have no hesitation in say- ing, that, if he had been taken, he would have been taken in delicto^ and have subjected his vessel to confiscation ; but he meets Admiral Duncan's fleet, and is examined, and liberated by the captain of an English frigate belonging to that fleet, wdio told him that he might proceed on his destination, and who, on being asked, Whether Havre was under a blockade? said, 'it was not blockaded,' and wished him a good voyage. The question is. In what light he is to be considered after receiving this information? That it was ic»??« Jide given cannot be doubted, as they Avould otherwise have seized the vessel ; the fleet must have been ignorant of the fact ; and I have to lament that they w^ere so : When a blockade is laid on, it ought by some kind of communication to be made known not only to foreign governments, but to the King's subjects, and particularly to the King's cruisers ; not only to those stationed at the blockaded ports, but to others, and especially considerable fleets, that are sta- tioned in itinere, to such a port from the different trading coun- tries that may be supposed to have an intercourse with it. " Perhaps it would have been safer in the English captain to have answered, that he could not say anything of the situation at Havre ; but the fact is (and it has not been contradicted), that the British officer told the master ' that Havre was not blockaded.' Under these circumstances, I think that after this information he is not taken in delicto. I do not mean to say that the fleet could give the man any authority to go to a blockaded port ; it is not set up as an authority, but as intelligence affording a reasonable ground of be- lief ; as it could not be supposed, that such a fleet as that was, would be ignorant of the fact. " From that time I consider that a state of innocence commences; the man was not only in ignorance, but had received positive infor- mation that Havre was not blockaded. Under these circumstances, 798 BELLIGERENTS AND NEUTRALS. [PART II. I think it would be a little too hard to press the former offence against him ; it would be to press a pretty strong principle rather too stronglj' ; I think I cannot look retrospectively to the state in which he stood before the meeting with the British fleet, and there- fore I shall direct this vessel and cargo to be restored." THE "BETSEY." High Court of Admiralty, 1798. (1 C. Robinson, 92 a.) Judgment. — Sir W. Scott : ^ — " On the question of blockade three things must be proved : 1st, the existence of an actual blockade; 2dly, the knowledge of the party ; and, 3dly, some act of violation, either by going in, or by [ coming out with a cargo laden after the commencement of blockade. The time of shipment would on this last point be very material, for although it might be hard to refuse a neutral liberty to retire with a cargo already laden, and by that act already become neutral prop- erty ; yet, after the commencement of a blockade, a neutral cannot, I conceive, be allowed to interpose in any way to assist the exporta- tion of the property of the enemy. After the commencement of the blockade, a neutral is no longer at liberty to make any purchase in that port. " It is necessary, however, that the evidence of a blockade should be clear and decisive : but in this case there is only an affidavit of one of the captors, and the account which is there given is, 'that on the arrival of the British forces in the West Indies, a proclamation, inviting the inlia])itants of Mai'tinique, St. Lucie, and Guadaloupe to put themselves under the protection of the English ; that on a re- fusal, hostile operations were commenced against them all ; ' but it cannot 1)6 meant that they began immediately against all at once; for it is notorious that they were directed against them separately and in succession. It is further stated, 'that in January, 1794 (but without any more precise date), Guadaloupe was summoned, and was then put into a state of complete investment and blockade.' " I'he word complete is a word of great energy ; and we might ex- pect from it to find, that a number of vessels were stationed round 1 Facts omiUed, and only part of the judgment is given. —Ed. CHAP. III.] THE "BETSEY." 799 the entrance of the port to cut off all communication : but, from the protest, I perceive that the captors entertained but a very loose no- tion of the true nature of a blockade ; for it is there stated, ' that on the 1st of January, after a general proclamation to the French islands, the}' were put into a state of complete blockade.' It is a term, therefore, which was applied to all those islands at the same time, under the first proclamation. " The Lords of Appeal have determined that such a proclamation was not in itself sufficient to constitute a legal blockade : it is clear, indeed, that it could not in reason be sufficient to produce the effect, which the captors erroneously ascribed to it : but from the misap- plication of these phrases in one instance, I learn, that we must not give too much weight to the use of them on this occasion ; and, from the generality of these expressions, I think, we must infer, that there was not that actual blockade which the law is now distinctly understood to require. " But it is attempted to raise other inferences on this point, from the manner in which the master speaks of the difficulty and danger of entering ; and from the declaration of the municipality of Guada- loupe, which states ' the island to have been in a state of siege.' It is evident the American master speaks only of the difficulty of avoid- ing the English cruisers generally in those seas ; and as to the other phrase, it is a term of the new jargon of France, which is sometimes applied to domestic disturbances ; and certainly is not so intelligible as to justify me in concluding, that the island was m a state of in- vestment, from a foreign enemy, which we require to constitute blockade : I cannot, therefore, lay it down, that a blockade did exist, till the operations of the forces were actually directed against Gua- daloupe in April. " It would be necessary for me, however, to go much farther, and to say that I am satisfied also that the parties had knowledge of it : but this is expressly denied by the master. He went in without ob- struction. Mr. Incledon's statement of his belief of the notoriety of the blockade is not such evidence as will alone be sufficient to con- vince me of it. With respect to the shipment of the cargo, it does not appear exactly under what circumstances or what time it was taken in : I shall therefore dismiss this part of the case. * * * " 800 BELLIGERENTS AND NEUTRALS. [PART 11. THE "PANAGHIA EHOMBA." Privy Council, 1858. (12 Moore's Privy Council, 168.) The Right Hon. T. Pemberton Leigh : ^ — This case invoU'es a general principle of so much importance that their lordships thought it desirable to take time for its consideration, although they had a strong impression at the hearing as to the decision at which they must arrive. The Panaghia Rliomha took in a cargo of wheat at Galatz, in the mouth of September, 1855, to be conveyed to the Piraeus or Syra, on the joint account of Signor Cuppa, an Ionian merchant, resident in Constantinople, and of ]\[essrs. Baltazzi, British merchants, resident in London. In the montli of Xovember following, the vessel was captured by lier Majesty's ship Dauntless, for an attempt to violate the blockade of tlie port of Odessa, which had subsisted from the month of February, 1855, and was then continuing. The ship has been condemned by the court below upon evidence which quite satisfies their lordships of the propriety of the sentence; and the question now raised is, whether it is competent to the claim- ants of the cargo to protect their property from condemnation by showing their innocence in the transaction ; or whether, under the circumstances of this case, the owners of the cargo are concluded by the illegal act of the master, though it may have been done without their privity, and even contrary to their wishes. It has been held by the court below, that the owners are so con- cluded, and that the rule upon the subject is established by authority not now to be questioned. The first case to which we have been referred is the Mercuriiis (1 Rob. 80), which came before Lord Stowell in 1798. There a cargo had been put on board the Mercnrius in America, at a time when it could not have been known in that country that a blockade of the Texel had been established. The master, after warning, attempted to enter the Texel, and the ship was condemned, because the owner was bound by the act of the master; but the cargo was restored, because, as Lord Stowell observes, tlie shippers at the time of shipment could not have known of the blockade, and the master, tliough he was the agent of 1 Facts omitted as the judgment sufficiently states the case. — Ed. CHAP. III.] THE "PANAGHIA RHOMBA." 801 owner of the vessel, and could bind hiiu by his contract or his miscon- duct, was not the agent of the owners of the cargo, unless expressly so constituted by them. Lord Stowell, in that case, addressed himself to the argument of the captors, that to exempt the cargo from condem- nation would open a door to fraud, if neutrals were allowed to trade ■with blockaded ports with immunity, by throwing the blame upon the carrier-master ; and, in answer to that objection, he observed, that " if such an artifice could be proved, it would establish that mens rea in the neutral merchant which would expose his property to confiscation, and it would be at the same time sufficient to cause the master to be considered in the character of agent, as well for the cargo as for the ship." In that case Lord Stowell seems to have thought that the owners of the cargo were not bound by the act of the master without their authority, and the judgment seems rather to warrant the marginal note which the very learned reporter has stated as the effect of it, namely, " Violation of blockade by the master affects the ship, but not the cargo, unless the property of the same owner, or unless the owner is cognizant of the intended violation." Now, in the present case, Dr. Lushington has stated his conviction that the owners of the cargo were innocent of all knowledge of the intended violation; and if, therefore, the law remained as it is to be collected from the case of the Mcrcurius, their lordships would have great difficulty in assenting to the decision now under review. But subsequent cases seem to liave carried the rule much further, ( and to have established that when the blockade was known, or might , have been known, to the owners of the cargo at the time when the shipment was made, and they might, therefore, by possibility be privy to an intention of violating the blockade, such privity shall be assumed as an irresistible inference of law, and it shall not be competent to them to rebut it by evidence; that in cases of blockade, for the purpose of affecting the cargo with the rights of the belligerent, the master shall be treated as the agent for the cargo as well as for the ship. This is the result of the cases cited by Dr. Lushington in his judg- ment, and the additional authorities mentioned at the bar. In the case of the Alexander (4 Rob. 94), which occurred in 1801, Lord Stowell held that, in cases of breach of blockade, the court must infer " that a ship going in fraudulently, is going in the service of tlie cargo, with the knowledge and by the direction of the owner." In the case of the Adonis (5 Rob. 259), which occurred in 1804, he went a step further, and held not only that such inference must be made, but that (with the exception to which we have already referred) the owners could be not let in to prove a contrary intention. This case 51 802 BELLIGERENTS AND NEUTRALS. [PART II. was affirmed upon appeal, and it possesses, tlierefore, all the authority Avhich the decisions of the tribunal of a single country can give in a law in which all civilized countries are concerned. The same doctrine is laid down by the same great judge in the case of the Exchange (1 Edward's Eep. 42), in 1808, and in the James Cook (1 Edwards, 261) in 1810. We find, therefore, a series of authorities establishing a general rule, which, like all general rules, may in its application to particular cases be occasionally attended with hardship, but which, nevertheless, may be necessary to prevent fraud, and may, on the whole, promote the purposes of justice. It is a rule not applicable exclusively to neu- trals, but applies with equal force to all persons attempting to vio- late a blockade, though they may be the subjects or the allies of the countrj'- which has established it. In the present case, indeed, Messrs. Baltazzi, the claimants, are British subjects. The propriety, or rather the necessity, of acting upon these rules, is rested by Lord Stowell on the notoriety of the fact that in almost all cases of breach of blockade, the attempt is made for the benefit and with the privity of the owners of the cargo ; that if they were at liberty to allege their innocence of the act of the master, it would always be easy to manufacture evidence for the purpose, which the captors would have no means of disproving; and that, in order to make a blockade effectual, it is essential to hold the cargo responsible to the blockading power for the act of the master, to whom the control over it has been entrusted, leaving the owners to seek their remedy against the master or the owners of the ship, if, in reality, the penalty was incurred without any privity on their part. It is impossible not to feel the force of this reasoning ; it rests on the same grounds with another rule of the Prize Courts, which treats as invalid the sale of a ship in transitu, a point upon which we have had very recently to examine the law.^ Against a rule, acted upon and promulgated to the world for so many years, the counsel for the appellants, though challenged to do so by the respondents, have not produced a single decision or dictum by any one judge or jurist in any part of the world. Under these circum- stances, their lordships must consider it as a settled principle of prize law by which they are bound. Holding themselves to be precluded by the rule of law from looking into the evidence in the case in order to judge of the guilt or inno- cence of the claimants, they can express no opinion upon this subject. But they think that, as the learned judge in the court below has de- clared his conviction of their entire innocence, and his reluctance to 1 In The Ballica, 11 Moore's P. C. Cases, 141. CHAP. III.] THE "JOHANNA MARIA." 803 pronounce the sentence complained of, the claimants may fairly be considered to have been invited to bring this appeal, and that in affirming the sentence, her Majesty should be advised to make the order without awarding costs against the appellants.^ THE '^JOHAXXA MARIA." Pkivy Council, 1855. (10 Moore's Privy Council, 70.) The Right Hon. T. Pf.mbertox Leigh: - — - This vessel entered Riga on the 20th of May, after all difficulty arising from the Order in Council of the loth of April had been re- moved. She came out again on the 21th of May, having taken on board a cargo, with a full knowledge of the existence of the blockade at the time of loading, and in the expectation, as it is said, that the worst that could happen would be that she would be sent back by the British ships forming the blockade, to unload her cargo. The only ground upon which she could ask to be relieved from con- demnation would be, that the letter of Sir Charles ISTapier, of the 27th of May, 1854, and the subsequent announcement by the British Gov- ernment in the London Gazette, of the 11th of August, would be sufficient to annul all that has previously taken place, and, on the ^ The gist of blockade is to prevent trade with the enemy : where this feature is wanting, courts are not over stringent in applying the strict rule of condenination. Thus, in U. S. v. Guillem, 1850, 11 How. 47, a Frenchman was permitted to leave Vera Cruz, a blockaded port, on board a French vessel, for France. Jlr. Chief Justice Taney, in a brief and careful opinion, made the following points : 1. That a neutral leaving a belligerent country, in which he was domiciled at tiie beginning of the war, is entitled to the rights of a neutral in his person and property, as soon as he sails from the hostile port ; 2. The property he takes with him is not liable to condemnation for a breach of blockade by the vessel in which he embarks, when entering or departing from tlie port, unless he knew of tiie intention of the vessel to break it in going out. Neutral vessels, lying in the enemy liarbor at the outbreak of war, are legally and innocently there. They are, therefore, permitted to depart in peace before applying the blockade. "The period," says Mr. Hall (Int. Law. 733). " which is allowed for the exit of sliips is usually fi.xed at fifteen days, and during this time vessels may issue freely in ballast or with a cargo bona fide bought and shipped before the commence- ment of the blockade. This time was given in 1848 and 1864 by Denmark ; by Eng- land and France during the Crimean war; by tlie United States during the civil war, and by France in the war of 1870." By proclamation of April 22, 1898, the late Presi- dent McKinley generously doubled this period. 19 Richardson's Messages and Papers, 202. — Ed. '^ Statement of the case omitted. — Ed. 804 BELLIGERENTS AXD NEUTRALS. [PART II, principles laid down by Lord Stowell, in The Holla (6 EoL. SGS), to postpone all penalties for breach of blockade till after tlie 28th of May. Their lordships, however, are of opinion that such a judgment would carry the doctrine referred to fui'ther than eitlier the decision itself or sound principle would warrant. In that case, Lord Stowell observed that the blockade had been verj' lax ; that several vessels had been permitted by the blockading squadron to enter, and the observations relied on must be understood with regard to the circum- stances out of which they arose. In this case, from the 5th of jNlay, there had been an uninterrupted blockade ; no single instance has been produced in which any vessel had been permitted by any of the blockading ships to enter the port ; nor had any been permitted to come out after tlie 15th of May, with cargoes subsequently loaded. There is clear proof of a de facto blockade ; full knowledge of it by the master, and nothing which could mislead him as to its extent or effect. The usual consequences must, therefore, follow, and the sen- tence below be affirmed, but witliout costs of the appeal. By respective Orders in Council the sentences in these cases, as well as the sentences relating to the condemnation of their cargoes, were reversed, and simple restitution decreed.' THE "FRAXCISKA." Privy Council, 1855. ( 10 Moore's Privy Council, 37.) On the 5th of April, 1854, the commander of the Baltic fleet block- aded, de facto, the coast of Courland, but his notice to the British Ministers, including the British Minister at Copenhagen, was of that character that the impression was that all the Russian ports in the Baltic were blockaded. The British Government also on that date issued an Order in Council, giving permission up to the 15th of j\Iay, for Russian vessels to discharge their cargoes from Russian ports in the Baltic and White Sea to their port of destination, even though those ports were in a state of blockade. A similiar permission was granted by the French Government. And tlie Russian Government by a Ukase allowed the same indulgence to English and French ships. 1 In addition to The liolla, 1807, G C. Rob. .364, the following cases were referred to in tlie argument: The Neptuwis, 179:), 2 C. Uob. 110, ante; The Juffrow Maria Schroeder, 1800, 3 (\ Rob. 147. — Eu. CHAP. HI.] THE "FRAXCISKA." 805 On the 14th of May, 1854, a neutral vessel, under Danish colors, sailed from Copenhagen for Riga, and was captured off Riga by an English ship of war on the 22d of that month, for a breach of the blockade of that port. From Dr. Lushington's decree of condemnatiou an appeal was taken to the Privy Council.^ The Eight Hon. T. Pembektox Leigh : ^ — As regards export, therefore, from the Baltic ports, by the effect of these several ordinances all restriction up to the loth of May, on the conveyance of cargoes in Russian vessels to British and French ports, was removed; and though British and French vessels would, by the general law of nations, be liable to confiscation for breach of blockade, by sailing from blockaded ports with cargoes taken on board after notice of the blockade, and the permission to export is, by the orders, in terms, confined to Russian vessels, it seems improbable that tlie Allied Powers could intend to deprive their subjects of the indulgence granted to them by the Russian Government, or to subject their prop- ert}' to confiscation for doing what the enemy was permitted to do with impunity. In effect, therefore, neutrals only would be excluded from that com- merce which belligerents might safely carry on ; and the question is, whether by the law of nations such exclusion be justifiable; and, if not, in what manner and to what extent neutral powers are entitled to avail themselves of the objection. That such exclusion is not justifiable is laid down in the clearest and most forcible language in the following passage of the judgment now under review: "The argument stands thus: by the law^ of, nations a belligerent shall not concede to another belligerent, or take for himself, the right of carrying on commercial intercourse pro- hibited to neutral nations ; and, therefore, no blockade can be legiti- mate that admits to either belligerent a freedom of commerce denied to the subjects of states not engaged in the war. The foundation of the principle is clear, and rooted in justice ; for interference with neutral commerce at all is only justified by the right which war con- fers of molesting the enemy, all relations of trade being by war itself suspended. To this principle I entirely concede ; and I should regret to think if any authority could be cited from the decisions of any British court administering tlie law of nations, which could be with truth asserted to maintain a contrary doctrine.'" The learned judge, after discussing the question how far licenses to enter blockaded ports would invalidate a blockade, and pointing out the important distinctions between blockades according to the ordinary ^ This statement is taken from the head-note of tlie case. — Ed. 2 Only a part of the elaborate opinion of this very learned judge is given. — Ed. 806 BELLIGERENTS AND NEUTRALS. [PART II. law of nations, and the blockades introduced during the last war by the Berlin and Milan decrees on the one hand, and the British Orders in Council on the other, and between special licenses granted for a particular occasion and licenses granted indiscriminately, proceeds, " I think that if the relaxation of a blockade be, as to belligerents, entire, the blockade cannot lawfully subsist ; if it be partial and such as to exceed special occasion, that, to the extent of such partial relaxation, neutrals are entitled to a similar benefit." And he concludes his able discussion of this part of the case, in these words : " With respect to the present question I, therefore, have come to the conclusion, that as Russian vessels might have left the ports of Courland up to the 15th of iNIay, the subjects of neutral states ought to be entitled to the same advantages, and if there be any vessel so circumstanced I should hold her entitled to restitution. I think the remedy should be commen- surate with the grievance." The learned judge holds that such re- laxation does not affect the general validity of the blockade. In order to judge how far this conclusion can be maintained, it is necessary to consider upon what principles the right of a belligerent to exclude neutrals from a blockaded port rests. That right is founded, not on any general unlimited right to cripple the enemy's commerce with neutrals by all means effectual for that purpose, for it is ad- mitted on all hands that a neutral has a right to carry on with each of two belligerents during war all the trade that was open to him in times of peace, subject to the exceptions of trade in contraband goods and trade with blockaded ports. Both these exceptions seem founded on the same reason, namely, that a neutral has no right to interfere with the military operations of a belligerent, either by supplying liis , enemy with materials of war, or by holding intercourse with a place which he has besieged or blockaded. Grotius expresses himself upon the subject in these terms: — "Si juris mei executionem rerum subvectio impedierit, idque scire potuerit, qui advexit, ut si oppidum obsessum tenebam, si portus clausos, et jam deditio aut pax expectabatur, tenebitur ille mihi de damno culpa dato." De Jure Belli ac Pacis, lib. III. c. I, s. V. Bynkershoek's commentary on this passage is to the effect that it is unlawful to carry anything, whetlier contraband or not, to a place thus circumstanced, since those who are within may be compelled to surrender, not merely by the direct application of force, but also by the want of provisions and other necessaries. " Sola obsidio in causa est, cur nihil obsessis subvehere liceat, sive contrabandum sit, sive non sit, nam obsessi non tantum vi coguntur ad deditionem, sed et fame, et alia aliarum rerum penuria." Quae. Jur. Vwh. lib. I. c. IT. Wheaton in his Elements of International Law, Vol. II. pp. 228-230, CHAP. III.] THE "FRANCISKA." 807 justly observes that this passage ia Bynkershoek goes too far, and that a blockade is not confined to the case where there is a siege or blockade with a view to the capture of a place or the expectation of peace. But these passages seem to point to the reason on which this interference with the ordinary rights of neutrals was originally justified. Vattel lays down the same doctrine : — " Quand je tiens une place assiegee, ou seulement bloquee, je suis en droit d'empecher que per- sonne n'y entre, et de traiter en ennemi quicouque entreprend d'y entrer, sans ma permission, ou d'y porter quoi que ce soit: ear il s'oppose a mon entreprise, il pent contribuer a la faire echouer, et par la me faire tomber dans tous les maux d'une guerre malheureuse." B. III. c. VII. s. 1, 17. These passages refer only to ingress and the importation of goods, but it is clear that the operations of the siege or blockade may be interrupted by any communication of the blockaded or besieged place with foreigners ; and Lord Stowell, when he defines a blockade, always speaks of it as the exclusion of the blockaded place from all commerce, whether by egress or ingress. In The Frederick llolke, 1 Rob. 87, he says ; '• What is the object of a blockade ? not merely to prevent . an importation of supplies; but to prevent export as well as import;! and to cut off all communication of commerce with the blockaded place. In The Betsey, 1 Rob. 93, " After the commencement of a block- ade a neutral cannot, I conceive, be allowed to interpose in any way to assist the exportation of the property of the enemy." In the Vrouw Judith, 1 Rob. 151, "A blockade is a sort of circumvallation round a place by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to suspend the entire commerce of that place ; and a neutral is no more at liberty to assist the traffic of exportation than of importation.'^ In The Bolla, 6 Rob. 372, " What is a blockade but a uniform universal exclusion of all vessels not privileged by law ? " In The Success^ 1 Dods. 131, "■ The measure which has been resorted to, being in the nature of a blockade, must operate to the entire exclusion of British as well as neutral ships; for it would be a gross violation of neutral rights, to prohibit their trade, and to permit the subjects of this country to carry on an unrestricted commerce at the very same jwrts from which neutrals are excluded." It is contended that the objection of a neutral to the validity of a blockade, on the ground of its relaxation by a belligerent in his own favor, is removed if a Court of Admiralty allows to the neutral the same indulgence which the belligerent has reserved to himself or granted to his enemy. But their lordships have great difficulty in 808 BELLIGERENTS AND NEUTRALS. [PART II. assenting to this proposition. In the first place, the particular relaxa- tion, which may be of the greatest value to the belligerents, may be of little or no value to the neutral. In the instance now before the court it may have been of the utmost importance to Great Britain that there should be brought into her ports cargoes which, at the institution of the blockade, were in Riga ; and it may have been for her advantage, with that view, to relax the blockade. But a relaxation of the block- ade to that extent, and a permission to neutrals to bring such cargoes to British ports may have been of little or no value to neutrals. The counsel on both sides at their lordships' bar understood that the learned judge in this case intended thus to limit the rights of neutrals, and to place neutral vessels only in the same situation as Russians, under the Order in Council. Their lordships would be inclined to give a more liberal interpretation to the language of the judgment ; yet if this be done, the allowance of a general freedom of commerce, by way of export, to all vessels and to all places from a blockaded port, seems hardly consistent with the existence of any blockade at all. Again it is not easy to answer the objections a neutral might make, that the condition of things which alone authorizes any interference with his commerce does not exist, namely, the necessity of interdict- ing all communication by wa}^ of commerce with the place in ques- tion ; that a belligerent, if he inflicts upon neutrals the inconvenience of exclusion from commerce with such place, must submit to the same inconvenience himself ; and that if he is at liberty to select particular points in which it suits his purpose that the blockade should be violated with immunity, each neutral, in order to be placed on equal terms with the belligerent, should be at liberty to make such selection for himself. But the ambiguity in which all these questions are left by the Order in Council of the 15th of April ; the doubt whether the liberty ac- corded to enemies' vessels extends to neutrals, and, if so, whether such liberty is subject to the same restrictions, or to any other and what restrictions, affords, in the opinion of their lordships, another strong argument against the legality of the blockade in this case. If a partial, modified blockade is to be enforced against neutrals, justice seems to require that the modifications intended to be introduced should be notified to neutral states, and that they should be fully apprized what acts their subjects may or may not do. They cannot reasonably be exposed to the liardship of either abstaining from all commerce with a place in such a state of uncertain blockade, or of having their ships seized and sent to the country of tlie belligerent, in order to learn there, from the decision of its Court of Admiralty, CHAP. III.] THE " FRA^^CISKA." 809 whether the conduct they have pursued is, or is not, protected by an equitable interpretation of an instrument in whicli they are not exj^ressly included. If these views of the law be correct, this ship cannot be considered to have had notice of any blockade of Riga at the time when she sailed for that port ; for, in truth, no legal blockade was then in exis- tence, and it would be hard to require a neutral to speculate on the probability, however great, of a legal blockade de facto being established at a future time, when he is not permitted to speculate on the chance of its discontinuance after he has once had notice of its existence. Supposing, however, the blockade in this case to be open to no objections in point of law during the interval between the loth of April and the loth of ]\Iay, it remains to be inquired whether the notice which this ship received of its existence was of such a character as to subject her to the penalty of confiscation for disregarding it. Xotice has been imputed to the claimant in the court below from the alleged notoriety of the blockade on the 14tli of May, at Elismore, Avhere the ship touched, and at Copenhagen, where the owner resided. It is contended by the appellant that in a case of ingress of a port subject to a blockade only de facto of which there has not been any official notification, guilty knowledge cannot be inferred in an individ- ual from general notoriety, and that a shijj is always entitled under such circumstances to warning from the blockading squadron before she is exposed to seizure. To this proposition their lordships are unable to accede. If a blockade de facto be good in law without notification, and a wilful violation of a known legal blockade be punishable with confiscation — propositions which are free from doubt, — the mode in which the i knowledge has been acquired by the offender, if it be clearly proved to exist, cannot be of importance. Nor does there seem for this purpose to be much difference between ingress, in which a warning is said to be indispensable, and egress, in which it is admitted to be unnecessary. The fact of knowledge is capable of much easier proof in the one case than in the other ; but when once the fact is clearly proved, the consequences must be the same. The reasoning of the learned judge of the court below in this case, and the language of Lord Stowell in The Adelaide reported in the note to The Nejitunus, 2 Rob. Ill, and Tlie Hurtig Hane, 3 Rob. 324, are conclusive upon this point. But while their lordships are quite prepared to hold that the exis- tence and extent of a blockade may be so well and so generally known that knowledge of it in an individual may be presumed without distinct proof of personal knowledge, and that knowledge so acquired may sup- ply the place of a direct communication from the blockading squadron, 810 BELLIGERENTS AND NEUTRALS. [PART II. yet the fact, with notice of which the individual is so to be fixed, must be one which admits of no reasonable doubt. "Any communication which brings it to the knowledge of the party," to use the language of Lord Stowell in The Rolla, 6 Rob. 367, " in a way which could leave no doubt in his mind as to the autlienticity of the information." Again, the notice to be inferred from general notoriety, must be of such a character that if conveyed by a distinct intimation from a com- petent authority it would have been binding. The notice cannot be more effectual because its existence is presumed, than it would be if it were directly established in evidence. The notice to be inferred from the acts of a belligerent, which is to supply the place of a public noti- fication, or of a particular warning, must be such as, if given in the form of a public notification, or of a particular warning, would have been legal and effectual. For this purpose the notice of the blockade must not be more exten- sive than the blockade itself. A belligerent cannot be allowed to pro- claim that he has instituted a blockade of several ports of the enemy, when in truth he has only blockaded one ; such a course would intro- duce all the evils of what is termed a paper blockade, and would be attended with the grossest injustice to the commerce of neutrals. Ac- cordingly, a neutral is at liberty to disregard such a notice, and is not liable to the penalties attending a breach of blockade, for afterwards attempting to enter the port which really is blockaded. This was distinctly laid down by Lord Stowell in the case of Tlie Henrick and Maria, 1 Rob. 148, where an officer of the blockading squadron had informed a neutral that all the Dutch ports were in a state of blockade, whereas the blockade was confined to Amsterdam. The ship was afterwards captured for an alleged attempt to enter Amsterdam, and Lord Stowell, in decreeing restitution, observed : "The notice is, I think, in point of authority, illegal ; at the time when it was given there was no blockade which extended to all the Dutch ports. A declaration of blockade is a high act of sovereignty ; and a com- mander of a King's ship is not to extend it. The notice is, also, I think, as illegal in effect as in authority : it cannot be said that such a notice, though bad for other ports, is good for Amsterdam. It takes from the neutral all power of election as to what other port of Holland he should go, when he found the port of his destination under block- ade. A commander of a ship must not reduce a neutral to this kind of distress ; and I am of opinion, that if the neutral had contravened the notice, he would not have been subject to condemnation." The authority of this case is fully recognized by Dr. Lushington in the present case, who observes that such an administration of law in protecting the party misled, was most just. CHAP. III.] THE " GERASIMO." 811 Applying these principles to the evidence before them, their lord- ships can have no doubt that the master and owner in this case are to be hxed with notice of all that was publicly known at Copenhatates and Great Britain (Art. XIL). The commission made awards in favor of all the claimants. 4 Moore, Int. Arb. 3911-3923. It may not be out of place to quote the following passage referring to the judgment in the Circassian : "The truth is that the feeling of the country was deep and strong against England, and the judges, as individual citizens, were no exception to that feeling. Besides, the court was not then familiar with the law of blockade " (Letter of y\r. .lustice Nelson, dated Aug. 4, 1873, to Wm. B. Lawrence and printed in Law Magazine and Review, Fourth series. Vol. III. 31). It should be said, however, that such criticism does not apply to Mr. Justice Nelson, as his dissenting opinions suffi- ciently show. See also Hall's Int. Law, 694, note 3. — Ed. CHAP. III.] THE " ADULA." 829 the city and the port, and of the approaches from the Gulf, would make a blockade uu necessary, and would supersede it. But, at the time of the capture of the Circassian, there had been no such pos- session. Only the city was occupied, not the port, much less the district of cou:itry commercially dependent upon it, and blockaded by its blockade. Even the city had been occupied only three days. It was yet hostile; the rebel army was in the neighborhood; the occupation, limited and recent, was subject to all the vicissitudes of war. Such an occupation could not at once, of itself, supersede or |[ suspend the blockade. It might ripen into a possession which would ' have that effect, and it did; but at the time of the capture it operated only in aid and completion of the naval investment." The occupa- tion of the city terminates a blockade because, and only because, it supersedes it, and if a vessel be bound to a port or place beyond, which is still occupied by the enemy, the occupation of the mouth of the harbor does not necessarily terminate the blockade as to such places. Granting the existence of a lawful and sufficient blockade at Guan- tmamo, its legal effect was a closing of the port, and an interdiction of the entrance of all vessels of whatever nationality or business. It is well described by Sir "William Scott in The Vrouiv Judith, 1 C. Rob. 126, 128, " as a sort of circumvallation round a place, by which all foreign connection and correspondence is, as far as human force can effect it, to be entirely cut off. It is intended to suspend the entire commerce of that place, and a neutral is no more at liberty to assist the traffic of exportation than of importation. The utmost that can be allowed to a neutral vessel is, that having already taken on board a cargo before the blockade begins, she may be at liberty to retire with it. But it must be considered as a rule which this court means to apply, that a neutral ship departing can only take away a cargo bond fide purchased and delivered, before the commencement of the blockade. If she afterwards takes on board a cargo it is a fraudulent act and a violation of the blockade." It is also said by Phillimore, 3 Int. Law, 383, that "the object of a blockade is to pre- vent exports as well as imports, and to cut off all communication of commerce with the blockaded place." The sailing of a vessel with a premeditated intent to violate a blockade is ijjso facto a violation of the blockade, and renders the vessel subject to capture from the moment she leaves the port of departure. Yeaton v. Fnj^ 5 Cranch, 335; The Circassiaji, 2 Wall. 135; The Frederick Molke, 1 C. Rob. 72; The Columbia, 1 C. Rob. 130; The NejMunus, 2 C. Rob. 110; Wheaton on Captures, 196. If a master have actual notice of a blockade, he is not at liberty even to approach the blockaded port for 830 BELLIGERENTS AXD XEUTEALS. [PAET II. the purpose of making inquiries of the blockading vessels, since such liberty could not fail to lead to attempts to violate the blockade under pretext of approaching the port for the purpose of making such in- quiries. The Admiral, 3 Wall. 603; TJie Prize Cases, 2 Black, 635, 677; Duer on Ins. 661; The Cheshire, 3 Wall. 231; The James Cook, Edwards, 261; The Josejihine, 3 ^Vall. 83; The Spes, 5 C. Rob. 76; The Betsey, 1 C. Rob. 332; The Neptunus, 2 C. Rob. 110; The Little William, 1 Acton, 141, 161; Sperrij v. Belaxcare Ins. Co., 2 Wash. C. C. 213. If there be any distinction in this particular between a proclaimed blockade and an actual blockade by a naval commander, it does not aid the Adula in view of the admitted fact that she was informed by the Vixen, that the port was under the control of the United States military forces, and that the war ships were visible before she entered the bay. In this connection we are cited by counsel for the Adida to a change in the law said to have beeu effected by the adhesion of this government, at the beginning of the war, to the declaration of Paris abolishing privateering. This supposed change apparently rests upon an extract from a French treatise upon international law by Pistoye and Duverdy, Vol. I. p. 375, in which it is said that by the modern law, in consequence of the declaration of Paris, a vessel must be notihed to depart from the blockaded port before she can be captured, and that the contrary rule was the result of the doctrine of the British Orders in Council during the Napoleonic wars, which is now given up by that country. It is also said that "the old rule was thtit it was a breach of blockade to enter upon a voyage to the blockaded port. This rule is now changed, because neutrals are obliged only to respect effective blockades. It may well be that a blockade of which official notice has been given is not an effective blockade, or it may be that a blockade which has been established by a sufficient force may have ceased to exist. Xeutrals then have the right to beo-in a voyage to a blockaded port in order to see if the blockade still con- tinues. They are only guilty when, while the blockade continues, they actually endeavor to break it." We cannot, however, accept this opinion as overruling in any particular the prior decisions of this court in the cases above cited, to the effect that a departure for a blockaded port witli intent to vio- late the blockade renders the vessel liable to seizure. When Congress has spoken upon this subject it will be time enough for this court to act. We cannot change our rulings to conform to the opinions of foreign writers as to what they suppose to be the existing law upon the subject. We have not overlooked in this connection the provision contained CHAP. III.] THE " ADULA." 831 in Art. 18 of Jay's treaty of 1704, to the effect that "whereas, it frequently happens that vessels sail for a port or place belonging to an enemy, without knowing that the same is either besieged, block- aJed, or invested, it is agreed, that every vessel so circumstanced, may be turned away from such port or place, but she shall not be detained nor her cargo, if not contraband, confiscated, unless after notice she shall again attempt to enter." Fltzsimmons v. Nev:port Ins. Co., 4 Crauch, 185. Waiving the question whether this clause of Jay's treaty was abrogated by the war of 1812, and accepting it . as a correct exposition of the law of nations, it applies only to vessels \ which have sailed for a hostile port or place without knowing that * the same is either besieged, blockaded, or invested. The whole case against the Adula depends u.pon the question whether those in charge of her knew before she left Kingston that Santiago and Guantanamo were blockaded. If they did, the treaty does not apply. If they did not, they are entitled to the benefit of this principle of international law. In the case of the Maryland Ins. Co. v. Woods, 6 Cranch, 29, in which it was held that the vessel could not be placed in the situa- tion of one having notice of the blockade until she was warned off, the decision was placed upon the express ground that orders had been given by the British Government, and communicated to our govern- ment, "not to consider blockades as existing, unless in respect to i:)articular ports which may be actually invested, and then not to cipture vessels bound to such ports, unless they shall have been pre- viousl}^ warned not to enter them." This order was treated by the court as a mitigation of the general rule so far as respected blockades in the West Indies. From all the testimony in the case it appears very clear : [That the Adula belonged to a British corporation, the Atlas Steamship Company, flew the British flag, and prior to the Spanish- American war was engaged in general trade between Kingston and other ports on the coast of Jamaica, in connection with other steamers of the same line from New York, and from time to time had made voyages to Cuban ports.] That Guantanamo was actually and effectively blockaded by orders of Admiral Sampson from June 7 until after the capture of the Adula ; That the Adula was chartered to a Spanish subject for a voyage to Guantanamo, Santiago, or Manzanillo, for the purpose of bringing away refugees, and that such voyage was primarily, at least, a com- mercial one for the personal profit of the charterer. During such charter she was to a certain extent ^;;'o hue vice, a Spanish vessel, and a notice to Solis of the existence of the blockade was a notice to the 832 BELLIGERENTS AND NEUTRALS. [PART II. vessel. Tlie Ranger, 6 C. Eob. 126; Tlie Yonge Eitiilia, 3 C. Eob. 52; The Napoleon, Blatch. Prize Cases, 296. The fact of her sailing under a Spanish passport — in fact, an enemy's license — is not devoid of signiticance. Indeed, we have in several cases regarded this as suificient ground for condemnation. Tlie India, 8 Cranch, 181; The Aurora, 8 Cranch, 203; The Hiram, 1 Wheat. 440; The Ariadne, 2 Wheat. 143. This passport gave the Adula authority to enter the Cuban ports and take away refugees, and it is a circum- stance worthy of notice that it could not be found when the vessel was captured. Solis acknowledged its existence, but made no effort to account for its loss; Both Solis himself and the Adula had been previously engaged in similar enterprises to the coast of Cuba, and were chargeable with notice, not only of war between the United States and Spain, but with the fact of military and naval operations upon the southern coast of Cuba; The fact of such war, that the object of it was the expulsion of the Spanish forces from Cuba, and tliat military and naval operations were being carried on by us with that object in view, must have been matters of common knowledge in Kingston, as well as the fact that the commerce with the southern ports of Cuba was likely to be inter- rupted, and that all intercourse with such ports would become dan- gerous in consequence of such war; While the mission of the Adula was not an unfriendly one to this government, she was not a cartel ship, privileged from capture as such, but one employed in a commercial enterprise for the personal profit of the charterer, and only secondarily, if at all, for the purpose of humanity. Her enterprise was an unlawful one, in case a blockade existed, and both Solis and the master of the Adula were cognizant of this fact. The direction of the commanding officer of the Vixen, which overhauled the Adula off Guantanamo, to enter the harbor, cannot be construed as a permission to violate the blockade, as such permission would not be within bhe scope of his authority. The Hope, 1 Dod. 226; The Amado, Newb. 400; The Joseph, 8 Cr. 451; The Benito Estenger, post 568. That upon arrival off Santiago the blockading fleet was plainly visible, and we think there is a preponderance of evidence to the effect that both Solis and the master of the Adula knew of tlie actual blockade, that it was generally known in Kingston before she sailed, and tliat the Adula was chargeable with a breach of it, notwithstand- ing the letter (^f instructions from Mr. Forwood to Cai)tain Yeates. As the blockade had been in existence since June 7, it is scarcely possible that, in the three weeks that elapsed before the Adula sailed, CHAP. III.] THE " ADULA." 833 it should not have been known in Kingston, which was only a day's trip from the southern coast of Cuba, and with which it appears to have been in frequent communication. This probability is con- firmed by the direct testimony of the sailor Morris, that it was matter of common talk in Kingston. The testimony of Sol is, that he did not know "officially" that Guantanamo was blockaded, by which we are to understand that it had not been officially proclaimed, is perfectly consistent with a personal knowledge of the actual fact. His statement seems to be little more than a convenient evasion. Upon the principle already stated his knowledge was the knowledge i of the ship. We think the facts herein stated outweigh the general statement of the officers that they had not heard of the blockade. 3. There was no error in denying the motion of the claimant to take further proofs. It appears from the opinion of the court that "the hearing upon the proceedings for condemnation was upon the evidence afforded by the examination of the captured crew taken upon standing interrogatories, the ship's papers, and other • evidence of a documentary character found upon the ship by the * captors. This was done in conformity to the established rule in prize cases." The motion to take further proof was made upon the affidavit of Robert Gemraell, the New York agent of the company, the statement of W. P. Forwood, the Kingston agent, annexed thereto, as well as his own affidavit and exhibits, and upon the counter testimony of Anderson, Ellenberg, and Gill taken de bene esse. Upon the hearing of this motion the court considered the allegations of Forwood, attached to Gemmell's affidavit, as if Forwood had testified upon depositions regularly taken, giving due weight to the same in con- nection with other evidence in the case; and was of opinion that the evidence as it stood was not susceptible of any satisfactory explana- tion; and comparing the proof proposed to be brought forward with that already in the case, came to the conclusion that the legal effect of the facts before the court could not be varied by the explanation offered. The motion was denied. In considering this case we have also given effect to these affidavits, and have come to the conclusion that, if they are to be taken as true, and the further proofs, if taken, would support them, they would not change our opinion with respect to the affirmance of the decree. If an examination of the ship's papers and of the crew, taken in preparatorio, upon which the cause is first heard in the District Court, make a case for condemnation, the order for further proof is, as stated in The Gray Jacket, 5 Wall. 342, 308, always made with 834 BELLIGERENTS AND NEUTEALS. [PAPwT IF. extreme caution, and only where the interests of justice clearly require it. If the ship's papers and the testimony of the crew do not justify an acquittal, it is improbable that a defence would be established by further proof; and as the interest of all parties require that prize causes be quickly disposed of, it is only where the testi- mony in pre])aratorio makes a case of grave doubt, that the court orders the taking of further proofs. The Pizarro, 2 Wheat. 227; The Amiable Isabella, 6 Wheat. 1, 77; Benedict's Adm'y, sec. 512 a; Story on Prize Courts, 17. It was said by Sir William Scott in The Sarah, 3 C. Rob. 330, that " it has seldom been done except in cases where there has appeared something in the original evidence, which la^'s a suggestion for prose- cuting the inquiry farther. In such case the court has allowed it; but when the matter is foreign, and not connected with the original evidence of the cause, it must be under very peculiar circumstances indeed that the court will be induced to accede to such an applica- tion; because, if remote suggestions were allowed, the practice of the court would be led away from the simplicity of prize proceedings, and there would be no end to the accumulation of proof that would be introduced in order to support arbitrary suggestions." These remarks are especially pertinent to the cffer of further proof that, while Soils owed allegiance to the Queen of Spain, yet, that he left Cuba soon after the war broke out, took no part in the hostilities, but on the contrary had done all in his power while he remained in Cuba to assist citizens of the United States residing there; had sided with the natives of Cuba, and was desirous that a government should be established in the island under the auspices of the United States. As was observed in the very satisfactory opinion of the district judge in this case, this evidence was altogether irrelevant to the case of the Adula, and was, to a certain extent, a contradiction of his testimony before the prize commissioners that lie was a loyal subject of Spain, bore a Spanish passport, and carried a bill of health vised by the Spanish consul at Kingston. It would throw the whole practice in prize cases into confusion if the testimony, taken in preparotorio, when the facts are fresh in the minds of the witnesses, were subject to be contradicted by the same witnesses after its weak points had been developed. It was said by Mr. Justice Story in The Pizarro, 2 Wheat. 227: "Nor should the captured crew have been permitted to be re-examined in court. They are bound to declare the whole truth upon the first examination; and if they fraudulently suppress any material facts, they ought not to be indulged with an opportunity to disclose what they please, or to give color to their former statements after counsel has been taken, and they know the pressure of the cause. CHAP. III.] THB " OLINDE RODRIGUES." 835 Public policy and justice equally point out tbe necessity of an inflex- ible adherence to this rule." Upon the whole, we think the decree of the District Court was correct, and it is therefore Affirmed.^ THE "OLINDE EODEIGUES." Supreme Court of the United States, 1898. (174 United States, 510.) Mr. Chief Justice Fuller delivered the opinion of the court. We are unable to concur with the learned district judge in the conclusion that the blockade of the port of San Juan at the time this steamship was captured was not an effective blockade. To be binding, the blockade must be known, and the blockading force must be present ; but is there any rule of law determining that the presence of a particular force is essential in order to render a blockade effective ? We do not think so, but on the contrary, that the test is whether the blockade is practically effective, and that that is a question, though a mixed one, more of fact than of law. The fourth maxim of the Declaration of Paris (April 16, 1856) was: "Blockades, in order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent access to the coast of the enemy." Manifestly this broad definition was not in- tended to be literally applied. The object was to correct the abuse, in the early part of the century, of paper blockades, where extensive coasts were put under blockade by proclamation, without the presence of any force, or an inadequate force ; and the question of what might be sufficient force was necessarily left to be determined according to the particular circumstances. " This was put by Lord Russell in his note to Mr. INFason of February 10, 1861, thus: "The Declaration of Paris was in truth directed against what were once termed ' paper blockades ; ' that is, blockades not sustained by any actual force, or sustained by a notoriously in- adequate naval force, such as an occasional appearance of a man-of-war in the offing or the like. * * * The interpretation, therefore, placed by her Majesty's Government on the declaration was, that a blockade, in order to be respected by neutrals, must be practically effective. * « * 1 Dissenting opinion of Shiras, J., concurrerl in by Gray, White, and Pkckham, JJ., omitted. See The Newfoundland, 1899, 176 U. S. 97, for case in which intent to run the blockade of Havana during the same war was held insufficiently proved. — Ed. 836 BELLIGEEENTS AND NEUTRALS. fPART II. It is proper to add, that the same view of the meaning and effect of tlie articles of the Deckiration of Paris, on the subject of blockades, which is above explained, was taken by the representative of the United States at the Court of St. James (Mr. Dallas) during the communications which passed between the two governments some 3'ears before the present war, with a view to the accession of the United States to that declaration." Hall's Int. Law, § 260, p. 730, note. The quotations from the Parliamentary debates, of May, 1861, given by Mr. Dana in note 233 to the eighth edition of Wheaton on In- ternational Law, afford interesting illustrations of what was con- sidered the measure of effectiveness ; and an extract is also there given from a note of the Department of Foreign Affairs of France of September, 1861, in which that is defined: "Forces sufficient to prevent the ports being approached without exposure to a certain danger." In The Merciirlus, 1 C. Kob. 80, 84, Sir William Scott stated : " It is said, this passage to the Zuyder Zee was not in a state of blockade ; but the ship was seized immediately on entering it; and I know not what else is necessary to constitute blockade. The powers who formed the armed neutrality in the last war, understood blockade in this sense; and Russia, Avho was the principal party in that con- federacy, described a place to be in a state of blockade, when it is dangerous to attempt to enter into it." And in The Frederick Molke, 1 C. Rob. 86, the same great jurist said : " For that a legal blockade did exist, results necessarily from these facts, as nothing farther is necessary to constitute blockade, than that there should be a force stationed to prevent communication, and a due notice, or prohibition given to the party." Such is the settled doctrine of the English and American courts and publicists, and it is embodied in the second of the instructions issued by the Secretary of the Navy, June 20, 1898, General Order No. 492 : " A blockade to be effective and binding must be maintained by a force sufficient to render ingress to or egress from the port dangerous." Clearly, however, it is not practicable to define what degree of danger shall constitute a test of the efficiency and validity of a block- I ade. It is enough if the danger is real and apparent. In The Franciska, 2 Spinks, 128, Dr. Lushington, in passing on the question whetlier the blockade imposed on the port of Riga was an effective blockade, said : '•' What, then, is an efficient blockade, and how has it been defined, if, indeed, the term 'definition' can be applied to such a subject ? The one definition mentioned is, that CHAP. III.] THE " OLINDE RODRIGUES," 837 egress or entrance shall be attended with evident danger; another, that of Chancellor Kent (1 Kent's Com. 146), is, that it shall be apparently dangerous. All these definitions are and must be, from the nature of blockades, loose and uncertain; the maintenance of a blockade must always be a question of degree, — of the degree of danger attending ships going into or leaving a blockaded port. Noth- ing is further from my intention, nor, indeed, more opposed to my notions of the law of nations, than any relaxation of the rule that a blockade must be efficiently maintained ; but it is perfectly obvious that no force could bar the entrance to absolute certainty ; that vessels may get in and get out during the night, or fogs, or violent winds, or occasional absence ; that it is most difficult to judge from numbers alone." "It is impossible," says Mr. Hall (§ 2G0), "to fix with any accuracy the amount of danger in entry which is necessary to preserve the validity of a blockade. It is for the prize courts of the belligerent to decide whether in a given instance a vessel captured for its breach had reason to suppose it to be non-existent ; or for the neutral gov- ernment to examine, on the particular facts, whether it is proper to withhold or to withdraw recognition." In The Hoffnung, 6 C. Eob. 112, 117, Sir William Scott said: "When a squadron is driven off by accidents of weather, which must have entered into the contemplation of the belligerent imposing the blockade, there is no reason to suppose that such a circumstance would create a change of system, since it could not be expected that any blockade would continue many months, without being liable to such temporary interruptions. But when a squadron is driven off by a superior force, a new course of events arises, which may tend to a very different disposition of the blockading force, and which intro- duces therefore a very different train of presumptions, in favor of the ordinary freedom of commercial speculations. In such a case the neu- tral merchant is not bound to foresee or to conjecture that the blockade will be resumed." And undoubtedly a blockade may be so inade- quate, or the negligence of the belligerent in maintaining it may be of such a cliaracter, as to excuse neutral vessels from the penalties for its violation. Thus in the case of an alleged breach of the blockade of the island of Martinique, which had been carried on by a number of vessels on the different stations, so communicating with each other as to be able to intercept all vessels attempting to enter the ports of the island, it was held that their withdrawal was a neglect which " necessarily led neutral vessels to believe these ports might be entered without incurring any risk." The Nancy, 1 Acton, 57, 59. But it cannot be that a vessel actually captured in attempting to 838 BELLIGERENTS AND NEUTEALS. [PART II. enter a blockaded port, after warning entered on her log by a cruiser off that port only a few days before, could dispute the efficiency of the force to Avhich she was subjected. As we liold that an effective blockade is a blockade so effective as to make it dangerous in fact for vessels to attempt to enter the blockaded port, it follows that the question of effectiveness is not controlled by the number of the blockading force. In other words, the position cannot be maintained that one modern cruiser though sufficient in fact is not sufficient as matter of law. Even as long ago as 1809, in The Naney, 1 Acton, G3, where the station of the vessel was sometimes off the port of Trinity and, at others, off another port more than seven miles distant, it was ruled that: "Under particular circumstances a single vessel may be ade- quate to maintain the blockade of one port and co-operate with other vessels at the same time in the blockade of another neighboring port ; " although there Sir William Grant relied on the opinion of the commander on that station that the force was completely adequate to the service required to be perfermed. The ruling of Dr. Lushington in The Francislca, above cited, was to that effect, and the text-books refer to other instances. The learned district judge, in his opinion, refers to the treaty between France and Denmark of 1742, which provided that the entrance to a blockaded port sliould be closed by at least two vessels or a battery on shore ; to the treaty of 1760 between Holland and the Two Sicilies prescribing that at least six ships of war should be ranged at a distance slightly greater than gunshot from the entrance; and to the treaty between Prussia and Denmark of 1818, which stipu- lated that two vessels should be stationed before every blockaded port ; but we do not think these particular agreements of special importance here, and, indeed. Ortolan, by whom they are cited, says that such stipulations cannot create a positive rule in all cases even between the parties, "since the number of vessels necessary to a complete investment depends evidently on the nature of the place blockaded." 2 Ortolan, 4th ed., 330, and note 2. Nor do we regard Sir William Scott's judgment in TIlc Arthur, 1814, 1 Dodson, 423, 425, as of weight in favor of claimants. In effect tlie ruling sustained the validity of the maintenance of blockade by a single ship, and the case was thus stated : " This is a claim made by one of his Majesty's ships to share as joint-captor in a prize taken in the river Ems by another ship belonging to his ^Majesty, for a breach of the blockade imposed by the order in council of the 2Gth of A|iril, 1801). 'I'liis order was, among others, issued in tlie way of retaliation for the measures which had been previously adopted by CHAP. III.] THE " OLINDE RODRIGUES." 839 the French Government against the commerce of this country. The blockade imposed by it is applicable to a very great extent of coast, and was never intended to be maintained according to the usual and regular mode of enforcing blockades, by stationing a number of ships and forming as it were an arch of circumvallatiou around the moutli of the prohibited port. There, if the arch fails in any one part, the blockade itself fails altogether ; but this species of blockade, which has arisen out of the violent and unjust conduct of the enemy, was maintained by a ship stationed anywhere in the neigliborhood of the coast, or, as in this case, in the river itself, observing and preventing every vessel that might endeavor to effect a passage up or down the river." Blockades are maritime blockades, or blockades by sea and land; and they may be either military or commercial, or may partake of the nature of both. The question of effectiveness must necessarily de- pend on the circumstances. We agree that the fact of a single cap- ture is not decisive of the effectiveness of a blockade, but the case made on this record does not I'est on that ground. We are of opinion that if a single modern cruiser blockading a port renders it in fact dangerous for other craft to enter the port, that is sufficient, since thereby the blockade is made practically effective. What then were the facts as to the effectiveness of the blockade in the case before us ? In the proclamation of June 27, 1898, occurs this paragraph : " The United States of America has instituted and will maintain an effective blockade of all the ports on the south coast of Cuba, from Cape Frances to Cape Cruz, inclusive, and also of the port of San Juan, in the island of Porto Rico." Proclamation No. 11, 30 Stat. 34. The blockade tlius announced was not of the coast of Porto liico, but of the port of San Juan, a town of less than 25,000 inhabitants, on tlie northern coast of Porto Rico, with a single entrance. From June 27 to July 14, 1898, the Yosemite, a merchant ship converted into an auxiliary cruiser, blockaded the port. Her maximum speed was fifteen and one-half knots; and her armament ten 5-inch rapid firing guns, six 6-pounders, two 1-pounders, with greatest range of three and one-half miles. While the Yosemite was blockading the port she ran the armed transport Antonio Lopez aground six miles from San Juan ; gave a number of neutral vessels official notice of the blockade ; Avarned off many from the port ; and on the 5th of July, 1898, wrote into the log of the Olinde Rodrigues, off San Juan, the official warn- ing of the blockade of San Juan. On July 14 and thereafter the port was blockaded by the armored cruiser New Orleans, whose maximum speed was twenty-two knots, and her armament six 6-incli breech- 810 BELLIGERENTS AND NEUTRALS. [PART H. loading rifles, four 4. 7-inch breech-loading rifles, ten 6-ponnders, four l.o-iuch guns, corresponding to 3-pounders ; four 3-pouuders in the tops ; four 37-millimetre automatic guns, corresponding to l-pounders. The range of her guns was five and one-half sea miles or six and a quarter statute miles. If stationary, she could command a circle of thirteen miles in diameter ; if moving, at maximum speed, she could cover in five minutes any point on a circle of seventeen miles diameter ; and in ten minutes any point on a circle of nineteen miles diameter ; her electric search-lights could sweep the sea by night for ten miles distance; her motive power made her independent of "winds and currents ; in these respects and in her armament and increased range of guns she so far surpassed in effectiveness the old-time war ships that it would be inadmissible to hold that even if a century ago more than one ship was believed to be required for an effective blockade, therefore this cruiser was not sufficient to blockade this port. Assuming that the Olinde Rodrigues attempted to enter San Juan, July 17, there can be no question that it was dangerous for her to do so, as the result itself demonstrated. She had had actual warning twelve days before ; no reason existed for the supposition that the blockade had been pretermitted or relaxed; her commander had no right to experiment as to the practical effectiveness of the blockade, and, if he did so, he took the risk ; he was believed to be making the attempt, and was immediately captured. In these circumstances the vessel cannot be permitted to plead that the blockade was not legally effective. But we are considering the blockade of the port of San Juan and not of the coast, and while additional vessels to cruise about the island might be desirable in order that the blockade should be posi- tively effective, we think it a sufficient compliance with the obliga- tions of international law if the blockade made egress or ingress dangerous in fact, and that the suggestions of a zealous American naval commander, in anticipation of a conflict of armed forces before San Juan, that the blockade should be brought to the highest efficiency in a military as well as a commercial aspect, cannot be allowed to have the effect of showing that the blockade which did exist was, as to this vessel, ineffective in point of law. Such being the situation, and the evidence of the ship's officers being explicit that the vessel was on her way to St. Thomas and had no intention of running into San Juan, the decree in her favor must be affirmed on the merits, unless the record elsewhere furnishes evidence sufficient to overcome the conclusion reasonably deducible from the facts above stated. Counsel for the government insist that the intention of the OUnde CHAP. III.] THE " OLIKDE EODRIGUES." 841 to run the blockade is necessarily to be inferred from the possession of these bills of health and their alleged concealment and destruction. Doubtless the spoliation of papers, and, though to a less degree, their concealment, is theoretically a serious offence, and authorizes the Ijresumption of an intention to suppress incriminating evidence, though this is not an irrebuttable presumption. In The Pizan'o, 2 Wheat. 227, 241, the rule is thus stated by Mr. Justice Story : " Concealment, or even spoliation of papers is not of itself a sufficient ground for condemnation in a prize court. It is, undoubtedly, a very awakening circumstance, calculated to excite the vigilance, and to justify the suspicions of the court. 15ut it is a circumstance open to explanation, for it may have arisen from acci- dent, necessity, or superior force ; and if the party in the first instance fairly and frankly explains it to the satisfaction of the court, it deprives him of no right to which he is otherwise entitled. If, on the other hand, the spoliation be unexplained, or the explanation appear weak and futile ; if the cause labor under heav}^ suspicions, or there be a vehement presumption of bad faith, or gross prevarication, it is made the ground of a denial of farther proof, and condemnation ensues from defects in the evidence which the party is not permitted to supply." The evidence of evil intent must be clear and convincing before a merchant ship belonging to citizens of a friendly nation will be con- demned. And on a careful review of the entire evidence, we think we are not compelled to proceed to that extremity. But, on the other hand, we are bound to say that, taking all the circumstances together and giving due w^eight to the evidence on behalf of the captors, probable cause for making the capture undoubt- edly existed; and the case disclosed does not commend this vessel to the favorable consideration of the court. Probable cause exists where there are circumstances sufficient to warrant suspicion though it may turn out that the facts are not suffi- cient to warrant condemnation. And whether they are or not cannot be determined unless the customary proceedings of prize are instituted and enforced. The Adeline, 4 Cranch, 244, 285; The Thompson, 3 Wall. 155. Even if not found sufficient to condemn, restitution will not necessarily be made absolutely, but may be decreed conditionally as each case requires, and an order of restitution does not prove lack of probable cause. The Adeline, supra; Jennings v. Carson, 4 Cranch, 2, 28, 29. In the statement of Sir William Scott and Sir John Niclioll, trans- mitted to Chief Justice Jay, then Minister to England, by Sir William Scott, Sept. 10, 1794, " The general principles of proceeding 842 BELLIGERENTS AND NEUTRALS. [PART IL in prize causes, in British Courts of Admiralty, and of the measures proper to be taken Avhen a ship and cargo are brought in as prize within their jurisdictions," are set forth as laid down in an extract from a report made to the Kiug in 1753 " by Sir George Lee, then judge of the Prerogative Court, Dr. Paul, his Majesty's advocate- general, Sir Dudley Rider, his JNtajesty's attorney-general, and Mr. Murray (afterwards Lord Mansfield), his Majesty's solicitor- general;" and many instances are given where in the enforcement of the rules "the law of nations allows, according to the different degrees of misbehavior, or suspicion, arising from the fault of the ship taken, and other circumstances of the case, costs to be paid, or not to be received, by the claimant, in case of acquittal and restitu- tion." Wheaton on Captures, Appendix, 309, 311, 312; Pratt's Story's Notes, p. 35. In The Appollon, 9 Wheat. 362, 372, Mr. Justice Story said: "No principle is better settled in the law of prize than the rule that prob- able cause will not merely excuse, but even, in some cases, justify a capture. If there be probable cause, the captors are entitled, as of right, to an exemption from damages; and if the case be of strong and vehement suspicion, or requires further proof to entitle the claimant to restitution, the law of prize proceeds yet farther, and gives the captors their costs and expenses in proceeding to adjudication." Section 4639 of the Revised Statutes contemplates that, under circumstances, all costs and expenses shall remain charged on the captured vessel though she be restored, and this court has repeatedly held that damages and costs will be denied where there was probable cause for seizure, and that sometimes costs will be awarded to tlie captors. The Vemis, 5 Wheat. 127; The Thompson, 3 Wall. 155; The Springbok, 5 Wall. 1; The Dashing Wave, 5 Wall. 170; The Sir William Peel, 5 Wall. 517; The Peterhoff, 5 Wall. 28, 61, 62. In The Dashing Waoe, Chief Justice Chase said: "We think it was the plain duty of a neutral claiming to be engaged in trade with Matamoras, under circumstances which warranted close observation by the blockading squadron, to keep his vessel, while discharging or receiving cargo, so clearly on the neutral side of the boundary line as to repel, so far as position could repel, all imputation of intent to break the blockade. He had no right to take, voluntarily, a position in the immediate presence of the blockading fleet, from, wliich mer- chandise might be so easily introduced into the blockaded region. We do not say that neglect of duty, in this respect, on the part of the brig, especially in the absence of positive evidence that the neglect was wilful, calls for condemnation; but we cannot doubt that under CHAP. III.] THE " OLINDE EODRIGUES." 843 the circumstances described, capturing and sending in for adjudica- tion was fully warranted." In The Springbok, the ship was restored but costs and damages were not allowed because of the misconduct of the master. In Tke Peterhoff, payment of costs and expenses by the ship was decreed as a condition of restitution. The Peterhoff was captui'ed by the United States vessel of war Vanderh'dt on suspicion of intent to run the blockade and of having contraband on board. Her captain refused to take his papers to the Vanderbilt, and, in additioii, papers were destroyed and a package was thrown overboard. The Peterhoff was searched, and it is stated in the opinion : " The search led to the belief on the part of the officers of the Vanderbilt that there was con- traband on board, destined to the enemy. This belief, it is now apparent, was warranted. It was therefore the duty of the captors to bring Tlie Peterhoff in for adjudication, and clearly they are not liable for the costs and expenses of doing so." The court then com- mented on the destruction of papers, and the throwing overboard of the package, in regard to which it was unable to credit the represen- tations of the captain, but in view of the other facts in the case, did not extend the effect of the captain's conduct and the incriminating circumstances to condemnation. The case before us falls plainly within these rulings. This vessel had gone into San Juan on July 4, although the captain had heard of the blockade at St. Thomas, but he says he had not been officially notified of it; he telegraphed to the consul at San Juan to know, and was answered that they had received no official notice from Washing- ton that the port was blockaded; he also heard while in San Juan that " it would be blockaded some future time, but that was not offi- cially." The vessel was boarded and warned by the Yosemite on July 5, and the warning entered on her log. This imposed upon her the duty to avoid approaching San Juan, on her return, so nearly as to give just cause of suspicion, yet she so shaped her course as inevi- tably to invite it. When the Xeiv Orleans succeeded the Yosemite, her commander was informed of the facts by his predecessor, and knew that whatever the right of the Olinde Rodrigues to be in those waters, she could not lawfully place herself so near the interdicted port as to be able to break the blockade with impunity. But when he sighted her the ship was on a course to all appearance directly into that port, and steadily pursuing it. And when he signalled, the Olinde Bodrir/ues apparently did not obey, but seemingly persisted on her course, and that course would in a few moments have placed her within the range of the guns of Morro and of the shore batteries. In fact, when the i 844 BELLIGERENTS AND NEUTRALS. [PART II. shot was fired she was within the range of the Morro's guns. The evidence is overwhelming tliat she did not change her course until after the shot was fired, even though she may have stopped as soon as she saw the signal. The turning point into the Culebra or Virgin Passage was perhaps forty miles to the eastward, and while she could have passed the port of San Juan on the course she was on, it would have been within a very short distance. The disregard of her duty to shun the port and not approach it was so flagrant that the intention to break the blockade was to be presumed, though we do not hold that that was a presumption de jure. The ship's log was not produced until three hours after she was boarded, and it now appears that the papers furnished the boarding officer, "said to be all the ship's papers," did not include two Spanish bills of health in which San Juan was entered as the vessel's destina- tion. These were destroyed after the ship reached Charleston, and were, therefore, in the ship's possession when the other papers were delivered. Had they been shown, as they should have been, can it be denied that they would have furnished strong corroboration of criminal intent ? Or that their destruction tended to make a case of "strong and vehement suspicion"? The entire record considered, we are of opinion that restitution of the Olinde Rodrifjaes should be awarded, without damages, and that payment of the costs and expenses incident to her custody and preser- vation, and of all costs in the cause except the fees of counsel, should be imposed upon the ship. The decree of the District Court will be so modified, and As modified affirmed. Mr. Justice McKexna dissented on the ground that the evidence justified condemnation.^ 1 If a sliip has contracted guilt by a breach of blockade, the offence is not discharged until the end of the return voyage. The Wren, 1867, Wall. 582. — Ed. CHAP. III.] THE " IMMANUEL." 845 Section 45. — Rule of the War of 1756. THE " imma:>^uel." High Court of Admiralty, 1799. (2 C. Robinson, 186.) This was the case of an asserted Hamburg ship, taken 14th August, 1799, on a voyage from Hamburg to St. Donungo, having in her voyage touched at Bordeaux, where she sold part of the goods brought from Hamburg, and took a quantity of iron stores and other articles for St. Domingo. A question was first raised as to the prop- erty of the ship and cargo ; 2dly, supposing it to be neutral prop- perty, whether a trade from the mother country of France to St. Domingo, a French Colony, was not an illegal trade, and such as would render the property of neutrals engaged in it liable to be con- sidered as the property of enemies, and subject to confiscation ? Judgment. — Sir Wm. Scott : — " Upon the breaking out of a war, it is the right of neutrals to carry on their accustomed trade, with an ex- ception of the particular cases of a trade to blockaded places, or in contraband articles (in both which cases their property is liable to be condemned), and of their ships being liable to visitation and search; in which case however they are entitled to freight and expenses. I do not mean to say that in the accidents of a war the property of neutrals may not be variously entangled and endangered; in the nature of human connections it is hardly possible that inconveniences of this kind should be altogether avoided. Some neutrals will be unjustly engaged in covering the goods of the enemy, and others will be un- justly suspected of doing it; these inconveniences are more than fully balanced by the enlargement of their commerce; the trade of the belligerents is usually interrupted in a great degree, and falls in the same degree into the lap of neutrals. But without reference to accidents of the one kind or other, the general rule is, that the neutral has a right to carry on, in time of war, his accustomed trade to the utmost extent of which that accustomed trade is capable. "Very different is the case of a trade which the neutral has never possessed, which he holds by no title of use and habit in times of peace, and Avhich, in fact, can obtain in war by no other title, than by the success of the one belligerent against the other, and at the 843 BELLIGERENTS AND NEUTRALS. [PART IF. expense of that very belligerent under whose success he sets up his title ; and such I take to be the colonial trade, generallj^ speaking. " What is the colonial trade generalhj speaking ? It is a trade generally shut up to the exclusive use of the mother country, to which the colony belongs, and this to a double use; — that, of sup- plying a market for the consumption of native commodities, and the other of furnishing to the mother country the peculiar commodities of the colonial regions ; to these two purposes of the mother coun- try, the general policy respecting colonies belonging to the states of Europe, has restricted them. With respect to other countries, gen- erally speaking, the colony has no existence ; it is possible that indirectly and remotely such colonies may affect the commerce of other countries. * * * " Upon the interruption of a war, what are the rights of bellig- erents and neutrals respectively regarding such places? It is an indubitable right of the belligerent to possess himself of such places, as of any other possession of his enemy. This is his common right, but he has the certain means of carrying such a right into effect, if he has a decided superiority at sea : Such colonies are dependent for their existence, as colonies, on foreign supplies ; if they cannot be supplied and defended they must fall to the belligerent of course — and if the belligerent chooses to apply his means to such an object, what right has a third party, perfectly neutral, to step in and prevent the execution ? No existing interest of his is affected by it ; he can have no right to apply to his own use the beneficial consequences oi the mere act of the belligerent ; and say, ' True it is, you have, by force of arms forced such places out of the exclusive possession of the enemy, Imt I will share the benefit of the conquest, and by shar- ing its benefits prevent its progress. You have in effect, and by lawful means, turned the enemy out of the possession which he had exclusively maintained against the whole world, and with whom we had never presumed to interfere ; but we will interpose to prevent his absolute surrender, by the means of that very opening, Avhicli the prevalence of your arms alone has affected ; supplies shall be sent and their products shall be exported ; you have lawfully de- stroyed his monopoly, but you shall not be permitted to possess it yourself ; we insist to share the fruits of your victories, and your blood and treasure have been expended, not for your own interest, but for the common benefit of others.' " Lqoon these grounds, it cannot be contended to be a right oi neu- trals, to intrude into a commerce which had been uniformly shut against them, and which is now forced open merely by the pressure of war ; for when the enemy, under an entire inability to supply his CHAP. III.] THE " EMANUEL." 847 colonies and to export their products, affects to open them to neu- trals, it is not his will but his necessity that changes his system ; that change is the direct and unavoidable consequence of the compulsion of war, it is a measure not of French councils, but of British force. " Upon these and other grounds, which I shall not at present enumerate, an instruction issued at an early period for the purpose of preventing the communication of neutrals with the colonies of the enemy, intended, I presume, to be carried into effect on the same footing, on which the prohibition had been legally enforced in the war of 1756 ; a period when, Mr. .Justice Blackstone observes, the decisions on the law of nations proceeding from the Court of Appeals, were known and revered by every state in Europe. " Condemned." ^ THE "EMAXUEL." High Court of Admiualty, 1799. (1 C.Rohinsnn, 296.) This was a case respecting the allowance of freight and expenses to a neutral ship, taken carrying on the coasting trade of the enemy. Judgment by Sir Wm. Scott: — " Now the ground upon whicli it is contended that the freight is not due to the proprietors of this vessel, is, that she is a Danish ship employed in the transmission of Spanish goods, from one Spanish port to another, and so carrying on the coasting-trade of that coun- try. In our own country it has long been the system, tliat the coasting-trade should only be carried on by our own navigation. I observe, that in all the rage of novel experiment that has dictated the commercial regulations of France in its new condition, this policy is held sacred; it stands enacted, by a decree 21st Sept., 1793, that no goods, the growth or manufacture of France, shall be carried from one French port to another in foreign ships under pain of confisca- tion. — The same policy has directed tlie commercial system of other Euiiopean countries ; in the ordinary state of affairs, no indulgence is generally permitted to the ships of most other countries to carry on the coasting trade. I think therefore the otitis prohandi does at least lie on that side; and always makes it necessary to be shown by the claimants, that such a trade was not a mere indulgence, and a temporary relaxation of the coasting system of the state in ques- 1 (.'inii])are Tlte Wilhehniiia, 1801, 4 C. Rob. append, p. 4, and see digesi-iMte in Tudor, Mercantile Cases, od ed., 972-OSO. — Eu. 848 BELLIGERENTS AND NEUTRALS. [PAIIT IL tion ; but that it was a common and ordinary trade, open to the ships of any country whatever. * * * " As to the coasting trade (supposing it to be a trade not usually opened to foreign vessels), can there be described a more effective accommodation that can be given to an enemy during a war than to undertake it for him during his own disability ? " ^ Section 46. — Continuous Voyages. THE "WILLIAM." Lords on Appeal in Prize Cases, 1806. (5 C. Robinson, 385.) This was a question on the continuity of a voyage in the colonial trade of the enemy, brought by appeal from the Vice-Admiralty Court at Halifax, where the ship and cargo, taken on a destination to Bilboa in Spain, and claimed on behalf of Messi's. W, and N. Hooper of jMarblehead in the state of Massachusetts, had been con- demned 17th July, 1800. Among the papers was a certificate from the collector of the cus- toms, " that this vessel had entered and landed a cargo of cocoa belonging to Messrs. W. and N. Hooper, and that the duties had been secured agreeable to law, and that the said cargo had been re- shipped on board this vessel bound for Bilboa. Judgment, — Sir William Grant : — " The question in this case is, whether that part of the cargo which has been the subject of further proof, and which, it is admitted, wan, at the time of the capture, going to Spain, is to be considered as coming directly from Laguira within the meaning of his Majesty's instructions. According to our understanding of the law', it is only from those instructions that neutrals derive any right of carrying on with the colonies of our enemies, in time of war, a trade from which they were excluded in time of peace. The histructions had not permitted the direct trade between the hostile colony and its mother country, but had, on tlie contrary ordered all vessels engaged in it to be brought in for lawful adjudication ; and what the present claimants accordingly maintain, is not tliat they could carry the produce of Laguira directly to Spain; l)ut that they were not so carrying the cargo in question, inasmuch as the voyage in which it ^ The above is only an extract from the opinion. — Ed. CHAP. III.] THE " WILLIAM." 849 was taken was a voyage from North America, and not directly from a colony of Spain. " What then, with reference to this subject, is to be considered as a direct voyage from one place to another ? Nobody has ever sup- posed that a mere deviation from the straightest and shortest course, in which the voyage could be performed, would change its denomi- nation, and make it cease to be a direct one within the intendment of the instructions. " Nothing can depend on the degree or the deviation — whether it be of more or fewer leagues, whether towards the coast of Africa, or towards that of America. Neither will it be contended that the point from which the commencement of a voyage is to be reckoned changes as often as the ship stops in the course of it ; nor will it the more change, because a partj'^ may choose arbitrarily by the ship's papers, or otherwise, to give the name of a distinct voyage to each stage of a ship's progress. The act of shifting the cargo from the ship to the shore, and from the shore back again into the ship, does not necessai'ily amount to tlie termination of one voyage and the commencement of another. It may be wholly unconnected with any purpose of importation into the place where it is done : Supposing the landing to be merely for the purpose of airing or drying the goods, or of repairing the ship, would any man think of describing the voyage as beginning at the place where it happened to become necessary to go through such a process ? " Again, let it be supposed that the party has a motive for desiring to make the voyage appear to begin at some other place than that of the original lading, and that he therefore lands the cargo purely and solely for the purpose of enabling himself to affirm, that it was at such other place that the goods were taken on board, would this contrivance at all alter the truth of the fact ? Would not the real voyage still be from the place of the original shipment, notwith- standing the attempt to give it the appearance of having begun from a different place? The truth may not always be discernible, but when it is discovered, it is according to the truth and not according to the fiction, that we are to give to the transaction its character and denomination. If the voyage from the place of lading be not really ended, it matters not by what acts the party may have evinced his desire of making it appear to have been ended. That those acts have been attended with trouble and expence cannot alter their quality or their effect. The trouble and expence may weigh as cir- cumstances of evidence, to shew the purpose for which the acts were done; but if the evasive purpose be admitted or proved, we can never be found to accept as a substitute for the observance of the 51 850 BELLIGERENTS AND NEUTRALS. [PART IL law, the means, however operose, which have been employed to cover a breach of it. Between the actual importation by which a voyage is really ended, and the colourable importation which is to give it the appearance of being ended, there must necessarily be a great resemblance. The acts to be done must be almost entirely the same ; but there is this difference between them. — ^The landing of the cargo, the entry at the custom-house, and the i:)ayment of such duties as the law of the place requires, are necessary ingredients in a genuine importation ; the true purpose of the owner cannot be effected with- out them. But in a fictitious importation they are mere voluntary ceremonies, which have no natural connection whatever Avith the purpose of sending on the cargo to another market, and which, there- fore, would never be resorted to by a person entertaining that pur- pose, except with a view of giving to the voyage which he lias resolved to continue, the appearance of being broken by an importation, which he has resolved not really to make. " Now, what is the case immediately before us ? The cargo in question was taken on board at Laguira. It was at the time of the capture proceeding to Spain ; but the ship had touched at an Ameri- can port. The cargo was landed and entered at the custom-house, and a bond was given for the duties to the amount of 1,239 dollars- The cargo was re-shipped, and a debenture for 1,211 dollars by way of drawback was obtained. All this passed in the course of a few days. The vessel arrived at Marblehead on the 29th of May ; on that day the bond for securing the duties was given. On tlie 30th and 31st the goods were landed, weighed, and packed. The permit to ship them is dated the 1st of June, and on the 3d of June the vessel is cleared out as laden, and ready to proceed to sea. We are frequently obliged to collect the purpose from the circumstances of the transaction. The landing thus almost instantaneously followed by the re-shipment, has little appearance of having been made with a view to actual importation ; but it is not upon inference that the conclusion in this case is left to rest. The claimants, instead of showing that they really did import their cargo, have, in their at- testation, stated the reasons which determined them not to import it. They say, indeed, that when they ordered it to be purchased, 'it was with the single view of bringing it to the United States, and that they had no intention or expectation of exporting it in the said schooner to Spain.' Supposing that from this somewhat am- biguous statement we are to collect that their original intention was to have imported this cargo into America, with a view only to the American market, yet their intention had been changed before the arrival of the vessel. For they state that in the beginning of May CHAP. III.] THE " WILLIAM," 851 they had received accounts of the prices of cocoa in Spain, which satisfied tliem that it would sell much hetter there than in America, and that they had therefore determined to send it to the Spanish market. Nothing is alleged to have happened between the landing of the cargo and its re-shipment, that could have the least influence on their determination. It was not in that short interval that American prices fell, or that information of the higher prices in Spain had been received. Knowing beforehand the comparative state of the two markets, they neither tried nor meant to try that of America, but proceeded with all possible expedition to go through the forms which have been before enumerated. If the continuity of the voyage remains unbroken, it is immaterial whether it be by the prosecution of an original purpose to continue it, as in the case of the Essex, or, as in this case, by the relinquishment of an original purpose to have brought it to a termination in America. It can never be contended, that an intention to import once entertained is equivalent to importation. And it would be a contradiction in terms to say that by acts done after the original intention has been aban- doned, such original intention has been carried into execution. Why should a cargo, which there was to be no attempt to sell in America, have been entered at an American custom-house, and voluntarily subjected to the payment of any, even the most trifling duty? Not because importation was, or in such a case could be intended, but because it was thought expedient that something should be done, which in a British Prize Court might pass for importation. Indeed, the claimants seem to have conceived that the inquiry to be made here was, not, whether the importation w^as real or pretended, but wiiether the pretence had assumed a particular form, and was ac- companied with certain circumstances which by some positive rule were, in all cases, to stand for importation, or to be conclusive evi- dence of it. * * * "But supposing that we had uniformly held that payment of the import duties furnished conclusive evidence of importation, would there have been any inconsistency or contradiction in holding that the mere act of giving a bond for an amount of duties, of which only a very insignificant part was ever to be paid, could not have the same effect as the actual payment of such amount ? The further proof in the Essex first brought distinctly before us the real state of the fact in this particular. It has been already mentioned that we had called for an account of the drawbacks, if any, that had been re- ceived. This produced the information that although the duties secured amounted to 5,278 dollars, yet a debenture was immediately afterwards given for no less than 5,080 dollars; so that on that 852 BELLIGERENTS AND NEUTRALS. [PAKT 11. valuable cargo no more than 198 dollars would be ultimately pay- able, which sum is said to be more than compensated for the advan- tage arising from the negotiability of the debenture. * * * " The consequence is, that the voyage was illegal, and that the sentence of condemnation must be affirmed." THE "STEPHEN HART." U. S. District Court of So. New York, 1863. {Blatchford's Prize Cases, 387.) The schooner Stephen Hart was captured, as lawful prize of war, by the United States vessel of war Suppli/, on the 29th of January, 1862, off the southern coast of Florida, about 25 miles from Key West, and about 82 miles from Toint de Yeacos, in Cuba, bound os- tensibly from London to Cardenas, in Cuba, with a cargo of muni- tions of war and army supplies. Betts, J. : — "Many of the principle questions involved in the present case, and in the cases of the Springholc and the Peterhoff, are alike; and, as the conclusion at which the court has arrived in all of those eases is to condemn the vessels and their cargoes, I shall announce, in this case, the leading principles of public law which lead to a condemna- tion in all the cases. " On behalf of the libellants, it is urged in this case, 1st. That the Stephen Hart and her cargo were enemy's property when the voyage in question was undertaken, and when the capture was made ; 2d. That the schooner was laden with articles contraband of war, des- tined for the aid and use of the enemy, and on transportation by sea to the enemy's country at the time of capture ; 3d. That, with a full knowledge, on tlie part of the owner of the vessel and of the owners of her cargo, that the ports of the enemy were under block- ade, the vessel and her cargo were despatched fi-om a neutral port with an intention, on the part of the owners of each, that in viola- tion of the blockade, both the vessel and her cargo should enter a port of the enemy. " On the part of the claimants, it is maintained, 1st. That the transportation of all articles, including arms and munitions of Avar, l)ctween neutral jiorts in a neutral vessel, is lawful in time of war ; 2d. That if a neutral vessel, with a cargo belonging to neutrals, be in fact on a voyage from one neutral port to another, she cannot be CHAP. III.] THE " STEPHEN HART." 853 seized and condemned as lawful prize, although she l3e laden with contraband of war, unless it be determined that she was actually destined to a port of the enemy upon the voyage on which she was seized, or unless she is taken in the act of violating a blockade. " It is insisted, on the part of the claimants, that the Stephen Hart was, at the time of her capture, a neutral vessel, carrying a neutral cargo from London to Cardenas — both of them being neutral ports — in the regular course of trade and commerce. On the other side it is contended that the cargo was composed exclusively of articles contraband of war, destined, when they left London, to be delivered to the enemy, either directly, by being carried into a port of the enemy in the Stephen Hart or by being trans-shipped at Cardenas to another vessel; that Cardenas was to be used merely as a port of call for the Stephen. Ilai% or as a port of trans-shipment for her cargo ; that the vessel and her cargo are equally involved in the forbidden transaction ; and that the papers of the vessel were simulated and fraudulent in respect to her destination and that of her cargo. A con- demnation is not asked if the cargo was in fact neutral property, to be delivered at Cardenas for discharge and general consumption or sale there, but is only claimed if the cargo was really intended to be delivered to the enemy at some other place than Cardenas, after using that port as a port of call or of trans-shipment, so as to thus render the representations contained in the papers of the vessel false and fraudulent as to the real destination of the vessel and her cargo. " It would scarcely seem possible that there could be any serious debate as to the true principles of public law applicable to the solu- tion of the questions thus presented ; and, indeed, the law is so well settled as to make it only necessary to see whether the facts in this case bring the vessel and her cargo within the rules which have been laid down by the most euiinent authorities in England and in this country. " The principles upon which the government of the United States, and the public vessels acting under its commission, have proceeded, during the present war, in arresting vessels and cargoes as lawful prize upon the high seas, are very succinctly embodied in the in- structions issued by the Navy Department on the 18th of August, 1862, to the naval commanders of the L'nited States, and which in- structions are therein declared to be a recapitulation of those there- tofore from time to time given. The substance of those instruc- tions, so far so they are applicable to the present case, is, that a vessel is not to be seized 'without a search carefully made, so far as to render it reasonable to believe that she is engaged in carrying contraband of war for or to the insurgents, and to their ports di- 854 BELLIGERENTS AND NEUTRALS. [PART II. tectly or indirectly by trans-shipment, or otherwise violating tlie blockade.' " The main feature of these instructions, so far as they bear upon the questions involved in this case, is but an application of the doc- trine in regard to captures laid down by the government of the United States at a very early day. In an ordinance of the Congress of the Confederation, which went into effect on the 1st of February, 1782, 5 Wheaton, Appendix, p. 120, it was declared to be lawful to capture and to obtain condemnation of all ' contraband goods, wares, and merchandises, to whatever nations belonging, although found in a neutral bottom, if destined for the use of an enemy? " The soundness of these principles, and the fact that the law of nations, as applicable to cases of prize, has been observed and applied by the government of the United States and its courts during the present war, was fully recognized by Earl Russell, her Britannic Majesty's principal secretary of state for foreign affairs, in his re- marks made in the House of Lords on the 18th of May last. Earl Russell there stated that the judgments of the United States prize courts, which had been reported to her Majesty's government during the present war, did not evince any disregard of the estab- lished principles of international law ; that the law officers of the Crown, after an attentive consideration of the decisions which had been laid before them, were of opinion that there was no rational ground of complaint as to the judgments of the American prize courts ; and that the law of nations in regard to the search and seiz- ure of neutral vessels had been fully and completely acknowledged by the government of the United States. On the same occasion Earl Russell remarked : ' It has been a most profitable business to send swift vessels to break or run the blockade of the southern ports, and carry their cargoes into those ports. There is no munic- ipal law in this or any country to punish such an act as an offence. I understand that every cargo which runs the blockade and enters Charleston is worth a million of dollars, and that the profit on these transactions is immense. It is well known that the trade has attracted a great deal of attention in this country from those who have a keen eye to such gains, and that vessels have been sent to Xassau in order to break the bbjckade at Charleston, Wilmington, and other places, and carry contraband of war into some of the ports of the Southern States.' He added : ' I certainly am not prepared to de- clare, nor is there any ground for declaring, that the courts of the United States do not faithfully administer the law; that they will not allow evidence making against the captors ; or that they are likely to give decisions founded, not upon the law, but upon their CHAP. III.] THE " STEPHEN HART." 855 own passions and national partialities.' He also said, that in a case of simulated destination — that is, a vessel pretending that she is going to Xassau, when she is in reality bound to a port of the ene- my — the right of seizure exists. " The then solicitor-general of England ( Sir Roundell Palmer) stated, in the House of Commons, on the 29th of June last, referring to the cases of the Dolphin and the Pearl, decided by the district court for the southern district of Florida (those vessels having been captured while ostensibly on voyages from Liverpool to Nassau, and it having been held by the court that the intention of the owners of the vessels Avas that they should only touch at Nassau, and then go and break the blockade at Charleston), that ' if the owners imagined that the mere fact of the vessel touching at Nassau when on such an expedition exonerated her, they were very much mistaken ; ' that the principles of the judgment in the case of the Dolphin ' were to be found in every volume of Lord Stowell's decisions ;' that it was well known to everybody that there was a large contraband trade between England and America by way of Nassau ; that it was absurd to pretend to shut their eyes to it ; and that the trade with Nassau and Matamoras had become what it was in consequence of the war. " The Foreign Office of Great Britain, in a letter to the owner of the Peterhoff, on the 3d of April last, announced as its conclusion, after having communicated with the law officers of the Crown, that the government of the United States has no right to seize a British vessel bona fide bound from a British port to another neutral port, unless such vessel attempts to touch at, or has an intermediate or contingent destination to, some blockaded port or place, or is a car- rier of contraband of war destined for the enemy of the L^nited States ; that her ]\Lajesty's government, however, cannot, without violating the rules of international law, claim for British vessels navigating between Great Britain and such neutral ports any gen- eral exemption from the belligerent right of visitation by the cruisers of the United States, or proceed upon any general assumption that such vessels may not so act as to render tlieir capture lawful and justifiable ; that nothing is more common than for those who con- template a breach of blockade or the carriage of contraband, to dis- guise their purpose by a simulated destmation and by deceptive papers ; and that it has already happened, in many cases, that Brit- ish vessels have been seized while engaged in voyages apparently law- ful, and have been afterwards proved in the prize courts to have been really guilty of endeavoring to break the blockade, or of carry- ing contraband to the enemy of the United States. " The cases of the Stephen Hart, the /Spri?i(/bok, the Peterhoff, and 856 BELLIGERENTS AND NEUTRALS. [PART IL the Gertrude illustrate a course of trade which has sprung up during the present war, and of which this court will take judicial cognizance, as it appears from its own records and those of other courts of the United States as well as from public reputation. Those neutral ports have suddenly been raised from ports of comparatively in- significant trade to marts of the first magnitude. Nassau and Car- denas are in the vicinity of the blockaded ports of the enemy, while Matamoras is in Mexico, upon the right banlc of the Rio Grande, directly ojjposite the town of Brownsville, in Texas. The course of trade, in respect to Xassau and Cardenas, has been generally to clear neutral vessels, almost always under the British flag, from English ports for those places, and, using them merely as ports either of call or of trans-shipment, to either resume new voyages from them in the same vessels, or to trans-ship their cargoes to fleet steamers, with which to run the blockade, the cargoes being composed, in almost all cases, more or less, of articles contraband of war. The character and course of this trade, and its sudden rise, are very properly com- mented upon in a despatch from the Secretary of State of the United States to Lord Lyons, of the 12th of May, 1863. " The broad issue upon the merits in this case is, whether the ad- venture of the Stephen Hart was the honest voyage of a neutral vessel from one neutral port to another neutral, carrying neutral goods between those two ports only, or was a simulated voyage, the cargo being contraband of war, and being really desthied for the use of the enemy, and to be introduced into the enemy's country by a breach of blockade by the Hteplten Hart, or by trans-shipment from her to another vessel at Cardenas. It is conceded in the argument of the leading counsel for the claimants that if the property was owned by the enemy, and was fraudulently on its way to the enemy as neutral property, it was enemy's property, and was liable to capture, no matter Avhence it came or whither it Avas bound ; and that, if the vessel were really intending and endeavoiing to run the blockade, the property was liable to capture, no matter to whom it belonged or wliat was its character; but that if it was neutral prop- erty, in lawful commerce, it was safe from seizure. " The question whether or not the property laden on board of the Stephen Hart was being transported in the business of lawful com- merce, is not to be decided by merely deciding tlie question as to wlietlier the vessel was documented for, and sailing upon, a voyage from London to Cardenas. The commerce is in tlie destination and intended use of the property laden on board of the vessel, and not in the incidental, ancillary, and temporary voyage of the vessel, which may be but one of many carriers through which the property CHAP. Til.] THE "STEPHEN HART," 857 is to reach its true and original destination. If this were not tlie rule of the prize law, a very wide door would be opened for fraud and evasion. A cargo of contraband goods, really intended for the enemy, might be carried to Cardenas in a neutral vessel sailing from England with papers which, upon their face, import merely a voyage of the vessel to Cardenas, while in fact, her cargo, when it left Eng- land, was destined by its owners to be delivered to the enemy by being trans-shipped at Cardenas into a swifter vessel. And such, indeed, has been the course of proceeding in many cases during the present war. * * * "The law seeks out the truth, and never, in any of its branches, tolerates any such fiction as that under which it is sought to shield the vessel and her cargo in the present case. If the guilty intention, that the contraband goods should reach a port of the enemy, existed when such goods left their English port, that guilty intention cannot be obliterated by the innocent intention of stopping at a neutral port on the way. If there be, in stopping at such port, no intention of trans-shipping the cargo, and if it is to proceed to the enemy's country in the same vessel in which it came from England, of course there can be no purpose of lawful neutral commerce at the neutral port by the sale or use of the cargo in the market there ; and the sole purpose of stopping at the neutral port must merely be to have upon the papers of the vessel an ostensible neutral terminus for the voyage. " If, on the other hand, the object of stopping at the neutral port be to trans-ship the cargo to another vessel to be transported to a port of the enemy, while the vessel in which it was brouglit from England does not proceed to the port of the enemy, there is equally an absence of all lawful neutral commerce at the neutral port ; and the only commerce carried on in the case is that of the transporta- tion of the contraband cargo from the English port to the port of the enemy, as was intended when it left the English port. This court holds that, in all such cases, the transportation or voyage of the contraband goods is to be considered as a unit, from the port of lading to tlie port of delivery in the enemy's country ; that if any part of such voyage or transportation be unlawful, it is unlawful throughout ; and that the vessel and her cargo are subject to capture ; as well before arriving at the first neutral port at which she touches after her departure from England, as on the voyage or transporta- tion by sea from such neutral port to the port of the enemy. * * * " There must, therefore, be a decree condemning both vessel and cargo." ^ 1 Cases involving the same principles are The Bermuda, 1865, 3 Wall. 614; tlie Sprhuibuk, 18G(), 5 Wall. 1 ; the Peterlmff, 1866, 6 Wall. 28, and other.s. The judgment of Betts, J., in the Stephen Hart was subsequently briefly affirmed by the 858 BELLIGERENTS AND NEUTRALS. [PART IL Sectiox 47. — Visit and Search : Neutral Property on the High Seas. THE ''MARIA." High Court of Admiralty, 1799. (1 C. Robmson, MO.) This was the leading case of a fleet of Swedish merchantmen, .car- rying pitch, tar, liemp, deals, and iron to several ports of France, Portugal, and the Mediterranean ; and taken, January, 1798, sailing under convoy of a ship of war, and proceeded against for resistance of visitation and search by P)ritish cruisers. Judgment. — Sir W. Scott : ^ — " This being the actual state of facts, it is proper for me to examine, 2dly, what is their legal state, or, in other words, to what considera- tions they are justly subject, accoi-ding to the law of nations; for which purpose I state a few principles of that system of law which I take to be incontrovertible. "1st, That the right of visiting and searcliing merchant ships upon the high seas, whatever be the ships, whatever be the cargoes, whatever be the destinations, is an incontestible right of the law- fully commissioned cruisers of a belligerent nation. I say, be the ships, the cargoes, and the destinations what tliey may, because, till they are visited and searclied, it does not appear what the ships, or the cargoes, or the destinations are ; and it is for the purpose of ascertaining these points that the necessity of this riglitof visitation and search exists. This riglit is so clear in principle, that no man can deny it who admits the legality of maritime capture ; because if you are not at liberty to ascertain by sufficient inquiry wiiether there is property that can legally be captured, it is impossible to capture. Even those who contend for the inadmissible rule, that free ships make free (/oods, must admit the exercise of this right at least for the purpose of ascertaining whether the ships are free sliii)S or not. The right is equally clear in jiractice ; for practice is uni- Suprcnie Court, 1865, 3 Wall. 550, and it (Betts' judgment) is on the whole the clearest and most forcible statement of the principles and the circumstances involved in tiiese cases, to be found in the reports. Compare L'Affaire du Doelwijk, 1896, 24 Journal de Droit Int. Privc, 208-298. The doctrine of continuous voyages is generally con- demned, 7 Kevue de Droit Int. 2:]G-2G0; 14 id. '.yiH-ool ; Honfils, Droit des Gens, §§ lOOfi-lOG? (literature in note); Fauchillc, Du Blocus Maritime, 1882, pp. 33.3-346; 2 Kivior, 432-434. — Ed. ^ Only so much of the judgment is given as applies to genera! principles. — Ed. CHAP. III.] THE " MARIA." 859 form and universal upon the subject. The many European treaties which refer to this riglit, refer to it as pre-existing, and merely reg- ulate the exercise of it. All writers upon the law of nations unani- mously acknowledge it, without the exception even of Hubner himself, the great champion of neutral privileges. In short, no man in the least degree conversant in subjects of this kind has ever, that I know of, breathed a doubt upon it. The right must unquestionably be exercised with as little of personal harshness and of vexation in the mode as possible ; but soften it as much as you can, it is still a right of force, though of lawful force — something in the nature of civil l^rocess, where force is employed, but a lawful force, which cannot lawfully be resisted. For it is a wild conceit that wherever force is used, it may be forcibly resisted ; a lawful force cannot lawfully be resisted. The only case where it can be so in matters of this nature, is in the state of war and conflict between two countries, where one party has a perfect right to attack by force, and the other has an equally perfect right to repel by force. But in the relative situation of two countries at peace with each other, no such conflicting rights can possibly coexist. "2dly, That the authority of the Sovereign of the neutral country being interposed in any manner of mere force cannot legally vary the rights of a lawfully-commissioned belligerent cruiser ; I say legally, because what may be given, or be fit to be given, in the ad- ministration of this species of law, to considerations of comity or of national policy, are views of the matter Avhich, sitting in this Court, I have no right to entertain. All that I assert is, that legally it can- not be maintained, that if a Swedish commissioned cruiser, during the wars of his own country, has a right by the law of nations to visit and examine neutral ships, the King of England, being neutral to Sweden, is authorized by that law to obstruct the exercise of that right with respect to the merchant-ships of his country. I add this, that I cannot but think that if he obstructed it by force, it Avould very nuich resemble (with all due reverence be it spoken) an opposi- tion of illegal violence to legal right. Two sovereigns may unques- tionably agree, if they think fit, (as in some late instances they have agreed,) by special covenant, that the presence of one of their armed ships along witli their merchant-ships shall be mutually understood to imply that nothing is to be found in that convoy of merchant-ships inconsistent with amity or neutrality ; and if they consent to accept this pledge no third party has a right to quarrel with it any more than with any other pledge which they may agree mutually to accept. But surely no sovereign can legally compel the acceptance of such a security by mere force. The only security known to the law of na- 860 BELLIGERENTS AND NEUTRALS. [pART II. tions upon this subject, independent of all special covenant, is the right of personal visitation and search, to be exercised by those who have the interest in making it. I am not ignorant, that amongst the loose doctrines which modern fancy, under the various denomi- nations of philosopliy and philanthropy, and I know not what, have thrown upon the^Yorld, it has been within these few years advanced, or rather insinuated, that it might possibly be well if such a security were accepted. Upon such unauthorized speculations it is not nec- essary for rae to descant : the law and practice of nations (I include particularly the practice of Sweden when it happens to be belligerent) give them no sort of countenance ; and until that law and practice are new-modelled in such a xcay as may surrender the known and ancient rights of some nations to the present convenience of other nations, (which nations may perhaps remember to forget them, when they happen to be themselves belligerent,) no reverence is due to them ; they are the elements of that system which, if it is consistent, has for its real i)urpose an entire abolition of capture in war — that is, in other words, to change the nature of hostility, as it has ever existed amongst mankind, and to introduce a state of things not yet seen in the world, that of a military war and a connnercial peace. If it were fit that such a state should be introduced, it is at least necessary that it should be introduced in an avowed and intelligible manner, and not in a way which, professing gravely to adhere to that system which has for centuries prevailed among civilized states, and urging at the same time a pretension utterly inconsistent with all its known principles, delivers over the whole matter at once to eternal controversy and conflict, at the expence of the constant hazard of the harmony of states, and of the lives and safeties of innocent individuals. "3dly, That the penalty for the violent contravention of this right is the confiscation of the property so withheld from visitation and search. For the proof of this I need only refer to Vattel, one of the most correct and certainly not the least indulgent of modern profes- sors of public law." See Book III., c. vii., sect. 114.i 1 For decisions on Visit and Searcli in time of peace, see Le Louis, 1817, 2 Dods. 210, anifi, 352 ; li. v. Serva mul others, 1845, 1 Ben. Cr. Cas. 104, witli cases tliere cited ; 'J'hn Antelo/>e, 1825, 10 Wiieat. 110. See also tiie note to The Maria in Tudor, Mer- cantile Cases, 8d ed., 914-920. — Ed. CHAP. III.] THE SCHOONER " NANCY." 861 THE SCHOONER ''NANCY." United States Court of Claims, 1892. (27 Court of Claims, 99.) Davis, J., delivered the opinion of the court: ^ — The Nancy, sailing from Baltimore to Port a Paix in the year 1797, was in June captured by an English vessel of war, taken into St. Nich- olas Mole and there detained. She sailed then (under constraint) for Jeremie, and there took in a cargo of coffee. Thereafter the schooner left Jeremie, under convoy bound back to St. Nicholas Mole, with in- tention there to join a convoy for the United States, but before arrival at the Mole, and while under convoy, she was captured by the French, August 2d ; in due course she was condemned as prize, and, with her cargo, was lost to the owners. The substantial ground for condemnation is found in the fact that when the Nancy was captured she was actually under convoy. The nature or nationality of the convoy is not shown, but the history of the time forces the presumption that it was an English armed vessel, either public, or, what is more likely, private. Jeremie was in possession of the English, so was the Mole. The Nancy was forced to take an English privateer as convoy from the Mole to Jeremie, and in the latter port it is more than improbable that she would have found any armed vessel to escort her back to the Mole which did not fly the flag of Great Britain. The record being silent upon this point, we are forced to assume that when captured she was under English protection. One question of law alone, then, is presented for our decision : Was the condemnation legal of a neutral vessel laden with neutral cargo captured when under enemy convoy ? There is, so far as we have been able to discover, no judicial decision in the United States upon the question presented by this record and which we now must consider and determine. A case much cited in discussions of the right of search is the Nereide, 9,Cranch, 389, but there the court decide only that neutral property is not tainted when laden upon an armed belligerent; and the principle governing such a case is thus stated by Chief Justice Marshall (p. 432). " The general rule, the incontestable principle, is that a neutral has a right to employ a belligerent carrier. He exposes himself thereby to capture and detention, but not to condemnation." ^ ' The statement of facts is omitted as they suflBcieutly appear in the judgment. — Ed. 862 BELLIGERENTS AND NEUTRALS. [PART 11. In the later case of The Afala)ita, 3 "Wheat, p. 409, Mr. Justice Johnson, speaking of the distinction observed between neutral goods laden upon belligerent vessels and neutral vessels under convoy, made the following suggestions : I " A convoy is an association for a hostile object. In undertaking ' it, a nation spreads over the merchant vessel an immunity from search ■which belongs only to a national ship; and by joining a convoy every individual ship puts off her pacific character and undertakes for the discharge of duties which belong only to the military marine and adds to the numerical, if not the real, strength of the convoy. If, then, the association be voluntary, the neutral, in suffering the fate of the Avhole, has only to regret his owm folly in wedding his fortune to theirs ; or, if involved in the aggressioji or the opposition of the con- voying vessels, he shares the fate which the leader of his own choice either was or would have been made liable to in case of capture." And further (p. 424) : I' " Resistance, either real or constructive, by a neutral carrier is, with » a view to the law of nations, unlawful." The Atalanta, like the Nereide, was an armed British vessel, carry- ing neutral cargo. No question as to the effect of belligerent convoy was involved in either case, and Mr. Justice Johnson's remarks can only be regarded as illustrative. They, however, gain great force from the fact that in the case of the Nereide Mr. Justice Story (who dissented) wrote an opinion upon neutral duties which has always attracted general attention, and which is to-day found fully cited in the text-books, both those by our own authors and those written by citizens or subjects of other nations ; in fact, one accepted authority has fallen into the error of ascribing Mr. Justice Story's views to the court of which he was a member. Mr. Justice Story said : — *'It has, however, been supposed by the counsel of the claimants that a distinction exists between taking the protection of a neutral and of a belligerent convoy that in the former case all armament for resistance is unlawful, but in the latter case it is not only lawful, but in the liighest degree commendable. That although an unlawful act, as resistance by a neutral convoy, may justly affect the whole asso- ciated ships, yet it is otherwise of a lawful act, as resistance of a belligerent ship ; for no forfeiture can reasonably grow out of such an act, which is strictly justifiable. " Tlie fallacy of tlie argument consists in assuming the very ground in controversy and confounding things in their own nature entirely £ distinct. An act perfectly lawful in a belligerent may be flagrantly wrongful in a neutral. A belligerent may lawfully resist search ; a CHAP. lil.] THE SCHOONER " NANCY." 863 neutral is bound to submit to it. A belligerent may carry on his commerce by force ; a neutral cannot. A belligerent may capture the property of his enemy on the ocean ; a neutral has no authority what- ever to make captures. The same act, therefore, that with reference to the acts and duties of the one may be tortious, may, with reference to the rights and duties of the other, be perfectly justifiable. The act, then, as to its character, is to be judged not merely by that of the parties through whose immediate instrumentality it is done, but also by the character of those who, having co-operated in, assented to, or sought protection from it, would yet withdraw themselves from the penalties of the act. It is analogous to the case at common law Avhere an act, justifiable in one party, does not, from that fact alone, shelter his coadjutor. They must stand or fall upon their own merits. It would be strange indeed if, because a belligerent may kill his enemy, a neutral may aid in the act; or because a belligerent may resist search, a neutral may co-operate to make it effectual. It is therefore an assumption utterl}- inadmissible that a neutral can avail himself of the lawful act of an enemy to protect himself in an invasion of a clear belligerent right. "And what reason can there be for the distinction contended for? AVhy is the resistance of the convoy deemed the resistance of the whole neutral associated ships, let them belong to whom they may ? It is not that there is a direct and immediate co-operation in the resist- ance, because the case supposes the contrary. It is not that the resistance of the convoy of the sovereign is deemed an act to wliich all his own subjects consent, because the ships of foreign subjects would then be exempted. It is because there is a constructive resist- ance resulting in law from tlie common association and voluntary pro- tection against search made under a full knowledge of the intentions of the convoy. Then the principle applies as well to a belligerent as to a neutral convoy ; for it is manifest that the belligerent will at all events resist search ; and it is quite as manifest that the neutral seeks belligerent protection with an intent to evade it. Is it tliat an evasion of search, by the employment, protection, or terror of force, is consis- tent with neutral duties? Then, a fortiori, the principle applies to a case of belligerent convoy, for the resistance must be presumed to be more obstinate and the search more perilous. •' There can be but little doubt that it is upon the latter principle that the penalty of confiscation is applied to neutrals. The law pro- ceeds yet further, and deems the sailing under convoy as an act pt'r se inconsistent with neutrality, as a premeditated attempt to oppose, if practicable, the right of search, and therefore attributes to such pre- liminary act the full effect of actual resistance. lu this respect it 864 BELLIGERENTS AND NEUTRALS. [PART 11. applies a rule analogous to that in the ease of blockade, where the act of sailing with an intent to break a blockade is deemed a sufficient breach to authorize confiscation. And Sir William Scott manifestly recognizes the correctness of this doctrine in the Maria, although the circumstances of that case did not require its rigorous application. " Indeed, in relation to a neutral convoy, the evidence of an intent to resist, as Avell as constructive resistance, is far more equivocal than in case of a belligerent convoy. In the latter case it is necessarily known to the convoyed ships that the belligerent is bound to resist and will resist until overcome by superior force. It is impossible, therefore, to join such convoy without an intention to receive the protection of belligerent force in such manner and under such cir- cumstances as the belligerent may choose to apply it. It is an adop- tion of his acts and an assistance of his interests during the assumed voyage. To render the convoy an effectual protection it is necessary to interchange signals and instructions, to communicate information, and to watch the approach of every enemy. The neutral solicitously aids and co-operates in all these important transactions, and thus far manifestly sides with the belligerent and performs, as to him, a meri- torious service, — a service as little reconcilable with neutral duties as the agency of a spy or the fraud of the bearer of hostile despatches. In respect to a neutral convoy, the inference of constructive co-operation and hostility is far less certain and direct. To condemn in such case is pushing the doctrine to a great extent, since it is acting upon the presumption, which is not permitted to be contradicted, that all the convoyed ships distinctly understood and adopted the objects of the convoy, and intimately blended their own interests with hostile resistance." Story, J., in The Nereide, 9 Cranch, 380. When Mr. Justice Johnson delivered the later opinion of the court in the case of the Atalanta, he had undoubtedly in mind the dissenting opinion delivered three years before by his colleague ; his remarks as to convoy, therefore, were undoubtedly carefully weighed and considered, and should be given a force not usually accorded to illustrations or statements merely argumentative in judicial decision. We infer that had the question of the effect upon a neutral of voluntary submission to a belligerent convoy been before them for adjudication at that time, the Supreme Court would have followed the reasoning of Mr. Justice Story. The discussions between the United States and Denmark early in this century are often alluded to in connection with questions similar to that presented in the case at bar, but it cannot be effectively cited as bearing in any important manner upon the single issue now presented. CHAP. III.] THE SCHOONER "NANCY." 865 The treaty of 1830 with Denmark provided for the payment of the claims, but it cannot be regarded as a precedent, for it contained a declaration that the convention, having no other object than to termi- nate all the claims, "can never hereafter be invoked by one party or the other as a precedent or rule for the future." Dana's AYheaton, Part LV. section 537. Nor was the exaet point we are now considering presented in the Danish case. The question there discussed is thus presented by Mr. Wheaton, who conducted the negotiations and signed the treaty: '^The principle laid down in the ordinance as interpreted by the Danish tribunals was that the fact of having navigated under enemies convoy is, ^^e/- se, a justifiable cause, not of capture merely, but of condemnation, in the courts of the other belligerent; and that, without inquiring into the proofs of proprietary interest or the circumstances and motives under Avhich the captured vessel had joined the convoy, or into the legality of the voyage, or the innocence of her conduct in other respects." Dana's Wheaton, Part LV. section 531. In Denmark the vessels were condemned because at a previous time they had been under enemy convoy. Wlien seized they were without convoy, whereas the Nannj was actually under convoy when seized. If we omit consideration of points presented by a state of real or quasi armed neutrality, -which do not affect our present purpose, we shall find in the history of the Department of State any other prece- dent than the Danish case to be invoked in aid of a solution of the l^robleni now presented to us. Assuming, therefore, that the Supreme Court has indicated through two learned justices that in their opinion voluntary submission by the neutral to the enemy convoy taints the vessel, we turn to the text- writers. Mr. Wheaton gives but little aid, as his interesting discussion of the convoy relates to the Danish negotiations and to the position then taken by him, not as an unprejudiced text-writer, but as the diplomatic agent of the government, acting under instructions from his superior officers. His annotator, Mr. Dana, is, however, most explicit when he treats of the very question now before us. Speaking of neutral under belligerent convoy, Mi*. Dana says : " It is not enough for the ostensible neutral to say, or even to prove, that he is not justly liable to capture, for the law of nations requires him to afford the belligerent a certain mode of satisfying himself on that point by visit and search ; and if he refuses, resists, or fraudently evades the proper search, he is, for that cause, liable to capture. The only question ever raised has been, whether the act of being found under belligerent convoy affords a conclusive presumption of au 65 866 BELLIGERENTS AMD NEUTRALS. [PART II. intent to deprive the other belligerent of the right of search or is only a fact, having its weight, but open to explanation." Dana's Wheaton, Part LV. ch. III. final foot-note. Chancellor Kent is also direct in his statement : f " The very act of sailing under the protection of a belligerent or neutral convoy, for the purpose of resisting search, is a violation of neutrality." 1 Kent, p. 155. • The principle upon which the Danish case Avas decided " Seems (according to Dr. Woolsey) to run between making use of the enemy's flag and putting one's goods on board an armed enemy's vessel. The former is done to enjoy certain privileges, offered by a party of war, which would not otherwise be secured. The latter may be done without complicity with the intentions or conduct of the captain of the armed ship, or may be done with the design of having tv/o strings to one's bow ; of availing one's self of force or not, as cir- cumstances shall require. Upon the whole, the intention to screen the vessels behind the enemy's guns is so obvious, that the act must I be pronounced to be a decided departure from the line of neutrality, ' and one which may justly entail confiscation on the offending party." Sec. 193. Vattel (bk. III. ch. 7, sec. 114), says : " Aujourd'hui un vaisseau neutre, qui refuseroit de souffrir la visite, se feroit condamner par cela seul, comme etantde bonne prise." Yalin, commenting upon the French ordinance of 1681, which pro- vides that every vessel shall be good prize in case of resistance and combat, states that resistance alone without combat justifies condem- nation. Valin sur I'ordonnance de 1681, sec. 12, page 81. In the Maria, Sir William Scott said : "I stand with confidence upon all fair principles of reason — upon the distinct authority of Yattel — upon the institutes of other great maritime countries, as well as those of our own country — when I venture to lay it down that, by tlie law of nations as now understood, a deliberate and continued resistance to search, on the part of a neutral vessel to a lawful cruiser, is followed by the legal consequence of confiscation." 1 C. Rob. p. 340. In the case of Tlie Cdtharina Elizabeth, 5 C. Hob. p. 232, the same (eminent judge held that resistance by an enemy master will not affect his neutral cargo — a decision quite in harmony with that of the Supreme Court in the Nereide — and he observed : J. "If a neutral master attempts a rescue, he violates a duty which is ' imposed upon him by the laws of nations, to submit to come in for inquiry as to tlie property of the ship or cargo; and if he violates that I obligation by a recurrence to force, the consequences will undoubtedly CHAP. III.] THE SCHOONER " NANCY." 867 reach the property of his owner; and it wouhl, I think, extend to the confiscation of the whole cargo intrusted to his care and thus fraud- ulently attempted to be withdrawn from the rights of war. With an enemy master the case is very different." See also The Dispatch, 3 C. Rob. p. 278. Dr. Phillimore, commenting upon Sir William Scott's opinion in the Maria, that " it is wild conceit that wherever force is used it may be lawfully resisted," concludes thus : " It is upon these principles that international law universally, by its accredited voice, inflicts the penalty of confiscation upon the neutral merchantman or private vessel which resists the belligerent's right of search." Vol. III. CCCXXXVI. Proceeding then to consider the case of a private vessel under convoy, he uses and apparently adopts the. language of Sir William Scott in what the author describes as "one of his most careful and best reasoned judgments," that given in the case of the Maria, a vessel sailing under armed convoy for the purpose of resisting visitation and search. In his treatise on international law Mr. Hall, citing ]\Ir. Justice Story's opinion in the Nereide, concludes that "on this point, as usually, English and American writers and judges are fully in accord." Part IV. ch. X. p. 679. Further (p. 275), he holds that, if the belligerent be within his rights when visiting, "the neutral master is guilty of an unprovoked aggression in using force to prevent the visit from being accomplished, and the belligerent may consequently treat him as an enemy and con- fiscate his iship." In the unreported case of the Sampson, decided by the lords of appeal, alluded to in the Mariaviwdi the Nereide and cited by Mr. ])ana, it was decided that the bare fact of being found under enemy convoy afforded a conclusive presumption of intent to deprive the other bel- ligerent of the right of search. In Manning's Commentaries on the Law of Nations (p. 369), we find his view thus stated : "As a general principle I think that the sailing under the convoy of a belligerent must be regarded as a withdrawal from the search of the other belligerent, as a resistance to his rights, and as entailing confiscation as a consequence of such attempted evasion." Ortolan, speaking of the Danish case, excuses the acts of the American ships upon the ground of an innocent ruse, excusable from the desire they had of escaping from the rigor of the French decrees, but he says that, apart from the special circumstances of this case — "It cannot be said that the fact of a neutral vessel navigating under 868 BELLIGERENTS AND NEUTRALS. [PART IL the convo}' of a belligerent is not an irregular and even illegal act. Such a convoy cannot, at all events, exempt from visit." Ortolan, Diplomatie de la Mer, tome II. p. 245. Hautefeuille takes a different view, viz., that the neutral who places himself under belligei-ent convoy does not fail in his duty or violate his neutral character; he exposes himself to be taken with the bel- ligerent convoy, but is not subject to confiscation; to go free it should be sufficient to establish his nationality and the innocence of his trade. Droits des nations neutres, tome III. pp. 162, 164. This author, how- ever, treats the subject rather as a philosopher than as a jurist, and does not assume that the law as stated by him was the law actually in existence, but rather that which he thought should exist and be enforced. The authorities agree that visit and search in time of war are belligerent rights of self-preservation to which the neutral must sub- mit ; that actual resistance by the neutral to the exercise of this right authorizes condemnation ; that voluntary submission to belligerent con- voy is constructive resistance which authorizes seizure. So far the authorities are united ; but they are not agreed as to the result of this constructive resistance, whether it raises a conclusive presumption authorizing confiscation of the neutral or presents only a suspicious circumstance capable of explanation. The weight of authority, how- ever, is adverse to this claimant, and we accordingly hold that, in the year 1798, a neutral vessel, if captured when actually under the pro- tection of an enemy's vessel of war, is for that reason alone good prize. It has been urged that a statute of the United States authorized resistance by our merchantmen to Frencli visitation and* search, to which there is the simple answer that no single state can change the law of nations by its municipal regulations. We do not forget the great dangers incurred by neutrals during the wars of the last century, arising somewhat from the illegal acts of belligerent armed public vessels, but especially from privateers, and the inexcusable course of some of the prize tribunals. We have already commented upon this condition in former opinions, and we are agreed that acts of neutral vessels of commerce under the then existing dangers sliould be judged with leniency; but we find that under the law of nations, as declared and observed in 1798, the United States could not have prosecuted to a successful issue the case of the Nancy after it had been shown that, when taken, she was voluntarily under the protection of an Englisli armed vessel. Tlie case will be reported to Congress with the conclusion of law that the claimant is not entitled to indemnity. CHAP. III.] THE BRIG "SEA NYMPH." 869 THE BRIG ''SEA XYMPH." United States Court of Claims, 1901. (36 Court of Claims, 369.) Wei.dox, J., delivered the oiDinion of the court : ^ — The facts shows that the brig Sea Nynijjh^ Hastie, master, sailed on or about the 17th of April, 1797, from the port of Jeremie, on a com- mercial voyage, bound for Cape Nicholas Mole, whence she sailed ^Fay 14, 1797, bound for Philadelphia, laden with a cargo of sugar and coffee. The Sea Xijmph sailed from the Mole under a British ship as a convoy, and while pursuing her voyage was seized on the high seas on the next day. May 15, 1797, b\' the French privateer Le General Toussaint, and carried into the port of St. lago de Cuba, and both vessel and cargo were condemned by the French prize court, sitting at Cape Francois. The grounds of condemnation as set forth in the decree are as follows : " Considering the papers above mentioned establish and prove that the said brig has been captured, loaded with produce taken on board at Jeremie; considering that Jeremie is one of the ports of the colony in rebellion against the laws of the Republic, under the protection of the British Government, and declared in a state of permanent siege by the decree of the commission of the 6th Xivose last." Upon the foregoing the court decrees the condemnation of the vessel and cargo as good prize. It is contended on the part of the defendants that the condemnation of said vessel by the French court was lawful and proper, notwith- standing that it is not alleged as a ground in the condemnation that the ship at the time of seizure was sailing under a belligerent vessel as a convoy. It has been repeatedly held by this court that if from the evidence in the case a sufficient ground of condemnation appears, the fact that such ground is not mentioned in the decree of condemnation would not have prevented France, and will not now prevent the United States, from insisting that although the decree is deficient in the allegations of good grounds for condemnation, yet if the evidence shows other grounds upon which the condemnation might have been made, there was no liability against France, and hence there can be none against the United States. ^ Statement of tlie original report is omitted. — Ed. 870 BELLIGERENTS AND NEUTRALS. [PART 11. In the case of the ship Joanna, Boggs, master (24 C. Cls. E. 198), it is said : " Before considering this subject we may say that we are of the opinion that should a good reason for the condemnation of a vessel appear in the record before the prize court, although that reason may not have been explicitly and specificially alleged by that tribunal as the reason for the result reached by them, we shall still uphold the decision of the tribunal." In the case of Stewart, administrator (schooner Nancy), against the United States (27 C. Cls. E. 99), the question of the legal effect of being under convoy at the time of seizure was considered and decided by this court. It is said in that case that " the substantial ground of condemnation is found in the fact that when the Nancij was captured she was actually under convoy. The nature or the nationality of the convoy is not shown, but the history of the time forces the presump- tion that it was an English armed vessel, either public or, what is more likely, private. Jeremie was in the possession of the English, and so was the Mole." It is not shown in this case as to the nationality or character of the convoy, but judging from the circumstance of the seizure and the analogy to the facts in the case of the Nancy, the pre- sumption arises that the convoy was either an English armed vessel or an English privateer. It is said in substance in that ease that there is no judicial decision in the United States upon the question presented by the record, and that this court must now in the first instance, in the history of this litigation, consider and determine the legal effect of sailing under a convoy at the time of seizure. In the case of the Nancy, the case of the Nerekle (9 Cranch, 389) is cited, and quotation is made from the opinion of Chief Justice Marshall, page 432, in which it is said, " The general rule and incontestable principle is that a neutral has a right to employ a belligerent carrier, who exposes himself to capture and detention l)ut not to condemnation." In the case of the Atalanta (3 Wheaton, p. 409), Mr. Justice John- son, distinguishing between the case of neutnil goods laden upon bel- ligerent vessels and neutral vessels imder convoy, said : "A convoy is an association for a hostile object. In undertaking it, a nation spreads over the merchant vessel an immunity from search wliich belongs only to a national shi]); and by joining a convoy every individual ship puts off her pacific character and undertakes for the discharge of duties which belong only to the military and marine and adds to the numerical if not the real strength of the convoy. If, then, tlie association be voluntary, the neutral, in suffering the fate of the whole, has only to regret his own folly in wedding his fortune to CHAP, IIT.] THE BRIG " SEA NYMPH." 871 theirs; or, if involved in the aggression or opposition of the cotivoying vessel, he shares the fate which the leader of his own choice either was or would have been made liable to in case of capture." In the case of the Four Sisters, McLean, master, No. ISG, this coiirt decided, as a conclusion of law, that the seizure and condemnation was not illegal, and that the owners and insurers had no claim of indemnity, therefore, on the French Government prior to the ratification of the convention of the 30th of September, 1800 ; that the said claim was not relinquished to France by the government of the United States, and that the claimants are not entitled to recover from the United States, as the Four Sisters was well armed, and when taken was vigor- ously resisting search. No opinion was given in that case, but in the case of the Nancy it is said, in substance, that the authorities agree that visit and search in time of war are belligerent rights of self-pres- ervation, to which the neutral must submit ; and that actual resistance to the exercise of such right authorizes condemnation ; that voluntary submission to a. belligerent convoy is constructive resistance, wliich authorizes seizure; that up to that point authorities are united, but they are not agreed as to the result of constructive resistance — whether it raises the conclusive presumption or presents only sus- picious circumstances capable of explanation. It is contended that circumstances might justify a neutral being in the company of a con- voy, and, if satisfactory, might excuse such neutral from the conse- quences of condemnation. In this case there are no explanations or circumstances which tend in their legal effect to excuse or mitigate the results growing out of the constructive resistance. The court held in the case of the Nauoj that the weight of authority was against the claimant, and that if a neutral vessel is captured when under the protection of an enemy's vessel of war it is for that reason good and lawful prize. In the case of the J/aria, reported in 1 C. Rob. 340, it was held that a vessel sailing under convoy of an armed ship for the purpose of resisting visitation and search was subject to condemnation because of that fact. It is said in the opinion of the court, by Sir William Scott : " How stands it by the general law ? I do not say that cases may not occur in which a ship may be authorized by the natural rights of self-preservation to defend itself against extreme violence threatened by a cruiser grossly abusing his commission, but where the utmost injury threatened is the being carried in for inquiry into the nearest port, subject to a full responsibility in costs and damages if this is done vexatiously and without just cause, a merchant vessel has not a right to say, for itself (and an armed vessel has no right to say for it), 872 BELLIGERENTS AND NEUTRALS. [PART II. 'I will submit to no such inquiry, but I will take the law into my own hands by force.' What is to be the issue if each neutral vessel has a right to judge for itself iu the first instance whether it is rightly detained and to act upon that judgment to the extent of using force ? Surely nothing but battle and bloodshed, as often as there is anything like an equality of force or equality of spirit." It is said by Sir Sherston Baker, in his work on international law, section 17, page 289, in substance, that the question whether neutral vessels under enemy's convoy are liable to capture and condemnation has been elaborately discussed, and that in the case of the Samjjson the Court of Appeals, in England, decided that sailing under an enemy's convoy was a conclusive ground of condemnation. In that connection it is said in substance, by the same distinguished author, that the exercise of the right of search within its true limits implies the right of using lawful force if necessary in its execution, the same as in the execution of a civil process on land. This right on one side implies the corresponding obligation and duty on the other of submission ; and as the belligerent may lawfully apply his force to the neutral property for the purpose of ascertaining its character and destination, it follows, as a logical effect and necessity, that the neutral may not lawfully resist the lawful exercise of the right of search. Sec. 11, p. 296. It is insisted by counsel for the claimant that it is not shown that at the time of the capture the ship was under convoy. In reply to that it may be said that it is shown by the decree that on the 14th of May, 1797, the ship sailed under a British convoy, and that on the next day she was captured. It is a familiar principle of law that a condition once established is presumed to continue until it is shown that a change had taken place; and the burden of proof being on the claimant to show that a change had taken place at the time of cap- ture, the presumption prevails with its legal effects against the claim- ant in the absence of such a showing. For the reasons above stated the court decides, as a conclusion of law, that the seizure and condemnation were lawful, and that the owners and insurers had no valid claim for indemnity therefor upon the French Government prior to the ratification of the convention between the United States and the French Republic concluded on the .30th day of September, 1830, and that the claims were not relin- quished to France by the government of the United States by said treaty in part consideration of the relinquishment of certain national claims of France agaiiist the United States, and that the claimants are not entitled to recover from the United States. The facts in detail, with a copy of this opinion, will be certified to Congress in accordance with the statute. CHAP. III.] THE " MARIANXA FLORA." 873 THE "MARIANNA FLORA." Supreme Court of the United States, 1826. (11 W/teaton, 1.) Mr. Justice Story delivered the opinion of the court.^ In considering the circumstances, the court has no difficulty in decid- ing that this is not a case of a piratical aggression, in the sense of the act of Congress. The Portuguese ship, though armed, was so for a purely defensive mercantile purpose. She was bound homewards with a valuable cargo on board, and could have no motive to engage in any piratical act or enterprise. It is true, that she made a meditated, and, in a sense, a hostile attack, upon the Alligator, with the avowed in- tention of repelling her approach, or of crippling or destroying her. But, there is no reason to doubt, that this attack was not made with a piratical or felonious intent, or for the purpose of wanton plunder, or malicious destruction of property. It was done upon a mistake of the facts, under the notion of just self-defence, against what the master very imprudently deemed a piratical cruiser. Tiie combat was, there- fore, a combat on mutual misapprehension ; and it ended without any of those calamitous consequences to life which might have brought very painful considerations before the court. It has, indeed, been argued at the bar, that even if this attack had been a piratical aggression, it would not have justified the capture and sending in of the ship for adjudication, because foreign ships are not to be governed by our municipal regulations. But the act of Congress is. decisive on this subject. It not only authorizes a capture, but a con- demnation in our courts, for such aggressions ; and whatever may be the responsibility incurred by the nation to foreign powers, in execut- ing such laws, there can be no doubt that courts of justice are bound to obey and administer them. The other count, which seeks condemnation on the ground of an asserted hostile aggression, admits of a similar answer. It proceeds upon the principle, that, for gross violations of the law of nations on the high seas, the penalty of confiscation may be properly inflicted upon the offending property. Supposing the general rule to be so in ordinary cases of property taken in delicto, it is not, therefore, to be admitted, that every offence, however small, however done under a mistake of rights, or for purposes wliolly defensive, is to be visited ^ Facts of the case, the question of damages, and part of the opinion are omitted. — Ed. 874 BELLIGERENTS AND NEUTRALS. [PART IL with such harsh punishments. Whatever may be the case, where a gross, fraudulent, and unprovoked attack is made by one vessel upon another iipon the sea, which is attended with grievous loss or injury, such effects are not to be attributed to lighter faults, or common negli- gence. It may be just, in such cases, to award to the injured party full compensation for his actual loss and damage; but the infliction of any forfeiture beyond this does not seem to be pressed by any con- siderations derived from public law. Pirates may, without doubt, be lawfully captured on the ocean by the public or private ships of every nation ; for they are, in truth, the common enemies of all mankind, and, as such, are liable to the extreme rights of war. And a piratical aggression by an ai-med vessel sailing under the regular flag of any nation, may be justly subjected to the penalty of confiscation for such a gross breach of the law of nations. But every hostile attack, in a time of peace, is not necessarily pirati- cal. It may be by mistake, or in necessary self-defence, or to repel a supposed meditated attack by pirates. It may be justifiable, and then no blame attaches to the act; or, it may be without just excuse, and then it carries responsibility in damages. If it proceed farther, if it be an attack from revenge and malignit}^, from gross abuse of power, and a settled purpose of mischief, it then assumes the character of a private unauthorized war, and may be punished by all the penalties which the law of nations can properly administer. These latter ingredients are entirely wanting in the case before us ; and, therefore, if the question of forfeiture were now in judgment, we should have no doubt, either upon the act of Congress, or the general law, that it ought not to be enforced. But, in the present posture of this cause, the libellants are no longer plaintiffs. The claimants interpose for damages in their turn, and have assumed the character of actors. They contend that they are entitled to damages, first, because the conduct of Lieutenant Stockton, in the approach and seizure of the Marianna Flora, was unjustifiable; and, secondly, because, at all events, the subsequent sending her in for adjudication was without any reasonable cause. In considering these points, it is necessary to ascertain what are the rights and duties of armed and other ships, navigating the ocean in time of peace. It is admitted, that the right of visitation and search does not, under such circumstances, belong to the public ships of any nation. This right is strictly a belligerent right, allowed by the general consent of nations in time of war, and limited to those occa- sions. It is true, that it has been held in the courts of this country, that American ships, offending against our laws, and foreign ships, in like manner, offending within our jurisdiction, may, afterwards, be CHAP. III.] THE " MARIANNA FLORA." 875 pursued and seized upon the ocean, and rightfull}^ brought into our ports for adjudication. This, however, has never been supposed to draw after it any right of visitation or search. The party, in such i case, seizes at his peril. If he establishes the forfeiture, he is justi- 1 fied. If he fails, he must make full compensation in damages. Upon the ocean, then, in time of peace, all possess an entire equality. It is the common highway of all, appropriated to the use of all ; and no one can vindicate to himself a superior or exclusive prerogative there. Every ship sails there with the unquestionable right of pursuing her own lawful business without interruption ; but> whatever may be that business, she is bound to pursue it in such a manner as not to violate the rights of others. The general maxim in such cases is, sic utere tuo, ut non alienum Iccdas. It has been argued, that no ship has a right to approach another at sea; and that every ship has a right to draw round her a line of juris- diction, within -which no other is at liberty to intrude. In short, that she may appropriate so much of the ocean as she may deem necessary for her protection, and prevent any nearer approach. This doctrine appears to us novel, and is not supported by any au- thority. It goes to establish upon the ocean a territorial jurisdiction, like that which is claimed by all nations within cannon-shot of their shores, in virtue of their general sovereignty. But the latter right is founded upon the principle of sovereign and permanent appropriation, and has never been successfully asserted beyond it. Every vessel undoubtedly has a right to the use of so much of the ocean as she occupies, and as is essential to her own movements. Beyond this, no exclusive i*ight has ever yet been recognized, and we see no reason for admitting its existence. Merchant ships are in the constant habit of approaching each other on the ocean, either to relieve their own distress, to procure information, or to ascertain the character of strangers ; and, hitherto, there has never been supposed in such conduct any breach of the customary observances, or of the strictest principles of the law of nations. In respect to ships of war sailing, as in the present case, under the authority of their government, to arrest pirates, and other public offenders, there is no reason why they may not approach any vessels descried at sea, for the purpose of ascertain- ing their real characters. Such a right seems indispensable for the fair and discreet exercise of their authority ; and the use of it cannot be justly deemed indicative of any design to insult or injure those they approach, or to impede them in their lawful commerce. On the other ! hand, it is as clear, that no ship is, under such circumstances, bound i to lie by, or wait the approach of any other ship. She is at full liberty to pursue her voyage in her own way, and to use all necessary precau- 876 BELLIGERENTS AND NEUTRALS. [PART II. tions to avoid any suspected sinister enterprise or hostile attack. She has a right to consult her own safety ; but, at the same time, she must take care not to violate the rights of others. She may use any precau- tions dictated by the prudence or fears of her officers ; either as to de- lay, or the progress or course of her voyage ; but she is not at liberty to inflict injuries upon other innocent parties, simply because of conjectural dangers. These principles seem to us the natural result of the com- mon duties and rights of nations navigating the ocean in time of peace. Such a state of things carries with it very different obligations and responsibilities from those which belong to public war, and is not to be confounded with it. The first inquiry, then, is, whether the conduct of Lieutenant Stock- ton was, under all the circumstances preceding and attending the com- bat, justitiable. There is no pretence to say that he committed the first aggression. That, beyond all question, was on the part of the Marianna Flora ; and her firing was persisted in after the Alligator had hoisted her national flag, and, of course, held out a signal of her real pacific character. What, then, is the excuse for this hostile at- tack ? Was it occasioned by any default or misconduct on the part of the Alligator? It is said, that the Alligator had no right to approach the Marlajina Flora, and that the mere fact of approach authorized the attack. This is what the court feels itself bound to deny. Lieutenant Stockton, with a view to the objects of his cruise, had just as unques- tionable a right to use the ocean, as the Portuguese ship had ; and his right of approach was just as perfect as her right of flight. But, in point of fact, Lieutenant Stockton's approach was not from mere motives of public service, but was occasioned by the acts of the Marl- anna Flora. He was steering on a course which must, in a short time, have carried him far away from her. She lay to, and showed a signal ordinarily indicative of distress. It was so understood, and, from motives of humanity, the course was changed, in order to afford the necessary relief. There is not a pretence in the whole evidence, that the lying to was not voluntary, and was not an invitation of some sort. The whole reasoning on the part of the claimants is, that it was for the purpose of meeting a supposed enemy by daylight, and, in this way, to avoid the difficulties of an engagement in the night. But how was this to be known on board of the Alligator ! How was it to be known that she was a Portuguese ship, or that she took the Alligator for a pirate, or that her object in laying to was a defensive operation ? When the vessels were within reach of each other, the first salutation from the ship was a shot fired ahead, and, at the same time, no national flag ajipeared at the mast-head. The ship was armed, appeared full of men, and, from her manoeuvres, almost necessarily led to the supposi- CHAP. III.] THE " MART ANNA FLORA." 877 tion, that her previous conduct was a decoy, and that she was either a piratical vessel, or, at least, in possession of pirates. Under such cir- cumstances, with hostilities already proclaimed, Lieutenant Stockton was certainly not bound to retreat; and, upon his advance, other guns, loaded with shot, were fired, for the express purpose of destruction. It was, then, a case of open, meditated hostility, and this, too, without any national flag displayed by the Portuguese ship, which might tend to correct the error, for she never hoisted her flag until the surrender. What, then, was Lieutenant Stockton's duty ? In our view it was plain; it was to oppose force to force, to attack and to subdue the 1 vessel thus prosecuting unauthorized warfare upon his schooner and ' crew. In taking, therefore, the readiest means to accomplish the object, he acted, in our opinion, with entire legal propriety. He was not bound to fly, or to wait until he was crippled. His was not a case of mere remote danger, but of imminent, pressing, and present danger. He had the flag of his country to maintain, and the rights of his cruiser to vindicate. To have hesitated in what his duty to his government called for on such an occasion would have been to betray (what no honorable officer could be supposed to indulge) an indiffer- ence to its dignity and sovereignty. But, it is argued, that Lieutenant Stockton was bound to have affirmed his national flag by an appropriate gun ; that this is a cus- tomary observance at sea, and is universally understood as indispen- sable to prevent mistakes and misadventures ; and that the omission was such a default on his part, as places him bi delicto as to all the subsequent transactions. This imputation certainly comes with no extraordinary grace from the party by whom it is now asserted. If such an observance be usual and necessary, why was it not complied with on the part of the Mnrianna Flora? Her commander asserts, that by the laws of his own country, as well as those of France and Spain, this is a known and positive obligation on all armed vessels, which they are not at liberty to disregard. Upon what ground, then, can he claim an exemption from performing it ? Upon what ground can he set up as a default in another, that which he has wholly omitted to do on his own part ? His own duty was clear, and pointed out; and yet he makes that a matter of complaint against the other side, which was confessedly a primary default in himself. He not only did not hoist or affirm his flag in the first instance, but repeatedly fired at his adversary with hostile intentions, without exhibiting his own national character at all. He left, therefore, according to Ids own view of the law, his own duty unperformed, and fortified, as against himself, the very inference, that his ship might properly be deemed, under such circumstances, a piratical cruiser. 878 BELLIGERENTS AND NEUTRALS. [PART IL i| But we are not disposed to admit that there exists any such uni- versal rule or obligation of an affirming gun, as has been suggested at I the bar. It may be the law of the maritime states of the European i\ continent already alluded to, founded in their own usages or positive regulations. But, it does not hence follow, that it is binding upon all other nations. It was admitted, at the argument, that the English practice is otherwise; and, surely, as a maritime power, England deserves to be listened to with as much respect, on such a point, as any other nation. It was justly inferred, that the practice of America is conformable to that of England ; and the absence of any counterproof on the record, is almost of itself decisive. Such, however, as the prac- tice is, even among the continental nations of Europe, it is a practice adopted with reference to a state of war, rather than peace. It may be a useful precaution to prevent conflicts between neutrals, and allies, and belligerents, and even between armed ships of the same nation. But the very necessity of the precaution in time of war arises from circumstances which do not ordinarily occur in time of general peace. Assuming, therefore, that the ceremony might be salutary and proper in periods of war, and suitable to its exigencies, it by no means fol- lows that it is justly to be insisted on at the peril of costs and damages in peace. In any view, therefore, we do not think this omission can avail the claimants. Again, it is argued, that there is a general obligation upon armed shi[is, in exercising the right of visitation and seareli, to keep at a distance, out of cannon-shot, and to demean themselves in such a manner as not to endanger neutrals. And this objection, it is added, has been specially provided for, and enforced by the stipulations of many of our own treaties with foreign powers. It might be a decisive answer to this argument, that, here, no right of visitation and search was attempted to be exercised. Lieutenant Stockton did not claim to be a belligerent, entitled to search neutrals on the ocean. His com- mission was for other objects. He did not approach or subdue the Marianna Flora, in order to compel her to submit to his search, but with other motives. He took possession of her, not because she resisted the right of search, but because she attacked him in a hostile manner, without any reasonable cause or provocation. Doubtless, the obligation of treaties is to be observed with entire good faith, and scrupulous care. But stipulations in treaties having sole reference to the exercise of the rights of belligerents in time of j war cannot, upon any reasonable princii)les of construction, be applied to govern cases exclusively of another nature, and belonging to a state of peace. Another consideration, quite sufficient to establish that such stipulations cannot be applied in aid of the present case, is, that what- CHAP. III.] THE SHIP " ROSE " V. THE UNITED STATES. 879 ever may be our duties to other nations, we have no such tri-aty sub- sisting with PortugaL It will scarcely be pretended, that we are bound to Portugal by stipulations to which she is no party, and by Avhich she incurs no correspondent obligation. THE SHIP "ROSE" v. THE UNITED STATES. United States Court of Claims, 1901. (36 Court of Claims, 291.) Welbon, J., delivered the opinion of the court :^ — The facts show that the ship Hose, William Chase, master, sailed on a commercial voyage from Newbury port, Mass., on the 20th of March, 1799, bound for Surinam, and thence sailed on the 23d of July, 1799, bound home to Newburyport. While pursuing the last voyage she was captured on the high seas on the 31st of July, 1799, by the French cruiser L^ Egypt Conquise, mounting 14 guns and 120 men; after an action of two and one-half hours, in which the master of the Rose lost 3 men killed and 14 wounded, and the Erench lost 25 killed and 21 wounded, the Rose was captured and taken into Guadeloupe, where, on the 6th day of August, 1799, the vessel and cargo were condemned by the tribunal of com- merce, sitting at Basse Terre, Guadeloupe, under a decree in which it is alleged that "the captain of said ship was the bearer of a com- mission from the President of the United States which authorized him to capture French armed vessels and carry them into any port of the United States, and that the captain of the vessel resisted until he was subdued by force of arms. In view of these facts the court makes reference to articles in justification of said proceedings." The findings establish the fact that the American ship resisted most vigor- ously the attempted right of search upon the part of the French ship, and we are to determine from that condition as an incident of the seizAire whether such seizure and condemnation were illegal. The legal effect of resisting search on the part of the American ship, when it was sought to be exercised on the part of the French ship, has not been determined by any adjudication of this court in the various cases tried under the act of Congress, giving this court jurisdiction to determine the claims of American citizens for alleged spoliations committed by the French prior to the 1st day of July, 1801. The nearest approach that the court has made to the subject of the 1 The statement of the original report is omitted. — Ed. 880 BELLIGERENTS AND NEUTRALS. [PART II. right of search is in the case of the Xancy (27 C. Cls. R. p. 99). In that case the ship sailed from Baltimore in 1797; was captured by an English ship and sent to St. Nicholas Mole, and there the master was ordered not to depart without a convoy. She sailed under the escort of a privateer for Jeremie and returned to the Mole under escort. On the return voyage the Xunoj was captured by a French privateer. It is said in that case that " the question whether a neutral vessel laden with neutral cargo is liable to condemnation if captured under enemy convoy has never been directly determined; but on a review of the cases and elementary writers it is now held that if cajDtured when actually and voluntarily under the protection of an enemy she is liable." Sailing under the convoy of an enemy is the exercise of the same power which is brought into requisition on the part of a neutral vessel when it resists the right of search by actual force. If sailing under a convoy of an enemy of the belligerent is a just ground for seizure and condemnation, it must follow that resisting the exercise of search, as it was in this case, involves as serious con- sequences to the neutral vessel as where the right was denied by the presence and use of a convoy. It is not necessary to multiply authorities to establish the right of search. It is said by Chancellor Kent (1 Kent's Commentaries, p. 155) that "in order to enforce the rights of belligerent nations against the delinquencies of neutrals, and to ascertain the real as well as the assumed character of all vessels on the high seas, the law of nations arms them with the practical power of visitation and search. The duty of self-preservation gives to belligerent nations this right. It is founded upon necessit}', and is strictly and exclusivel}' a war right, and does not rightfully exist in time of peace, unless conceded by treaty. All writers upon the law of nations, and the highest authori- ties, acknowledge the right in time of war as resting on sound prin- ciples of public jurisiirudence and upon the institutes and practice of all great maritime powers." It is said by the same authority, page 154: "The whole doctrine was ably discussed in the English High Court of Admiralty in the case of the Mar'ui, and it was adjudged that the right was incontestable, and that a neutral sovereign could not, by the interposition of force, vary that right." In that case it is said by Sir William Scott, in stating the prin- ciples of international law upon the subject of search and of the right. of a belligerent to search neutral vessels engaged in commerce on the high seas, " that the right of visiting and searching merchant ships ui)on the high seas, whatever be the ships, whatever be the cargo, whatever be the destination, is an incontestable right of lawfully commissioned cruisers of a belligerent nation. I say, be the ships, CHAP. III.] THE SHIP "ROSE" V. THE UNITED STATES. 881 the cargoes, aud destinations what they may, because till they are visited and searched it does not appear what the ships, the cargo, or the destinations are, and it is for the purpose of ascertaining these points that the necessity of this riglit of search exists." Chaucellor Kent, page 155, in further elaboration of the doctrine of the right of search, states the circumstances which might consti- tute an exception to that general rule, which makes it the duty of the neutral to subject itself to the jurisdiction of the belligerent in the exercise of the right of search. He saj's : — " There may be cases in which the master of a neutral ship may be authorized by the natural right of self-preservation to defend himself against extreme violence threatened by a cruiser grossly abusing liis commission; but except in extreme cases a merchant vessel has no right to say for itself, and an armed vessel has no right to say for it, that it will not submit to visitation and search or be carried into an proximate port for judicial inquiry." The circumstances of this capture do not indicate that the condi- tion cited by Chancellor Kent (which may be regarded as an exce])- tion to the general rule) existed in this case. ^Yhile there might have been in the minds of the crew of the neutral vessel grave appre- hensions of ultimate condemnation, even with reference to the legiti- mate defences, that condition of apprehension upon the part of the resisting neutral did not justify him in denying the right of search to the belligerent. The circumstances of this case disclose a most vigorous assault and defence, there being twenty-four men killed and thirty-six wounded during the encounter between the respective ves- sels. This was actual resistance, and was only overcome by the most determined effort upon the part of the capturing vessel. The risrht of search is so sacred in the view of international law that it is protected by enforcing the consequences of resistance where no actual resistance is made. As in the case of a convoy, it has been held by this court in the case of the Nancy (27 C. Cls. R. 99) that the presence of a convoy is constructive resistance and a denial of the right of search, which authorizes seizure and consequent condemnation. It is most strenuously and ably argued by counsel that at the date of capture there was in existence the statute of June 25, 1798, en- titled "An act to authorize the defence of merchant vessels of the United States against French depredations " (1 Stat. L. 572), and that by virtue of the provisions of that act the commander and crew of a vessel had a right to resist by all means in their power an at- tempt upon the part of a French commander and crew to search the American vessel. It is provided in that statute — 56 882 BELLIGERENTS AND NEUTRALS. [PART 11. "That the commander and crew of any merchant vessel of the United States, owned wholly by a citizen or citizens thereof, may oppose and defend against any search, restraint, or seizure which shall be attempted upon such vessel or upon any other vessel owned, as aforesaid, by the commander or crew of any armed vessel sailing under French colors, or acting or pretending to act by or under the authority of the French Republic; and may repel by force any assault or hostility which shall be made or committed on the part of such Frencli or pretended French vessel pursuing such attempt, and may subdue and capture the same, and may also retake any vessel owned as aforesaid which may have been captured by any vessel sailing under French colors, or acting or pretending to act by or under au- thority from the French Eepublic." "Whatever may be said as to the condition or status of the legal rights and obligations of the French and American Governments be- fore the act July 9, 1798 (1 Stat. L. 578), it must be assumed that after that period the principles and rules of international law deter- mined and controlled the parties with reference to their rights on the high seas. It is said, in the case of the Xanoj (supra), "It has been urged that the statute of the United States authorizes resistance by our merchantmen to French visitation and search, to which there is the simple answer that no single State can change the law of nations by its municipal regulations." The contention of claimants' counsel with reference to the rights guaranteed to American merchantmen under and by virtue of the pro- visions of the act of 1798 is full}' answered by the decision of this court in the above case. If, therefore, at the time of this seizure there was any conflict between the municipal law of the United States, as exempliiied in the statute, and the well-recognized prin- ciples of international law, the latter must prevail in the determina- tion of the rights of the parties. By the provisions of the act giving this court jurisdiction to ascer- tain the claims of American citizens for spoliations committed by the French prior to the 31st of July, 1801, it is, in substance, provided that the validity of said claims shall be determined according to the rules of law, municipal and international, and the treaties of the United States applicable to the same. In order to perform the duties consistent with the requirements of the statute, the court must give each department of the law full recognition and force when properly applicable to the facts and circumstances of the controversy involved in the litigation. The rights of the claimant are to be measured by the unlawful acts CHAP, III.] THE SHIP " ROSE " V. THE UNITED STATES. 883 of France, and unless a wrong exists under the rules of international law, no liability can attach to the United States; because, by the treaty of 1800, it was only the claims growing out of the wrongful act of France for which the United States had a diplomatic claim and which were assumed to be paid to the citizen whose individual right was violated in that wrong. This court in making the investigation contemplated by the act of \ our jurisdiction is sitting in the character of an international tribu- . nal, to determine the diplomatic rights of the United States as they existed against France prior to the ratification of the treaty of Sep- tember 30, 1800. The municipal law in the absence of a treaty must be subordinated i to international law when they come in antagonism, as that is the ' law common to both parties. Where the question is not exclusively within the domain of inter- national law then the municipal law may be invoked to determine the proper solution of the question. The rules of property by which the citizen owned the subject-matter of the seizure and condemnation may be properly applied in ascertainment of his rights, and so may many questions of the law of evidence be decided in accordance with the municipal law of the party whose rights have been violated. Con- gress, in the enactment of the law of our jurisdiction, must be pre- sumed as having recognized many of the principles of municipal law incident to our forms of judicial procedure and determination. It has been argued that the belligerent, in making the attack on the vessel of the claimant, was not in the exercise of the legal right of search as incident to him as a belligerent, but that it was an assault, the object and purpose of which was the seizure and condemnation without reference to the fact, or condition of being a neutral vessel of the United States engaged in the peaceful and lawful commerce of the sea; that the condition existing between the two governments and peoples was such that all respect of neutral rights had ceased, and that force, fraud, and violence prevailed, and in that connection much is said as to the right of self-defence. The claimants are treading on very dangerous ground when they urge the higher law of self-preservation. Self-defence is founded on the tlieory that it is the only remedy, and that, being the only remedy, it presupposes the absence of all law protecting the rights of him who asserts the prerogative of self-defence. If the right of self- defence prevailed to the extent of repelling force by force, and was incident to the crew of the ship captured, tlien all other law was silent and war prevailed, which condition would be most disastrous to the case of the claimants. 884 BELLIGERENTS AND NEUTRALS. [PART II. As we have quoted in another case, decided at the present term of court, from the opinion delivered by Sir William Scott in the case of the Maria, in 1 C. Kob. 340, so we quote upon the subject of the right of self-defence in this case: " How stands it by the general law ? I do not say that cases may not occur in which a ship may be authorized by the natural rights of self-preservation to defend itself against extreme violence threatened by a cruiser grossly abusing his commission; but where the utmost injury threatened is the being carried in for inquiry into the nearest port, subject to a full responsibility in costs and damages, if this is done vexatiously and without just cause, a merchant vessel has not a right to say for itself (and an armed vessel has not a right to say for it), ' I will submit to no such inquiry, but I will take the law into my own hands by force.' What is to be the issue, if each neutral vessel has a right to judge for itself in the first instance whether it is rightly detained, and to act upon that judgment to the extent of using force ? Surely nothing but battle and bloodshed, as often as there is anything like an equality of force or an equality of spirit." For the reasons above stated, the court decides, as a conclusion of law, that the sei/Aire and condemnation were lawful and that the owners and insurers had no valid claim of indemnity therefor iipon the French Government prior to the ratification of the convention be- tween the United States and the French Republic, coiicluded on the 30th day of September, 1800, and that the claims were not relin- quished to France by the government of the United States by said treaty in part consideration of the relinquishment of certain national claims of France against the United States, and that the claimants are not entitled to recover from the United States. The facts in detail, with a copy of this opinion, will be certified to Congress in accordance with the statute.^ THE ''NEREIDE.'' Supreme Court of the United States, 1815. (9 Cranch, 388.) Marshall, C. J., delivered the opinion of the court as follows: ^ 2. Does the treaty between Spain and the United States subject the goods of either pai'ty, being neutral, to condemnation as enemy prop- 1 Accord The Ship Amazon v. U. S., 1901, 36 Ct. CI. 390. — Ed. 2 Statement of facts and discussion of evidence omitted. — Ed. CHAP. III.] THE "NEREIDE." 885 erty, if found by the other in the vessel of an enemy? That treaty stipuhites that neutral bottoms shall make neutral goods, but contains no stipulation that enemy bottoms shall communicate the hostile char- acter to the cargo. It is contended by the captors that the two prin- ciples are so completely identified that the stipulation of the one necessarily includes the other. Let this proposition be examined. The rule that the goods of an enemy found in the vessel of a friend ] are prize of war, and that the goods of a friend found in the vessel of an eneni}^ are to be restored, is believed to be a part of the origi- nal law of nations, as generally, perhaps universally, acknowledged. Certainly it has been fully and unequivocally recognized by the United States. This rule is founded on the simple and intelligible principle that war gives a full right to capture the goods of an enemy, but gives no right to capture the goods of a friend. In the practical applica- tion of this principle, so as to form the rule, the i^ropositions that the neutral flag constitutes no protection to enemy property, and that the belligerent flag communicates no hostile character to neutral property, are necessarily admitted. The character of the property, taken dis- tinctly and separately from all other considerations, depends in no degree upon the character of the vehicle in which it is found. ]\[any nations have believed it to be their interest to vary this simple and natural principle of public law. They have changed it by convention between themselves as far as they have believed it to be for their advantage to change it. But unless there be something in the nature of the rule which renders its parts unsusceptible of divi- sion, nations must be capable of dividing it by express compact, and if they stipulate either that the neutral flag shall cover enemy goods, or that the enemy flag shall infect friendly goods, there would, in reason, seem to be no necessity for implying a distinct stipulation not expressed by the parties. Treaties are formed upon deliberate reflection. Diplomatic men read the public treaties made by other nations and cannot be supposed either to omit or insert an article, common in public treaties, without being aware of the effect of such omission or insertion. Neither the one nor the other is to be as- cribed to inattention. And if an omitted article be not necessarily implied in one which is inserted, the subject to which that article would apply remains under the ancient rule. That the stipulation of immunity to enemy goods in the bottoms of one of the parties being neutral does not imply a surrender of the goods of that party being neutral, if found in the vessel of an enemy, is the proposition of the counsel for the claimant, and he powerfully sustains that propo- sition by arguments arising from the nature of the two stipulations. 886 BELLIGERENTS AND NEUTRALS. [PART IT. The agreement that neutral bottoms shall make neutral goods is, lie very justly remarks, a concession made by the belligerent to the neu- tral. It enlarges the sphere of neutral commerce, and gives to the neutral flag a capacity not given to it by the law of nations. The stipulation which subjects neutral property, found in the bot- tom of an enemy, to condemnation as prize of war, is a concession made by the neutral to the belligerent. It narrows the sphere of neutral commerce, and takes from the neutral a privilege he possessed under the law of nations. The one may be, and often is, exchanged for the other. But it may be the interest and the will of both parties to stipulate the one without the other; and if it be their interest, or their will, what shall prevent its accomplishment ? A neutral may give some other compensation for the privilege of transporting enemy goods in safety, or both parties may find an interest in stipulating for this privilege, and neither may be disposed to make to, or require from, the other the surrender of any right as its consideration. What shall restrain independent nations from making such a compact? And how is their intention to be communicated to each other or to the world so properly as by the compact itself ? If reason can furnish no evidence of the indissolubility of the two maxims, the supporters of that proposition will certainly derive no aid from the history of their progress from the first attempts at their introduction to the present moment. For a considerable length of time they were the companions of each other — not as one maxim consisting of a single indivisible principle, but as two stipulations, the one, in the view of the parties, forming a natural and obvious consideration for the other. The celebrated com- pact termed the armed neutrality attempted to effect b}' force a great revolution in the law of nations. The attempt failed, but it made a deep and lasting impression on public sentiment. The character of this effort has been accurately stated by the counsel for the claimants. Its object was to enlarge, and not in any thing to diminish the rights of neutrals. The great powers, parties to this agreement, contended for the principle, that free ships should make free goods; but not for the converse maxim; so far were they from supposing the one to follow as a corollary from the other, that the contrary opinion was openly and distinctly avowed. The King of Prussia declared his ex- pectation that in future neutrcil bottoms would protect the goods of an enemy, and that neutral goods would be safe in an enemy bottom. There is no reason to believe that this opinion was not common to those powers who acceded to the principles of the armed neutralit}-. From that epoch to the" present, in the various treaties which have been formed, some contain no article on the subject and consequently CHAP. Iir.] THE "NEREIDE." 887 leave the ancient rule in full force. Some stipulate that the char- acter of the cargo shall depend upon the flag, some that the neutral flag shall protect the goods of an enemy, some that the goods of a neutral in the vessel of a friend shall be prize of war, and some that the goods of an enemy in a neutral bottom shall be safe, and that friendly goods in the bottom of an enemy shall also be safe. This review which was taken with minute accuracy at the bar, cer- tainly demonstrates that in public opinion no two principles are more distinct and independent of each other than the two which have been contended to be inseparable. Do the United States understand this subject differently from other nations ? It is certainly not from our treaties that this opinion can be sustained. The United States have in some treaties stipulated for both principles, in some for one of them only, in some that neutral' bottoms shall make neutral goods and that friendly goods shall be safe in the bottom of an enemy. It is therefore clearly understood in the United States, so far as an opinion can be formed on their tre ities, that the one principle is totally independent of the other. They have stipulated expressly for their separation, and they have sometimes stipulated for the one without the other. But in a correspondence between the Secretary of State of the United States and the jNIinister of the French Republic in 1793, Prussia is enumerated among those nations with whom the United States had made a treaty adopting the entire principle that the char- acter of the cargo should be determined by the character of the flag. Not being in possession of this correspondence the court is unable to examine the construction it has received. It has not deferred this opinion on that account, because the point in controversy at that time was the obligation imposed on the United States to protect belligerent property in their vessels, not the liability of their property to capture if found in the vessel of a belligerent. To this point the whole attention of the writer was directed, and it is not wonderful that in mentioning incidentally the treaty with Prussia which contains the principle that free bottoms make free goods, it should have escaped his recollection that it did not contain the converse of the maxim. On the talents and virtues which adorned the cabinet of that day, on the patient fortitude with which it resisted the intemperate violence with which it was assailed, on the firmness with which it maintained those principles which its sense of duty prescribed, on the wisdom of the rules it adopted, no panegyric has been pronounced at the bar in which the best judgment of this court does not concur. But this respectful deference may well comport with the opinion, that an argument incidentally brought forward by way of illustration, is not 888 BELLIGERENTS AND NEUTRALS. [PART II. such full authority as a decision directly on the point might have been. 3. The third point made by the captors is, that whatever con- struction might be put on our treaty with Spain, considered as an independent measure, the ordinances of that government would sub- ject American property, under similar circumstances, to confiscation, and therefore the property, claimed by Spanish subjects in this case, ought to be condemned as prize of war. The ordinances themselves have not been pi-oduced, nor has the court received such information respecting them as would enable it to decide certainly either on their permanent existence, or on their application to the United States. But be this as it may, the court is decidedly of opinion that reciprocating to the subjects of a nation, or retaliating on them, its unjust proceedings towards our citizens, is a political not a legal measure. It is for the consideration of the gov- ernment not of its courts. The degree and the kind of retaliation depend entirely on considerations foreign to this tribunal. It may be the policy of the nation to avenge its wrongs in a manner having no affinity to the injury sustained, or it may be its policy to recede from its full rights and not to avenge them at all. It is not for its courts to interfere with the proceedings of the nation and to thwart its views. It is not for us to depart from the beaten track prescribed for us, and to tread the devious and intricate path of politics. Even in the case of salvage, a case peculiarly within the discretion of courts, because no fixed rule is prescribed by the law of nations. Con- gress has not left it to this department to say whether the rule of foreign nations shall be applied to them, but has by law applied that rule. If it be the will of the government to apply to Spain any rule respecting captures which Spain is supposed to apply to us, the gov- ernment will manifest that will by passing an act for the purpose. Till such an act be passed, the court is bound by the law of nations which is a part of the law of the land. Thus far the opinion of the court has been formed without much difficulty. Although the principles, asserted by the counsel, have been sustained on both sides with great strength of argument, they have been found on examination to be simple and clear in themselves. Stripped of the imposing garb in which they have been presented to the court, they have no intrinsic intricacy v/hich should perplex the understanding. The remaining point is of a different character. Belligerent rights and neutral privileges are set in array against each other. Their respective pretensions, if not actually intermixed, come into close contact, and the line of partition is not so distinctly marked as to be CHAP, in.] THE " NEREIDE." 889 clearly discernible. It is impossible to declare in favor of either, without hearing, from the other, objections which it is difficult to answer and arguments which it is not easy to refute. The court has given to this subject a patient investigation, and has endeavored to avail itself of all the aid which has been furnished by the bar. The result, if not (!ompletely satisfactory even to ourselves, is one from which it is believed we should not depart were further time allowed for deliberation. 4. Has the conduct of ]\[anuel Pinto and of the Nereide been such as to impress the hostile character on that part of the cargo which was in fact neutral? In considering this question the court has examined separately the parts which compose it. The vessel was armed, was the property of an enemy, and made resistance. How do these facts affect the claim? Had the vessel been armed by Pinto, that fact would certainl}^ have constituted an important feature in the case. But the court can per- ceive no reason for believing she was armed by him. He chartered, it is true, the whole vessel, and that he might as rightfully do as contract for her partially; but there is no reason to believe that he was instrumental in arming her. The owner stipulates that the Nereide " well manned, victualled, equipped, provided, and furnished with all things needful for such a vessel," shall be ready to take on board a cargo to be provided for her. The Nereide, then, was to be put, by the owner, in the condition in which she was to sail. In equipping her, whether with or without arms, Mr. Pinto was not concerned. It appears to have been entirely and exclusively the act of the belligerent owner. Whether the resistance, which was actuall}- made, is in any degree imputable to Mr. Pinto, is a question of still more importance. It has been argued that he had the whole ship, and that, therefore, the resistance was his resistance. The whole evidence upon this point is to be found in the charter party, in the letter of instructions to the master, and in the answer of Pinto to one of the interrogatories in preparatorlo. The charter party evinces throughout that the ship remained under the entire direction of the owner, and that Pinto in no degree partici- pated in the command of her. The owner appoints the master and stipulates for every act to be performed by the ship, from the date of the charter party to the termination of the voyage. In no one raspect, except in lading the vessel, was Pinto to have any direction of her. The letter of instructions to the master contains full directions for 890 BELLIGERENTS AND NEUTRALS. [PAIIT II. the regulation of his conduct, without any other reference to Mr. Pinto than has been already stated. That reference shows a positive limitation of his power by the terms of the charter party. Conse- quently he had no share in the government of the ship. But Pinto says in his answer to the Gth interrogatory that "he had control of the said ship and cargo." Nothing can be more obvious than that Pinto could understand himself as saying no more than that he had the control of the ship and cargo so far as respected her lading. A part of the cargo did not belong to him, and was not consigned to him. His control over the ship began and ended with putting the cargo on board. He does not appear ever to have exercised any authority in the management of the ship. So far from exercising any during the battle, he went into the cabin, where he remained till the conflict was over. It is, then, most apparent that when Pinto said he had the control of the ship and cargo, he used those terms in a limited sense. He used them in reference to the power of lading her, given him by the charter part}'. If, in this, the court be correct, this cause is to be governed by the principles which would apply to it had the Nereide been a general ship. The next point to be considered is the right of a neutral to place his goods on board an armed belligerent merchantman. That a neutral may lawfully put his goods on board a belligerent ship for conveyance on the ocean, is universally recognized as the original rule of the law of nations. It is, as has already been stated, founded on the plain and simple principle that the property of a friend remains his property wherever it may be found. " Since it is not," says Vattel, "the place where a thing is which determines the nature of that thing, but the character of the person to whom it belongs, things belonging to neutral persons which happen to be in an enemy's country, or on board an enemy's ships, are to be distin- guished from those which belong to the enemy." Bynkershoek lays down the same principles in terms equally explicit; and in terms entitled to the more consideration, because he enters into the inquiry whether a knowledge of the hostile character of the vessel can effect the owner of the goods. The same principle is laid down by other writers on the same sub- ject, and is believed to be contradicted by none. It is true there were some old ordinances of France declaring that a hostile vessel or cargo should expose both to condemnation. But these ordinances have never constituted a rule of public law. It is deemed of much importance that the rule is universally laid down in terms which comprehend an armed as well as an unarmed CHAP. III.] THE " NEREIDE." 891 vessel; and that armed vessels have never been excepted from it. Bynkershoek, in discussing a question suggesting an exception, with his mind directed to hostilities, does not hint that this privilege is confined to unarmed merchantmen. In point of fact, it is believed that a belligerent merchant vessel rarely sails unarmed, so that this exception from the rule would be greater than the rule itself. At all events, the number of those who are armed and who sail under convoy, is too great not to have at- tracted the attention of writers on public law; and this exception to their broad general rule, if it existed, would certainly be found in some of their works. It would be strange if a rule laid down, with a view to war, in such broad terms as to have universal application, should be so construed as to exclude from its operation almost every case for which it purports to provide, and yet that not a dictum should be found in the books pointing to such construction. Tlie antiquity of the rule is certainly not unworthy of considera- tion. It is to be traced back to the time Avhen almost every mer- chantman was in a condition for self-defence, and the implements of war were so light and so cheap that scarcely any would sail without them. A belligerent has a perfect right to arm in his own defence; and a neutral has a perfect right to transport his goods in a belligerent vessel. These rights do not interfere with each other. The neutral has no control over the belligerent right to arm — ought he to be accountable for the exercise of it ? By placing neutral property in a belligerent ship, that property, j according to the positive rules of law, does not cease to be neutral. ' Why should it be changed by the exercise of a belligerent right, universally acknowledged and in common use when the rule was laid down, and over w^hich the neutral had no control? The belligerent answers, that by arming his rights are impaired. By placing his goods under the guns of an enemy, the neutral has taken part with the enemy and assumed the hostile character. Previous to that examination which the court has been able to make of the reasoning by which this proposition is sustained, one remark will be made which applies to a great part of it. The argu- ment w^hich, taken in its fair sense, would prove that it is unlawful to deposit goods for transportation in the vessel of an enemy gen- erally, however imposing its form, must be unsound, because it is in contradiction to acknowledged law. It is said that by depositing goods on board an armed belligerent the right of search may be impaired, perhaps defeated. "What is this right of search? Is it a substantive and independent 892 BELLIGERENTS AND NEUTKALS. [PART IL right wantonly, and in the pride of power, to vex and harass neutral commerce, because there is a capacity to do so? or to indulge the idle and mischievous curiosity of looking into neutral trade? or tlie as- sumption of a right to control it? If it be such a substantive and independent right, it would be better that cargoes should be inspected in port before the sailing of the vessel, or that belligerent licenses should be procured. But this is not its character. Belligerents have a full and perfect right to capture enemy goods and articles going to their enemy which are contraband of war. To the exercise of that right the right of search is essential. It is a mean justified by the end. It has been truly denominated a right growing out of, and ancillary to the greater right of capture. Where this greater right may be legally exercised without search, the right of search can never arise or come into question. But it is said that the exercise of this right may be prevented by the inability of the party claiming it to capture the belligerent carrier of neutral property. And what injury results from this circumstance? If the property be neutral, what mischief is done by its escaping a search. In so doing there is no sin even as against the belligerent, if it can be effected by lawful means. The neutral cannot justify the use of force or fraud, but if by means, lawful in themselves, he can escape this vexatious procedure, he may certainly employ them. To the argument that by placing his goods in tlie vessel of an armed enemy, he connects himself with that enemy and assiimes the hostile character, it is answered that no such connection exists. The object of the neutral is the transportation of his goods. His connection with the vessel which transports them is the same, wliether that vessel be armed or unarmed. The act of arming is not his — it is the act of a party who has a right so to do. He meddles not with the armament nor with the war. Whether his goods were on board or not, the vessel would be armed and would sail. His goods do not contribute to the armament further than the freiglit he pays, and freight he would pay were the vessel unarmed. It is difficult to perceive in this argument anything wliich does not also apply to an unarmed vessel. In both instances it is the right and the duty of the carrier to avoid capture and to prevent a search. There is no difference except in the degree of capacity to carry this duty into effect. The argument would operate against the rule which permits the neutral merchant to employ a belligerent vessel without imparting to liis goods the belligerent character. Tlie argument resi)ecting resistance stands on the same ground with that which respects arming. Both are lawful. Neither of them is CHAP ni.] THE " NEREIDE." 893 chargeable to the goods or their owner, where he has taken no part in it. They are incidents to the character of the vessel; and may always occur where the carrier is belligerent. It is remark ible that no express authority on either side of this question can bo found in the books. A few scanty materials, made up of inferences from cases depending on other principles, have been gleaned from the books and employed by both parties. They are certainly not decisive for or against either. The celebrated case of the Swedish convoy has been pressed into < the service. But that case decided no more than this, that a neutral j may arm, but cannot by force resist a search. The reasoning of the judge on that occasion would seem to indicate that the resistance condemned the cargo, because it was unlawful. It has been inferred on the one side that the goods would be infected by the resistance of the ship, and on the other that a resistance which is lawful, and is not produced by the goods, will not change their character. The case of the Catharine Elizabeth approaches more nearly to that of the Nereide, because in that case as in this there were neutral goods and a belligerent vessel. It was certainly a case, not of resist- ance, but of an attempt by a part of the crew to seize the capturing vessel. Between such an attempt and an attempt to take the same vessel previous to capture, there does not seem to be a total dissimili- tude. But it is the reasoning of the judge and not his decision, of which the claimants would avail themselves. He distinguishes between the effect which the employment of force by a belligerent owner or by a neutral owner would have on neutral goods. The first is lawful, the last unlawful. The belligerent owner violates no duty. He is held by force and may escape if he can. From the marginal note it appears that the reporter understood this case to decide in principle that resistance by a belligerent vessel would not confiscate the cargo. It is only in a case without express authority that such materials can be relied on. If the neutral character of the goods is forfeited by the resistance \ of the belligerent vessel, why is not the neutral character of the 1 passengers forfeited by the same cause? The master and crew are prisoners of war, why are not those passengers who did not engage in the conflict also prisoners? That they are not would seem to the court to afford a strong argument in favor of the goods. The law would operate in the same manner on both. It cannot escape observation that in argument the neutral freighter has been continually represented as arming the Nereide and im|.elling her to hostility. He is represented as drawing forth and guiding her warlike energies. The court does not so understand the case. The 894 BELLIGERENTS AND NEUTRALS. [PART IL Nereide was armed, governed, and conducted by belligerents. With her force, or her conduct, the neutral sliippers had no concern. Tliey deposited their goods on board the vessel, and stipulated for their direct transportation to Buenos Ayres. It is true that on her passage she had a right to defend herself, did defend herself, and miglit have captured an assailing vessel; but to search for the enemy would have been a violation of the charter party and of her duty. With a pencil dipped in the most vivid colors, and guided by the hand of a master, a splendid portrait has been drawn exhibiting this vessel and her freighter as forming a single figure, composed of the most discordant materials, of peace and war. So exquisite was the skill of the artist, so dazzling the garb in which the figure was pre- sented, that it required the exercise of that cold investigating faculty which ought always to belong to those who sit on this bench, to dis- cover its onl}' imperfection; its want of resemblance. The Nereide has not that centaur-like appearance which has been ascribed to her. She does not rove over the ocean hurling the thunders of war while sheltered by the olive branch of peace. She is not composed in part of the neutral character of INIr. Pinto, and in part of the hostile character of her owner. She is an open and declared belligerent; claiming all the rights, and subject to all the dangers of the belligerent character. She conveys neutral property which does not engage in her warlike equipments, or in any employ- ment she may make of them; which is put on board solely for the purpose of transportation, and which encounters the hazard incident to its situation; the hazard of being taken into jjort, and obliged to seek another conveyance should its carrier be captured. In this it is the opinion of the majority of the court there is noth- ing unlawful. The characters of the vessel and cargo remain as distinct in this as in any other case. The sentence, therefore, of the Circuit Court must be reversed, and the property claimed by Manuel Pinto for himself and his partners, and for those other Spaniards for whom he has claimed, be restored, and the libel as to that property, he dismissed.^ ^ The concurring opinion of Johnson, J., and the dissenting opinion of Story, J., omitteil. See Tlie Fritish Crown, and so a fair act of hostility, authorized by the rights of war." This arguuient is ingenious and plausible, but not solid. As the state of nature was a state of peace, and not a state of war, the natu- ral state of nations is a state of peace and society, and hence it is a maxim of the law of nations, founded on every principle of reason, justice, and morality, that one nation ought not to do an injury to anotlier. As the natural state (that of nations) is a state of peace nnd benevolence, nations are morally bound to preserve it. Peace and CUAP. III.] MILLER l\ THE " RESOLUTION " (1). 903 friendship must always be presumed to subsist among nations; and therefore he Avho founds a claim upon the rights of war, must prove that the peace was broken by some national hostility, and war commenced: but naere conjecture, supposition, and possibility can render no competent evidence of the fact. But it is said " here was a national hostility — viz. The capture by the British privateer; and the act of the subject is the act of the sovereign." The act of the subject can never be the act of the sovereign; unless | the subject has been commissioned by the sovereign to do it: but, in »1 this case, there is no evidence that the commission of the British privateer extended to property, under the circumstances of the prop- erty captured. But it is asked "what private or public mischief can be appre- hended from considering property under the circumstances of this case as prize: for the wrong was committed by the British privateer, and therefore the British nation is chargeable with it, and bound to make compensation." We are inclined to think, that were the claimants to apply to the British Crown for compensation, they would be told "that although satisfaction were done, yet it would be in proportion only to the wrong done by the British privateer, which consisted only in the seizure and detention. But if compensation was expected for ship and cargo, they must look to that nation for it, whose courts declared a condemnation, and whose subjects reaped the fruits of it." But, it is alleged, that "the late ordinance of Congress is express and decided, that after a capture and occupation for twenty-four hours the property captured shall be prize." The ordinance of Congress certainly speaks of a legal capture; to admit a different construction would be a violence both to the terms and spirit, or intention, of it. Prize is generally used as a technical term to express a legal capture ; and Congress having adopted it in framing of the ordinance, the general sense or acceptation of it must determine its import and signification. But suppose the term prize merely imported a capture, without any reference to its legality, and that it was the spirit and intention of the ordinance to subject to l)rize all captures, both legal and illegal, after twenty-four hours; it does not follow that it would affect the present case. The municipal laws of a country cannot change the law of nations, so as to bind the subjects of another nation; and by the law of nations a neutral sub- ject, whose property has been illegally captured, may pursue and recover that property in whatever country it is found, unless a com- petent jurisdiction has adjudged it prize. The municiiml laws of a ' country can only bind its own subjects. I 904 BELLIGERENTS AND NEUTRALS. [PART n. The ordinance of Congress is in truth a new regulation of the jus post Umiiili, and limits it to a recapture within twenty-four hours, and therefore can only relate to the subjects of the United States : it adopts the ordinance of France, and that ordinance relates only to the subjects of France. In both cases, with regard to the owner, a subject, the prpperty captured is not passed away before the expira- tion of twenty-four hours. But put the case of a capture and the sale of it before twenty-four hours to a neutral subject; the sale is certainly good and conclusive upon the owner; for the question must be decided by the law of nations, and by the law of nations, the property captured is transferred to the captor as soon as it is taken. Both the ordinances therefore of Congress and of France, in our opinion, relate only to property captured from a subject and recap- tured; and not to property captured from a neutral and recaptured. It is said, "that arguments drawn from the law of nations with regard to pirates, do not apply to the present case, because pirates have not the rights of war." If the principal fact was properly attended to, the present case could not be questioned. Whence is it that pirates have not the rights of war? Is it not because they act without autliority and com- mission from their sovereign? And is it not objected and proved, that the British privateer, with regard to the property captured, acted without commission and authority from the British Crown? So far from there being any dissimilarity in the cases, it is in fact the very case in judgment, considering it on the first ground of argument. But, it is alleged, "that the capture by the British privateer must be considered as legal: for, after a capture and occupation for twenty-four hours, the legality of the capture is not open for ques- tion and examination." This doctrine must never be suffered; there is no example or pre- cedent for it to be found in any of our books; it breaks down and destroys the distinction between right and wrong; it gives a sanction to injustice, robbery, and piracy, and it is reprobated by the laws, usage, and practice of nations. Lord ]Manstield, in the case so often quoted, 2 Burr. 693, says, "The question, whether the proi)erty is transferred by the capture, can only happen between the owner and vendee, and between the owner and the recaptor." But the question could never happen between the owner and the recaptor, if the legality of the capture was not examinable on every libel for condemnation as prize. The question is — prize or no prize? That is whether the oai)ture be legal or not. The legality of a capture is open for question and examination, till a competent jurisdiction has decided the question, and a decree passes CHAP. Iir.] MILLER V. THE " RESOLUTION" (1). 905 for condemnation as prize; then, and not before, all further questions and examinations are precluded; then, all parties, and all foreign courts, are estopped to say, "the capture is not legal;" and if the decree be erroneous or iniquitous, the party injured must apply for redress to that nation whose courts have committed the error or iniquity. ■'Great difficulties, it is said, will arise, if capture and occupation for twenty-four hours should not be considered as conclusive evidence of property in the captor, and that the capture was legal." And it is asked "' must a regular title be deduced from the first proprietor to the captor, as in case of an ejectment at the common law?" And "must common law strictness, in making out titles, be adopted in Admiralty Courts?" Every libel states a title to the thing captured ; the title must not only be stated, but it must also be proved. It is stated in the libel in this case, that the property captured was British property, and the evidence to prove it is, "possession and occupation of it by the British privateer." A title thus traced is a good one, in a court of common law, except in a single case : it is a good title against all the world except the right owner. This exception is founded on every principle of reason and justice; it ought not only to be adopted in courts of common law, but in every court, where the distinction between right and wrong is preserved, and justice regarded. Possession and occupation ought, upon a question of property, to have the same influence in courts of admiralty, as in courts of common law: it ought to be considered as a good title, and conclusive upon all mankind except the right owner. Such a title is clear of all difficulties in the proof of it; it excludes the necessity of a regular deduction of title from the first proprietor down to the captor; it is disengaged from those entanglements, which result from a variety of possible changes and mutations of the prop- ertv; and it cannot be shook, but when every honest man will say it ought to be shook, — when the right owner appears and proves his property. ^Ve have now done with the observations and reasoning, that relate to the first ground of argument: and are of opinion, that if the ship and cargo were originally neutral property, the capture and occupation for twenty-four hours did not change it into British property and make it prize. ^ 1 T\vent3--four hours' quiet possession by the enemy was test of capture by Act of Confiress, :March 27, 1781. Journals of Confederation Congress, VII. o'J. It was held, pp. 15 to 18, and for this purpose the case is cited by Kent, 1 Com. 104, that compacts with common enemy bind allies. — Ed. 906 BELLIGERENTS AND NEUTRALS. [PART II. MILLEK V. THE "EESOLUTTOX " (2). Federal Court of Appeal:, 1781. (2 Dallas, 19.) By the Court: — As the original decree has not been carried into execution, we think it proper, under the peculiar circumstances of the present case, to allow a rehearing. But this is not to be drawn into precedent; nor is any point previously determined, to be brought again into litigation, unless the state of the facts respecting it shall be altered by the new evidence. The causes were, accordingly, argued for several successive days; and on the 24th of Jan., 1782, the following revisionary decree (altering the suspended decree only as to a part of the cargo) was delivered by William Paca and Cyrus Griffin, the presiding com- missioners. By the Court: — We have considered the new evidence which has been laid before us, and we have also considered the observations and arguments, which the counsel upon both sides have made upon it. On the first argument we were of opinion, that the ship ought to be considered in the predicament of neutral property, and entitled to all the rights and privileges of neutrality, which the ordinance of Congress ascertained and conferred; we took up this idea from a con- struction of the articles of capitulation and the British proclamation, which issued immediately on the rupture between Great Britain and the States General, and which protected the ship Besolut'wn for a limited time from British capture on her passage from Dominica to Amsterdam : we conceived, that the neutrality of tlie States General, with regard to the ship, abstractly considered, was not broken by the rupture; the proclamation having controlled the extent of the war, by its exemption of the ship from being a subject of hostility and capture. Such was our opinion on the first argument : but on consideration of the last argument, we are of a different opinion. The writers upon the law of nations, speaking of the different kinds of war, distinguish them into perfect and imperfect: a perfect war is that which destroys the national peace and tranquillity, and lays the foundation of every possible act of hostility: the imperfect war is that wliich does not entirely destroy tlie imblic tranquillity, but • interrupts it only in some particulars, as in the case of reprisals. CHAP. III.] MILLER V. THE "RESOLUTION" (2). 907 Before Great Britain commenced war with the States General, the States were a neutral nation with regard to the war between Great Britain, France, Spain, and America: they had taken no part in the war, and were a common friend to all. This is precisely the legal idea of a neutral nation: it implies two nations at war, and a third in friendship with both. The war which Great Britain commenced with the States General was a perfect war: it destroyed the national peace of the States General, and with it the neutrality of the nation. The States became a party in the general war against Britain: they were no longer a common friend to the belligerent powers; and therefore they ceased to be a neutral nation. War having thus destroyed the neutrality of the States General, they can never resume the character of a neutral until they are in circumstances to resume the character of a common friend to Great Britain, France, Spain, and America: but this character is not to be acquired while war subsists between them and Great Britain. Only a peace, therefore, between Britain and the States, can put the States in a capacity to resume their original character of neutrality. But there can be no peace without the concurrence of both nations: the British could not therefore, by the mere authority of their proclama- tion, restore back to the ship Resolution her original neutrality. The proclamation could only operate as a protection of the ship from British capture. We, therefore, lay out of question the ordinance of Congress with regard to the rights of neutrality; this case is not within it. But the ship Resolution is captured and both ship and cargo are libelled as prize. A question is made; on whom lies the onus prohandi? , .y^-^r. We think on the captors. There can be no condemnation without \ proof that the ship or cargo is prize: and it cannot be expected, that the persons who contest the capture will produce that proof. Every capture is at the peril of the party. A privateer is not authorized to capture every vessel found on the high sea: she is commissioned to capture only such ships as are the property of the enemy. Every ship indeed may, in time of war, be brought to and examined; but she is not to be seized and captured, without the captors have just grounds to think she is the property of an eneni}', and not the property of subjects of a nation in peace and friendship, or neutrality. If such seizure and capture are made without just grounds, the party injured is entitled to have an action for damages: and it is the policy of all nations at war to oblige the captains of privateers to give bond and security, to enforce a proper conduct Avhile at sea, and to prevent seizures and captures from being wan- tonly made. 908 BELLIGEEENTS AND NEUTRALS. [PART II. The sea is open to all nations : no nation has an exclusive property in the sea. Put the case then, that a privateer meets a ship at sea; is it to be inferred, from the mere circumstance of the ship's being found on the high seas, that she is the property of an enemy? Surely there is no ground for such an inference: on this ground a privateer might seize and capture the ships of its own nation. Biit the privateer attacks, seizes, captures, and brings the ship into port: it is plain here is an act of violence; a seizure and capture. The captain therefore must do two things : at all events he must show just grounds for the violence, or he will be punishable at law by an action of damages: and in the next place, before he can obtain con- demnation, he must prove the ship to be the property of an enemy; for, it can never be enough for condemnation, that he found the ship at sea. The captors say: "That in the present case they had not only just grounds for seizure; but they have also just grounds for condemna- tion: for both the ship and cargo were found in the possession of British subjects, and therefore British property." It must be admitted that possession is presumptive evidence of property; because possession is a circumstance which generally ac- companies property; and, therefore, the seizure and capture, in the present case, was a violence at all events justified by the law of na- tions, and for which no action would lie, even on acquittal of the ship and cargo. But the possession in this case is no ground for condemnation: for what is the nature of presumptive evidence? It only has the force of evidence whilst it remains uncontested. The possession is clearly accounted for: the ship came into the hands of the enemy by capture; and the prior possession was in the hands of Dutch subjects, and not British subjects. The presumption therefore relied on by the captors is defeated, and the argument founded on the possession is in favor of the claimants. On the question of prize or no prize, what evidence does the law of nations admit for the determination of it? The national interest of every commercial country requires, that some mode or criterion be adopted to ascertain the ship, cargo, des- tination, property, and nation to which such ship belongs; not only as a security for a fair commerce according to law; but as a guard against fraud and imposition in the payment and collection of duties, imposts, and commercial revenues. The peace also and tranquillity of nations equally require, that the like criterion should be adopted, to distinguish the ships of different countries found on the high seas in time of war; to prevent an indiscriminate exercise of acts of hostility, which may lay the foundation of general and universal war. Hence CHAP. IJl.] MILLER V. THE " RESOLUTION " (2), 909 it is, that every commercial country has directed, by its laws, that its ships shall be furnished with a set of pajjcrs called ship papers: and this criterion the law of nations adopts, in time of war, to dis- tinguish the ])roperty of different powers, when found at sea; not indeed as conclusive, but presumptive evidence only. Bills of lad- ing, letters of correspondence, and all other papers on board, which relate to the ship or cargo, are also considered as7:)ri»i«/acie evidence of the facts they speak; because such papers naturally accom]3any such a mercantile transaction. Such then is the evidence which the law of nations admits on a question of prize or no prize; and it is on this evidence that vessels with their cargoes are generally acquitted or condemned: and there- fore, if in this case the papers on board affirm the ship and cargo to be such property as is not prize, there must be an acquittal, unless the captors are able, by a contrariety of evidence, to defeat the pre- sumption which arises from the papers, and can show just grounds for condemnation. On the other hand, if the papers affirm the ship i and cargo to be the property of an enemy, there must be a condem- nation, unless they who contest the capture can produce clear and , unquestionable evidence to prove the contrary.^ 1 In 77/e Naestra SeTwra de liegla, 1882, 108 U. S. 92, the court said: " The duty of j a captor is to institute judicial proceedings for the condemnation of liis prize without ' unnecessar}' delay, and if lie fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. Slocum v. Maybernj, 2 Wheat. 1 ; The AppoUon, 9 Wheat. 377 ; The Licelii, 1 Gall. 315; The Corier Maratimo, 1 C. Rob. 287." See also Jecker v. Montgomenj, supra, for the power to establish a Prize Court, and see also Fay et al. v. Montgomery, 1852, 1 Curtis, 266, as well for the duty to send in the prize for adjudication as for circumstance excusing delay. In Hooper, Adm'r, v. U. S., 1887, 22 Ct. 01. 408, 439, Davis, J., says : " The distinction must not be forgotten between a legal and justifiable seizure and an illegal and un- justifiable condemnation. Tlie seizure of a vessel may be successfully defended upon grounds which would not support a subsequent condemnation and ' prize courts deny damages when there was probable cause for the seizure, and are often justified in awarding to the captors their costs and expenses,' even when the vessel and cargo are decided not good prize and returned to their owners. The Thompson, 3 Wall. 155; Jecker v. Montrjomeri/, 13 How. 498; Murray v. The Charming Betsey, 2 Or. G4." And later in discussing the burden of proof, the same learned judge says :^ " The burden of proof in prize proceeding is on the seized vessel. The authorities concur in this gen- ! eral statement, but the principle is not technical and is not pushed beyond its proper natural intent. Seized vessels always appear before the court under the taint of suspicion ; that taint it is incumbent upon them to remove, as it is in their power alone to do so. What the court looks for is the fact. If it appears that the vessel was in- nocently pursuing an honest and legal voyage, whether that appear by papers or other- wise, then tlie vessel should be released. No particular paper, no specified character | of evidence is marked out and defined as indispensable to attain this end. A case is ' easily supposable in whicli a merchant vessel has lost its papers by accident, or by theft, or by robbery committed by a pirate or privateer, or through suppression by 910 BELLIGEEENTS A>CD NEUTRALS. [PAIlT II. COMMODORE STEWART'S CASE. United States Court of Claims, 1864. (1 Court of Claims, 113.) Casey, C. J., delivered the opinion of the court : The claimant sets forth in his petition that, on the 20 :h February, 1815, he was a captain in the navy of the United States and was in command of the United States frigate C institution. That on that day he overtook, on the high seas, about sixty leagues from the island of Madeira, the British ships-of-war Cijane and Levant and engaged them ; and, after a sharp conflict of forty minutes, they surrendered to him and he took possession of them as prizes of war. He pro- ceeded with them and his own ship to the island of St. lago, in the possession of the troops, and subject to the dominion of the prince regent of Portugal, with whom the United States was then at peace, and who had issued a declaration of neutrality between the belligerents, — the United States and Great Britain. Having come to anchor in the port of Praya, on the 10th of IMarch, 1815, and while he was preparing to divest himself of the prisoners taken on the Cyane. and Levant by sending them to Barbadoes. he discovered on the following day, oif the port, a squadron consisting of three British ships-of-war, the Leander, Xew Castle, ?iY\(i Acasta ; but which, in consequence of the prevalence of a dense fog, were not discovered until within three miles, and standing in for anchorage. Being apprehensive that the enemy would not respect the immunity afforded by a neutral port, Captain Stewart put to sea with the Constitution and his prizes, and the squadron immediately gave chase. the captor, and it could not be admitted — the fact of their non-production being explained, and the vessel's honest character being sliown — that because some partic- ular document was not on board she therefore should be comlenmed and confiseated. 'j The onus jtrobandi is on the captured vessel; which means no more than that siie must I explain away suspicious circumstances." In tlie ship Tom, 1894, 29 Ct. of CIs. 68, 97, it is held that a belligerent, seizing a neutral vessel upon mere suspicion, is responsible for the vessel, and is excused for her loss only where it is caused b\- unavoidable c:isualt_v. In The Caroline Wilmnns, 1892, 27 Ct. of CIs., it was held that captors are not liable for loss, without their fault, of a vessel seized and held as contraband of war. For the duties of captors, see The Anna Maria, 1817, 2 Wheat. .328, .332; The Vromv Johanna. 1803, 4 C. Rob. .348, 3.51 ; Tk>^ San Juan Bnptisla. 1803, 5 C. Rob. 33; The Zee Star, 1801, 4 C. Rob. 71 ; The Feticit,,, 1819, 2 Dod. .381, .383; The Leucarle. 185.5, Spinks, 217, 221; Der Mohr, 1802, 4 C. Rob. 314; Die Fire Damei; 1805, 5 C. Rob. 367. — Ed. CHAP. III.] COMMODORE STEWART'S CASE. 911 After cabout an hour's chase, finding the Cijane sailing dull and dropping down on the Acasfa, he signalled her to tack, which she immediately did, doubled the rear of the enemy and afterwards arri\-ed safely at Xew York. The enemy took no notice of the Cyami's change of course, but continued the pursuit of the Constitution and Levant. Soon after he discovered the Levant dropping down in the same way that the Cyane had done, and he ordered her also to tack, which she did. The enemy continued the chase after her, cut off her retreat, and forced her back into the port of Praya, where she came to anchor close to the battery. She was in this position when the enemy's ships stood in, fired at her, and forced her to surrender, took possession of her, and carried her out of the harbor, without the Portuguese authori- ties attempting to hinder or prevent them, or offering any resistance or remonstrance to the violation of the neutral rights and sovereignty of Portugal. The claimant further alleges that the United States had a clear and undoubted claim upon the Portuguese Government for allowing hostilities to be carried on and recapture of the ship made within her neutral territory ; and that the claim of the claimant and his crew was recognized by Mr. Crowninshield, Secretary' of the Navy, in a letter addressed to the claimant on the 13th .June, 1816. He further avers that in the years 1850 and 1853 he called the attention of the Secretary of State of the United States to the case, and that the replies assured him that the matter should receive the attention and consideration which its importance demanded. The petition also alleges that claimant memorialized Congress on the same subject, and that the Naval Committee of the House of Representatives, in 1816, reported against the payment of the whole value of the Levant to the officers and crew of the ship Constitution, but recommended the passage of an act giving them the sum of twenty-five thousand dollars, which should be deducted from the whole value, if the United States recovered it from Portugal. The value is alleged to have been one hundred thousand dollars. The act passed by Congress is in the following words : "An Act rewarding the officers and crew of the Constitution for the capture of the British sloop-of-war Levant : — '•' Be it enacted," &c., " That the President of the United States be and hereby is, authorized to have distributed as prize money, to Captain Charles Stewart, late of the frigate Constitution, his officers and crew, the sum of twenty-five thousand dollars, for the capture of the British sloop-of-war ieya?t!f y and that the sum of twenty-five thousand dollars, out of any money in the treasury not otherwise appropriated, be and the same is hereby appropriated for the purpose aforesaid." 912 BELLIGERENTS AND NEUTRALS. [PART II. This act was approved 26th April, 181G (3 Stat. 301), and the money was paid according to its provisions. The petition also avers that he and those for whom he claims are citizens of the United States, and can have no redress against the Portuguese Government, from whom the indemnity is due ; that it was and is the duty of the United States to prosecute and enforce the claim, ou their behalf, against Portugal, and on the recovery of the amount to distribute the same to him, his officers and crew ; that there was a convention between the two governments in 1851 for the adjust- ment of the claims of citizens of the United States against Portugal, in which this claim was not included, and that by having relinquished the claim without the authority or consent of claimants, or failed to prosecute and enforce it, the United States became liable to pay it themselves. The oth and 6th sections of the Act of Congress approved 23d April, 1800 (1 Stat.), in force at the time of the capture of these vessels, gave the captors the whole of the captured vessels, where they were superior in force to the vessel making the capture. The Cyane was libelled in the Admiralty Court at New York and duly condemned as good and lawful prize to the captors. The claimant contends that by the capture of the Levant the prize vested in him and his crew ; that the recapture under the circumstances alleged was illegal, and that Portugal was liable to the United States, and they to the claimants, for the value of the prize. To this petition the solicitor of the United States has demurred, and assigns for cause of demurrer : — 1st. That the petition sets forth no valid ground of claim. 2d. That it does not appear that the United States had released Portugal, or relinquished any claim the plaintiffs have upon her for indemnity. There can be little doubt that the facts set forth in the petition — and on this demurrer they must be taken as true — show that the officer in command of the British squadron was guilty of the violation of the neutral rights of Portugal in making her territory the scene of conflict with and capture of this vessel. For such an insult to her sovereignty and invasion of her jnst rights as a neutral, she had just grounds, under the law of nations, to claim indemnity and reparation from Great Britain. It is equally clear, we think, that the United States had the right to insist upon indemnity from Portugal for this invasion of her right of asylum in a neutral port. Hostilities began or continued in a neutral territory must violate the rights of sovereignty of tiie neutral power, and therefore the law of nations forbids the belligerent power to begin or continue hostilities CHAP. III.] COMMODORE STEWAKT's CASE. 913 in the territory or ports under the dominion of the neutral sovereign. Marten's Law of Nations, bk. 6, ch. 6, § 6. For this reason, when two vessels, enemies of each other, meet in a neutral port, or one pursues the other into such port, not only must they refrain from all hostilities while they remain there, but should j one set sail, the other must not sail in less than twenty-four hours ' afterwards. Moser's Grundlehren, ch. 21, § 25, j). 2G9. And because foreigners can do nothing in a territory against the will of the sovereign, it is unlawful to attack an enemy in a neutral country, or commit in it any other act of hostility. The Dutch East India fleet having put into Bergen, in Norway, in 1G66, to avoid the English, the British admiral had the temerity to attack them there. The governor of the town fired upon the a/sailants, and the Danish Government made it the subject of grave complaint, as being in violation of her neutrality and injurious to her honor and dignity as an independent and neutral sovereignty. Vatt. bk. III. ch. vii. § 132. Belligerent powers must be exercised within the belligerent territory, on the high seas or on territory belonging to no one ; and all hostilities exercised within the territorial jurisdiction of the neutral power are unlawful, and are strictly prohibited by the law of nations. Wheat. L. of Nat. p. 713-14. It follows that all captures made within such | neutral territory are absolutely void. Ibid. 715. Bynkershoek indeed mentions an exception to this rule in the case of an hostile vessel met at sea, which he says in the pursuit may be chased into the neutral territory ; but he is not sustained by any writer of authority or by the adjudications of the prize courts. "When the capture within the ueutral territory is established," says Sir William Scott, " it over- rules every other consideration, — the capture is done away ; the property must be restored, notwithstanding it may actually belong to the enemy." The Vrouw Anna Catharina, 5 Rob. 15 j W^heat. Law of Nations, p. 722. So far has this doctrine been carried that it is held to be a violation of the rights of sovereignty of the neutral power to issue a belligerent commission within a neutral country, or to equip and fit out cruisers in such country, or to augment the force of a belligerent ship in a neutral port. In all these, and the like cases, if captures are subse- quently made on the belligerent territory, or the high seas, and the prizes are brought into a port of such neutral country, restitution will be decreed and enforced by the tribunals of the country whose neutral- ity has been violated. Talbot v. Jansen, 3 Dall. 133; Tlie Alcsta, 9 Cranch, 359; The Estrella, 4 Wheat, 298; The Arvagonte Bavcelones, 7 Wheat. 496; La Concejiiion, 6 Wheat. 235; The Santa Maria, 7 65 914 BELLIGERENTS AND NEUTRALS. [PART U. Wheat. 490; The ScDitissima Trhudad, 7 Wheat. 233; Abbot on Shipping, p. 34, in note ; The Anna, 5 Rob. 373. These authorities, and many others that might be cited, show very clearly that the acts and proceedings of the British officer in command of the squadron were unlawful, and the recapture of the Levant, under the circumstances and in the place it occurred, a high-handed and unjustifiable proceeding. But Portugal alone had a right to complain of his conduct to the government he represented, and in whose behalf he committed the act. The claimant, through the government of the United States, whose flag he carried, could only complain to Portugal of her conduct in failing, through weakness, timidity, or favor to our enemy, to maintain her neutralit}', and secure to our citizens the protection they had a right to expect from a neutral sovereign within his territory. So far as the case before us develops the facts, it does not appear that Portugal ever obtained from Great Britain any reparation or indemnity for this act, and it is certain that the United States received none from Portugal. Whether the claimant can maintain this suit against the United States will depend upon whether the claimants had such a right in the captured ship as required the United States to prosecute and enforce it against Portugal. And also whether, if the United States released and relinquished the claim on considerations of public policy, they became liable for the amount to the claimants. The ai-gument on behalf of the claimants assumes that the captors liad a right and title to the captured ship, and of which they were illegally divested or deprived. There is no doubt if this vessel had reached a port of the United States she would have been condemned as a good prize to the claim- ants ; for the Cyane, taken in the same engagement and at the same time, was actually so condemned. The title to property lawfully taken in war may, upon general principles, be considered as imme- diately divested out of the original owner and transferred to the ca})tor. As to personal property, it is considered as lost to the owner as soon as the enemy has acquired a firm possession, which is in general considered as taking place after the lapse of twenty-four hours, or after the booty has been carried into a place of safety, infra prcpsidia. Grotius, Lib. III. cap. 6, § 3 ; cap. 9, § 14; Kliiber Droit des Gens. Moderne de I'Europe, § 254; Vattel, bk. III. cap. 14, § 196; cap. 14, § 209 ; HetTter das Europaische Yolkerrech, § 136. It is upon authorities like the foregoing that the right and title of the claimants in the present case is predicated. But these general expressions refer to the time when the title of the original owner is divested, rather than when the right of the individuals making the CHAP. III.] COMMODORE STEWART's CASE. 915 capture vests. Attention for a moment to the foundation and origin of the right of the individual to the captured property will assist us in the solution of this question. That right is acquired not in virtue of the seizure of it as enemies' property, but by grant of the sovereign whose commission the captor bears. Judge Story says : " It is now clear that all captures in war inure to the sovereign, and become private property only by his grant." The Emulous, 1 Gall. 569 ; 11 East. 619. The right all to captures from the earliest times has vested primarily in the sovereign, and no individual can have any interest in a prize, whether made by a public or private armed vessel, except that which he receives from the bounty of the State. Law of Marine Warfare, p. 374; Valin Com. II. 235; Bynk., cap. 17; Sir L. Jenkins's Work, p. 711. An interest in a prize can only be derived from the govern- ment. 1 Phillips on Insurance, 182, § 320; The Joseph, 1 Gall. 558; 11 East. 428. It is even denied that the individual captors, prior to condemnation, have anj'' insurable interest in the captured property. Mouth V. Thomjjson, 11 East. 432; DeVause v. Steele, 6 Bingh. N. C. 370; Lucena v. Crawford, 3 B. & P. 75 ; 5 Id. 323; Crawford v. Hunter, 8 T. Rep. 13. The principle applicable to this case to be extracted from the authorities cited is, that by the capture of this ship the property to it vested in the United States, and whatever right to or title in it the claimants acquired must be derived from their sovereign authority. Such a grant is set up under the act of Congress approved the 23d April, 1800, § 5, which is as follows : *' The proceeds of all ships and vessels, and the goods taken on board of them, which shall be adjudged good prize, shall, when of equal or superior force to the vessel or vessels making the capture, be the sole property of the captors ; and when of inferior force, shall be divided equally between the United States and the officers and men making the capture." Bright. Dig. p. 665, pi. 78. The property of the original owner cannot be considered as fully \ divested until there has been a condemnation by a regular prize tribunal having jurisdiction of the subject-matter. Until such adjudication is made, the right of recapture continues, as well as the right of 2>ost limmii. And in case the captured vessel escapes, is recaptured, or is voluntarily discharged, the jurisdiction of the prize court is lost, and all rights acquired by the capture are divested. 1 Kent's Com. 359. The Supreme Court of the United States say : " The right of capture is a limited right, is derived from the law, and is subject to all the restrictions the law imposes, and is to be exercised in the manner in which its wisdom has prescribed." The Tliom'ia Gibbons, 3 Cranch, 421. The question of prize may always be contested, either on account of i 916 BELLIGEEENTS AND NEUTRALS. [PAET 11. the character of the vessel or cargo, the couduct of the captors, or the place aud circumstances whei-e and iinder which the capture was made; and until their right is established by the sentence of a compe- tent tribunal, tlie captors are not invested with the property. Yinceu's Exposition raisonnee de la Legislation (^ommerciale, ch. 17. A citizen may seize the property of an enemy wherever found, and it rests with the sovereign whether he will ratify and consummate the capture by proceeding to condemnation. Per Story, J., The Emulous, 1 Gall. o3G. These authorities are very full and conclusive that this capture, whatever right it conferred or property it changed, was in favor of the United States. It remains to inquire what property or interest the individual captors acquired by the surrender of the ship and her conveyance to this neutral port. The claimants contend that under the act cited they were once invested with the right to the vessel, that it operated as an immediate transfer of the right of the United States to them. Such a position is assumed, we think, w-ithout due attention to the form of the grant and the character of the grantor. It being the grant of the sovereign, it is contrary to the general rule to be most I strongly against the grantee and in favor of the grantor. It can only take effect when its stipulations, limitations, and conditions have been complied with. The act prescribes that those vessels or cargoes ^^ which shall he adjudged good prize' ^ shall be the property of the captors. This, of course, upon the rule we have stated, excludes all such as have not been adjudged good prize ; for exjji'esslo iinius, est exclusio alterius. The title depends upon a grant, and must conform to it and comply wdth its conditions. The condition in this case is, that it shall be brought in and condemned as lawful prize before any title accrues. Chief Justice Taney says : "All captures jiwre ieZ/i are for the benefit of the sovereign under whose authority they were made ; and the validity of the seizure, and the question of prize or no prize, can be determined in liis own courts only upon which he has conferred jurisdiction to try the question." Jecker v. 3Iont(jonienj, 13 litnv. 515. To the same effect is the judgment and opinion of Sir William Scott. That eminent admiralty judge says: "AH grants of the sovereign are to be strictly construed against the grantee, contrary to the usual policy of the law in the consideration of grants ; and upon this just ground, that the prerogatives, rights, and emoluments of the sovereign being conferred upon him for great purposes and for public use, it shall not be intended that such prerogatives, rights, and emoluments are diminished by any grant beyond what such grant hij necessary and unacoidable construction shall take au'a//.^' 'The Tieltekahy 1 C. Rob. 230. CHAP. III.] COMMODORE STEWART'S CASE. 917 The case which bears most strongly on the question in liand is the judgment of the same great jurist in the case of The Elsebe, 5 Rob. 173. In that case there was a capture of a vessel y«/-e belli. She was brought into an English port and libelled, but before adjudication, on the application of the diplomatic representative of tlie nations whose citizens were principally interested, the executive government of Great Britain directed the lords of the aduiiralty to release the ship and hand her over to the original owners. The case rose on a motion in the High Court of Admiralty to proceed to adjudication upon the rights of the captors, notwithstanding the release and discharge of the ship. The grounds taken on the part of the libellants were that the Crown had not the right to release ; because such a right and interest had vested in the captors at the time of seizure, under the grant of prize, &c., as to entitle them to proceed to adjudication, notwithstanding an order of release on the part of the government. In delivering the opinion, that great judge says: '' It is admitted on the part of the captors that their claim rests wholly on the order of council, the proclamation, and the prize act. It is not (as it cannot be) denied that, independent of these instruments, the whole subject- matter is in the Crown, as well in point of interest as in point of authorit3\ Prize is altogether a creature of the Crown. '•' No man has or can have any interest but what lie takes as the mere gift of the Crown. Beyond the extent of that gift he has nothing. This is the principle of law on the subject, and founded on the wisest reasons. The right of making war and peace is exclusively in the Crown. The acquisitions of war belong to the Crown ; and the disposal of these acquisitions may be of the utmost importance for the purposes both of war and peace. This is no peculiar doctrine of our Constitution ; it is universally received as a necessary principle of public jurisprudence by all writers on the subject, hello parta cediint reipuhlicce. It is not to be supposed that this wise attribute of sover- eignty is conferred without reason ; it is given for the purpose assigned, that the power to whom it belongs to decide on peace or war may use it in the most beneficial manner for the purposes of both. "A general presumption arising from these considerations is, that government does not mean to divest itself of this universal attribute of sovereignty, conferred for such purposes, unless it is so clearly and unequivocally expressed. In conjunction with this universal presump- tion must be taken also the wise policy of our peculiar law, which interprets the grants of the Crown, in this respect, by other rules than those which are applied in the construction of the grants of individuals. Against an individual it is presumed that he meant to convey a benefit with the utmost liberality that his words will bear. It is different to 918 BELLIGERENTS AND NEUTKALS. [PAKT U. the public in which person an interest remains, whether in the grantor or the taker. With regard to the grant of the sovereign it is far otherwise. It is not held by the sovereign himself as private property ; and no alienation shall be presumed except that which is clearly and indisputably expressed." Having shown that all prizes vest in the Crown — that the right of the captors rests only on the gift of the Crown, in the order in council, the proclamation, and the prize acts — he proceeds to show that it was merely a right to seize and bring in for adjudication a certain description of property, and that the interest of the captors in the prizes only ' vested when condemnation took place, and that prior to such time the sovereign could dispose of them as he saw proper, without impinging upon the vested rights of the people. If these principles are sound, and we think they are sustained by the strongest reasons and the highest authorities, it must follow that this suit cannot be maintained by this claimant, for want of title to and interest in the subject-matter in respect of which the claim is made. 7 By the seizure of the ships they acquired a right to carry them into a port of this country for adjudication. It is the condemnation under the act which gives the interest, and not the seizure. The capture vests it in the United States — the condemnation in the captors. It follows, as a necessary consequence from this, that there never having been a condemnation by a competent tribunal, there never has been any legal right vested in the claimants. Nor could there be any such, for it required the judgment of a competent prize tribunal to vest that right in them under the act of Congress. Xo other court is competent to supply the want of it, because that is an essential condition of the grant, and cannot be supplied by anything else. What follows then ? Simply this, that when the Lecant was permitted to be unlawfully recaptured by the Portuguese Government, in violation of the rights of hospitality, as well as her neutralit}', the sole right to and interest in the captured prize was in the United States alone. The injury was committed against her rights ; and whether she should demand repara- I tion in any form, or to any extent, was a matter to be dictated and controlled by considerations of public interest and policy alone, and I not by any considerations of private interest or grievance, for nonj existed. Tlie case of the brig Armstrong, decided by a majority of this court some years ago, has been pressed upon our attention as ruling tliis case. We do not think so. The question upon which this case is ruled did not and could not arise in that case. There was no question of prize in that cause. It was the destruction of a ship owned by CHAP. HI.] THE "FLAD OYEN." 919 private individuals. I may, however, be permitted to say for myself, that the very able opinion delivered by Judge Gilchrist has failed to satisfj- me of the soundness of the conclusion reached in that case. Congress seems to have taken much the same view of the questions involved that we do now when they passed the act giving the claimants the sura of twenty-five thousand dollars for the capture of the Levant. That the capture was an act of general merit and heroism is universally admitted. And we confess that it would have afforded us sincere gratification if the law and the facts of this case had permitted us to convey a more substantial acknowledgment of the great services rendered by the venerable and illustrious commander of the Constitu- tion and his gallant crew, who have contributed so much to make our flag respected on the seas, and to the lasting renown of our country. But we are restrained and guided by the law of the case, leaving all other considerations for that department of the government to which they appropriately belong. We, therefore, are compelled to sustaiu the demurrer and dismiss the petition.^ THE "FLAD OYEX." High Court of Admiralty, 1799. (I C. Robinson, 114.) Judgment. — Sir W. Scott : - — This is the case of a ship taken by a French privateer, and cari-ied into the port of Bergen in Norway, where it appears she underwent a sort of process, which terminated in a sentence of condemnation, pro- nounced by the French consul ; and under that sentence, she is asserted to have been transferred to the present neutral proprietor. But another question has arisen in this case, upon which a great deal of argument has been employed; namely, whether the sentence of condemnation which was pronounced by the French consul, is of 1 This is the second occasion on which the famous frigate appeared in court. The other case of T/ie Const it iitioti will be foutul antp, 218. For a description of tlie naval battle out of which Commodore Stewart's Claim arose, see HoUis, T/te Frigate Con- stitution (1901), pp. 196-215. It may be of interest to note that Stewart remained in active service until he was retired as senior commodore in 1856 and flag-officer in 1860; that on July 16, 1S62, he was commissioned rear-admiral in his eighty-fourth year, and that he remained on waiting orders until his deatli, in 1869. His fighting qualities as well as his name appeared in his grandson, the late Charles Stewart Parnell— Ed. 2 The statement of facts and part of the judgment have been omitted. — Ed. 920 BELLIGERENTS AND NEUTRALS. [PART JI. such legal authority as to transfer the vessel, supposing the purchase to have been bona fide made? I directed the counsel for the claimants to begin; because, the sentence being of a species altogether new, it lay upon them to prove that it was nevertheless a legal one. It has frequently been said, that it is the peculiar doctrine of the law of England to require a sentence of condemnation, as necessary to transfer the property of prize ; and that according to the practice of some nations twenty-four hours, and according to the practice of others bringing infra prestdia, is authority enough to convert the prize. I take that to be not quite correct ; for I apprehend, that by the general practice of the law of nations, a sentence of condemnation is at pres- ent deemed generally necessary ; and that a neutral purchaser in Europe, during war, does look to the legal sentence of condemnation as one of the title-deeds of the ship, if he buj^s a prize vessel. I believe there is no instance in which a man liaving purchased a prize vessel of a belligerent, has thought liimself quite secure in making that purchase, merely because the ship had been in the enemy's pos- session twenty-four hours, or carried infra presidia : the contrary has been more generally held, and the instrument of condemnation is amongst those documents which are most universally produced by a neutral purchaser; that if she lias been taken as prize, it should appear also that she has been, in a proper judicial form, subjected to adjudication. Now, in what form have these adjudications constantly appeared ? They are tlie sentences of courts acting and exercising their functions in the belligerent country; and it is for the very first time in the world, that in the year 1799, an attempt is made to impose upon the court a sentence of a tribunal not existing in the belligerent country, but of a person pretending to be authorized within the dominions of a neutral country : in my opinion, if it could be shown, that, regarding mere speculative general principles, such a condemnation ought to be deemed sufficient ; that would not be enough; more must be proved; it must be shown that it is conformable to the usage and practice of nations. A great part of the law of nations stands on no other foundation: it is introduced, indeed, by general principles ; but it travels with those general principles only to a certain extent: and, if it stops there, you are not at liberty to go farther, and to say, that mere general specu- lations would bear you out in a further progress : thus, for instance, on raei'B general principles it is lawful to destroy your enemy ; and mere general principles make no great difference as to the manner by which this is to be effected ; but the conventional law of mankind, wliich is evidenced in their practice, does make a distinction, . and CHAP, m.] THE " FLAD OYEN." 921 allows some, and prohibits other modes of destruction ; and a bidlig- erent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes. 'Now, it having been the constant usage, that the tribunals of the law of nations in these matters shall exercise their functions within the belligerent country; if it was proved to me in the clearest manner, that on mere general theory such a tribunal might act in the neutral country ; I must take my stand on the ancient and universal practice of mankind ; and say that as far as that practice lias gone, 1 am will- ing to go; and where it has thought proper to stop, there I must stop likewise. It is my dut}' 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, that I am on that account iinder the necessity of acknowledging the effir'acy of such a novel institution ; merely because general theorj- might give it a degree of countenance, independent of all practice from the earliest history of mankind. Tlie institution must conform to the text law, and likewise to the constant usage upon the matter ; and Avhen I am told, that before the present war, no sentence of this kind has ever been produced in the annals of mankind ; and that it is produced by one nation only in this war ; I require nothing more to satisfy me. that it is the duty of this court to reject such a sentence as inadmissible. Having thus declared that there must be an antecedent usage upon the subject, I should think myself justified in dismissing this matter witliout entering into any farther discussion. But even if we look farther, I see no sufficient ground to sa^', that on mere general prin- ciples such a sentence could be sustained : proceedings upon prize are proceedings in rem ; and it is presumed, that the body and substance of the thing is in the country which has to exercise the jurisdiction. I have not heard any instances quoted to the contrary, excepting in a very few cases which have been urged, argumentatively, in the way which is technically called ad hominein, being cases of condemnations of British prizes carried into the ports of Lisbon and Leghorn ; but in those the condemnations were pronoxinced by the High Court of Admiralty in England. The only cases are of two ships carried into foreign ports, and condemned in England by this court ; the very infrequency of siich a practice shows the irregularity of it. Upon cases in the practice of other nations antecedent to the present war, the advocates have been silent. Now, as to these condemnations of prizes carried to Lisbon and 922 BELLIGERENTS AND NEUTRALS. [PART If. Leghorn, it has been said, that if the courts of Great Britain venture this degree of irregularity, other countries have a right to go farther. That consequence I deny : the true mode of correcting the irregular practice of a nation is, by protesting against it ; and by inducing that country to reform it : it is monstrous to suppose, that because one country has been guilty of an irregularity, every other country is let loose from the law of nations ; and is at liberty to assume as much as it thinks fit. Upon these ports of Lisbon and Leghorn it is to be remarked, that they have a peculiar and discriminate character, a character that to a certain degree assimilates them to British ports : the British exist there in a distinct character, under the protection of peculiar treaties; and with respect to Portugal, those treaties go so far as to engage, that if a ship belonging to one country shall be brought by its enemy into the ports of another, which happens to be at peace, this neutral coun- try shall be bound to seize that ship, and restore it to its ally : to be sure no covenant can have more the effect of giving the ports of Eng- land and Portugal a reciprocal relation of a very peculiar sort — to make the British ports Portuguese ports, and the Portuguese ports British ports to a certain degree. Now, unless I am given to under- stand that peculiar treaties between France and Denmark have im- pressed such a distinctive character upon the port of Bergen, I cannot allow that it can be considered, on the mere footing of general neutral- ity, to be a French port, exactly in the same manner in which London may be considered as a Portuguese port, or Lisbon as a British port. But supposing this possible, still it would not follow that such con- demnations could be pleaded as authorities in the present case ; because, in the first place, the validity of such condemnations themselves may be the subject of reasonable doubt. For it by no means appears that the enemy, or neutrals, who might have an interest in contesting them, have ever acknowledged their validity. Whoever purchases under such sentences must be content to purchase them subject to all the questions that may arise upon their sufficiency. But, 2dly, Supposing that no doubts could be entertained respecting the sufficiency of such sentences ; it by no means follows that the efficacy of the present sentence can be supported : there the tribunal is acting in the country to which it belongs, and with whose authority it is armed. Here a person, utterly naked of all authority except over the subjects of his own country, and possessing that merely by the indulgence of the country in which he resides, pretends to exercise a jurisdiction in a matter in which the subjects of many other States jmay be concerned. No such authority was ever conceded by any kcountry to a foreign agent of any description residing within it: and CHAP. III.] THE " FLAD OYEN." 923 least of all could such an authority be conceded in the matter of prize of war — a matter over which a neutral country has no cognizance whatever, except in the single case of an infringement of its own ter- ritory ; and in which such a concession of authority cannot be made without departing from the duties, and losing the benefits, of its neutral character. Mark the consequences which must follow from such a pretended concession : observe in the present case how it would affect the neutral character of the ports in the north ! If France can station a judge of the Admiralty at Bergen, and can station there its cruisers to carry in prizes for that judge to condemn ; who can deny that to every pur- pose of hostile mischief against the commerce of England, Bergen will differ from Dunkirk, in no other respect than this, that it is a port of the enemy to a much greater extent of practical mischief. To make the ports of Korway the seats of the French tribunals of war, is to make tlie adjacent sea the theatre of French hostility. It gives one belligerent the unfair advantage of a new station of war, which does not properly belong to him ; and it gives to the other the unfair disadvantage of an active enemy in a quarter where no enemy would naturally be found. The coasts of Norway could no longer be approached by the British merchant with safety, and a sus- pension of commerce would soon be followed by a suspension of amity. Wisely, therefore, did the American Government defeat a similar attempt made on them, at an earlier period of the war : they knew that to permit such an exercise of the rights of war, within their cities, would be to make their coasts a station of hostility.^ Whether the government of Denmark has shown equal vigilance in observing, or equal indignation in repelling the attempt, is more than I am warranted to assert : but though the publicity of the transaction in the town of Bergen may subject the police of that place to some degree of observation, I see nothing in the papers which issue immediately from the royal authority that at all affects the govern- ment itself with the knowledge and approbation of the fact ; and indeed it would be indecent to suppose that a country, standing upon the footing of ancient and friendly alliance to this country, could have given its sanction to a measure so full of hostility to its friend, and of possible inconvenience to itself : I must, therefore, deem the act of 1 The incident referred to was the attempt in 1793 of the French minister, " Citi- zen "Genet, to offer commissions to citizens of tlie United States to cruise in tlie service of France against Great Britain, to fit out privateers, to set up French con- sular prize courts, so tliat prizes brought in could be condemned in American ports, and otherwise to emplo3' the territory of this country for belligerent purposes. 5 Moore, Int. Arb. 4404-4411 ; Taylor, Int. Law, § 640. See also Hall, Int. Law, §213. — Ed. 924 BELLIGERENTS AND NEUTRALS. [PAUT II. this French consul a licentious attempt to exercise the rights of war within the bosom of a neutral country, where no such exercise has ever been authorized. ODDY V. BOVILL. King's Bexch, 1802. (2 East, 473.) In the war between Great Britain and France, Spain was in 1799 an ally of the latter power. A prize was taken by a French privateer, carried into a port of Spain, and condemned as enemy's property by a French court sitting in Spain. ^ Lawrexce, J.: — The question is, Whether this sentence of con- demnation be conclusive evidence tliat the property insured was British, and consequently, that the warranty of its being neutral was not complied with? The argument was attempted to be carried into a wider field than we think it fit now to enter into, since the case of Hufjhes V. Cornelius, T. Ray. 473; Skin. 59, and 2 Show. 232, and a long string of authorities which have followed that decision. We must now therefore take it for granted, that if this sentence were given by a court of competent jurisdiction, it is conclusive upon the point then in judgment, namely, against the neutrality of the prop- erty. The case of the Flad Oijen, has been made the basis of the argument, to show, that unless the prize court were constituted according to the law and practice of nations, it could have no juris- diction. If there were no other case on the subject determined by the same learned judge, to explain how far he meant to go in that case, it might be doubtful, from some expressions there used, whether it did not extend to a case circumstanced like the present: but if we look at his other decisions on this subject, particularly in that of the Christopher [2 C. Rob. 209], though I do not mean to say that it is directly in point, it sufficiently appears from the reasons assigned by him in giving judgment, to Avhat extent he meant the doctrine laid down by him in the Flad Oi/en case should be understood; nnd that (he did not intend to deny the legality of such sentences of condemna- [tion by the captors in the country of a co-belligerent or ally in the war; because, as he observes, there is a common interest between such on the subject, and both governments may be presumed to authorize any measures conducing to give effect to their arms, and to consider each other's ports as mutually subservient. This very ^ Short statement substituted for tliat of original report. — Ed. CHAP. III.] ODDY V. BOVILL. ' 925 question appears to have arisen in several subsequent cases; and in the case of the Betsy Krager, in August, 1800, seems to have been considered by the advocates as so thoroughly understood and settled, that the question of law was waived, as one not to be discussed; and the court, proceeding on the ground that the condemnation was legal, directed further proof to be made of the fact of the transfer. We find then this question already determined by a court having peculiar jurisdiction in cases of this sort, of which we have only incidental jurisdiction. That determination therefore is as conclusive on us, as to the proper rule of decision, as a judgment of the common law courts on a question of real property would be on the civil law courts. Le Blanc, J. : — The subsequent cases referred to are explanatory of the opinion delivered by Sir W. Scott in the case of the Flacl Oyen, and show that he considered that there was a material distinc- tion between a sentence of condemnation, pronounced by the authority of the capturing country in the state of a co-belligerent, and one so pronounced in a neutral country. Now this is the case of a sentence of condemnation in the country of a belligerent power, an ally of the captors; and is exactly like the cases of The Harmony, 2 Rob. 210 n., the Adelaide [Id.], and the Betsy Krurjer [Id.]. The first was a con- demnation by the French commissary of marine at Kotterdam, of a British prize taken and carried into Helvoetsluys, which was in the country of a belligerent ally ; which Avas so far considered as different from the case of such a court sitting in a neutral country, that the neu- tral claimant was directed to go into proof of the merits as to the trans- fer, reserving the question of law. And in the last mentioned case of the Betsy Krurjer, the point was considered to be so settled, that the advocates waived the discussion of it, and the court considered the condemnation as legal. That I consider as a case directly in point, to support the legality of a condemnation in the country of a bellig- erent ally. This court therefore must decide the question consistently with the opinion of a court of peculiar jurisdiction on the same point, until we are told by a superior tribunal that that determination was improper. Judgment of nonsuit.^ 1 In Donaldson v. Thompson, 1808, 1 Camp. 429, 4.31, Lord Elleiibornugh said: "While a government subsists as tliis did [Corfu under Uussian occupation], we cannot look to tlie degree in wliicli it might he overawed by a foreign force. The sentence was pronounced by a btlligerent on neutral territorj', and is therefore void." A decision of a prize court sitting in a neutral state does not condemn and therefore passes no valid title. Flad Oijen, 1799, supra. While the prize should be brought into captor's port and there passed upon by a prize coart, the physical presence of tlie prize is not necessary : it may be in the port of a neutral, on the high seas, or at the bottom of the seas, Hiulson v. Guestier, 1808, 4 Cr. 293; especially The Invin- cible, 1814, 2 Gall. 27, 39. The decision of a prize court is necessary to pass title to the 92G BELLIGERENTS AND NEUTRALS. [PART H. DALGLEISH v. HODGSON. Common Pleas, 1S31. (5 Moore idability, § 109; most favored nation clause in commercial, § 110 ; extinction and renewal of, § 111 ; the law of the land, 412-449; as law of the land, subject to constitutional limitations, Geofroy V. Riggs, 413 ; as law of the land, treaty takes precedence over state statute, Wunderle v. Wunderle, 414; not extinguished by absorption of one of parties thereto, Terlinden v. Ames, 4o6 ; superseded by subsequent treaty or act of Congress inconsistent therewith, Whitney v. Robertson, 422; in rem, suspended, not extinguished by war, Sutton v. Sutton, 427; Society for Propagation of Gospel v. Wheeler, 428 ; other than in rem extinguished by war, Hooper, Adm'r, v. United States, 433 ; effect of war upon, between belligerent states, § 136; of peace, § 168; effect of treaties of peace in settling general rights and obligations, § 169. Trent, The — enemy subject^ not belonging to armed or naval forces, not liable to capture in neutral transport, 788 n. Trimble's Case — states do not, as a rule, surrender their own citizens, 293 n. Triquet v. Bath — international law part of common law, 6; lb., an interpreta- tion of the Statute of Anne, 6. Troops, transit of, § 173. Truce, flags of, § 146. • Truces, § 146. Twee Gebroeders, The — capture within neutral waters illegal, 687. Underhii.l I'. Hernandez — consideration of de facto a.nd de jure states; mili- tary commander representing a de facto government in the prosecution of war not civilly liable for his actions, 62. United Stalest-. The Active— War— Definition, object, rights acquired by, 464. United States v. Ambrose Light — unrecognized insurgents (wrongly) held to be pirates, 346. United States v. Davis— crime committed within jurisdiction of foreign coun- try not triable in United States, 294. United States v. Diekelman —merchant ships in foreign ports subject in all respects to jurisdiction thereof, 264; and 253-275 n. United States /•. Guinet — held unlawful for belligerents to arm vessels within neutral port, 095. Lnited States /•. Jeffera — asylum does not exist in legations, 256; exception in Central and Southern American Republics, 257-258 n. INDEX. 959 United States v. Kagama — Indians born within United States controlled by treaties or acts of Congress; states have uo control over tribal Indians within their boundaries, -404. United States r. The Meteor — vessel built in United States and sent or sold as commercial venture to belligerents not violation of neutrality laws, 711. United States c. Moreno — conquest or cession of territory works no change in private titles to land, 666. United States c. Fercheman — title to private property unaffected by cession of termor}', 95. United States v. Peters — vessels of war are not amenable to neutral nations for violation of sovereignty thereof, 697. United States v. Prioleau — upon end of civil war in 1865 title to public prop- erty of Confederate government vested immediately in government of United States, 85. United States r. Qidncy — vessel may be built in United States, but if fitted out in foreign port, neutrality laws of United States not violated. 706. United States v. Rauscher — a duty to extradite exists solely under treaty, and fugitive triable only for crime for which he was extradited, 274. United States r. Repentigny — on conquest and consequent change of sover- eignty, inhabitants who do not remain and become citizens of conqueror deprived of protection to themselves and property unless secured by treaty. If provided by treaty that former inhabitants adhering to their vanquished sovereign may sell property to certain class of persons and within time specified, failure to comply with treatj' by so selling forfeits or abandons property to conqueror. OS. United States v. Rice — American port in occupation of British forces is British port during such occupation, and goods imported during such occu- pation not liable, after evacuation, to American duty, 655. United States r. Rodgers — rivers, sounds, straits, connecting high seas, are themselve-i high seas, 132. United States v. Smiley — crime committed beyond the jurisdiction of United States not punishable in United States, 302. United States r. Smith — upon suppression of insurrection, as in the case of the Confederate States, the public rights and obligations of the de facto (Con- federate States), vest immediately in the de jure government (United States), 89. United States v. Smith — piracy, 13. United States v. Texas — definition and nature of sovereign states of the Union, 76. United States r. Trumbull — arms and ammunitions delivered to insurgent vessel in United States port, held not violation of United States neutrality laws, 731. United States v. Wagner — republic may sue in its own name, and need neither have nor create officer to maintain suit on its behalf, 176. Uti possidetis — as applied to territory ; § 170. Yav.\ssecr r. Krupp — foreign sovereign may not be sued, and if in suit against his agents he adds his name so as later to be in position to claim property, he is not thereby subjected to jurisdiction of court, 182. 960 INDEX. Venus, The — American citizen domiciled in enemy country, is enemy, and goods shipped before, but captured after, outbreak of war, lawful prize, 591. Vessels, merchant, *'te Merchant vessels. Vessels, see Ships of war ; Free ships. Free goods ; Neutral w-aters. Virginius, The — state may seize vessel on the high seas in self-defence, 320 n., o22 n. Visit and search — of neutral property, 858-899 ; right of, is a belligerent light to which neutrals are subject, § 187; formalities of the exercise of right of, false documents, spoliation papers, § 188: right of, in time of peace, § 189 ; vessel sailing under convoy is presumed to remain under convoy and therefore liable to capture; right of search implies right to use force if necessary in its execution. The Brig Sea Nymph, 869 ; vessel sailing under armed convoy to avoid visitation and search subject to condemnation. The Maria, 858, The Nancy, 861 ; held, inter alia, that vessel suspected of piracy may be visited, searched, and captured by any nation ; right of search in other cases does not exist in peace ; it is belligerent right, The Marianna Flora, 873. Voluntary, not involuntary, trading with the enemy illegal, Crawford v. The William Penn, 575. Volunteer navy, § 123. Vrow Henrica, The — neutral carrier of enemy property generally allowed freight, in this case freight postponed to captor's law expenses, 629. Vrow ]\Iargaretha, The — bona fide transfer of property not illegal, but colorable or fraudulent transfer in transitu clearly so, 6IG. War — purpose and declaration, 464—480 ; definition, object, causes, kinds, § 118; definition, object, rights acquired by, United States v. The Active, 464 ; declaration of , without declaration, beginning of, § 117; civil, date of be- ginning and ending thereof, The Protector. 682; §117; definition of, and kinds of, Dole v. Merchants' Marine Insurance Co., 470 ; perfect and im- perfect kinds of, 471 n. ; may exist de facto without declaration. The Teu- tonii, 471 ; instruments of, § 126; effects of, as between enemies, §§ 119, 120; property confiscable in, § 130; termination of, 675-683; § 168. Ware r. Ilylton — debts due the enemy legally may be, but from motives of policy generally are not confiscated, 485 n. Ware v. Jones — contract made during civil war for sale of property, real or personal, to aid Confederate States held void, 517. Washington — Three rules of, 714 n. Whitney v. Robertson — treaty as law is superseded by subsequent treaty or act of Congress inconsistent therewith, 422. Wildenhus' Case — merchant vessels subject, unless exempt by express treaty, to civil and criminal jurisdiction of foreign port; French rule otherwise, 225 (227-228). William, The — by rule of 1756, neutrals may not trade directly between enemy and his colonies; touching at neutral port to avoid penalty not permitted, S48. William Bagalay, The — duty of citizen to return home on outbreak of war, 565. INDEX. 961 Williams' Case — at common law subject may not change allegiance without permission of state, 372. Williams u. Marshall — license, to be a protection, must be complied substan- tially with, 530. Wilson V. Blanco — diplomatic agent exempt from suit in third country, whether going to or returning from post, 206. Wilson V. McNamee — merchant vessels of the United States on the high seas subject to jurisdiction of United States, 329. Wolff V. Oxholm — private property in form of debts due enemy, held not con- fiscable by usage of nations, 496. Wunderle c. Wunderle — treaty as law of the land takes precedence of state statute, 414. Yrisarri v. Clement — definition, nature and constituent elements of statehood, 23. 770 2 >tOV3 J954 1 L-9-35n!-8,'28 JX68 S42c Scott - 1902 Cases on UC SOUTHERN RFGIONAL LIBRARY rACILITY internation- AA 000 517 442 AT LOS ANGELES UBRABY