IN ME MORI AM BERNARD MOSES PRINCIPLES THE LAW OF NATIONS. UNIFORM WITH THIS VOLUME, IPOIGXTIEO.A.Xj NASSAU WILLIAM SENIOR, M.A., LATE PROFESSOR OF POLITICAL ECONOMY IN THE UNIVERSITY OF OXFORD. Fourth Edition, Crown 8vo, 4s. Cloth. PRINCIPLES OF THE LAW OF NATIONS, "WITH PRACTICAL NOTES AND SUPPLEMENTARY ESSAYS ON THE LAW OF BLOCKADE AND ON CONTKABAND OF WAR. BY ARCHER POLSON, OF LINCOLN'S INN, ESQ. TO WHICH IS ADDED, DIPLOMACY. THOMAS HARTWELL HORNE, B.D., OP SAINT JOHN'S COLLEGE, CAMBRIDGE. SECOND EDITION. LONDON AND GLASGOW: RICHARD ORIFFIN AND COMPANY, to % ^Jmbersitg 1859. BERNARD MOSES CONTENTS. PRINCIPLES OF THE LAW OF NATIONS. SECT. T. Introduction 1 II. History of the Law of Nations 7 III. Sources of the Law of Nations ... ..14 IV. Authority of the Law of Nations 16 V. Pacific Rights of Nations 19 I. Natural Pacific Rights. i. The Right to Security 19 ii. The Right to Independence . . . . .20 iii. The Right to Equality 25 iv. The Right to Property 28 II. International Pacific Rights. i. Rights of Legation 31 ii. Right of Negotiation 33 VI. Belligerent Rights of Nations 36 i. Reprisals 36 ii. War . 37 SUPPLEMENTARY ESSAYS. I. The Law of Blockade 55 II. The Law of Contraband .... .61 APPENDIX. Belligerent Rights Answer to the Prussian Memorial . . .67 Note on Licences 71 TABLE OF CASES 73 INDEX ... ... .... 77 783705 PREFATORY NOTICE. THE substance of the following pages was originally published as part of a Treatise on Law contributed to the Encyclopaedia Metropolitana by Mr. JEBB, of Lincoln's Inn, Mr. GRAVES, then Professor of Jurisprudence at the University College, London, and myself. It has been thoroughly recast and revised, and extensive additions have been made, so that in many re- spects it deserves to be considered a new work. Practical notes have been added, as well as two Supplementary Essays on the Law relating to Blockade and Contraband of War, which it is hoped will render it a useful manual for officers in Her Majesty's service, and for persons connected with, or in- terested in, commercial pursuits. But the original design that of furnishing a succinct but complete view of the principles of international jurisprudence has not been lost sight of, and references to works of higher pretension and more detailed information have been given, so that the reader, desirous of prosecuting his inquiries into a subject upon which recent events have conferred peculiar importance, has the means indicated him of satisfying his requirements. VI PREFATORY NOTICE. It has been thought desirable to add the excellent article on Diplomacy, which was contributed to the Encyclopaedia Metropolitana by the Kev. THOMAS HARTWELL HORNE, an eminent scholar, whose good fortune it has been to have distinguished himself as well by the depth of his learning as by the diversity of his acquirements. A. P. London? Trinity Vacation, 1848. THE LAW OF NATIONS. SECTION I. INTRODUCTION. I. THE Law of Nations 1 is that law by which the relative rights Definition and duties of nations, whether belligerent or neutral, at war or of Nations. peace, are defined and enforced. It is not to be confounded with the Jus Gentium of the Roman civilians, who by that term intended what has been usually under- stood and discussed as the law of nature. Quod naturalis ratio inter omnes homines constituit, id apud omnes per&que custoditur, vocaturque jus gentium. (D. i. 1, 9.) The law of nature, accord- ing to the civilians, embraced the whole animal kingdom in its operation ; while with us the law of nature is, like the jus gentium, considered as operating upon mankind alone. II. Opinions differ as to the origin and proper character of this Origin. system. Hobbes and Puffendorf 2 deny that the distinction between Opinions of the laws is other than verbal, and affirm that " what, speaking of puSdoT^ the duty of particular men, we call the law of nature, the same we term the law of nations when we apply it to whole states, nations, and people." Grotius, on the other hand, treats the distinction as of Grotins; real and substantial : u When," he says, " many men of different times and places unanimously affirm the same thing for truth, this ought to be ascribed to a general cause, which in the question whereof we are treating can be no other than a just inference drawn from the principles of nature or a universal consent. The former shows the law of nature, 3 and the latter the law of nations." " That," he adds, " which cannot be deduced from certain prin- 1 Locke denominates this system Mackintosh, " whether innovations in 11 civil law," On Education, 175, and the terms of science always repay us by Dr. Zouch, an eminent English civi- their superior precision for the uncer- lian, has suggested the title Jus inter tainty and confusion which the change Gentes, or, as we translate it, inter- occasions," it has been thought prefer- national law, as the most appropriate ; able to retain the name by which this which suggestion has been adopted by system is best known, the Chancellor D' Aguesseau, Mr. Ben- 2 Hobbes, De Give, ch. XIV. iii. 4 ; tham, and Dr. Wheaton, the author of Puff., Law of Nature and Nations, II. one of the latest, and, in some respects, iii. 23. the most useful work on the subject. 3 Da J. B. et P., prol. xli. Doubting, however, with Sir James B 2 INTRODUCTION. [SEC. I. ciples by just consequence, and yet appears everywhere observed, must owe its origin to a free and arbitrary will." The authority and origin of the law of nations he ascribes to " the will of all, or, at least, many nations ; " its proofs, he affirms, to be " the same as those of the unwritten civil law, viz., continual use and the testi- ami of mony of men skilled in the law." 4 Vattel, perhaps the most tel; ""popular Vfjitei^ctti'.tfie subject, seeks to reconcile these discordant *opfihions. * ITe* observes, 5 that " the application of a rule cannot /. : fre; i;&pnjtbl& or*j$t unless it is made in a manner suitable to the l*\* subject;*' We 'aW not* to believe that the law of nations is precisely and in every case the same as the law of nature, the subjects of them only excepted, so that we have only to substitute nations for individuals. A civil society or State is a subject very different from an individual of the human race, whence, in many cases, there follows, in virtue of the law of nature itself, very different obligations ; for the same general rule applied to two subjects cannot produce exactly the same decision when the subjects are different, since a particular rule, which is very just with respect to one subject, may not be applicable to another. There are many cases, then, in which the law of nature does not determine between State and State as it would between man and man. We must there- fore know how to accommodate the application of it to different subjects ; and it is the art of applying it with a justice founded on right reason that renders the law of nations a distinct science." III. The position so broadly laid down by Hobbes is based on an assumption altogether at variance with truth, and he states it thus : nations, when once instituted, become endued with the personal properties of individuals, and are therefore, like indi- viduals, subject to the law of nature. 6 This fashion of considering examined. States as being possessed of the qualities and capacities of indi- viduals, and, consequently, subject to the same general law, is gravely vindicated by Sir James Mackintosh, 7 who observes that so to consider them is no " fiction of law," but " a bold meta- phor," and pregnant with the useful moral, that States in their dealings with each other should respect those great principles of justice which avowedly ought to regulate the intercourse of indi- viduals. The metaphor is bold, and may carry a moral, but most assuredly metaphors form no safe foundation for reasonings, and, if we may credit history, have in every age served only to perplex and obscure the researches of the philosophical inquirer. what a IV. Plainly to speak, we may safely affirm that States differ state is. from individuals in every quality in virtue of which individuals are subject to the natural law. A State is a metaphysical entity, a 4 Omni in re consensio omnium gentium 7 Discourse, p. 7. Nescio quo modo lex natures putanda est. Cicero, Tusc. nihil tarn absurde did potest, quod non Quant., I. 13. dicatur ab aliquo philosopher um. Cicero, 5 Drolt des Gens, prol. De Divin. II. 58. e De Give, XIV. iii. 2. SEC. I.] INTRODUCTION. mere abstraction, a general term which convenience has dictated to express the political action of a number of individuals united together in a community. Thus where war is declared by the sovereign of one State against the sovereign of another State, it implies that the whole nation, i. e., each individual member of the body which, in its aggregate, constitutes the nation, declares war. " Every man is, in judgment of law, a party to the acts of his own government; and a war between the governments of two nations is a war between all the individuals of which the one and all the individuals of which the other nation is composed." 1 Kent, Comm. 55. A State has no conscience, no capacity of suffering, no moral attributes whatever. The members of a State (that is, those whose union constitutes the State) are, in their capacity of individuals, of course, subject to the natural law. From the operation of this law their quality of citizenship, which subjects them also to the authority of a municipal law, exempts them in no degree ; and this natural law regulates their conduct in all possible conditions and relations of life, as sovereigns and as subjects, and in their dealings with the sovereign and with the subjects of their own or any foreign State. The authority of the law of nature is, in fact, coextensive with mankind, and has cognizance of all its trans- actions. Y. The law of nations is, however, very distinct in its character; The law of its rules are not the same, its sanctions are wholly unlike, its obli- stmct gation is limited. As is every system of law, it is of course based fromTheiaw- in the main on the principles of the law of nature ; but these it of nature - largely modifies and enforces with its own peculiar sanctions. In- deed, writing not of ethics but of law, of what is and not what ought to be, it must be acknowledged that, so far from the law of nations being identical with the law of nature, the former confessedly Permits what permits, regulates, sanctions, and approves of transactions wholly j^jJefaw 11 repugnant to the sovereign and fundamental principles of the of nature. latter. An instance of this will at once suggest itself to the mind of the reader familiar in any degree with the history of modern diplomacy. In a judgment of the Supreme Court of the United Example : States of America, the slave trade is admitted to be " contrary to tl! a e d p lave the law of nature." Still in this trade, for a long series of years, the principal and most enlightened nations of Europe have been engaged ; the trade then was sanctioned by their usage, and, with such a sanction, could not be pronounced contrary to international law. The fact that some of these nations have lately forbidden the pursuit of this traffic to their subjects, and have entered into treaties with one another for the abolition of the commerce, would not operate so as to render it unlawful as far as the subjects of other States were concerned. The municipal regulations of no State can operate upon foreigners beyond its frontiers, nor can the B 2 4 INTRODUCTION. [SEC. I. special arrangements of any two or more Slates limit the inde- pendent rights of the others. 8 The language of Sir William Scott, in reference to the same subject, is similar. 9 This great Judge has well expounded the relations which subsist between the two systems, the law of nations iMation of and the law of nature. " Ajjreat part of the law of nations, 1 ' he tTiaw "f ture says? "stands on the usage and practice of nations, and on no nations. other foundation ; it is introduced, indeed, by general principles, but it travels with these principles only to a certain extent, and, if it stop there, you are not at liberty to go further, and to say that more general speculations would bear you out in a further pro- gress. Thus, for instance, on mere general principles, it is lawful to destroy your enemy, and mere general principles would make no great difference as to the manner in which this was effected ; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some and prohibits other modes of destruction, and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed." 10 origin and VI. The law of nations originates in the will of nations ; its SSunTof' authority is their consent, and its evidence is. their practice and nations. conventions. Practice evidences what is called the customary law its divisions, of nations, and conventions the conventional law of nations. (i.j The larger proportion of the law of nations owes its origin to the practice and usages of nations. The obvious convenience of certain rules has obtained for them, in the intercourse of civi- lized communities, an acceptance and consequent authority inferior in no degree to that which attaches to the results of express com- pact and solemn convention. Some of these rules are partial in their operation, because the usages which have originated and evidence them are only local in their nature, e. g., the customary law relating to the whale fishery. 11 It is competent to any nation, that so pleases it, to renounce any of her customs, and so to exempt herself from the jurisdiction of such portions of the law of nations as those customs warrant ; 12 but she cannot by any municipal regulation of her own add to that law (Pollard v. Bell, 8 T. R., 434), any more than can any con- gress, however eminent the persons that compose it (Le Louis ut cit.), nor can she, whilst subject to the law, privilege herself to the commission of any act that that law treats as a crime. (ii.) The conventional law of nations is comprised in the treaties to which, at different times, the various independent powers have become parties. Some of these are even considered to have an ope- 8 The Antelope, 10 "Wheat. Rep. 67. 12 In such case a timely notice of 9 The Le Louis, 2 Dods. 238. her intention should be given. Ib. 10 The Flad Oyen, 1 Rob. 140. Martens, Precis, II. ii. 3. 11 Fennings\.L. Graiw SEC. I.] INTRODUCTION. 5 ration beyond the parties contracting. The circumstance that they have been for the most part constructed in reference to the same principles and by diplomatists educated in the same school of public law, and referring as authorities to the same writers, has given them a certain value in the resolution of vexed questions, and in the exposition of what the law actually is upon any point which may have been doubted. 13 VII. Before dismissing the subject, it is desirable to repeat that Distinction the law of nations is conversant simply with the mutual relations j^rnStional subsisting between independent States, and that, therefore, when and Vattel, in his celebrated treatise (I. vi. xi. xiv.), wrote " Of ^ icipal nations considered in reference to themselves," described the political constitutions of various political communities, and dis- cussed " the objects of a good government," he occupied himself with matters with which the law of nations has no proper concern. It has also been the error of some writers upon the subject that they have understood the legislation by which various States have regulated themselves in their intercourse with foreign countries as belonging to the corpus of international law, whereas such legis- lation has no authority or virtue beyond the confines of the State in which it originates, or the jurisdiction such State is able to ex- ercise, It belongs to the public law of the State, but is exclusively municipal in its character, and essentially distinct from that system of jurisprudence to whose obligations the civilized countries of the world have equally subjected themselves. VIII. It may here be useful, though perhaps something invi- Natural dious, to remark that a want of precision in language exposes stJ^ of Dr. Wheaton, an eminent publicist and writer of repute, to improperly criticism of a similar kind. He gives the name " absolute inter- international national rights" (i. 107) to those rights which every State enjoys ri e llts - in virtue of its existence as a State, which are involved in the very terms of its being, and are inherent in it from the actual necessity of the thing. Such rights are the rights of the State to its security, independence, equality, and property ; rights antecedent in their origin to international law, which, if it defines and enforces them, limits their exercise and modifies their character. Such, without an abuse of language, cannot be designated " international rights." u IX. There is another circumstance to which jurists do not Distinction appear to have sufficiently attended, and their neglect of which International has, in many instances, deprived their speculations of that practical law and value which otherwise would have belonged to them. This neglect p l also appears to have resulted from an imperfect appreciation of the 13 1 Wheaton, Elements, 60, 61 ; Mar- Assurances, but I am unable to verify tens, Precis, Introd. 3 II. ii. 5 ; Kliiber, my reference to the passage. Droit des Gens Moderns de V Europe, 14 M. Kliiber {Droit des Gens, i. 65) tit. prel. I. 84. There is an instance of styles them Dro/ts absolus des JEtats, a treaties being taken as declaratory and designation not less objectionable, expository in Emerigon, Traite des 6 INTRODUCTION. [SEC. I. true character and scope of the law of nations, due, however, to the indisputable fact, that this system of jurisprudence in so many points approximates to the science of general politics, that it is often difficult to ascertain its appropriate boundaries and legitimate domain. By the science of general politics a term tolerably intelligible, though assuredly not very precise or determinate must be understood as meant the science of civil prudence, or, as Lord Bacon styles it, civil knowledge ; and which belongs to the province of ethics rather than of law. This science, being u conversant about a subject which of all others is most immersed in matter and hardliest reduced to axiom," 15 is beset with so many difficulties of its own, that to confound it with the law of nations is only to perplex and impede the resolution of questions properly distinct in their character, and in themselves sufficiently compli- cated and embarrassing. States, it must be remembered, may not always enforce their just claims 16 privileges may be waived positive injustice may be endured ; at times, things lawful may not be thought convenient ; at others, things unlawful may be success- fully accomplished ; and on all occasions we cannot safely argue from the fact to the right, and conclude from what is done, what ought to have been done. With examples illustrative of this, the diplomatic history of Europe abounds, and there is nothing the jurist ought more sedulously avoid than ascribing a scientific value to that which is the result only of prudent policy a policy having regard less to positive rights than to times and occasions. the principles on which the inviola- bility of that sea had been rested were denied, although it was admitted that our Government had at particular pe- riods, for special reasons, forborne to act in contradiction to them. Papers laid before Parliament, January, 1808. On such doubtful questions, see some observations by Dr. Wheaton, 1 Elem. 96, 97. 15 Advancement of Learning, p. 272 ; edit. 1633. 16 Martens, Precis, II. iii. 1. As an instance of this we may refer to the re- ply of the British Government (25 Sept. 1807) to the Russian declaration of war in 1807. This latter power insisted on the proceedings of the British fleet in entering the Sound and attacking the Danish capital, in disregard of the inviolability of the Baltic. In answer, SECTION II. HISTORY OF THE LAW OF NATIONS. I. The Law of Nations is the natural result of a state of com- Amongst the parative civilization, in which the benefits of commerce and inter- " reeks - national intercourse are known and appreciated. By the Greeks, every foreigner was esteemed a barbarian, and barbarian and enemy were synonymous terms. Without an express compact, men, in their belief, owed no duties to each other ; and we may reasonably refer the indignation expressed by the Ithacans against Eupeithes, for having joined the plundering Taphians against the Thesprotians, to the fact of a league subsisting between themselves and the latter nation. There is much force in the expression oi (frifjuv ap8p.iot i}aav. 1 II. The sense of a common insecurity^ appears early to have Greek public induced many of the Greek cities to form leagues or confederacies law * amongst themselves for the purpose of mutual defence, but in, per- haps, every instance, religious considerations largely influenced the formation and character of such combinations. Of these unions, and the effects which they produced in developing the elements of a public law in Greece, our information is imperfect, and respecting the object and results of the most celebrated of their number the Amphictyonic confederation scholars are divided in opinion. 2 The oath of the Amphictyons, which has been preserved by JEschines (De F. L., 121), was in these terms, " That they would not destroy any city of the Amphictyons, nor, in war or peace, cut off their water, arid, if any should do so, they would march against him, and destroy his cities ; and should any pillage the property of the god (Apollo), or be privy to or plan anything against what was in his temple (at Delphi), they would take vengeance on him with hand and foot arid voice and all their strength. "$ The security of the temple of Delphi was probably the chief object of this association (Grote, Hist. Greece, ii. 311- U^ 32), and there is no intimation that it had properly any external operation, except for this purpose. From its history, we learn that, although it affected a national character, its interference in 1 Odyss. XVI. 428. Amphiktyonen, pp. 200-37, Berl. 1812. 2 M. Sainte Croix, an Hellenist of It is strange that Dr. Wheaton, writing no mean repute, considers it to have from Berlin, should not, in his Histoire been simply a religious institution du Droit des Gens en Europe (Leipzig, (Gouvernemens Federatifs, p 39), but 1841), have adverted to this last-named his conclusion is disputed by M. W. work, upon which the Berlin Academy F. Tittmann, who ascribes to it a high had bestowed the highest eulogiums. political importance. Uber der Bund der (Zut, The Romans appear to have made but little advances towards recognising an international law, although of such a system Cicero conceived the necessity, and advocated the adoption, whilst his great rival, Sallust, did not hesitate to denounce a Numidian massacre, by Marius, as contra jus belli. These facts, with the circumstance that the Romans established a college of heralds, and instituted a Fetial Law, have led writers to infer that amongst this people subsisted just notions of the relative duties of States ; but an examination of their history will show the supposition to be erroneous. Some formalities 5 were certainly adopted in the decla- ration of hostilities, unknown as it would appear to the Greeks ; the relation of allies was recognised in principle, however neglected in practice, but the moderation towards the vanquished, certain fruits of international law, ascribed by the patriotism of Seneca and Tacitus to the founder of Rome, was, in fact, no more than the policy of an infant State, anxious to increase its strength by the incorporation of conquered enemies, and was found noways incom- patible with the Roman victor dragging at the chariot wheels of his triumph the kings and senates whose captivity he had purchased Roman with his sword. With the Fetial Law we are only imperfectly acquainted, but it seems to have been simply a law peculiar to the Romans, and regulating their conduct towards foreigners, and not properly an international law common to other nations, and de- termining on general principles their respective rights and duties. ia*o?the ial ^* ^ ie m iddle a o es were distinguished by a larger appre- middieages. ciation of the rights of nations, and an approach to the true prin- ciples of a law of nations, it is owing chiefly to the diffusion of 3 The Achaean Confederation was the pages of the accurate and consci- a league of another kind. It resem- entious Polybius, ii. 37, ed. Bekker. bled in its constitution the United 4 JEschines adv. Ctesiphon, 125; States of America, judging from the Pausanias, X. 37, 84. scanty notices we receive of it in 5 Cicero, De Kespublicd, II. 17. SEC. II.] HISTORY OF THE LAW OF NATIONS. Christianity through Europe. According to Barrington, 6 merchant strangers were by the laws of the Wisigoths not only protected, but permitted to enjoy the benefit of their own laws. In Sicily, the plunder of shipwrecked goods was made a capital offence; whilst the Bavarians assured safety and immunity to all foreigners entering their territories. Our Magna Charta also (cap. xxx.) extended protection and offered encouragement to merchant strangers. The extension of commerce 7 and the rise of a spirit of community in Europe, to which the Crusades and the system of chivalry gave birth, originated by degrees the rudiments of an European public law and treaties, formal declarations of war, and a more general recognition of the rights of ambassadors, were all so many evidences of the progress of civilization. This general public law, or law of nations, to the development of which con- Magna Charta. 6 Observations on Statutes, chief y the more ancient, p. 22 ; Dublin edit. 7 Some notice must be taken of the maritime codes which contributed greatly to develop the elements of international law in Europe. The Rhodians a people to the extent of whose commerce and power Cicero, who studied amongst them, bears tes- timony (Orat. pro Ley. Manil. xviii.) possessed a code of this kind, which was recognised at Athens, in all the islands of the JEgean, and through- out the coasts of the Mediterranean. (Pardessus, Coll des Lois Mar., i. 231.) The Roman emperors adopted this code, or what was understood as such, into their jurisprudence, and probably it was not without its influ- ence on the legislation of those cities which, after the fall of the Roman em- pire, prosecuted commercial inter- course with the islands and shores of the Mediterranean. Amongst these, Amalfi, that, early in the middle ages, traded with the ports of the eastern empire and the capital of the caliphs, was prominent, but it was the compi- lation of the famous Consolato del Mare, to which we must refer the origin of our modern maritime jurisprudence. A variety of opinions subsists in rela- tion to this singular monument of mediaeval sagacity, which cannot be discussed here. Azuni, on the bare assertion of Constantino Gaetan (a writer of the eighteenth century), believes it to have been compiled in Pisa, and to that opinion, though rest- ing on so slender a foundation, Mr. Hallam (Midd. Ages, iii. 396-8) has given the sanction of his approval. More probably, its language being a dialect of the Romanz, prevailing with but little alteration among the Cata- lans at the present day, its origin was Catalan. At Barcelona, the first known edition was printed, and there the earliest MS. is presumed to have been written. Its date is fixed by M. Pardessus between 1300 and 1400. Its compilers appear to have been largely indebted to a collection of maritime precedents and decisions, po- pularly known as the Laws of Oleron (des Rooles de Oleron), and vulgarly supposed to have been framed by Richard I., our lion-hearted king, but the primitive portions of which cannot have been reduced to writing later than the eleventh century. They were first published by Garcie de Ferrande, in 1541, under the title Grand Routier de la Mer. See Pardessus, i. 828. Another maritime code (to be found in M. Pardessus' great work, and in Postlethwaythe's Diet. Commerce, ii.) was the laws of Wisby, (Hogeste Water- Recht tho Wisby,} the capital of Goth- land, the great mart of the Baltic, and the resort of traders from every part of Europe, and even from Asia. They were compiled in the twelfth century out of the Roles a" Oleron, and the mari- time customs of the Low Countries. Respecting these, and also the early commercial legislation of the Han- seatic League, reference should be had to Pardessus and Dr. Lappenberg's learned work Urkundliche Geschiclde der deutschen Hanse. The edition by the latter of Sartor ius, Urkundliche Geschichte des Ursprunaes der deutschen Hanse (Hamb. 1830) may also be con- sulted with advantage. 10 HISTORY OF THE LAW OF NATIONS. [SEC. II. tributed, in a great degree, the study of the Roman jurisprudence, was considered as operating only upon Christian nations ; and the Pagan and his possessions were still considered the lawful prey of The Roman the Christian conqueror. The Roman church, to whom this per- asent^n 11 version of Christian doctrine is fairly attributable, was, however, Tiaw of ing an i m P ortant agent in the establishment of a law of nations in nations. Europe ; and this, not simply by the impetus which it communi- cated to European civilization, but also by constituting a species of European political system of which it became the head. It is difficult to overrate the importance of such a central power which, being independent and antiphysical, and owing its existence wholly to moral influences, was able and disposed to become the arbiter of national differences. Causes of V. The perfection of the law of nations has been owing chiefly ti e n P o7the to two causes : First, to the formation of the political system of law of modern Europe ; and, secondly, to the writings of Grotius and ons ' other eminent publicists. The political (i.) The political system of modern Europe, originating in the modern f relations that have arisen amongst European States, is referred by Europe. Heeren 8 generally to the progress of civilization, which necessarily multiplies the points of contact between neighbouring States, and specially to four causes: (1) the Italian wars; (2) the affairs of religion after the Reformation ; (3) the necessity of opposing the Turks ; (4) the commerce of the colonies, and the commercial interests resulting therefrom. To which he properly adds (5) the facility of communication which printing and the establishment of posts afford. Another bond of union amongst European nations was the similarity of their laws and habits arising from their com- mon origin. It may finally be observed that, as the power of the Roman church declined, the Germanic empire became the centre of the European system, to the solidity and compactness of which it greatly contributed. This end was secured, moreover, by the circumstance that monarchy was the prevailing form of govern- ment in Europe, and the direction of public affairs being intrusted to the hands of a few, greater steadiness of international policy was secured than has yet been found compatible with the character of democratic institutions. (ii.) The second cause of the perfection of the law of nations is owing to the writers on the subject. A brief notice of some of these will be found useful. Francisco yj. Francisco a Victoria, a Salamanca professor, who com- menced teaching at Yalladelid in 1525 (reputed the restorer of theological learning in Spain), discusses, in his Relectiones Theo- logicce (Lyons, 1557), the general right of war ; the difference between public war and reprisals ; the just and unjust causes of 8 Manual Hist. Pol. System of Europe, i. 7. SEC. II.] HISTORY OF THE LAW OF NATIONS. 1 1 war ; its proper ends, and the right of subjects to examine its grounds. He bases the rights of the King of Spain over the American Indians on the ground (inter alia) that the Indians had denied permission to trade in their country, which he esteems a just cause of war, but denies that the war was just simply because the Indians were Pagans. VII. The next writer on this branch of jurisprudence claiming Dominic remark is a pupil of Victoria, Dominic Soto, a Spanish Dominican, distinguished for the active part he took in the Council of Trent against both the Papal and Scotist factions. He was consulted by the Emperor Charles V., to whom he was confessor, on occasion of a conference held before him at Valladolid, in 1542, at which Sepulveda appeared as the champion for the Spanish colonists and Las Casas as an advocate for the oppressed American Indians. The opinion of Soto was conformable to that of his great master, " Neque discrepantia (ut reor) est inter Christianas et infideles, quoniamjus gentium cunctis gentibus cequale est." His celebrated work, De Justitia et Jure, from which this passage is taken, was published in 1568. Soto condemned in strenuous language the atrocities of the slave trade. VIII. Probably the earliest work in which the practice of nations in time of war is to be found fully discussed is one by Balthazar Ayal^ judge advocate (if we may use the term) to the Balthazar Spanish army in the Netherlands, under the command of the : Prince of Parma. It is entitled De Jure et Officiis Bellicis et Disciplind Military Libri III. ; was published about 1582 ; and was highly commended by Grotius. Like Victoria and Soto, the author denies the lawfulness of levying war against infidels, even by the authority of the Pope, on account of their religion, for their infidelity does not, he observes, deprive them of the right of dominion, inasmuch as the sovereignty of the earth was given to every reasonable creature. " Et hcec sententia" he adds, "pleris- que probatur^ ut ostendit Covarruvias" IX. Albericus Gentilis, the next international jurist of note, Aibencus was an Italian protestant, who, through the Earl of Leicester, G< obtained the professorship of civil law at Oxford. His work fie Legationibus was first published in 1583; and another by him, De Jure Belli (Lyons, 1589), was imitated in its plan by Grotius in the first and third books of his great work. X. We may also mention the name of the renowned Jesuit, Francisco Francisco Suarez, the casuist, styled by Grotius 9 the most acute Su of philosophers and divines, who flourished in the latter part of the sixteenth century, and who, by his treatise De Legibus ac Deo Legislator e, proves that he was the first to see, according to Sir James Mackintosh, " that international law was composed not 9 Grot. Epist cit. Anton. Bib. Hisp. Nov. i. 482. Mad. 1782. 12 HISTORY OF THE LAW OF NATIONS. [SEC. II. only of the simple principles of justice applied to the simple inter- course between states, but of those usages long observed in that intercourse by the European race which have since been more exactly distinguished as the consuetudinary law acknowledged by the Christian nations of Europe and America." 10 Hugo ^ XI. It was, however, from Hugo Grotius that the law of nations received its development, not only as a positive system but as a dogmatic science, and to him may we refer distinctly the vast superiority in regard of humanity of the modern over the ancient usages of warfare. His mild, tolerant, and benevolent spirit is con- spicuous in every part of his writings, and even when his positions are the most open to dispute, his spirit of moderation and candour never fail to manifest themselves. His great work, De Jure Belli ac Pads, the composition of which, according to Puffendorf ( 2), was suggested by a study of Lord Bacon's writings, was composed in exile, and first appeared in Paris, dedicated to Louis XIIL, in 1625. Gustavus Adolphus, in the war he under- took to secure the liberties of Protestant Europe, always slept with a copy of it under his pillow. Never did a single work ac- complish larger political results, although petulant criticism has charged upon it, as an error, that it abounds too much with cita- tions, which serve rather to display the author's learning than to evidence his judgment. Prom this charge Grotius has been well defended by a kindred spirit. " He was not," says Sir James Mackintosh, " of such a stupid and servile cast of mind as to quote the opinions of poets or orators, of historians or philosophers, as those of judges from whose decision there was no appeal. He quotes them, as he himself tells, as witnesses, whose conspiring testimony, mightily strengthened and confirmed by their discord- ance on almost every other subject, is a conclusive proof of the unanimity of the whole human race on the great rules of duty and the fundamental principles of morals." Disc. p. 24. Samuel His successor was Samuel Puffendorf, who (born 1681) was orf ' chosen by Karl Ludwig, the Elector Palatine, to fill the chair of Law of Nature and Nations at Heidelberg, the first chair of the kind instituted in Europe. His De Jure Natures et Gentium ap- peared in 1672, and is a highly valuable work, although the author was styled, by Leibnitz, Virjwrumjurisconsultus et minime philosophus. Jean XII. Subsequently to this time have flourished the translator and editor of Grotius, Puffendorf, and Bynkershoek, Jean Bar- beyrac, who translated Grotius into French, with notes, in the year 1724, Puffendorf (the best edition of which is that of London, 1740), and Bynkershoek all with valuable notes. Christian de Wolf (1679) was professor at Halle, 1707, at Marbourg, 1723 to 10 Dissertation on the Progress of Ethical Philosophy, "Whewell's edit., p. 110. SEC. II.] HISTORY OF THE LAW OF NATIONS. 1 3 1754, and his Jus Gentium was published at Halle in 1749. Bynkershoek, a Dutch jurist, is a useful and learned writer of authority. His De Dominio Maris was published in 1702 ; his De Foro Leyatorum in 1721, and his principal work Qucestiones Juris Publici^ has been translated into French by Barbeyrac (Hague, 1724), arid into English by Dr. Du Ponceau, provost of the law academy of Philadelphia. Both of these editors have added useful notes. A considerable portion of Bynkershoek's Qusestiones Juris Publici was translated into English, and pub- lished in 1759, intituled " A Treatise on Captures in War. By ^ Richard Lee, Esq." A second edition was published in 1803, with some additional notes by the Editor (the Rev. Thomas Hartwell Home). Professor Von Martens is a distinguished jurist ; and we may fairly add the name of a recent writer, Dr. Henry Wheaton, long a reporter of the Supreme Court of the United States of America, and subsequently resident minister at the Court of Berlin. XIII. It would not be difficult very considerably to increase Recent the list and enumerate many useful treatises on the law of nations ^ nters - that have recently appeared, especially in France and Germany most of them discovering much learning, and not a few of them distinguished by the originality of their views and the excellence of their method. But at present, none of these can pretend to anything like authority ; for the international, like the municipal, jurist has respect for nothing but antiquity ; so that the living writer must content himself with the sarcastic reflection from which the Roman satirist professed to derive a sort of consolation : " Sic fautor veterum, ut tabulas peccare vetantes, Quas bis quinque viri sanxerunt, foedera regum Vel Gabiis vel cum rigidis oequata Sabinis, Pontificum libros, annosa volumina vatum, Dictitet Albano Musas in monte locutas." HOR. Epist. II., i. 23, SECTION III. SOURCES OF THE LAW OF NATIONS. Sources. I. The Law of Nations, according to Sir William Scott, is " fixed and evidenced by general, ancient, and admitted practice, by treaties, and by the general tenor of the laws, ordinances, and formal transactions of civilized States." * It does not enjoy the advantage possessed by every system of municipal jurisprudence, of being expounded and enforced by an independent and impartial judiciary ; and if in some points it should be deficient in that pre- cision and certainty which, taught by one of his great oracles, the English lawyer is prone to esteem the highest perfection of every jurisprudential system, 2 it is chiefly owing to this fact. The sources of the law of nations may be enumerated as follows : i.'Text- II. (i.) Text-writers of authority ; an authority which they ob- tain whenever they record the usages and practice of nations, and whenever their speculations are conceived in a spirit of impartiality. This is a character which especially belongs to the great work of Grotius, and is consistent with the disposition of one whose can- dour and love of justice so far subdued his personal feelings as to enable him rightly to appreciate the character of his inveterate persecutor. 3 The writings of Puffendorf and the other publicists already mentioned have always been considered as forming a part of the corpus of international law. The degree of authority to which the writings of certain publicists is entitled will always be a subject of controversy. Such, for instance, as that of Selden, who in his work, Mare Clausum (1635), following in the steps of Alberic Gentilis (Advocatio Hispanica, 1613), asserts the right of England to the sovereignty of the British seas. But generally it is to the works of eminent jurists that the nations of Europe appeal as authorities in the determination of their mutual dif- ferences. Our own country has been distinguished by the deference she has on all occasions paid to these venerable and enlightened expositors of international jurisprudence. 4 In her courts, they 1 The Le Louis, 2 Dods. 249. See memorial, prepared by Sir George also Lord Mansfield's observations in Lee, Dr. Paul, Sir Dudley Ryder, Triquet v. Bath, W. Bl. 471. and Mr. Murray (Lord Mansfield), in 2 " Certainty," says Lord Hard- the Appendix. Amongst the writers wicke, " is the mother of repose, and quoted in our courts are Barbeyrac, therefore the law aims at certainty." Vattel, Wicquefort ( Viveash v. Becker, Walter v. Tryon, 1 Dick. 245. 3 M. and S. 284), Bynkershoek, 3 Prince Maurice of Nassau. Grotius, and Puffendorf ( Wolf. v. Ox- 4 See the report made to the king holm, 6 M. & S. 92). in 1753, in answer to the Prussian SEC. III.] SOURCES OF THE LAW OF NATIONS. 15 exercise that sort of influence which the writings of Pothier enjoyed in France before she formally adopted large portions of them into her written laws when she codified her juris- prudence " Les ouvrages de Pothier n'ont pas ete regu comme lois ; mais ils ont obtenu un honeur semblable : car plus de trois quarts du Code Civil ont ete litteralement extraits de ses traites." (Dupin, Dissert, sur Vie fyc. de Pothier, p. cxiv.) When we speak of them as possessing authority, we employ the term in the sense in which it is used by Livy in his character of Evander " Evander turn ea auctoritate mais, quam imperio regebat loea," (Liv. I. 7, see R. v. Almon, Wilmot, N. 256, et seq.) " A learned writer/' says Harrington, " may have authority though he has no power." (Oeeana, Works, p. 39.) It is thus that the de- cisions of international tribunals, and other tribunals, when deal- ing with questions of international law, have acquired that fixity that enables them to be digested into a system, which would other- wise have been utterly impossible. Happily they have adopted and adhered to the principle " che un opinione di Carpsovio, un uso antico accenato da Claro, un tormento con iraconda compia- cenza suggerito da Farinaccio, sieno le leggi a cui con sicurezza ubbidiscono colere che tremando dovebono reggere le vite e le fortune clegli uomini." (Beccaria, Dei Delit. e dell. Pene. pref. p. 6, Vienna, 1798.) (ii.) The adjudications of international tribunals as boards 2. Decisions of arbitration and courts of prizes. The degree in which the SoMi ema " authority of these adjudications is admitted depends of course in a tribunals great measure on the constitution of the tribunals from which of prizes.* 8 they emanate. " Greater weight," says Dr. Wheaton, " is justly attributable to the judgments of the mixed tribunals appointed by the joint consent of the two nations between whom they are to decide, than to those of Admiralty Courts established by and de- pendent on the instructions of one nation alone." 5 (iii.) Ordinances of particular States prescribing rules for the s. Ordi- conduct of their commissioned cruisers and prize tribunals. swtes! f (iv.) The history of all diplomatic transactions. 4. Histories. (v.) Treaties, whether of peace, alliance, or commerce. 5. Treaties. 5 1 Elem. 57, 58. SECTION IV. AUTHORITY OF THE LAW OF NATIONS. Subjects of I. Tbe8ubjecte_of the Law of Nations are what are usually desig- NathMLs f nate d sovereign States ; that is, States which govern themselves independently of foreign powers. It is not necessary in this place to enter into any lengthened description of the signs and tokens in which this quality of sovereignty manifests itself. The right of negotiation is, as far as the law of nations is concerned, the most important of these ; but this is a right which may be modified by compact without the State forfeiting its title to be considered as a sovereign State. Such was the case with the States which formed the negotiation. ^ e Germanic Confederation, who, by the terms of their union, were precluded from negotiating a separate treaty, or even concluding an armistice, without the consent of the Confederation, with any power against whom the Confederation have declared war. 1 On the other hand, in the Swiss Confederation, while the Diet pos- sesses the exclusive right of declaring war and effecting treaties, each canton is authorised to conclude for itself military capitula- tions and treaties relating to economical matters and matters of police, so long as they do nothing inconsistent with the federal pact and with the rights of the other cantons. By the Constitution of the United States of America, no State is permitted " to enter into any treaty, alliance, or confederation by itself, keep troops or ships of war in time of peace, enter into any agreement or compact with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will admit of no delay." 2 The President has power, by the consent of the senate, provided two- thirds of the senators present concur, to levy war, make peace, and enter into treaties. 3 The right of negotiation, apart from com- pact, depends upon the internal organization of the State, and of this, to use an expression familiar to municipal jurisprudence, every other State is bound to take notice. Limits of the II. The law of nations, owing its existence to the will of na- the^a^of^ tions, its authority is necessarily limited to those nations that have nations. evinced their willingness to be bound by it. To learn what nationsTnd nations have done so we must resort to history for information ; their eman- jr^ speaking generally, we may say that, as a system, it has been colonies. adopted by, and therefore binds, all the nations of Europe 4 and 1 1 Wheat. 74. 3 Art. ii. 2. 2 Art. i. 10. 4 The law of nations is adopted in SEC. IV.] AUTHORITY OF THE LAW OF NATIONS. 17 their emancipated colonies in the other hemisphere. Formerly it would seem to have been doubted how far the Turkish empire could have been considered within its range ; 5 but modern events teach us to consider that power as a member, and no unimportant member, of the European commonwealth, and as clearly subject to the law of nations. III. As to those nations whose policy forbids our considering uncivilized them in the same light, we may conclude that they are entitled to nations - the protection of international law no further than what an en- lightened appreciation of the natural rights of States will obtain for them. To treat these nations with cruelty to violate their independence to oppress their citizens to despoil their domi- nions these are acts so plainly inconsistent with the character of civilized nations so wholly repugnant to the obvious dictates of natural justice, that the State who indulged in them would draw down on itself the just indignation of Europe ; but at the same time these uncivilized States are not entitled to those formal courtesies or privileges which the comity of civilized nations consider as reciprocally due, such as respect the ransom of prisoners of war, the rights of ambassadors, &c. (1 Wheat. 52.) They cannot expect to receive advantages which they deny to others ; but, on the other hand, in their intercourse with civilized States, they are not op- pressed with the necessity of observing the technical solemnities of a jurisprudence, from a full participation in whose benefits they are sequestered by their barbarism. Thus a formal sentence of condemnation by a Court of Admiralty was not considered requisite to transfer the property in a vessel captured by the Algerines, and subsequently sold bondjfide to a Christian purchaser. It was held sufficient if the confiscation had taken place by a public act of the competent authority, according to the custom established in that part of the world. 6 This was the distinction between them and more civilized States. IV. The African States were not, however, deemed exempt The African from an observance of the law of blockade, and this for good rea- States - sons. " On a point like this," said Sir W. Scott, " the breach of a blockade one of the most universal and simple operations of Great Britain in its full and most Wheat. 221, and 4 Co. Inst. 155 ; Klu- liberal extent by the common law, and ber, Droit des Gens Mod. de V Europe, is held to be part of the law of the p. 1, ii. 5. land ; and all statutes relating to 6 The Helena, 4 Rob. 3. Formerly foreign affairs should be framed with it was considered that there was no reference to that rule. 4 Comm. 67 ; change of property in case of a recap- Ricord v. Bettenham, W. BL, 563 ; Tri- ture, so as to bar an original owner in quetv. Bath, ut cit. ; Hopkins v. De favour of a recaptor or his vendee, until Robeck, 3 Durnf. & East, 79 ; Viveash v. there had been a sentence of con- Becker, ut cit. demnation. (Goss v. Withers, 1 Burr. 5 Martens, Precis, Introd. $ 4. It 696 ; Lindo v. Rodney, 1 Doug. 616 ; observed, however, according to this The Flad Oyen, 1 Rob. 139.) See also writer, none of the forms of diploma- 13 Geo. II. c. 4, and 29 Geo. II. c. 34. tic etiquette, VII. vi. 1. See also 1 18 AUTHORITY OF THE LAW OF NATIONS. [SEC. IV. Indian States and Morocco. Papal grants. Discovery and occupation. Idolatrous xegjons. war in all ages and countries, except such as are merely savage no indulgence can be shown. It must not be considered by them that if an European army or fleet is blockading a town or port that they are at liberty to trade with that port. If that could be maintained, it would render the obligation of a blockade per- fectly nugatory. They, in common with all other nations, must be subject to this first and elementary principle of blockade, that persons are not to carry into the port supplies of any kind. It is not a new operation of war ; it is almost as old and general as war itself. The subjects of the Barbary States could not be ignorant of the general rules applying to a blockaded port so far as concerns the interests and duties of neutrals." 7 V. The native princes of India appear also to have been con- sidered as within the operation of the general principles of the law of nations; 8 and, as it would seem by a case decided in the reign of Queen Elizabeth, the Emperor of Morocco also. 9 VI. In the early periods of European history, the rights of every Christian people to subject savage nations to their dominion, and to dispossess them of their territories, were not only vindicated in theory but asserted in practice. The Popes, who considered themselves as lords paramount of all princes, were accustomed to secure the support and reward the fidelity of their royal subjects, by ample donations of territory " in partibus infidelium" Thus did Alexander VI., in 1493, bestow on Ferdinand and Isabella of Spain the lands not previously occupied by a Christian nation, discovered and to be discovered beyond a line drawn from pole to pole one hundred miles west of the Azores ; and thus did Nicholas V. confer the sovereignty of Guinea, and the right of subduing its inhabitants, on Alphonso of Portugal and the Infante Henry. The sovereigns thus favoured did not, it would seem, consider it altogether prudent to rest their title to their new acquisitions wholly on these grants. The rights arising from discovery and priority of occupation were frequently alleged by them. The lawfulness of spoiling the idolator is assumed in the patent granted by Henry VII. of England to the celebrated John Cabot (Giovanni Gavotto) and his sons, who are thereby empowered " to seek out and dis- cover all islands, regions, and provinces whatsoever that may belong to heathens and infidels," and " to subdue, occupy, and possess these countries as his vassals and lieutenants." Sir Hum- phrey Gilbert was authorised by Queen Elizabeth " to discover such remote heathen and barbarous lands, countries, and territories not actually possessed of a Christian prince or people, and to hold, occupy, and enjoy the same, with all their commodities, jurisdic- tions, and royalties." 7 The Hurtige Hane, 2 Rob. 124. the authority of both Puffendorf and 8 Elphinstone v. Bedreechund, 1 Bynkershoek were relied on in argu- Knapp, 316. In the case of the Advo- ment, 1 Knapp, 329. cate- General of Bombay v. Amerchund y 9 4 Co. List. 152-4. SECTION Y. PACIFIC RIGHTS OF NATIONS. The Pacific Rights of Nations are either those which they pos- Pacific right sess absolutely, by virtue of their existence as nations, or those ofnatlons< which result from the relations which arise amongst themselves. Let the first be called their Natural Pacific Rights the second, their International Pacific Rights. 1. Natural Pacific Rights of Nations. The natural and inherent rights of States, or nations having a Natural distinctive political existence, are their rights to enjoy security, "f^f independence, equality, and property. The law of nations regu- lates the manner in which, and the conditions subject to which, these rights are to be exercised, and its operation in this respect is now to be considered. THE RIGHT TO SECURITY. I. As that political corporation, Right to called a State, is presumed to exist for the benefit of those who se< compose it ut cives feliciter degant it is its undoubted duty, so to speak, to protect its members against a foreign interference with their lawful pursuits of industry, and in the enjoyment of their acquired property. So, on general principles, it is authorised at its will to levy forces, raise fortresses, and impose taxes to furnish a revenue adequate to supply the means of defence. II. By convention, this right has often been materially modified, e. g., Genoa, by a treaty with France (1685), agreed to diminish its armed navy ; while France, by the Treaty of Aix-la-Chapelle (1748) and of Paris (1786), undertook to dismantle Dunkirk, long the terror of our channel trade, and by the treaty of 1815, to level the fortifications of Huningen which had threatened the city of Basle, covenanting, at the same time, to raise none others within three leagues of that city. These may be thought the hard terms which the power of the conqueror, flushed with the insolence of success, enabled him to impose, but they are to be justified on the ground that they were requisite to the enforcement of that very principle the right to security which they appeared at first sight to contravene. III. It was long a moot question amongst jurists how far an The balance interference is justified when a State already powerful is increasing of P wer - her power to such an extent as to become an object of terror to c2 20 PACIFIC RIGHTS OF NATIONS. [SEC. V. her neighbours. 1 It is the unquestionable right of every State to multiply its resources, as well by internal improvement as by external aggrandizement, provided it does not violate the rights of other States. " Nevertheless," says Professor Martens, " it may so happen that the aggrandizement of a State already powerful, and the preponderance arising from it, may sooner or later en- danger the safety and liberty of the neighbouring States. In such case there arises a collision of rights, which authorises the latter to oppose by alliances, and even by force of arms, so dangerous an aggrandizement, without the least regard to its lawfulness." 2 Grotius, on the other hand, denies that " the dread of our neigh- bour's increasing strength is a warrantable ground for our taking up arms against him ;" 3 and with him Vattel concurs. The wars undertaken for the preservation of that famous system, known, from its operation, as the balance of power, naturally suggested this question. It is one on which no doubt can reasonably be en- tertained at this day. We have no right even to complain of a neighbour who is enlarging his dominions by colonization, or strengthening his frontier with fortifications, unless we have good reason to apprehend that he is meditating aggressions on us. JfL, we have reason to suspect that his intentions are hostile, we shall naturally place ourselves in a posture of defence ; but assuredly the naked fact that he is increasing his power, and by means in themselves perfectly legitimate, will give no title to our inter- ference. Right to in- THE RIGHT TO INDEPENDENCE. I. This is a right which 2 ' belongs to every sovereign State as such, and one especially ten- dered and protected by the law of nations. No nation, unless authorised thereto by compact, is entitled to interfere in the internal concerns of another, whether those concerns affect its government, legislation, or its administration of justice. Compact, indeed, in some cases modifies this right. In pursuance of treaties to that effect, the kings of Denmark were empowered to arbitrate in any differences that might arise between the kings of Sweden and their senates; and the kings of Sweden had similar authority in cases of disputes in the Danish government. The princes and States of West Friesland in like manner agreed to submit to the decision of the republic of the United Provinces matters on which they were divided ; and many other cases of a similar kind might be mentioned. A title of interference may also result from treaties of mediation and guarantee. Thus, France and Sweden, at the peace of Westphalia, in 1648, guaranteed the Germanic constitu- tion on the basis on which it was then settled ; and the constitution of the Helvetic Confederation was adjusted by the mediation of 1 See the authorities quoted iu a 2 Martens, Precis, IV. i. 3. note to Martens, Precis, ut inf. cit. 3 De Jure Belli et Pads, II. xxii. 5. SEC. V.] PACIFIC RIGHTS OF NATIONS. 21 the allies, in 1813. So also might the constitution of any of the States composing the Germanic Confederation be guaranteed by the Diet, on the application of the State itself: the Diet then ac- quired a right to determine the construction and enforce the main- tenance of the constitution so guaranteed. (1 Wheat. 132.) Itjs usual when intestine divisions vex a State, for one or more of those States with whom it is in amity to proffer their mediation to com- pose the differences that may unhappily have arisen ; and the acceptance of such an offer by both parties gives to the State offering the right to interfere. II. There are other circumstances under which this right origi- The Holy nates ; and modern history has recorded the establishment of a Alhance - league styling itself the Holy Alliance, 4 whose object was to check the progress of revolutionary principles and to sustain the menaced monarchical institutions of Europe. The justification of such an association is to be found in the peculiar circumstances of the times, which rendered it a measure of absolute necessity on the part of States not prepared to surrender their freedom of action. The con- siderations which govern the policy of the British Government in such matters may be learnt from a declaration of the Court of St. James's, issued in consequence of the steps taken by Austria, Russia, and Prussia, alarmed by the success of the Neapolitan revolution of 1820. These were steps which the Government of Great Britain p ii cy of esteemed inconsistent with the undoubted right of every nation, as r ? at : P,. , J '. Britain. far as its neighbours were concerned, to establish what constitution was agreeable to its wishes. Great Britain, on that occasion, ad- mitted the right of interference so far as a regard to the inde- pendence of other States made an interference necessary, but still it regarded the assumption of such a right as only to be justified by the strongest necessity, and to be limited and regulated thereby. The exercise of such a right it considered as an exception to general principles of the greatest value and importance, and as one that properly grows out of the special circumstances of the case, but at the same time considered that exceptions of this description can never, without the utmost danger, be so far reduced to rule as to be incorporated into the ordinary diplomacy of States or into the institutes of the law of nations. 5 III. The intervention of France with the affairs of Spain in 1822, French which led to the overthrow of the Spanish constitution, was also s nx a Tnin. of protested against on similar grounds by the British Government. 1822. It declared the original alliance between Great Britain and the other powers to have been "an union for the reconquest and libe- ration of a great proportion of the European continent from the military dominion of France, and having subdued the conqueror, it 4 At Paris, Sept. 26, 1815, between 5 Lord Castlereagh's Circular De- Russia, Austria, and Prussia. Mar- spatch. Papers laid before Parliament, tens' Recueil, Supp. vi. 656. Session 1821. 22 PACIFIC RIGHTS OF NATIONS. [SEC. V. took the state of possession as established by the peace under the protection of the alliance. It was never intended as an union for the government of the world or for the superintendence of the in- ternal affairs of other States." 6 " No proof was produced to the British Government of any design on the part of Spain to invade the territory of France ; of any attempt to introduce disaffection amongst her soldiery ; of any project to undermine her political institutions ; and so long as the struggles and disturbances of Spain should be confined within the circle of her own territory, they could not be admitted by the British Government to afford any plea for foreign interference. If the end of the last and the beginning of the present century saw all Europe combined against France, it was not on account of the internal changes which France thought necessary for her own political and civil reformation, but because she attempted to propagate first her principles and afterwards her dominion by the sword." 7 onrekhT ^' ^ ie * nter f erence of the Christian Powers of Europe in behalf dependence, of the Greeks, when groaning under the oppression of Ottoman misrule, was, without doubt, prompted by a desire to rescue a gallant and Christian people, to whom Europe was most deeply indebted, from the fate to which the cruelty and cupidity of their governors had consigned them. Instances might have been cited from the history of international law which would have sanctioned an inter- ference on a religious ground. From the time of the Crusades to the sixteenth century, when Protestant States confederated together to secure religious freedom to the Protestant citizens of Eoman CathoJic communities, examples of this kind might have been gathered ; but it was thought more prudent in the treaty of alliance (London, July 6, 1827) to state the casus fcederis in other terms. In the preamble of the treaty it is set forth, that the contracting parties were " penetrated with the necessity of putting an end to the sanguinary contest which, by delivering up the Greek provinces and the isles of the Archipelago to all the disorders of anarchy, produces fresh impediments to the commerce of the European States, and gives occasion to piracies, which not only expose the subjects of the high contracting parties to considerable losses, but besides render necessary burdensome measures of protection and repres- sion." Authority of V. As a consequence of the independence of a nation, its laws nation. affect and bind directly all property within its territory, and all residents, native arid foreign, and all contracts made and acts done within it. They may regulate the acquisition, enjoyment, and transfer of property within its territory, fix the civil rights, capacities, and 6 Confidential Minute of Lord Cas- 7 Mr. Secretary Canning to Sir tlereagh on the Affairs of Spain, May, Charles Stuart, 31 March, 1823. Papers, 1820. Additional Papers laid before April, 1823, p. 57. Parliament, April, 1823. t SEC. V.] PACIFIC RIGHTS OF NATIONS. 23 states of those who become its subjects by birth, domicile, or even temporary residence ; they may determine the validity of contracts and other acts done within it, and the legal import which those contracts shall bear ; and they may establish the forms and pro- ceedings by which the judicial tribunals may entertain, investigate, and adjudicate on claims, and permit the execution within its own territory of foreign judgments. VI. They do not, proprio vigore, operate beyond the territory External of their State, however they may aspire to do so. Thus, for ex- P eratlon ' ample, the familiar maxim of English public law, nemo potest exuere patriam, which denies, except it would seem by permission of their sovereign (Doe dem. Thomas v. Acklam, 2 ]3. and C. 796, see also Brighfe lessee v. Rochester, 7 Wheat. Rep. 535), to the lieges of the Crown of Great Britain the right of renouncing their alle- giance, has no binding effect upon foreign nations. But upon laws by the which respect only the private interests of the private man, by nations f what is called the comity of nations (comitas gentium, or as it is sometimes named, la necessite ou bien public et general des nations), usually is conferred an extra territorial operation, provided they do not prejudice the interests of foreign States or the native rights of their citizens. It is however perfectly optional in any State to observe this liberality, and usually, in determining whether it will do so or not, it is influenced by the consideration that a similar liberality is accorded to or withholden from its own subjects. VII. To consider fully the important questions which arise out Jus gentium of what is called the jus gentium privatum and the collisio legum, P nvatum - or conflict of laws, would be foreign to the plan of this work. It will be sufficient to state generally what are the doctrines of the English Courts upon the subject, as in respect of English subjects foreign countries usually pursue a similar course. 8 VIII. " Our laws, like those of every other country, have, by the Laws comity of nations, an extra territorial operation. Generally speak- amfreai. ing, such of them as define the status or civil condition and capacity of our subjects travel with them wherever they go, and their obli- gation it is not possible for them to escape. Such are laws which may properly be styled personal, determining whether a man be legitimate or illegitimate, under or of full age, insane, an idiot, bankrupt, or divorced, and the like. As to laws governing the succession to an intestate's property, it is doubtful whether our law operates extra-territorially. The incidents to these qualities may depend on the la\v of the country to which the citizen goes, but as 8 The following extract is taken under the dominion of strictly deter- from the Treatise on English Law, con- minate principles, cannot satisfactorily tributed by myself to the Encyclo- be discussed in a brief space. Mr. pcedia Metropolitan^ Div. I. ii., 821-2. Burge's and Judge Story's works upon The subject is one of great difficulty, it, are too well known to require re- and, as it is incapable of being brought commendation here. 24 PACIFIC RIGHTS OF NATIONS. [SEC. V. qualities they will, by the general comity of nations, be generally recognised by foreign tribunals. These will also give effect to our laws, unless, indeed, inconsistent with the rights and interests of the citizens of their State, or with its public policy and fundamental laws. Our law acknowledges the validity of contracts entered into in a foreign country, and there intended to be performed, if they are valid according to the law of that country ( The King of Spain v. Machado, 4 Russ. 225 ; Potter v. Brown, 5 East. 130) ; for if an obligation is valid where it is professed to originate, it is valid everywhere else. Not only does our law recognise a marriage esteemed valid where it was contracted (Lacon v. Higgins, I D. and Ry. 38), but it does not generally recognise marriages cele- brated abroad unless there considered valid. (Butler v. Freeman, Amb. 303 ; but see Ending v. Smith, 2 Hagg. 385.) A court of equity, with that liberality which is its proper characteristic, has so far taken cognizance of a foreign law as to have forborne to compel a husband to make a settlement upon his wife, entitled to a share of his personal property under the (English) Statute of Distributions, on its being proved that the wife was resident in Prussia, and that by the law there a moiety of the husband's effects must have come to her. Sawyer v. Shute, 1 Ans. 63. See also 3 Yes. 323. Procedure. IX. " The process, however, by which foreign contracts are to be enforced here, must be such as is known to our law. ( The Ver- non, 1 W. Rob. 319.) So a foreigner may be here arrested for a debt or in equity upon of a writ of ne exeat regno, although by the law of the place where the debt was contracted he could not have been imprisoned (De la Vega v. Vianna, 1 B. and Ad. 284 ; Flack v. Holm, 1 J. and W. 405), a doctrine which has been carried so far as to justify proceedings against a person as partner, because he was jointly concerned in trade with another in Holland, although partnership does not there arise from such a community of business. Shaw v. Harvey, Mood, and Malk. 526. Time. X. " Further, as to the time of commencing proceedings, the English courts will have regard not to the lex loci, but to the English statutes of limitation. The British Linen Company v. Drummond, 10 B. and C. 903. interpret- XI. " Our law also, it would appear, claims to determine the in- instruments terpretation of every deed or will executed here ( Trotter v. Trotter, ' 4 Bligh, N. S. 502 ; Anstruiher v. Chalmers, 2 Sim. 1), although it is doubtful whether, in devises of lands, the tribunals of the country where the lands lay would accord them this jurisdiction. Yattel 11 viii. 3, 1 Wheat. 136, XII. " ' No country ever takes notice of the revenue laws of another ' (per Lord Mansfield, C. J., Holman v. Johnson, Cowp. 343; and see 2 Peake 81, and 1 Esp. 389), nor will ours admit Exceptions, the operation within its limits of any foreign municipal law con- SEC. V.] PACIFIC RIGHTS OF NATIONS. 25 trary either to its public policy or to the law of nature. A slave, a native of East Florida, where the law countenances slavery, escaped to a British man-of-war, and it was held that, coming under the protection of our colours, he relieved himself from the opera- tion of a local law of East Florida, which was contrary to the natural law of eternal justice. Forbes v. Cochrane, 2 B. and C. 448 ; and see the case of Somerset the negro, and Hargrave's note, Co. Litt 796." XIII. Sovereigns and their diplomatic representatives, while in Foreign a foreign country, are considered not amenable to its laws ; so also so is a foreign fleet or army while within the territorial jurisdiction of a friendly State. The vessels, public and private, of every nation on the high seas are considered as subject to the jurisdiction of their own country. XIV. With the exceptions above mentioned, the judicial power Authority of of every independent State extends, power! 1 i. To the punishment of offences against the laws of the State committed by foreigners, as well as subjects, within its territory or on board its vessels, on the open seas or in foreign ports, and to the punishment of piracy and other offences against the law of nations, ii. To all civil proceedings in rem. relating to personal or real pro- perty within its territory ; and iii. To all controversies respecting personal rights and contracts, or injuries to the person or property, when the party resides within the territory, wherever the cause of action may have originated. 9 THE RIGHT TO EQUALITY. I. One of the fundamental prin- i. Right ciples of public law generally recognised is, according to Sir to equality. William Scott, " the perfect equality and independence of all dis- tinct States. Eelative magnitude creates no distinction of right ; relative imbecility, whether permanent or casual, gives no addi- tional right to the more powerful neighbour, and any advantage seized on that ground is mere usurpation. This is the great foun- dation of public law, which it mainly concerns the peace of mankind, both in their politic and private capacities, to preserve inviolate." 10 This great principle is, however, somewhat modified in its applica- tion, both by the usage of nations and by compacts, whereby the forms of international etiquette are defined and established. These may be considered as they relate to the relative rank and prece- dence of States, to their titles, to the language employed in their negotiations, and to their maritime ceremonials. II. Certain honours, denominated royal, are enjoyed by the em- Rank of pires and kingdoms of Europe, by the Pope, by the grand duchies sti of Germany, by the Germanic and Swiss Confederations, and, as 9 1 Wheat. 158. 10 The Le Louis, 2 Dod., 243. 26' PACIFIC RIGHTS OF NATIONS. [SEC. V. we presume, the United States of America. 11 The right to send and receive an embassy of the first order, the right of preceding all other States, together with several distinctive ceremonies, properly make part of the royal honours. 1 * By the Roman Catholic Govern- ments, precedence is yielded to the Pope, who by the Protestant is considered simply as the sovereign of the Roman States. Some text-writers appear disposed to consider the great republics inferior in point of precedence to crowned heads ; but these States have never acknowledged their inferiority, and the question has been, by tacit consent of all parties, suffered to fall into obscurity. In- deed the whole question of relative rank, as far as concerns States enjoying royal honours, was felt to be so doubtful as well as so delicate that, on the discussion, in the Congress of 1815, of the report of a committee appointed specially to consider the subject, it was resolved to leave it in its original state of uncertainty. The usage at present, as it appears, may probably be stated thus : Rank by i. Moriai'chs enjoying royal honours, without being crowned heads, give precedence on all occasions to crowned emperors and kings, ii. Monarchs not enjoying royal honours yield precedence to such as do. iii. Below this last class rank demi-sovereigns or dependent States. III. This matter of precedence never having been formally settled, various expedients are resorted to in order to avoid an in- convenient contest at the period of a negotiation, without compro- The aitemat. mising the rights of any party. Of these the best known is the usage of the alternat, by which the rank and places of various powers is changed from time to time in a certain regular order, or one determined by lot. For, instance, in treaties between two powers two copies are prepared, and each power, in the copy it keeps, is named first. If there are several parties to the treaty, the same number of copies is made, and the same usage observed. The right to this alternation has sometimes been denied to certain States. The King of Great Britain refused to recognise the title of the King of Prussia to this privilege in 1742, and Hungary and Sardinia experienced great difficulties in obtaining admission to the alternation at the peace of Aix-la-Chapelle in 1748. 13 Sometimes it is arranged that the signatures to a treaty shall range according to the order assigned by the French alphabet to the respective powers parties thereto. 14 Titles of IV. While it is competent to any State to confer what title it States. 11 This State never accredits minis- signed Austria, Denmark, Spain (Es- ters of the first class to any foreign pagne), France, Great Britain, Prussia, power. ~~ Russia, Sweden, but it was distinctly 12 Martens, Precis, IV. ii. 3. Vattel, understood at the time that this prac- II. iii. 37. tice was not to be taken as derogating 13 Martens, Precis, IV. ii. 6. from the ancient usage of the alternat. 14 It was in this way the plenipo- C. Martens' Guide Diplom. par Hoff- tentiaries at the Congress of Vienna manns, I. iii. 1. SEC. V.J PACIFIC RIGHTS OF NATIONS. 27 pleases on its prince or chief magistrate, 15 it is not incumbent on foreign States to recognise that title, and sometimes when they do recognise it, a condition is annexed to the recognition. France and Spain recognised Russia as an empire, stipulating that the title of emperor should riot affect the sovereign's precedency ; but the Empress Catherine II., on her accession in 1762, refused to renew this stipulation, declaring, at the same time, that the impe- rial title should not alter the ceremonial between the two Courts. France, in turn, renewed her recognition, with a declaration that if any such alteration were made, she would cease to give the imperial title to Russia. Neither the royal title for Prussia nor the imperial title for Russia were generally acknowledged until the Powers of Europe had successively consented to them. 16 Y. With respect to the language employed in negotiation, in Diplomatic the early periods of diplomatic history, the Latin, as the European an ua e - language, was that generally used ; and this, towards the end of the fifteenth century, was, in consequence of the political influence of Spain, superseded by the Castilian tongue, which, in its turn, was supplanted by the French, now the most usual medium of diplo- matic intercourse. At the Congress of Vienna, all matters, not exclusively German, were discussed in this language, but the Germanic Diet (June 12, 1817), at Frankfort solemnly decreed that, in its foreign relations, the German was the only tongue it would employ ; annexing, however, to the original a French or Latin translation as might be required. This decree, seemingly inconsistent with the courtesy that should mark the intercourse of nations, has not, it is believed, been rigorously enforced. Some nations, as Spain and the German-Italian States, employ their own language; but it is customary for them, when treating with a power whose language is different, to transmit a translation of the treaty in the language of that power, if it is understood that the courtesy will be reciprocated. The Ottoman Porte considers no treaty in other than the Turkish language, obligatory upon it, but this language the European Powers will not suffer to be used towards themselves in diplomatic transactions, so that treaties in which the Porte joins as a contracting party, are usually despatched in several tongues. When both contracting parties have a common language, their treaties are worded in that language. 17 VI. With respect to maritime ceremonials, it may be observed Maritime that they have frequently formed subjects of contest between ce powers. The honours they involve are paid either by a salute 15 Anciently the Pope and the Em- and Pope Eugene made Alphonso peror of Germany claimed the right King of Portugal. The Pope for a of conferring the royal dignity on any long time refused to acknowledge Fre- house they pleased. In this way the derick as King of Prussia. Emperor Henry IV., in 1086, made the 16 Martens, Precis, IV. ii. 2. Duke of Wratislaw King of Bohemia, 17 1 Wheat. 198-9. 28 PACIFIC RIGHTS OF NATIONS. [SEC. V. with cannon, a salute with the flag, or with the pendant, by furling it up, lowering it, or hauling it quite down ; or by a salute with sails by lowering or hauling down the foretopsail. 18 As far as its own maritime jurisdiction extends, every State may impose what regulations it pleases in respect of these ceremonials, but they are usually made the subject of express compact. On the open seas it is usual for an admiral to be saluted by a ship carrying only a pendant, if the ship belongs to a friendly power ; and detached ships generally salute fleets. 19 Right to THE RIGHT TO PROPERTY. I. "The dominion of a nation," says Yattel, " extends to everything which she possesses by a just title. It comprehends the ancient and original possessions, and all acquisitions made by means whictfare just in themselves, or ad- mitted as such by nations concessions, purchases, conquests made in regular war, &c." 20 Prescription. jj a How far prescription may be considered as operating upon nations, jurists do not appear to have agreed ; but the uniform practice of nations shows that they recognise the long and unin- terrupted possession of a territory as excluding the claims of all other nations, and that this principle, whose exposition fills so large a head in municipal jurisprudence, is equally recognised, as reason dictates that it should, in international law. First III. As to national possessions, of which, they being- of corn- occupancy. ,. T ! xl D jAl 1 paratively recent acquisition, other sources of title are acknow- ledged : When the Russian Government claimed the sovereignty of the north-west coast of America, from Behring's Straits to the 51st degree of northern latitude, they rested their claim ." upon the three bases required by the law of nations, that is, upon the title of first discovery ; upon the title of first occupancy ; and, in the last place, upon that which results from a peaceable and uncontested possession of more than half a century ;" 2l a space of time longer than that during which the United States had enjoyed a national existence. As to the two first sources of title named by the Russian envoy, they are unquestionably good as against every nation except that nation whose liberties their assertion may prejudice. The right of a State in quality of her superior power the power lent her by her civilization to subject to her dominion a territory inhabited by another people, be they ever so savage, may be questioned on the principles of the law of nature, however consistent with the customs and therefore with the law of nations. Yattel discusses the question, which is that of almost every European colony, " whether it be lawful to possess a part of a country inhabited only by a few wan- dering tribes ?" and he justifies his reluctant assent to the affirmative 18 Martens, Precis, IV. iv. 15. 2l Le Chevalier Poletica to Mr. John 19 Martens, ib. 17. Quincy Adams (American Secretary 20 II. vii. 80. of State), Ann. Reg. LXIV. 579. SEC. V.] PACIFIC RIGHTS OF NATIONS. 29 on the ground that these tribes " cannot exclusively appropriate to themselves more land than they have occasion for," and that " their unsettled habitation in these immense regions cannot be accounted a true and legal possession." 22 An argument framed with a view to a conclusion does not deserve much mercy, and it may fairly be asked, who is to be the judge of the necessities of these tribes? Their usual occupations, hunting and fishing, notoriously require a large range of territory to enable them to support subsistence. Again, how, on Vattel's principles, can the integrity of the Russian Empire, with its 150 inhabitants to every square mile of territory, be secured ? Australia contains perhaps 5,000,000 of square miles, and a population truly insignificant. Surely this jurist's principle would impugn the inviolability of our dominion over that vast continent. IV. ^Jtill, as a fact, it is not to be denied that in savage coun- Settlements. tries the rights of the natives have } in every instance, been treated as subservient to those of the first Christian or civilized settler. Vattel's principle was carried further on one occasion by the British Government, who, when Spain, on the ground of prior dis- covery and long occupation, confirmed by the Treaty of Utrecht (in 1713), claimed the sovereignty of the north-west coast of America, as far north as Prince William's Sound (lat. 61), asserted " that the earth is the common property of mankind, and of which each individual and each nation has a right to appropriate a share by occupancy and cultivation." 23 This is almost the lan- guage of the German chieftain of Nero's time : Sicut ccdum dns, ita terras generi mortalium datas, quceque vacuce, respublicas esse. V. As to the extent to which the right of property operates ; p r0 p er t y in and first, as to the sea : So much of the sea as is included within seas. the territories of a State (such as St. George's Channel, which runs between England and Ireland) is considered as belonging to that State. And thus all harbours, ports, bays, and embouchures of rivers are considered as belonging to the State whose land forms their boundaries. The usage of nations has, for obvious reason^ extended this possession to as much of the open sea as lies within cannon range (that is, about three miles) of the shore, 24 in obe- dience to the maxim, Terrce dominium finitur, ubi Jiniiur armo- rum i'is. The term shore includes not only what is generally so denominated, but all islands lying off the coast, although not 22 I. xviii. 209. perty, and not to be interfered with, 23 1 Wheat. 211. A singular admis- chose the overland route, where they sion of the rights resulting from dis- were exposed to the powerful compe- covery appears in the conduct of the tition of the Venetians. Macpherson, Turkey Company in 1581, who being Hist, of European Commerce with India, desirous of engaging in the Indian p. 75. trade, and considering the passage 24 Martens, Precis, IV. iv. 4. 1 round the Cape, discovered by the "Wheat. 215. Portuguese, to be their exclusive pro- 30 PACIFIC RIGHTS OF NATIONS. [SEC. V. sufficiently firm for habitation ; 25 but it does not include shoals. By the 9th Geo. II., c. 5, a jurisdiction of four leagues from the shore is assumed by the British Government for revenue purposes, so that foreign goods transhipped within those limits are subject to the payment of duties. Presumption yj % Being "a claim of private and exclusive property over a subject where a general, or, at least, a common use is to be pre- sumed," says Sir William Scott, " the general presumption certainly bears strongly against such exclusive rights, and the title is to be established on the part of those claiming under it in the same manner as all other legal demands are to be substantiated by clear and competent evidence." 26 Still thej)roperty in whole seas have at various times been claimed by various nations. Thus the pos- session of the Indian seas was claimed by Portugal, while the Venetian republic asserted similar pretensions to that of the Adriatic, the Ottoman Empire to the Black Sea (subsequently renounced by the Treaty of Adrianople in 1829), and Denmark to the Baltic. close and VII. The question of mare clausum and mare apertum was formerly one of considerable interest, and occupies a large place in the writings of jurists. It may generally be stated, that while the sea (subject to the exceptions first mentioned) is for the most part open and common to all nations, as to certain parts the general right may be modified by compact and usage. Even Grotius, the stout advocate of the general right, is forced to admit that this is authorised by numerous passages in ancient writers, to whose au- thority on other subjects he is, in Mr. Bentham's opinion, always too ready to defer. 27 Father Paul Sarpi, the well-known historian of the Council of Trent, vindicated the claim of Venice to the supremacy of the Adriatic; and Bynkershoek (no mean authority) acknowledges that certain portions of the open sea may become the property of a State, grounding his denial of the claims of England to the Four Seas simply on the fact of a deficient length of pos- session. 28 Vattel, too, asserts that tacit agreement, evidenced by a non-usage of the general right, may confer property or dominion in a sea. 29 JiveSSd n VIII. Secondly, as to rivers and lakes. These,, when wholly in- lakes. eluded within the territory of a State, are its exclusive property, and every State is considered as possessed of so much of a river as flows through its territories. If the river divides two States, the mid-channel is considered as the boundary line, unless prior occu- pation has given to the one or the other the right of possession to the whole. In the case of rivers flowing through several States, all the nations inhabiting its banks possess the right of navigating 25 The Anna, 5 Rob. 385. 28 Quest. Jur. Pub. II. 21. 26 The Drie Gebroeders, 5 Rob. 339. 29 Liv. I. xxiii. 286. 27 Prin. Morals and Leg. XIX. 29. SEC. V.] PACIFIC RIGHTS OF NATIONS. 31 it for commercial purposes. This is what is called an innocent use^ and is considered to be subject to the convenience and safety of any State which its exercise may affect. This innocent use appears to involve the right of doing whatever is necessary to its enjoy- ment, such as mooring vessels to the banks, landing cargoes, &c. ; but usually these, as well as the general right itself, are settled and determined by convention. IX. The right of navigation to which we allude may be re- River nounced by treaty, as was the case in the Treaty of "Westphalia, conations, whereby the navigation of the Scheldt was closed in favour of the Dutch provinces. The Treaty of Vienna, in 1815, declared that the commercial navigation of the great rivers of Germany and ancient Poland should be open, provided that the regulations of the police were observed. These, it further declared, should be uniform, and as liberal as possible to the commerce of all nations. 30 2. International Pacific Rights of Nations. Having discussed those rights of nations which are intrinsic arid international result from their character as nations, we Jmve_now_to_consider "ftions/ such rights as are properly international, and originate in their mutual relations, and these are the rights of legation and the rights of negotiation arid treaties. RIGHTS OF LEGATION. I. Every independent State, or, with Rights of the permission of its superior, every demi or quasi independent reeding*"* 1 State, has the right of appointing and receiving diplomatic agents, diplomatic During the time of the Germanic Empire, the German princes, whose independence was not absolute, enjoyed it, as formerly did the Dukes of Courland ; whilst, since 1774, the Hospodars of Wallachia and Moldavia, has each had his Charge d? Affaires at Constantinople under the protection of the law of nations, and possessing the diplomatic character recognised by that law. The laws of each State respectively indicate the person or body by whom diplomatic agents are to be named, and to whom they are to be accredited, and they may also specify the terms on which they will be received, e. s - 32 Vattel, II. xiv. 207. 1 Wheat. 34 1 Wheat. 291. 290-1. 35 1 Wheat. 192. 33 Vattel, II. xiv. 209. II. i. 3. 34 PACIFIC RIGHTS OF NATIONS. [SEC. V. treaties so far as they are lawfully made are obligatory on the State. When the treaty requires the payment of money to carry it into effect, the legislature are morally bound to pass the law, because to the performance of the treaty the public faith has been pledged by competent authority. In such a case, however, it is usual for the British Government to stipulate in the treaty that the crown will recommend to parliament to vote the necessary monies. If the treaty involves an alienation of the public domain, whether it be public or private property, it would seem to be obligatory on the party so contracting, provided it were negotiated by those clothed by their respective States with the whole treaty-making power. And thus in a case decided by the Supreme Court of the United States, it was held as a clear principle of national law that private rights might be sacrificed by treaty to secure the public safety ; although it was admitted and Grotius is an authority on the point that the Government would be bound to compensate the individuals whose rights might be surrendered. 36 The fundamental laws of a State may deny to the treaty-making power the right of thus alienating the public domain ; in such a case the whole treaty- making power is not intrusted to one department of the State, and no treaty involving such an alienation would be obligatory, unless it were ratified by the legislature. Commercial treaties often require legislative sanction ; and the commercial treaty of Utrecht, between France and England, was never carried into effect, parliament having rejected the bill necessary for that purpose. Transitory yj Compacts between nations are either transitory covenants (pacta 'iransitoria) oTtreaties ( feeder a)* properly so called. When a transitory covenant has been fulfilled, and has continued without being renewed, or its future duration has been defined by the con- tracting parties, it still continues in force. Change in the person of the sovereign, the form of the government, or the sovereignty of the State, does not impair its validity, if any one of the parties do not violate it. A war only suspends a convention of this kind, and the return of peace restores its operation. Such are treaties of a first boundary or exchange of country, &c. 37 obligation of Treaties cease to be obligatory when the sovereign power with ceased VS '" whom they were made ceases to exist when one of the States con- tracting changes her internal constitution so as to render the treaty inapplicable to her condition and when a war breaks out between the parties. These two last rules are subject to excep- tions. As to the first : Heal and Jurists distinguish between real and personal treaties. Personal personal "~7T- i i f ' " i 7 1 * " T /. . -,- treaties. treaties depend for their continuance on the person of the sove- reign, or ruler, or his family. The former bind the State. The 36 Ware v. Hylton, 3 Dallas, Amer. 87 Martens, Precis, I. i. 7. Vattel, Rep. 199, 245. Grotius de Jure Belli et II. xii. 192. 1 Wheat. 296. Pads, III. xx. 7. covenants. SEC. V.] PACIFIC RIGHTS OF NATIONS. 35 death of the ruler, extinction of his family, or the severance of his or their political connection with the State, dissolve the latter. Political revolutions do not affect a treaty which is real. 38 The reader is referred to the Essay on Diplomacy, already men- tioned, for further information connected with this subject ; the ceremonial etiquette connected with legations is therein fully de- tailed and explained. 38 Martens, Precis^ ib. 5. * SECTION VI. BELLIGERENT EIGHTS OF NATIONS. Theja/w of nations recognises the right of independent States nations ' ret ^ ress their injuries or vindicate their dignity, by having re- course either to Reprisals or to War, and prescribes the limita- tions arid conditions, subject to which this right is to be exercised. Reprisal. 00 REPRISALS. 1 These are of two kinds: negative, when a State refuses to fulfil its obligalions, or to permit another nation to enjoy rights which it claims. They are positive., when they consist in seizing persons and effects belonging to the other nation in order to compel them to give satisfaction. 2 Reprisals may also General. be either general or special. They are styled generaTwhen. a State, which has, or supposes it has, received an injury from another, formally commissions its subjects to take the persons and property of the other State wherever they may be found. " I do not," said De Witt, " see any difference between general reprisals and open war." 3 They are, in fact, according to modern usage, the first step taken at the commencement of a war, and considered equivalent to a declaration of hostilities, unless an immediate Special. satisfaction is made by the other State. 4 Special reprisals are where letters of marque are granted in lime of peace to individuals who have suffered an injury from the Governments or subjects of another nation. These were common in very early times in England, and were specially authorised by the 4th Hen. V., cap. 7. 1 Many writers on the law of na- xviii. 339-41 ; 2 Wheat. 4. Recipro- tions have discussed, in connection city or mutuality has always been with this subject, the law of retalia- esteemed as one of the leading prin- tion, lex talionis. This is not, how- ciples of justice in questions arising ever, a sanction of the law of nations, between nation and nation. Tfte Giro- as it is not a punishment for the vio- lamo, 3 Hagg. 185. lation of any principle of that law. 2 2 Wheat. 5. Retaliation ensues the breach of what 3 Vattel, II. xviii. 345 n. are called imperfect obligations, and 4 Per Lord Mansfield, Lindo v. Rod- which do not justify a resort to forci- ney, ut cit. The Syracusans, in the ble measures. Where a State, for in- time of Dionysius the Elder, voted a stance, is guilty of the breach of a declaration of war, and immediately simple custom, or establishes some seized the Carthaginian property in partial right or law prejudicial to for- their warehouses, and the Carthagi- eigners, the State whose citizens are nian ships in their ports, and then sent prejudiced retaliates by exposing the a herald to Carthage to negotiate. c'tizens of the offending State to simi- Mr. Mitford considered this a breach lar disadvantages. This is amicable of the law of nations. Hist. Greece, retaliation (retrosion de droit). ^].ar- v. 402-4. tens, Precis, VIII. i. 2. Vattel, II. SEC. VI.] BELLIGERENT RIGHTS OF NATIONS. 37 They have been regulated by treaties ; by those of Munster be- tween Spain and Holland in 1648 ; by those between England arid Holland in 1654 and 1667; by that of Ryswick in 1697; and of Utrecht in 1713 ; by the French Ordinance of Marine in 1681 ; by the Articles of Confederation of the United States of America in 1781, and by the treaty between that republic and the republic of Columbia in 1825 (1 Kent, Comm. 61). This kind of reprisals in time of peace has, however, been condemned gene- rally by the jurists, and has fallen into almost total and deserved disuse. The effect of the confiscation of the property of a foreign state antecedent to an open rupture is ably explained by Sir W. Scott, on occasion of an embargo laid on Dutch property, after the breach of the treaty of Amiens in 1803, under circumstances which Great Britian considered an hostile aggression on the part of Holland: The seizure, he said, was at first equivocal, arid if the matter in dispute had terminated in reconciliation, the seizure would have been converted into a mere civil embargo and so terminated. Such would have been the retroactive effect of that contrary course of circumstances. On the contrary, if the transaction end in hostility the retroactive effect is exactly the other way. The Boedes Lust, 5 Rob. 246. (ii.) WAR is defined by Yattel, as " that state in which we pro- War. secute our right by force." It is witli public war alone (that is, Dehnitlon - war carried on between independent nations) that the law of nations concerns itself. It may be perfect or imperfect, civil or national, Its kmds offensive or defensive. I. A perfect war is, where a whole nation is at war with_a whole nation, and all the members of one are presumed engaged in hostilities against all the members of the other. An imper- described. feet war is limited, as to persons, places, and things, as was the case with the hostilities authorised by the United States against France in 1798. 5 A civil war is a war between members of the same State, and, according to Grotius, is a public war, as far as the Government is concerned, and private on the part of the insurgents. A national war is a war between nation and nation, undertaken and carried on by the authorities, according to the political organization of the nation, constitutionally competent so to do. 6 A war is offensive on the part of the sovereign who commits the first act of violence against the other. It is defensive with him who receives the first blow. The sovereign power is alone possessed of authority to make war ; a civil war of course does not fall within this observation. 7 II. As far as the law of nations is concerned, every war com- Just wars, menced and prosecuted in form, and consistently with its principles, * 2 Wheat. 10. Martens, Precis, VIII. ii. 1. 7 Vattel, III. i. 4^ 38 BELLIGERENT EIGHTS OF NATIONS. [SEC. VI. is just. The right of determining under what circumstances it shall take up arms is the natural prerogative of every State, and is incidental to its right of independence. The law of nations simply regulates this right by prescribing the mode in which it shall be exercised. Declaration HI. The custom of making a declaration of war to the enemy, previous to the commencement of hostilities, is of great antiquity, and was practised even by the Romans. 8 Louis IX. would not attack the Sultan of Egypt until he had sent him a herald to announce his intention of doing so. The earlier jurists, with the exception of Bynkerslioek, generally consider a war, undertaken without this previous declaration, to be contrary to the law of nations, 9 and Grotius bases its necessity, not on the ground that an enemy may be put on his guard, but that it may be clear that the war is undertaken, not by private persons, but by the authority of the community. 10 Since, however, the peace ofJ^ereaUleSjJa^ 1763, such declarations have been discontinued, and the present usage is, for the State with whom the war commences to publish a manifesto within its own territories, communicating the existence of hostilities, and the reasons for their commencement. 11 The publication of this manifesto was looked on as so essential, that nations have demanded a restitution of everything taken before such publication ; 12 but although this publication is usual, as being necessary for the direction of the subjects of the belligerent State, 13 it may be questioned whether its omission would have such an operation. 14 When_war has oncejaeen declared, whether by^ma- nifesto or by acts equivalent thereto, it is a war not simply between Governments in their political capacities, but binding on their subjects. 15 confiscation ly. A nation in a state of war is considered authorised r on general property. principles, to seize the persons and confiscate the property of the enemy's subjects being within its own territory. 16 This is a prin- ciple which modern usage has practically modified to a considerable extent. Grotius himself considers that, as far as respects debts due to private persons, the right of demanding is only suspended by the war. Vattel, while admitting the general principle, qualifies it by the exception of immovable property (les immeubles), 8 Cicero, De Off. I. 12. Dig. the existence of a war between both XXIX. xv. 24. countries. The Eliza Ann, &c., 1 Dods. Grotius, De J. B. et P. I. iii. 4. 247. Puffendorf, VIII. vi.9. Vattel, III. iv. 12 Martens, Precis, VIII. ii. 4. 66. Bynkershoek, Quest. Jur. Pub. I. 13 2 Wheat. 11. 12. See Sir William Scott's Judgment u 2 Kent, 54. See 3 Campbell, 66. in The Nayade, 4 Rob. 252. Tlie Herstelder, 1 Rob. 114. 10 De J. B. et P. III. iii. 11. 15 Vattel, III. v. 70. 11 1 Kent, 54. War may exist be- 16 Martens, Precis, VIII. ii. 5,quoting tween two countries, without a decla- Grotius, Puffendorf, and Wolf. Finch, ration of war on either side. A uni- Law, 28. lateral declaration of war is proof of SEC. VI.] BELLIGERENT 11IGHTS OF NATIONS. 39 held by the enemy's subjects within the belligerent State, and which, having been acquired by the consent of the sovereign, cannot be sequestrated without a breach of faith. Debts and other things in action, he holds liable to seizure. He at the same time admits that " at present the advantage and safety of commerce have induced all the sovereigns of Europe to relax from this rigour. The State does not touch even the sums which it owes to the enemy; everywhere, in case of war, the funds confided to the public are exempt from seizure and confiscation." In the absence of express convention, by which this matter is sometimes regulated, the modern rule, according to Dr. Wheaton, is, that neither the property of the enemy within the belligerent State, nor the debts due to his subjects, are confiscated on the breaking out of war. 17 Jn England it has been usual, in maritime wars, for the govern- ^ ralty ment to seize and condemn, as droits of Admiralty, the property of the enemy found in her ports at the breaking out of hostilities ; but as to the debts due to his subjects, we consider them as only suspended by the war, and as restored by the peace. 18 Our ancient law was, however, much more liberal than this, 19 and, in com- paratively modern times, the subjects of an enemy " residing here and demeaning themselves dutifully, and not corresponding with the enemy," have been, with their effects, taken under the special protection of the crown. 20 V ItjVOJlldjy:)]^ Persons are subject to reprisals as well as the natives." The nature of domiclled - the residence which constitutes the domicile is determined in several cases decided by our courts. 22 If a person during hos- tilities enters a house of trade in the enemy's country, or con- tinues a connection with such during war, his residence in a neutral country will afibrd him no protection. 23 VI. There js no principle of international law more undoubted Trade with than that which proTnbTts all trade between belligerent nations, unlawful, unless authorised by their Governments, 24 as it renders void all commercial contracts between subjects of the same. A remittance of supplies to a colony during its temporary subjection to an enemy is equally prohibited, although permission had been given to export the produce of that colony. 25 Numerous expedients have been resorted to by English merchants to evade the operation 17 2 Wheat. 18. 22 The Harmony, 2 Rob. 324. The 18 The Hoop, I Rob. 196. Exparte Indian Chief, 3 Rob. 12. La Virginie, Bousmaker, 13 Ves. Jun. 71. Furtado 5 Rob. 99. v. Rogers, 3 B. and P. 191. The 23 2 Wheat. 70-1. T/*e CVtfo, 3 Rob. Nuestra Senora de los Dolores, Edw. 60. 38. The Portland, ib. 41. 19 See Magna Charta, ch. xxx. and 24 The Hoop, ut cit. ante. The 27 Edw. III. stat. ii. cap. xvii. 1 Hale, Jonge Pieter, 4 Rob. 83 ; Potts v. Bell, Pleas of the Crown, 93. Bro. tit. Pro- 8 T. R. 548. perty, pi. 38. 25 1 Kent, 61. The Bella Giudita, 20 Foster, Crown Law, 183. 1 Rob. 207. 21 Grotius, De J. B. et P. III. ii. 7. 40 BELLIGERENT KIGHTS OF NATIONS. [SEC. VI. of this rule; but they have been effectually defeated, by the determination of our municipal courts to enforce it with the utmost strictness. 26 even by The rule extends equally to allies : "Between allies," says Sir William Scott, " it must be taken as an implied, if not express contract, that one State shall not do anything to defeat the general object. If one State admits its subjects to carry on an uninter- rupted trade with the enemy, the consequence may be, that it will supply that aid and comfort to the enemy which may be very in- jurious to the protection of the common cause, and the interest of its ally." 27 This prohibition operates of course no further than the necessity which justifies it. and has no existence when the trade is of such a nature as can in no manner interfere with the common operations, or when it has the allowance of the con- federate state. War : its VII. The modern law of nations prohibits those barbarous cus- toms which distinguished the warfare of early times. Considering war simply as a means to protect nations in the enjoyment of their just rights and lawful possessions, it condemns all cruelty not absolutely necessary to secure that end. If to anything further than the progress of civilization, and the more general appreciation of the dictates of natural justice, consequent on the diffusion of a purer and sincerer spirit of religion, the benevolent aspect in which war is thus regarded may be ascribed with some propriety to the influence which the writings of Grotius have exercised on inter- national law. Even against the language of some of those autho- rities, in whom his confidence has been esteemed too implicit, this great and eminently wise publicist has protested, in eloquent terms, against those practices which the customs of the times had sanc- tioned, and which regarded war as incompatible with moderation, and a regard to the maxims of ordinary humanity. It is in a different spirit that M. Guichard remarks, " Ce droit des gens, quoiqu'en aient ecrit les Grotius, les Puffendorf, les Burlamaqui, &c., ce droit si beau en theories, ne cede que trop souvent, dans la pratique, a un droit bien plus certain et bien plus positiff, celai du plus- fort" Code des Prises, i. xiii. Wolf and Bynkershoek, antecedent to^his age, considered that no measures which "could injure an enemy were improper ; but these writers, however highly esteemed on otTTel^oTnTsTTTave not in this prevailed ; and a dis- position has been constantly manifested, by the enlightened nations of Europe, to mitigate the horrors of hostilities, as far as is con- sistent with the occasion which produces and justifies them. The laws of war will now occupy our attention. Laws of VIII. Ijjsjiow universally agreed, that hostilities can bejinder- taken by none who are not lawfully authorised thereto by the 26 Chitty, Law of Nations, p. 13, 15. 27 The Neptunus, 6 Hob. 406. SEC. VI.] BELLIGERENT RIGHTS OF NATIONS. 41 supreme power of the State to which they belong. This does not of course prohibit the subjects of a State, when attacked, de- fending themselves ; 28 but it has been contended, though on what principle of justice does not appear, that even such would be treated by the enemy with more rigour than those acting under the express orders of their sovereign. 29 Captures, however, made by___a private armed vessel, without a commission, are not considered as piratical ; but the property seized does not pass to the captors, and with us is condemned to the crown, 30 as prize of war, or, as it is styled, droit of Admiralty. The same result follows when vessels commis- sioned against one power seize the property of another, with whom war afterwards breaks out. This probably arises from the recognised distinction between maritime and land warfare ; but it does not appear to have been approved by Sir Matthew Hale. 31 Modern writers 32 have deprecated the employment of privateers ; that is, private cruizers commissioned by the state. 33 The question of the liability of the owners and officers of privateers in damages for illegal acts, beyond the security given, 34 is a question of municipal and not international law, and therefore cannot properly be dis- cussed here ; so likewise is their interest in the captures made.' d5 It seems to have been settled, that a cruizer commissioned by two Privateers. powers is to be treated as a pirate, even although the two powers are allies, 36 and many States have prohibited their subjects from aiding in any way the fitting out of private vessels, intended to cruize against the subjects of friendly powers. The French Marine Ordinance of 1681 considered such an act as piratical. (Guichard, Cod. des Prises, i. 4, 1 Kent, Comm. 100.) 28 Vattel, III. xv. 223. Vattel trade of privateering, should it comply ( 225) considers this to be a rule re- with certain formalities, a body politic lating rather to public law in general and corporate, and conferred on it the than to the law of nations properly so ordinary corporate powers, 1 Kent, called ; but unquestionably it is a rule 98. ri. adopted by the law of nations, by 33 " The privateers in our wars are which it is enforced, as is apparent like the Mathematici of old Rome, a from the difference of treatment to sort of people that will always be found which unauthorised belligerents are fault with, but still made use of." Sir exposed from that which the regular Leoline Jenkin's Works, ii. 174. combatants are subjected. 34 1 Kent, 98-9. 29 Martens, Precis, VIII. iii. 2. 33 Vattel, III. xv. 229. The Elsebe, 30 Viner. Ab. Prerog. N. 3. pi. 22. 5 Rob. 173. At common law it would 31 Hargrave, Law Tracts, 246. seem that the whole seizure went to 32 Dr. Wheaton takes credit to the the captors : "goods that belong to an United States for having, by treaty alien enemy, anybody may seize to his with Prussia, in 1785, agreed in no own use," Finch, Law, 17 and per future war with that power to employ Wright J. Murrough v. Comyns, 1 Wil- privateers. It appears, however, that son, Rep. 213; but see Home v. Lord the privateering system has been car- Camden ; 1 H. Bl. 476 and 2, ib. 533. ried further by America than any It is usual to require of the owners other power, for, during the war with of privateers severally, that they will Great Britain, the legislature of New conduct their cruizers according to the York passed an Act which constituted laws and usages of war and the instruc- every association of five or more per- tions of the government. 1 Kent, 97. sons desirous of embarking in the 36 Sir Leoline Jenkin's Wbrks,utcit. 42 BELLIGERENT RIGHTS OF NATIONS. [SEC. VI. Unlawful IX. The law of nations prohibits as unlawful the use of certain ms> * modes of warfare, such as poisoning, 37 assassination, and, according to Martens, the loading of cannon with nails, pieces of iron, &c. 38 The same writer considers as properly exempt from the extremities of war, children, women, old men, and others incapable of bearing arms, and such retainers of the army as are not employed in actual warfare ; 39 and also soldiers and others actually so employed, who have submitted, and entreated quarter. A_lP_these_last, he contends that their treatment will be subject to three considera- tions : i. Whether sparing their lives will be consistent with the safety of the conqueror ? ii. Whether he has a right to subject them to the lex talionis? 40 iii. Whether they have become his captives through their commission of a crime worthy of death, or whether they are spies, &c. ? Distinction X. The distinction to which we have before alluded is founded on maritime tne circumstance, that the presumed object of maritime warfare is and land " the destruction of the enemy's commerce and navigation the sources and sinews of his naval power, which object can only be attained by the capture and confiscation of private property ;" while the object of wars by land is treated as being " conquest, or the acquisition of territory, to be exchanged as an equivalent for other territory lost." In this latter, " the regard of the victor for those who are to be, or have become, his subjects, naturally restrains him from the exercise of his extreme rights in this particular." 4l Prisoners of XI. A prisoner of war is entitled to protection and good usage, but may be strictly confined if he attempt to escape. Officers are frequently liberated on their parole, or word of honour, that they will not serve against the power by which they are released during the war, or during a stipulated time. The exchange of prisoners Exchange of during the continuance of hostilities is a practice common to all prisoners. civilized States. 42 The persons of artisans, labourers, merchants, and persons whose occupations are peaceful, it is customary to respect. XII. As to the enemy's property : In the rigour of interna- tional law, to capture or destroy this is lawful ; but this rigour has been modified by the humane usages of nations, which have acquired the force and obligation of laws. The distinction must not, how- ever, be forgotten between hostile operations conducted on land or 37 Armis bella non vcnenis, gerere de- but Sauvery de Mauleon reminded him bere. Val.Max.,\\. v. 1 ; and see Vattel, of the probability that such treatment whose observations are more than would at a future time be retaliated usually indistinct, III. viii. 155. on his own officers. Lingard, Hist. 38 Martens, Precis, VIII. iii. 3. Eng. iii. 1, (new edit.) Compare 39 Ibid. 4 ; Vattel, ut cit. sup. 145 ; Kutherforth, Hist. Nat. Law, with Ed. Rev. No. 15, p. 13. Martens, Precis, ut sup. cit. 5. 40 When King John, in 1215, took 41 2 Wheat. 84-5. the castle of Rochester, which had re- 42 Vattel, III. viii. 153 ; Martens, sisted his assaults for a long period, ut cit. he ordered the garrison to be hanged, SEC. VI.] BELLIGERENT RIGHTS OF NATIONS. 43 at sea. It is in land warfare that the progress of civilization has at sea; the most decisively manifested itself. XIII. Thereligious edifices, works of art, repositories of sciences, and public buildings of a decidedly civil character, belonging to an enemy, are considered as sacred from spoliation and destruction by the customs of all enlightened nations. 43 Private property on land on land. is also respected, subject to certain occasional exceptions : i. Pro- perly taken from the enemy in the field, ii. Property in a town taken by storm, after having repelled all overtures for a capitula- tion ; and iii. Contributions levied by a belligerent, for the support of his army and towards defraying the expenses of the war. 44 In a case of extreme necessity, it is lawful to devastate and lay waste an enemy's territory, and to destroy all buildings, &c., therein as far as is requisite for the success of military operations, but the lawfulness of such proceedings is limited by that necessity in the view of all communities. 45 A departure from these rules will be Retaliation, justified, it is thought, by the lex talionis, which is considered to exercise a vast influence in modifying the humane usages of modern warfare. XIV. When the capture has been effected, the title to the pro- Captures. perty so captured is considered, as between belligerents, to pass from the original owner to the captors. The law of rule is, that the transfer is effected by occupation. Occupations dominium prcedce hostibus acquiri. 46 A possession for twenty-four hours is, according to Grotius 47 and others, essential to this transfer ; and although Bynkershoek 48 does not concur, this appears to be sanc- tioned by modern authority. 49 XV. Injhe case of ships and goods taken at sea, the title does not pass until the validity of the capture has been affirmed by a com- petent prize court of the captor's Government, 50 sitting in its own prize courts. country. 51 By the practice of Great Britain and the United States, their prize courts may try captures, which have been carried into neutral ports. 52 When the capture has been effected within, or by vessels fitted out within the territorial limits of a neutral State, the tribunals of that State have jurisdiction to try the capture, and 43 Vattel, III. ix. 168. In the case of ut cit. sup. 1 65, 2 Kent, 92 ; 2 Wheat, the Marquis de Somerneles, (Stewart's 81. Vice Ad. Rep. 482,) the Vice-Admi- 45 Kent, ut cit. sup. ralty Court of Halifax restored to the 46 Voet. ad Pandect LI. i. passim. Academy of Arts in Philadelphia a Goss v. Withers, 1 Burr 683. case of Italian paintings and prints, 47 De J. B. et P. III. vi. 3 ; and captured on their passage to the United Vattel, III. xii. 196. Martens, Precis, States by a British vessel in the war VIII. iii. 11. of 1812, " in conformity to the law of 48 Quest JUT. Pub. I. iv. nations, as practised by all civilized 49 2 Wheat. 88-9. countries," and because " the arts and * 2 Kent, 102. sciences are admitted to form an ex- 51 2 Wheat. 89-90. The Flad Oyen, ception to the severe rights of war- 1 Rob. 134. fare." 1 Kent, 93. 52 The Henrick and Maria, 4 Rob. 43. 44 Martens, liv. VIII. iii. 9. Vattel, 44 BELLIGERENT RIGHTS OF NATIONS. [SEC. VI. some, as the price of the permission they afford belligerents to bring their captures into their ports, have, by their municipal laws, reserved a right of adjudicating on such captures, when the original owners of the captured property have been their subjects, and of restoring the property to them. 53 The right of condemning prizes is one that no neutral State can concede to a consular tribunal sitting within her territories. 54 The sentence of a competent prize court renders the title of the captor conclusive, as far as personal property is concerned. 55 The distribution of this property is a matter regulated by the internal laws of every State. Whatever is captured is, in intendment of law, captured by the State; bello parta cedant reipublicce although the common law of England considers it otherwise. j us XVI. The law of Postliminy is one of the few portions of the Postiiminii. Roman Jus Petiole which has descended to us. By this law, accord- ing as it is at present understood, if a vessel, even although it has been two or even four years in possession of the captors, be recap- tured before condemnation, by a ship belonging to the country of the original owners, these may claim its restoration, on paying a proper salvage to those by whom the recapture has been effected. 57 The operation of this law, as far as concerns cases arising between her own subjects, or between her own subjects and those of such of her allies as evince a disposition to a reciprocal liberality, has been extended by Great Britain to any recaptures effected during the war, and without regard to any sentence of condemnation having passed. 58 The right of postliminy takes place only within terri- tories of the captor's nation, or its allies, and does not include neutral countries. 59 It is, however, in reference to real property that an allusion to this law is chiefly necessary ; and it is this law which avoids, on the return of peace, all alienations of such pro- perty, by a belligerent State, in occupation of the enemy's country. To impart stability to them, they must be confirmed by the treaty of peace. Good faith XVII. The observance of good faith to an enemy is one of thjose e^emy! an duties on the obligation of which all jurists unite, and one which it is the obvious interest of all belligerents to practise. 60 XVIII. In concluding this review of the laws of war, it is neces- sary to consider those relaxations of their rigour, which are familiar 53 2 Wheat. 91-4. 54 2 Ibid. 94. 58 13 Geo. II. cap. iv. ; 17 Geo. II. 55 The Schooner Sophia, 6 Rob. 142. cap. xxxiv. ; 19 Geo. II. cap. xxxiv. : This was a case where a prize had 43 Geo. III. cap. clx. The Santa Cruz, been transferred to a neutral, and a 1 Rob. 50. As to the salvage payable, peace was concluded, without a sen- Chitty, Law of Nations, 104-7. For the tence of condemnation having been law of the United States, see 1 Kent, passed. The transfer was held valid. 112. 56 Martens, Precis, VIII. iii. 10. 59 1 Kent, 109. v The Constant Mary, 3 Rob. 97, n. 60 Grotius, De J. B. et P. III. xix. The Huldate, ibid. 235. SEC. VI.] BELLIGERENT RIGHTS OF NATIONS. 45 to modern, and in some degree even to ancient practice, i. A truce Truce, is a suspension to hostilities, either for a long or indefinite period, or sometimes only as to a portion of the military operations. The authority to effect the former is not always implied in the authority of the commanders, but usually so as respects the latter. When- ever effected, a truce is obligatory on all the subjects of the belli- gerent States, after it has been duly promulgated, ii. The right to effect capitulations for the surrender of fortresses, &c., is involved in the authority committed to every commander by the terms of his commission, iii. Passports, safe-conduct, and licences, are Passports. granted in war, for the protection of persons and property. XIX. Licences to trade 61 are the most important of these. Grotius Licences t considers that the interpretation to be put on such permissions trade ' should be liberal rather than strict, laxa quam stricta interpretatio admittendq est, 6 ' 2 but Sir William Scott adopted a different prin- ciple, and considering a licence as a high act of sovereignty, and consequently stricti juris, concluded that it a must not be carried further, than the intention of the great authority which grants it may be disposed to extend." It is not, however, " to be construed with pedantic accuracy," nor should " every small deviation be held to vitiate it. An excess in the quantity of goods permitted might not be considered as noxious to any extent : a variation in the quality or substance of the goods might be more significant, because a liberty assumed of importing one species of goods under a licence granted to import another might lead to very dangerous abuses." 63 The time mentioned in the licence, except from un- avoidable circumstances, ( The ^Eolus^ 1 Dods. 302 ; Leevin v. Cormac, 4 Taunton, 483.) must not be exceeded/ 4 and the port of shipment therein named is a material point. 65 A greater liberality of construction has been evinced by the courts, when the question has respected the parties for whose advantage the licence has been obtained. 66 It has been decided that a general licence is to be construed so far strictly as not to extend to a protection of an enemy's property, 67 but a licence specifying any flag protects even an enemy's property. 68 The conditions contained in a licence must, to render it valid, be truly and fairly performed ; 69 and it is a per- mission which the war is considered to terminate. 70 In the first 61 Some observations upon Licences 65 The Twee Gebroeders, ut cit. will be found in a supplementary note, 66 Defflis v. Parry, 3 Bos. and Puller, p. 71, post. 3 ; Timson v. Merac, 9 East, 35 ; Rawlin- 62 Grotius, De J. B. et P. III. xxi. sonv.Janson, 12 East; 223; sed contra; 14. The Jonge Johannes, 4 Rob. 263 ; The 63 The Cosmopolite, 4 Rob. 8 ; but Aurora, ibid. 218. when the interests of insurers are 67 The Josephine, 1 Act. 313. involved, our municipal courts are 68 The Hendrick, 1 Act. 322. disposed to construe with liberality 69 Vandyck v. Whitmore, \ East, 475, licences to trade with the enemy. see also 12 East, 302. Flindt v. Scott, 5 Taunt. 674. 70 T/ie Planters' Wensch, 5 Rob. 22. 64 The Cosmopolite, sup. cit. 46 BELLIGERENT RIGHTS OF NATIONS. [SEC. VI. instance it must be granted by competent authority, 71 circum- stances sometimes forbidding property captured at sea to be sent into port. The captor, according to the general law of nations, Ransom. may either destroy or permit the original owner to ransom it. The effect of a ransom is to give, on the authority of the State to which the captor belongs, a safe-conduct to the vessel captured, which will protect it from all cruisers of that State. By the 22 Geo. III. c. 25, British subjects are prohibited from ransoming enemy's property. Rights of XX. We have now to discuss the rights of war as concerns resets neutral nations. Properly " neutral nations are those who in time of neutrals. war do not take any part in the contest, but remain common friends neutrality. f to k tn P art i es ? without favouring the arms of the one to the pre- judice of the other." 72 To be neutral, the nation should give no assistance when she is under no obligation to give it. In what - ever does not relate to war, she is not on account of his present quarrel to deny to any of the parties what she grants to the other. The Eliza Ann, 1 Dods. 245. Such conduct is the very essence of neutrality, and a nation forfeits her neutral character when she Qualified departs from it. It does not necessarily, however, preclude her, if neutrality. so bound by treaty previous to the war, furnishing a belligerent party with a limited succour in money, troops, ships, or munition, or from opening her ports to receive his prizes. From such an obligation she is said to be released if her ally be the aggressor in the war. Bynk. Q. P. J., I. ix. Hostilities cannot lawfully be exercised within the territories of a neutral State, the common friend of both parties. Nor can such neutral state permit, to one or certain of the belligerent parties, the passage of their armaments through her dominions, unless she is prepared to concede a like indulgence to the opponents. Such a preference would destroy her neutrality. Neutrality of XXI. A neutral territory must not be violated for the purposes notTJbe 7 of war. (The Twee Gcbroeders, 3 Rob. 165.) No capture effected violated. within its limits, which are considered as stretching seawards one mile from the mainland ( The Eliza, Ann ut cit., but see H. v. Forty-nine Casks of Brandy, 3 Hagg. 289), is lawful ; and when illegally made, the neutral State is bound to restore it to its original owners. Nor can such capture be lawful when made by a vessel hovering at the mouth of the river, or bays, or round the coast of a neutral. Bynkershoek (I. viii.) has ex- cepted from this rule a vessel chased within a neutral jurisdiction, whither, he thinks, the belligerent may follow and capture her ; but this doctrine, though it has not wanted supporters, is now generally disowned. The Vrow Anna Catherine, 5 Rob. 15, 161-373. 71 The Hope, 1 Dods. 226. 72 Vattel, III. vii. 103. The Rendsborg, 4 Rob. 126. *0-&c* t JJge A.,$ SEC. VI.] BELLIGERENT EIGHTS OF NATIONS. 47 XXIT. The restitution of property, illegally captured within illegal neutral limits, is effected by an application to the captor's Govern- ^{"aT in ment, by the neutral State, as it is her rights, which the law con- states, siders to have been violated, and the hostile claimant has no right to appear for the purpose of suggesting the validity of the capture. XXIII. A belligerent cruiser innocently passing through a Conduct of neutral jurisdiction is not considered to have violated its rights, so " eutr " ls ) - ; -Q __i. towards far as to invalidate a subsequent capture ; and a neutral is not com- belligerents. pelled, in virtue of his neutrality, to deny such a passage, nor even to refuse to a belligerent vessel pursued refuge in its harbours ; but it ought not to permit it to lie there, and wait a favourable oppor- tunity of renewing a conflict. ]t need not deny to such vessel provisions and refreshments, which the law of nations universally tolerates; but no proximate acts of war are in any manner to be allowed to originate on neutral ground. The Anna, 5 Rob. 573. For this reason, when belligerent vessels meet in a neutral port, or one pursues the other there, hostilities cannot be permitted between them during their tarrying; but should one sail, the other must not follow for twenty hours: such at least is the opinion of Professor Martens. Precis, VIII. vi. 6. XXIV. A neutral State that permits the arming and equipment Permission of ships or troops for the purposes of a war within its territory n eutrai m ' violates its neutrality ; 73 but it is no breach of neutrality to suffer a ter ntory. belligerent to bring in his prizes for the purposes of sale. 74 XXV. It may be here remarked that, if a neutral acquiesces in Acquiescence an outrage inflicted on him by one belligerent, the other has a right ^ outra-V" to retaliate ; and that if a deed interdicting a neutral from trading with us, or visiting our ports, is executed upon him, it is an inter- diction he has no right to submit to, because his submission will be our injury. If his submission is the result of favour to the belli- gerent, the neutral becomes constructively a party to the war, and his neutral character with its consequent immunities terminates forthwith. If, on the other hand, it originates in his weakness and inability to resist, we may insist, for our own protection, and without denying to him his neutral character, that what he has suffered from our enemy he may suffer from us, otherwise he would be keeping an open trade with the enemy to our disparagement, and becoming an instrument of its illegal pressure on our re- sources. 75 XXVI. As to the commerce of neutrals, it has been decided/ 6 Commerce that not only has a neutral a right to pursue his general commerce with the enemy, but even to act as the carrier of the enemy's goods, from the enemy's country to his own, without being subject to the confiscation of the ship, or of any neutral goods on board. This is 73 This is forbidden in Great Britain 74 2 Wheat. 148-9. l>y the Foreign Enlistment Act, 59 75 Chitty, Law of Nations, 151-2. Geo. III. cap. GJ. 76 Barker v. Slakes, 9 East, 283. 48 BELLIGERENT RIGHTS OF NATIONS. [SEC. VI. Knemy's <;oods on board a m-utral vessel. Free ships free goods. Neutral uoods in enemies' ships. Contraband of war. a right which was formerly disputed, but which is now universally recognised ; and the neutral owner, when the enemy's goods on board his ship have been seized, is considered entitled, provided his conduct has been fair, to his reasonable demurrage, and his claim for freight. 77 XXVII. That a belligerent is entitled to seize an enemy's goods on board a neutral vessel is an undoubted principle ; 78 if, however, it should appear that the enemy's interest in the goods was only partial, or that they were the joint property of an enemy and a neutral, the share of the neutral will be saved harmless, and that of the enemy alone confiscated. 79 It has been, ho wever, frequent in commercial treaties, to stipulate 80 that free ships shall make free goods, and thus this principle, like many other principles of international law, as we have frequently had occasion to observe, has been modified by convention. XXVIII. The effects of neutrals on board enemies' ships are, upon general principles, considered as exempt from confiscation." 1 XXIX. The freedom of commerce to which neutral States are entitled does not extend to contraband of ivar, such as warlike 77 Vattel, III. vii. 115; 1 Kent, Comm. 125; 2 Wheat. 160-1 ; The Twil- ling Riget, 5 Rob. Rep. 82. 78 Grotius, Ve J. B. et P. III. vi. 6. The papers usually expected to be found on board a neutral vessel are, i. The Passport, Sea Brief ] or Sea Letter, a permission from the neutral State to the master to proceed on the voyage, and indispensable to the safety of every neutral ship. ii. The Proofs of Property to show the ship really belongs to neutrals, iii. The Muster Roll, which indicates inter alia the nationality of the crew, as it is sus- picious if a majority of them are foreigners, still more, if natives of the enemy's country, iv. Charter Parti/. v. The Bills of Lading, vi. The Invoices, which should show by whom the goods were shipped and to whom consigned, vii. The Log Book. viii. The Bill of Health. Marshall on Ins. I. ix. 6. The contrary maxim to that in the text, le pavilion neulre couvre la merchandise, was never heard of until, at the desire of Frederick the Great, M. Michel, the Prussian Minister, in 1752, addressed the memorial, already referred to (and for which see Appendix), to the Duke of Newcastle, which elicited the cele*- brated reply of the English jurists, styled by Montesquieu (Lettres Per- sannes,xlv.),a " reponse sans replique." The doctrines of these latter were ably vindicated by Mr. Pitt, in his speech on the State of the Nation in 1801, and by Lord Liverpool, in an admirable work he put forth upon the subject. They accord with the principles laid down in the Consdato del Mare, and in the writings of Bynkershoek. Vattel, Voet, Zuarias, Locoenius, and Abreu ; and it was in the last degree unbecoming the fidelity of an historian and the dignity of a statesman for M. Thiers to have observed, as he has done, upon the subject. Hist, du Consul, et de V Em- pire, chap. ix. The old French law, as respected neutrals, was much more severe, inasmuch as it admitted eight causes for confiscating vessels, only one of which will avail in English prize courts. See a useful note on the subject. For. Quart. Rev. xxxv. 145. If we are to believe Sir Jas. Marriott, the resistance Prussia offered to the indisputable principle on behalf of which Great Britain contended was due, in some degree, to a sarcasm of Lord Grenville, who declared that he had never heard of the flag of Berlin, and should soon expect to hear of the flag of Frankfort. 79 Tke Franklin, 6 Rob. 127; The Zulerna, 1 Act. 14. 80 This stipulation does not import the converse of the proposition, name- ly, that enemy's ships make enemy's goods. The Nereide, 9 Cranch, Amcr . Rep. 388. 81 2 Wheat. 162 ; 1 Kent, 138. SEC. VI.] BELLIGERENT RIGHTS OF NATIONS. 49 stores and other articles directly auxiliary to warlike purposes. 82 " The catalogue of contrabands/' says Sir William Scott, " 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, which have not accompanied the history of the decisions." 83 Grotius distinguishes between those articles which are useful only for the purposes of war, those which are not so, and those of indiscriminate use in war and peace. With other writers, he agrees in prohibiting to neutrals the carrying of the first to the enemy ; the second he permits ; the third he sometimes permits, and sometimes forbids. Bynkershoek 84 considers that the third ought, under no circumstances, to be considered contraband, and the whole question is involved in much confusion. 85 XXX. The penalty of confiscation for engaging in a contraband Confiscation trade is not held generally to attach, if the t^oods are not taken in ^* uent delictO) and in the actual prosecution of the voyage ; !;G but a different rule is held to apply to cases of contraband carried from Europe to India, with false papers and false destination, intended to conceal the real object of the expedition, where the return cargo, the pro- ceeds of the outward cargo taken on the return voyage, was held liable to condemnation. 87 XXXI. The rule of the ivar of 1756, as it has been called, has Rule of the formed so frequently a subject of controversy amongst publicists war >. 1756 - that it cannot be passed over without remark. Xhe superiority of Britainjas a L naval__power was conclusively established by the" war with France in 1756, when the communication of this latter country with her out-lying possessions was effectually interrupted by our fleets. In order to avert the disastrous consequences with which the French colonies were threatened, their Government permitted a neutral power, the Dutch, to carry on the trade, the advantages of which had previously been enjoyed by the French marine exclu- sively. Some of these Dutch vessels, having been captured, were condemned on the principle stated by the Lords of Appeal in the case of The Whilelmina. 83 " By the general law of natipns^jt is not competent to neutrals to assume in time of war a trade with the colony of the enemy which was not permitted in time of peace," 89 a principle applying equally to all species of trade, whether coasting or colonial. It is considered to be relax e<3, i. When the neutral brings the cargo to her own country. The its reiaxa- Providentia, 2 Rob. 142-197, 138 ; or n. To a neutral colony in tions - the neighbourhood of that where the shipment was made. TJie Hector ', Edw. 379 ; but iii. Not to a neutral port elsewhere. 82 Grotius, De J. B. et P. III. i. 5. 86 The Imina, 3 Rob. Rep. 168. 83 The Jonge Margaretha, 1 Rob. 189. 87 The Rosalie and Betty, 2 Hob. 343. 84 Quest. Jur. Pub. I. ix. 10. 88 4 Rob. App. 4. 85 See Supplementary Essay II. on 89 On this subject, see 2 Wheat, the Law of Contraband, p. 61, post. 225-8. Chitty, Law of Nations, 153-83. E 50 BELLIGERP:NT RIGHTS OF NATIONS. [SEC. VI. The Lucy, 4 Rob. 14. iv. Whilst the geneial principle is not applied to East India Colonies so strictly as to others. The Juliana, 4 Rob. 328. Law of XXXII. "The law of blockade" says Bynkershoek. 90 " is blockade. /. , , ,, i /- i n founded on the principles of natural reason as well as on the usage of nations. In order that this law may apply, (1.) There must be an actual blockade in existence." 9l The mere declaration of a blockade will not suffice. An adequate naval force must be sta- tioned at the blockaded port ; and properly " that denomination is given only where ihere is, by the power which attacks it by ships stationary or sufficiently near, an evident danger in entering." 92 An accidental absence of the blockading squadron, provided the blockade is speedily renewed, forms an exception to the rule, and an attempt to take advantage of the absence to break the blockade is considered fraudulent. 13 ofbi fi ckade XXXIII. (2.) The neutral must have had notice of the exist- ence of the blockade. It is usually notified to all neutral Govern- ments, and " it is the duty of foreign [neutral] governments to communicate the information to their subjects, whose interests they are bound to protect. I shall hold, therefore, that a neutral master can never be heard to aver against a notification of blockade that he is ignorant of it." 94 This is a case where the blockade has been notified to the Government; but if the individual is person- ally informed of it, the consequences are the same. ingress and XXXIV. To enter or quit a blockaded port with a cargo laden after the commencement of the blockade is punished with confisca- tion of the ship and cargo, and the offence is not considered dis- charged until the end of the voyage/ 5 Right of XXXV. The right of visiting and searching merchant ships upon the high seas, whatever their cargo and whatever their destination, for the purpose of seeing what the ships and their destination are, and whether or not they are employed in the enemy's service, (Le Loids, 2 Dods. 244-253) is an incontestable right of the law- fully commissioned cruisers of a belligerent State, nor can even the command of a neutral sovereign justify his subjects in forcibly resisting its exercise ( TJie Maria, 1 Rob. 360). Such resistance is punishable by the condemnation of the ship ( The St. Juan Baptista and La Purissima Conception, 5 Rob, 33) and cargo, and a simple intention to resist will involve the same consequences ( The Maria, ut cit.), but such an intention will not be presumed from a mere attempt to escape a cruiser before possession has been 90 Quest. Jnr. Pub. I. iv. 11. 93 The Columbia, 1 Rob. 154. T/ie 91 The Betsey, 1 Rob. 93. Hoffnung, 6 Rob. 116. 92 Convention of 1801 between rk Per Sir W. Scott, The Nejitunus, Groat Britain and Russia, art. iii. 2 Rob. 112. sec. 4. 95 See Supplementary Essay I. on the Law of Blockade, p. 55, post. SEC. VI.] BELLIGERENT RIGHTS OF NATIONS. 51 had, &c. (The St. Juan, fyc., ut cit.) It is understood, also, that the forcible resistance of an enemy master will not, in general, affect neutral property laden on board of an enemy's ship. 96 We may notice that the English Court of Admiralty held a neutral to have no right to charter and lade his goods on board a belligerent armed merchant ship, without forfeiting his neu- trality f 7 but this is a doctrine which the American Courts have refused to sanction, 2 Wheat. 25. How far neutral vessels under an enemy's convoy are subject to capture is still a moot point. This may be accepted as a statement of those principles to which the Law of Nations is susceptible of being reduced. The plan of this work forbids my entering into details, the discussion of which would have involved me in controversies rather of fact than of law : my object will have been completely answered if the pre- ceding pages should furnish those anxious to engage themselves in such controversies with references to such authorities as may con- duct them to a fortunate result. I am sorry but not afraid to say, however, that England in her external policy has not yet recog- nised practically I mean the full influence of that noblest of ail positive systems of law THE LAW OF NATIONS a system, in the exposition and interpretation of which her tribunals have acquired a universal reputation, and their decisions an authority of judicial weight in the regards of foreign judicatories. 96 The Catharine Elizabeth, 5 Rob. 232. 97 TJie Fanny, 1 Dods. 443. E2 SUPPLEMENTARY ESSAYS, I. LAW OF BLOCKADE. IL LAW OF CONTRABAND. SUPPLEMENTARY ESSAYS. I. LAW OF BLOCKADE. I. A blockade, being a high act of sovereign authority, 1 ( The Right of Henrick and Maria, I Rob. 148), the right of blockade is a ^v severe right, a severe right to be construed strictly, 2 not extended by implication, 3 ( The Juffrow Maria, 3 Rob. 154) and a bel- ligerent right not to be exercised for mere profit or convenience, e. g.. to obtain a commercial monopoly, &c. ( The Fox, Eclw. 320.) II. There are two sorts of blockade, (i.) that by the simple fact Kinds of only, and (ii.) that by a notification accompanied with the fact. blockade - (The Neptunus, 1 Rob. 171, ib. 86.) (i.) In every instance, the blockade must be a blockade in fact, Blockaded i. e., maintained by a force adequate to prevent the ingress and-' 00 ' 1 *" egress of vessels ( The Nancy, 1 Act 57), and a mere declaration of blockade will of itself avail nothing. 4 ( The Betsey, 1 Rob. 93.) Under some circumstances, a single ship, and that even if, at the time, assisting in the blockade of another port, ( The Nancy, ut cit.) or stationed only in the neighbourhood, will be considered as a force adequate to the constitution of a blockade ( The Arthur, 1 Dods. 423), and this also may be the case with a squadron at some distance from the port, provided the distance be not too great to prevent the ships acting upon the commerce of the port. (Naylor v. Taylor, M. and Si. 205.) The extent 5 of a blockade Extent. is limited by the capacity of the force blockading, such points being exempt from the blockade which the power of the blockaders is incompetent to reach. ( The Ocean, 5 Rob. 91. The Stcrt, 4, ib. 66.) On the other hand, at times, a blockade, from the necessity of the case, operates beyond the intention and purposes of the blockaders, e.g., a blockade of the Elbe, which prejudices the commerce of the neutral as well as the enemy's ports in that river, 1 It is however competent to a restitution of a captured vessel. See commander going to distant ports to The Trilieten, 6 Rob. 65. declare a blockade, T/ie Holla, 6 Rob. 4 Thus the commencement of a 364. blockade dates from the assembling of 2 The evidence as to the existence the blockading squadron, and not of a blockade must be clear and pre- from the transmission of the summons cise. The Betsey, ut cit. to surrender. The Naples, 2 Dods. 284. 3 The fact that the continuance of 5 On the subject of the extent of a a blockade is dubious, will, under some blockade, see The Frau Ilsabe, 4 Rob. circumstances, avail in obtaining the 63. The Luna, 1 Edw. 190. 56 LAW OF BLOCKADE. but in such case especial indulgence is invariably shown to the former, when they come under the adjudication of prize tribunals. ( The Spes and The Irene, 5 Rob. 76'.) Blockade by (ii.) A public notification of the existence of a blockade, notification, although usual, is not absolutely necessary to justify the capture of a vessel seeking a blockaded port ( The Mercurius, 1 Hob. 82) ; vessels quitting such a port are always presumed cognizant of the blockade (The Vrow Judith, 1 Rob. 152). It will suffice if notice be given on the spot,.. and even that is unnecessary if it can be shovrn the master was aware of the blockade ( The Columbia, 1 Rob. 156), which he is supposed to be if the blockade had for some time been notified, although, perhaps, not to his own Government (The Adelaide, 2 Rob. Ill n), or, if the fact of its existence was generally notorious. ( TJie Tutela, 6 Rob. 1 77.) Although such a presumption will at times furnish a primd facie case against the master (The Hurtige Hane, 2 Rob. 128), still the Court will not consider the belief of the captor that the blockade was notorious as sufficient of itself to raise it. ( Tlte Betsey, ut cit.) Where d_ue notification has been given to the master's Government, he is not suffered to allege his own ignorance 6 as an excuse for his violating or attempting to violate the blockade ( The Neptunus, ut cit., 2 Rob. 1 30 ; Medeiros v. Hill, 8 Bing. 231 ), a principle, the severity of which has been somewhat relaxed by our Common Law Courts in favour of commerce, and especially of insurers. Park on Ins. 177, Dagleish v. Hodgson, 7 Bing. 495. Naylor v. Taylor ', ut cit. Even when the notification has been made through the enemy's government, it is not invariably considered invalid. ( The Rolla, ut cit.) It is as well to state, that it is above all things necessary that the notification should, in its terms, 7 be explicit, and indicate with accuracy the precise limits and extent of the blockade, e g., it has been held that the notice of a blockade of the Dutch coast, which does not exist as a fact, is not good notice of an existing blockade of Amsterdam. ( The Henrick and Maria, ut cit.) There is this distinction between a blockade merely de facto, and a blockade notified, that, in the latter case, the bare act of sailing to a blockaded port is a breach of the blockade ( The Neptunus^ ut cit.), but this is a " strict rule " not to be applied " too strictly," a summum jus that is not adhered to with undeviating rigour (ib. The Vrotv Johanna, 2 Rob. 109). It is not applied when it can be proved that there was no premeditated intention of violating the blockade on the arrival of the ship, 8 (Madeiras v. Hill, ut cit.), 6 It is otherwise in the case of a distance of their country precluding blockade de facto. them from obtaining early intelligence 7 Objection to terms of a notifi- as to the continuance or removal of cation overruled, The Rolla, ut cit. blockades in Europe. The Betsey, ut 8 This rule in its severity was not cit. But those were days when At- applied usually to American ships, the lantic steam navigation was unknown. LAW OF BLOCKADE. 57 and perhaps it has been laid down in the books more broadly and positively than consists with the spirit that would be found to govern international tribunals, if another general war should set them in motion. An American (U. S.) ship from Philadelphia, with a contingent destination to Bremen, if not blockaded, was captured during her voyage, under the plea that the blockade of Bremen was known in the United States when the vessel sailed, and that her papers did not clearly disclose the place where the inquiry was to be made, as to the continuance of the blockade. Restitution of the ship was decreed, and the captors condemned in costs, the Lords of Appeal considering, with the British High Court of Admiralty, that Heligoland being the place where pilots for Bremen were always taken in to save insurance, it must be assumed to be the place where the inquiry was purposed to have been made. ( The Dispatch, 1 Act. 163.) European* vessels, sailing with a knowledge of a blockade, will not be permitted, even although the owners should so direct ( The Spes arid the Irene, ut cit.), to proceed to a blockaded port under pretence of learning whether the blockade continued or not; ( The Posten, n. to The Betsey, ut cit), the proper place for the inquiry being some port on the way, or in the blockading country. ( The Betsey, ut cit.) The rule is, however, subject to some important modification, when circumstances require it, and the bona fides of the transaction is made apparent. (The Little William, 1 Act. 141.) A reasonable time is also suffered to elapse after the notification has been given, before its consequences are considered to attach. Upon this point nothing certain can be laid down ; the determination of each case must be governed by its own circumstances. (See the decisions, 1 Eob. 91-334, 2 ib. 131-298, 3 ib. 283-4-6.) III. A blockade having been established, the ingress and egress Breach of of vessels are acts treated as breaches of it for the destruction o f blockade; the enemy's commerce is the very object the blockaders have in view. The legal presumption is, that a vessel entering a port does so for the purpose of disposing of her cargo, and that presump- tion 10 is not removed by her returning with it on board ( The Charlotta, Edw. 252, and see The Alexander, 4 Eob. 93). *y ingress; INGRESS is not permitted even to a vessel in ballast ( The Comet, Edw. 32), and this although her object be to bring away pro- perty which, originally the enemy's, had become that of a neutral before the blockade began (ib.). The ingress may be constructive, as when a vessel enters the roadstead under shelter of the enemy's 9 A vessel sailing after notification wards, because it had been misin- encounters a belligerent frigate on her formed. The Neptunvs, ut cit. voyage to the blockaded port, and is 10 Sometimes mala, fides is practically informed that the port was not block- presumed, even although it is certain aded. Held that although the vessel it does not exist. 1 Rob. 147, and see was liable to capture up to the time it The Adonis, 5 Rob. 256, and The Skep- met with the frigate, it was not after- herdessj ib. 262. 58 LAW OF BLOCKADE. batteries, where large ships are usually unladen by lighters ( The Neutralitet, 6 Rob. 34) ; or when she sails with a proved intention of breaking the blockade ( The Columbia, 1 Rob. 156); or ap- proaches the blockading squadron within reach of capture, under circumstances that should have provoked the inquiry whether or not the squadron was at the time blockading (Naylor v. Taylor, ut cit.) ; or is found in a course inconsistent with her averred destination ( The Mentor, Edw. 207) ; or under other circumstances inviting the suspicion her destination is illegal {The James Cook, Edw. 261); or approaching the blockaded port so that she might slip it un- observed ( The Neutralitet, ut cit.) ; or when she exposes the blockaders to the enemy's fire, although only to obtain a pilot for an innocent port (The Charlotte, &c., 6 Rob. 101-182; 30 Edw. 202) ; or when she carries away cargo that had been brought out to her by lighters through the mouth of a blockaded ri/er ( The Maria, 6 Rob. 201, 204, 394). It. is no breach of a blockade the sending of goods into a port with a view of trans- porting them overland to a blockaded port n ( The Jonge Pietcr, 4 Rob. 79) ; nor the passing through a canal linking two seas, and traversing a blockaded territory, wirh the mere object of shorten- ing a voyage ( The Julia, 1 Dods. 169, n.) ; nor are goods con- demnable, as for breach of blockade, brought overland on neutral account from a blockaded to a non-blockaded port. ( The Ocean, ut cit. and n.) by egress. EGRESS from a blockaded port is primd facie breach of the blockade ( The Frederick Molke, 1 Rob. 88), but it is no In-each (1) if the cargo, before the commencement of the blockade, have been bond fide purchased, paid for, and shipped, or delivered for that purpose on board lighters, but not if kept in warehouses ( The Rolla, ut cit.) ; (2) or if the cargo, having been sent in before the blockade, be withdrawn by the owner, (The Jnffrow Maria, 3 Rob. nt. cit.) ; (3) or if the ship, having entered before, &c., retires in ballast ( The Juno, 2 Rob. 119) ; (4) or if she have been char- tered by the minister of a neutral country to remove home dis- tressed seamen of that country 12 ( The Rose in Bloom, 1 Dods. 58). It is breach of blockade if, after notification given, a neutral in a blockaded prt continues embarking cargo ( the Calypso, 2 Rob. 298, and The Betsey, ut cit.) ; or if, having gone in voluntarily, he therein sells, even by compulsion, his cargo ( The hyjield, Edw. 188), or therein purchases (no matter out of what funds) an enemas ^vessel 13 ( Tlie General Hamilton, 6 Rob. 61), unless it 11 The rule applies vice versa, in 12 But the vessel carrying in addi- cases where goods are sent by interior tion a cargo, both ship and cargo con- cornmunication from a blockaded to "a demned, except as to certain stores for non-blockaded port for shipment to the use of the distressed seamen, the blockader's country. The Stert, 13 A ship coming out in ballast, ut cit. having, while in the blockaded port, LAW OF BLOCKADE. 59 had been originally the property of the purchaser, when the court is disposed to regard the transaction in the light of a ransom or compromise. ( The Rose in Bloom, 1 Dods. 57.) IV. It^ must be remarked that an absolute and unavoidable when necessity, in the nature of an imperative overruling compulsion, excused. will excuse a breach of blockade ( The Ilurtige Hane, 2 Kob. 124), e. g., entering a blockaded port in stress of weather ( The Fortuna, 5 Rob. 27; The Charlotta, Edvv. 252), but ample proof of the necessity must be given ( The Christiansberg, 6 Rob. 378 ; The Elizabeth, Edw. 198), and want of provision is an excuse scarcely ever admissible ( The Fortuna, ut cit.). It is no excuse in breach of blockade by egress that the cargo is intended for the blockader's country ( The Hi/field, Edw. 189), or that there was reason to fear, unless brought away, it would be seized by the enemy ( TJie Wasser Hiindt, 1 Dods. 271 n.) ; but it is an excuse for a ship, coming out with a cargo, that there were appre- hensions of a war between its country and the enemy, and that the enemy's regulations prevented it coming out in ballast. ( The Drie Vrienden, 1 Dods. 269.) V. A blockade is sometimes relaxed in favour of certain flags, Relaxation. but care must be taken strictly to observe the conditions annexed to such a relaxation (see on this head The Success, \ Dods. 131 ; The Sophia Elizabeth, 1 Act. 46 ; The Charlotte Sophia and The Klein Jurgen, ib. 56). The relaxation may also arise from the permission of the blockaders (for an instance see The Courier, Edw. 249) ; or by their remissness, for when ships have been suffered to enter the blockaded port, they cannot be condemned on their egress, though their cargoes will ( The Juffrow Maria and other cases, 3 Rob.]147, 158, 159) ; or by licence, (on the interpre- tation of which see The Byfield and The Juno, ut cit.). VI. The sanctions of the Law of Blockade are the seizure arid Penalties, condemnation of the offending ship and cargo, either or both. Tn order that the cargo should be affected by the conduct of the vessel, it must be shown that the owners of the cargo were aware of the blockade before they laded ( The Mercurius, 1 Rob. 84), unless, indeed, they intrusted the ship's master with discretionary powers as to destination, and he knowingly violated the blockade ( The Columbia, ib. 156), or unless, being also owners of the ship, they have consigned the ship to his order, and he has pur- chased the cargo, or a portion of it, for their account, in which latter case the cargo, or their portion of it, is condemnable ( The Mentor, 1 Act. 60). As a general principle, owners of cargo are liable for the acts of those they employ ( The James Cook, been transferred from one neutral to been purchased by the neutral seller another, no breach of blockade, nor is of the enemy since the commencement the transfer illegal (Tlie Potsdam, ut of hostilities. The Vigilentia, 6 liob. cit.), but it is otherwise if the ship have 122. 60 LAW OF BLOCKADE. Edw. 263) ; but if a master, through perversity, forces a blockade, the cargo, if it have been shipped in ignorance of the blockade, will not be condemned ( The Adonis, 5 Rob. 256), nor will it be if embarked in a blockaded port by agents whose princi- pals were ignorant that the blockade existed ( The Neptunus, ut cit. ; The Adelaide, 3 Rob. 281). The cargo, however, will be condemned, and not the ship, when the latter, suffered by the re- missness of the blockaders to enter the port, is captured on her return. ( The Juffrow Maria, ut cit.) when VII. Capture may be effected (1) when the master, after_being attaching, warned 3 expresses or exhibits an intention of going in ( The Apollo, 5 Rob. 286), (2) at any period of the same voyage as that in which breach of blockade has been committed ( The Welvaart van Pillaw, 2 Rob. 128; 3 ib. 153), (3) even although, on her way home, the vessel puts into an intermediate port (The General Hamilton, ut cit.), (4) provided, at least, the blockade subsists at the time of the capture ( The Lisette, 6 Rob. 387). A ship suffered to quit a blockaded port by the blockaders, on condition she should proceed to a certain neutral port, cannot, although, in breach of such condition, she proceeds to an enemy's port, be law- fully captured, until she have left such port, and then only during her next subsequent voyage. ( The Christiansberg , 6 Rob. 376; ib. 382, n.) A vessel having been improperly permitted by one captor, ignorant of the law, to proceed on her voyage, is not thereby exempted from liability to future capture, as it will be presumed that she, at least, was aware her own conduct was illegal. (The Comet, Edw. 34.) Termination VIII. A blockade may be wholly terminated (1) by the volun- ofbiockade. ^ Y ^. w it n( ] raw al of the blockading force, the presumption being, however, that if a blockade be by notification, it continues until that notification shall have been publicly withdrawn ( The Vrow Johanna, 2 Rob. 109; The Neptunus, ut cit.); or (2^ J>y_the blockading force being beaten off or retiring before the enemy (The Hoffnung, 6 Rob. 116); or (3) by permission of ingress and egress given by the blockaders to unprivileged vessels ( The Fox, &c., Edw. 320). But a blockade is not terminated because the blockading squadron is driven off by accident, shifting (1 Rob. 171), or adverse winds, the suspension and its cause being known (The Frederick Molke, 1 Rob. 87, and see ib. 156); or by its temporary absence, being engaged in chasing suspicious vessels in its neighbourhood ( The Eagle, 1 Act. 65), provided it does not proceed to an improper distance (La Melanie, 2 Dods. 130), i. e., a distance forbidding its maintaining practically the blockade. Under some circumstances, a blockade which has been temporarily raised, may be resumed without the necessity of a fresh notification to affect neutral commerce. (The Hare, 1 Dods. 471 ; see also The Hoffnung, ut cit.) IL THE LAW OF CONTRABAND. Some difficulty having been experienced in determining what articles are, and what are not properly to be considered contraband, a few remarks on the subject will perhaps be desirable. In a treaty between France and the United States of America Contraband (Paris, February 9, 1778), a catalogue of contraband articles was between 5 ^ incorporated, which, as showing the spirit that usually dictates France and conventional arrangements of this kind, may reasonably find a states778. place here : " Sous ce nom de contrebande ou de marchandises prohibees, doivent etre compris les armes, canons, bombes avec leur fusees et autres choses y relatives, boulets, poudre a tirer, meches, piques, epees, lances, dards, hallebardes, mortiers, petards, grenades, sal- petre, fusils, balles, boucliers, casques, cuirasses, cotes-de-mailles et autres armes de cette espece, propres a armer des soldats, porte- musquetons, baudriers, chevaux avec leur e'quipages et tous autres instrumens de guerre quelconques : les marchandises denomees ci apres, ne seront pas comprises parrni la contre-bande ou choses prohibees, savoir : toutes sortes de draps et toutes autres etoffes de laine, liri, soie, coton ou d'autres matieres quelconques, toutes sortes de vetemens avec les etoffes dont on a coutume de les faire, Tor ou Targent monnaie ou non, 1'etain, le fer, laiton, cuivre, airain, charbon, de meme que le froment et 1'orge, et toute autre sorte de bles et legumes, le tabac et toutes les sortes d'epiceries, la viande salee et fumee, poisson sale, fromage et beurre, bierre, huiles, vins, sucre et toute espece de sel et en general toutes provisions servant pour la nourriture de Thomme, et pour le soutien de la vie ; de plus toutes sortes de coton, de chanvre, lin, goudron, poix, cordes, cables, voiles, toiles a voiles, ancres, parties d'ancres, mats, planches madriers et bois de toute espece et toutes autres choses propres a la construction et reparation des vaisseaux, et autres matieres quel- conques qui n'ont pas la forme d'un instrument prepare pour la guerre, par terre comme par iner, ne seront pas reputees contre- bande, et encore moins celles qui sorit deja preparees pour quel- qu'autre usage : toutes les choses denommees ci-dessus devoient etre compris parmi les marchandises libres." l The list of contra- Subsequent band was afterwards enlarged (12 Vent. An. 5), and made to additions - include " des bois de construction : les brais, goudrons et resines ; 1 Guichard, Code des Prises, i. 242. 62 LAW OF CONTRABAND. le cuivres en feuilles ; les voiles, clianvres et cordages ; et tout ce qui sert directement ou indirectement a I'armement et a Tequipe- nient des vaisseaux, excepte le fer brut et le sapin en planches." This modification of the treaty of 1778 was effected by France in consequence of the 18th article of the Treaty of London (Novem- ber 19, 1794) between Great Britain and the United States, in which the catalogue of contraband goods is very comprehensive. 2 Principles of Nowhere do we find the principles of the law of contraband contraband more a kty state( ^ tnan m a judgment of Sir William Scott. 3 " In 1673," he says, " when many unwarrantable rules were laid down by public authority respecting contraband, it was expressly as- serted by a person of great knowledge and experience in the English Admiralty that, by its practice, corn, wine, and oil were liable to be deemed contraband. In much later times, many sorts of provisions, such as butter, salted fish, and silk have been condemned as contraband. The modern established rule was, that generally they are not contraband, but may become so under cir- cumstances arising out of the peculiar situation of the war, or the condition of the parties engaged in it. Among the causes which tend to prevent provisions from being treated as contraband, one is that they are of the growth of the country which exports them. Another circumstance to which some indulgence by the practice of nations is shown, is when the articles are in their native and unmanufactured state. Thus iron is treated with indulgence, though anchors and other instruments fabricated out of it are directly contraband. Hemp is more favourably considered than cordage. Wheat is not considered so noxious a commodity as any of the final preparations of it for human use. But the most im- portant distinction is, whether the articles are destined for the ordinary use of life or for military use. 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 at that port. On the contrary, if the great predominant character of a port be that of a port of naval equip- ment, it shall be intended that the articles were going for military use, although merchant ships resort to the same place. It is the usus bellici which determine an article to be contraband." Catalogue of j n illustration of these doctrines, the following 1 cases are im- goods contra- band, portant : ships of war. I. Ships of War. It having been clearly ascertained that a ship is. in truth, a ship of war, and that it is destined to an enemy's port there to be sold, there can be no question but that it is con- traband ( The Richmond, 5 Rob. 336). Sailcloth. II. Sail Cloth is under all circumstances esteemed contraband. 2 Guichard, ii. 283284. 3 The Jonge Margaretlia, 1 Rob. 189. LAW OF CONTRABAND, 63 III. Pitch and Tar. Pitcli and tar, which are not the produce Pitch and of the country exporting ( The Twee Juffrowen, 4 Rob. 242), or tal which it is shown could not be so ( The Jong e Tobias, 1 Rob. 329), are contraband ; but, in derogation of the authority of the old and severer rule, it has been held that pitch and tar, being Swedish property, and conveyed in Swedish vessels, are not subject to con- fiscation, but simply to the rights of pre-occupancy and pre- emption ( The Maria, 1 Rob. 372 ; The Christina Maria, 4 Rob. 166; The Sarah Christina, lib. 241). On this subject see further The Charlotte, 1 Act. 201, and The Neptunus, 6 Rob. 403. IV. Hemp of an inferior quality, not fit for naval purposes Hemp. ( The Gute Gesellscltaft Michael, 4 Rob. 94), or which is the produce of the exporting country and embarked in its vessels ( The Apollo, 4 Rob. 158), is not considered contraband, but the onus of proving its origin lies with the claimant ( The Evert, ib. 354). V. Timber for the purposes of ship building, within which term Timber. masts are included ( The Sta,adt Embden, 1 Rob. 29), proceeding to an enemy's port (it being a port of naval equipment) is de- cidedly contraband ( The Endraught, 1 Rob. 25). See also The Twende Brodre, 4 Rob. 33, and The Charlotte, 5 Rob. 305. VI. Rosin is contraband if destined for a military port of the R osin. enemy ( The Nostra Signora De Begona, 5 Rob. 97) VII. Brimstone also, under some circumstances, will be ruled Brimstone, contraband ( The Ship Carpenter, 2 Act. 11). III 1. Tallow will become contraband if destined to a port Tallow, merely of naval equipment, but not so if the port possess also an extensive trade and mercantile character ( The Neptunus^ ut cit.). IX. Wines being taken to a naval port of the enemy (Brest), at wines, the time a large fleet lay there, was adjudged contraband ( The Edward, 4 Rob. 68). X. Cheeses of tiie kind usually furnished as naval stores, going Cheeses. to a naval port of the enemy, condemned as contraband ( The Zelden Rust, 6 Rob. 93), but opportunity given of showing the destination was otherwise than was presumed ( The Frau Marga- retha, 6 Rob. 92). XII. Despatches. To convey to the enemy's possessions an Despatches, official communication of an official person in the service of the enemy, no matter what degree of importance may belong to the communication, is an act that will expose the neutral carrier to the consequences of engaging in a contraband trade ( The Caroline, 6 Rob. 465). although if the owner of the cargo, at the time of the shipment, be ignorant the ship is about to engage in such an undertaking, the cargo will be saved harmless ( The Susan, 6 Rob. 461-2). On general principles, however, the master is not ex- cused by his plea of ignorance (ib.) To carry despatches from the enemy to his ambassador (The Caroline, ut cit.), or to his con- sul in a neutral country, is no ground for condemnation (The Madison. Edvv. 224). 64 LAW OF CONTRABAND. Military XIII. Carrying Military Persons subjects the vessel to confis- ans * cation. (See The Friendship, 6 Rob. 420, and The Orozembo, ib. 430.) Penalty. As to the penalty attaching to contraband it involves in con- fiscation as much of the cargo as is contraband, and even as much that is innocent as belongs to the owner of such contraband por- tion ( The Sarah Christina, \ Rob. 242). If the owner of the ship and the contraband articles be one, the ship itself is confis- cated ; but otherwise, except under very aggravated circumstances (The Eingende Jacob, 1 Rob. 91 ; see ib. 288-329), the carrying of contraband involves only the loss of freight and expenses. Such aggravated circumstances are, when a false destination is pretended for the ship ( The Franklin, 3 Rob. 217), or similar deception takes place. when it The offence is generally considered to be deposited with the ied * cargo, and the vessel on her homeward voyage not to be subject to confiscation ( The Frederick Molke, 1 Rob. 87), although the fact of her having conveyed contraband would on such homeward voy- age subject her character to suspicion ( The Margaretha Mag- dalena, 2 Rob. 140). Under special circumstances, however, even on her homeward passage, such ships may be captured and con- demned ( The Charlotte, 6 Rob. 386 ; The Margaret, 1 Act. 333 ; The Baltic, 1 Act. 25). Right of pre- Reference has already been made to the right of pre-occupancy and U pre- Cy and pre-emption. This is a right by which the authorities in the emption. country of the captor of contraband cargo, being provisions destined for the enemy, instead of exercising their extreme right of confiscation, appropriate the cargo, paying for it to the owner a reasonable price, and the expenses involved in its conveyance. In one of his most luminous judgments, Sir William Scott has elucidated the law upon this subject. 4 " The right of taking possession of cargoes of this description, commeatus or provisions going to the enemy's ports, is no peculiar claim of this country ; it belongs generally to belligerent nations ; the ancient practice of Europe, or at least of several maritime States of Europe, was to confiscate them entirely : a century has not elapsed since this claim has been asserted by some of them. A more mitigated practice has prevailed in later times of holding such cargoes subject only to a right of pre-emption, that is, to a right of purchase upon a reasonable compensation to the individual whose property is thus diverted. I have never understood that on the side of the belligerent this claim goes beyond the case of cargoes avowedly bound to the enemy's ports or suspected on just grounds to have a concealed destination of that kind ; or that on the side of the neutral the same exact compensation is to be ex- pected which he might have demanded from the enemy in his own port ; the enemy may be distressed by famine, and may be driven *27ieHaabet, 2 Rob. 64. LAW OF CONTRABAND. G5 by his necessities to pay a famine price for the commodity if it gets there : it does not follow that, acting upon my rights of war in intercepting such supplies, I am under the obligation of paying the price of that distress. It is a mitigated exercise of war on which my purchase is made. It is a reasonable indemnification fair profit on the commodity, that is, due reference being had to the original price actually paid by the exporter and the expenses which he has incurred." APPENDIX. I. BELLIGERENT EIGHTS. ANSWER TO THE PRUSSIAN MEMORIAL. The doctrines laid down in the text receive considerable light from the celebrated report to the King in answer to the Prussian Memorial in 1753. Some extracts from this admirable document, which has been already referred to, pp. 14, 48, are therefore sub- joined. Charles VI., Emperor of Germany, in 1734-5, borrowed money of English subjects, " private men," on the security of the revenues of Silesia. By the Treaty of Dresden, in 1745, Maria Theresa, the Empress Queen, his successor, transferred that country to the King of Prussia, Frederic II., on the terms, amongst others, that he should undertake the discharge of this debt selon le contrat. By this agreement he ultimately refused to abide, alleging as his excuse that during the war his subjects had sustained great losses at sea from the English cruisers the truth being that the conduct of his subjects, who desired to derive an illegal advantage from their neutral character, justified the confiscations of which he complained. Prussia having stated these, which she esteemed her grievances, in a memorial she presented to the Court of Great Britain, four of the most eminent lawyers of the day, two of them being civilians, were ordered to report upon the subject, and it is from their report, which bears date January 18, 1753, the follow- ing extracts have been made. The document, which is well worthy of a perusal, will be found in the Collectanea Juridica, vol. i., 129-66 ; and a full detail of the circumstances, as well as some useful observations thereon, in Martens' Causes Celebres du Droit des Gens, i. 7, 4. When two Powers are at war, they have a right to make prizes of the ships, goods, and effects of each other on the high seas : whatever is the property of the enemy may be acquired by capture at sea, but the property of a friend cannot be taken provided he observed his neutrality. Hence the law of nations has established 1. That the goods of an enemy on board the ship of a friend may be taken. F2 68 BELLIGERENT RIGHTS. 2. That the lawful goods of a friend on board the ship of an enemy ought to be restored. 3. That contraband goods going to the enemy, though the property of a friend, may be taken as prize, because supplying him with what enables him better to carry on the war is a departure from neutrality. By the maritime law of nations, universally and immemorially received, there is an established method of determination whether the capture be or be not lawful prize. Before the ship or goods can be disposed of by the captor, there must be a regular judicial proceeding, wherein both parties may be heard, and condemnation thereupon as a prize, in a Court of Admiralty, judging by the law of nations and treaties. The proper and regular court for these condemnations is the court of that State to whom the captor belongs. The evidence to acquit or condemn, with or without costs or damages, must, in the first instance, come merely from the ship taken, namely, the papers on board and the examination on the oath of the master and other principal officers ; for which purpose there are officers of admiralty in all the considerable sea-ports of every maritime power at war, to examine the captains and other principal officers of every ship brought in as prize upon general and impartial interrogatories ; and if there do not appear from thence ground to condemn as enemy's property or contraband goods going to the enemy, there must be an acquittal, unless from the aforesaid evidence the property should appear so doubtful that it is reasonable to go into further proof thereof. A claim of ships or goods must be supported by the oath of somebody at least as to belief. The law of nations requires good faith ; therefore every ship must be provided with complete and genuine papers, and the master at least should be privy to the truth of the transaction. To enforce these rules, if there be false or colourable papers, if any papers be thrown overboard, if the master and officers exa- mined in prceparatorio grossly prevaricate, if proper ship's papers are not on board, or if the master and crew cannot say whether the ship or cargo be the property of a friend or enemy, the law of nations allows, according to the different degrees of misbehaviour or suspicion arising from the fault of the ship taken or other circumstances of the case, costs to be paid or not relieved in case of acquittal and restitution. On the other hand, if a seizure is made without probable cause, the captor is adjudged to pay costs and damages, for which purpose all privateers are obliged to give security for their good behaviour ; arid this is referred to and ex- pressly stipulated by many treaties. Though from the ship's papers and the preparatory examinations the property do not sufficiently appear to be neutral, the claimant BELLIGERENT RIGHTS. 69 is often indulged with time to send over affidavits to supply that defect : if he will not show the property by sufficient affidavits to be neutral, it is presumed to belong to the enemy. Where the property appears from evidence not on board the ship, the captain is justified in bringing her in, and excused paying costs, because he is not in fault, or, according to the circumstances of the case, may be justly entitled to receive his costs. If the sentence of the Court of Admiralty is thought to be erro- neous, there is in every maritime country a superior court of review, consisting of the most considerable persons, to which the parties who consider themselves aggrieved may appeal ; and this superior court judges by the same rule which governs the Court of Admiralty, namely, the law of nations and the treaties subsisting with the neutral power whose subject is a party before them. If no appeal is offered, it is an acknowledgment of the justice of the sentence by the parties themselves, and conclusive. Though the law of nations be the general rule, yet it may, by mutual agreement between two powers, be varied or departed front ; and where there is an alteration or exception introduced by particular treaties, that is the law between the parties to the treaty, and the law of nations only governs so far as it is not derogated from by the treaty. Thus by the law of nations, where two Powers are at war, all ships are liable to be stopped and examined to whom they belong, and whether they are carrying contraband goods to the enemy ; but particular treaties have enjoined a less degree of search, on the faith of producing solemn passports and formal evidences of pro- perty, duly attested. Particular treaties too have inverted the rule of the law of nations, and by agreement declared the goods of an enemy on board the ship of a friend to be free. If a subject of the King of Prussia is injured by or has a demand upon any person here, he ought to apply to his Majesty's courts of justice, which are open and indifferent to foreigner or native ; so vice versa, if a subject here is wronged by a person living in the dominions of his Prussian Majesty, he ought to apply for redress in the King of Prussia's courts of justice. If the matter of complaint be a capture at sea during the war, and the question relative to prize, he ought to apply to the judica- tures established to try these questions. The law of nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the state, and justice absolutely denied in re minime dubid by all the tribunals, and afterwards by the prince. Where the judges are left free and give sentence according to their con- 70 BELLIGERENT RIGHTS. science, though it should be erroneous, that would be no ground for reprisals. ****** Each [every] crown has no doubt an equal right to erect Admiralty Courts for the trial of prizes taken by virtue of their respective commissions, but neither has a right to try the prizes taken by the other, or to reverse the sentences given by the other's tribunal. The only regular method of rectifying their errors is by appeal to the superior court. ****** The King of Prussia has engaged his royal word to pay the Silesia debt to private men. It is negotiable, and many parts may have been assigned to the subjects of other powers. It will not be easy to find an instance where a prince has thought fit to make reprisals upon a debt due from himself to private men. There is a confi- dence that this will not be done. A private man lends money to a prince upon the faith of an engagement of honour, because a prince cannot be compelled, like other men, in an adverse way, in a court of justice. So scrupulously did England, France, and Spain adhere to this public faith, that, even during the war, they suffered no inquiry to be made whether any part of the public debt was due to subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in ours. II. NOTE ON LICENCES. As far as the principles of the law of nations are concerned, sufficient has been stated in the text (p. 45) in respect to the law of licences. It may, however, be desirable, for practical purposes, to state the effect of some other decisions which have a bearing thereupon. Although, as a general principle, licences to trade are to be construed strictly, 1 the circumstances of a war may induce the courts to regard them with a more favourable eye, provided always there is bona fides in the holder ( The Goede Hoop, Edw. 329 32 50 4). In such case allowances are usually made for un- avoidable circumstances that may prevent an exact compliance with the conditions of the licence ( The Dankbaarheit, 1 Dods. 187). This, however, is never done, when the material conditions of the licence have not been complied with ( The Anna Maria, 1 Dods. 209 ; Vandyck v. Whitmore, 1 East, 475), and a trading licence to an enemy is always, for obvious reasons, interpreted with the utmost strictness ( The Manly, 1 Dods. 259). When a licence is granted by Government, it is presumed to legalize all steps necessary to give it effect ( The Clio, 6 Kob. 70 ; Kensing- ton v. Inglis, 8 East, 273) ; and when the terms of a licence are general, it matters not who act under it, provided they are faithful to its terms ( The Acteon, 2 Dods. 52). A cargo imported on account of an enemy is not protected by a general licence ( The Josephine, 1 Act. 313) ; but the words in the licence, " to whomsoever the property may appear to belong," excluding all inquiry into the proprietary, will indirectly protect even enemy's property ( The La Cousine Marianne, Edw. 346), and cure some other defects besides (Fayle v. Bourdillon, 3 Taunt. 546). If the ship of a country, other than that named in the licence, is employed, the transaction will be viewed leniently, unless the rela- tions of the two countries with ours materially differ ( The Dank- baarheit, ut cit.), but a licence for importations on board a neutral ship will not protect property on board a British ship ( The Jonge Arend, 5 Rob. 14), unless indeed that ship have a foreign appear- ance, and the cargo be embarked in ignorance of its ownership (The Gute Hoffnung, 1 Dods. 251 ; The Bennet, ib. 181). 1 But see Flindt v. Scott, and Same v. Crockatt, 5 Taunt. 674. 72 NOTE ON LICENCES. "When the time fixed in the licence has expired, the licencee does not necessarily forfeit the benefit his licence is intended to yield him. Thus if, in endeavouring to fulfil that condition in his licence, he is liindered by the enemy (The ^Eolus, 1 Dods. 302), or stress of weather (Groning v. Crockett, 3 Camp. 83), or perils of the sea affecting the cargo (Siffkin v. Glover, 4 Taunt. 717), or by the cargo suffering in some other respect ( The Wohlforth, I Dods. 306), he is excused. The cases upon this head are very numerous, but they all conduct us to the conclusion that a resolute attempt to complete the voyage within the time the licence speci- fies, is accepted generally by our Admiralty Courts as a reason to adjudging the licence not to be avoided by default. The port of shipment named in a licence (The Twee Gebroe- ders, Edw. 95), and that of destination ( The Henrietta, 1 Dods. 173; TJie Europa, Edw. 342 ; Evereth v. Tunno, 1 B. and A. 142), must not be deviated from, nor will it be suffered that on her way the vessel covered by the licence should touch at an inter- mediate port (77*6? Hector, Edw. 379), especially an interdicted port ( Tfie Frau Magdalena, ib. 367), indulgence, however, being sometimes shown when ignorance of the port being interdicted, is proved to the court's satisfaction ( The Emma, ib. 366). A licence with fraud appearing on its face is void (Shiffner v. Gordon, 12 East, 296), still the fact that it is purchased will not avoid it ( The Acteon, ut cit.) ; but this result will follow any alter- ation made in it fraudulently, although without the complicity of the party claiming its protection ( The Louise Charlotte de Gul- deneroni, 1 Dods. 308), whenever the intention of the grantor in favour of such alteration is not sufficiently shown (The Cosmopolite, ut cit.). The carriage of contraband ( The Nicoline, Edw. 364), and enemy's correspondence (The Acteon, ut cit.), will under all circumstances avoid a licence. TABLE OF CASES. Page Acklam, Doe, dem. Thomas, v. 2 B. andC 23 Acteon, The, 2 Dods 71, 72 Adelaide, The, 2 Rob 56,60 Adonis, The, 5 Rob 57, 60 JEolus, The, 1 Dods 45, 72 Alexander, The, 4 Rob 57 Almon, R. v., Wilm. Notes ... 15 Amerchund, Advocate General of Bombay v., 1 Knapp 18 Anna, The, 5 Rob 30, 47 Anna Maria, The, 1 Dods. . . 71 Anstruther v. Chalmers, 2 Sim. . . 24 Antelope, The, 10 Wheat. Amer. Rep. 4 Apollo, The, 5 Rob 60 Apollo, The, 4 Rob 63 Arthur, The, 1 Dods 55 Aurora, The, 4 Rob 45 Baltic, The, 1 Act 64 Barker v. Blakes, 9 East 47 Bath, Triquet v., W. Bl. . . . 14,17 Becker, Viveash v., 3 M. and S. . 14, 17 Bedreechund, Elphinstone v., 1 Knapp 18 Bell, Pollard v., 8 T. R 4 Bell, Potts v., 8 T. R 39 Bella Giudita, The, 1 Rob. ... 39 Bennet, The, 1 Dods 71 Betsey, The, 1 Rob. . 50, 55, 56, 57, 58 Bettenham, Ricord v., W. Bl. . . .17 Blakes, Barker v., 9 East. . . .47 Boedes Lust, The, 5 Rob. ... 37 Bombay, (Advocate- General, of) v. Amerchund, 1 Knapp 18 Page Bourdillon, Fayle v., 5 Taunt. . .71 Bousmaker, Expte, 13 Ves. Jun. . . 39 Bright" 1 s Lessee v. Rochester, 7 Wheat. Amer. Rep. . 23 British Linen Company v, Drummond, 10 B. and C. . 24 Brown, Potter v., 5 East 24 Butler v. Freeman, Amb 24 Byfield, The, Edw. .... 58, 59 Calypso, The, 2 Rob 58 Camden (Lord}, Home v., 1 H. Bl. . 41 Caroline, The, 6 Rob 63 Catharine Elizabeth, The, 5 Rob. . 51 Chalmers, Anstruther v., 2 Sim. . . 24 Charlotta, The, Edw 57, 59 Charlotte, The, 1 Act 63 Charlotte, The, 5 Rob 63 Charlotte, The, 6 Rob 64 Charlotte Sophia, The, 1 Act. . . 59 Christia?isberg, The, 6 Rob. . . 59, 60 Christina Maria, The, 4 Rob. . . 63 Citto, The, 3 Rob 39 Clio, The, 6 Rob 71 Cochrane, Forbes v., 2 B. and C. . . 25 Columbia, The, 1 Rob. . 50, 56, 58, 59 Comet, The, Edw 57, 60 Comyns, Murrough v., 1 Wils. . . 41 Constant Mary, The, 3 Rob. ... 44 Cor mac, Leevin v., 4 Taunt. . . .45 Cosmopolite, The, 4 Rob. ... 45, 72 Courier, The, Edw 59 Crockatt, Flindt v., 5 Taunt. ... 71 Crockett, Groniiig v., 3 Camp. . * 72 74 TABLE OF CASES. Page Dagleishv. Hodgson, 7 Bing. ". . .56 Dankbaarheit, The, 1 Dods. . . . 71 Defflis v. Parry, 3 B. and P. . . 45 De la Vega v. Vianna, 1 B. and Ad. 24 De Robeck, Hopkins v., 3 T. R. . . 17 Dispatch, The, I Act 57 Doe dem Thomas v. Acklam, 2 B. and C. 23 Drie Gebroeders, The, 5 Rob. ... 30 Drie Vrienden, The, 1 Dods. . . . 59 Drummond, British Linen Company v., 10 B. and C i . 24 Eagle, The, 1 Act 60 Edward, The, 4 Rob 63 Eliza Ann, The, 1 Dods. ... 38, 46 Elizabeth, The, Edw 59 Elphinstone v. Bedreechund, 1 Knapp. 18 J5/se&e, The, 5 Rob 41 Emma, The, Edw 72 Endrauyht, The, 1 Rob 63 Europa, Edw. ....... 72 Evereth v. Tunno, 1 B. and A. . . . 72 JEW, The, 4 Rob 63 Fanny, The, 1 Dods 51 Fayle v. Bourdillon, 3 Taunt. ... 71 Fennings v. ZorJ Grenville, 1 Taunt. 4 JYac v. #o/m, 1 J. and W. ... 24 KaJ Ctyen, The, 1 Rob. . . 4, 17, 43 Flindtv. Crockatt, 5 Taunt. ... 71 Flindt v. Scott, 5 Taunt. . . . 45,71 Forbes v. Cochrane, 2 B. and C. . 25 Fortuna, The, 5 Rob 59 Fox, The, Edw. 55 y 60 Franklin, The, 3 Rob 64 Franklin, The, 6 Rob. ..... 48 Frau Ilsabe, The, 4 Rob 55 Frau Magdalena, The, Edw. . * , 72 Frau Margaretha, The, 6 Rob. . . 63 Frederick Molke, The, 1 Rob. 58, 60, 64 Freeman, Butler v. T Amb 24 Friendship, The, 6 Rob 64 Furtado v. Rogers, 3 B. and P. . . 39 General Hamilton, The, 6 Rob. . 58, 60 Girolamo, The, 3 Hagg 36 Glover, Siffkin v., 4 Taunt. ... 72 Goede Hoop, The, Edw. .... 71 Pag3 Gordon, Shiffner v., 12 East. ... 72 Goss v. Withers, 1 Burr. . . . 17,43 Grenville (Lord}, Fennings v., 1 Taunt. 4 Groning v. Crockett, 3 Camp. . . 72 (7^ e Gesellschaft Michael, The, 4 Rob. 63 CrMte Hoffnung, The, 1 Dods. . . .71 , The, 2 Rob ...... 64 Hare, The, 1 Dods ...... 60 Harmony, The, 3 Rob ..... 39 Harvey, Shaw v., Mood & M. . . 24 Hector, The, Edw ..... 49, 72 , The, 4 Rob ...... 17 Hendrich, The, 1 Act ...... 45 Henrich and Maria, The, 4 Rob. 43, 55, 56 Henrietta, The, 1 Dods ..... 72 Herstelder, The, 1 Rob ..... 33 Higgins, Lacon v., 1 D. and R. . . 24 Hill, Medeiros v., 8 Bing. ... 56 Hodgson, Dagleish v., 7 Bing. . . 56 Hoffnung, The, 6 Rob. . . . 50, 60 Holm, Flack v., 1 J. and W. . . .24 Holman v. Johnson, Cowp. ... 24 Home v. Lord Camden, 1 H. Bl. . 41 Hoop, The, 1 Rob. ...... 39 Hope, The, 1 Dods ..... 33, 46 Hopkins v. De Eobeck, 3 T. R. . . 17 Huldate, The, 3 Rob ...... 44 Hiturge Hane, The, 2 Rob. . 18, 56, 59 Hylton, Ware v., 3 Dallas Amer. Rep. 34 Imina, The, 3 Rob ...... 49 Indian Chief, The, 3 Rob. ... 39 Inglis, Kensington y., 8 East. ... 71 James Cook, The, Edw. . . . Janson, Rawlinsonv., 12 East . Johnson, Holman v., Cowp. Jonge Arend, The, 5 Rob. . . . Jonge Johannes, The, 4 Rob. . . Jonge Margaretha, The, 1 Rob. . Jonge Pieter, The, 4 Rob. . . Jonge Tobias, The, 1 Rob. | . . Josephine, The, 1 Act Juffrow Maria, The, 3 Rob. 55, 58. Juliq,, The, 1 Dods Juliana, The, 4 Rob Juno, The, 2 Rob 58,59 . 45 . 24 . 71 . 45 49,62 39,58 . 63 45,71 59,60 . 58 . 50 58, 59 TABLE OF CASES. 75 Kensington v. Inglis, 8 East . King of Spain v. Machado, 4 Russ. Klein Jurgen, The, 1 Act. . . . Page , 71 , 24 , 59 Lacon v. Higgins, 1 D. and R. . 24 La Cousine Marianne, The, Edw. . 71 La Melanie, The, 2 Dods. ... 60 La Virginie, The, 5 Rob 39 Leevin v. Cormac, 4 Taunt. ... 45 Le Louis, The, 2 Dods. . 4, 14, 25, 50 Lindo v. Rodney, 1 Doug. . . 1 7, 36 Lisette, The, 6 Rob 60 Little William, The, 1 Act. ... 57 Louise Charlotte de Gulderoni, The 1 Dods 72 Lucy, The, 4 Rob 50 Luna, The, Edw 55 Machado, King of Spain v., 4 Russ. . 24 Madison, The, Edw 63 Manly, The, 1 Dods 71 Margaret, The, 1 Act 64 Margaretha Magdalena, The, 2 Rob. 64 Maria, The, 1 Rob 50, 63 Maria, The, 6 Rob. ...... 58 Marquis de Somerneles, The, Stew. V.A. Rep 43 Medeiros v. Hill, 8 Bing. . ,56 Melanie, La, The, 2 Dods. ... 60 Mentor, The, Edw 58 Mentor, The, 1 Act 59 Merac, Timson v., 9 East . ... 45 Mercurius, The, 1 Rob. . . . 55, 59 Murrough v. Comyns, 1 Wils. ... 41 Nancy, The, 1 Act 55 Naples, The, 2 Dods 55 Nayade, The, 4 Rob 38 Naylor v. Taylor, M. and M. . 55, 56, 58 Neptunus, The, 6 Rob. 40, 50, 55,56, 57,60,63 Nereide, The, 9 Cranch Amer. Rep. . 48 Neutralitet, The, 6 Rob 58 Nicoline, The, Edw 72 Nostra Signora De Begona, The, 5 Rob 63 Nuestra Senora de los Dolores, The, Edw 39 Page Ocean, The, 5 Rob." .... 55, 58 Orozembo, The, 6 Rob. .... 64 Oxholm, Wolfv., 6 M. and S. . . 14 Parry, Defflis v., 3 B. and P. . . 45 Planters' Wensch, The, 5 Rob. ... 45 Pollard v. Bell, 8 t. R. . . .4 Portland, The, 3 Rob 39 Posten, The, 1 Rob 57 Potsdam, The, 4 Rob 59 Potter v. Brown, 5 East. . . . 24 Potts v. Bell, 8 T. R 39 Providentia, The, 2 Rob 49 Rawlinson v. Janson, 1 2 East. . . 45 Rendsborg, The, 4 Rob 46 7?. v. Almon, Wilm. Notes . . . 15 R. v. Forty-nine casks of Brandy, 3 Hagg 46 Richmond, The, 5 Rob 62 Ricord v. Bettenham, W. Bl. . . .17 Ringende Jacob, The, 1 Rob. ... 64 Rochester, Bright' 's Lessee v., 7 Wheat. Amer. Rep 23 Rodney, Lindo v., 1 Doug. . . 17. 36 j Rogers, Furtado v., 3 B. and P. . . 39 Rolla, The, 6 Rob. ... 55, 56, 58 Rosalie and Betty, The, 2 Rob.. . . 49 Rose in Bloom, The, 1 Dods. . . 58, 59 Ruding v. Smith, 2 Hagg. ... 24 Santa Cruz, The, 1 Rob 44 Sarah Christina, The, 1 Rob. . . 63, 64 Saivyer v. Shute, 1 Ans 24 Schooner Sophia, The, 6 Rob. ... 44 Scott, Flindt v., 5 Taunt 45 Shaw v. Harvey, Mood & M. . . . 24 Shepherdess, The, 5 Rob 57 Shiffner v. Gordon, 12 East. ... 72 Ship Carpenter, The, 2 Act. ... 63 Shute, Sawyer v., 1 Ans 24 S iff kin v. Glover, 4 Taunt. . . 72 Smith, Ruding v., 2 Hagg. . . .24 So merneles, The Marquis de, Stew. V. A. Rep 43 Somerset the Negro . . . . 25 Sophia Elizabeth, The, 1 Act. . . 59 Spes (The) and the Irene, 5 Rob. 56, 57 76 TABLE OF CASES. Page Staadt Embden, The, 1 Rob. ... 63 Start, The, 4 Rob 55, 58 St. Juan Baptista and La Purissima Conception, 5 Rob 50, 51 Success, The, 1 Dods 59 Susan, The, 6 Rob 63 Taylor, Nay lor v., M. & M. . 55, 56, 58 Timson v. Merac, 9 East 45 Triheten, The, 6 Rob 55 Triquat v. Bath, W. Bl. . . . 14, 17 Trotter v. Trotter, 4 Bligh N. S. . . 24 Tryon, Walter v., 1 Dick. ... 14 Tunno, Evereth v., 1 B. and A. . .72 Tutela, The, 6 Rob 56 Twee Gebroeders, The, 3 Rob. 30, 45, 46 Twee Gebroeders, The, Edw. ... 72 Twee Juffrowen,T}ie, 4 Rob. . . . 62 Twende Brodre, The, 4 Rob. ;. . . 63 Twilling Eiget, The, 5 Rob. ... 48 Vandyckv. WJiitmore, 1 East. . . 45, 71 Page Vernon, The, 1 W. Rob 24 Vianna, De la Vega v., 1 B. and Ad. 24 Vigilentia, The, 6 Rob 59 Virginie, The La, 5 Rob. ... 39 Viveash v. Becker, 3 M. and S. . 14, 17 Vraw Judith, The, 1 Rob. ... 56 Vrow Anna Catherine, The, 5 Rob. . 46 Vrow Johanna, The, 2 Rob. . . 50, 60 Walters. Tryon, 1 Dick 14 Ware v. Hylton, 3 Dallas Amer. Rep. 34 Wasser Hundt, The, 1 Dods. ... 59 Welvaart Van Pillow, The, 2 Rob. . 60 Whilelmina, The, 4 Rob., App. . . 49 Whitmore, Vandyck v., 1 East. . 45, 71 Withers, Gossv., 1 Burr. . . .17,43 Wohlforth, The, 1 Dods 72 Wolfv. Oxholm, 6 M. and S. . . 14 Zelden Rust, The, 6 Rob. . Zulerna, The, I Act. . , 63 48 INDEX. Page Achaean Confederation ... 8 Admiral, his powers of Negotiating . 33 Admiralty Droits 39, 41 African States ....... 17 Alliance, The Holy 21 Alternat, The 26 Ambassadors. See Diplomatic Agents. America, United States of ... 16 Rank of amongst States . . .26 Addicted to Privateering . . .41 Amphictyous, The ..... 7 Arms, unlawful 42 Ayala, Balthazar 11 Balance of Power 19 43arbary States. See African States. Barbeyrac, Jean 12 Blockade Right of Blockade a severe right. 55 Kinds of Blockade 55 De facto 50, 55 By notification . . . . 50, 56 African States subject to the Law of Blockade 17 Extent of Blockade .... 55 Breach of Blockade By ingress 57 By egress 58 When excused ..... 59 Relaxation of 59 Penalties for 59 When they attach .... 60 Termination of 60 Britain, Great Recognises the Law of Nations 14,16,17 Her non-intervention Policy . .21 Her Protest against the French invasion of Spain in 1822 . .21 Her refusal to recognise the in- violability of the Baltic in 1807 6 Bynkershoek 13, 48 His authority recognised in Eng- lish Courts 14, 18 His opinion respecting close and open Seas 30 His opinion respecting declara- tions of War 38 Bynkershoek His opinion respecting usages of War 40 His opinion respecting contraband of War 48 His opinion respecting the Law of Blockade 50 Capitulations 33,45 Capture and confiscation of enemy's Property before an open rupture . 37 Justifiable on strict principles . 38 Recent usage relaxing such prin- ciples as to Debts . . . 38, 39 Immovable Property ... 38 Property in the Ports . .39 Captures by Vessels not commis- sioned 41 Confiscation of enemy's Property on land during operations . . 43 Acquisition of title to such . . 43 Acquisition of title to Property captured at sea .... 43, 44 Recapture . 44 Law of Postliminy 44 Illegal captures 47 Confiscation for carrying contra- band of War 49, 64 When it attaches as a penalty. 49, 64 Capture and confiscation for breach of Blockade, when it may be effected 50, 60 Of Ship and Cargo . . 50, 60 Of Ship only 60 Of Cargo only .... 60 Capture of neutral Ships under enemy's convoy 51 Cartels 33 Ceremonials, Maritime .... 27 Diplomatic .... 32 Charges d' Affaires. See Diplomatic Agents. Colonization 29 Commerce. See Trade. Confiscation. See Capture and Confis- cation. Consolato del Mare .... 9, 48 78 INDEX. Page Contraband of War What is so to be esteemed 49, 62, 63 Penalty of carrying . . . 49, 64 When penalty attaches . . 49, 64 Right of pre-occupancy and pre- emption 64, 65 Conventions respecting rivers . . 31 Covenants, transitory 34 Diplomatic language 27 Agents Kights of sending and receiving 31 Their rank 31 Their authority and privileges . 32 Ceremonial ...... 32 Discovery and occupation Right derived from . . 18,28,29 Domiciled persons 23, 39 Droits, Admiralty 39,41 Emerigon, cit 5 Envoys. See Diplomatic Agents. Equality, right of Nations to . 25 Fetial Law 8, 44 France French invasion of Spain in 1822 . 21 General, his power of negotiating . 33 Gen til is, Albericus 11, 14 Germany Germanic Confederation . . 16,21 German Language in Diplomacy. 27 Greece > History of the Law of Nations among the Greeks .... 7 Recognition of Greek indepen- dence by the Treaty of London, July 6, 1827 22 Grotius 12 His authority recognised in Eng- lish Courts 14 His influence in ameliorating the usages of War 40 Opinion as to origin of Law of Nations 1 Opinion as to balance of Power . 20 Opinion as to open and close Seas . 29 Opinion as to the State compen- sating private injuries ... 34 His definition of Civil War . .37 Opinion as to declarations of War 38 Opinion as to confiscation of enemy's Property .... 38 Opinion as to construction of Li- cences 45 Opinion as to contraband of War. 49 Hanse Towns Laws of the Hanseatic League 9 Hobbes, Thomas, his opinion as to origin of Law of Nations ... 1 Page Holy Alliance, The 21 Home, the Rev. Thomas Hartwell His edition of Lee on Captures . 13 Independence, the right of Nations to 20 India Indian Princes subject to the Law of Nations 18 Kliiber, cit 5 Lakes, property in 30 Language, Diplomatic 27 Law. See Fetial, Municipal, Nations, Nature. Laws, collision of ...... 23 Lee, Richard, his Treatise on Captures 13 Legates. See Diplomatic Agents. Legation, rights of 31 Licences to Trade ..... 33, 45 Who may grant . . . . 33, 45 How to be construed . . . 45,71 Their conditions must be strictly adhered to . . . . 45,71,72 Exceptions ....... 72 Locke, John ....... 1 Mackintosh, Sir James . . . . 1, 2 Maritime Ceremonials 27 Martens, G. F., Von 13 His opinions respecting the balance of Power 20 Respecting unlawful arms . . 42 Ministers. See Diplomatic Agents. Morocco, Empire of Subject to the Law of Nations . 18 Municipal Law Distinct from Law of Nations . 5 Its authority 22 Its external operation .... 23 Laws personal and real ... 23 By the comity of Nations, gives effect to Foreign Laws ... 24 Authority of the Judicial Power administering ..... 25 Nations- Uncivilized * . . . . . 17, 28 Natural Pacific Rights of Right to Security Independence Equality Property . International Pacific Righ s o ' Kights of Legation . Right of Negotiation Belligerent Rights of Reprisals . . * War See Reprisals and War. Diplomatic language amongst Maritime ceremonials amongst 19 20 25 28 31 33 35 37 27 27 INDEX. 79 Page Nations, Law of Definition Origin Opinions of Grotius respecting . Hobbes .... Puffendorf . . . Examined 2 Distinct from the Law of Nature . 3 Relation of the La\r of Nature to it 4 Evidence of 4 Divisions of 4 (i.) Customary Law . . 4 (ii.) Conventional Law . . 4 Distinct from Municipal Law 5 Politics ... 5 History of 7 Amongst the Greeks . . 7 Romans . 8 In the Middle Ages ... 8 Causes of its perfection . 10 List of the Text Writers upon 10 Their authority 14 Sources of 14 Text Writers 14 Decisions of international Tri- bunals and Courts of Prize . 1 5 Ordinances of States . . . 15 Histories 15 Treaties 15 Authority of 16 Subjects of the Law of Nations 1 6 Its limits 16 Nations, Neutral. See Neutral Nations. Natural Rights of States. See States and Nations. Nature, Law of Distinguishable from the Law of Nations ....... 3 Its relation to the Law of Nations 4 Navigation of rivers, Conventions re- specting 31 Negotiation, Rights of .... 33 Neutral Nations Neutrality defined ..... 46 Qualified neutrality .... 46 Neutral territory not to be violated 46 Illegal captures in 47 Conduct of neutrals towards belli- gerents 47 Permission to arm in neutral ter- ritory , 47 Acquiescence of neutral in an out- rage 47 Commerce of neutrals .... 47 Enemy's Goods on board of neutral Vessel . 48 Free Ships, free Goods ... 48 Page Neutral Nations Neutral Goods in enemy's Vessel 48 Papers on board neutral Vessel . 48 Contraband of War . . . .48 A neutral lading his Goods on a belligerent armed Merchant Ship, a forfeiture of neutral character, queer e . . . . .51 Neutral Vessels under enemy's Convoy, queers 51 Nuncios. See Diplomatic Agents. Oleron, Laws of 9 Politics, Science of. See Nations, Law of. Pope, The The Papal Church an agent in establishing the European Com- monwealth 10 Papal Grants 18 Postliminy, the Law of .... 44 Power, the balance of 19 Opinions respecting .... 20 Prescription . . . . 28 Prisoners of War 42 Exchange of . . . .33, 42 Treatment of 42 Privateers 41 Prize Courts 43 Property, Enemy's. See Capture and Confiscation. Property, Right of Nations to. . . 28 Derived from Prescription ...... 28 First occupancy 28 Colonization 29 In seas ........ 29 Presumption against ... 30 Close and open Seas ... 30 In lakes and rivers .... 30 Ripuarian Conventions . . .31 Prussia, Memorial in answer to the King of 67 Referred to 14, 48 Puffendorf, Samuel 12 His authority recognised in English Courts 14, 18 Opinion as to origin of Law of Nations 1 Opinion as to declarations of War 38 Opinion as to confiscation of enemy's Property .... 38 Ransom 46 Recapture. See Capture. Reprisals Negative 36 Positive 36 General 36 Special 36 80 INDEX. Retaliation, Law of 36 Rhodians, their Laws 9 Rivers, property in 30 Conventions respecting . . .31 Rome History of the Law of Nations amongst the Romans ... 8 Sarpi, FatherPaul, his opinion respect- ing the Venetian claims to Property in the Adriatic 30 Scott, Sir William, Lord Stowell - His statement of the relation of the Law of Nature to the Law of Nations 4 Of the sources of the Law of Nations 14 His observations respecting the Law of Blockade .17 Respecting the right of Equality . 25 Respecting the right of Property . 30 Respecting the confiscation of enemy's Property .... 37 Respecting trade with the enemy . 40 On the interpretation of Licences . 45 On contraband of War . . 49, 64 Search, Right of. See Visit and Search, Right of. Seas, Property in 29 Presumption against .... 30 The Adriatic 30 Baltic 6, 30 Indian 30 The Four Seas of Britain . . 30 Close and open Seas, controversy respecting 14, 30 Security Right of Nations to .... 19 Selden, John, on close and open Seas 14 Settlements, Foreign . . . . .29 Soto Dominic 11 Sovereigns riot amenable to Foreign Tribunals or subjectto Foreign Laws 25 Rank of 26 Spain French invasion of Spain in 1822 . 21 Sponsio 33 States. See Nations. What a State is 2 Natural rights of States improperly called international rights . . 5 Rank of 25 Their title 26 Suarez, Francisco 11 Switzerland Swiss Confederation . . . . 16 Trade With the enemy unlawful . . . 39 Trade Or with his Colonies . . 39, 49 Even by Allies 40 Rule of the War of 1756 ... 49 Its relaxations 49 Treaty. See Diplomatic Agents. Treaties considered as sources of the Law of Nations . . . 15 Negotiation of ...... 33 Obligation of 33 When it ceases 34 Real and Personal Treaties . . 34 Truces . 33, 45 Turkey, Empire of How far considered subject to the Law of Nations 17 Her treaty-language .... 27 Vattel, Emeric His opinion respecting the origin of the Law of Nations . . 2 Respecting the balance of Power 20 Respecting the Title by first Oc- cupancy 28 Examined 29 Respecting close and open Seas . 30 His definition of War .... 37 Opinion as to confiscation of enemy's Property . 38 As to unlawful arms ... 42 Cited 48 Victoria, Francisco a 10 Visit and Search, Right of ... 50 War- Defined 37 Its kinds 37 Described 37 Its object 40 Just Wars 37 Declaration of 38 Mode of Prosecuting . . . 40, 42 Its Laws 40 Relaxations of 44 Warfare by Land and Sea distin- guished 41, 42 Prisoners of 41, 42 Destruction of enemy's Property . 43 See Admiralty Droits Capture and Confiscation Neutrals Privateers. Wheaton, Dr. Opinion as to the name of the Law of Nations 1 Censured 5j His remarks on Privateering . 41 Wisby, Laws of 9J Wolf, Christian de 12 His opinions respecting War . 38, 40 Zouch, Dr 1 DIPLOMACY. BY THOMAS HAKTWELL HORNE, B.D., OF SAINT JOHN'S COLLEGE, CAMBRIDGE ; D.D. OF WASHINGTON COLLEGE, HARTFORD, CONNECTICUT, AND OF THE UNIVERSITY OF PENNSYLVANIA ; RECTOR OF THE UNITED PARISHES OF SAINT EDMUND THE KING AND MARTYH AND SAINT NICHOLAS ACONS, LOMBARD STREET ; PREBENDARY OF ST. PAUL'S. CONTENTS. Pa&e INTRODUCTION 87 Diplomacy defined . . . . . . .87 Sources of this Science 87 SECTION I. OF DIPLOMATIC MISSIONS 88 1. Different kinds of Diplomatic Missions . . . , .88 2. Secret Missions ........ 88 3. Public Ministers in general 88 4. Ministers-Mediators . . . . , . .89 5. Right of sending Public Ministers 89 6. Right and Obligation of receiving Public Ministers . . .90 7. Choice of the Person of a Public Minister . . . .90 8. Classification of Diplomatic Agents . . , . .91 9. Ministers of the First Class .91 10. Ministers of the Second Class . . . . . .91 11. Ministers of the Third Class 92 12. Deputies and Commissioners ...... 22 13. Consuls. Their functions .93 Who may be Consuls 93 Their privileges ........ 93 14. Agents . . . 94 SECTION II. OF THE DESPATCHING OF A DIPLOMATIC AGENT, AND THE ESTABLISHMENT OF HIS PUBLIC CHARACTER 95 Documents for Establishing the Public Character of a Diplomatic Agent 95 15. Credentials 95 16. Instructions , . 96 17. Full Powers 97 18. Ciphers 98 19. Passports and Safe-Conducts 98 G2 84 CONTENTS. Page SECTION III. OF THE RIGHTS AND PRIVILEGES ENJOYED BY DIPLOMATIC AGENTS 99 20. Inviolability 99 21. Exterritoriality 100 22. The Independence of Diplomatic Agents . . . .100 23. Exemption of a Diplomatic Agent from all Civil Jurisdiction . 100 24. Exemption from Criminal Jurisprudence . . . .100 25. The Ambassador's Civil Jurisdiction over his Suite . . .100 26. His Criminal Jurisdiction over his Suite . .101 27. Exemption of an Ambassador from Police Regulations . .102 28. Exemption of his Effects from Civil Jurisdiction . . ,102 29. Exemption from Direct and Indirect Impositions . .102 30. Freedom of a Minister's Hotel and Quarters . . . 102,103 31. Right of Asylum 103 32. Free Exercise of Religion 103 SECTION IV. OF THE SUITE OF A PUBLIC MINISTER . . 104 33. Of the Suite generally .104 34. Secretaries of Embassy and of Legation 104 Counsellors of Embassy and of Legation . . . .105 35. Of the Wives and Families of Ambassadors . . . .105 36. Of the Persons belonging to an Ambassador's Suite . . . 105 37. Couriers of an Ambassador ....... 105 SECTION V. OF THE DIPLOMATIC CEREMONIAL . . .107 38. Diplomatic Ceremonial in general. . . .107 39. Audiences, Public and Private 108 40. Distinctions enjoyed by Foreign Ministers . . . .108 41. Presents made to Ambassadors . . . . . .109 SECTION VI. OF THE DUTIES AND FUNCTIONS OF A DIPLO- MATIC AGENT . . .110 42. Duties of Diplomatic Agents in general 110 43. Diplomatic Negotiations . . . . . . .110 44. Written Diplomatic Negotiations . . . . . .Ill 45. Notes and Diplomatic Memorials 112 Verbal Notes 112 46. Ultimatum 112 47. Diplomatic Conferences 112 48. Congresses 113 49. Despatches . 114 50. Language of Diplomacy 114 51. Responsibility of a Diplomatic Agent 115 CONTENTS. 85 Page SECTION VII. TERMINATION OF A DIPLOMATIC MISSION .116 52. Cessation of the Functions of a Diplomatic Agent . .116 53. Audience of Leave . . . . .117 54. Death of a Public Minister 118 55. Sealing his Effects, &c 118 56. Privileges, &c., of the Widow and Suite of a deceased Minister . 118 57. Succession to his Property 118 SECTION VIII. OF DIPLOMATIC COMPOSITIONS . . * . 119 58. Different kinds of Diplomatic Compositions . . . .119 1. Manifestoes. . . . . . . . .119 2. Preliminaries of Peace . . . . , . .119 3. Public Treaties and Conventions . . . .120 4. Signature of Treaties 121 5. Ratification of Treaties 122 6. Acts of Guaranty . . 122 7. Acts of Protestation 123 8. Acts of Abdication, Renunciation, and of Cession . .123 9. Reversals 123 10. Deductions, or Confidential Memoirs . . .123 SPECIMEN OF WRITING IN CIPHER 125 AUTHORITIES QUOTED 126 INDEX . 127 DIPLOMACY. DIPLOMACY is the science of the external relations of independent. Diplomacy States^ towards each other. iefined * This Science is founded on Treaties, Conventions, or other acts P/^ r ^f f ce sovereign princes and States, which were formerly called Diplomas, and which more particularly establish the relative rights of nations, and the obligations to which they are respectively_j3ledged. But the relations of independent States towards each other do not originally rest upon express stipulations only : there is a natural law, denominated the Law of Nations, that traces the rights to which nations are respectively entitled. But, since there is no superior coercive power to enforce the performance of these cor- responding obligations, nations are induced to unite together by means of treaties, the object of which is to render them more secure in the enjoyment of their rights. Numerous collections have been made of the principal treaties which thus regulate the external relations of the independent States of Europe and Ame- rica ; the titles of which are stated by Baron von Martens, in the jBibliothegue Diplomatique Choisie annexed to his Manuel Diplomatique. (Paris, 1822, 8vo.) The principles of the modern law of the nations of Europe, founded upon treaties and usage, have been extracted from these collections, and arranged by the distinguished publicist, G-. F. de Martens, in his Precis du Droit des Gens Moderne de V Europe (3rd edition, Gottingen, 1821, 8vo.), and also in J. L. Kliiber's Droit des Gens Moderne de V Europe. (Stuttgardt, 1819, 2 vols. 8vo.) Much information may likewise be derived from an attentive study of the memoirs and letters of eminent statesmen and negotiators. As diplomacy is the knowledge of the actual relative rights of nations, it constitutes the basis of the negotiations to which Governments have recourse when alliances are to be formed ; when new stipulations are to be entered into, upon points in which two or more independent States are mutually concerned ; or when dis- putes are to be settled, concerning the non-performance of some obligations, or the violation of certain rights. SECTION I. OF DIPLOMATIC MISSIONS. Different 1. Diplomatic Missions may be divided, according to the Diplomatic nature of the affairs which give occasion to them, into (1.) Diplo- Missiou*. viatic Missions, properly so called, the object of which is, affairs of state or politics, and which give rise to any negotiations ; (2J Missions of Ceremony or Etiguette+the object of which is notifica- tions, or compliments of congratulation or condolence, which sovereigns, especially those of the first rank, are in the habit of sending to one another ; a.nd^3.) Fixed Missions ,_in which the diplomatic agent, except in extraordinary cases, is charged with watching over the various objects above mentioned. Secret 2. Where (as is frequently the case) Governments are desirous ons * of treating privately on certain affairs, which they are in any way interested in concealing from the knowledge of other cabinets ; in such case it is usual to send confidential persons, and secretly to accredit them to a foreign Government, or rather to the minister for foreign affairs only, without giving them the formal character of public ministers, or at least authorising them to exhibit it only when the negotiation shall be brought to the desired point. The reigns of Louis XIV. and XY. present many instances of the em- ployment of such secret diplomatic agents in foreign countries. (Bielfeld, Institutions Politiques, torn. ii. p. 278, 284; Flassan, Hist, de la Diplomatic Francaise.) Many similar missions took place during the American war, and in the earlier years of the first French revolution. Although such agents have no pretensions to any diplomatic ceremonial, still they enjoy all the rights and immunities due to a public minister. (Bielfeld, Institutions Politiques^ torn. ii. p. 176; Callieres, de la Maniere de Negocier, ch. v. p. 112.) With re- gard to secret emissaries whom Governments sometimes send abroad for political purposes, but without the knowledge of a foreign Government, the latter has a right to send them out of its territory ; and, if they afterwards become guilty of being spies, such Government may punish them according to the utmost rigour of the laws. or Public 3. By a Public Minister is generally understood every public ge!ir!a. rsm functionary, who has the chief direction of any department in the administration of a State : in the proper acceptation of the word, it means every person who is sent by any Sovereign or Government SEC. I.] DIPLOMATIC MISSIONS. 89 into a foreign country, to treat on affairs of State, or to break off negotiations ; and who, being furnished with credentials or with full powers, enjoys the privileges granted by the law of nations to the public character with which he is invested. In this lastjac- ceptation the universal law of nations speaks of public ministers, and of their rights, immunities, and prerogatives. The customary law of nations, however, at present extends these rights equally to those public ministers who are sent solely for purposes of mere ceremony, and to those who are sent on a permanent mission. 4. When at the solicitation of two powers that are at variance, Of Minister or at least with their consent, a third power or several powers in- medlators - terpose their good offices or their mediation for the re-establish- ment or maintenance of peace, they become mediators; and the ministers, sent by them to a congress or to foreign Courts for this purpose, are termed Ministers-mediators. It is important to re- mark, that the quality of mediator must not be confounded with that of arbitrator ; which is, when two powers that are at variance voluntarily submit the point in dispute to the decision of a third power, and the latter becomes an arbitrator. This mode of ter- minating disputes between powers is now of very rare occurrence, while the interposition of good offices, on the contrary, is very frequent. 5. The Bright of appointing public ministers to represent the Right of State, which sends them to a foreign Court or Government, belongs s ^^ 8 only to those States which are entirely independent on the Govern- ministers. merit to which they are sentj arid demi-sovereign States can only exercise this right, when they are authorised to do so by the sove- reign power on which they are dependent. This was the case with the princes who were members of the Germanic body during the existence of the empire of Germany, and also with the former Dukes of Courland. Since the year 1774 the hospodars of Wal- lachia and Moldavia have enjoyed the right of having Charges d* Affaires (who may be Christians, members of the Greek church) at Constantinople, under the protection of the law of nations, that is to say, secure from all violence. (See The Treaty of Peace of Kainardgi, art. 16 ; Vattel, Droit des Gens, liv. iv. sec. 60.) Thej3xercise of^the right of sending diplomatic agents belongs exclusively to the sovereign in monarchies, and to the representa"- tives of the people, to the senate, or to the president, in republics. The question, whether a public minister may be received from an usurper ? depends upon the reasons of State, which may lead par- ticular Governments to adopt or to reject the principle. (See "VVicquefort, V Ambassadeur et ses Fonctiorts, liv. i. ch. iii.) ^An_ unequal _alliance_or_ a treaty ofjDrotection, not being incompatible with sovereignty, does not deprive a State of the power of sending or of receiving public ministers, unless, indeed, it has expressly renounced the right of maintaining relations, and of treating with 90 DIPLOMATIC MISSIONS. [SEC. I. other Powers. (Yattel, Droit des Gens, liv. i. sec. 5, 6; liv. iv. sec. 5T,~58.)~ When disputes arise relative to the right of sending or receiv- ing public ministers, or rather when political circumstances render it difficult for one or both of such powers publicly, that is ostensibly, to exercise this right ; in such case they confine them- selves reciprocally to the sending of diplomatic agents, who are destitute only of the representative character. Right and 6. Every sovereign State (without, however, being obliged receiving * to do so) has a right to receive public ministers from other Powers, public unless it has entered into contrary obligations by treaties or by express conventions ; it may also determine upon what conditions it will consent to receive them. There are Governments, which have established it as a principle never to receive from any foreign Power one of their own subjects as a public minister ; it also fre- quently happens that a Government refuses to receive some par- ticular individual in a public capacity, in which case the ground of refusal is specially stated. In order to avoid such refusals, it is now usual to take the precaution of apprising the Government, to which a public minister is to be sent, of the person selected for that purpose ; and if the question relate to a negotiation, strictly so called, several individuals are proposed, from whom such Government may choose one. or the choice 7. The constitution and laws of a State limit the power of ofapifbHc n those who have the nominationjof public ministers ; and also pre- minister. scribe the requisite qualifications of those on whom the character of a public minister is to be conferred, as well as the obstacles to such appointment which may be interposed by religion, birth, or other circumstances. (On this topic consult Wicquefort, V Am,- bassadeur, liv. i7ch. vii. viii. ix. xi. xiii.) Wwn^n_ju^j^arejy chosen to discharge the functions of public ministers, though a few instances are recorded in history. Thus the lady of the Marechal de Guebriant was accredited, in 1646, as Ambassadress from France to the Court of Vladislaus IV., King of Poland ; where she sustained that character with dignity, and succeeded in the principal objects of negotiation. (Moser, V Ambassadrice et ses Droits, Berlin, 1757. 4to.) The class of ministers to be sent is subject to certain restric- tions, which are fixed by the diplomatic ceremonial introduced among the Powers of Europe. In consequence of these restrictions it is now generally recognised : 1. That the right of sending ministers of the first class belongs exclusively to States enjoying the honours oT^yaUy fand. 2. That no State enjoying such honours can receive ministers of the first class from those who are not possessed of them. Those States, however, which do not enjoy the honours of royalty may reciprocally send ministers of the first class ; and conformably to the same principle of recipro- SEC. I.] DIPLOMATIC MISSIONS. 91 city, most Powers at present send to each other ministers of the same class. 8. Although the aggregate of all the Diplomatic Agents of classification foreign Powers, residing at one time in the same place for diplo- Agents. matlc matic purposes, is ordinarily termed the Corps Diplomatique, or diplomatic body, yet the universal law of nations knows nothing of the division of ministers into different classes. It considers them all as being charged with the affairs of the State which they represent ; but only as to those affairs, the management of which is intrusted to them ; and from this quality it derives the different rights which it grants to them. But_thejEJO*t; 2. Ministers Plenipotentiary; and 3. Papal Internuncios. the n third S f 11* The shades of difference, which exist between ministers ci^s. m of the third class, may be determined in a similar manner. They comprise 1. Ministers ; 2. Ministers Resident; 3. Ministers Charges d' Affaires ; 4. Consuls, to whom a diplomatic character is attributed ; and 5. Charges d" Affaires nominated by States or Sovereigns to Courts, where they do not wish to send agents with the title of ministers. As the ceremonial, to which this class of ministers may lay claim, especially from the other members of the diplomatic body, is by no means fixed, the usage which obtains in each Court must be followed in this respect. Most of them (with the exception of the diplomatic agents of the Hanse Towns) have no letters cre- dential for the Sovereign, and are accredited only by letters addressed to the Minister or Secretary of State for the department of Foreign Affairs. But we must not confound with ministers of the third order temporary Charges d'Affaires, or Charges d'Affaires, strictly so called, who are frequently only verbally accredited by their minister, who presents them in this character on his de- parture. Cardinals, however, who are Charges d'Affaires of the Pope, rank as ministers of the first class. (De la Maillardiere, Precis du Droit des Gens, p. 330.) 2f