SANTA BARBARA STATE COLLEGE LIBRAFT
 
 INTERNATIONAL CASES 
 
 ARBITRATIONS AND INCIDENTS ILLUSTRATIVE 
 
 OF INTERNATIONAL LAW AS PRACTISED 
 
 BY INDEPENDENT STATES 
 
 VOLUME I 
 
 PEA CE 
 
 BY ELLERY C. STOWELL 
 
 Associate Professor of International Law 
 Columbia University 
 
 AND 
 
 HENRY F. MUNRO 
 
 Instructor in International Law 
 Columbia University 
 
 NEW YORK 
 
 MIFFLIN COMPANY 
 Cambrfbfjr
 
 COPYRIGHT, 1916, BY ELLERY C. STOWELL AND HENRY F. MUNRO 
 ALL RIGHTS RESERVED 
 
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 CAMBRIDGE . MASSACHUSETTS 
 U . S . A
 
 ^ SANTA BARBARA STATE COLLEGE LIBRA* 
 
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 TO 
 JOHN BASSETT MOORE
 
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 PREFACE 
 
 THE primary purpose of this collection of international cases is 
 to afford an adequate book for use in the classroom. My own ex- 
 perience as a teacher of international law has made The purpose O f 
 me feel the need of such a book. Many hand- this collection 
 books and systematic treatises have appeared to set 
 forth the principles of the law of nations, and one or the other 
 serves as a basis for the instruction in a majority of the institutions 
 where international law is studied. A rival system which seems 
 more in accord with the nature of the subject is that known as the 
 case method, in which the actual cases or precedents are studied, 
 thus helping the student by an inductive method to arrive at sound 
 principles. He learns directly from the open book of history what 
 is the actual practice of nations, so that he is able to reason out 
 the underlying principles, his vision is not limited in that he 
 must look through the eyes of one writer. This method is more 
 alive than any course based entirely upon the study of a syste- 
 matic text can hope to be. But even the case method may be 
 carried to an extreme, and if it is undoubted that textbook in- 
 struction can be vitalized by a supplemental study of the cases, 
 it is equally true that the case-book method may be strength- 
 ened by a parallel use of some good text. This latter method is 
 the ideal one, and when it is not feasible to require the student 
 to supply himself with a good textbook, constant recourse to the 
 library shelves should be encouraged. In consequence, the ex- 
 planations supplied by the instructor will be more fruitful. This 
 collection may serve, therefore, either as the basis of classroom 
 study, which is the preferable method, or it may be employed to 
 vitalize the textbook method by a supplemental supply of illus- 
 trative cases. 
 
 In addition to the main purpose of furnishing a book of cases 
 for classroom study, this collection is intended to present a con- 
 cise account of some of the most important arbitrations. These 
 international arbitrations are employed as illustrative cases under 
 appropriate headings and are interspersed throughout the volume
 
 vi PREFACE 
 
 with other cases In which the procedure of settlement was differ- 
 ent. The number and importance of the arbitrations included may 
 be seen in a separate list. All the important Hague arbitrations 
 relating to peace are given in readable form. 1 It is believed that 
 this collection is the only scientific, non-technical account of these 
 important cases. From Professor Moore's monumental and inval- 
 uable International Arbitrations other important arbitrations have 
 been taken textually, when not of too great length. 
 
 The special purposes of the book in no way interfere with its 
 value from a general point of view. The material is of a nature 
 to appeal strongly to all who take an intelligent interest in world 
 affairs. From its pages it is hoped that the reader may derive in- 
 teresting information as to how nations settle their differences. 
 He cannot peruse the cases and still cherish those twin errors of 
 baneful influence that there is no international law and that 
 arbitration as now applied is more in the nature of political com- 
 promise than a judicial interpretation of existing law. As Pro- 
 fessor Moore has pointed out, the difficulty with arbitration is 
 neither in the application of the true principles of international 
 law nor in the enforcement of the decree, but in prevailing upon 
 the parties in disagreement to have recourse to arbitration. 2 
 
 1 The Timor Arbitration, between the Netherlands and Portugal, and the case 
 of the Maritime Frontier, between Norway and Sweden, alone are omitted, since 
 their interest is mainly geographical and to treat them properly would require maps. 
 
 2 Professor J. B. Moore, reviewing Raeder's L 'Arbitrage international chez les 
 Hellenes (in the Political Science Quarterly, vol. 31, March, 1916) says: "The author 
 of this work in his introduction remarks that the more international arbitration is 
 employed the more reason there is to hope that modem societies will find in it the 
 means of practically solving the difficulties that arise between nations. At the present 
 moment this hope seems to have been discredited. It is just now the fashion to speak 
 of arbitration as an inadequate, ineffective process. In reality, however, the popular 
 disrepute into which international arbitration has temporarily fallen is due not to 
 dissatisfaction with the results but to the refusal or neglect to resort to it. Nations, 
 like individuals, have the choice between trial by judges and 'trial by battle'; and 
 on the part of nations the freedom of choice is less restrained because no form of 
 organization has as yet been found by which the physical force in a populous and 
 highly developed country can be held in check as effectually as can that of the in- 
 dividual in a populous and organized community. But the fact that nations in a 
 particular instance go to war may indicate not that the dispute was incapable or 
 even difficult of judicial or other amicable solution, but simply that one or both of 
 the contestants preferred to take the chance of obtaining by force what justice could 
 not concede. The difficulty was not in the nature of the question but in the disposi- 
 tion of the disputants."
 
 PREFACE vii 
 
 An effort has been made to confine the cases of this volume to 
 a discussion of international law as such, and to omit almost all 
 cases dealing with constitutional or administrative The se j ecti(m 
 law relating to the fulfillment by the state of its in- and preparation 
 ternational obligations. For example, suits between 
 the states of our Union are supposed to be decided by the rules 
 applying to independent nations, and yet from the point of view 
 of the law of nations, the separate states of our Federal Union 
 are merely administrative divisions which have no international 
 status. Hence, to include such cases is only confusing and pre- 
 vents the student from acquiring a firm grasp of the principles of 
 the subject. Similarly, Indian treaties and the status of Indians 
 are excluded as pertaining to constitutional law. The practice 
 of our administrative authorities and the decisions of our courts 
 applying our national legislation governing the rights of aliens or 
 the enforcement of our international obligations are at best illus- 
 trative of what this country considers international law. The value 
 of a study of the principles of international law derived by induc- 
 tion from such cases setting forth national views in regard to in- 
 ternational relations will be vitiated by whatever error the national 
 viewpoint enfolds. The true principles are best derived from the 
 arguments presented before international arbitrators and weighed 
 in the arbitral awards, or else in the correspondence between 
 governments setting forth their respective views. 1 
 
 The defect from which some collections of cases suffer by rea- 
 
 1 Pitt Cobbett, in his interesting preface, says, in reference to his selection of ex- 
 tracts from decisions by national courts: "I am quite aware that this continual 
 reference to case law as illustrative of topics, which sometimes seem scarcely to 
 come within the domain of the courts, may occasionally appear strained and awk- 
 ward. Thus, the insertion of the case of the Cherokee Nation v. the State of Georgia, 
 as an authority on the subject of state character, of the cases of the Eliza Ann and 
 the Teutonia on the subject of 'Declaration of War,' may seem to give an untrue 
 idea of the real origin and foundation of the rules of international law on these sub- 
 jects. My purpose, however, was not so much to indicate the origin of such rules, 
 as to show how far they were sanctioned by the decisions of recognized legal au- 
 thorities." (Pitt Cobbett, Leading Cases and Opinions on International Law [London, 
 1885], P- vL). 
 
 The purpose which Pitt Cobbett had in 1885 is so well recognized in 1916 that it 
 would seem to justify at this time a more scientific basis for the selection of cases. 
 Mr. Cobbett 's third edition (1909) of his valued work bears testimony to the truth 
 of this statement.
 
 viii PREFACE 
 
 son of the inclusion of much material which is not international 
 law is almost equaled by a related deficiency the omission of 
 all consideration of some of the most important topics because 
 they do not ordinarily come before the national courts. Some- 
 times an attempt to fill this gap with judicial rubble has led to 
 the inclusion of an irrelevant obiter dictum of some learned judge 
 straying wide afield of the case submitted for his decision. The 
 student will derive a greater benefit from the study of the argu- 
 ments marshaled to support a government's views or action when 
 these arguments are the opinions of such men as Jefferson, Marcy, 
 or Gushing. If we do include an obiter dictum of our great Mar- 
 shall, it must be because of its lucid statement of principle, and 
 not because it comes from a national court discoursing on inter- 
 national law. 1 
 
 Whether arbitral, diplomatic, or judicial, in their nature the 
 aim has been to select a few cases and incidents involving the 
 more important principles. No selection of cases can cover all 
 phases of international law. It is for the instructor to supplement 
 the cases and direct the student to other sources of information. 
 
 An illustrative case which would possess all the elements de- 
 sired as a basis for study is as rare as a perfectly sound horse. 
 The value of any collection must depend on the harmonious com- 
 bination of cases with a view to the proper emphasis on the most 
 important characteristics of international relations. 
 
 The selection of the cases hi this volume from the mass of 
 material and the hundreds of cases examined has been deter- 
 mined by the effort to give due weight to the relative importance 
 of the following desiderata: 2 
 
 1 In certain cases, notably of neutrality, national courts are called upon to in- 
 terpret international law, and many of these cases constitute our most valued pre- 
 cedents. But even here it must be remembered that the precedent results from the 
 fact that the government of the other state has considered the decision rendered 
 sufficiently in accord with international law not to enter a protest and insist upon 
 an adjustment through arbitration or through the diplomatic channel. 
 
 J In 1914 a remarkable conference of teachers of international law, representing 
 the principal institutions of learning, adopted the following resolution: 
 
 "(a) In the teaching of international law emphasis should be laid on the 
 positive nature of the subject and the definiteness of the rules. 
 
 "Whether we regard the teaching of value as a disciplinary subject or from 
 the standpoint of its importance in giving to the student a grasp of the rules 
 that govern the relations between nations, it is important that he have im-
 
 PREFACE ix 
 
 (1) the most important arbitrations; 
 
 (2) the most important diplomatic incidents discussed between 
 the governments of the principal states; 
 
 (3) a large proportion of recent material; 
 
 (4) cases which are authoritative and which have been im- 
 portant in the formation of international law; 
 
 (5) striking cases of dramatic human interest; 
 
 (6) cases sufficiently simple to be easily comprehended, yet 
 complex enough to be representative and to challenge at- 
 tention. 
 
 In addition, it has been necessary to have regard for the ap- 
 portionment of the cases under the respective headings. Almost 
 
 pressed upon his mind the definiteness and positive character of the rules of 
 international law. The teaching of international law should not be made the 
 occasion for a universal peace propaganda. The interest of students and their 
 enthusiasm for the subject can best be aroused by impressing upon them the 
 evolutionary character of the rules of international law. Through such a pres- 
 entation of the subject the student will not fail to see how the development of 
 positive rules of law governing the relations between states has contributed 
 towards the maintenance of peace. 
 
 "(&) In order to emphasize the positive character of international law, the 
 widest possible use should be made of cases and concrete facts in international 
 experience. 
 
 "The interest of students can best be aroused when they are convinced that 
 they are dealing with the concrete facts of international experience. The mar- 
 shaling of such facts in such a way as to develop or illustrate general principles 
 lends a dignity to the subject which cannot help but have a stimulating in- 
 fluence. 
 
 "Hence, international law should be constantly illustrated from those sources 
 which are recognized as ultimate authority, such as: (a) cases, both of judicial 
 and arbitral determination; (i) treaties, protocols, acts, and declarations of 
 epoch-making congresses, such as Westphalia (1648), Vienna (1815), Paris 
 (1856), The Hague (1809 and 1907), and London (1909); (c) diplomatic incidents 
 ranking as precedents for action of an international character; (d) the great 
 classics of international law. 
 
 "(c) In the teaching of international law care should be exercised to dis- 
 tinguish the accepted rules of international law from questions of international 
 policy. 
 
 "This is particularly true of the teaching of international law in American 
 institutions. There is a tendency to treat as rules of international law certain 
 principles of American foreign policy. It is important that the line of division 
 be dearly appreciated by the student. Courses in the foreign policy of the 
 United States should therefore be distinctly separated from the courses in in- 
 ternational law, and the principles of American foreign policy, when discussed 
 in courses of international law, should always be tested by the rules which have 
 received acceptance amongst civilized nations. 
 
 " (d) In a general course on international law the experience of no one coun- 
 try should be allowed to assume a consequence out of proportion to the strictly 
 international principles it may illustrate." 
 
 This collection of cases, it is hoped, will furnish a basis for class instruction in 
 substantial conformity with the above resolution.
 
 x PREFACE 
 
 all the cases which have arisen between states when under the 
 regime of war or neutrality have been excluded, so that those se- 
 lected might show the law of peace in time of peace. 
 
 Wherever possible, the exact words of the official representa- 
 tive have been retained and indicated by quotation marks. To 
 
 avoid confusion, quotation marks have not been 
 o/case? ti employed even when the account has been taken 
 
 textually from some authority who is himself relat- 
 ing the course of events, but in every such instance the fact of 
 such partial or textual borrowings is conspicuously noted in paren- 
 thesis immediately following the case or the paragraph containing 
 the extract. We have especially to thank Professor Moore for his 
 kind permission to make such extracts from his Digest of Inter- 
 national Law and his International Arbitrations. 1 The exact words 
 of the statesman bring home the real nature of international in- 
 tercourse better than any paraphrase can hope to, and where for 
 lack of space it has been necessary to abridge, every effort has 
 been made to adhere as closely as possible to the original. The 
 same may be said in regard to translations. After all, it must 
 not be forgotten that there is as yet no technical language of in- 
 ternational law, and even when French itself, the official language 
 of diplomacy, is employed, the genius of the language abhors the 
 employing of words in a technical sense. The simplest expression 
 of the fundamental idea is the fit language for international law. 
 The aids to its comprehension are familiarity with the practice of 
 independent states and breadth of vision. In many instances it 
 is necessary to comprehend the principles of the Roman law, 
 which as "written reason" was applied to settle many a con- 
 troversy between the states of Europe. 
 
 The estimate of the value of the cases as precedents illustra- 
 tive of the law of nations must change in the light of each ad- 
 vance in science. It is better that the student should exercise his 
 own critical faculties, assisted by the instructor, than that he 
 should find the cases clogged with footnotes giving the authors' 
 view of the law and their interpretation of the illustrative case. 
 
 1 Much of the material in this volume has come from these two works, where 
 the student will find the fuller references and amplification of instances to widen 
 his knowledge.
 
 PREFACE xi 
 
 An effort has been made to obviate the inconvenience due to the 
 absence of explanatory notes by means of the index, which com- 
 bines in a convenient alphabetical arrangement the following 
 features: 
 
 (1) a dictionary or glossary, denning some of the most impor- 
 tant words, and giving the meaning of foreign and unusual 
 words, when a translation in brackets is inadequate; 
 
 (2) a list of the cases considered and important citations of 
 others; 
 
 (3) an index of subject-matter, so that it will be easy to utilize 
 the material of the whole book; 
 
 (4) names of the statesmen and judges, with references to their 
 statements; 
 
 (5) cases and incidents classified under the states to which 
 they relate; 
 
 The classification of the material selected does not follow any 
 existing model. There is no accepted systematic classification of 
 international law, and we have not found it feasible 
 to follow any model in our arrangement of the mate- 
 rial. The limitations of a case book make necessary a simple divi- 
 sion into chapters with few subheadings a mere skeleton about 
 which the flesh may form. The test of any classification is, first, its 
 usefulness or practicability, and, second, its accuracy, so that each 
 instance may easily be placed and rediscovered under its proper 
 heading. We hope that the classification which we offer may de- 
 monstrate its superiority over many of the antiquated systems 
 now employed, but even should the instructor prefer some other 
 plan, his students will be helped to avoid the error, so natural to the 
 uninitiated, that there is something sacred and unalterable about 
 any classification they may chance to study. No words need be 
 wasted in explanation, since the plan of classification adopted 
 can easily be understood at a glance. 
 
 No rules can be given to direct the student in the use of the 
 cases, since the system employed will depend very much upon 
 the methods of instruction followed; yet subject to m . 
 
 Method of study 
 
 such correction and modification as the instructor 
 
 may furnish, the student will find it profitable to consider the 
 
 following suggestions:
 
 xii PREFACE 
 
 Never attempt to learn the cases by heart, since such a habit 
 tends to blunt the reasoning faculties. 
 
 After reading the case through thoroughly and deliberately, 
 shut the book and repeat over aloud the substance of the argu- 
 ments on both sides, concluding with a statement of the decision 
 and the action taken. This rehearsal is very important, because, 
 when the student comes into class and says a word or two, there 
 will be a tendency for his tongue to follow freely in the groove 
 previously worn by his spoken word. After this first repetition, 
 let the student, before he looks again at the book, write out very 
 briefly the main point or points in dispute, after which let him 
 speak aloud (or write, or both) what he thinks is the law or princi- 
 ple applicable (conscious always of the probability that his reply 
 is deficient). 
 
 The next step may well be to consult one or more authorities, 
 rigidly turning aside from all side issues (or he will never finish 
 the case) until he finds a consideration of the principle applicable. 
 Then let him return to a second reading of the case in the light of 
 his reflection and study of the sources, when, unless the case is 
 very involved, he should reach such a thorough understanding of 
 it, as to make it easy for him to repeat the case aloud to himself. 
 He is now ready to recite it with fluency in the classroom. 
 
 If time allows, the student may try several further means to 
 deepen his acquaintance with the principles involved in the case. 
 
 It is essential for the student to fix the main principles in his 
 mind before he attempts to retain or understand matters of 
 detail. 
 
 As the instructor may ask him to criticize or defend the views 
 expressed, he should have firmly in his grasp the necessary argu- 
 ments and references to sources. It is here that he should avail 
 himself of his capacity for accurate memorizing and should refer 
 to the sources, giving exact names, editions, even page numbers, 
 when he can be sure. Especially should he acquire the habit of 
 referring to treaties by the name of the city of signature, and by 
 the date of the month as well as of the year. 
 
 Every student should take occasion to interpose from time to 
 time in the discussion, if for no other reason than to acquire the 
 habit of participating in the work of the class. Many a good
 
 PREFACE xiii 
 
 student, through shyness or for other reasons, loses a valuable 
 opportunity to deepen his mastery of the subject. These inter- 
 ruptions will not be resented by the instructor and members of 
 the class, if they are not too frequent and if the question or re- 
 mark be tersely stated. Someone has said that if you do not want 
 to be a bore, you must drop the subject the moment your state- 
 ment is understood. Just so in the class. The point or objection 
 should be concisely stated to the best of the student's ability, 
 and dropped in mid-course as soon as the meaning is clear. 
 
 In the recitation, each side of the question may be assigned to 
 a different student, who will be asked to present the arguments 
 for his side, and then to refute those of the other. This course 
 may be advantageously applied by two or more students working 
 together. Each one can represent in the discussion one of the 
 governments concerned. This moot-diplomacy method may be 
 used in the cases of arbitration, and the important questions of 
 arbitral procedure can thus be taken up in conjunction with the 
 study of the principles decided in the awards. 
 
 This method can be further used to advantage for a more de- 
 tailed and complete study of the practice of diplomacy than any 
 textbook can provide. 
 
 These with other variations may be employed by the teacher, 
 when the members of the class have had sufficient experience 
 and acquaintance with the principles to make such modifications 
 of the routine class methods profitable. 
 
 The greatest danger in using the case system is that a few of 
 the better men do all the work, and unless the class is to be in- 
 flicted with the intolerable burden of a halting recitation, a few 
 soon become spokesmen for the class. To obviate this, the in- 
 structor must permit interruption even when it breaks into the 
 thread of the argument, and give an encouraging answer, so 
 that the interrupter feels well pleased with his achievement. 
 The important argument can then be resumed where it was 
 left off. 
 
 When time presses and the cases have accumulated, many 
 pages may be covered by short, incisive, searching questions, 
 which allow the student to show his mastery of the case, where- 
 upon the instructor turns to the succeeding case.
 
 xiv PREFACE 
 
 Of course the class should not be taken in alphabetical order 
 or too systematically. Constant side questions, often answerable 
 by a yes or a no, will keep all upon the qui vive, without confusing 
 the statement of the case or wasting time. 
 
 It is important to acquire the habit of referring to the cases by 
 name, and it will be preferable to announce that the examinations 
 will be based upon the cases in the book and upon others closely 
 analogous. The instructor may prepare such cases for examina- 
 tion purposes, varying in difficulty according to the capacity of 
 the students, and involving principles or facts similar to the cases 
 studied but not always identical with them. In discussing such 
 cases, students will find occasion to refer to the cases in the text 
 and to make application of the principles they illustrate. 
 
 Without keeping any record of the recitations, the instructor will 
 be able to follow the work of the students, if the class is not too 
 large, and to rely upon the eagerness to learn as the sole stimulus. 
 Where the preceptor does not feel justified in thus throwing the 
 entire responsibility upon the student, he may, of course, keep an 
 accurate account of the recitations and notify the delinquents 
 from time to time. 
 
 In conclusion, I would emphasize that this collection of cases 
 does not claim to cover every principle, but only those best rec- 
 ognized or most important. The supplementary use of some good 
 text book should be urged upon every student. The selection of 
 cases should, however, constitute the basis of the work of the 
 class. At the same time the better students should be 
 allowed and encouraged to pursue their investigations further 
 afield. 
 
 It is almost inevitable at times that several recitations will be 
 spent upon one assignment, but by lengthened assignments and 
 increased speed of recitation, the instructor will be able to regain 
 the lost time. Skipping is to be avoided, since it always dis- 
 courages a class not to recite the lesson for which it has made 
 careful preparation. The course can easily be lengthened by sup- 
 plemental lectures or additional cases assigned for investigation 
 and report by some of the more advanced and enthusiastic 
 students. 
 
 In addition to the general aids to the study of cases as given
 
 PREFACE xv 
 
 above, it will be well for the student to ask himself whether the 
 case he is studying is properly and well placed under the heading 
 of the book, or whether it does not more properly be- Spedal ^ Tec . 
 long under another section. From time to time the tions to the 
 student should re-read these preparatory remarks in 8 
 regard to the methods of study, and the introductory chapter 
 explaining how to find the law. In reference to each case, he may 
 find some useful hints in the index, but it will be better for him 
 to search out from other sources all the explanation of the cases, 
 and consult the index only after he has put forth his own efforts. 
 In this way the index will not become a lazy man's mental 
 crutch, but will serve as a useful indication of the success of 
 his research and as guide for his investigations in a succeeding 
 case. 
 
 Students who wish to attain a profound knowledge of inter- 
 national law should early acquire the habit of consulting the 
 principal sources and authorities. The following are among the 
 more important: 
 
 Moore: International Arbitrations (1898), 6 vols. 
 
 Moore: Digest of International Law (1906), 8 vols. 
 
 Foreign Relations of the United States. 
 
 British and Foreign State Papers. 
 
 American Journal of International Law. 
 
 Malloy: Treaties, 2 vols., 1910; 3d vol., 1913. 
 
 Westlake: International Law (26. edition), 2 vols., Part I, 
 Peace, 1910; Part n, War, 1913 (Cambridge University Press). 
 
 Further bibliographical indications will be found in the preced- 
 ing and in: 
 
 Hershey: The Essentials of International Public Law (1912, 
 Macmillan). 
 
 Oppenheim: International Law (2d edition, 1912); vol. I, Peace; 
 vol. n, War and Neutrality (Longmans, Green & Co.). 
 
 Moore, Hershey and Oppenheim all give references to non- 
 English sources. 
 
 Although the original plan of the book and the selection of the 
 cases are mine, Mr. Munro deserves the principal 
 credit for the preparation of the material which is 
 new. The unique account of the Hague Arbitration Cases,
 
 xvi PREFACE 
 
 which are the backbone of the book, are almost entirely his 
 work. 1 
 
 We cannot adequately express our thanks to Professor Moore 
 for many suggestions which have been followed with profit, nor 
 for the extensive borrowing of material from his two Digests. We 
 have preferred to acknowledge that what he has done cannot be 
 improved, rather than to seek after a vain appearance of original- 
 ity. Much of the material is nevertheless newly prepared, and that 
 which is taken over from other sources will be made available for 
 use in the classroom, whither the many-volumed works of the great 
 collections of sources cannot conveniently be carried. 
 
 We acknowledge our debt to Miss Helen C. Nutting for the 
 preparation of the material in the Mattueof case and the Prit- 
 chard affair, as well as for the care with which she has checked up 
 references and helped to correct the proof. 
 
 E. C. S. 
 
 COLUMBIA UNIVERSITY, 
 March, 1916. 
 
 1 While Mr. Munro was assisting Professor Wilson at Harvard he had an oppor- 
 tunity to pursue, with a group of advanced students taking Dr. Wilson's course on 
 the Hague Arbitrations, the critical study of those cases. No work could have been 
 more beneficial as a preliminary to the preparation of these cases, though it in no 
 way lessens the originality of Mr. Munro's contribution.
 
 CONTENTS 
 
 INTRODUCTION 
 
 Triquet P. Bath 
 The Paquete Habana. 
 
 PART I 
 DIPLOMACY: THE INTERCOURSE OF STATES 
 
 CHAPTER I 
 
 THE RIGHTS AND DUTIES OF THE AGENTS OF 
 INTERNATIONAL INTERCOURSE 
 
 { i. DIPLOMATIC REPRESENTATIVES 
 
 The Case of Mattueof, Ambassador of Peter the Great (1708) . 3 
 
 The Case of Gallatin's Coachman (1827) 7 
 
 Soule's Case (1854) 9 
 
 The Lord Sackville West Incident (1888) 10 
 
 Duke of Ripperda's Case (1726) 16 
 
 Expulsion of the Secretary of the Nunciature at Paris (1906) . . 17 
 
 2. CONSULS 
 
 Consul Priest's Case (1855) 18 
 
 Barbuit's Case (1737) 19 
 
 Consul Weile's Claim (1870) 22 
 
 The Pritchard Affair (1844) 22 
 
 The Case of Lee Jortin (1900) 26 
 
 Consul Rogers's Case (1866) 30 
 
 Dillon's Case (1854) 31 
 
 The Incident of the French Consulate at Florence (1887-88) . . 34 
 
 3. OFFICERS 
 
 The Case of the Forte (1863) 38 
 
 Captain Gamble's Case (1818) 43 
 
 Protection of Americans in Turkey (1895) 44 
 
 Restoration of Order in Samoa (1889) 45 
 
 $ 4. SOVEREIGNS: HEADS OF STATES 
 
 De Haber r. The Queen of Portugal (1851) 46
 
 XV111 CONTENTS 
 
 CHAPTER II 
 
 METHODS OF PROCEDURE FOR THE SETTLEMENT OF 
 INTERNATIONAL DIFFERENCES 
 
 5. DISCUSSION AND COMPROMISE . . . ". 47 
 
 6. MEDIATION AND GOOD OFFICES 
 
 The Caroline Islands (1885) 49 
 
 Protection of Venezuelan Citizens in France (1895) . . . .51 
 The Case of Martin Koszta (1853) \ : .51 
 
 7. CONFERENCES 
 
 The First Hague Peace Conference (1899) 52 
 
 8. ARBITRATION, ARBITRAL PROCEDURE, AND THE PRESENTATION OF 
 CLAIMS 
 The John H. Williams Claim (1885) . . . . ! . 'i . .55 
 
 9. MEASURE OF DAMAGES 
 
 Russia v. Turkey (1912) 58 
 
 10. REVISION OF ARBITRAL AWARDS 
 (a) Res judicata 
 
 The Pious Fund of the Californias (1902) 64 
 
 (6) Corruption of the tribunal 
 
 The Claims against Venezuela (1866-90) 69 
 
 (c) Fraudulent claim 
 
 The Weil and La Abra Cases (1868-1902) 75 
 
 (d) Excess of power 
 
 The Northeastern Boundary of the United States ( 1 83 1 ) . . 8 1 
 
 (e) Essential error 
 
 The Pelletier Claim (1884-87) 82 
 
 The Orinoco Steamship Company Case (1910) .... 89 
 (/) New evidence 
 
 The Lazare Claim (1884-87) 96 
 
 ii. COMMISSIONS OF INQUIRY 
 
 The Dogger Bank Incident (1904) 98 
 
 12. PROTESTS AND APOLOGIES 106 
 
 13. COERCIVE MEASURES SHORT OF WAR 
 (c) Retorsion 
 
 (See The Wohlgemuth Affair, p. 137) 
 
 Legislative retorsion against British vessels (1818) .... 107 
 
 (b) Reprisals 
 
 (See The Case of the Forte, p. 38) 
 
 (c) Threats and the display of force 
 
 The Case of the Suchet (1902) 107
 
 CONTENTS XIX 
 
 (d) Withdrawal of diplomatic representatives 
 
 The United States and Venezuela (1908) 108 
 
 (See The Zappa Incident, p. 155, and The New Orleans Lynch- 
 ing, p. 264.) 
 
 () Collective intervention 
 
 Collective intervention of the Powers in China (1900-01) . .112 
 The Return of the Chinese Indemnity (1907) . . . . .117 
 
 (/) Use of force 
 
 The Bombardment of Greytown (1854) . . . .' . 119 
 
 14. SELF-HELP 
 
 The Caroline and the McLeod Cases (1837-42) . . . , : . 121 
 American Naval Officers sent to aid Missionaries in Turkey (1895) 124 
 
 CHAPTER III 
 
 TREATIES AND OTHER INTERNATIONAL AGREEMENTS 
 15. FORMATION OF TREATIES 126 
 
 16. INTERPRETATION AND APPLICATION OF TREATIES 
 
 Vested rights in the Canal Zone (1913) 127 
 
 Perpetual Leases in Japan (1905) 127 
 
 5 17. TERMINATION OF TREATIES 
 
 The Neutralization of the Black Sea (1856, 1870-71) .... 134 
 
 The Wohlgemuth Affair (1889) 137 
 
 The Effect of War on Treaties 149 
 
 PART II 
 
 THE LAW OF NATIONS: SUBSTANTIVE INTERNATIONAL 
 
 LAW RECOGNIZED BY GOVERNMENTS AS A RULE OF 
 
 CONDUCT BINDING UPON THEM AND OBSERVED 
 
 BY THEM IN PRACTICE. 
 
 CHAPTER IV 
 THE EQUALITY OF STATES 
 
 S 18. SOVEREIGNTY, INDEPENDENCE, AND EQUALITY 153 
 
 (a) Sovereignty 
 
 An Arrest in Canada (1863) 154 
 
 (6) Independence 
 
 The Zappa Affair (1891) 155 
 
 Underbill v. Hernandez (1897) 156 
 
 The Brazilian Coffee Case (1912) 159
 
 XX CONTENTS 
 
 (c) Equality 
 
 United States and Colombia (1888) 162 
 
 (d) Respect 
 
 Respect for the American Flag in Greece (1909) .... 163 
 
 19. RECOGNITION 
 (c) New States 
 
 The United States and Buenos Ayres (1818) ..... 164 
 (&) New Governments 
 
 The French Republic (1848) 166 
 
 20. STATE SUCCESSION 
 
 (a) Things and obligations 
 
 The Sapphire (1871) 168 
 
 The Cuban Debt (1898) 170 
 
 (&) Allegiance 
 
 The Nationality of the French Residents of Alsace-Lorraine 
 
 (1871) 172 
 
 (c) Property rights of individuals 
 
 The Canal Zone Squatters (1913) 174 
 
 21. SERVITUDES AND LEASES 
 
 The North Atlantic Fisheries Arbitration (1910) .... 177 
 Leased Territory in China (1898) 203 
 
 22. TITLE TO TERRITORY 
 
 The Falkland Islandi (1829) 208 
 
 CHAPTER V 
 
 THE RESTRICTIONS WHICH INTERNATIONAL LAW PLACES 
 UPON THE EXERCISE OF JURISDICTION BY THE STATE 
 WITHIN THE NATIONAL BOUNDARIES 
 
 23. PHYSICAL LIMITS WITHIN WHICH A STATE is RECOGNIZED AS 
 SOVEREIGN AND RESPONSIBLE FOR THE ENFORCEMENT^- INTER- 
 NATIONAL LAW 
 The Fur Seal Arbitration (1893) 218 
 
 24. IMMUNITIES OF THE AGENTS OF INTERNATIONAL INTERCOURSE 
 
 The Schnaebete Incident (1887) 225 
 
 25. LEGATIONS 
 
 The Nikitchenkoff Case (1865) . 228 
 
 26. ARMED FORCES AND WARSHIPS 
 
 The Schooner Exchange (1812) 230 
 
 (See The Casablanca Arbitration, p. 377.)
 
 CONTENTS XXI 
 
 27. ASYLUM 
 
 The Spanish Warships at New Orleans (1862) . : .^' ', . .242 
 The Overthrow of Balmaceda (1891) 243 
 
 28. MERCHANT VESSELS 
 
 The Cases of the Sally and the Newton (1806) . . . . . 246 
 
 The Case of the Creole (1853) . .248 
 
 The Wildenhus Case (1886) ;..;* . . 253 
 
 29. RIGHTS OF ALIENS 
 
 The Torrey Case (1903) 259 
 
 The Cadenhead Case (1914) 262 
 
 The New Orleans Lynching (1891) 264 
 
 Connell's Case (1888) 270 
 
 The Case of Mrs. Honey (1887) 273 
 
 CHAPTER VI 
 THE REGULATION OF COMMERCE, TRAVEL, AND SOJOURN 
 
 30. REGULATION OF IMMIGRATION AND SOJOURN 
 
 The Case of Charalambis (1903) 275 
 
 The Case of Roussel (1909) 276 
 
 The Case of Alfred Lumb (1910) 280 
 
 31. EXPULSION 
 
 The Case of Ben Tillett (1896) 284 
 
 Paquet's Case (1903) 290 
 
 $ 32. TARIFF AND REGULATION OF IMPORTS 
 
 Guatemalan Customs Laws (1875) 291 
 
 Inspection of American Pork Exports 292 
 
 5 33- TRANSIT FACILITIES 
 
 Privileges of Transit to Chinese Laborers (1882) 295 
 
 Navigation of the Mississippi (1792) 296 
 
 CHAPTER VII 
 THE PROTECTION OF NATIONAL INTERESTS ABROAD 
 
 5 34. BASIS OF PROTECTION 
 
 The Koszta Case (1853) 298 
 
 35. NATIONALITY OF INDIVIDUALS 
 
 The Case of Dubuc (1910) 311 
 
 Jus Sanguinis and Jus Soli in Chile (1907) 315 
 
 The Canevaro Claim (1912) 316 
 
 36. EXPATRIATION AND PERPETUAL ALLEGIANCE 
 
 The Warren and Costello Cases (1867) 320 
 
 The Case of John B. Foichat (1884) 322
 
 XX11 CONTENTS 
 
 37. PROTECTION OF THE LIFE, LIBERTY, AND PROPERTY OF NATIONALS 
 
 WITHIN ANOTHER STATE . . . T 325 
 
 38. NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 The Case of the Caracas Waterworks (Compagnie Generate des 
 
 Eaux de Caracas) (1903) 325 
 
 The Alsop Claim (1911) 326 
 
 The Delagoa Bay Railway Arbitration (1900) 334 
 
 39. NATIONALITY AND PROTECTION OF VESSELS 
 
 The Dhows of Muscat, France and Great Britain (1905) . . . 350 
 
 The Case of Francis Boyle (1853) 359 
 
 The Case of the Masonic (1879) 361 
 
 40. PROTECTION OF PROPERTY AND PERSONS OF NATIONALS ON THE 
 HIGH SEAS, AND ELSEWHERE OUTSIDE THE FRONTIERS OF ANY 
 STATE 
 
 Impressment of Seamen 368 
 
 The Case of the Virginius (1873) 368 
 
 The Case of the Costa Rica Packet (1888) 371 
 
 CHAPTER VIII 
 
 THE CONTROL OVER NATIONALS AND NATIONAL VESSELS, 
 AND THE EXERCISE OF JURISDICTION OVER CERTAIN 
 ACTS OCCURRING WITHIN A FOREIGN STATE 
 
 41. EXERCISE OF JURISDICTION OVER REPATRIATED NATIONALS FOR 
 CRIMES AND ACTS DONE ABROAD 
 Offenses committed by Frenchmen abroad (1910) .... 373 
 
 42. EXERCISE OF JURISDICTION OVER NATIONALS RESIDENT ABROAD 
 
 Marriage of American Women to Subjects of Greece (1910) . . 374 
 
 The Case of Arakelyan (1885) 375 
 
 (See The Charlton Case, p. 408.) 
 
 43. CONSULAR OR EXTRATERRITORIAL JURISDICTION 
 
 The Casablanca Arbitration (1909) 377 
 
 44. EXERCISE OF JURISDICTION OVER ALIENS FOR ACTS DONE WITHIN 
 
 ANOTHER STATE 
 Cutting's Case (1886) 386 
 
 45. TAXATION OF PROPERTY SITUATED ABROAD 
 
 (See Case of Arakelyan, p. 375, and Case of Mrs. Honey, p. 273) . 390 
 
 46. CONTROL OVER VESSELS FLYING THE NATIONAL FLAG 
 
 Regina v. Lesley (1860) 390 
 
 The Tcherniak Affair (1907) 392
 
 CONTENTS xxii: 
 
 CHAPTER IX 
 
 THE COOPERATION OF STATES FOR A RECIPROCAL 
 BENEFIT 
 
 47. RECIPROCITY AS A BASIS OF TREATMENT BETWEEN GOVERNMENTS 
 
 The Santa Cruz (1798) ." ... 394 
 
 Cattle on the Mexican Border (1896) 401 
 
 48. COMITY 
 
 The Case of Binzegger (1884) 401 
 
 The Case of Jacob Franck (1896) 402 
 
 49. EXTRADITION 
 
 The Extradition of Nalbandian (1910) 403 
 
 The Charlton Extradition Case (1913) 408 
 
 The Case of Myers and Tunstall (1862) 411 
 
 ! Anarchists (1894) 412 
 
 United States r. Rauscher (1886) 413 
 
 The Savarkar Case (1911) 416 
 
 50. LETTERS ROGATORY 
 
 Letters Rogatory (1874) 422 
 
 CHAPTER X 
 
 51. PIRACY 
 
 Sir Leoline Jenkins relates the Trial of Privateers for Piracy (1675) 424 
 
 52. PROTECTION OF SOVEREIGN INTERESTS 
 
 The Emperor of Austria r. Day and Kossuth (1861) .... 425 
 
 53. POLICE ACTION BY COLLECTIVE INTERVENTION 
 
 The Blockade of Zanzibar (1888-89) 43O 
 
 5 54. SLAVE TRADE 
 
 The Case of the Brig Lawrence (1848) 430 
 
 55. MARITIME JURISDICTION 
 
 The Scotia (1871) 432 
 
 56. FOREIGN JUDGMENTS 
 
 Hilton v. Guyot (1894) 436
 
 XXIV CONTENTS 
 
 57. PROTECTION OF THE LIFE AND LIBERTY OF NATIONALS OF OTHER 
 STATES 
 
 The Merchant Shipping Act (1876) 439 
 
 The Jews in Persia (1897) . . . ..... . . .445 
 
 58. SUCCOR 
 
 The Italian Earthquakes (1908) 446 
 
 CHAPTER XI 
 
 COOPERATIVE ACTION BETWEEN A GROUP OF STATES 
 FOR THE PROTECTION OF THEIR COMMON INTERESTS 
 
 59. INTERNATIONAL COMMISSIONS FOR THE REGULATION OF RIVERS 
 
 Navigation of European Rivers (1814-15) 450 
 
 60. INTERNATIONAL UNIONS 
 
 Universal Postal Union 451 
 
 LIST OF CASES 455 
 
 LIST OF ARBITRATIONS 460 
 
 INDEX 461
 
 INTRODUCTION 
 
 THE SOURCES OF INTERNATIONAL LAW: HOW TO 
 KNOW THE LAW 
 
 IF the reader or student were to place himself in the position 
 of the officials who are entrusted with the direction of the foreign 
 relations of the government, he would have to ask himself: Where 
 shall I look for the guide of my action? 
 
 In such circumstances the first rule of conduct must be in lieu 
 of a better to follow the practice of his predecessors in office. 
 This merely would mean to apply the system which the newly ap- 
 pointed official finds in operation. Since, however, no two cases 
 are identical, before the official can decide what action to take in 
 any particular instance he must first have discovered what are the 
 governing principles of the existing practice. He will find that 
 the first means of ascertaining them will be to search out the pre- 
 cedents upon which the position taken by the government is 
 based, and thus advised, he will attempt to maintain what he 
 considers to be this position of his state. He will, however, al- 
 ways take into account the protection of the immediately im- 
 portant interests of his country. Every government attempts to 
 secure the recognition of its views as shown by its practice, inter- 
 preted in such a way as to protect the nation's interests. This 
 same procedure pursued by the officials of another government 
 may result in a stand quite at variance with that of the first- 
 mentioned government. What will those responsible for the ef- 
 fective direction of their country's foreign affairs do in such a 
 case? 
 
 The first proceeding, which is also the easiest and simplest, is 
 to reach some direct agreement for the settlement of the matter. 
 Since, however, it is more convenient to have a general rule 
 than to waste tune in reaching a separate understanding for each 
 separate instance, governments enter into broader agreements,
 
 xxvi INTRODUCTION 
 
 called conventions or treaties, 1 to regulate these matters. An- 
 other advantage of this mechanism is that the governments con- 
 cerned are able, through mutual concessions in regard to points 
 of minor importance, to obtain a compromise rule of regulation 
 embracing what each considers essential. This method of solu- 
 tion by compromise agreements, based upon reciprocal concession, 
 is the foundation of the body of conventional or treaty stipula- 
 tions which govern such a great proportion of the relations be- 
 tween states, and also of the less formal agreements effected 
 through exchanges of notes or other friendly understandings. 
 
 Considerations of convenience will always lead diplomats to 
 expedite the matters entrusted to then* charge by the simple 
 and effective method of reference to treaty stipulations or by 
 entering into some agreement made for the event. Such a means 
 is employed to transact a great part of the business between 
 independent states. It may be said that every such instance is 
 governed by the well-recognized and fundamental principle of 
 international law that all agreements must be observed in good 
 faith pacta seruenda sunt. But in those cases where no treaty 
 or other agreement is recognized by both parties as applicable, 
 it may not always be possible to reach a satisfactory agreement 
 at the moment, and where a solution presses it becomes necessary 
 to supplement by other rules the one which we have just enunci- 
 ated. 
 
 The next or second rule for a government to employ to deter- 
 mine its conduct looks to the observance of the previous practice 
 in the absence of some rule demonstrated to be superior. When, 
 however, the rule of a compromise agreement between the views 
 of the governments themselves based upon the national practice 
 and interests of each of the governments concerned, has not proved 
 
 1 From time to time the representatives of the nations in conclave have entered 
 into treaties binding their respective states to observe certain rules of general applica- 
 tion. This is sometimes a codification of existing law to make easier its application 
 and to avoid disputes. Again, it may be a conventional rule, for the regulation of 
 questions of minor importance, where the primary consideration is to obtain a fixed 
 rule. In still other instances the rules agreed upon may really be in the nature of 
 legislation for the future. In this latter event, enthusiasm without experience often 
 seeks like Canute to arrest by words the irresistible advance of the forces of nature. 
 Experienced statesmen are cautious and modest in their attempts to originate legis- 
 lation for the world.
 
 THE SOURCES OF INTERNATIONAL LAW xxvii 
 
 efficacious, recourse must be had to another practice than that of 
 each nation considered separately. The general practice of hide- 
 pendent states, as shown hi previous controversies, must now 
 be considered. If it is found that similar differences in the 
 past have been regulated by two governments in a particular 
 manner, the officials of the two governments in disagreement 
 will, ordinarily, follow this practice. When the precedents are 
 numerous and extend over many years, the practice becomes a 
 custom. 1 
 
 1 It is natural that men should apply to the settlement of international affairs 
 the same rules with which they have been familiar as governing all their social re- 
 lations in more restricted fields that is, in national or local affairs. We find the 
 most generally prevalent and deeply revered rule to be that of the obligation to 
 observe the solution which has been followed in other cases stretching back beyond 
 the memory of man what is known as a custom. The recognition of the validity 
 of custom has two practical advantages. In the first place, custom almost univer- 
 sally means that when similar difficulties have occurred in the past, a peaceful solu- 
 tion was reached, and that this solution worked sufficiently well to lead to its 
 adoption when other similar situations occurred in other words, there is a pre- 
 sumption that the custom so followed is a practical and reasonably satisfactory rule 
 to apply. The second advantage of a customary rule is that it is fixed. All who 
 follow custom do so on the assumption that all recognized customs will be given due 
 consideration in the settlement of any difficulties which may arise. Even where it is 
 not possible to find a well-defined custom, governments, actuated by the consider- 
 ations above referred to, are generally ready to accord to isolated precedents a large 
 measure of respect. 
 
 Westlake states that "custom and reason are the two sources of international law," 
 and says in regard to the former: "Custom must not be confounded with mere fre- 
 quency or even habit of conduct. In any state or other society in which customary 
 law is admitted, custom as a part of law means the conduct which is enforced as well 
 as the strict or loose nature of the society allows, not always very well, even in 
 the case of national law in the ruder stages of national existence, and which is 
 followed as well from the fear of such enforcement as from the persuasion that the 
 received rule requires such conduct to be followed. In other words, custom is that 
 line of conduct which the society has consented to regard as obligatory. We have 
 seen that international law is law just because the conduct which it directs has the 
 character thus described, so that for custom to be a source of international law fol- 
 lows from the definition of each. Even for those who seek for international right 
 It droit international, or das Volkerrecht custom must be a source of such right so 
 far as the existence of the custom carries a presumption of its reasonableness, and so 
 far as in ordinary cases there is a duty of conscience to follow it, at least provisionally, 
 until it can be amended." (Westlake: International Law, part i, Peace [Cambridge, 
 1910], p. 14.) 
 
 The learned Lorimer remarks in regard to custom as a source of international law: 
 "From Vattel's time, again, till our own, partially including the latter, the effort has 
 been to determine the consuetude, which is accepted as the common law, without 
 reference to any absolute or necessary standard, and positive law is criticised or 
 amended only in accordance with prevailing sentiments, or with such experience of 
 its results as recent historical events are supposed to afford. Even where these experi-
 
 xxviii INTRODUCTION 
 
 When governments have not been able to reach a satisfactory 
 settlement, either by means of a compromise agreement or by the 
 application of a recognized international customary rule based 
 upon the practice of governments, unless the matter is to 
 be left to the realm of force, it will be necessary to discover still 
 other means. Recourse must then be had to reason to search out 
 the fundamental principles. Customary rules must be investi- 
 gated to discover the principles which they enfold; and when a 
 certain provision is found in many treaties oft repeated, reason 
 must discover the true underlying principle which is the fertile 
 soil to which the provision owes its growth. The overburdened 
 statesmen who bear the great responsibility of the conduct of 
 foreign affairs might well stagger before the task of applying their 
 reasoning faculties to the discovery of such principles and their 
 correct application to the actual difficulty. Nay, in many in- 
 stances it would be beyond their powers. Fortunately, however, 
 this work has been in great part prepared and lies ready at hand. 
 Jurists and students of international affairs of all nations have been 
 diligently devoting their attention to this very task. In the text- 
 books and commentaries are found the results of their investiga- 
 tions and mature deliberations. The bias which may be suspected 
 when an author treats of the interests which affect his beloved 
 country disappears before a consensus of authoritative interpre- 
 tation gathered from the textbooks prepared by jurists of all 
 nations and in all tongues. 1 
 
 Such in the main is the method which governments pursue to 
 
 ences amounted to a custom, which we have seen to be one of the most important 
 sources of the law of nations, Savigny's profound remark [Die Gewohnheit ist das Kenn- 
 zeichen des posiliven Rechts, nicht dessen Entstehungsgrund. System, vol. i, p. 35], 
 that ' custom is the mark by which we recognize positive law, not the ground from 
 which it springs,' was entirely overlooked." (Extract from Lorimer: Institutes of the 
 Law of Nations [1883], vol. I, pp. 81-82.) 
 
 1 "Reason is a source of international law not only for the seekers after inter- 
 national right, who will appeal to reason as a check on custom, but for all, and for 
 two causes. First, the rules already regarded as established, whatever their source, 
 must be referred to their principles, applied, and their principles extended to new 
 cases, by the methods of reasoning proper to jurisprudence, enlightened by a sound 
 view of the necessities of international life. Secondly, the rules as yet established, 
 even when so applied and extended, do not cover the whole field of international life, 
 which is constantly developing hi new directions. Therefore, from time to time new 
 rules have to be proposed on reasonable grounds, acted on provisionally, and ulti- 
 mately adopted or rejected as may be determined by experience, including the effect,
 
 THE SOURCES OF INTERNATIONAL LAW xxix 
 
 find a fixed rule applicable to the peaceful settlement of differences 
 between them. In rare instances no accord is possible and by 
 mutual agreement the difference is sometimes referred to arbitra- 
 tion. The advantages of arbitration are, first, that the parties 
 secure an impartial judge to apply the same system of interna- 
 tional law which they would ordinarily apply themselves; and, 
 second, that they isolate the question from all other disturbing 
 influences. A third advantage is that they get rid of the ques- 
 tion. They agree to agree at a fixed date, which is the date when 
 the award is rendered. Governments, in their relations one with 
 another, under the pressure of political considerations sometimes 
 
 not less important in international than in national affairs, of interest coupled with 
 preponderating power. 
 
 "With both custom and reason in our subject Roman law is so intermixed that 
 its position requires a separate notice to make it clear. Modern international law arose 
 at a time when the larger part of the world was subject to monarchical rulers with 
 whom their states were identified, and the Roman law was held to apply between 
 such persons as being the law common to them. The states of other than monarchical 
 constitution which had dealings with monarchs or with one another would have had 
 to submit to the rules which naturally existed in the more general case, even if, by 
 claiming rights as moral beings, they had not brought themselves under the Roman 
 law as the one code then deemed to be obligatory on moral beings. The rules which 
 flowed into international law from this source are now incorporated with the custom- 
 ary law of nations, and such is the respect still generally entertained for the Roman 
 law, which has been called written reason, that this part of the customary law is 
 never controverted even by the seekers after international right, although it may be 
 the subject of some of the controversies which are waged about the interpretation of 
 texts. Further, in applying to international law the methods of reasoning which belong 
 to jurisprudence, it is the reasoning of Roman law that has been applied, that system 
 being common not only to the continent of Europe but also to the English Court of 
 Admiralty." (Westlake: International Law, part i, Peace [Cambridge, 1910], pp. 
 
 I4-IS-) 
 
 A very important organ which helps to elucidate the true principles of international 
 law is the Institut de Droit International (Institute of International Law). Among its 
 members are some of the most learned jurists and distinguished statesmen. It holds 
 meetings every year or two to discuss international law as applied to questions of 
 pressing or general interest. A reporter entrusted with the preparation of each subject 
 for discussion has previously been in correspondence with each member so that the 
 proposals which he lays before the meeting are the results of mature and wide con- 
 sideration. After discussion, each article of the project or proposal is voted upon 
 with the amendments suggested. In the final form in which it is adopted, the project 
 or proposed regulation is printed in the Annual of the Institute, with a reasonably 
 full account of the discussions, and carries on its face the authority of the whole 
 Institute. When, however, the voting has been close, it is necessary to examine the 
 opinions and weigh the authority of the separate votes cast. Reason can never be 
 discovered by the vote of a majority, though in a world where the strength of a 
 majority has an influence so far-reaching, a majority vote of those supposedly or 
 presumably equal will itself have in its favor a presumption of reasonableness.
 
 xxx INTRODUCTION 
 
 depart from what they know to be the application of the well- 
 recognized rules of the law of nations. By insisting on the rec- 
 ognition of some national viewpoint in return for a reciprocal 
 complaisance, governments are able to apply or to misapply inter- 
 national law with a view to the protection of those vital interests 
 which are designated as policies. It is necessary always to bear 
 in mind this important distinction between international law and 
 those other matters which are properly characterized as political. 
 The superficial observer of international relations does not always 
 perceive that what he considers as law is often in reality political 
 action stalking in the guise of legality. Diplomacy is a practical 
 system applied by practical men, desirous of obtaining practical 
 results for their governments, and they do not hestitate to cloak 
 a political situation with a legal phraseology when they think 
 it will help to secure a more general and cheerful acceptance. 1 
 Experience will teach where to look for these political pitfalls. 
 
 To recapitulate, governments follow a system of rules based, 
 as we have seen, upon: 
 
 (1) The sanctity of treaties and other agreements which 
 must always be observed with absolute good faith. 
 
 (2) Custom, which demonstrates the actual practicality of 
 a rule of action, and furnishes thereby a presumption in 
 favor of its reasonableness. 
 
 (3) Reason, which is man's only sovereign guide, since reason 
 may always overrule any other rule for all rules are but 
 aids to reason and abase themselves in reason's majestic 
 presence. 2 
 
 The system of law thus established is the law governing the 
 
 1 Diplomacy is concerned with the carrying on of the relations between govern- 
 ments of independent states. Every government directs its diplomatic activities for 
 the accomplishment of two main purposes: 
 
 First, to secure the enjoyment of the rights which belong to it under international 
 law; and 
 
 Second, to maintain and extend the particular ideas and beliefs, known as policies, 
 which it cherishes. The latter phase of diplomacy we can consider only incidentally. 
 
 2 The system of international law is mainly contrived to avoid the dangers of 
 irresponsible conceptions of reason: as is well understood, our reason follows all too 
 closely our wishes and our passions. Responsible statesmen find their principal task 
 to save their nation from the errors in reasoning which the popular hatred or enthusi- 
 asm of the moment may engender.
 
 THE SOURCES OF INTERNATIONAL LAW xxxi 
 
 society of independent states. 1 It may be more concretely stated 
 as a rule of conduct actually observed by the governments of 
 independent states in their intercourse with one another, and 
 by them recognized as binding and enforceable by appropriate 
 action. 
 
 International law is not a system constructed to conform with 
 our ideals of what the practice of governments should be. How- 
 ever beautiful such a scheme might be, it would have little rela- 
 tion to human affairs. It may, nevertheless, be our duty to use our 
 influence in securing the recognition by the states of the world of 
 certain of these ideals. When recognized as law and actually ap- 
 plied by the consensus of states, what was an ideal or precept 
 of morality answers the tests and becomes a part of the law of 
 nations. 
 
 In the concrete cases which follow, the reader will find a repeti- 
 tion of what has been said above, though expressed in varied 
 language. With just one warning, to note with particular atten- 
 tion what governments do rather than what then: representatives 
 say, we leave the student to pursue uninterruptedly his quest of 
 that sublime, far-reaching, and all-controlling law which, govern- 
 ing the relations of all the states, governs thereby every man, 
 woman, and child dwelling on this planet; for states are but the 
 corporate expression of the individuals who compose them. And 
 as the science of the law of nations develops, the individual 
 emerges as the real if not the legal subject of that law. 2 
 
 TRIQUET v. BATH (1761) 
 
 Lord Mansfield, in the Court of King's Bench: 
 I remember hi a case before Lord Talbot, of Buvot v. Barbut, 
 upon a motion to discharge the defendant, (who was in execution 
 for not performing a decree,) "Because he was the agent of com- 
 
 1 Westlake: International Law, part I, Peace [Cambridge, 1910,] p. i. 
 
 * Strictly speaking, the law of nations deals only with the relations between 
 governments, and individuals are not, therefore, its subjects; but in the recent 
 Hague Convention Relative to the Establishment of an International Prize Court 
 (article 4), an individual who alleges that his property has been condemned in vio- 
 lation of international Jaw is permitted to bring his suit against the government 
 responsible.
 
 xxxii INTRODUCTION 
 
 merce, commissioned by the King of Prussia, and received here 
 as such;" the matter was very elaborately argued at the bar; and 
 a solemn deliberate opinion given by the court. These questions 
 arose and were discussed. "Whether a minister could, by any 
 act or acts, waive his privilege." "Whether being a trader was 
 any objection against allowing privilege to a minister, personally." 
 "Whether an agent of commerce, or even a consul, was entitled 
 to the privileges of a public minister." "What was the rule of 
 decision: the act of parliament; or, the law of nations." Lord 
 Talbot declared a clear opinion "That the law of nations, in its 
 full extent, was part of the law of England." "That the act of 
 parliament was declaratory; and occasioned by a particular inci- 
 dent." "That the law of nations was to be collected from the 
 practice of different nations, and the authority of writers." 
 Accordingly, he argued and determined from such instances, and 
 the authority of Grotius, Barbeyrac, Bynkershoek, Wicquefort, 
 etc.; there being no English writer of eminence, upon the 
 subject. 
 
 I was counsel in this case; and have a full note of it. 
 
 (Textual extract. Burrage: Reports, vol. m, p. 1478.) 
 
 THE PAQUETE EABANA 
 
 The Supreme Court of the United States, 1899 
 
 The fishing smack Paquete Habana, 43 feet long on the keel 
 and of twenty-five tons burden, with a crew of three Cubans and 
 carrying a fishing license from the Spanish Government, had been 
 fishing for several days off the coast of Cuba. On April 25, 1898, 
 she was captured by the United States gunboat Castine. Her cargo 
 was fresh fish kept to be sold alive. The owner of the vessel was a 
 Spanish subject of Cuban birth living in Havana. On May 30, 
 1898, a final decree of condemnation and sale was entered, "the 
 court not being satisfied that as a matter of law, without any or- 
 dinance, treaty or proclamation, fishing vessels of this class are 
 exempt from seizure." 
 
 On appeal from the decision of the District Court the case 
 came before the Supreme Court. Mr. Justice Gray, after reciting
 
 THE SOURCES OF INTERNATIONAL LAW xxxiii 
 
 the facts substantially as above given, disposed of a technical 
 objection to jurisdiction of the court, and continued as follows: 
 
 "We are then brought to the consideration of the question 
 whether, upon the facts appearing in these records, the fishing 
 smacks were subject to capture by the armed vessels of the United 
 States during the recent war with Spain. 
 
 "By an ancient usage among civilized nations, beginning cen- 
 turies ago, and gradually ripening into a rule of international 
 law, coast fishing vessels, pursuing their vocation of catching and 
 bringing in fresh fish, have been recognized as exempt, with their 
 cargoes and crews, from capture as prize of war. 
 
 "This doctrine, however, has been earnestly contested at the 
 bar; and no complete collection of the instances illustrating it is 
 to be found, so far as we are aware, in a single published work, 
 although many are referred to and discussed by the writers on 
 international law, notably in 2 Ortolan, Regies Internationales et 
 Diplomatic de la Mer (4th ed.), lib. 3, c. 2, pp. 51-56; in 4 Calvo, 
 Droit International (5th ed.), 2367-73; in De Boeck, Pro- 
 priete Privee Ennemie sous Pavilion Ennemi, 191-96; and in 
 Hall, International Law (4th ed.), 148. It is therefore worth 
 the while to trace the history of the rule, from the earliest accessi- 
 ble sources, through the increasing recognition of it, with occa- 
 sional setbacks, to what we may now justly consider as its final 
 establishment in our own country and generally throughout the 
 civilized world. . . . 
 
 [Here follows an extremely interesting review of the practice 
 of governments in regard to fishing vessels from the beginning of 
 the fifteenth century, with citations from treaties and extracts 
 from the opinions of judges and the writings of authorities on the 
 law of nations. The opinion then continues:] 
 
 "Lord Stowell's judgment in The Young Jacob and Johanna 
 (i C. Rob. 20), above cited, was much relied on by the counsel 
 for the United States, and deserves careful consideration. 
 
 "The vessel there condemned is described in the report as 'a 
 small Dutch fishing vessel taken April, 1798, on her return from 
 the Dogger Bank to Holland;' and Lord Stowell, in delivering 
 judgment, said: 'In former wars, it has not been usual to make 
 captures of these small fishing vessels; but this rule was a rule of
 
 xxxiv INTRODUCTION 
 
 comity only, and not of legal decision; it has prevailed from views 
 of mutual accommodation between neighboring countries, and 
 from tenderness to a poor and industrious order of people. In the 
 present war there has, I presume, been sufficient reason for chang- 
 ing this mode of treatment, and, as they are brought before 
 me for my judgment, they must be referred to the general prin- 
 ciples of this court; they fall under the character and description 
 of the last class of cases; 
 
 in the pn^myjgjja.H^.' And he added: 'It is a 
 farther satisfaction to me in giving this judgment to observe that 
 the facts also bear strong marks of a false and fraudulent trans- 
 action.' 
 
 "Both the capture and condemnation were within a year after 
 the order of the English Government of January 24, 1798, in- 
 structing the commanders of its ships to seize French and Dutch 
 fishing vessels, and before any revocation of that order. Lord 
 Stowell's judgment shows that his decision was based upon the 
 order of 1798, as well as upon strong evidence of fraud. Nothing 
 more was adjudged in the case. 
 
 "But some expressions hi his opinion have been given so much 
 weight by English writers, that it may be well to examine them 
 particularly. The opinion begins by admitting the known custom 
 in former wars not to capture such vessels adding, however, 
 'but this was a rule of comity only, and not of legal decision.' 
 Assuming the phrase 'legal decision' to have been there used, in 
 the sense in which courts are accustomed to use it, as equivalent to 
 'judicial decision,' it is true that, so far as appears, there had been 
 no such decision on the point in England. The word 'comity' 
 was apparently used by Lord Stowell as synonymous with cour- 
 tesy or good will. But the period of a hundred years which has 
 since elapsed is amply sufficient to have enabled what originally 
 may have rested in custom or comity, courtesy or concession, to 
 grow, by the general assent of civilized nations, into a settled rule 
 of international law. As well said by Sir James Mackintosh: 
 'In the present century a slow and silent, but very substantial 
 mitigation has taken place in the practice of war; and in propor- 
 tion as that mitigated practice has received the sanction of tune, 
 it is raised from the rank of mere usage, and becomes part of the
 
 THE SOURCES OF INTERNATIONAL LAW xxxv 
 
 law of nations.' (Discourse on the Law of Nations, 38; i Miscel- 
 laneous Works, 360.) 
 
 "The French prize tribunals, both before and after Lord Stow- 
 ell's decision, took a wholly different view of the general question. 
 In 1780, as already mentioned, an order in council of Louis XVI 
 had declared illegal the capture by a French cruiser of The John 
 and Sarah, an English vessel, coming from Holland, laden with 
 fresh fish. And on May 17, 1801, where a Portuguese fishing ves- 
 sel, with her cargo of fish, having no more crew than was needed 
 for her management, and for serving the nets, on a trip of several 
 days, had been captured in April, 1801, by a French cruiser, three 
 leagues off the coast of Portugal, the Council of Prizes held that 
 the capture was contrary to ' the principles of humanity, and the 
 maxims of international law/ and decreed that the vessel, with 
 the fish on board, or the net proceeds of any that had been sold, 
 should be restored to her master. (La Nostra Segnora de la 
 Piedad, 25 Merlin, Jurisprudence, Prise Maritime, 3, art. i, 3; 
 S. C. i Pistoye et Duverdy, Prises Maritimes, 331; 2 De Cussy, 
 Droit Maritime, 166.) . . . 
 
 "This review of the precedents and authorities on the subject 
 appears to us abundantly to demonstrate that at the present day, 
 by the general consent of the civilized nations of the world, and 
 independently of any express treaty or other public act, it is an 
 established rule of international law, founded on considerations 
 of humanity to a poor and industrious order of men, and of the 
 mutual convenience of belligerent states, that] coast fishing ves- 
 sels T with their implements and supplies, cargoes and crews, un- 
 armed, anH hnnpcjt1yp i i rci "' r 'p their peaceful calling of catching and 
 bringing in fresh fisb, arp pyprripf, from qipfnre a.s, prize of war. 
 
 "The exemption, of course, does not apply to coast fishermen 2 
 or their vessels, if employed for a warlike purpose, or in such a L 
 way as to give aid or information to the enemy; nor when mili- 
 tary or naval operations create a necessity to which all private 
 interests must give way. 
 
 "Nor has the exemption been extended to ships or vessels em- ^ 
 ployed on the high sea in taking whales or seals, or cod or other i 
 fish which are not brought fresh to market, but are salted or other- ' 
 wise cured and made a regular article of commerce.
 
 xxxvi INTRODUCTION 
 
 "This rule of international law is one which prize courts, ad- 
 ministering the law of nations, are bound to take judicial notice 
 of, and to give effect to, in the absence of any treaty or other pub- 
 lic act of their own government in relation to the matter. . . . 
 
 "Upon the facts proved in either case, it is the duty of this 
 court, sitting as the highest prize court of the United States, and 
 administering the law of nations, tpjdeclare and adjudge that the 
 raptrrrp__wg.ci unlawful, and without probable cause; and it is 
 therefore^Jii_each_ca.se, 
 
 ~~~ 77 Ordered, that the decree of the District Court be reversed, 
 and the proceeds of the sale of the vessel, together with the pro- 
 ceeds of any sale of her cargo, be restored to the claimant, with 
 damages and costs." 
 
 (Extract from United States Reports [Cases adjudged in the 
 Supreme Court at October Term, 1899. New York, 1900], vol. 
 175, pp. 677-721. The statement of facts is condensed.)
 
 PART I 
 
 DIPLOMACY: THE INTERCOURSE OF STATES
 
 INTERNATIONAL CASES 
 
 CHAPTER I 
 
 THE RIGHTS AND DUTIES OF THE AGENTS OF 
 INTERNATIONAL INTERCOURSE 
 
 i. DIPLOMATIC REPRESENTATIVES 
 
 CASE OF MATTUEOF, AMBASSADOR OF PETER 
 THE GREAT (1708) 
 
 IN London in the summer of 1708 "several turbulent and dis- 
 orderly persons ... in a most outrageous manner insulted the 
 person of his excellency, Andrew Artemonowitz Mattueof, am- 
 bassador extraordinary of His Tsarish Majesty, Emperor of 
 Great Russia, ... by arresting him and taking him by vio- 
 lence out of his coach in the public street, and detaining him in 
 custody for several hours, . . . contrary to the law of nations, 
 and in prejudice of the rights and privileges" of ambassadors and 
 other public ministers. 1 The arrest was made on warrant, 
 by officers of the police, at the instance of certain London trades- 
 people, to whom the ambassador, then about to terminate his 
 residence hi England, owed altogether some three hundred pounds. 
 English gentlemen furnished bail, and Queen Anne, as soon as 
 she heard of the mischance, dispatched her Secretary of State to 
 wait upon the ambassador and assure him of Her Majesty's 
 sense of the outrage and of her intention to prosecute according 
 to the full rigor of the law all those who should be found implicated. 
 The ambassador, however, demanded a more striking and summary 
 exoneration and left London hastily, as soon as he received his 
 passports, without asking for his letters of recall, and without 
 accepting the customary gift from the Queen or the yacht which 
 
 1 " An act for preserving the privileges of ambassadors, and other public ministers 
 of foreign princes and states." (Statutes at Large from the second to the eighth year of 
 Queen Anne, vol. xi, pp. 487-89.)
 
 4 DIPLOMATIC REPRESENTATIVES 
 
 she had caused to be offered to him. The Queen and her ministers 
 seem to have made every effort in this case to fulfill their obliga- 
 tions under international law. The tradesmen, the bailiffs, the 
 justices responsible for issuing the warrant, were arrested and 
 when, on the 25th of February of the year following they came 
 to trial before the Queen's Bench, eminent lawyers pleaded long 
 and learnedly for Her Majesty before a distinguished jury in 
 the presence of both Her Majesty's Secretaries of State and many 
 other persons of rank and authority. A verdict of guilty was 
 found but "the case being so extraordinary, of very great im- 
 portance, altogether new, and without precedent" in the courts 
 of England, so it was officially communicated to the Russian 
 Ambassador, the Lord Chief Justice hesitated to pronounce 
 sentence until in special session of the term following it should 
 be determined what penalties might properly be inflicted on 
 those found guilty in cases of this nature. Moreover, when 
 Parliament convened and a general pardon was declared to all 
 persons guilty of criminal acts from the year 1695, "even to those 
 who jn the most enormous manner might have conspired" 
 against the "sacred person" of the Queen, exception was made of 
 those concerned in the attack on the Russian Ambassador. 
 By special act of Parliament also, declaration was made, "as 
 authentic as possible, of the just horror" which British subjects 
 in general had "against this violent insult" to employ the 
 words later used by the Queen "and all the acts and proceed- 
 ings which relate to the arrest of the person of Your Impe- 
 rial Majesty's Ambassador are annulled and razed out of the 
 registers of our courts of justice, and those who had a share 
 therein are branded as infamous criminals and obnoxious to the 
 laws which were then in force. And if any person hereafter 
 durst commit the like offense, or any ways violate the privileges 
 of ambassadors and other foreign ministers, they will be liable 
 to the most severe penalties and punishments which the arbi- 
 trary power of the judges shall think fit to inflict upon them, 
 and to which no bounds are given in this new act. So that all 
 insults of this nature will be prevented for the future, and the 
 security which all princes' ministers ought to enjoy will be firmly 
 established and preserved by this famous law."
 
 CASE OF MATTUEOF 5 
 
 All these efforts at pacification were duly communicated to 
 M. Mattueof, with many expressions of regret and indignation 
 at the outrage and many assurances of zealous regard for the 
 honor of Russia and her ambassador. Representations were 
 made also directly to Peter the Great: special instructions had 
 been dispatched to Lord Whitworth, English Ambassador at Mos- 
 cow, immediately after the outrage, and Queen Anne with her 
 own hand had addressed a letter to His Tsarish Majesty. 
 
 Russia, however, remained firm hi her demand for a reparation 
 as extraordinary as had been the insult, " that a capital punish- 
 ment, according to the rigor of the law, ... or at least such an 
 one as is adequate to the nature of the affront," be inflicted on 
 all " the accomplices of the crime; " and hi the course of the cor- 
 respondence cited as a case in point the extra-legal action taken 
 by Venice a short time before in summarily committing to pillory 
 and galleys certain of her own customs officials against whom the 
 English Ambassador, Lord Manchester, indirectly had cause for 
 complaint. In both these cases, Russia insisted, it was not local 
 law, but the more sacred laws of nations that had been violated, 
 a consideration making inapplicable the usual legal processes, and 
 railing for action more sudden and drastic. The diplomatic 
 corps of the foreign ministers then in London sided with the 
 Russian Ambassador and before its enactment formally pro- 
 tested against the proposed Parliamentary provision touching 
 the privileges of ambassadors, in that it rested those privileges 
 not on the immemorial rights of nations, but, tacitly, on local 
 law merely, which subsequent acts of Parliament might alter or 
 even annul. 
 
 The proposed bill was modified in this particular, 1 but those who 
 
 1 The preamble of the act as it finally became law, after rehearsing the indigni- 
 ties to which the Russian Ambassador was subjected, contained, in accordance with 
 the memorial presented by the foreign ministers, the following clauses denning the 
 incident as "contrary to the law of nations, and in prejudice to the rights and privi- 
 leges which ambassadors and other public ministers, authorized and received as 
 such, have at all times been thereby possessed of, and ought to be kept sacred and 
 inviolable." The act was in its inception, therefore, modified so as to make it dearly 
 an act declaratory of the law of nations. It was so understood by Queen Anne, who, 
 in her letter of August, 1709, to the Tsar, speaks of it as "a declaration as authentic 
 as possible of the just horror which our subjects in general have against this violent 
 insult;" and later refers to those responsible for the incident as obnoxious "to the 
 laws which were then in force." The same view was taken of it by the Russian
 
 6 DIPLOMATIC REPRESENTATIVES 
 
 had been found guilty in the attack upon the ambassador were not 
 punished. The laws were acknowledged to be inadequate to the 
 situation. Another method was hit upon, therefore, for affording 
 Russia that undoubted satisfaction which for many months she 
 had been so persistently demanding. In the six weeks' jubilee 
 following the Tsar's return from his victorious campaign against 
 Charles XII, Her Majesty's Ambassador at the Russian Court, 
 specially invested for this single mission with extraordinary and 
 plenipotentiary powers, apologized in open audience in the 
 Queen's name to Peter the Great. Even his words of address were 
 significant. 1 "Most High and Most Potent Emperor!" he began; 
 and continuing after a brief rehearsal of the case, he testified to 
 "the sorrow and the just and high abhorrence" which the Queen 
 had for "that rash deed" against the Russian Ambassador. He 
 begged excuse for the defect and insufficiency of the ancient 
 British Constitution, most instantly desiring that, "entirely 
 putting the same in oblivion," His Tsarish Majesty might " again 
 generously continue" his high affection to the Queen and to 
 her subjects. 
 
 At the conclusion of this address, which was spoken in English, 
 translations in German and Russian were read in a loud voice. 
 The ambassador then placed in the Emperor's hands an autograph 
 letter from the Queen, which the Emperor entrusted to his Grand 
 Chancellor before making a brief speech of acknowledgment. 2 
 
 Ambassador, who could not conceive, therefore, how it contributed "in any wise to 
 the satisfaction ... in debate; because the sacred characters of ambassadors have 
 been in all times accounted inviolable among all the powers before that declaration, 
 which being but a particular law," could "only serve to justify the honor" of the 
 British nation. In 1737, also, when Barbuit's case came before Lord Talbot for de- 
 cision, the act was defined by him as "only declaratory of the ancient universal jus 
 gentium" (see 2, p. 20); Lord Mansfield, in 1761, in the case of Triquet et al. v. Bath, 
 quoted Lord Talbot as declaring a clear opinion "That the law of nations, in its 
 full extent, was part of the law of England. . . . That the Act of Parliament was de- 
 claratory; and occasioned by a particular incident" (see Triquet v. Bath [1761], p. 
 xxxi); and Lord Campbell, La 1851, in rendering an opinion in the case of De Haber 
 v. Queen of Portugal, said of the statute that it "has always been said to be merely 
 declaratory of the law of nations, recognized and enforced as such by our munici- 
 pal law." (Queen's Bench Reports, new series, vol. xvn [London, 1855], p. 207.) 
 
 1 De Martens states that it was on this occasion (February, 1710) that Great 
 Britain first gave the title of Emperor to the Tsar. The word was used, however, in 
 the act of Parliament passed in connection with this case, April 21, 1709 (vide supra). 
 
 1 Blacks tone records that a copy of the Act of Parliament, "elegantly engrossed 
 and illuminated," was at this same time presented to the Tsar. (Commentaries
 
 THE CASE OF GALLATTN'S COACHMAN 7 
 
 It was on February 9, 1710, at a conference of the Emperor's 
 ministers presided over by this same Grand Chancellor, that suit- 
 able conclusions to the whole matter were formulated. It was 
 arranged that M. Mattueof, then Ambassador at The Hague, 
 should advise Queen Anne of what had taken place at the Rus- 
 sian Court and of the gracious clemency of the Tsar and of his 
 desire that Her Majesty would pardon the offenders. It was re- 
 quested, however, that Her Majesty herself write an appropriate 
 letter to M. Mattueof, upon receipt of which so the arrangement 
 ran M. Mattueof would in due form ask for his letters of recall, 
 which he had not obtained in his haste to leave England some 
 eighteen months before. The ambassador, further, was to be re- 
 imbursed for all the costs and damages which he had been 
 "obliged to be at, and to suffer, on account of the said affront." 
 And finally, when all these preliminaries had been effected, it 
 was agreed that Peter the Great should acquaint the Queen that 
 he was "content with the foresaid satisfaction." 
 
 (The History of the Reign of Queen Anne, digested into Annals, 
 year the seventh [London, 1709], pp. 233-42, 326-36; year the 
 eighth [London, 1710], pp. 141-58; Charles de Martens: Causes 
 Celebres du Droit des Gens [Leipsic and Paris, 1827], vol. I, 
 pp. 47-74-) 
 
 THE CASE OF GALLATIN'S COACHMAN (1827) 
 
 DURING Mr. Gallatin's mission at London, in 1827, an incident 
 occurred involving a question of diplomatic privileges, which 
 led to an exposition of the British views on the rights of embassy. 
 His coachman was arrested in his stable on a charge of assault, 
 on a warrant from a magistrate. The subject having been in- 
 formally brought to the notice of the Foreign Office, a communi- 
 cation was addressed to the secretary of the American Legation 
 by the Under-Secretary of State, Mr. Backhouse, May 18, 1827, 
 in which he informed Mr. Lawrence of the result of a reference 
 made, by order of Lord Dudley, to the law officers of the Crown. 
 In it it is said that "the statute of the 7th Anne, chap. 12, has 
 
 [London, 1857], vol. i, p. 249.) In the Annals of Queen Anne (vol. vn, p. 327) it is 
 noted that the Commons "ordered the bill to be engrossed."
 
 8 DIPLOMATIC REPRESENTATIVES 
 
 been considered in all but the penal parts of it nothing more than 
 a declaration of the law of nations; and it is held that neither that 
 law, nor any construction that can properly be put upon the stat- 
 ute, extends to protect the mere servants of ambassadors from 
 arrest upon criminal charges, although the ambassador himself, 
 and probably those who may be named in his mission are, by 
 the best opinions, though not by the uniform practice of this 
 country, exempt from every sort of prosecution, criminal and civil. 
 His lordship will take care that the magistrates are apprised, 
 through the proper channel, of the disapprobation of His Majesty's 
 Government of the mode in which the warrant was executed in 
 the present instance, and are further informed of the expectation 
 of His Majesty's Government that, whenever the servant of a 
 foreign minister is charged with a misdemeanor, the magistrate 
 shall take proper measures for apprising the minister, either by 
 personal communication with him or through the foreign office, 
 of the fact of a warrant being issued, before any attempt is 
 made to execute it, in order that the minister's convenience may 
 be consulted as to the time and manner in which such warrant 
 shall be put in execution." 
 
 An official character was given to the preceding communication 
 by a note from Earl Dudley, Secretary of State for Foreign Af- 
 fairs, June 2, 1827, in which he says that it is only necessary for 
 him to "confirm the statement contained in the private note of 
 Mr. Backhouse, referred to by Mr. Gallatin, as to the law and 
 practice of this country upon the questions of privilege arising 
 out of the arrest of Mr. Gallatin's coachman, and to supply an 
 omission in that statement, with respect to the question of the sup- 
 posed inviolability of the premises occupied by a foreign minister. 
 He is not aware of any instance, since the abolition of sanctuary in 
 England, where it has been held that the premises occupied by an 
 ambassador are entitled to such a privilege by the law of nations." 
 
 He adds that courtesy requires that their houses should not be 
 entered without permission being first solicited in cases where no 
 urgent necessity presses for the immediate capture of an offender. 
 
 (Moore: Digest of International Law, vol. iv, pp. 656-57; Whea- 
 ton: Elements of International Law [2d annotated edition by Law- 
 rence, London, 1863], pp. 1006-07.)
 
 SOULE'S CASE 
 
 SOULfi'S CASE (1854) 
 
 IN October, 1854, Mr. Soule, American Minister at Madrid, 
 who had been attending the Ostend Conference, arrived at Calais, 
 in France, intending to return to his post by way of Paris. On his 
 arrival at Calais he was provisionally stopped under an order of 
 the Minister of the Interior that he should not be allowed to 
 "penetrate into France" without the knowledge of the govern- 
 ment. Mr. Soule, who was a native of France and a naturalized 
 citizen of the United States, was currently reported to have made 
 speeches adverse to the government of Louis Napoleon and to 
 have held communication with some of its adversaries. Further- 
 more, the American Minister, while at Madrid, had engaged the 
 French Ambassador in a duel. On being stopped at Calais, Mr. 
 Soule straightway left France to return to his post by way of 
 England and Portugal. Mr. Mason, American Minister at Paris, 
 on hearing of the action of the authorities at Calais, immediately 
 addressed a protest to the French Government, not only against 
 the interruption of Mr. Soule's journey, but also against the re- 
 fusal, as he supposed, of the French Government to permit Mr. 
 Soule to pass through that country. M. Drouyn de 1'Huys, 
 then Minister of Foreign Affairs, replied that the government of 
 the Emperor had "not wished . . . to prevent an envoy of the 
 United States crossing French territory to go to his post in order 
 to acquit himself of the commission with which he was charged 
 by his government," but that "between this simple passage and 
 the sojourn of a foreigner, whose antecedents have awakened, I 
 regret to say, the attention of the authorities invested with the 
 duty of securing the public order of the country, there exists a 
 difference, which the Minister of the Interior had to appreciate;" 
 that "if Mr. Soul6 was going immediately and directly to Madrid 
 the route of France was open to him;" that if, on the contrary, 
 he "intended to go to Paris with a view of tarrying there, that 
 privilege was not accorded to him. It was, therefore, necessary to 
 consult him as to his intentions, and it was he who did not give 
 the time for doing this." (Modified extract from Moore: Digest 
 of International Law, vol. rv, pp. 557-58.)
 
 10 DIPLOMATIC REPRESENTATIVES 
 
 In his second annual message of December 4, 1854, President 
 Pierce, after referring to the traditional friendship with France 
 and alluding to the settlement of the case of the French Consul 
 at San Francisco, 1 continued: " Subsequent misunderstanding 
 arose on the subject of the French Government having, as it 
 appeared, abruptly excluded the American Minister to Spain 
 from passing through France on his way from London to Madrid. 
 But that government has unequivocally disavowed any design 
 to deny the right of transit to the Minister of the United States, 
 and after explanations to this effect he has resumed his journey 
 and actually returned through France to Spam." (Messages and 
 Papers of the Presidents 1789-1897, compiled by James D. Rich- 
 ardson [Washington, 1897], vol. v, p. 278.) 
 
 THE LORD SACKVILLE WEST INCIDENT (1888) 
 
 ON September 12, 1888, Lord Sackville West, British Minister 
 to the United States, while at Beverly, Massachusetts, received 
 a letter from Pomona, California, from one who signed himself 
 "Charles F. Murchison," stating that he was a naturalized Ameri- 
 can of English birth; that he, as well as hundreds of other recently 
 naturalized Americans from England, was in a quandary as to 
 how to cast his vote at the approaching presidential election. 
 President Cleveland, he said, apparently had always been very 
 friendly and favorable towards Great Britain, but his recent mes- 
 sage to Congress, following close upon the rejection of the fisher- 
 ies treaty, had alarmed him to such an extent that he sought ad- 
 vice from one who would know just how these many votes might 
 be cast to the greatest advantage of the mother country, which 
 was still dearest to them. 
 
 Although, as Lord Sackville afterward admitted, the writer of 
 this letter was wholly unknown to him, and although it was evi- 
 dent that any advice sent, even though his correspondent had 
 agreed to keep the source of his knowledge a secret, was intended 
 to be used broadcast to influence votes for or against Cleveland, 
 Lord Sackville answered the letter on the following day: "You 
 
 1 See Ditton's Case, post, p. 31.
 
 THE LORD SACKVILLE WEST INCIDENT II 
 
 are probably aware," he said, "that any political party which 
 openly favored the mother country at the present moment would 
 lose popularity, and that the party in power is fully aware of this 
 fact;" and in respect to the "questions with Canada, which have 
 been unfortunately reopened since the rejection of the [fish- 
 eries] treaty by the Republican majority in the Senate, and by the 
 President's message to which you allude, allowance must there- 
 fore be made for the political situation as regards the presiden- 
 tial election." In his letter he inclosed a clipping from the New 
 York Times which advised electors to vote for Mr. Cleveland's 
 reelection. 
 
 As Secretary of State Bayard said in his note of January 30, 
 1889, "Lord Sackville was thus applied to in unmistakable terms 
 to interfere in the political affairs of the United States, and at 
 a time of intense public feeling, when issues of deep moment were 
 awaiting popular decision." 
 
 The letter was a political trick intended to embarrass the Cleve- 
 land Administration and discredit it in the eyes of thousands of 
 voters, especially the Irish, and the correspondence was made 
 public in the last days of the campaign, about October 25th. 
 Lord Sackville was at once sought out by the various newspapers, 
 and he readily confirmed the authenticity of the letters, making 
 no effort to modify the impugnments of the action of the gov- 
 ernment which he had at least tacitly agreed to in his answer, 
 in some cases emphasizing them. 
 
 Secretary Bayard at once expressed to Lord Salisbury, British 
 Secretary for Foreign Affairs, the desire of this government that 
 Lord Sackville be recalled. Lord Salisbury declined to act until in 
 receipt of the precise language of Lord Sackville and his explana- 
 tion. Without waiting further, the President authorized Secre- 
 tary Bayard to inform Lord Sackville that he had become con- 
 vinced that it would be incompatible with the best interests, and 
 detrimental to the good relations, of both governments that he 
 should any longer hold his official position in the United States, 
 and he further authorized the Secretary to send the Minister his 
 passports. 
 
 This action by the United States Government raised a storm 
 of protest from the British press, although it had, up to the
 
 12 DIPLOMATIC REPRESENTATIVES 
 
 time of the actual dismissal, been unanimous in its condemnation 
 of interference in the domestic affairs of our government, and 
 had insistently pointed out that Lord Sackville could no longer 
 be of any service to Great Britain in America. 
 
 The position of the Government of the United States was stated 
 by Mr. Phelps, United States Minister to Great Britain, in his 
 note of December 4 to Lord Salisbury: "In asking from Her Ma- 
 jesty's Government the recall or withdrawal of its minister, upon 
 a representation of the general purport of the letter and statements 
 above mentioned, the Government of the United States assumed 
 that such request would be sufficient for that purpose, whatever 
 consideration the reasons for it might afterwards demand or 
 receive. It was believed that the acceptance or retention of a 
 minister was a question solely to be determined, either with or 
 without the assignment of reasons, by the government to which 
 he was accredited." 
 
 Replying to this, the Marquis of Salisbury observed: 
 
 "Her Majesty's Government are unable to assent to the view 
 of international usage which you have here laid down. It is, of 
 course, open to any government, on its own responsibility, sud- 
 denly to terminate its diplomatic relations with any other state 
 or with any particular minister of any other state. But it has no 
 claim to demand that the other state shall make itself the instru- 
 ment of that proceeding, or concur in it, unless that state is satis- 
 fied by reasons, duly produced, of the justice of the grounds on 
 which the demand is made. 
 
 "The principles which govern international relations on this 
 subject appear to Her Majesty's Government to have been ac- 
 curately laid down by Lord Palmerston on the occasion of Sir 
 Henry Bulwer's sudden dismissal from the court of Madrid in 
 1848: 
 
 "'The Duke of Sotomayor, in treating of that matter, 
 seems to argue as if every government was entitled to obtain 
 the recall of any foreign minister whenever, for reasons of 
 its own, it might wish that he should be removed; but this is 
 a doctrine to which I can by no means assent. 
 
 "'It is quite true, as said by the Duke of Sotomayor, that 
 the law of nations and international usage may permit a
 
 THE LORD SACKVILLE WEST INCIDENT 13 
 
 government to make such a demand; but the law of nations 
 and international usage also entitle the government to whom 
 such a request may be preferred to decline to comply with 
 it. I do not mean to say that if a foreign government is 
 able to state to the Government of Her Majesty grave and 
 weighty reasons why the British Minister accredited to such 
 government should be removed, Her Majesty's Government 
 would not feel it to be their duty to take such representations 
 into their serious consideration, and to weigh them with all 
 the attention which they might deserve. But it must rest 
 with the British Government in such a case to determine 
 whether there is or is not any just cause of complaint against 
 the British diplomatic agent, and whether the dignity and 
 interests of Great Britain would be best consulted by with- 
 drawing him, or by maintaining him at his post.'" 
 
 In discussing this position of the British Foreign Secretary and 
 the case of Sir Henry Bulwer, Secretary Bayard said: 
 
 "The case of Lord Sackville is wholly dissimilar. In the former 
 the objection of Spain was to the action of Lord Palmerston 
 and presumptively of the ministry of Great Britain, of which 
 Sir Henry Bulwer was but the channel of communication, and 
 throughout the entire transaction Sir Henry Bulwer received 
 the entire approval of his lordship. 
 
 "The offense of Lord Sackville consisted in personal misconduct, 
 wholly inconsistent with his official duty and relations, of which 
 no suggestion of approval by his government has yet been inti- 
 mated. 
 
 "Thus the present issue is not whether it is requisite that a 
 sovereign asking the recall of a foreign minister should give the 
 reasons for the application, but whether, when, as in the present 
 case, such recall has been asked on the ground of interference in 
 the politics of the country to which he is accredited, the question 
 of the culpability or degree of such interference is to be left not 
 to the decision of the offended sovereign, but to the determination 
 of the sovereign by whom the offending minister was accredited. 
 It is not understood how the latter view can be held by Her 
 Majesty's Government to be a principle of the law of nations,
 
 14 DIPLOMATIC REPRESENTATIVES 
 
 for it would be equivalent to saying that, by such law, that 
 government is entitled to determine how far it will interfere in 
 the politics of foreign states, and what degree of interference by 
 its ministers hi the internal affairs of such states it may see 
 proper to sustain. It would be far better to suspend diplo- 
 matic relations entirely than to continue them on the basis of 
 such a right of interference in the domestic politics of other 
 states as would appear to be assumed, and under which, if ad- 
 mitted, the independence and dignity of the injured nation would 
 perish. 
 
 "What I deem to be the true international rule on this subject 
 I find stated under the high authority of Calvo: 
 
 "'When the government near which a diplomatic agent 
 resides thinks fit to dismiss him for conduct considered im- 
 proper, it is customary to rtotify the government which 
 accredited him that its representative is no longer accept- 
 able, and to ask for his recall. If the offense committed by 
 the agent is of a grave character, he may be dismissed with- 
 out waiting the recall of his own government. The govern- 
 ment which asks for the recall may or may not, at its pleas- 
 ure, communicate the reasons on which it bases its request; 
 but such an explanation cannot be required. It is sufficient 
 that the representative is no longer acceptable. In this 
 case international courtesy prescribes his immediate recall; 
 and if, notwithstanding, the other government does not com- 
 ply with the request, the dismissal of the agent follows as a 
 necessary consequence, it is effected by a simple notification 
 and the sending of his passport. The dismissal of a diplomatic 
 agent for improper conduct, either hi his individual capacity 
 or in the discharge of his official duties, is not an act of dis- 
 courtesy or hostility toward the government which ac- 
 credited him, and, consequently, cannot be a reason for de- 
 claring war.' (Int. Law [4th ed., 1888], vol. 3, p. 213.) 
 
 "The point of time at which this exclusive discretion is to 
 be exercised whether before the departure of the envoy for 
 his post, or at his entrance upon his duties, or at any period dur-
 
 THE LORD SACKVILLE WEST INCIDENT 15 
 
 ing their continuance would not apparently affect the claim put 
 forward by the Marquis of Salisbury. 
 
 "Under the rule adopted by him the receiving government 
 must take whoever may be sent; and, in case by misbehavior 
 the envoy should render himself unacceptable, its rights are to 
 be restricted to a submission of the reasons, which, if 'grave and 
 weighty/ would be taken into serious consideration and weighed 
 by Her Majesty's Government ' with all the attention they might 
 deserve.' 
 
 "To accept such a proposition as a rule of international 
 intercourse would be absolutely inconsistent with national inde- 
 pendence. I have, therefore, forborne to cite from Calvo the 
 numerous cases from which he deduces the rule laid down by 
 him. 
 
 "An envoy is intended to be a confidential intermediary be- 
 tween two governments professing friendly relations, and in reli- 
 ance upon his good faith the best assurance of continued amity 
 and good understanding will be found. 
 
 "It cannot, therefore, be justly regarded as a cause of inter- 
 national offense to request the recall of an envoy whenever it is 
 discovered that his conduct has been such as to unsettle the con- 
 fidence of the receiving government; nor for that government to 
 dismiss him whenever in its judgment circumstances have arisen, 
 owing to his misconduct, which endanger its own safety and wel- 
 fare or tend to jeopardize the good relations of the two govern- 
 ments. 
 
 "I renew my expressions of sincere regret that what Lord Salis- 
 bury has correctly termed a 'personal incident' should have been 
 thought by Her Majesty's Government in any degree to qualify 
 the harmony of intercourse between two nations, for whose 
 amicable relations none can be more sincerely desirous than the 
 President and those who, together with him, are charged with the 
 administration of the affairs of the Government and people of the 
 United States. 1 
 
 1 In retaliation the British Government recalled the other members of the British 
 Mission, leaving the legation and archives in the custody of a clerk. It was sug- 
 gested that he might properly be designated as a chargt des a/aires, to distinguish 
 the case of a chargt d'affaires ad interim, as, for example, when a secretary of lega- 
 tion is left temporarily in charge.
 
 l6 DIPLOMATIC REPRESENTATIVES 
 
 "You are authorized to communicate a copy of this paper to 
 Her Majesty's Government. 
 
 "I am, sir, your obedient servant, 
 
 "T. F. BAYARD." 
 
 (Foreign Relations of the United States, 1888, part n, pp. 1667- 
 1729, especially pp. 1667-69; 1672, 1706, 1710, 1720-24.) 
 
 DUKE OF RIPPERDA'S CASE (1726) 
 
 IN 1726 the famous Duke of Ripperda, Minister of Finance 
 and Foreign Affairs to Philip V of Spain, becoming apprehensive 
 as to his security, sought asylum in the house of the British Am- 
 bassador at Madrid. It appears that Ripperda came uninvited to 
 the British Embassy, after having been refused asylum at the 
 Dutch, and that he was permitted to remain at the former only 
 after assuring the British Ambassador that he was not in disgrace 
 (he had been dismissed from office on a pension) or charged with 
 crime. Subsequently the ambassador had an audience of the 
 King and was assured that the duke might remain in the embassy, 
 it being understood that he was not to be permitted to escape 
 and that some soldiers would be placed about the embassy as a 
 precaution against any attempts in that direction. The Spanish 
 Government, however, subsequently becoming alarmed at the 
 discovery that the duke had taken with him important papers, 
 submitted to the Council of Castile the question whether he 
 might not be seized. The Council of Castile answered in the 
 affirmative, holding that it would "operate to the subversion and 
 utter ruin [of sovereigns] if persons who had been entrusted with 
 the finances, the power and the secrets of the state, were, when 
 guilty of violating the duties of their office, allowed to take shelter 
 under a privilege which had been granted to the houses of am- 
 bassadors in favor of only ordinary offenders." 
 
 In conformity with this view, the Spanish Government sent 
 officers to seize the duke. This was done without previously com- 
 municating to the ambassador the resolution of the Council of 
 Castile and demanding Ripperda's surrender. The ambassador 
 submitted to avoid disturbance. The relations between England
 
 SECRETARY OF THE NUNCIATURE AT PARIS 17 
 
 and Spain were already exceedingly strained, and the seizure of 
 Ripperda, though not the cause of the subsequent hostilities be- 
 tween the two countries, was resented in England. The burden, 
 however, of the British Government's complaint was the summary 
 and forcible termination, without notice, of the asylum to which 
 the King had consented, the Duke of Newcastle, then Secretary 
 of State, expressly saying that, without deciding whether the am- 
 bassador had or had not the right to protect Ripperda, an op- 
 portunity should under the circumstances have been afforded for 
 his surrender before resort was had to an act of force. 
 
 (Taken textually from Moore: Digest of International Law, 
 vol. n, pp. 765-66.) 
 
 EXPULSION OF THE SECRETARY OF THE NUNCIA- 
 TURE AT PARIS (1906) 
 
 IN the year 1904 relations were broken off between France and 
 the Holy See. In the month of July of that year the French 
 Government returned his passports to the nuncio, Mgr. Loren- 
 zelli, and recalled the French Ambassador from the Vatican. 
 Subsequently only a secretary of the embassy remained at Rome 
 in the former embassy of France to guard its archives. Similarly 
 an auditor of the nunciature, Mgr. Montagnini, was entrusted 
 with the like office at Paris at the residence in the Rue de 
 I'Elyse'e formerly inhabited by the nuncio. The French Govern- 
 ment looked upon the continued presence of this secretary in 
 Paris as dangerous after the putting into effect of the law of De- 
 cember 9, 1905, providing for the separation of Church and State. 
 In obedience to the Pope's orders, the Catholic clergy of France 
 did not form the religious organizations provided for by law. 
 They were not even willing to consider their religious gatherings 
 as public meetings and to give the notice required by the law of 
 June 30, 1881, in accordance with the decision of M. Briand, 
 Minister of Education and Religious Affairs, in his circular of 
 December i, 1906. This attitude disturbed the French Govern- 
 ment. They believed that the Italian prelate was an intermediary 
 between the Pope and members of the clergy, that he had given 
 them instructions to resist the French law, and that his expulsion
 
 18 CONSULS 
 
 was necessary. Consequently, on December n, 1906, at six o'clock 
 in the morning the chief officer of the police entered the house 
 situated at No. 10 Rue de 1'Elysee where, since the nuncio's 
 departure, Mgr. Montagnini had continued to reside. The prelate 
 would seem to have been placed in solitary confinement; at any 
 rate, isolated as completely as possible from communication with 
 the outside world. From six o'clock in the morning till five o'clock 
 at night the place was carefully guarded, even personal and inti- 
 mate friends of the prelate being denied admittance. During 
 this time search was made among the prelate's papers. In the 
 evening, after a rapid sorting, the most important of these papers 
 were carried to the record office of the Palace of Justice. As for 
 Mgr. Montagnini, he was conducted under the escort of special 
 officers to the railway station of Lyon and thence to the frontier 
 without being able to communicate with any one until his depar- 
 ture from France. 
 
 Such were the facts. They resulted in a protest (December 21) 
 on the part of the Holy See, addressed to its representatives with 
 various foreign governments. The opposition in France, both in 
 the press and in the Chamber of Deputies, did not fail to point 
 out the brutality of the procedure. 
 
 (Translation. Revue Generate de Droit International Public, 
 [1907], vol. xrv, pp. 176-77.) 
 
 2. CONSULS 
 
 CONSUL PRIEST'S CASE (1855) 
 
 IN instructions dated May n, 1855, to the American Minister 
 to Nicaragua, Secretary Marcy said: "The right of the Nicara- 
 guan Government to refuse an exequatur to Mr. Priest [who had 
 been appointed United States Consul at San Juan del Sur] can- 
 not be denied. If, as is intimated, the only cause assigned for 
 their hesitation was the publication of a private letter of that 
 gentleman which was deemed objectionable, he may regret this 
 as a misfortune, but, if he shall not ultimately receive the exe-
 
 BARBUIT'S CASE 19 
 
 quatur, we could not consider it as an injury of which it would be 
 advisable to complain." 
 
 (Moore: Digest of International Law, vol. v, p. 28.) 
 
 BARBUIT'S CASE (1737) 
 
 BARBUIT had a commission, as agent of commerce from the 
 King of Prussia in Great Britain, in the year 1717, which was ac- 
 cepted here by the Lords Justices when the King was abroad. 
 After the late King's demise his commission was not renewed 
 until 1735, and then it was, and allowed in a proper manner; but 
 with the recital of the powers given him in the commission, and 
 allowing him as such. These commissions were directed generally 
 to all the persons whom the same should concern and not to the 
 King; and his business described in the commissions was, to do 
 and execute what His Prussian Majesty should think fit to order 
 with regard to his subjects trading in Great Britain; to present 
 letters, memorials and instruments concerning trade to such 
 persons, and at such places, as should be convenient, and to re- 
 ceive resolutions thereon; and thereby His Prussian Majesty 
 required all persons to receive writings from his hands, and give 
 him aid and assistance. Barbuit lived here near twenty years, 
 and exercised the trade of a tallow-chandler, and claimed the 
 privilege of an ambassador or foreign minister, to be free from 
 arrests. After hearing counsel on this point, 
 
 Lord Chancellor: "A bill was filed in this court against the de- 
 fendant in 1725, upon which he exhibited his cross-bill, styling 
 himself merchant. On the hearing of these causes the cross-bill 
 was dismissed; and in the other, an account decreed against the 
 defendant. The account being passed before the master, the 
 defendant took exceptions to the master's report, which were over- 
 ruled; and then the defendant was taken upon an attachment for 
 non-payment, etc. And now, ten years after the commencement 
 of the suit, he insists he is a public minister, and therefore all the 
 proceedings against him null and void. Though this is a very 
 unfavorable case, yet if the defendant is truly a public minister, 
 I think he may now insist upon it; for the privilege of a public
 
 20 CONSULS 
 
 minister is to have his person sacred and free from arrests, not 
 on his own account, but on the account of those he represents, 
 and this arises from the necessity of the thing, that nations may 
 have intercourse with one another hi the same manner as private 
 persons, by agents, when they cannot meet themselves. And if 
 the foundation of this privilege is for the sake of the prince by 
 whom an ambassador is sent, and for sake of the business he 
 is to do, it is impossible that he can renounce such privilege and 
 protection: for, by his being thrown into prison the business must 
 inevitably suffer. The question is, whether the defendant is such 
 a person as 7 Anne, cap. 10, [12], describes, which is only declar- 
 atory of the ancient universal j us gentium; the words of the statute 
 are, ambassadors or other public ministers, and the exception of 
 persons trading relates only to their servants, the Parliament never 
 imagining that the ministers themselves would trade. I do not 
 think the words ambassadors, or other public ministers, are synony- 
 mous. I think that the word ambassadors in the act of Parliament, 
 was intended to signify ministers sent upon extraordinary oc- 
 casions, which are commonly called ambassadors extraordinary; 
 and public ministers in the act take in all others who constantly 
 reside here; and both are entitled to these privileges. The ques- 
 tion is, whether the defendant is within the latter words. It has 
 been objected that he is not a public minister, because he brings 
 no credentials to the King. Now, although it be true that this is 
 the most common form, yet it would be carrying it too far to say 
 that these credentials are absolutely necessary; because all na- 
 tions have not the same forms of appointment. It has been said, 
 that to make him a public minister he must be employed about 
 state affairs. In which case, if state affairs are used in opposition 
 to commerce, it is wrong; but if only to signify the business be- 
 tween nation and nation the proposition is right: for, trade is a 
 matter of state, and of a public nature, and consequently a proper 
 subject for the employment of an ambassador. In treaties of 
 commerce those employed are as much public ministers as any 
 others; and the reason for their protection holds as strong: and 
 it is of no weight with me that the defendant was not to concern 
 himself about other matters of state, if he was authorized as a 
 public minister to transact matters of trade. It is not neces-
 
 BARBUIT'S CASE 21 
 
 sary that a minister's commission should be general to entitle 
 him to protection; but it is enough that he is to transact any one 
 particular thing in that capacity, as every ambassador extraor- 
 dinary is; or to remove some particular difficulties, which might 
 otherwise occasion war. But what creates my difficulty is, that I 
 do not think he is intrusted to transact affairs between the two 
 crowns: the commission is, to assist His Prussian Majesty's sub- 
 jects here in their commerce; and so is the allowance. Now, this 
 gives him no authority to intermeddle with the affairs of the 
 King: which makes his employment to be in the nature of a consul. 
 And although he is called only an agent of commerce, I do not 
 think the name alters the case. Indeed, there are some circum- 
 stances that put him below a consul; for, he wants the power of 
 judicature, which is commonly given to consuls. Also their com- 
 mission is usually directed to the prince of the country; which 
 is not the present case: but at most he is only a consul. 
 
 "It is the opinion of Barbeyrac, Wicquefort, and others, that 
 a consul is not entitled to the jus gentium belonging to ambassa- 
 dors. 
 
 "And as there is no authority to consider the defendant in 
 any other view than as a consul, unless I can be satisfied that those 
 acting in that capacity are entitled to the jus gentium, I cannot 
 discharge him." l 
 
 Note: The person was after discharged by the Secretary's Office, 
 satisfying the creditors. 
 
 (Taken textually with the reporter's statement from Forrester: 
 
 1 In the discussion of this case the court seems to have determined, that a per- 
 son residing in this country in the capacity of foreign minister, cannot, by any act 
 or acts of his own, waive that privilege of protection which the law of nations has 
 annexed to a situation so important. That a foreign minister, being or becoming a 
 trader, does not thereby lose, or forfeit the privilege personally annexed to him; and 
 therefore, the only reason why the court in the present instance did not think the 
 defendant entitled to the protection which he claimed, was, that the employment 
 which he was invested with, could at most be considered only as the same with, or 
 equal to that of consul, which according to the best writers upon the subject, was 
 not entitled to the jus gentium, or privilege belonging to ambassadors or ministers 
 who are entrusted to transact matters of state or other affairs between two nations. 
 That the law of nations (which in its fullest extent was and formed part of the law 
 of England) was the rule of decision in cases of this kind; and that the act of Par- 
 liament was declaratory of it, and occasioned by a particular incident. [Note of the 
 original report.]
 
 22 CONSULS 
 
 Cases in Equity during the time of [the late Lord Chancellor Talbot 
 [3d ed., Dublin, 1793], pp. 280-83.) 
 
 CONSUL WEILE'S CLAIM 
 
 THE international commission organized at Lima, Peru, in 
 conformity with the Treaty of December 4, 1868, between the 
 United States and Peru, settled, on the principle of conciliation 
 without recourse to the umpires, 1 a number of diplomatic claims, 
 amongst which was that of Charles Weile for wrongful arrest and 
 imprisonment. Weile, while United States Consul at Tumbes, 
 interfered to aid or protect a Peruvian woman who was fighting 
 with her husband, and, as Peru alleged, dealt the husband a 
 nearly fatal blow with his cane. For this act Weile was arrested 
 and imprisoned, but he escaped before his trial was finished, and 
 fled the country. It was alleged on the part of the United States 
 that the wound on the husband's head was inflicted by the wife; 
 that Weile's arrest was illegal, and without a warrant, and that 
 the consular office was broken into in order to effect it. The 
 Peruvian Commissioner was opposed to awarding a large sum, 
 though he was willing to allow something. The United States 
 Commissioner "insisted on the importance of giving a decision 
 which would, by the magnitude of the award, show the local 
 authorities how wrong it is for them to act in a hasty manner 
 when the liberty and honor of the consul of a friendly power are 
 concerned." 
 
 The amount demanded was $46,279.62 and the award as it ap- 
 peared in the report of Mr. Vidal was $32,407.40. 
 
 (Almost a textual extract from Moore: International Arbitra- 
 tions, vol. n, pp. 1639, I 64i, 1646, 1653.) 
 
 THE PRITCHARD AFFAIR (1844) 
 
 ON September 9, 1842, the Island of Tahiti, at the request of, 
 and under the conditions specified by, its Queen Pomare, became a 
 
 1 According to the terms of the treaty it was provided that if the contracting 
 parties should not be able to agree on the name of an umpire they should each name
 
 THE PRITCHARD AFFAIR 23 
 
 French protectorate. (Correspondence relative to Tahiti, pp. 8-18, 
 Parliamentary Papers [1843], v l- LXI -) "Vice-Admiral Dupetit 
 Thouars, who arrived in the Bay of Papeete on the ist of Novem- 
 ber [1843] to carry into execution the Treaty of the gth of Sep- 
 tember, 1842, which the King had ratified, deemed it his duty not 
 to adhere to the stipulations of that treaty, but to take possession 
 of the island." (London Times, February 27, 1844, 2d ed., and 
 February 28, 1844, quoting the Moniteur, the official organ of the 
 French Government.) Whereupon Mr. Pritchard, the English 
 Consul at Tahiti, "immediately 1 hauled down his flag, and gave 
 an official intimation or notice to the authorities that he was no 
 longer Her Britannic Majesty's Consul there that the Queen 
 having been dethroned, he had no longer any official character." 2 
 (Statement of the Earl of Aberdeen, Secretary for Foreign 
 Affairs, in the House of Lords, August i, 1844; Hansard: Parlia- 
 mentary Debates [London, 1844, 3d series], vol. LXXVI, p. 1643.) 
 Mr. Pritchard, whom the London Times (July 30, 1844) desig- 
 nates as undoubtedly "an indiscreet, hot-headed man," and who 
 certainly in February or March of the same year interfered more 
 actively in the fortunes of Queen Pomare than was considered 
 proper by the British Foreign Office, 3 "constantly endeavored," 
 according to a statement of the French Minister for Foreign 
 Affairs on August 29, 1844, from "the month of February, 1843, 
 up to the month of March, 1844, . . . by all sorts of acts and prac- 
 
 a person of a third nation, and that in each and every case in which they might differ 
 in opinion as to the decision which they ought to give, it should be determined by lot 
 which of the two persons so named should be umpire in that particular case. 
 
 1 The Journal des Dibats says that this measure was taken in the month of De- 
 cember. (London Times, August 6, 1844.) 
 
 * However extraordinary and unjustifiable it may have been, Mr. Pritchard's 
 conduct in hauling down his consular flag and notifying the authorities that he was 
 no longer consul was patently intended to be an emphatic protest official in so 
 far as he was able to make it against the French action. Hence it was all the more 
 incumbent upon the French authorities in this delicate situation to observe toward 
 him the full measure of respect due to the consular representative of a friendly 
 power. They must have known that an official is unable to divest himself of a public 
 charge at will. In plain language, Pritchard's action amounted only to a declara- 
 tion that the French action made it impossible for him to continue to fulfill his office. 
 In the presence of a conciliatory disposition on the part of the two governments 
 concerned, Pritchard's action was seized upon to minimize instead of aggravate the 
 extent of the outrage. 
 
 See Correspondence relative to the Society Islands, pp. i, 3, 8, 9, Parliamentary 
 Papers [1844], vol. LI.
 
 24 CONSULS 
 
 tices to impede, disturb, and destroy the establishment of the 
 French at Tahiti, the administration of justice, the exercise of 
 authority by the French agents, and their relations with the na- 
 tives." l (Correspondence relating to the Removal of Mr. Pritchard, 
 Parliamentary Papers [1845], v l- Ln -) 
 
 On March 2, Papeete, the capital of Tahiti, was declared by 
 D'Aubigny, a French officer temporarily in charge, to be "in a 
 state of siege," and that night a French sentinel was attacked. 
 (London Times, July 30, 1844.) The subsequent action taken by 
 D'Aubigny is told in his own declaration of March 3, which, 
 according to the account of a British officer at Tahiti (London 
 Times, July 30, 1844), was "placarded in French, English, and 
 Tahitian on the different public places:" 
 
 "A French sentinel was attacked in the night of the 2d to the 
 3d of March. 
 
 "In reprisal, I have caused to be seized one Pritchard, the only 
 daily mover and instigator of the disturbance of the natives. 
 His property shall be answerable for all damage occasioned to our 
 establishments by the insurgents; and if French blood is spilt, 
 every drop shall recoil on his head. 
 
 "D'AUBIGNY, 
 
 "Commandant Particular to the Society Islands. 
 "PAPEETE, March 3." 
 
 (London Times, July 30, 1844.) 
 
 On the return of the French Governor to Papeete, as M. 
 Guizot, French Minister for Foreign Affairs, afterwards informed 
 the British representative at Paris, August 29, 1844, haste was 
 made "to put an end to these vexatious proceedings by ordering 
 the embarkation and departure of Mr. Pritchard." (Correspond- 
 ence relating to the Removal of Mr. Pritchard from Tahiti, p. 5, 
 Parliamentary Papers [1845], v l- Ln O 
 
 When, the last of July, the news of Mr. Pritchard's seizure 
 reached England and France, a very tense situation immediately 
 
 1 The Earl of Aberdeen, British Secretary for Foreign Affairs, in a letter of Sep- 
 tember 6, 1844, to the English Minister at Paris, wrote: "With respect to Mr. Prit- 
 chard, k is due to that gentleman to declare, that he has uniformly denied the truth 
 of the allegations which have been brought against him, and has courted the strictest 
 inquiry." No inquiry, however, was made at that time. (Correspondence relating to 
 the Removal of Mr. Pritchard from Tahiti, Parliamentary Papers [1845], vol. LII.)
 
 THE PRITCHARD AFFAIR 25 
 
 developed between the two countries. The indignation of England 
 was met by an answering indignation hi France that England 
 should be so stirred, and a letter from the French correspondent 
 of the London Times (printed August 6, 1844) declared: "It will 
 be almost a miracle if the present ministry maintain itself and 
 terminate this matter pacifically; and yet I am not without hope 
 that they will be able to do both, although it is very easy to fore- 
 see the storm they will raise by acquiescing in any terms your 
 government may propose." 
 
 A discussion of the matter immediately ensued between the 
 British and French Governments, with the result that on August 
 29, 1844, M. Guizot, French Minister for Foreign Affairs, made 
 to the English Government the following statement: That "the 
 French authorities had legitimate grounds, and were in fact com- 
 pelled to exercise their right to remove Mr. Pritchard from the 
 territory of the island, where his presence and conduct fomented 
 amongst the natives a constant resistance and sedition;" that 
 this right belonged to the Government of the King "not only in 
 virtue of the right common to all nations, but also according to 
 the actual terms of the Treaty of the Qth of September, 1842, 
 which established the French protectorate." 1 M. Guizot added, 
 however: "With regard to certain circumstances which preceded 
 the removal of Mr. Pritchard, especially the manner and the 
 place of his temporary imprisonment, and the proclamation 
 published with respect to him, at Papeete, on the 3d of March 
 
 1 The Earl of Aberdeen, Secretary of State for Foreign Affairs, in his speech in 
 the House of Lords on August i, 1844, pointed out, however, that the act in ques- 
 tion took place not during the French protectorate, but during the temporary and 
 ill-advised possession of the island on the part of the French officers in command. 
 The Earl of Aberdeen said: "It is undoubtedly true that a gross outrage has been 
 committed against the person of a British subject. . . . But I wish to observe to 
 the House that this proceeding has taken place, not only without the possible knowl- 
 edge, or instruction, or participation of the French Government, but under a state 
 of things which has been disavowed by them. It will be recollected that, in the 
 month of September [sic] last, the French authorities in the Island of Tahiti de- 
 throned the Queen, and took absolute possession of, and exercised the full rights of 
 sovereignty over that island. . . . The proceeding was promptly disavowed by 
 the French Government just about the time that the present transaction took place, 
 in the month of March last. But during the intervening months, it is clear that a 
 state of things existed that would account for certain acts which it would be im- 
 possible to anticipate under another and a more satisfactory state of things." (Han- 
 sard: Parliamentary Debates [London, 1844], 3d series, vol. uocvi, p. 1643.)
 
 26 CONSULS 
 
 last, the Government of the King regret them sincerely, and the 
 necessity of such proceedings does not appear justified by the 
 facts." (Correspondence relating to the Removal of Mr. Pritchard 
 from Tahiti, Parliamentary Papers [1845], v l- UI -) A subsequent 
 note of September 2 from M. Guizot to the French Minister at 
 London added that, "in expressing to Her Britannic Majesty's 
 Government then- regret at, and disapproval of, certain circum- 
 stances which preceded the removal of Mr. Pritchard from the 
 Island of Tahiti, the Government of the King are disposed to 
 accord an equitable indemnity * to Mr. Pritchard in proportion 
 to the losses and sufferings which those circumstances may have 
 occasioned to him." (Correspondence relating to the Removal of 
 Mr. Pritchard from Tahiti, Parliamentary Papers [1845], v l- Ln -) 
 
 These overtures were accepted as entirely satisfactory by the 
 British Government and were so announced in both Houses of 
 Parliament on September 5, 1844. (Correspondence relating to the 
 Removal of Mr. Pritchard from Tahiti, Parliamentary Papers [1845], 
 vol. LH.) 
 
 (Correspondence relative to Tahiti, in Parliamentary Papers 
 [1843], v l- LXI > Correspondence relative to the Society Islands, in 
 Parliamentary Papers [1844], vol. LI; Correspondence relating to 
 the Removal of Mr. Pritchard from Tahiti, in Parliamentary Papers 
 [1845], v l' Ln > Hansard: Parliamentary Debates [London, 1844], 
 3d series, vol. LXXVI; London Times, 1844; The Annual Register, 
 1844-) 
 
 THE CASE OF LEE JORTIN (1900) 
 
 THE civil court of Dieppe on January 22, 1900, gave the fol- 
 lowing decision in this case: 
 
 "Whereas action is brought against Lee Jortin, English Vice- 
 Consul at Dieppe, in the police court at Dieppe on the complaint 
 of Murphy, an English subject, for public slander and injury under 
 articles 23, 29, 32, 33 of the law of July 29, 1881; 
 
 "Whereas Murphy alleges in his summons that on October 
 17, 1899, at 11:30 A.M. in the offices of the consulate at Dieppe, 
 
 1 The indemnity agreed upon amounted to 25,000 francs. (Charles Calvo: Lt 
 Droit International [Paris, 1896], vol. in, p. 233.)
 
 THE CASE OF LEE JORTIN 27 
 
 Lee Jortin insulted and slandered him in public in the presence 
 of three newspaper men, saying to him in English: 'You are a 
 drunkard, you know you are a drunkard;' 
 
 "Whereas, by way of reparation for the prejudice done his good 
 name, Murphy sues Lee Jortin for the sum of ten thousand francs 
 and asks furthermore that the judgment to be rendered in his 
 favor be inserted in various newspapers; 
 
 "Whereas the attorney for the government considers that the 
 court is not competent in the case; whereas Lee Jortin has adopted 
 this objection of the incompetence of the court and claims, more- 
 over, that he did not make the remarks specified in the sum- 
 mons; 
 
 "Whereas it appears from the investigation that on October 
 17 last, Messrs. Wilby, Strong and Cauway, English journalists, 
 accompanied by Murphy, went to the English Vice-Consulate 
 to make inquiries of Lee Jortin in regard to the circumstances of 
 Murphy's arrest in the month of July preceding; 
 
 "Whereas Lee Jortin in this interview made it clear that, be- 
 cause of the possibility of his being directed to make an official 
 investigation, it was proper that he should act with great reserve; 
 nevertheless, on being reproached because he had not lent his 
 assistance to Murphy, Lee Jortin, turning toward him, is alleged 
 to have said: 'You were drunk that day; you know well enough 
 you are a drunkard; we all have our moments of weakness; you 
 have been seen repeatedly in Dieppe in a drunken condition' 
 (testimony of Wilby and Strong) ; 
 
 "Whereas Mr. Walis, secretary of the consulate, affirms on the 
 contrary that Lee Jortin did not make use of the expressions at- 
 tributed to him by the witnesses, that he may perhaps have re- 
 marked to Murphy that he had the reputation of not behaving 
 himself well at the club and of drinking too much, and he may 
 have added in answer to Murphy's protest: 'Pardon me, but 
 you surely know you are in the habit now and then of taking too 
 much;' 
 
 "Whereas the alleged remarks in regard to which the witnesses 
 are thus seen to disagree were made at the English Vice-Consul- 
 ate in the office of the vice-consul; 
 
 "Whereas Lee Jortin was questioned as vice-consul in regard to
 
 28 CONSULS 
 
 the reasons which had deterred him from giving assistance to 
 one of his countrymen in difficulty with the French authorities; 
 
 "Whereas he was then fulfilling his office in stating the reasons 
 which deterred him from intervening or which limited his inter- 
 vention; 
 
 "Whereas consuls and vice-consuls do not in the absence of 
 special treaty stipulations enjoy the privileges accorded diplo- 
 matic agents, more particularly the privilege of extraterritoriality 
 and immunity from jurisdiction; 
 
 "Whereas they reside hi France like any other foreigners sub- 
 ject to the police regulations for the public welfare, and therefore 
 come under the jurisdiction of the French courts; 
 
 "Whereas, nevertheless, though this be granted, the action of 
 consuls in their private capacity is not the same thing as then- 
 action in the capacity of consuls; 
 
 "Whereas even though it be true that consuls and vice-consuls 
 are not diplomatic agents, they ought nevertheless to be consid- 
 ered as public officials of a foreign sovereign, who are entrusted 
 by that sovereign with the duty of defending the interests of their 
 countrymen before the local authorities, and who are invested so 
 far as concerns these countrymen with a real authority (magis- 
 trature), in the free exercise of which they are insured by their 
 letters of exequatur; 
 
 "Whereas, consequently and by virtue of their office, however 
 it may differ from that of diplomatic ministers, they ought to 
 enjoy a certain personal immunity so long as they keep within 
 the limits of their official duties and the public welfare is not 
 jeopardized; 
 
 "Whereas there is no question here of exemption from jurisdic- 
 tion, but of an inherent immunity which arises from the very 
 institution of consulates and which is governed by the laws of 
 international courtesy; 
 
 "Whereas, in fact, it would be impossible for consuls to have 
 the necessary freedom of action for the discharge of their duties 
 if they could be subject to prosecution by their own countrymen 
 before French courts for acts they had done or even merely for 
 remarks which they had made in their official capacity; 
 
 "Whereas it was strictly hi his official capacity as vice-consul
 
 THE CASE OF LEE JORTIN 29 
 
 that Lee Jortin imparted to Murphy and the persons accompany- 
 ing him the motives which led him to refuse his assistance; 
 
 "Whereas it is not the duty of the court to judge or examine the 
 reasonableness of these motives or the more or less emphatic 
 form in which he expressed himself; 
 
 "Whereas, in the case at issue, Lee Jortin can be held account- 
 able for his acts and expressions to his own government only; 
 
 "Whereas it follows that it is not necessary to inquire into 
 whether the remarks complained of are sufficiently proved or 
 whether they contain elements which constitute the offenses of 
 slander and injury either under the head of the materiality of 
 the facts or of the publicity given them or of the intention; 
 
 "Whereas in consequence the court must declare itself simply 
 and unconditionally without competence; 
 
 "On these grounds the court declares itself without compe- 
 tence and condemns Murphy, plaintiff in the suit, to pay the 
 costs." 
 
 (Translation. Journal de Droit International Prive [1900], vol. 
 xxvn, pp. 130-32.) 
 
 On appeal to the Court of Appeals of Rouen the decision of the 
 court of Dieppe was affirmed, May n, 1900, and Murphy was 
 also condemned in costs for the appeal. 
 
 At the same time the Court of Appeals considered the appeal 
 from another judgment of March 19, 1900, brought against Consul 
 Jortin in the court of Dieppe by Murphy because of the alleged 
 injury caused him by statements in a letter published in the 
 Times and afterwards translated in a local newspaper of Dieppe. ' 
 The court of Dieppe considered that Consul Jortin in writing the 
 letter to the Times had not acted in his official capacity as a consul 
 and consequently the court declared itself competent to consider 
 the action, but in its judgment on the merits of the case the court 
 found that Consul Jortin had acted without malice and in a 
 manner reasonable under the circumstances. The case was dis- 
 missed and Murphy was condemned to pay the costs. 
 
 On Murphy's appeal from this decision the court of Rouen 
 intimated that in its opinion Consul Jortin's act in writing to the 
 Times did relate to his official position as consul and was under-
 
 30 CONSULS 
 
 taken for the purpose of protecting the interests entrusted to 
 his care. Furthermore, the court was of opinion that even if the 
 view of the court of Dieppe should be accepted the decision was 
 nevertheless correct in dismissing the action against Consul Jortin 
 and Murphy was again condemned to pay the costs of this appeal. 
 (Condensed from the Journal de Droit International Prive 
 [1900], vol. xxvn, pp. 958-64.) 
 
 CONSUL ROGERS'S CASE (1866) 
 
 MR. SEWARD, in an instruction to Mr. Kilpatrick, Chile, dated 
 February 19, 1866, informed him of the revocation on the i2th 
 inst. of the exequatur granted to Don Estaban Rogers on October 
 14, 1863, as Chilean Consul ad interim at New York. Mr. Kil- 
 patrick was instructed, hi communicating the fact to the Chilean 
 Minister for Foreign Affairs, "to say that this measure was 
 adopted for causes satisfactory to this government, and hi defense 
 of the dignity and honor of the United States," and to "add, at 
 the same tune, that should the Chilean Government see fit to 
 appoint a successor to Mr. Rogers, if entirely unobjectionable, 
 the usual exequatur will be granted to him." 
 
 On February 15 Mr. Asta Buruaga, the Chilean Minister at 
 Washington, who had seen a notice of the revocation of the exe- 
 quatur in the press, complained that he had not been advised 
 either of the action taken or of the reasons for it, and intimated 
 that it was inspired by false representations of Spanish agents as 
 to the consul's violation of the neutrality laws. 
 
 Mr. Seward replied, February 16, that the action was taken 
 "for causes satisfactory to this government, and in defense of 
 the dignity and honor of the United States," and that General 
 Kilpatrick had been instructed to say to the Chilean Government 
 "that a new consul, if entirely unobjectionable, will be received 
 by this government." 
 
 Mr. Asta Buruaga subsequently left at the Department of 
 State, April 26, 1866, a communication on the subject, dated the 
 2d of that month, from the Chilean Minister of Foreign Affairs. 
 In this communication Mr. Covarrubias said that Mr. Seward 's
 
 DILLON'S CASE 31 
 
 "laconic explanation," which was called forth by the minister's 
 "timely and just observations," did not disclose the reason for 
 the revocation of the exequatur. When, in 1859, Chile "was com- 
 pelled, for good and powerful reasons, to cancel the exequatur of 
 Mr. Trevitt, Consul of the United States at Valparaiso," she ad- 
 dressed without delay to the United States Minister explanations 
 which were "spontaneous, clear, circumstantial, full, and satis- 
 factory." She therefore looked with "double surprise and regret" 
 upon the present case, hi which she had "a right to expect at least 
 that the international principle of reciprocity would have been 
 consulted." 
 
 Mr. Seward, May 29, replied, in a note to Mr. Asta Buruaga, 
 that the President was not convinced that an error had been com- 
 mitted in the withdrawal of the exequatur or in the manner in 
 which it was done. The consul's exequatur was summarily revoked 
 "under full .conviction on the part of this government that the 
 complaints of his violation of the neutrality laws were sustained 
 by presumptive proof, and that to allow him to continue to exer- 
 cise consular functions while pursuing such unlawful practices 
 would involve a necessity for explanations between the Govern- 
 ment of Chile and that of the United States, which could in no 
 case improve the friendship existing between them, and might, 
 perhaps, result in producing a rupture of relations which would 
 be prejudicial to both, and to the cause of all the American 
 republics." It was, however, "an occasion of much regret" that 
 a commercial agent of Chile "should have proved himself un- 
 worthy of the confidence reposed in him by the friendly Govern- 
 ment of the United States." 
 
 (Taken textually from Moore: Digest of International Law, 
 vol. v, pp. 22-23.) 
 
 DILLON'S CASE (1854) 
 
 IN 1854 Mr. Dillon, then Consul of France at San Francisco, 
 was brought into the United States District Court, then sitting, 
 on an attachment for refusing to obey a subpoena duccs tecum 
 issued from that court to compel his attendance at a criminal 
 trial then and there pending. Mr. Dillon protested against the
 
 32 CONSULS 
 
 process on two grounds: (i) immunity from such process by in- 
 ternational law; (2) immunity under the French-American treaty. 
 The second point was merged in argument in the first, since it 
 was agreed by counsel that the treaty privilege could not stand 
 in the way of a party's constitutional right to meet the witness 
 against him face to face, unless that privilege was in accordance 
 with public international law. 
 
 When the attachment was served on Mr. Dillon, he hauled 
 down his consular flag; and the case was taken up by the French 
 Minister at Washington, as involving a gross disrespect to 
 France. A long and animated controversy between Mr. Marcy, 
 then Secretary of State, and the French Government ensued. 
 The fact that an attachment had issued under which Mr. Dillon 
 was brought into court was regarded by the French Government 
 as not merely a contravention of the treaty, but an offense by 
 international law; and it was argued that the disrespect was not 
 purged by the subsequent discharge of Mr. Dillon from arrest. 
 It was urged, also, that the fact that the subpoena contained the 
 clause duces tecum involved a violation of the consular archives. 
 Mr. Marcy, in a letter of September n, 1854, to Mr. Mason, 
 then minister at Paris, discusses these questions at great length. 
 He maintains that the provision in the Federal Constitution 
 giving defendants opportunity to meet witnesses produced against 
 them face to face, overrides conflicting treaties, unless in cases 
 where such treaties embody exceptions to this right recognized 
 as such when the Constitution was framed. One of these excep- 
 tions relates to the case of diplomatic representatives. "As the 
 law of evidence stood when the Constitution went into effect," 
 says Mr. Marcy, "ambassadors and ministers could not be served 
 with compulsory process to appear as witnesses, and the clause in 
 the Constitution referred to did not give the defendant the right 
 in criminal prosecutions to compel their attendance in court." 
 This privilege, however, Mr. Marcy maintained, did not extend to 
 consuls, and consuls, therefore, could only procure the privilege 
 when given to them by treaty which, in criminal cases, was sub- 
 ject to the limitations of the Constitution of the United States. 
 Mr. Marcy, however, finding that the French Government 
 continued to regard the attachment, with the subpoena duces
 
 DILLON'S CASE 33 
 
 tecum, as an attack on its honor, offered, in a letter to Mr. Mason, 
 dated January 18, 1855, to compromise the matter by a salute to 
 the French flag upon a French man-of-war, stopping at San 
 Francisco. 1 Count de Sartiges, the French Minister at Wash- 
 ington, asked in addition that when the consular flag at San 
 Francisco was rehoisted, it should receive a salute. This was de- 
 clined by Mr. Marcy. In August, 1855, after a long and pro- 
 tracted controversy, the French Government agreed to accept 
 as a sufficient satisfaction an expression of regret by the Govern- 
 ment of the United States, coupled with the provision that 
 "when a French national ship or squadron shall appear in the 
 harbor of San Francisco the United States authorities there, 
 military or naval, will salute the national flag borne by such 
 ship or squadron with a national salute, at an hour to be specified 
 and agreed on with the French naval commanding officer present, 
 and the French ship or squadron whose flag is thus saluted will 
 return the salute gun for gun." 
 
 1 Whatever the correctness, from a constitutional point of view, of the opinions 
 expressed by Marcy, by his action in agreeing to a salute of the French flag, he ad- 
 mitted the validity of the French contention. Although unwilling to denounce the 
 valuable treaty with France, the United States was careful not to enter into any 
 new treaties which contained any provision exempting consuls from giving testimony. 
 Provided the local authorities refrain from serving subpcenas or attachments and 
 appeal to the Federal Government, the latter should not have much difficulty in 
 prevailing upon the consul to give his testimony. In a note of March 27, 1855, to 
 the Portuguese Charg6 d' Affaires (see Moore: Digest of International Law, vol. v, pp. 
 Bo-8i), Secretary Marcy, referring to the above-mentioned Article II of the consular 
 convention between the United States and France of February 23, 1853, made the 
 following statement: "It is the duty of a consul, when invited to appear in court to 
 give his testimony, to comply with the request unless he is unable to do so. This duty 
 he violates, if he refuses without good and substantial excuse. Neither his official 
 character, his disinclination, nor any slight personal inconvenience constitutes such 
 an excuse. The pressure and importance of official duties requiring immediate per- 
 formance may prevent his attendance in court, but such can very rarely be the case 
 where the court sits at the place of his residence. It is not claimed that the court 
 can entertain the question of the competency of his excuse for declining to comply 
 with its invitation; but, where the Government of the United States has fair grounds 
 to question the good faith with which the consul avails Himself of the provision of 
 the convention which exempts him from compulsory process, it has two modes of 
 redress and it can take either at its option. It can appeal to the consul's government 
 to inquire into the case in this respect, and to deal with him as it shall find his con- 
 duct deserves; or it can revoke his exequatur." 
 
 The constitutional aspects of Dillon's case and the discussion regarding the limits 
 of the treaty-making power are not considered here, since they are properly classed 
 as questions of the national or municipal law of the United States.
 
 34 CONSULS 
 
 (Extracted and condensed from Wharton: Digest of the Inter- 
 national Law of the United States [Washington, 1886], vol. I, pp. 
 665-67.) 
 
 THE INCIDENT OF THE FRENCH CONSULATE AT 
 FLORENCE (1887-88) 
 
 ON June 28, 1887, there died, at Florence, Hussein Pacha, an 
 agent of long standing for the Bey of Tunis whose subject he was. 
 The French Consul, M. de Laigue, advised the local authority 
 of the death and, without encountering any opposition, affixed 
 seals to the effects of which Hussein Pacha died possessed. The 
 local authorities were informed of this fact, as appears from letters 
 addressed under date of June 30 to the French Consul by the 
 pretors of the first and second district at Florence, who excused 
 themselves for not being able, by reason of the duties of their 
 office, to be present at the affixing of the seals. 
 
 The effects and papers of the deceased were placed in the ar- 
 chives of the consulate. The French Consul believed that in so 
 doing he was acting conformably to the Franco-Italian Consular 
 Convention of 1862. 
 
 Several months passed. On October 29 and on November 2, 
 1887, the French Consul, at the request of M. Santillana, acting 
 for the Bey of Tunis who had claim on the property, proceeded 
 to break the seals, which had not been crossed with those of the 
 local authorities. Then one M. El-melik came forward. He pre- 
 tended to be a creditor of the deceased and to have the right, as 
 such, to be present at the scrutiny of the papers of which Hussein 
 Pacha died possessed. 
 
 El-melik was an Algerian Jew, who became French by virtue 
 of the decree of October 24, 1870, rendered at Tours at the 
 instance of M. Cremieux. 
 
 The presumption was that El-melik was not a creditor of the 
 deceased. A decision of the court of Lucca (March, 1887), con- 
 firmed by the Court of Appeals in Florence (December 16, 1887), 
 declared, on the contrary, that he was presumed to be a debtor of 
 Hussein Pacha, as he had not rendered his accounts. The French 
 Consul, having to do with a claim which was not that of an Italian
 
 THE FRENCH CONSULATE AT FLORENCE 35 
 
 or of the subject of a third power, refused El-melik, a French sub- 
 ject, the right of intervening unless he presented himself equipped 
 with a decision of the French courts authorizing it. 
 
 El-melik refused to accept the consul's ruling; and although a 
 Frenchman, summoned the French Consul before the Italian 
 court. The summons was served on November 8, 1887. The 
 French Consul asked the advice of local lawyers, who were of 
 the opinion that he was not obliged to appear as respondent in 
 such an action, and in consequence he did not appear. 
 
 On December 20, 1887, the French Consulate was notified 
 of a judgment by default, dated the i7th of the same month, 
 ordering the sequestration of the papers pertaining to the property, 
 and the dispossession of the consul of the goods and effects per- 
 taining to the property, with provisional execution. 
 
 The consul, though he considered the judgment rendered against 
 him inapplicable, was, out of courtesy to the country to which he 
 was accredited, preparing to lodge complaint, when the next day, 
 December 22, 1887, during his absence, the pretor presented him- 
 self at the office of the consulate and called upon the chancellor 
 to allow the execution of the judgment by default of December 17. 
 
 The chancellor of the consulate, M. Langlade, declared to the 
 pretor: (i) that, waiving an inquiry into the legal aspects of the 
 case, he could not, in his position as custodian of the archives, 
 without order of the consul, allow a local authority to enter the 
 office of the chancellery; (2) that the locked room in which the 
 papers of Hussein Pacha were, was also used for the consular 
 archives and the judicial records, and that their inviolability was 
 assured by the Franco-Italian Treaty of 1862. 
 
 The Florentine pretor sent for the police and a locksmith. He 
 ordered the door of the room containing the archives and rec- 
 ords to be broken open; then entering, he proceeded to sequester 
 the papers and documents which he thought belonged to the 
 property, and thereto affixed his seals. In point of fact, among 
 these papers were some belonging to the property in question, 
 while others belonged to the consular archives, notably a file of 
 official documents relating to the year 1877. (This fact was brought 
 out in the protest made December 26^ 1887, by the foreign con- 
 suls stationed at Florence.)
 
 36 CONSULS 
 
 The chancellor drew up forthwith an official report stating the 
 violation of the consular premises manu militari. The protest 
 was immediately brought to the attention of the Italian Govern- 
 ment by the consul and the French Ambassador, M. de Mouy. 
 
 The incident involved a question of principle of the greatest im- 
 portance for diplomatic relations; moreover, all the governments 
 represented in Italy were affected. The consuls of the differ- 
 ent nations at Florence held a meeting under the presidency of 
 their dean, Mr. Colnaghi, the British Consul, to draw up a 
 protest. The drafting of this document was concluded December 
 26, 1887. It stated that the acts committed by the Italian pretor 
 at the French Consulate at Florence were in violation not only 
 of the Franco-Italian Convention of 1862, but also of the funda- 
 mental principles of the law of nations. 
 
 The consuls, upon deliberation, voted unanimously (the French 
 Consul excepted) the folio whig motion: "In view of the gravity 
 of the acts of which the above-named consuls have taken cog- 
 nizance, it has been decided that each of them should refer the 
 matter to his own government, and the present official report 
 has been signed by all the parties, who have concluded that the 
 original should be placed on file in the British Chancellery under 
 protection of its inviolability." This important act was com- 
 municated January 15, 1888, to the various governments by 
 their respective ambassadors accredited at Rome. 
 
 On the vigorous representations of the Cabinet of Paris to the 
 Cabinet of the Quirinal, negotiations were opened. 
 
 In the meantime, while the two governments were devoting 
 themselves to a thorough investigation of the alleged facts, El- 
 melik continued his suit. Indeed, at the instance of El-melik, 
 the parties concerned were on January 18, 1888, summoned to ap- 
 pear two days later (January 20) at the French Consulate to 
 witness the pretor Tosini break the seals affixed by him Decem- 
 ber 22, 1887, and draw up an inventory of the effects of Hussein 
 Pacha. 
 
 The announcement of this further proceeding at a time when 
 negotiations were still pending called forth protests from France. 
 The Italian Government made reply through semi-official organs 
 that the matter at issue was only an action of judicial procedure
 
 THE FRENCH CONSULATE AT FLORENCE 37 
 
 belonging to the courts, that it was not for the government to 
 intervene, and that consequently there could not be imputed 
 to the government action which would take place entirely with- 
 out its jurisdiction. 
 
 Nevertheless, the Italian Cabinet notified M. de Mouy, French 
 Ambassador at Rome, and General Menabrea, Italian Ambassa- 
 dor at Paris, that the breaking of the Italian seals on Hussein's 
 effects had by order been indefinitely postponed. 
 
 General Menabrea sent to Rome M. Ressman, Italian Minis- 
 ter Plenipotentiary at Paris, to see M. Crispi, President of the 
 Council of Ministers. 
 
 A fresh inquiry was instituted at Florence by the prefect of the 
 city and the attorney-general in order to complete and rectify 
 the brief account of the matter first sent in to their government 
 by the Italian authorities. 
 
 The investigation and the discussion of the judicial questions in- 
 volved in the incident were brought before the board of disputed 
 diplomatic claims acting for the Consulta at Rome. M. Canon- 
 ico, a senator and judge in the Court of Appeals, was commissioned 
 to make the report. 
 
 M. Crispi, President of the Council, and M. Zanardelli, Cus- 
 todian of the Seals, both advocates and jurisconsults of the first 
 rank, personally studied the points of law involved in the case. 
 
 Finally, on January 21, 1888, at a time when the Council of 
 Ministers was in session at the Elysee under the presidency of 
 M. Carnot, President of the Republic, General Menabrea pre- 
 sented himself there at the palace and sent word to M. Flourens, 
 Minister for Foreign Affairs, that he had a communication to 
 make to him. 
 
 The Minister for Foreign Affairs, leaving the Council, immedi- 
 ately received the Italian Ambassador, who communicated to 
 him a dispatch received from his government, indicating the 
 solution proposed by Italy for the conclusion of the difference. 
 
 The official note of the French Government on this subject, 
 communicated in the afternoon of January 21, 1888, was as 
 follows: 
 
 '"M. Flourens, Minister for Foreign Affairs, this morning re- 
 ceived the Italian Ambassador, General Menabrea, who sought
 
 38 OFFICERS 
 
 him out at the Elysee during a meeting of the Council of Minis- 
 ters in order to communicate to him a telegram from M. Crispi, 
 in consequence of which the incident at] Florence may be con- 
 sidered closed. 
 
 "The pretor, Tosini, will be transferred so as to have no further 
 contact with the French Consul at Florence. 
 
 "The effects left by Hussein will be dealt with conformably 
 to the clauses of the convention between Italy and Tunis in 1868, 
 the provisions of which have never been questioned by our Cabi- 
 net, the Treaty of the Bardo having recognized all the conven- 
 tions and international treaties anterior to its signature. 
 
 "The French Consul at Florence will not be censured." 
 
 Following this agreement, the pretor, Tosini, of Florence was 
 censured and transferred elsewhere. The Berliner Tageblatt an- 
 nounced, February 19, 1888, that this magistrate had been 
 granted advancement. But this information has since been of- 
 ficially denied. 
 
 (Translation. Journal du Droit International Priv6 [1888], 
 vol. xv, pp. 53-57.) 
 
 3. OFFICERS 
 
 THE CASE OF THE FORTE (1863) 
 
 WHILE the discussion between Great Britain and Brazil rela- 
 tive to the plundering of the barque Prince of Wales was in prog- 
 ress, Rear-Admiral Warren reported to the British Minister at 
 Rio de Janeiro "a disagreeable incident," which he described as a 
 "brutal outrage" on three officers of his flagship, the Forte, by 
 the Brazilian guard stationed on Tijuca Hill. The officers in ques- 
 tion were the chaplain, a lieutenant, and a midshipman. It was 
 stated that at 7 o'clock on a certain evening, while they were pass- 
 ing the police guardhouse at Tijuca, a sentinel advanced and 
 made a motion with his musket; that the chaplain inquired, 
 "Que quere V.?" that the sentinel then struck him with his 
 musket, attempted to stab him with the bayonet, and called the
 
 THE CASE OF THE FORTE 39 
 
 guards, who rushed upon him with bayonets and swords; that all 
 three officers were then arrested and- confined in the guardhouse; 
 that on the next morning they were marched through the streets 
 of Rio under escort, though they offered to hire a carriage; that 
 at the Rio police office, though they gave then- names and rank, 
 as they had done the evening before at the guardhouse, they were 
 kept for two hours in a filthy den with men and boys of the lowest 
 grade; that they were then, at the request of the British Consul, 
 with whom they had been permitted to communicate, removed 
 to a better prison, and were afterward taken hi a carriage to a 
 barrack and well treated; and that on the morning of the second 
 day after then* arrest they were released by order of the chief of 
 police. 
 
 On the part of the Brazilian Government it was stated that 
 "three foreigners, having dined at the hotel of Robert Bennett, 
 on the Tijuca Hill, where they had two bottles of Bordeaux wine 
 and one-half bottle of Cognac, were proceeding to the city;" 
 that "the said foreigners" annoyed the passers-by, "attempting to 
 unhorse an equestrian who was going home quietly, and violently 
 seizing the reins of his horse;" that when they arrived at the 
 guardhouse they mounted the steps and approached the sentinel, 
 one of them asking, "What are you doing there? " that the sentinel 
 told them to retire, when they broke out into threats and began 
 to strike him with their sticks so that he was compelled to defend 
 himself with the stock of his gun and call the guards; that they 
 resisted arrest, "laying hold of the soldiers and falling on the 
 ground with them;" that, being deposited in the guardhouse, they 
 refused to answer any questions, "showing themselves haughty 
 and scornful;" that, though they refused to give their names, the 
 commandant treated them with kindness, furnishing them, at then- 
 request, with writing paper and playing cards, and placed at then- 
 disposal his own bed, the only one in the guardhouse; that they 
 "were not completely drunk," but "appeared not to be in full 
 possession of their mental faculties;" that when they were brought 
 into the city, they were placed not in the slaves' prison, but 
 in that of freemen, where there might, indeed, be prisoners of 
 color, as the Brazilian legislation made no discrimination on that 
 ground; that as soon as their condition was made known to the
 
 40 OFFICERS 
 
 chief of police they were transferred to the barracks of the police 
 corps and an order was given for a circumstantial report on the 
 case; and that as it appeared by this report that "the acts of the 
 English officers were merely the result of the state in which they 
 were at the time," an order was given for their discharge. 
 
 The English officers denied the allegations as to then* intoxica- 
 tion, their annoyance of persons on the road, and their use of 
 threats toward the sentry. They declared that no resistance was 
 made to the guards by two of the officers, and that resistance was 
 made by the third only after he had received gross treatment. 
 They also stated that when taken to the guardhouse they gave 
 their names to the ensign, both verbally and in writing, through 
 an interpreter. They admitted that the officer of the guard pro- 
 vided them with paper and with a pack of cards, and offered a 
 bed to one of them ; but they alleged that he broke his promise to 
 forward their letters, which never reached their destination. 
 
 The British Minister at Rio was instructed by Earl Russell to 
 demand (i) that the ensign of the guard be dismissed from the 
 service; (2) that the sentry who began the attack be adequately 
 punished; (3) that an apology be made by the Brazilian Govern- 
 ment; and (4) that the chief of police of Rio de Janeiro be publicly 
 censured. 
 
 Demands having thus been formulated in the case of the Forte, 
 as well as in that of the Prince of Wales, steps were taken to resort 
 to reprisals in the event of the requisite redress being denied. 
 The British Minister at Rio was instructed that a ship or some 
 other portion of public property might be seized and held as secur- 
 ity till justice should be done; but that as such a course might 
 lead to a collision, it might be preferable to seize private property. 
 This was, however, left to the discretion of Admiral Warren, who, 
 after the Brazilian Government had refused to yield to his gov- 
 ernment's demands, seized at sea and detained five Brazilian ves- 
 sels. It was subsequently arranged that the claim in the case of 
 the Prince of Wales should be paid under protest and the captured 
 vessels released, the Brazilian Government assuming responsi- 
 bility for any losses which might have resulted to the citizens of 
 third countries, and that the case of the Forte should be submitted 
 to arbitration.
 
 THE CASE OF THE FORTE 41 
 
 The King of the Belgians, who was chosen as arbitrator, made 
 the following award: 1 
 
 "We, Leopold, King of the Belgians, having accepted the du- 
 ties of arbitrator conferred on us by the common consent of Great 
 Britain and Brazil, in respect to the difference raised between 
 these states in regard to the arrest, June 17, 1862, by the Brazil- 
 ian police guard stationed at Tijuca, of three officers of the British 
 marine, and the incidents which took place subsequent to, and 
 on the occasion of this arrest; 
 
 "Animated by a sincere desire to render a strictly impartial 
 decision in acknowledgment of the faith placed in us by the 
 said states; 
 
 "Having to this end duly examined and maturely weighed all 
 the documents which have been produced on one side and on the 
 other; 
 
 "Being desirous, in order to fulfill the charge which we have 
 accepted, of bringing to the knowledge of the high parties con- 
 cerned the result of our examination as well as our arbitral de- 
 cision on the question submitted to us in the following terms, to 
 wit: 
 
 "If the way in which Brazilian laws were applied to the English 
 officers could be considered an offense to the British navy; 
 
 "Considering that it is by no means proved that the conflict 
 arose from an act of the Brazilian agents, who could not reasona- 
 bly have any motive for provocation; 
 
 "Considering that the officers at the time of their arrest were 
 not clothed with the insignia of their rank, and that in a port fre- 
 quented by so many strangers they could not suppose it possible 
 to have their mere word accepted that they belonged to the 
 British navy so long as no visible indication of their character was 
 offered in support of their statement; that, consequently, as soon 
 as they were arrested, it was their duty to submit to the existing 
 laws and regulations and that they had no right to demand any 
 different treatment from that which would be accorded to any 
 other persons in the same circumstances; 
 
 "Considering that while it is impossible to ignore that the in- 
 cidents which took place were disagreeable to the English officers 
 1 Translation. British and Foreign Slate Papers, vol. 53, pp. 150-51.
 
 42 OFFICERS 
 
 and that the treatment to which they were subjected must have 
 seemed to them unusually severe, nevertheless it must be taken 
 into account that when by the declaration of the English Vice- 
 Consul the social position of these officers was duly established, 
 measures were immediately taken to assure them of the special 
 consideration in which they were held, and they were thereupon 
 set at liberty without further ado; 
 
 "Considering that the officer who ordered their release did so 
 as soon as it was possible, and that in so doing he was actuated 
 by the desire to spare these officers the vexatious consequences 
 which according to the provisions of the law must necessarily 
 have resulted to them had any further consideration been given 
 to their action; 
 
 " Considering that, in his report of July 6, 1862, the prefect of 
 police was not only called upon to make a report of what took 
 place but that he was also obliged to explain his conduct to his 
 superior together with the grounds for the leniency which he had 
 shown; 
 
 " Considering moreover that he was acting in a perfectly legiti- 
 mate manner in expressing himself as he did, and that he cannot 
 be considered to have had any malevolent intention; 
 
 "We are of the opinion that in the manner in which Brazilian 
 laws were applied to the English officers there was no offense, 
 premeditated or otherwise, toward the British navy. 
 
 "Done and given in duplicate, under our royal seal, at Chateau 
 de Lachen, the eighteenth day of the month of June, 1863. 
 
 "LEOPOLD I." 
 
 After this decision in favor of Brazil was rendered, Mr. (after- 
 ward Sir) Edward Thornton was sent by the British Government 
 as envoy extraordinary and minister plenipotentiary on a special 
 mission to express to the Brazilian Government the regret of 
 Her Britannic Majesty for the circumstances under which 
 friendly intercourse between the two countries was suspended; 
 to disavow any intention to offend the dignity of Brazil by the 
 measures that were taken, and to propose the renewal of diplo- 
 matic relations. The Emperor replied, saying that it was with 
 sincere satisfaction that he renewed diplomatic relations, and
 
 CAPTAIN GAMBLE'S CASE 43 
 
 that the policy of Brazil would continue to be animated with a 
 spirit of justice toward all other nations. 
 
 (Extracted, except for the translated portion, from Moore: 
 International Arbitrations, vol. v, pp. 4926-28.) 
 
 CAPTAIN GAMBLE'S CASE (1818) 
 
 IN a note dated January 22, 1818, to Mr. Hyde de Neuville, 
 French Minister at Washington, Mr. Adams, Secretary of State, 
 offered the following explanations: 
 
 "At the time when I had the honor of receiving your letter of 
 1 6 October last, concerning a transaction in the port of Marseilles, 
 in which Captain Gamble of the sloop-of-war Efie, a public ship 
 in the service of the United States, was summoned before the 
 tribunal of commerce at that port for damage asserted to have 
 been done to the cable of an English vessel called the Herald, 
 and was alleged to have prevented the execution of the citation 
 upon him, on board of his own vessel, that officer being absent 
 from the United States, it was thought due to justice, before I 
 should answer your letter, to wait for his report upon the circum- 
 stances of the case. That report was expected to be shortly re- 
 ceived, having been already required of him, upon a complaint 
 which had been received at this Department from the British 
 Minister, Mr. Bagot, in behalf of Captain Snowden, the master 
 of the British vessel, the cable of which was stated to have been 
 damaged. Captain Gamble's report has accordingly been re- 
 ceived; from which it appears that the place occupied by the Erie, 
 at the time when the accident happened, had been assigned to 
 Captain Gamble, at the time of his arrival in the harbor, by the 
 proper officer of the port, and without any objection from the 
 master of the English vessel; that the damage done to the cable 
 was altogether accidental, without any intention or fault of Cap- 
 tain Gamble; that the conduct of the master of the Herald was 
 rude and offensive towards him, and that, in declining to receive 
 the citation of the tribunal of commerce, he had reason to believe 
 that it would be received by- the consul of the United States. 
 
 "I am directed to assure you, sir, that the President has a deep
 
 44 OFFICERS 
 
 sense of the respect due by the officers, commanding vessels of 
 war, to the institutions and authorities of the foreign ports into 
 which they are received. He is persuaded at the same time that 
 your government will duly appreciate the f eelings and the sense of 
 duty to his own flag, of an officer commanding a public vessel of 
 his nation in a foreign port. The British Minister has been in- 
 formed that the damages awarded by the decision of the tribunal 
 of commerce to the master of the Herald, together with the charges 
 of the suit, will be paid by this government, and it is not doubted 
 that this manifestation of respect to the decision of the tribunal of 
 commerce of Marseilles will be received by your sovereign as an 
 evidence of the spirit of amity and of good harmony which the 
 United States will be on all occasions earnestly desirous of cultivat- 
 ing with his government." 
 
 (Moore: Digest of International Law, vol. n, pp. 585-86.) 
 
 PROTECTION OF AMERICANS IN TURKEY (1895) 
 
 APRIL 7, 1895, the Turkish Minister at Washington, referring to 
 a report in the press that two United States men-of-war were to 
 be sent into Turkish waters on account of rumors that the safety 
 of Christians was menaced, inquired whether it was true, as was 
 publicly asserted, "that the American naval authorities have been 
 instructed to confer with your diplomatic and consular authori- 
 ties with a view to the examination of certain matters which come 
 within the exclusive province of the latter." 
 
 The Department of State replied that the intended visit of the 
 ships was "without any unfriendly purpose," and that their pres- 
 ence on the coasts of Asia Minor would "afford an opportunity to 
 learn whether there is just ground for the apprehensions of inse- 
 curity of life and property," which American citizens in that re- 
 gion had expressed and which had called forth assurances of pro- 
 tection from the Porte. 
 
 The instructions to the naval officers directed them to visit cer- 
 tain places on the coast of Asia Minor and ascertain, by conference 
 with the United States consuls and citizens there, what founda- 
 tion existed for the rumors that Christians were in danger, and,
 
 RESTORATION OF ORDER IN SAMOA 45 
 
 in case they should discover ground for anxiety, to intimate to the 
 Turkish officials that it was the intention of the United States to 
 afford protection to its citizens. 
 
 In a later communication of June 6, 1895, addressed by the 
 Department of State to the Turkish Minister, Mr. Uhl, Acting 
 Secretary of State said: 
 
 "It is proper for me to recur to that part of your . . . note of 
 April 7 last, in which you asked to be informed whether the Ameri- 
 can naval authorities had been instructed to confer with the 
 diplomatic and consular authorities touching matters which you 
 deem to be 'within the exclusive province of the latter.' 
 
 "I cannot suppose you thereby intended to question the right 
 of this government to use its several agencies in its own discretion 
 for the purpose of gaining information or carrying out its deter- 
 mined policies, and I assume you had in view merely the per- 
 formance of the usual formalities of international representation. 
 Our naval commanders, carrying neither diplomatic credentials 
 nor consular commissions, discharge no representative duty save 
 in conformity with the ordinary etiquette of the naval intercourse 
 of nations. This mission, I am pleased to learn, has been fulfilled 
 with friendly cordiality by Admiral Kirkland and his commanders, 
 consistently with the instructions given to them as stated in my 
 note to you, No. 10, of April 8, 1895." 
 
 (Modified extract from Moore: Digest of International Law, vol. 
 iv, pp. 618-19.) 
 
 RESTORATION OF ORDER IN SAMOA (1889) 
 
 AFTER a native revolt in Samoa (September, 1888), which had 
 resulted in the landing of German forces there, Admiral Kimberly 
 was ordered by the Government of the United States to proceed 
 in his flagship to Apia. 
 
 Admiral Kimberly was instructed that the United States was 
 willing to cooperate, in accordance with the German invitation of 
 January 10, 1889, in restoring order in Samoa "on the basis of the 
 full preservation of American treaty rights and Samoan author- 
 ity, as recognized and agreed to by Germany, Great Britain, and 
 the United States," and that the German Government had been
 
 46 SOVEREIGNS: HEADS OF STATES 
 
 so informed. He was to extend full protection and defense to 
 American citizens and property, and inform himself as to the 
 situation; to protest against the subjugation and displacement of 
 the native government by Germany, as in violation of the posi- 
 tive agreement and understanding between the treaty powers, 
 but to inform the representatives of the British and German Gov- 
 ernments of his readiness to cooperate in causing all treaty rights 
 to be respected and in restoring peace and order on the basis of 
 the recognition of the Samoan right to independence. 
 
 (Modified extract from Moore : Digest of International Law, vol. 
 I, pp. 544-45-) 
 
 4. SOVEREIGNS: HEADS OF STATES 
 
 DE HABER v. THE QUEEN OF PORTUGAL (1851) 
 
 THE personal immunity of a foreign sovereign from suit and 
 outrage is so well recognized and respected as to make it difficult 
 to find a suitable illustrative case. De Haber v. The Queen of Portu- 
 gal is not really in point, since the suit was brought against Dona 
 Maria da Gloria, Queen of Portugal, in her public capacity. At 
 the close of the arguments in that case Lord Campbell, Chief- 
 Justice, in his judgment delivered May 28, 1851, in the course of 
 which he made an absolute rule prohibiting the Lord Mayor's 
 Court from proceeding further with the suit, remarked: "To cite 
 a foreign potentate in a municipal court, for any complaint against 
 him in his public capacity, is contrary to the law of nations, and 
 an insult which he is entitled to resent." (Queen's Bench Reports, 
 vol. xvn, pp. 196-214.)
 
 CHAPTER II 
 
 METHODS OF PROCEDURE FOR THE SETTLE- 
 MENT OF INTERNATIONAL DIFFERENCES 
 
 5. DISCUSSION AND COMPROMISE 
 
 COMPROMISE through discussion is the very essence of diplo- 
 macy. The representatives entrusted with the care of the in- 
 ternational interests of their state depend upon their ordinary 
 informal and friendly intercourse as individuals to reach a satis- 
 factory understanding for the disposition of the vast majority 
 of questions which arise. The representative of each government 
 recognizes that the other will firmly maintain those views which 
 his government considers as essential to the protection of its in- 
 terests and as the expression of its national ideals, but he will at 
 the same time recognize that the other government must some- 
 times cherish views opposed. In the great majority of cases, where 
 a common spirit of friendliness prevails and both are actuated by 
 a desire to reach some satisfactory solution of the difficulty with- 
 out sacrificing the principles which each government feels it must 
 sustain, there is little difficulty in reaching an understanding. 
 Such a result may be effected through the application of the well- 
 recognized principles of international law, or by a compromise 
 which takes into consideration the relative importance to the 
 governments concerned of the matter in dispute. Even in those 
 instances where any compromise at all may seem to be a yield- 
 ing upon a question of principle, the difficulty can often be ob- 
 viated by a formal notification to the effect that the compromise 
 agreed upon shall not be considered as a precedent to bind the 
 government in its future action. 
 
 We may divide the cases which come before diplomats for their 
 consideration into three classes:
 
 48 DISCUSSION AND COMPROMISE 
 
 (1) Those which may be arranged by the simple application of 
 the principles of international law recognized by both govern- 
 ments. In such a case diplomatic discussion is necessary only to 
 elucidate the true principles. 
 
 (2) Those cases in regard to which the two governments main- 
 tain different interpretations of the law applicable. Such instances 
 may be settled by the procedure to which we have referred, fail- 
 ing which the intercourse of nations still holds in reserve recourse 
 to certain useful methods, such as mediation or arbitration. 
 
 (3) The third class of difficulties relates to political questions. 
 The absence of any ruling principle of international law to which 
 the parties can appeal interferes with the application of arbitra- 
 tion so that the peaceful solution of the difficulty has to rest upon 
 compromise through discussion, perhaps aided by the mediation 
 of one or more third states. The success which a state attains in 
 the maintenance of its political views bears a direct relation to its 
 military and economic strength and the prestige due to its alli- 
 ances. The recognition of this situation means that any com- 
 promise effected by diplomatic discussion must, to be acceptable, 
 take into account the relative military and political strength of 
 the interested governments. 
 
 Whenever the delicate machinery of diplomatic negotiation 
 has succeeded in reaching a happy compromise in settlement of 
 the question under consideration, it is important to preserve for 
 reference some record of this agreement. The elasticity of diplo- 
 macy and the scrupulous good faith which governments so gen- 
 erally observe in their transactions do not make it necessary to 
 clothe such a compromise solution in any particular form. Or- 
 dinarily an exchange of notes suffices. In certain cases, however, 
 when the matter is of sufficient importance, or when it is intended 
 to establish a rule to fix the rights of individuals within the state, 
 the agreement or compromise is formally incorporated in the pro- 
 visions of a treaty.
 
 THE CAROLINE ISLANDS 49 
 
 6. MEDIATION AND GOOD OFFICES 
 
 THE CAROLINE ISLANDS (1885) 
 
 IN 1885, His Holiness Leo XHI made, as mediator between 
 Germany and Spain in the controversy touching the Caroline and 
 Pelew Islands, the following "proposition": 
 
 "The discovery made by Spain in the sixteenth century of the 
 Caroline and Pelew Islands, which form part of the archipelago, 
 and a series of acts accomplished at different periods by the 
 Spanish Government in those same islands for the good of the 
 natives, have, in the conviction of that government and of that 
 nation, created a title to the sovereignty founded on the maxims 
 of international law invoked and followed at that period in the case 
 of analogous disputes. In fact, when one examines the history 
 of the above-mentioned acts, the authority of which is confirmed 
 by divers documents in the archives of the Propaganda, one can- 
 not fail to recognize the beneficial work of Spain towards those 
 islanders. It is also to be remarked that no other government has 
 ever exercised a similar action over them. This explains the con- 
 stant tradition, which must be taken into account, and the convic- 
 tion of the Spanish people relative to that sovereignty tradition 
 and conviction which two months ago were manifested with such 
 an ardor and animosity, capable for a moment of compromising 
 the internal peace and relations of two friendly governments. 
 
 "On the other hand, Germany and England in 1875 expressly 
 informed the Spanish Government that they would not recognize 
 the sovereignty of Spain over the said islands. On the contrary, 
 the Imperial Government thought it is the effective occupation of 
 a territory which creates the sovereignty, occupation which was 
 never carried into effect on the part of Spain in the Caroline Is- 
 lands. It was in conformity with this principle that it acted in the 
 Island of Yap, and in that, as on its part the Spanish Government 
 has also done, the mediator is pleased to recognize the complete 
 loyalty of the Imperial Government. 
 
 "Consequently, and in order that this divergence of views be- 
 tween the two governments be not an obstacle to an honorable
 
 SO MEDIATION AND GOOD OFFICES 
 
 arrangement, the mediator, after having well considered the whole 
 question, proposes that in the new convention to be stipulated 
 they shall observe the forms of the- protocol relative to the Sooloo 
 Archipelago signed at Madrid on the yth of March last between 
 the representatives of Great Britain, Germany, and Spain, and 
 that the following points be adopted: 
 
 "i. To confirm the sovereignty of Spain over the Caroline and 
 Pelew Islands. 
 
 "2. The Spanish Government, to render her sovereignty effec- 
 tive, engages to establish as quickly as possible in that archipelago 
 a regular administration with sufficient force to guarantee order 
 and the rights acquired. 
 
 "3. Spain offers to Germany full and entire liberty of commerce 
 and navigation, and of fishing at the same islands, as also the 
 right of establishing a naval station and a coal depot. 
 
 "4. The liberty of making plantations in those islands, and of 
 founding agricultural establishments on the same footing as 
 Spanish subjects, to be also guaranteed to Germany. 
 
 "L. CARD. JACOBINI. 
 
 "ROME, FROM THE VATICAN, October 22, 1885." 
 
 This proposition was accepted by the governments to which it 
 was made, and was embodied in the following protocol: 
 
 "The undersigned, His Excellency the Marquis de Molins, 
 Ambassador of His Catholic Majesty near the Holy See, and His 
 Excellency M. de Schloezer, Envoy Extraordinary and Minister 
 Plenipotentiary of His Majesty the King of Prussia near the Holy 
 See, being duly authorized to conclude the negotiations which 
 the Governments of Spain and Germany, under the accepted 
 mediation of His Holiness the Pope, have pursued in Madrid and 
 Berlin relatively to the rights which each of said governments may 
 have acquired to the possession of the Caroline and Pelew Islands, 
 considering the propositions made by His Holiness as a basis for a 
 mutual understanding, have agreed upon the following articles in 
 accordance with the propositions of the august mediator. . . ."* 
 
 (Moore: International Arbitrations, vol. v, pp. 5043-46.) 
 
 1 For the text of these six articles signed at Rome December, 1885, making ar- 
 rangements for the carrying into effect of the Pope's "proposition," see Moore's 
 International Arbitrations, vol. v, pp. 5044-46.
 
 THE CASE OF MARTIN KOSZTA 51 
 
 PROTECTION OF VENEZUELAN CITIZENS 
 IN FRANCE (1895) 
 
 MARCH 12, 1895, the United States instructed its ambassador 
 at Paris as follows: "At the request of the Venezuelan Govern- 
 ment you will, with the acquiescence of the Government of France, 
 upon the retirement of the Venezuelan Minister and upon ap- 
 plication by him, afford your friendly good offices for the protec- 
 tion of Venezuelan citizens in France; but you will not represent 
 Venezuela diplomatically, nor will consuls under you act in official 
 representation of Venezuela." The French Government "ac- 
 quiesced in the proposed arrangement, provided, however, that 
 the pending diplomatic questions would have to be settled be- 
 tween France and Venezuela themselves." This proviso was in 
 accord with the instruction that the embassy was not to represent 
 Venezuela diplomatically. 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 iv, p. 59I-) 
 
 THE CASE OF MARTIN KOSZTA 1 (1853) 
 
 ON the morning of July 2, 1853, Commander Ingraham, of the 
 U.S.S. St. Louis at Smyrna, demanded the release of Martin 
 Koszta detained against his will on board the Austrian brig-of- 
 war Huszar, threatening, if he did not receive a satisfactory an- 
 swer by four o'clock in the afternoon, that he should cause the 
 prisoner to be taken away by main force. The Austrian com- 
 mander was preparing to resist, and as the hour approached the 
 American commander ranged himself alongside the Huszar and 
 brought his guns to bear upon her. The conflict was prevented 
 through an agreement signed just in tune by the American Con- 
 sul and the Austrian Consul-General, in conformity with the 
 terms of which Koszta was placed in the custody of the French 
 Consul-General, who was not to deliver him up except upon a 
 requisition of both those officials. Such a requisition, addressed 
 to the French Consul-General, was signed by them October 14, 
 
 1 For the discussions concerning this famous case, see p. 298, where the case is 
 more fully treated.
 
 52 CONFERENCES 
 
 1853, under instructions received from the American and Aus- 
 trian Ministers at Constantinople; and on the same day Koszta 
 took passage on the bark Sultana for Boston. The Austrian 
 Minister at Constantinople had sought in the correspondence to 
 reserve the right of Austria to proceed against Koszta in case he 
 should again be found in the Turkish dominions; but the Ameri- 
 can Consul at Smyrna refused to sign a requisition containing 
 such a reservation, and the requisition on which Koszta was, with 
 Austria's concurrence, actually released, was unconditional. 
 
 (Modified extracts from Moore: Digest of International Law, 
 vol. m, pp. 820, 845.) 
 
 7. CONFERENCES 
 
 THE FIRST HAGUE PEACE CONFERENCE (1899) 
 
 ON August 24, 1898, Count Mouravieff, Russian Minister for 
 Foreign Affairs, at the regular weekly reception of the diplomatic 
 corps, communicated to the representatives of the powers a copy 
 of a rescript from Nicholas II calling attention to the evils of the 
 burdensome armaments to which the powers of the world were 
 subjected and stating that the Imperial Government believed 
 that "the present time" was "very favorable for seeking, through 
 the method of an international conference, the most effective 
 means of assuring to all nations the benefits of a real and lasting 
 peace, and of placing before all the question of ending the pro- 
 gressive development of existing armaments." "Impressed with 
 this sentiment," the rescript relates, His Majesty had been 
 pleased to command Count Mouravieff to "propose to all the 
 governments who have duly accredited representatives at the 
 Imperial Court, the holding of a conference to consider this grave 
 problem. ..." 
 
 The United States accepted this invitation without delay, but 
 certain of the European powers required first some further ex- 
 planations as to the nature of the proposed discussions, especially 
 in view of the general misunderstanding on the part of the Eu- 
 ropean press of the meaning of the Mouravieff circular. On Sep-
 
 THE FIRST HAGUE PEACE CONFERENCE 53 
 
 tember 4 an official explanation appeared in the Journal of St. 
 Petersburg explaining that the purpose of the conference was to do 
 away with the excesses of the "present system of armed peace" 
 by providing for a "full and searching investigation of this ques- 
 tion by an international exchange of views." The explanation 
 continues: "Certain other questions, difficult of solution, but of 
 not less moment, have already been settled in this century in a 
 manner which has done justice to the great interests of humanity 
 and civilization. The results which in this connection have been 
 obtained at international conferences, particularly at the Con- 
 gresses of Vienna and Paris, prove what the united endeavors of 
 governments can achieve when they proceed in harmony with 
 public opinion and the needs of civilization. . . ." 
 
 Before the end of October all the invited states had accepted 
 the Russian invitation. On January n, 1899, the Russian Gov- 
 ernment issued a second circular containing a program for the 
 work of the conference, which, in addition to the matter of limit- 
 ing the increase of military and naval armaments, proposed to 
 discuss the regulation of the use of certain instruments and 
 methods of warfare and the extension of the provisions of the 
 Geneva Convention (Red Cross) to naval warfare; the revision of 
 the "declaration in regard to the laws and customs of war, elabo- 
 rated in 1874 by the Brussels Conference;" and finally "the ac- 
 ceptance in principle of the usage of good offices, of mediation, 
 and of optional arbitration for such cases as lend themselves to it, 
 with a view of preventing armed conflicts between nations; an 
 understanding upon the subject of their mode of application, and 
 the establishment of a uniform code of practice in then* use." 
 
 The circular closes by stating that all questions concerning the 
 political relations of states and the order of things established by 
 treaties, "as, in general, all questions which do not enter directly 
 into the program adopted by the cabinets ought to be absolutely 
 excluded from the deliberations of the conference," and suggests 
 that the conference should not meet in a capital of one of the 
 great powers. In conformity with this program the Government 
 of the Netherlands, on April 7, 1899, invited) the powers to 
 meet at The Hague. Twenty-six states accepted the invitation 
 and the first meeting of the Conference was held on May 18,
 
 54 ARBITRATION, ARBITRAL PROCEDURE 
 
 1899. After several weeks filled with important discussions the 
 assembled delegates completed their labors by signing, on July 
 29, 1899, the Final Act of the Conference which contains, 
 among other conventions, a codification of the laws of war 
 based upon that discussed by the Conference of Brussels which 
 was itself, for the most part, a reproduction of the document 
 by Francis Lieber, issued on April 24, 1863, by the United 
 States as a general order to govern the conduct of its armies 
 in the field. But of greater importance still was that illustrious 
 CONVENTION FOR THE PEACEFUL SETTLEMENT OF INTER- 
 NATIONAL DIFFERENCES. This convention established the 
 Hague Permanent Court of Arbitration and provided a code 
 of procedure, based upon the experience of nations, well adap- 
 ted for the practical application and extension of international 
 arbitration. 
 
 (Foreign Relations of the United States, 1898, 1899; Frederick 
 W. Holls: The Peace Conference at The Hague [New York, 1900]; 
 Moore: Digest of International Law, vol. vn, pp. 78-94, 338.) 
 
 8. ARBITRATION, ARBITRAL PROCEDURE, AND THE 
 PRESENTATION OF CLAIMS 
 
 FROM the selected cases contained in the pages of this volume 
 the reader will notice the application of certain of the rules of 
 procedure governing the conduct of arbitration and the submis- 
 sion of claims for examination by international commissions. 
 The agreement on arbitration, or the compromis, is, to the extent 
 of its provisions, recognized as the governing rule, but in the ab- 
 sence of specific regulations to the contrary, certain rules of pro- 
 cedure which have been tested by experience are generally ap- 
 plied by the tribunal. Since the adoption of the remarkable 
 Hague Convention for the Peaceful Settlement of International 
 Differences it has been customary to include in the compromis 
 a clause referring to that convention the regulation of all ques- 
 tions of procedure not expressly covered by agreements between 
 the parties.
 
 THE JOHN H. WILLIAMS CLAIM 55 
 
 In the succeeding pages will be found instances illustrative of 
 the rules of arbitral procedure and the presentation of inter- 
 national claims. The instances which relate to the claims of in- 
 dividuals might be classed, for the most part, under the follow- 
 ing heads: 1 
 
 (a) The determination of what constitutes an interest of the 
 demanding government such as to justify, in international 
 law, its interposition in favor of the claimant. 
 
 (6) When properly presented, the tribunal will consider the 
 claim on its merits unless it be barred by: 
 
 (1) Agreement of the governments concerned. 
 
 (2) Previous examination so as to be excluded by the 
 rule of res judicata; i.e., exception of a previous ju- 
 dicial decision. 
 
 (3) By limitation and prescription, that is to say, the 
 failure on the part of the demanding Government 
 through a long period of years to employ a reasonable 
 activity in keeping the claim alive by urging it on 
 the defendant Government. As a consequence of 
 such omission the claim is looked upon as outlawed. 
 
 (4) Laches on the part of the claimant; that is to say, 
 negligence or failure to use a fair degree of diligence 
 in availing himself of all reasonable means of secur- 
 ing redress. 
 
 THE JOHN H. WILLIAMS CLAIM (1885) 
 
 MR. JOHN LITTLE, Chairman of the United States and Vene- 
 zuelan Commission under the Convention of December 5, 1885, 
 made the following award in the claim of John H. Williams v. 
 Venezuela: 
 
 "It appears from the papers transmitted us that in 1841 
 John H. Williams, a merchant in New York, sold and delivered 
 
 1 This extremely important question of international claims has been carefully 
 considered in an interesting volume by Edwin M. Borchard (The Diplomatic Pro- 
 tection of Citizens Abroad), who, in his former position of Assistant Solicitor of the 
 Department of State, was able to study at first hand the actual practice of our 
 government.
 
 56 ARBITRATION, ARBITRAL PROCEDURE > 
 
 in that city to an agent of the Venezuelan Government certain 
 mirrors with mountings for the Government House at Caracas 
 for $2,489.11, which were duly forwarded and received. 
 
 "On the 24th day of April, 1868, Mr. Williams presented the 
 account against that government before the former commission 
 for these articles as of the date of November 9, 1841, and verified 
 it under oath, claiming an award, including interest at 7 per cent, 
 of $7,019.11. The account had before been sent to the United 
 States legation at Caracas for collection, but how long before 
 does not appear. It had not, previous to 1868, been brought to 
 the attention of the Venezuelan authorities from any source, so 
 far as shown, and no reason or explanation is given for delay in 
 presentation. 
 
 "Venezuela claims the goods were paid for at the time of pur- 
 chase. On the issue of fact thus made she was (1868) and is placed 
 at a disadvantage by the long lapse of time as to the matter of 
 personal testimony, some, if not all, her witnesses to the transac- 
 tion having before then died. 
 
 "The question with some collateral ones is thus presented 
 whether time, figuratively stated, testifies in these adjudica- 
 tions. This case could perhaps be disposed of upon other grounds 
 and in comparatively few words; but as the same question with 
 like resulting ones is involved in other cases argued and sub- 
 mitted, we have concluded to treat it with some fullness and dis- 
 pose of the case from this standpoint, in view of the fact that the 
 general question appears to be a somewhat mooted one with each 
 government. 
 
 "It thus appears then the claim was not brought to the atten- 
 tion of the Venezuelan Government until twenty-six years after 
 its inception. Its ownership, nature, and amount were such as 
 would have made a delay in presentation to the debtor for a 
 single three months a matter of surprise. By lapse of time the 
 means of defense have been impaired, and there is total want of 
 excuse for the long delay by claimant. Under such circumstances 
 what does the law require at our hands? 
 
 "It is a well-settled principle in common-law jurisdictions, and 
 a recognized one in civil law countries, that obligations are to be 
 enforced according to the lex locifori which here is the treaty and
 
 THE JOHN H. WILLIAMS CLAIM 57 
 
 the public law. Beyond the requirement that its decisions must 
 be according to justice, the treaty furnishes no guide to the com- 
 mission respecting the operation of the lapse of time in extin- 
 guishing obligations. It is left to the direction of international 
 law on the subject. Does that recognize the doctrine of such ex- 
 tinguishment as between states in controversies like these? The 
 question has been argued with exceptional force and ability by 
 counsel for the respective governments. 
 
 "It will, perhaps, not be amiss to group extracts from the de- 
 liverances of some of the leading authorities upon the general 
 doctrine of prescription and pertinent principles. We present 
 them as they have been consulted, and without reference to any 
 special order. It may be well preliminarily to note that, while 
 individual interests are involved, these controversies, as else- 
 where seen, are between states hi some sense, and stand much as 
 if so originating; and, further, that while the texts will be seen 
 largely to relate to territorial acquisitions the principles announced 
 comprehend the acquisition and loss of personal property, and 
 pertain to other rights as well." 
 
 [The learned commissioner then proceeds to give several pages 
 of important and interesting citations from the authorities rela- 
 tive to limitation and prescription. As a result of his considera- 
 tion of the opinions of the jurists and the arguments of the par- 
 ties, he concludes as follows:] 
 
 "Upon these principles, too lengthily discussed, without await- 
 ing further proof called for in defense from Venezuela, we dis- 
 allow claim No. 36. It was withheld too long. The claimants' 
 verification of the old urgent account of 1841, twenty-six years 
 after its date, without cause for the delay, supposing it to be com- 
 petent testimony, is not sufficient under the circumstances of the 
 case to overcome the presumption of settlement." 
 
 (Moore: International Arbitrations, vol. iv, pp. 4181-99.)
 
 $8 MEASURE OF DAMAGES 
 
 9. MEASURE OF DAMAGES 
 
 RUSSIA v. TURKEY (1912) 
 
 Special Arbitral Tribunal at The Hague constituted by virtue of the Arbitration 
 Agreement signed at Constantinople between Russia and Turkey, July 22 /August 
 4, 1910. 
 
 THIS was a case involving a claim for interest on certain de- 
 ferred payments of an indemnity, which, as a result of the war of 
 1877, Turkey had undertaken to pay to victorious Russia. Article 
 5 of the treaty of peace signed at Constantinople January 27/ 
 February 8, 1879, stipulated as follows: 
 
 "The claims of Russian subjects and institutions in Turkey 
 for indemnity on account of damages suffered during the war 
 will be paid as soon as they are examined by the Russian Em- 
 bassy at Constantinople, and transmitted to the Sublime Porte. 
 The total of these claims shall in no case exceed 26,750,000 francs. 
 Claims may be presented to the Sublime Porte beginning one 
 year from the date on which ratifications are exchanged, and no 
 claims will be admitted which are presented after the expiration 
 of two years from that date." 
 
 For the purpose of examining the claims, a commission was ap- 
 pointed by the Russian Embassy, and the Turkish Government 
 was accorded the right to have a delegate take part in the ex- 
 amination. This commission fixed the total losses of Russian 
 subjects at 6,186,543 francs. Demand was duly made by the Rus- 
 sian Government for the payment of this sum, but it was not till 
 December, 1884, that Turkey paid the first installment on ac- 
 count, and then only after an intimation from Russia that she 
 would be obliged, in the event of further delay, to acknowledge 
 for the indemnitaires [the recipients of indemnity] "their right to 
 claim, in addition to the principal, interest proportional to the 
 delay in the settlement of their claims." 
 
 As time went on, Russia repeated her demands, and Turkey 
 her excuses, until, in 1891, Russia requested the Sublime Porte 
 "to have immediate orders issued by the proper person so that 
 the sum due may be paid without delay, as well as the legal in-
 
 RUSSIA v. TURKEY 59 
 
 terest in regard to which the embassy had the honor of notifying 
 the Sublime Porte by its note of February 15/27, 1887." 
 
 This demand for interest was made in due form, but in subse- 
 quent negotiations with the Porte, Russia accepted various pay- 
 ments without further stipulation for the payment of interest, 
 never challenging Turkish statements of balance due. In July, 
 1902, however, when there was still outstanding the sum of 1,539 
 Turkish pounds, the Russian Embassy forwarded a petition from 
 the indemnitaires claiming compound interest at 1 2 per cent from 
 January i, 1881, to March 15, 1887 (when the legal rate of in- 
 terest in Turkey was lowered), and 9 per cent after the latter date. 
 Thus from an original indemnity of something over six million 
 francs, the moratory interest claimed amounted, in 1902, to 
 twenty million francs. In the note accompanying this petition, 
 Russia assumed that Turkey would admit the justice of the claims 
 in principle, but might possibly object to the amount claimed. In 
 such case, a joint commission was suggested to determine the 
 sum due. Turkey made emphatic objection to any such claim, 
 but expressed its willingness to submit the matter to arbitration 
 at The Hague. In 1908, after four years' delay, Russia accepted 
 this suggestion and an agreement to arbitrate was signed at Con- 
 stantinople July 22/August 4, 1910. 
 
 Two questions were submitted for decision: 
 
 "i. Whether or not the Imperial Ottoman Government must 
 pay the Russian claimants interest-damages by reason of 
 the dates on which the said government made payment of 
 the indemnities determined hi pursuance of article 5 of the 
 Treaty of January 27/February 8, 1879, as well as of the 
 protocol of the same date? 
 
 "2. In case the first question is decided in the affirmative, what 
 would be the amount of these interest-damages? " 
 
 The tribunal was composed of five members: Herante Abro 
 Bey and Ahmed RSchid Bey, of Turkey, Baron von Taube and 
 M. Mandelstam, of Russia, and M. Lardy, the Swiss Minister 
 at Paris, who was chosen umpire. 
 
 The first session was held on February 15, 1911, when cases 
 and counter-cases were exchanged. Thereupon adjournment was
 
 60 MEASURE OF DAMAGES 
 
 made to October 28, 1912, at which date the tribunal reassembled 
 to hear the oral arguments. The award was rendered November 
 n, 1912. 
 
 The demand of Russia was based upon the principle that states 
 are responsible for the non-payment of their pecuniary obliga- 
 tions. This implies the obligation to pay interest-damages (dom- 
 ' mages-interets) "and especially interest on sums unduly with- 
 held." To admit otherwise would be contrary to international 
 law, for then the debtor state would pay at its convenience, while 
 the creditor state would be under temptation to resort to violence 
 to secure its rights. In such case nothing could be expected from 
 a "pretended international law incapable of compelling the prom- 
 isor to keep his word." Russia was careful to point out that the 
 claim was not for " conventional interest . . . arising from a par- 
 ticular stipulation;" the obligation that lay upon Turkey was to 
 pay moratory interest, and it arose "from the delay in the per- 
 formance of the act, that is to say, the partial non-fulfillment of 
 the stipulation of the treaty of peace; this obligation arose in- 
 deed, it is true, from the treaty of 1879, but it proceeded ex post 
 facto from a new and accidental cause, namely, the failure of the 
 Sublime Porte to carry out its contract as it had pledged itself to 
 do." Several arbitral awards supported this principle of respon- 
 sibility of states as applied to money debts, especially in the 
 obligation to pay moratory interest; among them, those of Mexico- 
 Venezuela in 1903, Colombia-Italy in 1904, and the United States- 
 Venezuela in 1885. The indemnity was not a donation on the part 
 of Turkey for the benefit of the Russian victims of the war, and 
 hence Turkey could not plead the exemption from moratory in- 
 terest accorded by some codes to gifts. Turkey had received 
 valuable consideration for the indemnity assumed, namely, cessa- 
 tion of hostilities, and the indemnitaires had always been con- 
 sidered, in the negotiations between the two powers, "as claim- 
 ants not as donors." Turkey should have met these obligations 
 promptly, for it was able to raise loans on favorable terms and 
 during the period under consideration had paid off 350,000,0x00 
 francs of its public debt. 
 
 The general principle of the responsibility of states for the non- 
 fulfillment of obligations was not denied by Turkey, but in inter-
 
 RUSSIA v. TURKEY 6l 
 
 national law, the Turkish argument maintained, there was no 
 such thing as moratory interest. To create such an obligation 
 there must be express stipulation. A state was not like other 
 debtors; "the position sui generis [exceptional] of the state as a 
 public power must be taken into account." Fiscus ex suis con- 
 tractibus usuras non dat. (The state treasury allows no interest on 
 its obligations.) If compelled to assume an obligation not stipu- 
 lated for, a state would be made a "debtor to a greater extent 
 than it would have desired." This might endanger the political 
 existence of the state, injure its vital interests, confuse its finances, 
 and prevent it from defending itself against domestic or foreign 
 peril. The Roman law theory of responsibilities was analyzed 
 and emphasis laid upon the distinction between compensatory 
 interest and moratory interest; the former being interest "which 
 is sometimes added to the money valuation of damages, to fix the 
 total amount of an indemnity," the latter, "interest legally al- 
 lowed in case of delay in the payment of money debts." Turkey 
 admitted the responsibility of states for the payment of com- 
 pensatory interest-damages, and on this basis explained the 
 awards cited by Russia in support of her case. 
 
 In anticipation of any responsibility attaching to it for the pay- 
 ment of interest, Turkey pleaded various exceptions: 
 
 1. Force majeure [necessity] that Turkey for many years had 
 been involved in financial and other difficulties which made 
 it impossible to meet its obligations promptly. 
 
 2. The indemnity was of the nature of a gift, and hence ex- 
 empt from the imposition of interest. 
 
 3. Three of the claimants had asked for interest before the com- 
 mission at the Russian Embassy and had had their request 
 refused. Hence, the principle of res judicata operated to set 
 aside the present claim. 
 
 4. Russia had failed to follow up its demand for interest, and 
 thus for eleven or twelve years "tacitly and indeed ex- 
 pressly" had renounced all benefit of suit. No reservations 
 of interest had been made in the receipts given by the Rus- 
 sian Embassy, and neither party had mentioned interest for 
 a period of ten years.
 
 62 MEASURE OF DAMAGES 
 
 In its award the tribunal first rejected a preliminary request 
 made by Turkey that the claim be set aside as properly the sub- 
 ject of private, not of governmental, action. The claim, the tri- 
 bunal pointed out, originated hi a war, "an international fact in 
 the first degree." The damages to be paid to Russian subjects 
 were included in the indemnities stipulated for in an international 
 treaty, and were to be paid to Russia as sole creditor, irrespective 
 of the manner of distribution among the individual claimants. In 
 1885, Turkey had, in consequence of protest by Russia, forborne 
 to impose upon receipts, given by the Russian Embassy for pay- 
 ments on account, the stamp- tax required by Ottoman law from 
 individuals, and had always accepted receipts from the embassy 
 as proof of discharge of its obligations. For these reasons, there- 
 fore, the tribunal considered that it was necessary to proceed to 
 an examination of the main question the claim for interest be- 
 cause of delay in payment. 
 
 Addressing itself to the theories of responsibility, the tribunal 
 brushed aside the elaborate distinctions which Turkey had sought 
 to make. All interest-damages were by way of reparation, and 
 hence compensatory. All culpability could be reduced, in the last 
 analysis, to a money debt. The tribunal was, therefore, of the 
 opinion "that the general principle of the responsibility of states 
 implies a special responsibility in the matter of delay in the 
 payment of a money debt, unless the existence of a contrary in- 
 ternational custom is proven." 
 
 But the precedents all supported the contention of Russia. To 
 prove its point, Turkey would have to cite instances where mora- 
 tory interest, as Turkey understood it, was refused on the ground 
 of its being moratory interest, and this, in the opinion of the 
 tribunal, had not been done. In the case of the Mosquitia award, 
 relied on by Turkey, the arbitrator had not refused moratory in- 
 terest, as such, but had held that the principal was in the nature 
 of a gift. 
 
 As for the argument advanced by Turkey that a state could 
 not become a debtor to a greater extent than it wished, the tribunal 
 held that responsibility of states could be denied only in its en- 
 tirety. It was not possible to declare a state freed from responsi- 
 bility in money debts without declaring it irresponsible for its
 
 RUSSIA v. TURKEY 63 
 
 other obligations. A state could be condemned to compensatory 
 damages for an act of violence without voluntary stipulation, 
 and this might have a serious effect upon its existence. Hence, it 
 was impossible to admit any exception to the responsibility of a 
 public power in the matter of money debts. 
 
 This responsibility, following the analogy of European private 
 legislation, implied the obligation "to pay at least interest for de- 
 layed payments as legal indemnity when it is a question of the 
 non-fulfillment of an obligation consisting in the payment of a 
 sum of money fixed by convention, clear and exigible." But it is 
 equitable in such case that there be a demand for interest 
 simple interest made in due form of law, and a debtor state is 
 entitled in the matter to have a privilege accorded to private 
 debtors. 
 
 Such demand the tribunal found to have been made by Russia 
 in the note of January 12, 1891. Hence, Turkey was to be held 
 responsible for interest on deferred payments from that date, un- 
 less the exceptions pleaded were well taken. 
 
 Of the exceptions, three were held by the tribunal to be inad- 
 missible: force majeure, though it had been present in Turkish 
 affairs, was not of sufficient magnitude to prevent Turkey from 
 paying the comparatively small sum of six million francs; the in- 
 demnity was not a gift, but had been stipulated for value received; 
 res judicata could not be established because the claim for interest 
 arose, "a posteriori [afterwards], by reason of the dates on which 
 the indemnities were paid." There remained the fourth excep- 
 tion that Russia had lost all benefit arising from her demand 
 of January 12, 1891, because, in subsequent negotiations, she 
 had omitted to make express reservation for payment of in- 
 terest. This was considered by the tribunal as well taken. "In 
 private law," according to the award, "the effects of demand 
 for payment are eliminated when the creditor, after having 
 made legal demand upon the debtor, grants one or more exten- 
 sions for the payments of the principal obligation, without re- 
 serving the rights acquired by the legal demand." As, in this 
 capacity of creditor, there is an analogy between a state and an 
 individual, Russia was considered by the tribunal to have for- 
 feited her right to demand interest and hence the decision:
 
 64 REVISION OF ARBITRAL AWARDS 
 
 "That in principle the Imperial Ottoman Government was 
 liable to moratory indemnities to the Imperial Russian Govern- 
 ment from December 31, iSgo/January 12, 1891, the date of the 
 receipt of the explicit and regular demand for payment; 
 
 "But that, in fact, the benefit to the Imperial Russian Govern- 
 ment of this legal demand having ceased as a result of the subse- 
 quent relinquishment by its embassy at Constantinople, the 
 Imperial Ottoman Government is not held liable to pay interest- 
 damages by reason of the dates on which the payment of the 
 indemnities was made." 
 
 (American Journal of International Law, vol. vn, pp. 178-201; 
 G. G. Wilson, The Hague Arbitration Cases; Revue de Droit Inter- 
 national [1913], vol. 45, pp. 351-71.) 
 
 10. REVISION OF ARBITRAL AWARDS 
 (a) Res judicata 
 
 THE PIOUS FUND OF THE CALIFORNIAS 
 
 Permanent Court of Arbitration at The Hague, 1902 
 
 THIS case has the distinction of having been the first to come 
 before the Permanent Court of Arbitration under the Hague 
 Convention of 1899. The matter for adjudication was the ulti- 
 mate disposal of the income from a religious trust fund controlled 
 by Mexico, but claimed in part by the United States for the benefit 
 of the Archbishop of San Francisco and the Bishop of Monterey, 
 prelates of the Roman Catholic Church. The early history of the 
 fund was as follows: 
 
 Toward the latter part of the seventeenth century, the Jesuits 
 undertook the conversion of the Indians of the Californias, and 
 to that end were assisted by the liberal gifts of private donors, so 
 that in the course of a century a large amount of money became 
 available for this religious enterprise, under the name of the Pious 
 Fund of the Californias. After the suppression of the Jesuit Order, 
 the control of this fund vested in the King of Spain, but on the 
 secession of Mexico from the Spanish dominion, he was succeeded
 
 THE PIOUS FUND OF THE CALIFORNIAS 65 
 
 In this capacity of trustee by the Mexican Government, which in 
 1836 created the bishopric of the Calif ornias and assigned to its 
 bishop the control of the fund. In 1842, however, this arrange- 
 ment was rescinded and governmental control resumed "for the 
 purpose of carrying out the intention of the donors in the civiliza- 
 tion and conversion of the savages." The properties were incor- 
 porated into the national treasury and sold, but an indebtedness 
 of six per cent per annum was acknowledged as a lien on the 
 treasury, which sum was to be duly applied for the original re- 
 ligious purposes. But when Upper California passed to the United 
 States in 1848, no further payments were made on its account. 
 Accordingly, when under the Treaty of 1868 a mixed commission 
 was instituted by the United States and Mexico to pass upon all 
 outstanding claims that the citizens of either state had against 
 the government of the other, the Archbishop of San Francisco 
 and the Bishop of Monterey presented a claim for a share of the 
 income from the Pious Fund that share, namely, which prop- 
 erly should be applied to religious purposes in Upper California. 
 The two commissioners being unable to agree, the claim was re- 
 ferred to the umpire, Sir Edward Thornton, who in 1875 decided 
 that Mexico should pay to the claimants $904,070.99 in Mexican 
 gold, being six per cent upon one half of the capitalized value of 
 the Pious Fund for twenty-one years from 1848 to 1869. 
 
 Due payment of this award was made by Mexico who main- 
 tained that thereby the claim was extinguished in its entirety. 
 The United States, on the other hand, contended that an install- 
 ment of interest was due annually from 1869 and made repeated 
 attempts to get a further settlement. At last by a protocol be- 
 tween the two governments in 1902, it was agreed to refer the 
 claim to a special tribunal of four arbitrators and an umpire, 
 selected in accordance with the provisions of the Hague Conven- 
 tion. The tribunal was to determine: 
 
 "i. If said claim, as a consequence of the former decision, is 
 within the governing principle of res judicata; and 
 
 " 2. If not, whether the same be just; 
 
 "And to render such judgment and award as may be meet and 
 proper under all the circumstances of the case." 
 
 As members of the tribunal, the United States nominated
 
 66 REVISION OF ARBITRAL AWARDS 
 
 Professor Martens, of Russia, and Sir Edward Fry, of England; 
 Mexico nominated Mr. T. M. C. Asser and Jonkheer A. F. de 
 Savorin Lohman, of Holland. These selected, as fifth member, 
 Professor Matzen, of Copenhagen, who ex officio presided. All 
 five arbitrators were members of the Permanent Court of Ar- 
 bitration. 
 
 Two lines of argument were developed in the conduct of the 
 case: (i) as to the merits of the subject-matter in dispute; (2) as 
 to the doctrine of res judicata involved. It is the latter, especially 
 as applied to the awards of arbitral commissions, that constitutes 
 the chief interest for international law. 
 
 1. As to the merits of the case, Mexico urged lack of title of the 
 Calif ornian bishops as trustees of the fund; absence of legal claim 
 on the part of the Roman Catholic Church in Upper California 
 to any interest in it; and further, the fulfillment of the object of 
 the fund, as far as Upper California was concerned, viz., the con- 
 version of the Indians. In reply, the United States cited Mexi- 
 can legislation as recognizing the bishops as beneficiaries of the 
 fund, and contended that, though Mexico might " sequester the 
 property of its own religious corporations, no right could be ex- 
 ercised as against such corporations or bodies, citizens of the 
 United States." The Roman Catholic Church, too, even if no 
 perfect right existed in its favor, should be considered the equit- 
 able recipient of that part of the fund applicable to Upper Califor- 
 nia. As to the conversion of the Indians, that was but one of the 
 purposes of the foundation; the primary purpose was to support 
 the Roman Catholic Church and its missions, and in strict equity, 
 so far from the fund being applied on the basis of Indian popu- 
 lation in Upper and Lower California, it should be apportioned 
 in proportion to the total population of the two countries. 
 
 2. The main controversy was over the doctrine of res judicata 
 as applicable to the findings of arbitral commissions. Was the 
 award of Sir Edward Thornton as to "the matters directly and 
 impliedly in issue before the mixed commission" absolutely con- 
 clusive, or was it not? The United States maintained that it had 
 the force of res judicata in all its parts, reasons (motifs) as well as 
 conclusions, and that consequently Mexico was under obliga- 
 tion to pay to the claimants an annual installment of interest upon
 
 THE PIOUS FUND OF THE CALIFORNIAS 67 
 
 one-half the fund in perpetuity; whereas Mexico maintained that 
 it had bound her to pay only certain specified installments of in- 
 terest from 1848 to 1869 and nothing else. 
 
 Mexico argued that a judgment had the force of res judicata 
 only in its conclusions; "that is, to that part which pronounces 
 acquittal or condemnation, quod jussit vetuitve" The reasons 
 (motifs) for the decision did not have similar force. "The greater 
 number of authorities [quoting Savigny] deny absolutely to the 
 reasons [motifs] the force of res judicata, not excepting the case where 
 the reasons are a part of the judgment" If this was true of the 
 judgments of the permanent judiciary of a state, still more did 
 it hold in the case of an award "rendered by arbitrators who have 
 no real jurisdiction nor other powers than those granted them in 
 the arbitration agreement." On this latter point Mexico main- 
 tained that the Commission of 1868 had gone beyond its powers 
 in considering claims which had been extinguished by the treaty 
 of Guadalupe Hidalgo in 1848. It had no authority to pass upon 
 its own jurisdiction, and hence the decision of the umpire had 
 been rendered on a matter not contemplated for submission. Even 
 if Mexico, by paying the award of 1876, had to that extent ac- 
 quiesced in the decision, the objections to the reasons given still 
 remained valid. All that Mexico had to do was to pay twenty- 
 one installments of interest in conformity with an award; no 
 judgment had been rendered concerning an existing capital or 
 further installments due, nor was Mexico bound to admit the 
 validity of any claims to such. 
 
 The United States, on the contrary, argued that there were two 
 classes of reasons (motifs), the subjective depending upon the 
 "personal equation" of the judge and the objective, or neces- 
 sary bases for the decision; and that "if the matters necessary 
 to be found to make up a judgment had been debated between 
 the parties, the judgment of necessity in these respects had the 
 force of res judicata." This had been done in the case of Sir Ed- 
 ward Thornton's award, for before any decision could have been 
 arrived at, "it was necessary that the court should have found 
 the existence of a fund, the possession of it by Mexico, her obliga- 
 tion to pay interest thereon to the Catholic bishops, the yearly 
 amount due by her on account of such obligation, and the number
 
 68 REVISION OF ARBITRAL AWARDS 
 
 of years for which she was in default" all of which, therefore, 
 were elements contributing to the decision and hence permanent 
 in their binding effect. As to the Treaty of 1848, it was not in- 
 tended to cancel claims against Mexico owned by those who, 
 previous to the treaty, had been Mexican, but by the treaty had 
 become American, citizens, as was the case with the Californian 
 bishops. When the Commission of 1868 was instituted, the power 
 to determine jurisdiction was not reserved for any appellate 
 authority; such power must inhere somewhere; hence it must 
 have inhered in the commission itself. Such a power was strictly 
 in accordance with precedent. "Instances might, in fact, be multi- 
 plied indefinitely of cases where arbitral commissions have ac- 
 cepted or rejected jurisdiction, but we fail to find a precedent for 
 the denial of the authority of arbitrators to pass upon the inter- 
 pretation of the instrument creating them." Both in the common 
 and the civil law, the doctrine of res judicaia applied to arbitral 
 decisions and it was similarly applied to the findings of interna- 
 tional tribunals. Such decisions may be set aside because of 
 fraud, excess of power or essential error, but such error must in- 
 volve a subversion of "the natural law of nations," not merely a 
 mistake in judgment. No such error, the United States contended, 
 was apparent hi the award of 1876, and "although Mexico sought 
 to minimize its future effect, she did not nevertheless deny its 
 absolute sanctity." 
 
 The tribunal, in its award, found substantially for the United 
 States, except on the minor point of mode of payment, the tribunal 
 holding that the sentence of Sir Edward Thornton, in so far as it 
 enjoined payment in gold, applied only to the twenty-one an- 
 nuities from 1848 to 1869, "because question of the mode of pay- 
 ment does not relate to the basis of the right in litigation, but 
 only to the execution of the sentence." 
 
 The decisory part of the award was as follows: 
 
 "i. The said claim of the United States of America for the 
 benefit of the Archbishop of San Francisco and of the Bishop of 
 Monterey is governed by the principle of res judicata by virtue 
 of the arbitral sentence of Sir Edward Thornton, of November n, 
 1875; amended by him October 24, 1876. 
 
 "2. Conformably to that arbitral sentence, the Government
 
 THE CLAIMS AGAINST VENEZUELA 69 
 
 of the Republic of the United Mexican States must pay to the 
 Government of the United States of America the sum of $1,420,- 
 682.67 Mexican, in money having legal currency in Mexico, 
 within the period fixed by article 10 of the protocol of Washington 
 of May 22, 1902. 
 
 "This sum of $1,420,682.67 will totally extinguish the annui- 
 ties accrued and not paid by the Government of the Mexican Re- 
 public that is to say, the annuity of $43,050.99 Mexican from 
 February 2, 1869 to February 2, 1902. 
 
 "3. The Government of the Republic of the United Mexican 
 States shall pay to the Government of the United States of 
 America on February 2, 1903, and each following year on the 
 same date of February 2, perpetually, the annuity of $43,050.99 
 Mexican, hi money having legal currency in Mexico." 
 
 (Pious Fund of the Calif ornias, Senate Document, No. 28, 57th 
 Cong., 2d Sess.; G. G. Wilson, The Hague Arbitration Cases.) 
 
 (b) Corruption of the tribunal 
 
 THE CLAIMS AGAINST VENEZUELA (1866-90) 
 
 APTER a protracted and difficult negotiation, Venezuela and 
 the United States signed, April 25, 1866, a convention referring 
 the examination of the claims against Venezuela to a mixed com- 
 mission for settlement. After the commission had been organ- 
 ized and had terminated its labors August 3, 1868, having clis- 
 posed of all the claims submitted to it, the Venezuelan Govern- 
 ment, February 12, 1869, presented to the Department of State 
 at Washington a protest against the awards of the commission, 
 alleging irregularity in the appointment of the umpire, and fraud 
 in the proceedings and findings. This protest was not favorably 
 received, and it was proposed in Congress to direct the Presi- 
 dent to demand of Venezuela the immediate payment of the 
 awards, and, in case of her neglect or refusal to comply, to use 
 such force as might in his judgment be necessary to secure the 
 faithful performance of the terms of the convention.
 
 70 REVISION OF ARBITRAL AWARDS 
 
 Congress did in 1873 P ass a kill recognizing the "final and con- 
 clusive" character of the claims adjudicated. Venezuela seems to 
 have acknowledged her obligation, but domestic disturbances in- 
 terfered with the regularity of her payments. In the meantime 
 the attacks upon the commission continued. 
 
 In the first session of the Forty-fourth Congress a full investiga- 
 tion of the charges against the commission was at length held. It 
 resulted in an elaborate report by Mr. Springer, from the Com- 
 mittee on Foreign Affairs, and in the adoption by the House, unani- 
 mously, of a resolution directing the Secretary of State to suspend 
 the distribution of the sums paid by Venezuela on account of the 
 awards. Subsequently, additional testimony was taken and printed 
 by order of the House; important correspondence was communi- 
 cated by the President to the same body, and a report was made 
 by Mr. Hamilton, from the Committee on Foreign Affairs, rec- 
 ommending the creation of a new commission. 
 
 The charges against the commission, as developed in the in- 
 vestigation, were to the effect that before the meeting of the board 
 a conspiracy was entered into by Talmage, the United States 
 Commissioner, Thomas N. Stilwell, the United States Minister at 
 Caracas, and William P. Murray, StilwelTs brother-in-law and 
 the moving spirit in the matter, to defraud claimants by exact- 
 ing of them a large proportion of their awards in the form of at- 
 torneys' fees; that, in pursuance of this agreement, Murray ob- 
 tained contracts with claimants to represent them before the 
 commission in consideration of from 40 to 60 per cent of whatever 
 might be awarded; that the installation of Machado as umpire 
 was brought about in an irregular manner; that on the claims 
 which Murray represented awards were made to the amount of 
 more than $850,000, while many meritorious claims were rejected; 
 that the certificates of award were made in small amounts and 
 payable to bearer, so as to pass without indorsement; that Tal- 
 mage, as the joint attorney of Murray and the claimants, withdrew 
 the certificates from the commission; and that after the claimants 
 had received the certificates representing their share of an award, 
 the rest, representing the attorney's share, was divided between 
 Murray, Stilwell, Talmage, and Machado. Whether Villafane 
 [the Venezuelan Commissioner] was in any measure a conscious
 
 THE CLAIMS AGAINST VENEZUELA 71 
 
 party to the transaction was considered doubtful. The charge of 
 irregularity in regard to the selection of the umpire was that 
 Baron Stoeckl, the Russian Minister at Washington, having ap- 
 pointed as umpire "Mr. Machado," notice to that effect was sent 
 by the Department of State to the legation at Caracas; that Stil- 
 well, as United States Minister, though there was a Juan N. 
 Machado, Sr., and a Juan N. Machado, Jr., notified the latter 
 that he had been appointed; that the suggestion of the name of 
 Machado originally proceeded from the conspirators, and that the 
 installation of Juan N. Machado, Jr., as umpire, was the result of 
 their contrivance. 
 
 In spite of the findings of the committees of Congress in regard 
 to the proceedings of the commission, no definite step toward a 
 revision of the awards was taken till 1883. 
 
 In consequence of a special message sent to Congress by the 
 President, May, 1882, the Committee on Foreign Affairs made a 
 report rejecting the proposal of the Secretary of State to refer 
 certain of the claims to the Court of Claims for investigation and 
 declaring that there had been "no valid commission as called 
 for by the treaty" and that "the alleged commission was a con- 
 spiracy; its proceedings were tainted with fraud;" and that jus- 
 tice to Venezuela demanded that "these proceedings should be 
 set aside speedily and without circuitous action." 
 
 In accordance with these views the committee reported a joint 
 resolution which, after adoption by both Houses unanimously, 
 was approved by the President March 3, 1883. 
 
 This resolution was simple, direct, and logical. After starting 
 out with the declaration that the evidence tended to show that 
 the charges against the commission, "impeaching the validity 
 and integrity of its proceedings," were "not without foundation," 
 the resolution proposed : 
 
 "Therefore - 
 
 "Resolved by the Senate and House of Representatives of the 
 United States of America in Congress assembled, That the Presi- 
 dent be, and he hereby is, requested to open diplomatic corre- 
 spondence with the Government of the United States of Vene- 
 zuela, with a view to the revival of the general stipulations of the 
 treaty of April 25, 1866, with said government, and the appoint-
 
 72 REVISION OF ARBITRAL AWARDS 
 
 ment thereunder of a new commission to sit in the city of Wash- 
 ington, which commission shall be authorized to consider all the 
 evidence presented before the former commission in respect to 
 claims brought before it, together with such other and further 
 evidence as the claimants may offer; and from the awards that 
 may be made to claimants, any moneys heretofore paid by the 
 Department of State upon certificates issued to them, respectively, 
 upon awards made by the former commission, shall be deducted, 
 and such certificates deemed cancelled; and the moneys now in 
 the Department of State received from the Government of Vene- 
 zuela on account of said awards, and all moneys that may here- 
 after be paid under said treaty, shall be distributed pro rata in 
 payment of such awards as may be made by the commission to 
 be appointed in accordance with this resolution." 
 
 When Venezuela a few days later notified the United States of 
 her intention of suspending payments on the awards under the 
 Convention of 1866, pending the negotiation of a new arrange- 
 ment, Mr. Frelinghuysen took the view that the joint resolution 
 was a purely domestic act of the United States and that Vene- 
 zuela should continue her payments until the negotiation of a new 
 convention should be concluded. When the negotiations were re- 
 sumed Mr. Frelinghuysen, in a note of June u, 1884, reafiirming 
 his contention as to the continued existence of the Conven- 
 tion of 1866, submitted a proposed draft of a new convention. 
 The Venezuelan Government continued to maintain that in view 
 of the action taken by Congress it could not "recognize any 
 validity" to the "certificates made payable to bearer, issued by 
 the prevaricating commission." 
 
 Mr. Frelinghuysen presented his views to the President in a 
 report of January 27, 1885, in which he proposed that certain of 
 the claims should be referred to the Court of Claims for investiga- 
 tion. This report the President communicated to the Senate that 
 same day. The whole question was carefully considered by Mr. 
 Rice in a report of February 18, 1885, from the Committee on 
 Foreign Affairs presented to the House of Representatives, in 
 which he said: 
 
 "This resolution, although not officially made known to Ven- 
 ezuela, was known to her as one of the public laws of the United
 
 THE CLAIMS AGAINST VENEZUELA 73 
 
 States; and it was not strange that she should conclude that the 
 United States would no longer exact payment of installments 
 upon those awards which the legislative and executive branches 
 of her government had admitted based in fraud. . . . 
 
 "As to referring these awards, or any of them, to the Court of 
 Claims, as recommended by the Secretary, your committee adopts 
 the language and conclusions of the committee of the Forty- 
 seventh Congress in reference to the same recommendation, then 
 made by the Secretary, to the effect that Venezuela is entitled to 
 an honest commission, as provided by the treaty, upon which she 
 may have her representation, and should not be forced into a 
 purely United States tribunal for action upon claims which she 
 has a right to have passed upon by such a commission." 
 
 In conclusion, the committee reported a joint resolution ex- 
 pressed in substantially the same terms as that previously adopted. 
 
 Alter the change of administration Mr. Bayard, Secretary of 
 State, signed on December 5, 1885, a convention for the creation 
 of a new commission. The ratifications were not exchanged within 
 the twelve months allowed because the Venezuelan Government 
 did not approve the convention, though the objections were not 
 officially presented until November 12, 1887. 
 
 At length a new convention was signed March 15, 1888, em- 
 bodying the agreement in regard to the point of difference and 
 extending the date of ratification of the Convention of 1885. 
 
 By this stipulation a revision of the proceedings of the old 
 commission, in the broad sense and spirit of the resolution of 
 Congress of March 3, 1883, was at length provided for. It turned 
 out, however, that the time allowed for the exchange of the rati- 
 fications of the Conventions of December 5, 1885, and March 15, 
 1888, was insufficient; and on October 5, 1888, still another con- 
 vention was signed, by which it was provided that the ratifica- 
 tions of all three conventions should be exchanged within ten 
 months from August 15, 1888. The exchange was effected at 
 Washington, June 3, 1889. 
 
 The peculiar circumstances under which the commission was 
 created gave rise to various questions as to its duties and 
 powers. These questions, which were general in their nature, 
 and affected the board's relation to the cases decided by the old
 
 74 REVISION OF ARBITRAL AWARDS 
 
 commission, became the subject of argument and of a formal 
 opinion. 
 
 In regard to the question as to whether the commission should 
 "review" the former adjudications or hear and pass upon the 
 claims as if presented for the first tune, Mr. Liddle, chairman, 
 reviewed the authorities and delivered the following opinion of 
 the commission: 
 
 "All things considered, we are led to the conclusion that the 
 original claims submitted stand before us with respect to the 
 hearing and determination thereof substantially as they stood 
 before the former commission, with the difference indicated in 
 article 5, as to additional evidence; that we are engaged in a 
 'rehearing' (art. 8) of said claims, and not in a 'review' of the 
 former adjudications or awards pertaining thereto; and that in 
 our considerations we can not 'concede' to such adjudications or 
 awards 'force and legal effect.' 
 
 "There remain, as before suggested, in each case the fact of 
 the former adjustment; also the opinions pertaining to it. What- 
 ever light these may give will, of course, be availed of. The action 
 of the former commission, like any authority consulted, will have 
 such consideration as it is thought entitled to." 
 
 The commission adjourned September 2, 1890. The results of 
 its labors were very completely analyzed and summarized in a 
 report of the secretary which bears date September 10, 1890. By 
 a comparison of the awards of the two commissions, it appears 
 that of the twenty-five claims disallowed or dismissed by the old 
 commission, all but three were disallowed or dismissed by the 
 new; but in these three cases awards were made, respectively, of 
 $3,206.10, $20,000, and $392,489.06, amounting in all to the sum 
 of $415,695.16. On the other hand, of the twenty-four awards 
 made in favor of claimants by the old commission, fifteen were 
 wholly annulled by the new, while the remaining nine were ma- 
 terially modified. 
 
 (Extracted and condensed from Moore: International Arbitra- 
 tions, vol. n, pp. 1659-92.)
 
 THE WEIL AND LA ABRA CASES 75 
 
 (c) Fraudulent claim 
 
 THE WEIL AND LA ABRA CASES (1868-1902) 
 
 ON July 4, 1868, the United States and Mexico concluded a 
 convention for the adjustment of all claims of the citizens of 
 either country against the government of the other which had 
 been presented to either government for its interposition with the 
 other since February 2, 1848 (date of the peace treaty of Guada- 
 lupe Hidalgo), and which remained unsettled, as well as any other 
 claims which might be presented within a specified time. 
 
 Several hundred claims were decided and awards amounting 
 to more than four million dollars made. 
 
 Of the whole sum awarded against Mexico more than one- 
 fourth was allowed on two claims, those of Benjamin Weil, No. 
 447, American docket, and La Abra Silver Mining Company, 
 No. 489. The amount awarded in favor of Weil was $487,810.68 
 in Mexican gold, or according to the protocol of January 31, 1878, 
 $479,975.95 in gold com of the United States; the amount awarded 
 in favor of La Abra Company was $683,041.32 in Mexican gold, 
 or $672,070.99 in gold coin of the United States. The two awards 
 aggregated in the gold coin of the United States the sum of 
 $1,152,046.94. 
 
 The claim of Weil, who was a naturalized citizen of the United 
 States, of French nativity, was for damages for the seizure of 
 cotton. In his memorial he alleged that in September, 1864, he 
 imported into Mexico a large train of carts containing about 
 1,914 bales of cotton, and that the cotton was seized on the 2oth 
 of that month between Laredo and Piedras Negras, and appro- 
 priated by General Cortina, of the Mexican Liberal forces. 1 For 
 this alleged wrong he claimed $334,950 in gold, with interest from 
 September 30, 1864, at the rate of 12 per cent. The evidence ac- 
 companying his memorial consisted of an affidavit made by him- 
 
 1 Perhaps the most remarkable feature of this Weil claim is that the Government 
 of the United States should have been willing to allow for presentation a claim for 
 alleged losses incurred in a transaction in violation of the prohibition against the 
 export of cotton from the Confederate States. Of course, as far as concerned the 
 application of the rules of international law, Mexico would have been equally re- 
 sponsible.
 
 76 REVISION OF ARBITRAL AWARDS 
 
 self in New Orleans in September, 1869, and of affidavits made by 
 certain other persons from time to time from 1869 to 1872. 
 
 Upon the disagreement of the commissioners of Mexico and 
 the United States, the umpire, Sir Edward Thornton, made awards 
 in favor of these two claims. 
 
 After the commission had concluded its labors and published 
 its awards, the Mexican Minister in a note of December 4, 1876, 
 transmitted to Secretary Fish the following reservation of the 
 Mexican agent in regard to the above-mentioned awards: "The 
 Mexican Government, in fulfillment of article 5 of the conven- 
 tion of July 4, 1868, considers the result of the proceedings of 
 this commission as a full, perfect, and final settlement of all 
 claims referred to in said convention, reserving, nevertheless, the 
 right to show at some future time, and before the proper author- 
 ity of the United States, that the claims of Benjamin Weil (No. 
 447) and La Abra Silver Mining Company (No. 489) both on the 
 American docket, are fraudulent and based on affidavits of per- 
 jured witnesses; this with a view of appealing to the sentiments 
 of justice and equity of the United States Government, in order 
 that the awards made in favor of the claimants should be set 
 aside." 
 
 Mr. Fish in reply "declined" to "entertain the consideration 
 of any question which may contemplate any violation of or dje- 
 parture from the provisions of the convention as to the final and 
 binding nature of the awards, or to pass upon, or by silence to be 
 considered as acquiescing in, any attempt to determine the effect 
 of any particular award." 
 
 To this the Mexican Minister, Mr. Mariscal, made rejoinder 
 that the agent representing the Mexican Government had only 
 expressed "the possibility" that the Mexican Government 
 might "at some future time have recourse to some proper au- 
 thority of the United States to prove that the two claims he men- 
 tioned were based on perjury, with a view that the sentiments 
 of equity of the Government of the United States, once convinced 
 that frauds" had "actually been committed," would "prevent 
 the definite triumph of these frauds." 
 
 Across the remaining years of the century these claims drew 
 their slimy trails.
 
 THE WEIL AND LA ABRA CASES 77 
 
 In fulfillment of the Act of Congress of June 18, 1878, which 
 requested the President to investigate the charges of fraud in the 
 cases of Benjamin Weil and La Abra Silver Mining Company, 
 Secretary of State Evarts advised that "the honor of the United 
 States does require that these two cases should be further in- 
 vestigated by the United States to ascertain whether this gov- 
 ernment has been made the means of enforcing against a friendly 
 power claims of our citizens based upon or exaggerated by fraud." 
 Laboring under misapprehension in regard to the La Abra case, 
 Mr. Evarts expressed the opinion that "as the main imputation 
 in the case of La Abra Silver Mining Company is of fraudulent 
 exaggeration of the claim in its measure of damages, it m&y con- 
 sist with a proper reservation of further investigation in this case 
 to make the distribution of the installments in hand." 
 
 A bill referring the matter to the Court of Claims for investiga- 
 tion having failed of passage, the Mexican Minister informed 
 Mr. Evarts July 30, 1880, that the lawyers employed by Mexico 
 in Washington had thought proper to take certain measures 
 before the courts of the District of Columbia against the pro- 
 moters of the Weil and La Abra claims. But Mr. Evarts replied 
 that the proposed step was regarded as a distinct departure from 
 the attitude previously taken by Mexico, and as a contradiction 
 of the purpose of the fifth article of the Convention of 1868, 
 which absolutely forbade any attempt on the part of Mexico to 
 obstruct the execution of the awards. The Mexican Government 
 proceeded no further in the matter. 
 
 After these distributions on the La Abra claim of $240,683.06 
 and on the Weil claim of $171,889.64 were made, when Mr. 
 Arthur became President, all further distributions on the awards 
 in question were suspended, and negotiations were opened with 
 Mexico for an international rehearing. 1 To this end a convention 
 was signed at Washington July 13, 1882, but it failed of ratifica- 
 tion after pending before the Senate nearly four years. 
 
 While the convention was pending in the Senate, John J. Key, 
 
 1 On December g, 1881, Mr. Elaine, being still Secretary of State, in a note to 
 Mr. Zamacona, enclosing a report of a secret agent of the Treasury bearing on the 
 Weil claim, observed: "Permit me to say that this government can have no less 
 moral interest than that of Mexico in probing any allegation of fraud whereby the 
 good faith of both in a common transaction may have been imposed upon."
 
 78 REVISION OF ARBITRAL AWARDS 
 
 one of Weil's original attorneys, applied, as assignee of a part of 
 the award, to the Supreme Court of the District of Columbia for 
 a writ of mandamus to compel Mr. Frelinghuysen, as Secretary 
 of State, to distribute the installment then in his hands. In due 
 course the case came before the Supreme Court of the United 
 States, by which the proceeding was, on January 7, 1884, dis- 
 missed. 
 
 On June n, 1886, Mr. Morgan, from the Committee on Foreign 
 Relations, submitted to the Senate a report, accompanied with a 
 bill to provide for a judicial investigation of the charges of fraud. 
 The report discussed very fully the questions of law relating to 
 the reexamination of the claims, and expressed the opinion that 
 the claim of Weil had "no actual foundation in fact; that it was 
 originated in fraud and was established by false swearing." 
 
 The question of providing for a judicial investigation of the 
 awards continued to be the subject of discussion hi Congress, 
 and various reports were submitted. On December 21, 1887, the 
 Senate requested the production of any correspondence with 
 the Mexican Government in relation to the claims since January, 
 1886, together with a statement of what sums had been paid on 
 them by Mexico and what sums had been distributed. In re- 
 sponse to this resolution the President communicated to the 
 Senate March 5, 1888, a report of Mr. Bayard, as Secretary of 
 State, to which were annexed various documents. Mr. Bayard 
 said: "The sole question now presented for the decision of this 
 government is whether the United States will enforce an award 
 upon which the gravest doubts have been cast by its own officers 
 in opinions rendered under express legislative direction, until 
 some competent investigation shall have shown such doubts to 
 be unfounded, or until that branch of the government competent 
 to provide for such investigation shall have decided that there is 
 no ground therefor." 
 
 Mr. Bayard also argued, on the strength of the cases of Atocha 
 and Gardiner, the two awards under the convention with China 
 of 1858, the case of the Caroline, and the opinion of the Supreme 
 Court in the case of Frelinghuysen z. Key, that " the duty of the 
 government to refuse to enforce an inequitable and unconscion- 
 able award," had been "repeatedly maintained in the most au-
 
 THE WEIL AND LA ABRA CASES 79 
 
 thoritative manner." He also disclosed the fact that he had 
 sought to obtain a judicial investigation of the Weil and La Abra 
 awards without awaiting further Congressional action. By sec- 
 tion 12 of the act of March 3, 1887, in relation to suits against 
 the Government of the United States, it is provided that when 
 any claim or matter pending in any of the executive departments 
 involves controverted questions of fact or of law, the head of 
 such department may, with the consent of the claimant, submit 
 it to the Court of Claims for decision. Mr. Bayard stated that, 
 being desirous to avoid delay, he had sought the consent of the 
 claimants to such a submission, but that the attorneys had, in 
 behalf of their clients, declined the proffered investigation. In 
 conclusion, he suggested that a recommendation be made to 
 Congress to provide expressly for the reference of the claims to the 
 Court of Claims, or such other court as might be deemed proper, 
 in order that a competent investigation of the charges of fraud 
 might be made. 
 
 When Mr. Blaine again became Secretary of State, in March, 
 1889, he adhered to the course of his two immediate predecessors 
 in refusing to distribute the moneys on hand applicable to the 
 two awards in question. In consequence, Sylvanus C. Boynton, 
 as assignee of a part of the Weil claim, on November 23, 1889, 
 filed a petition in the Supreme Court of the District of Columbia 
 against Mr. Blaine as Secretary of State to compel him to make 
 a distribution. In due course the case came before the Supreme 
 Court of the United States, and on March 23, 1891, the decree 
 of the court below dismissing the petition was affirmed. 
 
 In December, 1892, acts were at length passed by Congress 
 conferring jurisdiction on the Court of Claims to investigate both 
 the Weil and La Abra cases, and to determine whether the charges 
 of fraud were well founded. 
 
 On March 28, 1900, Secretary of State Hay sent the following 
 note to the Mexican Ambassador in reference to the La Abra 
 claim: 
 
 "As you are advised, the Congress of the United States, act- 
 ing upon the recommendation of this Department, passed an act 
 which took effect December 28, 1892, authorizing and directing 
 the Attorney-General to bring a suit in the Court of Claims against
 
 8o REVISION OF ARBITRAL AWARDS 
 
 La Abra Silver Mining Company to determine whether the award 
 made by the United States and Mexican mixed commission in re- 
 spect to the claim of the said La Abra Company was obtained by 
 fraud; and in case it should be so determined, to bar and foreclose 
 all claims in law or equity on the part of said company, its repre- 
 sentatives and assigns, to the money received from the Republic 
 of Mexico on account of such award. 
 
 "In accordance with the terms of the Act of Congress of 1892, 
 the Attorney- General brought suit in the name of the United 
 States against said La Abra Company, and, after a patient and 
 careful hearing of the case, the Court of Claims decided that the 
 award made by the mixed commission was obtained by fraud, and 
 a decree was rendered barring and foreclosing all claim on the 
 part of said company, its agents, attorneys, or assigns, to the 
 money received from the Republic of Mexico on account of said 
 award; and, on an appeal being taken to the Supreme Court of 
 the United States, this latter tribunal affirmed in full the decision 
 of the Court of Claims. 
 
 "Of the sum paid by the Government of Mexico on account of 
 La Abra award, it appears that there is remaining under the con- 
 trol of this Department $403,030.08, which, in accordance with 
 the legislative and judicial proceedings above cited, it is now 
 within my power to return to the Government of Mexico. Acting 
 under the direction of the President, and in pursuance of the 
 spirit of equity and fair dealing which controls the conduct of 
 this government in its relations with the neighboring republics, 
 it is now my very agreeable duty to inclose to you herewith a 
 check for the amount above named drawn upon the assistant 
 treasurer of the United States at New York and made payable to 
 your order." 
 
 In acknowledging the receipt of this note the Mexican Am- 
 bassador said: "I hasten to express to Your Excellency my most 
 sincere recognition of the high principles of justice and equity 
 which have guided the Government of the United States in re- 
 turning to Mexico the aforesaid sum so soon as the obstacles to 
 such action were removed. I do not doubt that my government, 
 on receiving this agreeable intelligence, will see in this act a new 
 proof of the friendly spirit with which the illustrious Chief Magis-
 
 THE NORTHEASTERN BOUNDARY 8 1 
 
 trate of this country and your excellency personally cultivate the 
 pacific relations happily existing between our two Republics upon 
 the basis of honor, morality, and benevolence, with the wise co- 
 operation of the legislative and judicial branches, which is illus- 
 trated particularly in the act of exemplary probity to which I 
 have just referred, and for which to a singular degree the Mexican 
 people will always be grateful." 
 
 On November 10, 1900, Mr. Hay transmitted to the Mexican 
 Ambassador a check for $287,833.77, the unpaid balance of the 
 award in favor of Benjamin Weil. 
 
 The Urgent Deficiencies Bill, approved by President Roose- 
 velt February 14, 1902, contained the following item: "For re- 
 paying to the Government of Mexico money erroneously claimed 
 by and paid to the United States on account of the awards, ad- 
 judged to have been fraudulently made, in the La Abra and Weil 
 claims, four hundred and twelve thousand five hundred and 
 seventy- two dollars and seventy cents." 
 
 (Condensed and extracted from Moore: International Arbitra- 
 tions, vol. n, pp. 1324-48; Foreign Relations of the United States, 
 1900, pp. 781-84; United States Statutes at Large, vol. 32, pt. I, 
 P. 5-) 
 
 (d ) Excess of power 
 
 THE NORTHEASTERN BOUNDARY OF THE UNITED 
 STATES (1831) 
 
 UNDER the convention between the United States and Great 
 Britain of September 29, 1827, the King of the Netherlands was 
 chosen as arbitrator to determine the true divisional line between 
 the northeastern part of the United States and the adjacent British 
 possessions under the treaty of peace of 1782-83. The King of the 
 Netherlands, in his award given at The Hague, January 10, 1831, 
 held that neither the line claimed by the United States nor that 
 claimed by Great Britain so nearly answered the requirements 
 of the treaty that a preference could be given to the one over the 
 other; and abandoning, therefore, as impracticable, the attempt
 
 82 REVISION OF ARBITRAL AWARDS 
 
 to draw the line described in the treaty, he recommended a line 
 of convenience. When the award was delivered, the agent of the 
 United States entered a respectful protest against it as constitut- 
 ing a departure from the powers delegated to the arbitrator by the 
 high contracting parties. The British Government also recognized 
 the fact that the award was recommendatory rather than decisive, 
 and, while signifying its readiness to acquiesce in the recommenda- 
 tion, authorized its Minister at Washington privately to intimate 
 that it would not consider the formal acceptance of the award by 
 the two governments as precluding modifications of the line by 
 mutual exchange and concession. President Jackson was inclined 
 to accept the award, and, it seems, afterwards regretted that he 
 had not done so. But, as it was unsatisfactory both to Maine and 
 to Massachusetts, he submitted the question of acceptance or re- 
 jection to the Senate, which, by a vote of 35 to 8, resolved that the 
 award was not obligatory, and advised the President to open a 
 new negotiation with Great Britain for the ascertainment of the 
 line. The British Government promised to enter upon negotia- 
 tions in a friendly spirit, and it was agreed that both sides should 
 meanwhile refrain from exercising jurisdiction beyond the terri- 
 tories which they actually occupied. The boundary was settled 
 by the Webster-Ashburton Treaty of August 9, 1842. 
 
 (Extract from Moore: Digest of International Law, vol. vn, pp. 
 59-60; see also Moore: International Arbitrations, vol. I, pp. 85- 
 161.) 
 
 (e) Essential error 
 
 THE PELLETIER CLAIM (1884-87) 
 
 BY a protocol signed at Washington May 24, 1884, by Mr. 
 Frelinghuysen, Secretary of State of the United States, and Mr. 
 Preston, Envoy Extraordinary and Minister Plenipotentiary of 
 Hayti, the Governments of the United States and Hayti agreed 
 to refer the claims of Antonio Pelletier and A. H. Lazare, citizens 
 of the United States, against the Republic of Hayti, to the Hon-
 
 THE PELLETIER CLAIM 83 
 
 orable William Strong, formerly a justice of the Supreme Court of 
 the United States, as sole arbitrator. 
 
 Though the claims were thus referred together, they were not 
 otherwise connected. They differed both in origin, in character, 
 and in ownership. The grounds on which they rested were sum- 
 marily stated in the protocol. Those in the case of Pelletier were 
 described as follows: 
 
 "That Pelletier was master of the bark William, which vessel 
 entered Fort Liberte about the date claimed foist of March 1861) ; 
 that the master and crew were arrested and tried on a charge of 
 piracy and attempt at slave trading; that Pelletier, the master, 
 was sentenced to be shot, and the mate and other members of the 
 crew to various terms of imprisonment; that the Supreme Court 
 of Hayti reversed the judgment as to Pelletier, and sent the case 
 to the court at Cape Haytien, where he was retried and sentenced 
 to five years' imprisonment; and that the vessel, with her tackle, 
 was sold, and the proceeds divided between the Haytian Govern- 
 ment and the party who, claiming to have suffered by her acts, 
 proceeded against the vessel in a Haytian tribunal." 
 
 The arbitrator on June 20, 1885, transmitted to Mr. Bayard, 
 then Secretary of State, his awards on both the claims submitted 
 to him. 
 
 November 18, 1886, the Haytian Minister filed a formal pro- 
 test in which he maintained that the award in the case of Pelletier 
 was induced by a clear mistake by the arbitrator as to his juris- 
 diction under the protocol. 
 
 December 8, 1886, a resolution was adopted by the Senate, re- 
 questing the President to communicate to that body, "if not in- 
 consistent with the public interests, copies of the awards made by 
 the arbitrator hi the case of Antonio Pelletier and in the case of 
 A. H. Lazare against the Republic of Hayti, under a protocol made 
 by and between the Secretary of State of the United States and 
 the Minister Plenipotentiary for the Republic of Hayti, dated 
 24th May, 1884, together with such action as may have been had 
 in relation thereto." This resolution was referred to the Secre- 
 tary of State, Mr. Bayard, who, on January 20, 1887, submitted 
 to the President a report, which the latter communicated to the 
 Senate, holding that neither the award in the case of Pelletier nor
 
 84 REVISION OF ARBITRAL AWARDS 
 
 that in the case of Lazare should be enforced. The reasons for 
 this conclusion were set forth, those in the case of Pelletier being 
 stated first. 
 
 Mr. Bayard stated that the case of Pelletier was first brought 
 to the attention of the Department of State by a dispatch dated 
 April 13, 1861, from Mr. G. E. Hubbard, commercial agent of the 
 United States at Cape Haytien, who reported that Pelletier was 
 under arrest in Hayti on the charge of attempted enslavement in 
 Haytian waters of Haytian citizens. Mr. Seward, then Secretary 
 of State, after a prolonged correspondence, finally refused, on No- 
 vember 30, 1863, to interfere with the action of Hayti in the mat- 
 ter, taking the position, in an instruction to Mr. Whidden, then 
 United States Commissioner in Hayti, that "his [Pelletier's] con- 
 duct in Hayti and on its coasts is conceived to have afforded the 
 reasonable ground of suspicion against him on the part of the au- 
 thorities of that republic which led to his arrest, trial, and con- 
 viction in the regular course of law, with which result it is not 
 deemed expedient to interfere." 
 
 Mr. Bayard further stated that early in 1864 Pelletier escaped 
 from Hayti, and on July 16 of that year presented to the Depart- 
 ment of State a long memorial. This memorial, with other papers 
 in the case, was sent to the House of Representatives, in compli- 
 ance with a resolution of that body, on April 3, 1868. No further 
 action was taken upon it by the Department of State, nor was 
 further action taken upon it by the House. In 1871 Pelletier made 
 another application to the Department of State, with the result 
 that he was informed by Mr. Bancroft Davis, Acting Secretary, 
 September 26, 1871, that the Department had "found no reason 
 to dissent from the opinion of Mr. Seward in regard to the case in 
 his instruction to Mr. Whidden, United States Minister to Hayti, 
 of the 3oth of November, 1863." Pelletier next applied to the 
 Senate, where his case was referred to the Committee on Foreign 
 Relations. On June 9, 1874, Mr. McCreery presented from that 
 committee a unanimous report sustaining the views of Mr. Seward. 
 In this report the opinion was expressed, after an examination of 
 the facts, that if, as the claimant contended, the Haytian courts 
 had no jurisdiction of the charges against him, the citizens of 
 Hayti might "be said to hold their lives, their persons, and their
 
 THE PELLETIER CLAIM 8$ 
 
 property at the mercy of any corsair who may choose to deprive 
 them of either." The claimant then applied once more to the 
 House of Representatives, securing the presentation to that body 
 on January n, 1878, of a further memorial and documents; but 
 a resolution was adopted by which the House declined to make any 
 recommendation in regard to the claim. 
 
 Having thus detailed Pelletier's failures to obtain favorable 
 action by the Executive or by Congress upon his claim, Mr. 
 Bayard stated that the claimant on January 22, 1878, again ap- 
 peared before the Department of State "with a series of ex parte 
 statements which were referred to Mr. O'Connor, then examiner 
 of claims," who made two reports, one on February 9, 1878, and 
 the other on March 29, 1878, in the latter of which he maintained 
 that there was ground for a demand on Hayti for redress. On the 
 basis of this report instructions were sent to Mr. Langston, then 
 Minister to Hayti, who, in presenting the matter, declared that 
 he was instructed to propose " a prompt and impartial arbitration " 
 of the claim, and to state that in default of such an arrangement 
 the Government of the United States would "require its satis- 
 faction." "Under this pressure," said Mr. Bayard, "the Govern- 
 ment of Hayti, which had at first peremptorily refused to arbitrate, 
 ultimately consented to an arbitration." 
 
 Mr. Bayard then referred to the remonstrance of Hayti of No- 
 vember 18, 1886, against the execution of the award, and, after 
 narrating the circumstances hi which the claim originated, cited 
 Judge Strong's declaration as arbitrator that the voyage of the 
 bark William was, in his opinion, "illegal;" that "its paramount 
 purpose was to obtain a cargo of negroes, either by purchase or 
 kidnapping, and bring them into slavery in the State of Louisi- 
 ana;" and that, "beyond doubt," "had the bark been captured 
 and brought into an American port, when she was seized at Fort 
 LibertS, she would have been condemned by the United States 
 courts as an intended slaver." Upon the facts, as established in the 
 record and admitted hi these declarations of the arbitrator, Mr. 
 Bayard stated that he was constrained to come, on the question of 
 Hayti's jurisdiction, "to a conclusion in direct conflict with that 
 reached by the learned arbitrator." In this relation Mr. Bayard 
 maintained (i) that Pelletier, as held by the Haytian courts, by
 
 86 REVISION OF ARBITRAL AWARDS 
 
 the Senate Committee on Foreign Relations in 1874, and by Judge 
 Strong in 1885, visited Hayti in 1861 for the purpose of abducting 
 and enslaving Haytian citizens; (2) that he made, when in Haytian 
 waters, such preparations for carrying out this plan as would, if 
 he had not been arrested, have ended in its accomplishment; 
 (3) that such action on his part in Haytian waters constituted, 
 both by the common law and by the French law in force in Hayti, a 
 criminal attempt, subject to public prosecution; (4) that the at- 
 tempt thus made was within Haytian jurisdiction; and (5) that 
 the trial was, so far as could be learned, decorous and fair, and 
 that the punishment ultimately imposed was, in view of the atroc- 
 ity of the offense, singularly lenient. 
 
 , Mr. Bayard cited authorities, analyzed the four constituents of 
 a criminal attempt, and discussed the jurisdiction of Hayti to 
 punish such offenses in her waters. 
 
 Having thus discussed the question of jurisdiction, Mr. Bayard 
 proceeded to point out that the arbitrator, while proclaiming in 
 the strongest terms the turpitude of the claimant's conduct, ap- 
 peared, in consequence of an erroneous construction of the pro- 
 tocol, to have considered himself bound to make an award in his 
 favor. 
 
 From the record of the oral arguments it appears that the arbi- 
 trator considered (i) that, as a claim had been made, he was re- 
 stricted to the decision of a pure question of law; and (2) that the 
 protocol, by requiring him to decide "according to the rules of in- 
 ternational law existing at the time of the transactions complained 
 of," restricted him to the decision of the sole question whether 
 Pelletier had been guilty of piracy by law of nations, as distin- 
 guished from piracy by municipal statute, and compelled him to 
 award damages in case he should find that piracy by law of nations 
 had not been committed. Mr. Bayard, on the other hand, main- 
 tained that the protocol was not designed in any way to limit the 
 arbitrator's inquiries into the merits of the claim before him, but 
 was intended "merely to insure the investigation of those merits 
 upon principles of international law contemporaneous with the al- 
 leged wrongs, undoubtedly the true test of Hayti's liability." 
 Mr. Bayard was "unable to see why the fact that the Govern- 
 ment of the United States had made a reclamation in Pelletier's
 
 THE PELLETIER CLAIM 87 
 
 behalf excluded consideration of the question whether that gov- 
 ernment 'ought to have made a reclamation in his behalf.'" In 
 his opinion the question of "legal right" was "vitally connected 
 with the question whether a reclamation ought to have been made," 
 since both those questions involved the application of the rules of 
 international law to the facts of the case. Those facts were to be 
 ascertained by the arbitrator. The Government of the United 
 States, in submitting the claim to arbitration, had acted on a 
 prima facie case, and one of the expressed objects of submission 
 was to obtain a full investigation of the facts. The previous action 
 of the government on ex parte information should not be regarded 
 as a prejudgment of the case submitted. Nor was there anything 
 in the protocol that prevented the consideration of the question 
 whether Pelletier was guilty of piracy under the Haytian statute. 
 "If the bark," said Mr. Bayard, "when she entered the harbor 
 of Fort Liberte, within the unquestioned territorial jurisdiction of 
 Hayti, loaded with the implements of her nefarious errand, and, 
 as the evidence led the arbitrator to conclude, intending there to 
 consummate her unlawful enterprise, could have been condemned 
 by the courts of the United States as an intended slaver, why could 
 not the Haytian court condemn her and try and imprison her 
 commander on the same ground, if, as is not questioned, Haytian 
 law made provision therefor? It matters not what the Haytian 
 law may have called the offense, whether it described it as piracy, 
 or as attempted piracy, or as attempted slave trading, or whether, 
 as is the case, it punished attempted slave trading within Haytian 
 jurisdiction as piracy. ... It was a rule of international law in 
 1861, and is a rule of that law now, that offenses committed in the 
 territorial jurisdiction of a nation may be tried and punished there, 
 according to the definitions and penalties of its municipal law, 
 which becomes for the particular purpose the international law 
 of the case. It matters not what the offense may be termed if it 
 appear that a violation of the municipal law was committed and 
 punished. The municipal law of Hayti is not alone in defining the 
 slave trade as piracy. It is so denominated by the laws of the 
 United States (Revised Statutes, sec. 5376), and is punishable 
 with death; and if the Government of the United States, like that 
 of Hayti, were to make attempts at slave trading equivalent to the
 
 88 REVISION OF ARBITRAL AWARDS 
 
 consummated act and equally punishable therewith, it is not sup- 
 posed that the rules of international law would thereby be violated. 
 I cannot presume that the Government of the United States by 
 stipulating for the decision of the Pelletier claim according to the 
 rules of international law existing in 1861 intended to deny to Hayti 
 the right at that time to execute within her territorial jurisdiction 
 her laws against slave trading or piracy therein attempted, and I 
 am compelled to declare that had such been this government's 
 expressed intention I could not recommend that it should now be 
 executed in the light of the facts developed in the arbitration." 
 
 Mr. Bayard further maintained (i) that it was the duty of the 
 Executive to refuse to enforce an unconscionable award; (2) that, 
 assuming the claimant's naturalization to be proved, his right, 
 being a tort-feasor, to claim compensation for the consequences 
 of this tort must be denied; (3) that, upon the general question of 
 turpitude, the claim was one that could not be pressed by the 
 United States "either as a matter of honor or as a matter of law;" 
 (4) that the principle that a sovereign could not in honor press an 
 unconscionable and unjust award, even though it was made by an 
 international tribunal invested by law or treaty with the power of 
 swearing witnesses and receiving or rejecting testimony, applied 
 with still greater force to the award of an arbitrator whose acts 
 in administering oaths to witnesses, issuing commissions, and de- 
 termining what questions were to be put, must, if sanctioned only 
 by the Executive, be regarded as ultra vires. 
 
 Mr. Bayard then remarks: "In view of the position taken by 
 Hayti, as exhibited in the records of this case, it becomes now in- 
 cumbent on the Government of the United States to determine 
 whether it will enforce the payment by Hayti of this award," and 
 concludes: "But I do not hesitate to say that, in my judgment, the 
 claim of Pelletier is one which this government should not press 
 on Hayti, either by persuasion or by force, and I come to this 
 conclusion, first, because Hayti had jurisdiction to inflict on him 
 the very punishment of which he complains, such punishment 
 being in no way excessive in view of the heinousness of the offense, 
 and, secondly, because his cause is of itself so saturated with tur- 
 pitude and infamy that on it no action, judicial or diplomatic, 
 can be based."
 
 THE ORINOCO STEAMSHIP COMPANY CASE 89 
 
 A copy of the executive document containing the foregoing 
 report was sent to Mr. Thompson, then Minister of the United 
 States at Port au Prince, for his information. Subsequently, Mr. 
 Thompson enclosed to the Department of State an extract from a 
 message to the National Assembly of Hayti, published in Le 
 Moniteur of May 12, 1887, in which President Salomon quoted 
 several passages from the report, commented upon the "spirit of 
 justice" which they manifested, and declared that Hayti stood, 
 in respect of the claims in question, "disengaged from all responsi- 
 bilities." He declared that he would like to see the report in the 
 hands of every Haytian, and that orders had been given for its 
 translation and the printing of a large number of copies. 
 
 (Extracted and condensed from Moore: International Arbitra- 
 tions, vol. H, pp. 1749-1805; Foreign Relations of the United States, 
 1887, pp. 591-630-) 
 
 THE ORINOCO STEAMSHIP COMPANY CASE 
 
 The Permanent Court of Arbitration at The Hague, 1910 
 
 THE parties to this case were the United States of America and 
 the United States of Venezuela, and the issue was the reusability 
 of an award previously rendered by an international commission. 
 The same principle had been involved in the Pious Fund case, but 
 now the American position was reversed. In the former case the 
 United States contended for the doctrine of res judicata on the 
 ground that the original award had been rendered within the 
 limits of the jurisdiction of the commission; in the present case, it 
 was maintained that, in an arbitration of the matter at issue in 
 1904, there had been an excess of jurisdiction as well as essential 
 error, and that for these reasons the award should be set aside and 
 the case taken up de novo. 
 
 The circumstances of the original award and the facts out of 
 which the case grew were as follows: 
 
 By a protocol of February 17, 1903, the United States and 
 Venezuela agreed to refer to a mixed commission for determina- 
 tion " all claims owned by citizens of the United States of America." 
 All awards were to be on "a basis of absolute equity, without
 
 90 REVISION OF ARBITRAL AWARDS 
 
 regard to objections of a technical nature, or of the provisions of 
 local legislation." The decision in each case was to be final and 
 "conclusive" and payments were to be in gold of the United 
 States. 
 
 Among the claims submitted to the commission was that of 
 the Orinoco Steamship Company, a New Jersey corporation, which 
 had taken over all the rights and liabilities of the Orinoco Shipping 
 and Trading Company, the shareholders of which had almost all 
 been American citizens, though the company itself had been under 
 nominal British registry. The claims against Venezuela had in 
 reality been acquired by the latter company, but inasmuch as 
 they were now owned by American citizens, they came within the 
 scope of the commission. The origin of the claims is to be sought 
 in the disturbed economic and political conditions obtaining in 
 Venezuela for many years. Among the most valuable of the con- 
 cessions in the gift of successive governments was the privilege 
 of the exclusive navigation of the Orinoco. This had been the 
 object of much political manipulation, and, by reason of frequent 
 changes of policy with respect to opening and closing the river to 
 foreign trade, contracts had been set aside and much litigation 
 had ensued. 
 
 Omitting details, the claims of the Orinoco Steamship Company 
 arose from its succession,, through various business changes, to 
 the ownership of two contracts, the Oleachea contract of 1891 
 and the Grell contract of 1894. Under the former, the Oleachea 
 Company had secured the exclusive navigation of the Upper 
 Orinoco for the term of twenty years and later had become the 
 creditor of the Venezuelan Government by reason of assistance 
 given in times of revolution. The Grell contract had established 
 coastwise trade down the Orinoco from Ciudad Bolivar to Mara- 
 caibo and had granted to the concessionaire, Ellis Grell, the ex- 
 clusive privilege of such trade, and had even extended to him the 
 temporary privilege of navigation between Orinoco ports and the 
 island of Trinidad, notwithstanding the decree of July i, 1893, 
 closing the Macareo and Pedernales channels of the Orinoco to 
 foreign trade. This contract was to run for fifteen years. 
 
 In 1900 the Orinoco Shipping and Trading Company, which by 
 this time was the owner of both contracts, began to press the Vene-
 
 THE ORINOCO STEAMSHIP COMPANY CASE 91 
 
 zuelan Government for payment of claims arising out of civil war 
 and otherwise, with the result that on May 10 the government 
 agreed to extend the Grell contract six years, and the company 
 agreed, in full discharge of all indebtedness, to accept a payment 
 of 100,000 bolivars down and a similar payment to be made at a 
 later date. Both the original contract of 1894 and the revised 
 contract of 1900 contained the Calvo clause, so called, to the 
 effect that, 
 
 "Questions and controversies which may arise with regard to 
 the interpretation or execution of this contract shall be resolved 
 by the tribunals of the Republic in accordance with its laws, and 
 shall not in any case give occasion for international reclamations." 
 
 The new contract was broken from the beginning. The second 
 payment of 100,000 bolivars was never made; the navigation of 
 the Orinoco was freed from the restrictions of the decree of July i, 
 1893, thereby rendering valueless the concession of the Grell 
 contract, while, by the resolution of December 14, 1901, the 
 contract itself was annulled and the company deprived of all its 
 privileges. Early in 1902 the company was reorganized as the 
 Orinoco Steamship Company, wholly American-owned, and the 
 transfer duly registered in Venezuela. But, as a result of the hos- 
 tility of the Venezuelan Government, it was compelled to sell out 
 at a great sacrifice to a Venezuelan firm which had the especial 
 favor of the government and in which President Castro was said 
 to be a stockholder. Shortly after the sale, one Curao secured a 
 concession of navigation rights similar to that of the Grell contract, 
 and in course of time transferred it to the Venezuelan firm, the 
 contract to run for fifteen years. 
 
 The claim submitted by the United States before the mixed 
 commission on behalf of the Orinoco Steamship Company was as 
 follows: 
 
 (1) $1,209,700 for annulment of the Grell contract of 1894 
 and 1900. 
 
 (2) 100,000 bolivars ($19,200) due from the Venezuelan Govern- 
 ment and promised May, 1900. 
 
 (3) $149,698 for damages sustained in revolutions, together 
 with cost of services rendered the Venezuelan Government.
 
 92 REVISION OF ARBITRAL AWARDS 
 
 (4) $25,000 for counsel fees and expenses incurred in prosecut- 
 ing the claims. 
 
 Failing a decision by the commission, the claim was referred to 
 the umpire, Dr. Barge, of the Netherlands, who disallowed the 
 larger part of it. The contract, in his opinion, did not contemplate 
 a concession for the exclusive navigation of the two channels. It 
 was not " the right to navigate," but " the right of a coastal vessel," 
 that constituted the benefit and exemption. This privilege was not 
 affected by reopening the Orinoco, hence no damage had been sus- 
 tained. Besides, the Calvo clause operated against any such 
 claim, as well as the failure to give previous notice of transfer in 
 accordance with Venezuelan law. These two latter reasons also 
 invalidated the indebtedness of the government to the company. 
 As for damages claimed because of civil disturbances, the umpire 
 had awarded only $28,000, no allowance having been made for 
 loss of revenue due to the blockade of the Orinoco, as the govern- 
 ment was within its rights in instituting it. Inasmuch as the 
 greater part of the claim was thus disallowed, the umpire refused 
 to grant counsel fees and expenses. Thus, of a claim amounting to 
 over $1,400,000, Dr. Barge had awarded only $28,224.93. 
 
 The United States protested the award and during the regime 
 of Castro made it and other American claims the subject of dip- 
 lomatic negotiation. The United States asked that they go to 
 The Hague for settlement, but Castro refused to agree. The new 
 Venezuelan Government, however, was more amenable to discus- 
 sion, and two of the outstanding claims were settled through 
 diplomacy. On February 13, 1909, a protocol was drawn up by 
 the United States and Venezuela, providing for the submission 
 of the remaining claims to the Permanent Court of Arbitration, 
 but two of these were soon afterwards settled by direct negotia- 
 tion, leaving only the Orinoco Steamship Company award out- 
 standing. 
 
 The arbitral tribunal, as constituted by the protocol, consisted 
 of three members, none of whom was a national of either party. 
 No member of the Permanent Court could appear as counsel hi 
 the case. Definite dates were fixed for the exchange of cases and 
 counter-cases, and oral arguments and replies were made before
 
 THE ORINOCO STEAMSHIP COMPANY CASE 93 
 
 the tribunal after its meeting on September 28, 1910. The United 
 States appointed as arbitrator, Senor Gonzalo de Quesada, Cuban 
 Minister to Germany, Venezuela appointed M. Beernaert, of 
 Belgium, and these selected as a third member of the tribunal, 
 M. Lammasch, of Austria, who presided. 
 
 The questions submitted to the tribunal were as follows: 
 
 "The arbitral tribunal shall first decide whether the decision of 
 Umpire Barge, in this case, in view of all the circumstances and 
 under the principles of international law, is not void, and whether 
 it must be considered to be so conclusive as to preclude a reexam- 
 ination of the case on its merits. If the arbitral tribunal decides 
 that said decision must be considered final, the case will be con- 
 sidered by the United States of America as closed; but on the 
 other hand, if the arbitral tribunal decides that said decision of 
 Umpire Barge should not be considered as final, the said Tribunal 
 shall then hear, examine and determine the case and render its 
 decision on its merits." 
 
 The United States, in its arguments before the tribunal, main- 
 tained that these two questions could not be treated separately. 
 To show the necessity for revision, it would be necessary to trav- 
 erse the facts of the case itself, though it agreed with Venezuela 
 that there was no need to pass upon the second point until the first 
 had been decided. But the United States further contended that, 
 if the tribunal decided that the award was open to revision, it was 
 to hear and decide the entire case as it came before Dr. Barge; 
 in other words, the award was not severable; if it was infected in 
 any of its parts with illegality, the whole case must be examined 
 and determined anew. 
 
 In its contention for a revision of the award, the United States 
 admitted fully the force of resjudicata, but held it applicable only 
 when there had been no overstepping of the limits of jurisdiction 
 on the part of the arbitrator. It admitted also that mere error in 
 appreciation of facts or in judgment is not a ground for revision. 
 Conceding these points, it proceeded to examine the chief reasons 
 assigned by publicists to uphold revision of awards. Comparative 
 citations showed that the authorities are unanimous that an evi- 
 dent disregard of the terms of the compromis invalidates an inter- 
 national award. Further, the great weight of authority would as-
 
 94 REVISION OF ARBITRAL AWARDS 
 
 sign essential error as sufficient ground for revision, essential error, 
 according to the argument of the United States, being tantamount 
 to a denial of justice. Precedent also supported this right to go 
 behind an arbitral award. The Pelletier case in Hayti, where the 
 arbitrator did not give full effect to provisions of local law, as 
 required by the empowering protocol, and the boundary award of 
 1827, where the King of the Netherlands had gone outside of the 
 treaty of 1783 and had drawn an arbitrary boundary of his own, 
 were instances in point. Venezuela itself had exercised this right 
 in the case of awards of the mixed commission in 1866, and again 
 in 1885. The reason for such a right is obvious: revision is funda- 
 mental in the conception of arbitration as a judicial remedy. A 
 judgment must conform to the principles of law and equity in- 
 volved, and, when such have not prevailed, there should be op- 
 portunity for revision. "Arbitration is an instrument of peace 
 only because it is an instrument of justice." In the present case 
 the umpire had been mistaken in his interpretation of the nature 
 of the company's concession, stating it to be one thing, when it was 
 in reality something else. * Besides, he had applied the Calvo clause 
 and local technical law in clear disregard of the Protocol of 1903. 
 For these reasons, the United States argued, the tribunal should 
 revise his award. 
 
 Venezuela, in reply, took certain objections at the outset. The 
 United States had not made its protest in reasonable time. The 
 revision of this award would affect other awards made under the 
 Protocol of 1903. The latter had distinctly stated that all awards 
 under it were to be "final and conclusive," and hence not to be 
 reopened. The main contentions of the United States were met 
 by the argument that the words " absolute equity " in the Protocol 
 of 1903 had conferred upon Dr. Barge discretionary powers and 
 hence had freed him from any technical limitations in the terms of 
 submission; while "essential error" to justify revision, must be 
 based upon false evidence only, and this had not been present in 
 the case. Hence Venezuela asked the tribunal to apply the doc- 
 trine of res judicata and dismiss the appeal for revision. 
 
 In its award, which was rendered October 25, 1910, the tribunal, 
 while endorsing the principle that arbitral decisions should in 
 general be accepted as final, recognized, as here, the occasional
 
 THE ORINOCO STEAMSHIP COMPANY CASE 95 
 
 desirability of review. As both parties were in substantial agree- 
 ment as to what defects invalidated an arbitral decision, it re- 
 mained only to discover whether any of these defects had been pres- 
 ent in the award under consideration. The tribunal considered 
 that the original award had consisted of distinct decisions on 
 separate claims, and that therefore "the nullity of one is without 
 influence on any of the others, more especially when, as in the 
 present case, the integrity and the good faith of the arbitrator 
 are not questioned." Hence the principle of severability was ad- 
 mitted and the tribunal proceeded to examine each claim sepa- 
 rately. On this view of it, the greater part of the award was held 
 to contain no ground for annulment; "the appreciation of the facts 
 of the case and the interpretation of the documents were within 
 the competence of the umpire, and his decisions, when based on 
 such interpretation, . . . not subject to revision." That is, the 
 umpire's interpretation of the nature of the Grell contract was 
 not vitiated even though his decision had been partly based on 
 objections of a technical character. However, in the opinion of 
 the tribunal, the application of the latter to the debt of 100,000 
 bolivars rendered this part of the award void, and the tribunal 
 awarded this sum in full. Some other amounts claimed were also 
 awarded for the same reason, and, as the total damages thus ob- 
 tained by the company were considerably increased, the tribunal 
 granted counsel fees on the basis of equity to the extent of $7,000. 
 In all, the total amount awarded by the tribunal, inclusive of in- 
 terest, was over $64,000 in excess of the Barge award. 
 
 Thus the award was, in part, set aside on the ground of failure 
 to conform with the terms of the defining protocol. "The all- 
 important thing about the decision," says one commentator, "is 
 that for the first time an international award has been annulled 
 by an international tribunal. ... It is believed that it may 
 fairly be said to have decided that departure from the terms of the 
 protocol is a just ground for annulling an international award 
 and furthermore that disregard of the rules of law enjoined by the 
 terms of submission amounts to a departure from the submission." l 
 
 (Case, Counter-case, and Appendix, published by the Govern- 
 
 1 W. C. Dennis (Agent for the United States in the case) in American Journal 
 of International Law, vol. v, p. 54.
 
 96 REVISION OF ARBITRAL AWARDS 
 
 ment Printing Office, Washington; Protocoles de Seances du Tri- 
 bunal, published by the International Bureau at The Hague; 
 American Journal of International Law [1911], vol. v, pp. 32-65, 
 230-35; Printed Arguments of the parties before the Arbitral 
 Tribunal; G. G. Wilson, The Hague Arbitration Cases.) 
 
 (/) New evidence 
 
 THE LAZARE CLAIM (1884-87) 
 
 THE claim of A. H. Lazare was, by the terms of the protocol 
 of May 24, 1884, referred with that of Antonio Pelletier to the 
 Honorable William Strong, formerly a justice of the Supreme Court 
 of the United States, as sole arbitrator. The grounds of the claim 
 of A. H. Lazare were described in the protocol as follows: "That 
 Lazare entered into a written contract with the Haytian Govern- 
 ment September 23, 1874, for the establishment of a national 
 bank at Port au Prince, with branches, the capital being fixed 
 first at $3,000,000, and afterward reduced to $1,500,000, of which 
 capital the Government was to furnish one-third part and Lazare 
 two-thirds; that the bank was to be opened in one year from the 
 date of the contract, and an extension of forty-five days on this 
 tune was granted on Lazare's request, and that on the day when 
 the bank was to be opened, the Haytian Government, alleging 
 that Lazare had not fulfilled his part of the engagement, declared, 
 in accordance with the stipulations of article 24 of the agreement, 
 the contract null and void, and forfeited on his, Lazare's, part." 
 
 In the case of Lazare, as well as in that of Pelletier, Mr. Bayard 
 reported in favor of opening the award. His recommendation in 
 the Lazare case rested (i) on certain papers in the Department 
 of State which were not shown to have been laid before the ar- 
 bitrator; (2) on irregularities in the arbitrator's proceedings; 
 (3) on errors in the award; (4) on the alleged newly discovered 
 evidence; and (5) on a letter of Judge Strong to Mr. Preston, the 
 Haytian Minister, of February 18, 1886. The irregularities alleged 
 to exist in the arbitrator's proceedings were the same as those
 
 THE LAZARE CLAIM 97 
 
 pointed out in the case of Pelletier, in respect of the swearing of 
 witnesses, the issuing of commissions, and the admission and re- 
 jection of testimony. The letter of Judge Strong to Mr. Preston 
 related to the "newly discovered" evidence. In that letter Judge 
 Strong stated that, after his functions as arbitrator had ceased, 
 the newly discovered evidence was laid before him by counsel for 
 Hayti with an application for a rehearing; that he denied the ap- 
 plication verbally on the ground that his power over the award 
 was extinct; but that the newly discovered evidence was of such a 
 character that it would "materially have affected" his decision 
 had it been presented to him pending the hearing of the case, and 
 before his powers under the protocol had terminated. The evi- 
 dence in question tended to show (i) that Lazare was, at the time 
 of his transactions in Hayti, insolvent; (2) that his connections 
 with the steamship and railway business in New York, prior to his 
 going to Hayti, were wholly unremunerative; (3) that the firms 
 with which he negotiated in London, after the failure of Benson 
 & Co., had little or no standing, and were lacking in ability to ob- 
 tain the money which he required; and (4) that in fact he was 
 wholly unprepared to furnish in any form the funds which he had 
 engaged to provide for the opening of the bank. 
 
 After submitting its grounds, the report presented its conclusion 
 adverse to the validity of the claim and to the effect that whenever 
 it was discovered that a claim against a foreign government could 
 not be honorably and honestly pressed, such claim should, no 
 matter what the period of procedure, be dropped. 
 
 In the course of these conclusions the report stated that when a 
 copy of Mr. Bassett's dispatch, together with a memorandum of 
 Mr. Lazare's statement of 1877 as to his receipt of the Haytian 
 Government's notice of deposit, was given to Judge Strong, he 
 made, on June 23, 1886, an oral statement to the Department of 
 State as follows: "In view of these documents, which were not ex- 
 hibited to me, I am clearly of the opinion that the award ought 
 to be opened; that the government cannot afford to press [a] claim 
 not clearly founded in honesty; that if these documents had been 
 presented to me, together with the other affidavits presented to 
 me on the motion to open the award, they would have made a 
 vast difference in the award which I did make. These papers tend
 
 98 COMMISSIONS OF INQUIRY 
 
 to shew that the only fault of Hayti was the failure to propose 
 arbitration instead of at once declaring the contract void, the con- 
 tract having stated that differences should be referred to arbitra- 
 tors. That not having been done, resort may be had to law to re- 
 cover such injuries as the claimant may have sustained. Under 
 the circumstances it would seem to me that he could only claim 
 for expenses necessarily incurred by him." 
 
 As a consequence of Secretary , Bayard's report the Govern- 
 ment of the United States refused to press the claim. 
 
 (Extracted and condensed from Moore: International Arbitra- 
 tions, vol. n, pp. 1749-1805.) 
 
 ii. COMMISSIONS OF INQUIRY 
 
 THE DOGGER BANK INCIDENT (1904) 
 
 DURING the war with Japan, the Russian Government found it 
 necessary, in the course of its naval operations, to send a fleet from 
 the Baltic to the Far East. While it was being mobilized, vague 
 rumors were afloat that it was to be the object of secret attack by 
 Japanese mines and torpedo-boats, even in the Baltic itself, and 
 it was with feelings of nervousness that the Russians contemplated 
 the passage through the comparatively narrow and enclosed waters 
 of Northwestern Europe. While in the Danish straits they were 
 reported as exhibiting exaggerated suspicion of all merchant craft 
 and in this state of mental tension they entered upon the passage 
 through the North Sea. 
 
 On the night of Friday, October 21, 1904, the fifth section of the 
 Russian fleet fell in with a Hull fishing fleet, which was at work 
 trawling on the customary fishing grounds on the Dogger Bank 
 about 220 miles east from the British coast. This section sailed 
 around the trawlers, but the sixth and last section, which came 
 upon the fishermen shortly after midnight, sailed through the 
 fishing fleet. Suddenly, to the astonishment of the trawlers, many 
 of whom were burning "flares," the warships opened fire on them 
 and kept the bombardment up for twenty minutes. At the end of
 
 THE DOGGER BANK INCIDENT 99 
 
 that time, one trawler, the Crane, was sinking, five others were 
 damaged, two men were killed and six wounded. After the firing, 
 the Russian warships sailed away to the southwest, without stop- 
 ping to ascertain the results of their attack, and were not heard 
 from until the afternoon of the 23d, when they were reported as 
 passing through the Straits of Dover. 
 
 When the news of the attack became known, the behavior of 
 the Russian fleet astounded not only Great Britain, but all other 
 nations, including Russia itself. Not only the gravity of the im- 
 mediate situation was considered, but also the possible danger 
 that menaced neutral commerce if the Russian fleet was to continue 
 its voyage in such a frame of mind. Besides", public opinion in Great 
 Britain was the more easily inflamed because of the alliance with 
 Japan and there was danger that the incident might bring about 
 British participation in the war. Indeed, so serious was the crisis 
 precipitated, that, on the 24th, "preliminary orders for mutual 
 support and cooperation were, as a measure of precaution, issued 
 from the Admiralty to the Mediterranean, Channel, and Home 
 Fleets," and steps were taken to intercept the Russian fleet at 
 Gibraltar, should such extreme action prove necessary. 
 
 As soon as the information reached him, the British Ambassador 
 to Russia, acting on his own initiative, asked Count Lamsdorff, 
 the Russian Foreign Minister, for an explanation of the conduct 
 of the fleet ; but Count Lamsdorff replied that he was not yet in 
 possession of any official information from Russian sources. To 
 his own colleagues, however, he stated that full reparation would 
 be made, if the Baltic fleet were found to be at fault. 
 
 On October 25, the British Foreign Office, in an official commu- 
 nication to the press, announced that it had taken prompt action, 
 as follows: "The Foreign Office have been in communication with 
 representatives of the fishing industry of Hull and Grimsby, and 
 have obtained from them a full statement of the facts connected 
 with the attack by the Russian Baltic fleet upon a part of the 
 Hull trawling fleet. Urgent representations based upon this in- 
 formation have been addressed to the Russian Government at 
 St. Petersburg, and it has been explained that the situation is one 
 which, in the opinion of His Majesty's Government, does not 
 admit of delay." (London Times, October 25, 1904.) It was fur-
 
 TOO COMMISSIONS OF INQUIRY 
 
 ther intimated by Lord Lansdowne, Secretary for Foreign Affairs, 
 that immediate explanations and reparation had been asked for, 
 special emphasis having been put upon the failure of the Russians 
 to render any assistance to the victims of the attack. 
 
 The same day, the Tsar, though still without news from the 
 fleet, sent, through Count Lamsdorff, a message to King Edward, 
 in which he attributed the incident to "a very regrettable mis- 
 understanding" and expressed his sincere regret to the King and 
 government, adding that "he would take steps to afford complete 
 satisfaction to the sufferers as soon as the circumstances of the 
 case were cleared up." 
 
 On October 26, the Russian fleet arrived at Vigo and, for the 
 first time since the Dogger Bank incident, its commander, Ad- 
 miral Rozhdestvensky, came into touch with his home authorities. 
 On the 27th, it was announced from St. Petersburg that an ex- 
 planation had been received from the admiral, as follows: "Admiral 
 Rozhdestvensky telegraphs that the Baltic fleet hi the course of 
 its voyage met hundreds of fishing boats to which no harm was 
 done, with the exception of the boats in question, among which 
 were noticed two torpedo-boats, one of which disappeared, the 
 other, according to the fishermen, remaining with them till morn- 
 ing. In the circumstances no warships could have acted otherwise. 
 He expresses deep regret for the victims if they were innocent in 
 the matter. The incident began by the two torpedo-boats at- 
 tacking the leading vessel of the fleet in the darkness, and when the 
 searchlights disclosed the presence of several steam fishing boats, 
 an endeavor was made to spare them, and the Russians stopped 
 firing. The torpedo-boats then disappeared. The fishermen com- 
 plain that a Russian torpedo-boat remained behind and yet did 
 not attempt to render assistance. This he denies, the fact being 
 that there were no torpedo-boats with the detachment. The de- 
 tachment did not attempt to offer any help, as they feared a trap, 
 the fishing boats being without lights, although later some lights 
 were shown." (London Times, October 28, 1904.) 
 
 On the 28th, Mr. Balfour, the British Premier, in the course 
 of a public address, made the following statement on the authori- 
 zation of the Russian Ambassador at London: "The Russian Gov- 
 ernment have now ordered the detention at Vigo of that part of
 
 THE DOGGER BANK INCIDENT IOI 
 
 the fleet which was concerned in the incident in order that - the 
 naval authorities may ascertain what officers were responsible for 
 it. These officers and any material witnesses will not proceed with 
 the fleet on its voyage to the Far East. An inquiry will be insti- 
 tuted into the facts, and we and the Russian Government are 
 agreed upon an International Commission of the kind provided for 
 by the Hague Convention I should say that that has nothing 
 to do with arbitration; that is the constitution of an International 
 Commission to find out facts and any person found guilty by 
 this tribunal will be tried and punished adequately." (London 
 Times, October 29, 1904.) 
 
 In accordance with the Russian orders, four officers were de- 
 tained at Vigo, on the departure of the Baltic fleet from that port 
 on November i. There was some demur on the part of Great 
 Britain at the number and the rank of those left behind, but Russia 
 gave distinct assurance "that the officers detained were those ac- 
 tually implicated in this disaster . . . and that, if it should result 
 from the investigations of the International Commission that 
 other officers were culpable, those officers also will be adequately 
 punished." As further proof of sincere intention, the Russian 
 Government undertook to issue to the fleet "instructions of a kind 
 calculated to prevent the recurrence of such incidents, and to se- 
 cure neutral commerce from risk or inconvenience." 
 
 The formal agreement referring the incident to a Commission 
 of Inquiry was signed at St. Petersburg, November 25, by Count 
 Lamsdorff and Sir Charles Hardinge, the British Ambassador. 
 In the preamble, it was stated that conformably to Articles ix to 
 xrv of the Hague Convention for the Pacific Settlement of Inter- 
 national Disputes, the commission was entrusted with " the task 
 of elucidating by means of an impartial and conscientious investi- 
 gation the questions of fact connected with the incident." Article 
 I provided that the commission was to consist of five members, of 
 whom two were to be officers of high rank in the British and Im- 
 perial Russian navies respectively. The Governments of France 
 and of the United States were each to designate to the commission 
 one of their nationals also of high naval rank. These four were 
 to agree upon the fifth member, but, failing agreement, the selec- 
 tion was to be made by the Emperor of Austria. Each party was 
 
 SANTA BARBARA STATE COLLEGE LIBRA! T 
 *r\z- r G* f
 
 102 COMMISSIONS OF INQUIRY 
 
 likewise to appoint a legal assessor to advise the commissioners, and 
 an agent officially empowered to take part in the labors of the 
 commission. 
 
 The scope of the commission was defined in Article n: "The 
 commission shall inquire into and report on all the circumstances 
 relative to the North Sea incident, and particularly on the question 
 as to where responsibility lies, and the degree of blame attaching 
 to the subjects of the two high contracting parties or to the sub- 
 jects of other countries in the event of their responsibility being 
 established by the inquiry." 
 
 Under the remaining six articles, the commission was empowered 
 to settle its own procedure; the parties undertook to afford every 
 facility necessary to insure the success of the commission; Paris 
 was designated as the place of meeting, which was to be held as 
 soon as possible after; the signing of the agreement; a report, 
 signed by all the commissioners, was to be presented to the two 
 parties; all decisions were to be taken by a majority of votes; and 
 the expenses of the commission were to be shared equally by the 
 two governments. 
 
 As commissioners, the Russian, British, French, and American 
 Governments designated Admirals Kaznakoff, Beaumont, Four- 
 nier and Davis respectively. These met for the first time at Paris 
 on December 22 and chose as fifth commissioner Admiral Spaun, 
 of the Austro-Hungarian navy. Thereupon adjournment was 
 made until January 9, 1905, when the sittings were resumed, with 
 Admiral Fournier as president and Admiral Dubassoff as Russian 
 representative in place of Admiral Kaznakoff, who had retired 
 through illness. The early sessions of the commission were occu- 
 pied in drawing up the rules of procedure which it was to follow. 
 As this was the first instance where an international inquiry under 
 the Hague Convention had been applied, any procedure employed 
 was likely to be regarded as a precedent, and so satisfactory did 
 the rules adopted prove that the Hague Conference of 1907, 
 in formulating that part of its work dealing with International 
 Commissions of Inquiry, embodied in large part the procedure of 
 the commission of 1905. 
 
 After the adoption of rules, the commission sat more or less 
 regularly until February 25, when its labors were concluded by 
 the publication of its report.
 
 THE DOGGER BANK INCIDENT 103 
 
 As presented before the commission, the British contentions were 
 based on the ample testimony of the fishermen of the trawling 
 fleet, who were positive in their denial that there had been either 
 torpedo-boat or destroyer on the fishing grounds on the night of 
 October 21-22. "No warship of any description," it was asserted, 
 "other than those of the Imperial Russian" navy were among the 
 trawlers on the night in question and no war- vessels had been seen 
 by any of the trawlers for some time before. There was no war 
 material of any description on board any of the ships of the fishing 
 fleet. There were no Japanese war- vessels of any description hi the 
 North Sea at that time, nor were there any Japanese on board any 
 vessels of the fishing fleet." The firing upon the trawlers was in no 
 way justifiable, it had not been controlled to avoid unnecessary 
 damage, and had been continued long after the peaceful character 
 of the fishing vessels had been ascertained. No fault of any kind 
 could be imputed to the British trawlers or their owners. On the 
 contrary, apart from the error of the attack, those on board the 
 Russian fleet had aggravated the seriousness of the incident by 
 failure to render assistance to the injured fishermen. 
 
 The Russian case met these contentions by an elaboration in de- 
 tail of the original explanation given by Admiral Rozhdestvensky. 
 In consequence of reliable intelligence received as to the plans for 
 Japanese attacks in European waters, certain dispositions had been 
 taken to insure the safety of the Russian fleet in its passage through 
 the North Sea. Emphasis was laid on the fact that the Russian 
 torpedo-craft had been sent on ahead in two sections, thus making 
 impossible the presence of a Russian torpedo-boat among the 
 trawlers on the night of the attack. But that other torpedo-boats 
 presumably Japanese had been present was supported by 
 evidence that admitted of no doubt. "At 55 minutes past mid- 
 night," the Russian case went on to say, "in latitude 55 18' north 
 and longitude 5 42' east of Greenwich, the first ship of the last 
 section, the admiral's ship, Kniaz Savaroff, perceived ahead the 
 outlines of two small craft approaching at great speed, all their 
 lights out, towards the armor-clads. The whole detachment at 
 once began to work their electric searchlights, and as soon as the 
 two suspicious craft came within the zone of the rays projected 
 they were recognized as torpedo-boats. The armor-clads directly
 
 104 COMMISSIONS OF INQUIRY 
 
 opened fire on them." Immediately afterwards, the searchlights 
 revealed the fishing boats, some of them lying across the course 
 the fleet was taking. All. precautions were taken to prevent in- 
 jury to the trawlers by reason of their being within the zone of 
 fire, but "nevertheless the very distinct feeling of danger to which 
 the armor-clads were exposed and the imperious duty of protecting 
 them against the attacks of the torpedo-boats necessitated the con- 
 tinuance of the cannonade, notwithstanding the evident risk of 
 hitting not only the fishing boats, but also the ships of the squad- 
 ron itself." The firing had ceased on the disappearance of the 
 torpedo-boats, and had not lasted more than ten minutes. It 
 was military necessity, based on the uncertainty of attack, and 
 not indifference, that had led the admiral to order the fleet to con- 
 tinue on its course without stopping. For these reasons, according 
 to the conclusion drawn by the Russian case, "Admiral Rozhdest- 
 vensky, upon whom rested the heavy responsibility of providing 
 for the security of the forces entrusted to him and of maintaining 
 them in their integrity, had not only the right, but was under the 
 absolute obligation, of acting as he did that is to say, that while 
 clearly aware of the damage he might cause to inoffensive fisher- 
 men, the subjects of a neutral power, he was nevertheless obliged 
 to use all the means in his power to destroy the torpedo-boats 
 which had attacked his squadron." 
 
 In its report the commission, after a careful consideration of the 
 facts, "proceeded to give an analytic statement of those facts in 
 their logical order." The various dispositions made on the voyage 
 from Reval to the Dogger Bank were set forth and due value was 
 attached to the mental factor in the situation, induced by the 
 rumor and the uncertainty of impending attack. The dropping 
 behind of a transport, due to a damaged engine, and a message from 
 her commander that he was attacked on all sides by torpedo-boats 
 (when in reality he had met a Swedish vessel and other unknown 
 ships) were considered as "perhaps the incidental cause of the 
 subsequent events," for they had served to confirm previous sus- 
 picions and to create a nervous vigilance on the part of the Russian 
 commander. There was nothing unusual in the appearance of 
 the fishing boats, their lights were set, and they were trawling in 
 accordance with customary rules and prearranged signals from
 
 THE DOGGER BANK INCIDENT 105 
 
 rockets. The other sections of the Russian fleet had passed through 
 the fishing ground without reporting anything suspicious, even 
 under the close scrutiny of the searchlights. It was Admiral 
 Rozhdestvensky's flagship, the Savaroff, that first took alarm, 
 the immediate cause being a green rocket fired by the "admiral" 
 of the trawling fleet, "indicating in reality, according to their 
 conventions, that the trawlers were to trawl on the starboard to 
 windward." A vessel thereupon appearing at "an approximate 
 distance of 1 8 or 20 cables," and suspicion being aroused because 
 they saw no lights, "the men of the watch believed they detected 
 a torpedo-boat going at high speed," and fire was immediately 
 opened upon it. With respect to this phase of the incident, the 
 majority of the commissioners were of opinion "that the responsi- 
 bility for the act and the results of the cannonade sustained by the 
 fishing fleet rests with Admiral Rozhdestvensky." 
 
 As to the justification for the attack, the report was adverse to 
 the Russian contention, as follows: "The majority of the commis- 
 sioners declare that they lack precise data to identify the objects 
 upon which the ships fired, but the commissioners unanimously 
 recognize that the boats of the flotilla committed no hostile act, 
 and the majority of the commissioners, being of opinion that there 
 was no torpedo-boat either among the trawlers or in the locality, 
 the fire opened by Admiral Rozhdestvensky was not justifiable. 
 The Russian Commissioner, not believing himself warranted in 
 concurring hi this opinion, states his conviction that it is precisely 
 the suspicious vessels that approached the Russian squadron for 
 a hostile purpose that provoked the firing." The report then goes 
 on to suggest that perhaps "the real objects of this nocturnal 
 firing" were some warships of the advance sections "delayed on 
 the track of the Savaroff without that vessel being aware of it." 
 The commission did not come to any decisive opinion as to the 
 duration of the firing on the port side, because of insufficient in- 
 formation, but on the starboard side, "even from the standpoint 
 of the Russian version, it seemed to have been longer than ap- 
 peared necessary." 
 
 In its concluding statements of fact, the commissioners' report 
 acknowledged that Admiral Rozhdestvensky had done all in his 
 power "to prevent the trawlers, recognized as such, from being the
 
 106 PROTESTS AND APOLOGIES 
 
 objects of the fire of the squadron." It recognized, too, that there 
 was sufficient uncertainty, from his point of view, to justify con- 
 tinuation of his voyage, without stopping to assist the trawlers. 
 But "at the same time the majority of the commissioners regret 
 that it did not occur to Admiral Rozhdestvensky, while going 
 through the Straits of Dover, to inform the authorities of the neigh- 
 boring maritime powers that, having been compelled to open fire 
 in the vicinity of a fleet of trawlers, those boats of unknown na- 
 tionality were in need of assistance." In conclusion, the commis- 
 sioners went on record as in no manner reflecting upon either the 
 valor or the humane sentiments of Admiral Rozhdestvensky or of 
 the personnel of his squadron. 
 
 The report was accepted in good faith by both governments and 
 the incident was closed with the payment by Russia of an indem- 
 nity of 65,0x30. 
 
 (British and Foreign State Papers, vol. xcvn, pp. 77-79; vol. 
 xcrx, pp. 921-26; Archives Diplomatiques [1905], vol. xcm, pp. 
 97-113; vol. xcrv, pp. 450-95; Parliamentary Papers [1905], (60) 
 Russia, Nos. 2 and 3; London Times, October, i9O4~February, 
 1905, passim.) 
 
 12. PROTESTS AND APOLOGEES 
 
 WHEN one government considers that by the action of another 
 its rights have been seriously violated, it is customary to lodge 
 a formal written protest against the action complained of. This 
 serves as a notice that the injured state intends to employ what- 
 ever means seem appropriate and expedient to secure the recogni- 
 tion of its rights under international law. According to the cir- 
 cumstances the discussion may be continued or dropped until 
 such time as the complaining state finds a favorable oppor- 
 tunity for urging its claim. Certain cases are settled by reference 
 to arbitration. Not infrequently governments have tendered full 
 and honorable apologies. Where the governments have not been 
 able or willing to employ some one of the various methods for 
 the peaceful settlement of international differences discussed in
 
 THE CASE OF THE SUCHET 107 
 
 this and the preceding section, there remains only recourse to some 
 means of constraint, unless the weakness or magnanimity of the 
 injured state counsels it to allow the matter to drop. 
 
 13. COERCIVE MEASURES SHORT OF WAR 
 (a) Retorsion 
 
 LEGISLATIVE RETORSION AGAINST BRITISH 
 VESSELS (1818) 
 
 AN act of April 18, 1818, makes the following provision in regard 
 to British vessels: 
 
 "Be it enacted by the Senate and House of Representatives of 
 the United States of America, in Congress assembled, that from 
 and after the thirtieth of September next, the ports of the United 
 States shall be and remain closed against every vessel owned wholly 
 or in part by a subject or subjects of his Britannic majesty, com- 
 ing or arriving from any port or place in a colony or territory of 
 his Britannic majesty that is or shall be, by the ordinary laws of 
 navigation and trade, closed against vessels owned by citizens of 
 the United States; . . . and every such vessel, so excluded from the 
 ports of the United States, that shall enter, or attempt to enter, 
 the same, in violation of this act, shall, with her tackle, apparel, 
 and furniture, together with her cargo on board such vessel, be 
 forfeited to the United States." (U. S. Statutes at Large, vol. m, 
 P. 432.) 
 
 (6) Reprisals 
 (See the Case of the Forte, p. 38.) 
 
 (c) Threats and the display of force 
 
 THE CASE OF THE SUCHET (1902) 
 
 IN the month of June, 1902, while the French Cruiser Suchet was 
 temporarily engaged in carrying relief to Martinique (which had
 
 108 COERCIVE MEASURES SHORT OF WAR 
 
 just been overwhelmed by a terrible volcanic eruption), the pro- 
 tection of French interests in Venezuela was entrusted to the 
 German sloop-of-war Falke. The Falke informed the Suchet, on 
 her return to Carupano, that the Venezuelan Government had 
 arrested seven French merchants with the object of forcing 
 them to pay for a second time some customs duties which they 
 had already paid to the revolutionists while the latter were in 
 conflict with the government. 
 
 The commander of the Suchet demanded that the merchants 
 be released, but this was refused. Thereupon, observing that 
 the Venezuelan gunboat Restaurador was about to leave the har- 
 bor, the commander of the Suchet ordered it to stand by, and 
 sent an officer to her captain to advise the government to liberate 
 the prisoners. All this time the Venezuelan gunboat was com- 
 manded by the guns of the Suchet. The captain of the Restau- 
 rador protested to his government against the violence to which 
 he was subjected and asked instructions from President Castro, 
 but received no reply. An hour later the seven Frenchmen 
 were released. 
 
 (Translation : Revue Generate de Droit International Public [1902], 
 vol. rx, p. 628.) 
 
 (d) Withdrawal of diplomatic representatives 
 
 THE UNITED STATES AND VENEZUELA (1908) 
 
 AFTER presenting several notes in which claims against Vene- 
 zuela were urgently pressed and a reference to arbitration was 
 demanded, Minister Russell in a dispatch of February 29, 1908, 
 made the following report to the Secretary of State: 
 
 "AMERICAN LEGATION, 
 "Willemstad (February 29). 
 " (Received Mar. 3, 1908 1.40 p. m. 
 
 "The Venezuelan Government answered to-day my note, sent 
 in accordance with your cable instructions i9th. 
 " Minister for Foreign Affairs states that Venezuela refrains from
 
 THE UNITED STATES AND VENEZUELA 109 
 
 considering for the present the question of arbitration, because I 
 have not as yet refuted the arguments in notes July 9 and Septem- 
 ber 20, in which notes Venezuela plainly stated grounds for refus- 
 ing to arbitrate. Note concludes as follows: 
 
 "'Consequently, as the cases referred to cannot be consid- 
 ered as being comprised among those which call for diplomatic 
 action, the Government of Venezuela would view it with 
 satisfaction if the Government of the United States would 
 consider this question as closed, the parties interested always 
 having the right of recourse to the tribunals of justice of the 
 Republic should they deem fit.' 
 
 "RUSSELL." 
 
 Acting under instructions received from Secretary Root, Charge 
 Sleeper presented to the Venezuelan Minister for Foreign Affairs 
 the following note: 
 
 "AMERICAN LEGATION, 
 " Caracas, June 20, 1908. 
 
 "Mr. Minister: Acting under instructions from my government, 
 it devolves upon me to inform your excellency that in view of the 
 persistent refusal of the present Government of Venezuela to give 
 redress for the governmental action by which all American interests 
 in this country have been destroyed or confiscated, or to submit the 
 claims of American citizens for such redress to arbitration, and in 
 view of the tone and character of the communications received 
 from the Venezuelan Government, the Government of the United 
 States is forced to the conclusion that the further presence in Cara- 
 cas of diplomatic representatives of the United States subserves no 
 useful purpose and has determined to close its legation in this 
 capital and to place its interests, property, and archives in Vene- 
 zuela in the hands of the representative of Brazil, which country 
 has kindly consented to take charge thereof. 
 
 "Pursuant to the aforesaid instructions I shall intrust the ar- 
 chives and property of the legation to the care of Mr. Luis de 
 Lorena Ferreira, and shall proceed to Puerto Cabello and embark 
 on the U.S.S. Marietta, which should arrive at the said port at 
 any moment. 
 
 "I therefore respectfully apply for my passports, and request
 
 1 10 COERCIVE MEASURES SHORT OF WAR 
 
 that I be given safe conduct to my port of departure and until em- 
 barkation on the Marietta. 
 "I avail, etc., JACOB SLEEPER." 
 
 To this note the Venezuelan Government made the following 
 reply: 
 
 "UNITED STATES OF VENEZUELA, 
 "MINISTER OF FOREIGN AFFAIRS, 
 
 "Caracas, June 20, 1908. 
 
 "Sir: If the grounds which you set forth in your note of this 
 date are those on which President Roosevelt persists in seeking 
 reparation for American interests or individuals, which are want- 
 ing in all reason and right; if this persistence arrives at the point 
 of wishing that matters again be submitted to arbitration, which 
 upon the request of the United States Government were already 
 definitely decided by a tribunal of arbiters, wherein said govern- 
 ment was duly represented, a pretension which is equivalent to 
 contradicting itself and protesting against its own acts; and if, 
 lastly, the tone and character of our clear and precise arguments 
 have not been pleasing to President Roosevelt, it is not in any way 
 the fault of the Venezuelan Government if, obliged to fulfill its 
 duty, it does not permit that there be taken away and impaired 
 the rights of the nation, free, independent, and sovereign. This 
 attitude can be a motive of congratulation for governments truly 
 friendly with Venezuela, because therein are joined the rights and 
 prerogatives of a whole continent. 
 
 "It was upon these very worthy considerations that the Govern- 
 ment of Venezuela, in its note of February 29 of the present year, 
 informed the American Minister, hi reply to his communication of 
 the 22d of the same month, that his government not having pre- 
 sented any argument which would make its opinion prevail, and 
 the case not being one calling for diplomatic action, the Govern- 
 ment of Venezuela would view it with satisfaction if President 
 Roosevelt would desist from his contentions in order that the Amer- 
 ican claimants should appeal to the tribunals of the Republic with 
 the submission they owe to its laws to defend the rights which they 
 might consider injured, since those laws, to which every foreigner 
 in the country is subjected, are not to be broken, thereby permit-
 
 THE UNITED STATES AND VENUEZELA III 
 
 ting that there be substituted for this legal procedure, per saltum, 
 a diplomatic action. 
 
 "All this is to be regretted on account of the hereinbefore-men- 
 tioned reasons. 
 
 "To-day it is the turn of the people of each country to judge of 
 what has happened, in the light of reason and impartial justice, 
 and from what their mutual interests and advantages advise, and 
 later of the sovereign bodies, representatives of those peoples, 
 upon whom it devolves in each country to take cognizance of and 
 decide the case in the last resort. 
 
 "As it is your honor's government which has placed an end to 
 your diplomatic functions in this country and as the Government 
 of Venezuela has no cause for complaint respecting you personally, 
 this Government will preserve you in the enjoyment of your diplo- 
 matic immunities and prerogatives until your embarkation in 
 Puerto Cabello on the steamer Marietta. Not only for the reason 
 above mentioned, that it is not the Government of Venezuela 
 which bids you leave, but also as our actual situation with the 
 United States is not that of war, in which case it would be proper 
 to issue a safe-conduct to the diplomatic agent crossing the terri- 
 tory, my government does not consider it necessary or fitting to 
 send it to you for your journey to Puerto Cabello, passing as you 
 do through civilized and cultured towns which know how to respect 
 those prerogatives and immunities. I take this occasion to remind 
 your honor that important members of the American Legation 
 and tourists come to this country for scientific purposes, and 
 recommended to the aforesaid legation, have traveled over a great 
 part of the territory of the Republic, manifesting their satisfaction 
 to all the authorities along the way for the attentions, facilities, 
 and personal security of which they were the object ; and it would 
 be very laudable on your part on your arrival in the United States 
 to so inform your government, so that, as a tribute to truth, the 
 American people may know how foreigners are treated and con- 
 sidered in Venezuela who, by their loyal and correct conduct, 
 make themselves worthy of esteem. 
 
 "My government has made a note of the fact that, by orders 
 of your government, the interests, property, and archives of the 
 legation in Caracas have been placed in the hands of the Brazilian 
 Charg6 d'Affaires.
 
 112 COERCIVE MEASURES SHORT OF WAR 
 
 "I close by expressing to you, in the name of my government, 
 the most cordial wishes for your pleasant journey, and I avail 
 myself of the opportunity to renew to you the assurances of my 
 distinguished consideration. 
 
 " J. DE J. PAUL." 
 
 Thereupon Charge Sleeper placed in the hands of the Brazilian 
 representative the interests, property, and archives of the Ameri- 
 can Legation and made the following notification to the American 
 Consuls in Venezuela: 
 
 "AMERICAN LEGATION, 
 " Caracas, June 20, 1908. 
 
 "Sir: I have the honor to inform you that the Government of the 
 United States has decided to close its legation in Caracas and to 
 place its interests, property, and archives in Venezuela in the hands 
 of the representative of Brazil. 
 
 "Matters of a nature calling for diplomatic intervention should 
 be referred therefore to the Brazilian Minister here, Mr. Luiz de 
 Lorena Ferreira. 
 
 "No instructions have been received varying the position or ac- 
 tion of consuls. 
 
 "Very respectfully, JACOB SLEEPER." 
 
 (Extracted and condensed from Foreign Relations of the United 
 States, 1908, pp. 774-830.) 
 
 (e) Collective intervention 
 
 COLLECTIVE INTERVENTION OF THE POWERS IN 
 CHINA (1900-01) 
 
 AFTER the Allies had rescued the legations at Peking, and had 
 once more established order, on December 22, 1900, the diplo- 
 matic representatives of the powers at Peking addressed to the 
 Chinese Government the following joint note: 
 
 "During the months of May, June, July, and August of the 
 present year, serious disturbances broke out in the northern prov-
 
 INTERVENTION OF THE POWERS IN CHINA 113 
 
 inces of China, and crimes unprecedented in human history, 
 crimes against the law of nations, against the laws of humanity 
 and against civilization, were committed under peculiarly odious 
 circumstances. The principal of these crimes were the following: 
 
 "i. On the 2oth of June, His Excellency Baron von Ketteler, 
 German Minister, proceeding to the Tsung-li Yamen, was mur- 
 dered while in the exercise of his official duties by soldiers of the 
 regular army acting under orders of their chiefs. 
 
 "2. The same day the foreign legations were attacked and be- 
 sieged. These attacks continued without intermission until the 
 i4th of August, on which date the arrival of foreign troops put an 
 end to them. These attacks were made by regular troops who joined 
 the Boxers and who obeyed orders of the court, emanating from 
 the Imperial Palace. At the same time the Chinese Government 
 officially declared by its representatives abroad that it guaranteed 
 the security of the legations. 
 
 "3. The nth of June, Mr. Sugiyama, chancellor of the legation 
 of Japan, in the discharge of an official mission, was killed by reg- 
 ulars at the gates of the city. At Peking and in several provinces 
 foreigners were murdered, tortured, or attacked by Boxers and 
 regular troops, and only owed their safety to their determined re- 
 sistance. Their establishments were pillaged and destroyed. 
 
 "4. Foreign cemeteries, at Peking especially, were desecrated, 
 the graves opened, the remains scattered abroad. 
 
 "These events led the foreign powers to send their troops to 
 China in order to protect the lives of their representatives and 
 their nationals, and to restore order. During their march to Peking 
 the allied forces met with the resistance of the Chinese armies, 
 and had to overcome it by force. China having recognized her re- 
 sponsibility, expressed her regrets, and manifested the desire to 
 see an end put to the situation created by the disturbances re- 
 ferred to, the powers have decided to accede to her request on the 
 irrevocable conditions enumerated below, which they deem indis- 
 pensable to expiate the crimes committed and to prevent their 
 recurrence: 
 
 "I. (A) Dispatch to Berlin of an extraordinary mission, headed 
 by an Imperial Prince, to express the regrets of His Majesty the 
 Emperor of China and of the Chinese Government, for the
 
 114 COERCIVE MEASURES SHORT OF WAR 
 
 murder of His Excellency, the late Baron von Ketteler, German 
 Minister. 
 
 " (B) Erection on the place where the murder was committed 
 of a commemorative monument suitable to the rank of the de- 
 ceased, bearing an inscription in the Latin, German, and Chinese 
 languages, expressing the regrets of the Emperor of China for the 
 murder. 
 
 "II. (A) The severest punishment in proportion to their crimes 
 for the persons designated in the Imperial decree of September 25, 
 1900, and for those whom the representatives of the powers shall 
 subsequently designate. 
 
 " (B) Suspension of all official examinations for five years in all 
 the towns where foreigners have been massacred or have been sub- 
 jected to cruel treatment. 
 
 "III. Honorable reparation shall be made by the Chinese Gov- 
 ernment to the Japanese Government for the murder of Mr. 
 Sugiyama, chancellor of the Japanese Legation. 
 
 "IV. An expiatory monument shall be erected by the Imperial 
 Chinese Government in each of the foreign or international ceme- 
 teries which have been desecrated, and in which the graves have 
 been destroyed. 
 
 "V. Maintenance, under conditions to be settled between the 
 powers, of the prohibition of the importation of arms, as well as 
 of material used exclusively for the manufacturing of arms and 
 ammunition. 
 
 "VI. Equitable indemnities for governments, societies, com- 
 panies, and private individuals, as well as for Chinese who have 
 suffered during the late events in person or in property in conse- 
 quence of their being in the service of foreigners. China shall adopt 
 financial measures acceptable to the powers for the purpose of 
 guaranteeing the payment of said indemnities and the interest 
 and amortization of the loans. 
 
 "VII. Right for each power to maintain a permanent guard 
 for its legation and to put the legation quarter in a defensible 
 condition. Chinese shall not have the right to reside in this 
 quarter. 
 
 "VIII. The Taku and other forts which might impede free com- 
 munication between Peking and the sea shall be razed.
 
 INTERVENTION OF THE POWERS IN CHINA 115 
 
 "IX. Right of military occupation of certain points, to be de- 
 termined by an understanding between the powers, for keeping 
 open communication between the capital and the sea. 
 
 "X. (A) The Chinese Government shall cause to be published 
 during two years in all subpref ectures an Imperial decree embody- 
 ing 
 
 "Perpetual prohibition, under pain of death, of membership in 
 any anti-foreign society. 
 
 "Enumeration of the punishments which shall have been in- 
 flicted on the guilty, together with the suspension of all official 
 examinations hi the towns where foreigners have been murdered 
 or have been subjected to cruel treatment. 
 
 " (B) An Imperial decree shall be issued and published every- 
 where in the Empire, declaring that all governors-general, gover- 
 nors, and provincial or local officials shall be responsible for order 
 in their respective jurisdictions, and that whenever fresh anti- 
 foreign disturbances or any other treaty infractions occur, which 
 are not forthwith suppressed and the guilty persons punished, they, 
 the said officials, shall be immediately removed and forever pro- 
 hibited from holding any office or honors. 
 
 "XI. The Chinese Government will [shall] undertake to nego- 
 tiate the amendments to the treaties of commerce and navigation 
 considered useful by the powers and upon other subjects con- 
 nected with commercial relations with the object of facilitating 
 them. 
 
 "XII. The Chinese Government shall undertake to reform the 
 Office of Foreign Affairs, and to modify the court ceremonial rela- 
 tive to the reception of foreign representatives in the manner 
 which the powers shall indicate. 
 
 "Until the Chinese Government have complied with the above 
 to the satisfaction of the powers, the undersigned can hold out no 
 expectation that the occupation of Peking and the province of 
 Chihli by the general forces can be brought to a conclusion. 
 
 "PEKING, December 22, 1900. 
 
 "For Germany: A. Mr MM. 
 
 "For Austria-Hungary: M. CZIKANN. 
 
 "For Belgium: JOOSTENS.
 
 Il6 COERCIVE MEASURES SHORT OF WAR 
 
 "For Spain: B. F. DE COLOGAN. 
 "For United States of America: E. H. CONGER. 
 
 "For France: S. PICHON. 
 
 "For Great Britain: ERNEST SATOW. 
 
 "For Italy: SALVAGO RAGGI. 
 
 "For Japan: T. NISSI. 
 
 "For Netherlands: F. M. KNOBEL. 
 
 "For Russia: MICHEL DE GIERS." 
 
 The Chinese plenipotentiaries designated to treat with the rep- 
 resentatives of the powers replied on January 1 6, 1901, as follows: 
 
 [Translation] 
 
 "Under date of December 24, 1900, the plenipotentiaries of 
 Germany, Austria-Hungary, Belgium, Spain, the United States, 
 France, Great Britain, Italy, Japan, the Netherlands, and Russia, 
 have sent us the following note: 
 
 [The joint note is here quoted textually and in its entirety.] 
 "We hastened to transmit the full text of this note to His Maj- 
 esty the Emperor, who, having taken cognizance of it, rendered 
 the following decree: 
 
 "'We have taken cognizance of the whole of the telegram 
 of Yi Kuang [Prince Ching] and Li Hung-chang. It behooves 
 us to accept, in their entirety, the twelve articles which they 
 have submitted to us.' 
 
 "Consequently, we, Ching, Prince of the first rank, Plenipo- 
 tentiary, President of the Council of Foreign Affairs, and Li, Earl 
 of the first rank, Su-yi, Plenipotentiary, Tutor to the Heir Ap- 
 parent, Grand Secretary of the Wen-hua Tien Throne Hall, Min- 
 ister of Commerce, Superintendent of trade for the northern ports, 
 Governor-General of Chihli, 
 
 "Declare that we accept in their entirety the twelve articles 
 which we have been requested to insure the transmission of to 
 His Majesty the Emperor. 
 
 "In witness of which we have signed the present protocol and 
 we transmit to the foreign plenipotentiaries a copy of the edict of 
 His Majesty the Emperor, bearing the imperial seal.
 
 THE RETURN OF THE CHINESE INDEMNITY 117 
 
 "It is understood that in case of disagreement the French text 
 shall be authoritative. 
 " PEKING, 16 January, igoi. 
 
 " (Signed) Yi KUANG 
 
 "(Prince Ching). 
 "[L. S.] Li." 
 
 After several months of negotiation in regard to the provisions 
 for the carrying out of the terms of the joint note, an agreement 
 was at last reached and included in the peace protocol signed Sep- 
 tember 7, 1901, by representatives of China and the powers. After 
 the completion of the detailed enumeration of the conditions im- 
 posed upon China, the peace protocol concludes as follows: 
 
 "The Chinese Government having thus complied to the satis- 
 faction of the powers with the conditions laid down hi the above- 
 mentioned note on December 22, 1900 [the joint note], the powers 
 have agreed to accede to the wish of China to terminate the situ- 
 ation created by the disorders of the summer of 1900. In conse- 
 quence thereof the foreign plenipotentiaries are authorized to de- 
 clare in the names of their governments that, with the exception 
 of the legation guards mentioned in article vn, the international 
 troops will completely evacuate the city of Peking on the lyth 
 September, 1901 , and, with the exception of the localities mentioned 
 in Article DC, will withdraw from the province of Chihli on the 22d 
 of September. 
 
 "The present final protocol has been drawn up in twelve iden- 
 tic copies and signed by all the plenipotentiaries of the con- 
 tracting countries. One copy shall be given to each of the foreign 
 plenipotentiaries, and one copy shall be given to the Chinese 
 plenipotentiaries. ' ' 
 
 (Foreign Relations of the United States, ipoo, pp. 244-45; 
 Clements: The Boxer Rebellion [New York, 1915], Appendix n, 
 in.) 
 
 THE RETURN OF THE CHINESE INDEMNITY (1907) 
 
 BY article 6 of the peace protocol signed September 7, 1901, de- 
 nning the amount and method of payment of the indemnity re-
 
 Il8 COERCIVE MEASURES SHORT OF WAR 
 
 quired by the powers of China, China was obligated to pay the 
 powers an indemnity of four hundred and fifty millions of Haikwan 
 taels, which was stated to represent "the total amount of the in- 
 demnities for states, companies, or societies, private individuals, 
 and Chinese referred to in article 6 of the note of December 22, 
 1900." 
 
 On June 15, 1907, the Secretary of State addressed the following 
 note to the Chinese Minister at Washington: 
 
 11 Sir: After the rescue of the foreign legations in Peking during 
 the Boxer troubles of 1900, the note of the powers to China pre- 
 scribing the conditions upon which the occupation of Peking and 
 the Province of Chihli would be ended, dated December 22, 1900, 
 required in its sixth article the payment of 'equitable indemnities 
 for governments, societies, companies, and private individuals, 
 as well as for Chinese who have suffered during the late events in 
 person or in property in consequence of their being in the service of 
 foreigners.' 
 
 "The final protocol under which the troops were withdrawn, 
 signed at Peking, September 7, 1901, fixed the amount of this in- 
 demnity at 450,000,000 Haikwan taels, equivalent in round 
 numbers to $333,000,000 United States gold. China agreed to 
 pay this sum, with interest at 4 per cent per annum, by install- 
 ments running through a period of thirty-nine years. 
 
 "The share of this indemnity allotted to the United States was 
 $24,440,778.81, and on account of the principal and interest of 
 that sum China has paid to the United States, down to and in- 
 cluding the ist day of June, 1907, the sum of $6,010,931.91. 
 
 "It was from the first the intention of this government at the 
 proper time, when all claims should have been presented and all 
 expenses should have been ascertained as fully as possible, to revise 
 the estimate and account against which these payments were to 
 be made, and, as proof of sincere friendship for China, to volun- 
 tarily release that country from its legal liability for all payments 
 in excess of the sum which should prove to be necessary for actual 
 indemnity to the United States and its citizens. 
 
 "Such a revision has now been made by the different executive 
 departments concerned, and I am authorized by the President to 
 say that, in pursuance of that revision, at the next session of the
 
 THE BOMBARDMENT OF GREYTOWN 119 
 
 Congress he will ask for authority to reform the agreement with 
 China under which the indemnity is fixed by remitting and can- 
 celing the obligation of China for the payment of all that part of 
 the stipulated indemnity which is in excess of the sum of $11,655,- 
 492.69 and interest at the stipulated rate. 
 
 "Accept, Mr. Minister, etc., ELTHU ROOT." 
 
 The Chinese Minister in acknowledgment expressed the grate- 
 ful thanks of his government "for this signal act of generosity 
 shown by the United States toward China, which cannot fail to 
 bind the two countries into closer and more friendly relations, and 
 which affords another conspicuous proof of the high sense of jus- 
 tice that has always actuated the Government of the United 
 States in its intercourse with China." 
 
 On June 27, the Chinese Minister at Washington handed to the 
 President personally a copy of the following telegram received 
 from the Wai-wu Pu: "Your telegraphic report on the remission 
 of the indemnity having been laid before the Emperor, you are 
 commanded to convey to the President of the United States His 
 Majesty's warm thanks for this noble exhibition of his friendship 
 toward China, which is deeply and gratefully appreciated, by 
 having alone taken the lead hi a matter of international justice." 
 
 (Foreign Relations of the United States, 1907, pp. 174-76; 
 Clements: Tlie Boxer Rebellion, Appendix in.) 
 
 (/) "Use of force 
 
 THE BOMBARDMENT OF GREYTOWN (1854) 
 
 GREYTOWN, a community then lying outside the acknowledged 
 boundaries of Nicaragua, in what was known as the Mosquito 
 Coast, maintained an independent existence under the authority of 
 the Mosquito King, who was understood to enjoy the patronage 
 of the British Government. As the result of a controversy with 
 Nicaragua concerning limits, which involved the question of juris- 
 diction over Punta Arenas, property belonging to the Accessory 
 Transit Company, an organization of American citizens holding
 
 120 COERCIVE MEASURES SHORT OF WAR 
 
 a charter from Nicaragua, was on various occasions seized or de- 
 stroyed at that point by the Greytown authorities, and for these 
 acts damages were demanded. There was, however, another com- 
 plaint which was supposed to affect the "dignity" of the United 
 States. At that time the United States was represented in Central 
 America by a minister named Solon Borland, from Arkansas, a 
 man of spirit who had served in the Mexican War. One day the 
 Greytown authorities attempted to arrest the captain of an Ac- 
 cessory Transit steamer, then lying at Punta Arenas, when Mr. 
 Borland happened to be aboard. The captain resisted, and, in the 
 scrimmage that ensued, Mr. Borland seized a musket and gave to 
 the captain successful support. Great excitement ensued at Grey- 
 town; and it was presently fanned to a flame by the announcement 
 that Mr. Borland intended to call upon the resident United States 
 commercial agent in the evening. A suggestion from the latter 
 that this visit be considerately omitted, Mr. Borland, his blood 
 still up, scornfully rejected; and, while he was in the agent's house, 
 a violent commotion in the street denoted the presence of a mob. 
 Mr. Borland, nothing daunted, promptly appeared in the gallery 
 and warned the tumultuous assemblage to disperse. But his ora- 
 tory was suddenly checked by a blow in the face from a bottle, 
 thrown by some one in the crowd, who, after draining from the 
 flask the last inspiring drop, used it as a missile. For the redress 
 of these accumulated grievances Captain Hollins, of the U.S.S. 
 Cyane, was dispatched to Greytown. Lacking specific instructions 
 as to procedure, he made upon the local community demands which 
 it was either unwilling, or unable, or without adequate oppor- 
 tunity to meet, and, the time limit having expired, first bom- 
 barded and then burned the town, utterly destroying it. This 
 somewhat fierce and drastic punitive measure created a sensation 
 throughout the civilized world. I have in my collections a pam- 
 phlet on the case, published in France, on the cover of which is 
 an arm uplifted hi vengeance and bearing an incendiary torch. 
 
 At the time when Greytown was destroyed, numerous foreigners 
 were residing there, including some of British and some of French 
 allegiance. Claims in behalf of the latter were promptly presented 
 to the United States by the French Government on the ground that 
 the destruction of the place was unlawful and unjustified. Marcy,
 
 THE CAROLINE ANDsTHE McLEOD CASES 121 
 
 in his response, maintained that, as the claimants had settled in 
 Greytown, they must be regarded as having committed them- 
 selves to its protection, so that, for any injuries they had suffered, 
 they must look for redress to that community, and not to the 
 United States or to any other country with which the local govern- 
 ment had happened to fall into difficulty. The argument was mar- 
 shaled with such crushing force that Lord Palmerston announced 
 in Parliament that Great Britain would not present the claims of 
 her subjects to the United States. The French claims were aban- 
 doned. I have reason to believe that Marcy himself considered 
 his note in this case to be on the whole the most finished of all 
 his diplomatic papers. 
 
 (Extract from article by J. B. Moore in Political Science 
 Quarterly, vol. xxx [1915], pp. 390-92.) 
 
 14. SELF-HELP 
 
 THE CAROLINE AND THE McLEOD CASES (1837-42) 
 
 IN 1837 there occurred in Canada a rebellion which for a time 
 endangered the good neighborhood of the border. Some of the 
 defeated rebels fled to the United States, where they continued 
 to promote their cause by appealing to American sympathy and 
 enlisting recruits. In spite of measures taken by the officials of the 
 United States to prevent violation of the neutrality laws, an ex- 
 pedition organized at Buffalo crossed the Niagara River and en- 
 camped at Navy Island on the Canadian side. Communication 
 with the United States was maintained by the Caroline, a small 
 steamer in the employ of the insurrectionists, and their numbers 
 grew until, toward the end of December, 1837, there were re- 
 ported to be a thousand men. On the 29th of December the Caro- 
 line, after making several trips to Navy Island, moored for the 
 night at Schlosser, New York. At midnight, a body of armed 
 men, about eighty in number, boarded the steamer, attacked the 
 "passengers" and crew, set her on fire and sent her over Niagara 
 Falls. In the course of the attack, one of the persons on board, an 
 American citizen, was killed.
 
 122 SELF-HELP 
 
 As soon as he was informed of the incident, Mr. Forsyth, Sec- 
 retary of State, made diplomatic representation in a note to the 
 British Minister at Washington, who, in a communication of 
 February 6, acknowledged that the force which had destroyed 
 the Caroline had acted under the instructions of the British au- 
 thorities in Canada, but justified its action on the ground that 
 there was no serious attempt to enforce neutrality on the border 
 and that the destruction of the steamer was, in the strictest sense, 
 an act of self-defense. The Government of the United States fol- 
 lowed up its protest with a demand for reparation, which Lord 
 Palmerston promised to consider; Nothing further was done, 
 however, for over two years, until the arrest in New York State 
 of one, McLeod, charged with murder as one of the participants 
 in the Caroline affair, brought the matter to an issue. Lord Pal- 
 merston, admitting the responsibility of the British Government, 
 maintained that the circumstances conformed fully to the con- 
 ditions as laid down by Mr. Webster in his note to the British 
 Minister, namely, that there had been "a necessity of self-defense, 
 instant, overwhehning, leaving no choice of means, and no mo- 
 ment for deliberation," and that the act was "limited by that 
 necessity and kept clearly within it." 1 The Government of the 
 United States, on the contrary, while admitting that necessity of 
 self-defense justifies exceptional measures, refused to admit that 
 such necessity had been present in the Caroline affair. It was with 
 this difference of opinion still subsisting that the negotiators of 
 the Webster-Ashburton Treaty agreed to drop all further con- 
 sideration of the case, Lord Ashburton expressing regret that 
 there had been "in the hurried execution of the necessary service 
 a violation of territory," Mr. Webster at the same time giving 
 assurances that the President would make the subject, "as a 
 complaint of violation of territory, the topic of no further discus- 
 sion between the two governments." 
 
 The McLeod case grew out of the Caroline affair, as has been 
 stated above, and involved the important question of responsi- 
 bility for acts of state. Alexander McLeod, a British subject resi- 
 dent in Canada, was arrested in November, 1840, at Lewiston, in 
 
 1 Mr. Webster to Mr. Fox, British Minister at Washington, April 24, 1841. 
 (Webster's Works, vol. vi, p. 261.)
 
 THE CAROLINE AND THE McLEOD CASES 123 
 
 the State of New York, charged with the murder of Amos Durfee, 
 who lost his life in the destruction of the Caroline. The British 
 Minister at Washington at once avowed the attack upon the 
 Caroline as a national act for which no person acting under orders 
 could be held responsible; it was "a transaction of a public char- 
 acter, planned and executed by persons duly empowered by Her 
 Majesty's colonial authorities to take any steps and to do any acts 
 which might be necessary for the defense of Her Majesty's sub- 
 jects, and that they were not personally and individually answer- 
 able to the laws and tribunals of any foreign country." Hence it 
 was solely a matter between the two governments, and McLeod's 
 release was requested. Mr. Webster, on this presentation of the 
 case, promptly admitted that the adoption of the act as its own 
 by the British Government removed all personal liability; "in- 
 dividuals concerned in it ought not, by the principles of public 
 law and the general usage of civilized states, to be holden per- 
 sonally responsible in the ordinary tribunals of law for their par- 
 ticipation in it." But the Government of the United States was 
 unable to secure his immediate release. The New York courts 
 asserted their right to go on with the proceedings and McLeod 
 came up in due time for trial, but was acquitted on proof of an 
 alibi. 
 
 To prevent a recurrence of this conflict of authority, Congress 
 adopted an act, August 29, 1842, whereby the federal courts are 
 empowered to have jurisdiction over aliens claiming immunity 
 for acts done under authority of their state, "the validity and 
 effect whereof depend upon the law of nations." 
 
 It may be added that McLeod afterwards made his arrest and 
 trial the subject of a claim against the United States, which claim 
 came before the commission under the convention of February 8, 
 1853. It was rejected by the umpire on the ground of resjudicata, 
 the whole question having been finally settled by Webster and 
 Ashburton in 1842. 
 
 (Messages and Executive Documents [1838-43], passim; Moore: 
 Digest of International Law, vol. n, pp. 409-14; Moore: Inter- 
 national Arbitrations, vol. m, pp. 2419-28; The Works of Daniel 
 Webster, vol. v, pp. 116-39; vol. vi, pp. 247-69, 292-303.)
 
 124 SELF-HELP 
 
 AMERICAN NAVAL OFFICERS SENT TO AID 
 MISSIONARIES IN TURKEY (1895) 
 
 EARLY in 1895 reports were received that American missionaries 
 at Marash, Hadjin, Aintab, and Orfa apprehended a massacre, 
 and that a hostile feeling toward them existed at Erzerum, Van, 
 and Bitlis. On the demand of the legation of the United States at 
 Constantinople, the Porte, while denying the existence of the 
 rumored danger, sent telegraphic orders to the civil and military 
 functionaries in Asia Minor, enjoining upon them the protection 
 of Americans and their property. Besides, the U.S.S. Marblehead 
 was ordered from Gibraltar to Beirut, and the U.S.S. San Fran- 
 cisco, with Rear-Admiral Kirkland, commander in chief of the 
 European station, from Palermo to Smyrna, Alexandretta, and 
 Adana, under instructions to ascertain, by conference with the 
 United States Consuls and resident American citizens in the 
 places mentioned, what foundation existed for the alarming ap- 
 prehensions expressed in regard to the massacre of Christians in 
 Turkey, and, in case sufficient ground should be found for such 
 anxiety, to intimate to the responsible authorities of the Govern- 
 ment of Turkey that it was the intention of the United States to 
 afford full protection to its citizens who were peaceably residing 
 in that part of the world under the guarantee of treaties. The 
 visit of the ships bore a friendly character. Admiral Kirkland re- 
 ported that no information could be obtained of any outrages on 
 American citizens, and that his reception was everywhere most 
 courteous. 
 
 Mr. Olney, Secretary of State, reported to the President De- 
 cember 19, 1895: 
 
 "The number of citizens of the United States resident in the 
 Turkish Empire is not accurately known. According to latest 
 advices, there are 172 American missionaries, dependents of 
 various mission boards in the United States, scattered over Asia 
 Minor. There are also numbers of our citizens engaged in business 
 or practicing professions in different parts of the Empire. Besides 
 these, more or less persons, originally subjects of Turkey and since 
 naturalized in the United States, have returned to the country 
 of their birth and are temporarily residing there. The whole
 
 NAVAL OFFICERS SENT TO AID MISSIONARIES 125 
 
 number of persons comprising these several classes cannot be ac- 
 curately estimated, but, the families of such citizens being con- 
 sidered, can hardly be less than five or six hundred, and may 
 possibly exceed that total. 
 
 "Outside of the capital and a few commercial seaport towns, the 
 bulk of this large American element is found in the ulterior of 
 Asia Minor and Syria, remote from the few consular establish- 
 ments maintained by this government in that quarter, inaccessi- 
 ble except by difficult journeys, and isolated from each other by 
 the broken character of the mountain country and the absence of 
 roads. Under these circumstances and in the midst of the alarm- 
 ing agitation which for more than a year past has existed in Asia 
 Minor, it has been no slight task for the representative of the 
 United States to follow the interests of those whose defense neces- 
 sarily falls to his care, to demand and obtain the measures in- 
 dispensable to their safety, and to act instantly upon every appeal 
 for help in view of real or apprehended peril. It is, however, grati- 
 fying to bear testimony to the energy and promptness of the 
 minister in dealing with every grievance brought to his notice, 
 and his foresight in anticipating complaints and securing timely 
 protection in advance of actual need. The efforts of the minister 
 have had the moral support of the presence of naval vessels of 
 the United States on the Syrian and Adanan coasts from time to 
 time as occasion required, and at the present time the San Fran- 
 cisco and Marblehead are about to be joined by the Minneapolis, 
 which has lately been ordered to the eastern waters of the Mediter- 
 ranean, the squadron being under the command of Rear-Admiral 
 Selfridge, an officer whose record indicates the necessary dis- 
 cretion in dealing with whatever emergencies may arise." 
 
 (Extract from Moore: Digest of International Law, vol. vi, pp. 
 342-43-)
 
 CHAPTER III 
 
 TREATIES AND OTHER INTERNATIONAL 
 AGREEMENTS 
 
 15. FORMATION OF TREATIES 
 
 WHEN governments find it possible to reach an agreement for 
 the settlement of some troublesome difficulty or to regulate for 
 the future some matter of sufficient importance, the understand- 
 ing entered into must be observed with all good faith by each of 
 the parties. Since in the course of time lapses of memory and other 
 influences may, in the case of one or the other of the parties, ob- 
 scure the nature of his promise, the experience of nations and their 
 widest practice have shown the advantage of celebrating treaties 
 to express the common intention the meeting of the minds 
 of the parties concerned. The law of treaties is nothing but a 
 series of provisions recognized as suitable for discovering this 
 common intention or understanding applicable to the conditions 
 which arise. 
 
 The method followed in the negotiation of such treaties con- 
 sists in the appointment of agents of the government, authorized 
 by an instrument called "full powers," to enter into discussions 
 with agents of the other government similarly provided. The 
 "full powers" limit the scope of the proposed treaty. After the 
 plenipotentiaries have submitted their "full powers" one to the 
 other, they are ready to enter upon the discussions, the results 
 of which are drawn up in a series of articles. The separate copies 
 are carefully compared and then transmitted to the governments 
 concerned. If the work of the negotiators has been faithfully 
 performed and if no controlling motive interferes, the appropriate 
 authorities of each government will ratify the acts of its agents, 
 whereby the treaty becomes recognized as a binding obligation
 
 PERPETUAL LEASES IN JAPAN 127 
 
 upon the whole state through the action of the government au- 
 thorized to represent it in international affairs. Due and formal 
 notice of ratification is afforded by a subsequent exchange of 
 ratifications by agents delegated for that purpose at a time and 
 place usually provided for in the treaty itself. 
 
 (Cf. Gaillard Hunt: The Department of State of the United 
 States [New Haven, 1914], p. 400). 
 
 16. INTERPRETATION AND APPLICATION OF TREATIES 
 
 VESTED RIGHTS IN THE CANAL ZONE (1913) 
 
 THE Joint International Commission on Panama Claims 1 
 adopted a rule dated August 4, 1913, to the effect that "in all 
 matters affecting the rights of private parties, the treaty between 
 the United States of America and the Republic of Panama is to 
 be referred to as of the date of the exchange of ratifications, to 
 wit, February 26, 1904." 
 
 (American Journal of International Law [1914], vol. vm, p. 741.) 
 
 PERPETUAL LEASES IN JAPAN 
 
 The Permanent Court of Arbitration at The Hague, 
 
 THE early relations of Japan with Western nations were upon 
 the basis of extraterritoriality. In order to accommodate foreign 
 settlement and to facilitate urban development, it was usually 
 stipulated in the various treaties that Japan would grant to resi- 
 dent aliens the right to hold land in certain localities for building 
 purposes on leases in perpetuity. The lots of land thus set aside 
 were specified in the leases, and the only assessment that they 
 had to bear was an annual ground rent paid to the Japanese 
 Government in lieu of all municipal charges. The ultimate own- 
 ership of the land, however, was reserved to- the state. 
 
 As the purpose of the leases was the development of commerce, 
 the lessees erected warehouses and residences upon their hold- 
 
 1 See p. 174 for account of the organization and competence of this commission.
 
 128 INTERPRETATION AND APPLICATION OF TREATIES 
 
 ings; in some cases the terms of the leases called for such build- 
 ings under penalty of forfeiture. There was usually no separate 
 title to the buildings, and in the transfers made under consular 
 jurisdiction they were held to pass with the land. 
 
 As Japan in the course of time conformed more and more to 
 Western standards, it was felt that the early treaties were out of 
 harmony with modern conditions. Accordingly, she took steps 
 to emancipate herself from the consular regime and to that end 
 negotiated in 1894-96 a new series of treaties with the various 
 European powers and with the United States. These revised 
 treaties were of a uniform type and provided for the complete 
 elimination of extraterritorial jurisdiction by the year 1899. 
 Among other provisions it was stipulated that the foreign settle- 
 ments were to be incorporated into the general municipal system 
 of Japan and that the funds and common property of the settle- 
 ments were to be transferred to the competent local authorities. 
 It was further provided quoting from the treaty with Great 
 Britain of July 16, 1894 that "when such incorporation takes 
 place, . . . existing leases in perpetuity under which property 
 is now held in the said settlements shall be confirmed, and no 
 conditions whatsoever other than those contained in such exist- 
 ing leases shall be imposed in respect of such property." 
 
 All the revised treaties had similar clauses, but in a note ad- 
 ditional to her treaty, Germany more exactly stipulated that 
 neither the lessee nor his successors should pay any charge upon 
 the leased lands apart from the ground rent, and that the rights 
 acquired under the treaty should continue even after its ex- 
 piration. 
 
 When the new treaties came to be applied, a difference of in- 
 terpretation immediately developed on the question of leases. 
 The Japanese Government maintained, and by its practice applied, 
 the doctrine that the buildings constructed upon the leased lands 
 were separate from them for purposes of registration and taxa- 
 tion. According to one Japanese commentator, they formed two 
 immovables, independent of each other and hence entirely sepa- 
 rate both in fact and in law. " Take for example a house. It is in 
 nature attached to the land. But the ideas of our country up to 
 the present day have regarded it as a thing independent of the
 
 PERPETUAL LEASES IN JAPAN 129 
 
 land and not as belonging to the land. Hence the question of 
 attachment to an immovable cannot here arise." The other par- 
 ties to the treaties, however, protested that a house-tax or other 
 impost upon the buildings was a violation of treaty stipulations, 
 holding them to be "part and parcel of the lands." The foreigners 
 took especial exception to certain ordinances of the Japanese 
 Government calling for the registration of the perpetual leases, 
 termed in the ordinances "superficies," and instituting, in the case 
 of transfers, a tax of 2\ per cent on the value of the buildings 
 transferred. These regulations, it was asserted, were in violation 
 of prescriptive rights and had the effect of depreciating the value 
 of the leaseholds, while the house-tax itself, though not excessive 
 in the first instance, was within the discretion of local assemblies 
 in which the foreigner had no voice, and might be levied as often 
 as deemed necessary or convenient. 
 
 Much diplomatic protest followed in the course of the years 
 1899 to 1902. The Japanese Government was firm in its conten- 
 tion that its enactments "do not have the effect of exempting the 
 buildings from the taxes and registration fees which are leviable 
 in respect to other buildings; neither do they relieve foreigners 
 from the obligation to pay income taxes in respect of incomes de- 
 rived from property held under such leases;" and it expressed in- 
 ability "to bring themselves to the conclusion that the provisions 
 of the treaties now in force exempting property held under per- 
 petual leases from taxation have the extended meaning which 
 has been claimed for them." But to settle the dispute, the Japan- 
 ese Government finally made an offer to the protesting powers to 
 arbitrate the validity of the house- tax (but not the income tax), 
 and Great Britain, France, and Germany made acceptance. The 
 United States did not become a party to the arbitration, but, by 
 an exchange of notes with Japan, it was agreed that the two gov- 
 ernments would abide by the decision rendered and that Japan 
 would "apply the principle to citizens of the United States equally 
 with the subjects and citizens of Germany, France, and Great 
 Britain." 
 
 In fulfillment of the agreement, a protocol was concluded on 
 August 28, 1902, between the three European powers on the one 
 side, and Japan on the other. The question at issue was formu-
 
 130 INTERPRETATION AND APPLICATION OF TREATIES 
 
 lated as follows: "Whether or not the provisions of the treaties 
 and other engagements . . . exempt only land held under leases 
 in perpetuity granted by or on behalf of the Japanese Govern- 
 ment, or land and buildings of whatever description, constructed 
 or which may hereafter be constructed on such land, from any 
 imposts, taxes, charges, contributions, or conditions whatsoever, 
 other than those expressly stipulated in the leases in question ? " 
 
 The tribunal was to consist of three arbitrators, members of 
 the Permanent Court of Arbitration. Failing selection of the um- 
 pire by the other members of the tribunal, the choice was vested 
 in the King of Sweden and Norway. Definite provisions were 
 made for the submission of cases, counter-cases, evidence, argu- 
 ments, and final replies, and for the general conduct of the ar- 
 bitration the Hague Convention of 1899 was to govern. 
 
 The tribunal met at The Hague on November 21, 1904, and 
 was composed of M. Renault, designated by the European powers, 
 M. Motono, the Japanese Ambassador at Paris, and the umpire, 
 M. Gram, of Norway, chosen by the other two. Four sessions 
 were held and the award was rendered May 22, 1905. 
 
 In justification of the house-tax, Japan relied upon a strict in- 
 terpretation of the treaties and the leases. It was incumbent upon 
 the foreigner to establish the exemption and it was not sufficient 
 to allege a like immunity under the old regime. Conditions were 
 not similar in the two cases. Under extraterritorial jurisdiction 
 it was notorious that the foreigner was exempt from all taxation, 
 but this privilege was withdrawn under the revised treaties which 
 established "a positive regime of equality between strangers and 
 nationals in the matter of imposts." One element in the interpre- 
 tation of the leases was the application of Japanese law, for since 
 the leases were concerned only with the thing leased land 
 and since this land was situated in Japan, the territorial law ap- 
 plied as a condition precedent to any judicial lien. Japan had not 
 repealed Japanese law for another system. Even under the old 
 treaties, it had not been superseded, but rather adapted so as to 
 square with the exceptional measures of extraterritoriality. 
 Japanese law reserved to the state the property in land, but made 
 a distinction between land and buildings, both for civil and fiscal 
 purposes. This distinction was very old, deriving from ancient
 
 PERPETUAL LEASES IN JAPAN 131 
 
 custom, which never considered buildings as forming part of the 
 land, or as accessories. In actual Japanese legislation land and 
 buildings could, separately, be burdened with real rights, and an 
 act of disposition of the one had no necessary effect upon the other. 
 Financial legislation and scientific economy everywhere recog- 
 nized two elements in national wealth the soil, the source of 
 natural production, and wealth created by artificial effort. It 
 was inequitable to transfer to the one the exemptions accorded 
 to the other. This distinction between the ownership of the soil 
 and of the buildings was not peculiar to Oriental law; it was found 
 in many legal systems, among them the French code, which even 
 recognized separate ownership in the various stories of a building. 
 The property in the land belonged to the Japanese Government, 
 but the property in the buildings belonged to holders of the 
 leases. This was seen hi the case of cancellation of leases; the land 
 reverted to the government as original owner, but the buildings 
 were not said to revert but to become the property of the Japanese 
 Government, implying that, without this forfeiture clause, title 
 to the buildings would not vest in the government. Further, 
 while leased lands, to be transferred, required the assent of con- 
 sul and governor, buildings on leased lands were constantly 
 bought and sold without any such formalities, indicating that 
 they were held independently of the leases. In some localities 
 twenty per cent of the owners of buildings were other than lease- 
 holders. The fact that the leases were given for the purpose of 
 building could work no prejudice to the sovereign right of Japan 
 to tax property outside the actual grant. The mere statement of 
 the purpose did not enlarge the scope of the grant, and a refer- 
 ence to old treaties for example, that with Great Britain in 
 1858 indicated a clear distinction on this point: British sub- 
 jects were to have the right to lease ground and to purchase the 
 buildings thereon and might erect dwellings and warehouses. 
 
 The protesting powers met these contentions by a denial that 
 Japanese law should apply to the case. The treaties and the 
 leases went outside of municipal law and themselves constituted 
 the only law applicable. Interpretation should be on the basis 
 of natural law, reason, and logic. There was no intention to go 
 beyond the assumptions of the contract, but rather to find out
 
 132 INTERPRETATION AND APPLICATION OF TREATIES 
 
 what the assumptions were. Everything incorporated insepara- 
 bly in the soil in a permanent and durable manner constituted a 
 single whole with it. It could be otherwise only by express stipu- 
 lation. Nothing could derogate from this principle of accession 
 but a right of "superficies" admitted by the lessee. That the 
 distinction contended for by Japan was not contemplated is 
 proven by the purpose of the parties, which was to build, by the 
 special arrangement agreed to by the lessor, by express mention 
 of an immovable whole (soil and buildings) as reverting to the 
 lessor or as passing in transfer, and by constant usage in disposi- 
 tions, alienations, etc. The rent payable for the leases was out of 
 all proportion to the value of the improvements to be made. It 
 the rent was a ground rent, conventional and in the lump, and 
 was the counterpart of various municipal obligations assumed by 
 the Japanese Government. It was further maintained that the 
 intention of the negotiators, in revising the treaties, was clearly 
 to treat the buildings as part of the leased lands. The Japanese 
 text indicates this by using for "property" a word signifying 
 "land and things fixed thereto." The various governments in- 
 terested had attached the same meaning to the expression, but 
 now the Japanese Government was contending for a narrow and 
 technical interpretation of the word, forgetful that the property 
 dealt with was not the mere land granted in the original leases, 
 but the property "now held in the settlements" at the time of the 
 incorporation provided for by the treaties. Under extraterritorial 
 law houses were not recorded separately from the land and this 
 was the law in force at the tune the treaties were made. As for 
 the equity hi the case, the protesting powers pointed out that only 
 the execution of a contract was at issue and that they would not 
 have consented to forego the rights acquired by former treaties 
 except for compensation. But, if a privileged position resulted, it 
 would be largely justified by the contribution that the first foreign 
 residents had made to the commercial, economic, and financial 
 prosperity of Japan. If there was inequality, it was all in favor of 
 the Japanese, who enjoyed in European countries freedom to 
 acquire outright property in immovables, though this privilege 
 was denied foreigners in Japan. 
 The tribunal, while admitting that some argument might be
 
 PERPETUAL LEASES IN JAPAN 133 
 
 adduced that soil and buildings constituted, from the fiscal point 
 of view, entirely distinct objects, was inclined to attach most 
 importance to the actual practice under the leases and to the in- 
 tention of the negotiators of the treaties. For that reason it did 
 not stop to discuss the principles invoked from the civil law. It 
 was not to be disputed that both land and buildings had been 
 exempt from all imposts not specified hi the leases. The claim of 
 Japan that this was because the consular tribunals had not given 
 the necessary sanction to the Japanese fiscal laws was void of proof } 
 and, besides, Japan had never made reservations looking toward 
 the maintenance of the right thus impaired. When negotiating 
 the revised treaty with Great Britain, Japan had sought to place 
 foreigners on the same footing as Japanese subjects in the matter of 
 taxation, but the agreement made was to maintain the status quo. 
 The contention that the status quo did not contemplate the land 
 was not borne out by the language of the negotiators. It was not 
 to be assumed that Great Britain intended to make a restriction 
 with reference to the buildings, and similarly in the case of the 
 other powers: the treaties did not refer to the lands as they would 
 have done if the immunity was to be confined to them alone, con- 
 trary to the previous practice, but used expressions that com. 
 prehended the whole subject-matter of the leases. Hence the 
 award : 
 
 "The provisions of the treaties and other engagements men- 
 tioned in the protocols of arbitration exempt not only the lands 
 held in virtue of the perpetual leases granted by the Japanese 
 Government in its name, but they exempt the lands and buildings 
 of all kinds constructed or which may be constructed upon these 
 lands, from all imposts, taxes, charges, contributions, or any con- 
 ditions other than those expressly stipulated in the leases in 
 question." 
 
 (Archives Diplomatique* [1905], vol. xcrv, pp. 666-740; Brit- 
 ish and Foreign State Papers, vol. xcv, pp. 86-90 ; vol. xcvm, 
 pp. 140-46; Foreign Relations of tlie United States, 1901, pp. 
 313-66; 1902, pp. 687-730; G. G. Wilson, The Hague Arbitra- 
 tion Cases.)
 
 134 TERMINATION OF TREATIES 
 
 17. TERMINATION OF TREATIES 
 
 THE NEUTRALIZATION OF THE BLACK SEA 
 
 (1856, 1870-71) 
 
 IN 1856, the powers of Europe assembled in congress at Paris 
 to settle various questions arising out of the relations between 
 Turkey and Russia after the Crimean War. The results of their 
 deliberations were the Treaty of Paris of March 30, 1856, signed 
 by Austria, Great Britain, France, Prussia, Russia, Sardinia, and 
 Turkey; a convention of the same date between the same parties; 
 and a convention, also of the same date, between Russia and Tur- 
 key. The substance of these agreements was that the Black Sea 
 should be neutralized; that it should be closed to vessels of war of 
 all states, Russia and Turkey included; that no military or naval 
 establishment should be maintained on its coasts; and that, to 
 guarantee to Russia immunity from foreign attack, Turkey should 
 prohibit the passage of all warships through the Dardanelles and 
 the Bosphorus as long as the Porte remained at peace. Exception 
 was made only in the case of light vessels in the coastal service or 
 on diplomatic missions. 
 
 In 1870, while two of the signatory powers were engaged in war, 
 Russia announced her intention to regard herself as no longer 
 bound by the special convention of the Treaty of 1856 respecting 
 the neutrality of the Black Sea. In a note of October 19/31 ad- 
 dressed to the other parties to the treaty, Prince Gortchakoff 
 explained that Russia considered the principle (the neutraliza- 
 tion of the Black Sea) "to be no more than a theory," inasmuch as 
 Turkey maintained unlimited naval forces in the archipelago and 
 the straits, while Great Britain and France could concentrate their 
 squadrons in the Mediterranean. But what was especially signifi- 
 cant in the note was the reference to the validity of the treaty, as 
 follows: "The treaty of March 18/30, 1856, has, moreover, not 
 escaped the modifications to which most European transactions 
 have been exposed, and in the face of which it would be difficult 
 to maintain that the written law, if founded upon the respect for 
 treaties as the basis of public right and regulating the relations
 
 THE NEUTRALIZATION OF THE BLACK SEA 135 
 
 between states, retains the moral validity which it may have pos- 
 sessed at other times." (Parliamentary Papers [1871], vol. 36, 
 p. n.) 
 
 The modifications referred to were stated to be (i) the union of 
 Moldavia and Wallachia "by a series of revolutions which are 
 equally at variance with the letter and the spirit of these transac- 
 tions;" (2) the admission to the Black Sea of "whole squadrons" 
 of foreign warships; and (3) the employment of ironclads in mod- 
 ern navies, increasing thereby the danger for Russia in the event of 
 war "by adding considerably to the already patent inequality of 
 the respective naval forces." 
 
 For these reasons, the Russian representatives were to bring to 
 the knowledge of the governments to which they were accredited 
 the following conclusions: "Our Illustrious Master cannot admit 
 de jure that treaties, violated in several of their essential and 
 general clauses, should remain binding in other clauses directly 
 affecting the interests of his Empire. His Imperial Majesty can- 
 not admit de facto that the security of Russia should depend on a 
 fiction which has not stood the test of time, and should be imperiled 
 by her respect for engagements which have not been observed in 
 their integrity. . . . His Imperial Majesty cannot any longer 
 hold himself bound by the stipulations of the Treaty of March 
 18/30, 1856, as far as they restrict his sovereign rights in the Black 
 Sea." (Parliamentary Papers [1871], vol. 36, p. 12.) 
 
 In his reply to the Russian note, Lord Granville, the British 
 Foreign Secretary, set aside consideration of the merits of the 
 Russian statements of fact and confined himself to the question, 
 "In whose hands lies the power of releasing one or more of the 
 parties from all or any of these stipulations? " His criticism of the 
 note was, in part, as follows: 
 
 "The dispatches of Prince Gortchakoff appear to assume that 
 any one of the powers who have signed the engagement may allege 
 that occurrences have taken place which, in its opinion, are at 
 variance with the provisions of the treaty, and, although this view 
 is not shared nor admitted by the co-signatory powers, may found 
 upon that allegation, not a request to those governments for the 
 consideration of the case, but an announcement to them that it 
 has emancipated itself, or holds itself emancipated, from any
 
 136 TERMINATION OF TREATIES 
 
 stipulations of the treaty which it thinks fit to disapprove. Yet 
 it is quite evident that the effect of such doctrine, and of any pro- 
 ceeding which, with or without avowal, is founded upon it, is to 
 bring the entire authority and efficacy of treaties under the dis- 
 cretionary control of each one of the powers who may have signed 
 them ; the result of which would be the entire destruction of treaties 
 in their essence. For whereas their whole object is to bind powers 
 to one another, and for this purpose each one of the parties sur- 
 renders a portion of its free agency, by the doctrine and proceed- 
 ing now in question, one of the parties in its separate and individual 
 capacity brings back the entire subject into its own control, and 
 remains bound only to itself." (Parliamentary Papers [1871], vol. 
 
 36, p. 15-) 
 
 Prince Gortchakoff, however, found himself unable to admit 
 "that the abrogation of a theoretical principle without immediate 
 application, which only restores to Russia a right of which no 
 great power can be deprived, can be regarded as a menace to peace, 
 or that in annulling a point of the Treaty of 1856 the annulment 
 of the whole can be implied." (Parliamentary Papers [1871], 
 vol. 36, p. 34.) 
 
 The other signatory powers took the same view of the treaty as 
 Great Britain. On the suggestion of Bismarck, a conference of 
 these powers was held at London in January, 1871, for -the pur- 
 pose of removing the diplomatic difficulty that had arisen. 1 In 
 an annex to the protocol of the first day's proceedings, the follow- 
 ing declaration was made with respect to the validity of treaties: 
 "The plenipotentiaries of North Germany, of Austria-Hungary, 
 of Great Britain, of Italy, of Russia, and of Turkey, assembled 
 to-day in conference, recognize that it is an essential principle of 
 the law of nations that no power can liberate itself from the engage- 
 ments of a treaty, nor modify the stipulations thereof, unless with 
 the consent of the contracting powers by means of an amicable 
 arrangement." (Parliamentary Papers [1871], vol. 36, p. 127.) 
 
 But, having enunciated the general principle, the powers pro- 
 ceeded to grant to Russia what she had contended for under her 
 
 1 France was not represented in the conference until the session of March 13, be- 
 cause of difficulty in securing a safe-conduct for the passage of her plenipotentiary 
 through the Prussian lines. She, however, signed the Treaty of London.
 
 THE WOHLGEMUTH AFFAIR 137 
 
 Interpretation of the treaty. A new agreement 1 was entered into 
 whereby articles n, 13, and 14 of the Treaty of Paris were abro- 
 gated, together with the separate convention between Russia and 
 Turkey annexed to article 14, the whole being replaced by the 
 following: "The principle of the closing of the Straits of the Dar- 
 danelles and the Bosphorus such as it has been established by 
 the separate convention of March 30, 1856, is maintained, with 
 power to His Imperial Majesty the Sultan to open the said Straits 
 in time of peace to the vessels of war of friendly and allied powers 
 in case the Sublime Porte should judge it necessary in order to 
 secure the execution of the stipulations of the Treaty of Paris of 
 March 30, 1856. The Black Sea remains open, as heretofore to the 
 mercantile marine of all nations." (Parliamentary Papers [1871], 
 vol. 36, p. 170.) 
 
 (British and Foreign State Papers, vol. XLVI, pp. 8-23 ; vol. LXI, 
 pp. 7-11; 1193-1227. Parliamentary Accounts and Papers [1871], 
 vol. 36, pp. 1-176.) 
 
 THE WOHLGEMUTH AFFAIR (1889) 
 
 TOWARD the end of February, 1889, a Bavarian tailor, Lutz by 
 name, residing in Basle, received from Wohlgemuth, a German 
 police inspector of Mulhausen, a letter signed with a fictitious 
 name proposing that he enter the service of the German police. 
 Later an interview was arranged for at Rheinfelden in Switzer- 
 land, and Wohlgemuth sent Lutz a postal money order of ten 
 francs to pay his transportation. At this interview arrangements 
 were discussed and agreed upon and Wohlgemuth handed Lutz 
 eighty marks. Lutz commenced to make his reports and received 
 remittances of several hundred marks. Wohlgemuth expressed 
 himself as pleased with Lutz's activities and in one of his letters 
 wrote to him, " Wtthlen Sie nur lustig drauf los." * 
 
 1 Treaty of London, March 13, 1871. 
 
 * WtihUn describes the action of a mole; to burrow secretly and undermine; also 
 to ferret out, as we should say. As describing political activity it would mean to 
 stir up discontent, to work up an agitation without actually being directly concerned 
 in any overt act. Die WUhler und Ucizer is stronger and means social agitators in a 
 bad sense of actual disturbers of public order. Withicn, used in the sentence,
 
 138 TERMINATION OF TREATIES 
 
 About the middle of April, Lutz, it appears, proposed a new 
 meeting at Rheinfelden to make important communications to 
 Wohlgemuth. He claims in this matter to have acted only upon 
 the advice of his Socialist friends, who wanted him to expose 
 Wohlgemuth whose activities in Switzerland had been known for 
 some time. On the following Sunday, April 21, 1889, when Wohl- 
 gemuth crossed the frontier and arrived in Rheinfelden to keep the 
 appointment as agreed upon, the local police, to whom Lutz's as- 
 sociates had shown some of the letters received from Wohlgemuth, 
 arrested both Lutz and Wohlgemuth. They were searched 
 and questioned, and papers considered of a compromising nature 
 were found on Wohlgemuth. In vain he pleaded his official posi- 
 tion as a German police inspector. He was imprisoned and Lutz 
 was momentarily released. Wohlgemuth admitted that he had 
 written the letters in question, but insisted that his action had been 
 confined to a perfectly legitimate investigation of the socialistic 
 activities on Swiss territory. In his examination he affirmed that 
 he had expressly warned Lutz at then: first interview against in- 
 citing to unlawful agitation, and that it had been understood that 
 Lutz was to do no more than keep him informed of what was 
 going on. 
 
 The German Government maintained that it was necessary in 
 the interests of its national security to employ secret agents to 
 secure information of the socialistic activities on Swiss territory. 
 Prince Bismarck demanded the release of Wohlgemuth, but the 
 Swiss Federal Council proceeded to conduct an investigation, as 
 a result of which they decided to take action in conformity with 
 article 70 of the Swiss Constitution, which authorizes the Con- 
 federation to expel from its territory "aliens who constituted a 
 danger to Switzerland's internal security or its foreign relations." 
 Wohlgemuth was accordingly expelled, and after a supplementary 
 investigation a similar course was taken in regard to the Bava- 
 rian tailor, Lutz. The decree of expulsion against Wohlgemuth 
 gave as the reasons for this action that he had committed on Swiss 
 
 " Wuhlen Sie nur lustig drauf las," may reasonably be said to imply an exhortation 
 to Lutz to incite his associates to disturb the peace. In France Wohlgemuth was 
 characterized as an agent-provocateur. Clunet translates the sentence into French, 
 "FaiUs de V agitation souterraine et attez-y gatmentl" (Journal de Droit Interna- 
 tional Privi [1889], vol. xvi, p. 418.)
 
 THE WOHLGEMUTH AFFAIR 139 
 
 territory acts which would have the result of endangering the in- 
 ternal security or the foreign relations of Switzerland, and that 
 he had approached Lutz, a Bavarian residing at Basle, with the 
 avowed intention of stirring up agitation among the workmen of 
 Basle, Alsace-Lorraine, and the Duchy of Baden; and that he 
 wrote him among other things, " Wuhlen Sie nur lustig drauf los" 
 [Continue to stir up agitation and work at it right merrily]. In 
 execution of this decree Wohlgemuth was expelled after an im- 
 prisonment of ten days. (Clunet: Journal de Droit International 
 Prive [1889], vol. xvi, pp. 418-23.) 
 
 The German Government took exception to the treatment of 
 Wohlgemuth and requested the Swiss Federal Council to annul 
 the decree of expulsion. The semi-official North-German Gaz- 
 ette (June 5) intimated that the German Government would have 
 to retaliate by enforcing a most rigid and inconvenient inspec- 
 tion of travelers and imports crossing the border. (Schulthess: 
 Europaischer Geschichtskalender [1889], vol. xxx, p. 96.) 
 
 The Swiss Government answered the German Government 
 that any "attempt" to apply measures which were directed 
 against Switzerland "would in advance be considered as with- 
 out justification." (Archives Diplomatique* [1889], 26. series, vol. 
 xxxi, p. 334.) 
 
 At this juncture Russia and Germany, and later Austria, drew 
 the attention of the Swiss Government to the dangers which 
 threatened them because of the great tolerance accorded anar- 
 chists and revolutionists on Swiss territory, and as friendly powers, 
 guarantors of Switzerland's neutrality [neutralization], warned 
 her, if she did not repress those activities of a nature to disturb 
 their internal security, that they would have to consider whether 
 the continuation of Switzerland's neutrality [neutralization] would 
 be to their advantage. 1 (Archives Diplomatiques [1889], 2d series, 
 vol. xxxi, p. 334.) 
 
 The two governments entered into an exchange of notes. The 
 
 1 June 17, the North-German Gazette announced: "On the ijth of this month the 
 German and Russian representatives delivered to the Swiss Minister for Foreign 
 Affairs an official written notice in which they complained that the Swiss authorities 
 had abused the rights of neutrality [neutralization] accorded to Switzerland and had 
 not fulfilled the corresponding obligations." (Schulthess: Eurof^ucher Gtschichts- 
 kalcnder [1889], vol. xxx, p. 97.)
 
 140 TERMINATION OF TREATIES 
 
 third of those communicated by the German Government sets 
 
 forth its views as follows: 
 
 " VAKZIN, June 26, 1889. 
 
 "Your report of the i8th of this month, No. 69, received, to- 
 gether with the two notes of the i5th and lyth which M. Droz 
 addressed to you. They state that the Federal Council has ex- 
 pressed its regret that the Imperial Government refuses to submit 
 the Wohlgemuth affair to a fresh examination. 
 
 "We arrived at this decision because we were convinced that 
 no new examination could in any way alter the fact that an officer 
 of the imperial police was, with the knowledge and aid of Swiss 
 officials, enticed to Swiss territory so that he might be imprisoned 
 there, and that the Central Government adopted this action of 
 the cantonal authorities as its own by inflicting upon the German 
 officer the penalty of expulsion. No further inquiry could con- 
 trovert this fact. 
 
 "By the expulsion in question, the Central Swiss Government 
 has evinced a determination not to accord to German officials, 
 whose duty it is to obtain information in Switzerland about the 
 plottings of our German adversaries, the same indulgence and 
 toleration granted so freely in Switzerland to Germans who are 
 enemies of the Empire. 
 
 "Since in consequence we can no longer protect ourselves by 
 surveillance on the spot against the revolutionary plottings and 
 writings of German enemies of the Empire who are tolerated in 
 Switzerland, we shall be obliged, as I explained in my dispatch 
 of June 6 to Your Excellency, to withdraw to the German side of 
 the frontier the supervision we exercise over these hostile plot- 
 tings, though it must needs be said that supervision thus exer- 
 cised can be effective only in a limited degree, to the great 
 prejudice of the peaceful part of the population of the two 
 countries. The precautions to be taken to this end will have 
 an undoubted bearing upon the stipulations of the treaty of 
 settlement, in regard to article 2 of which the Swiss Govern- 
 ment holds an opinion at variance with ours. 
 
 "The text of the treaty does not permit in our judgment of 
 any such divergence of opinion; it states that Germans settling 
 in Switzerland must be provided with certain authorizing papers
 
 THE WOHLGEMUTH AFFAIR 141 
 
 issued at the place whence they came. If the Swiss interpretation 
 were correct, if each of the two governments and especially Ger- 
 many had wished merely to recognize the other's right to require 
 or not to require the papers in question, the text would have been 
 drafted in this sense, namely, that each of the two governments 
 may require the papers, that each reserves to itself the right to 
 require them or not to require them. If in this article the word 
 "must" (miissen) was employed, it is proof that we, at least, 
 from the year 1876 have attached some importance to being as- 
 sured that no German subject hostile to the authorities of his 
 country can claim protection in Switzerland by virtue of this 
 treaty. 
 
 "M. Droz's note considers this interpretation of ours inad- 
 missible, on the ground that it is irreconcilable with the sovereign 
 rights of the contracting parties. To this I might simply reply 
 that every treaty between nations, in so far as it has to do with 
 duties and rights, necessarily involves for each of the contracting 
 parties some limitation upon its absolute freedom in the exercise 
 of its sovereign rights. 
 
 "In Germany we do not look upon article 2 of the Treaty of 
 April 27, 1876, as placing too great a limitation upon the sovereign 
 rights of the country. The proof of this lies in the fact that in the 
 German Empire this article 2 has been applied for more than ten 
 years in the way in which I have just explained it, and that we 
 grant the right of settling in Germany only to those Swiss who 
 present the certificates of the country whence they come, as pro- 
 vided for in article 2. If this procedure is reconcilable with the 
 sovereignty of the German Empire, the argument that Swiss 
 sovereignty may not admit of such a concession is hardly of a 
 nature to convince us, especially since, as M. Droz observes, it 
 is not a question of admitting foreigners in general, but relates 
 only to the conditions of admission of German subjects into 
 Switzerland. There they retain their status of German subjects, 
 and very naturally states concluding treaties stipulate therein the 
 conditions to be applied to the treatment of their own subjects in 
 foreign countries. 
 
 "Germans who settle in Switzerland are none the less German 
 subjects, and between two states in friendly relations, such as
 
 142 TERMINATION OF TREATIES 
 
 existed between Switzerland and the German Empire in the year 
 1876, it was natural and conformable to custom for assurances 
 to be exchanged with respect to the treatment to be accorded 
 by each to the subjects of the other, inclusive of surveillance. 
 
 "Treaties like the treaty of settlement of 1876 can be carried 
 out only where there exists that mutual good-will of which the 
 treaty is the expression, and only for so long as this good-will 
 continues between the contracting parties. 
 
 "To our regret the good-will which we feel for our Swiss 
 neighbor is not reciprocated, and the treaty seems no longer in 
 accord with the relation which has sprung up with this change of 
 feeling. 
 
 "The Swiss Government has up to the present time simply 
 failed to fulfill the stipulations of article 2, and it is just here that 
 one of the chief reasons must be sought for the regrettable change 
 which has come about in our mutual relations. If these stipula- 
 tions had been fulfilled, it is not to be supposed that the German 
 Government would have felt it necessary to place under police sur- 
 veillance the secret activities of its subjects settled in Switzerland. 
 
 "The note of the i5th for the first time makes an official state- 
 ment in regard to the non-execution of article 2. 
 
 "We should then be within our rights in declaring the Treaty 
 of 1876 from this moment void because of the official refusal on 
 the part of Switzerland to put it into execution. But in consider- 
 ation of the consequences involved in this sudden change for the 
 subjects of both countries, we shall proceed instead to make use 
 of our right to terminate the treaty in accordance with article 
 u, and shall send you the necessary powers. 
 
 "From the indications found in the note of June 17, that the 
 Swiss Government is preparing to modify its system for the pro- 
 tection of international relations and interests (police internation- 
 ale), I derive the hope that as a result of these efforts we may be 
 relieved in future of the necessity of having recourse on our own 
 account and within our frontier to measures of a nature to afford 
 the requisite protection against the criminal activities of the Ger- 
 man Socialist Democrats established in Switzerland. 
 
 "It would give us satisfaction if the means should be found in 
 Switzerland to restore our confidence that our internal security
 
 THE WOHLGEMUTH AFFAIR 143 
 
 would not be more dangerously menaced from that quarter 
 than from the other frontiers of the Empire. Had article 2 of 
 the treaty been observed in Switzerland with the same exact- 
 ness as in Germany, our confidence would not have been shaken 
 and we should not have had reason to believe that the attitude 
 of the Swiss toward their German neighbors was not to-day such 
 as would be expected from those who had entered into a treaty 
 of so intimate a nature as that of 1876. 
 
 "M. Droz ends his note by asking us not to consider the Gov- 
 ernment and the Swiss people as the promoters of revolution and 
 anarchy. I do not recall that we have made such a complaint to 
 the Department of Foreign Affairs of the Confederation. Nor do 
 I entertain any doubt that the Central Government of the Con- 
 federation intends to live up to the obligations toward neigh- 
 boring nations in the manner indicated at the end of the note 
 just referred to, but I have to admit that the legislation which 
 has been in force up to the present in Switzerland does not give 
 the Central Administration the means to compel the local au- 
 thorities of certain of the cantons to observe the respect which 
 is due to foreign powers and necessary for the maintenance of 
 friendly relations between neighboring states." 
 
 In response, M. Droz, acting under the direction of the Federal 
 Council, addressed, on July 13, the following note to M. von 
 Billow: 
 
 "The undersigned has been directed to reply as follows to the 
 dispatch of His Excellency Prince Bismarck, dated July 26, of 
 which His Excellency M. von Billow delivered him a copy July i. 
 
 "In his note of June 15 the undersigned stated that he should 
 not for his part again refer to the Wohlgemuth incident. That 
 he does so now is simply to repeat in reply to the dispatch: 
 
 "First, that the Swiss authorities have in no manner whatsoever 
 laid or helped to lay a trap for the police inspector of Miilhausen; 
 
 "Second, that that official was imprisoned and then expelled, 
 not because he came to Switzerland for the purpose of gathering 
 information, but because he was trying to foment a disturbance; 
 
 "Third, that a friendly discussion and the exchange of opinions 
 would, we consider, have brought these facts out clearly. 
 
 "The Federal Council cannot admit the justice of the deduc-
 
 144 TERMINATION OF TREATIES 
 
 tions that His Excellency Prince Bismarck draws from this in- 
 cident. On the contrary, the Federal Council considers that in 
 acting to make clear its firm intention to put an end in Swiss 
 territory to disorders, whether factitious or real, it is really acting 
 in the interests of the two countries properly understood. 
 
 "In his dispatch the Chancellor main tains his view in regard to 
 the meaning of article 2 of the treaty of settlement. 
 
 "The Federal Council regrets profoundly to note the appear- 
 ance of an interpretation of the treaty which has not, until the 
 recent communication of the German Government, ever been the 
 subject of discussion between the two countries. Even if we con- 
 sider that the literal meaning of article 2 is capable of a twofold 
 interpretation, the German Government, if it would have its own 
 accepted, should show that it corresponds substantially to the will 
 of the contracting parties at the moment when the treaty was 
 concluded. But as to this [will of the parties], there can be no 
 room for doubt; the message of the Federal Council to the as- 
 sembly relative to our treaty of settlement with Germany (June 3, 
 1876); the report of the Council of the States (June 20, 1876); 
 and finally the memorandum upon the same matter, of the Ger- 
 man Chancellor to the Reichstag (November 18, 1876) prove 
 clearly and concordantly that the two governments did not in- 
 tend to restrict their right to receive within their territory whom 
 they chose, but that their only purpose was to fix the conditions, 
 upon compliance with which sojourn or settlement within the 
 territory of either state might not be refused to citizens of the 
 other. 
 
 "To cite but a single document, this is what the Chancellor's 
 memorandum says relative to article 2 of the treaty of settlement: 
 
 [Translated from the German text.] "'Article 2 defines the 
 papers which German citizens may be required to produce 
 upon demand [auf Erfordern] in order to be allowed to re- 
 side in Switzerland or to settle there. In this respect no more 
 will be required of Germans, than of citizens of the Swiss 
 Cantons.' 
 
 "The words 'upon demand' [auf Erfordern}, to make sense, can 
 evidently refer only to the Swiss authorities. They show clearly
 
 THE WOHLGEMUTH AFFAIR 145 
 
 that in the opinion of the author of this message to the Reichstag 
 citizens of the German Empire must, in order to reside in Switzer- 
 land, be ready to exhibit the papers prescribed when they are 
 called for, but that the Swiss authorities are not obliged to re- 
 quire them. 
 
 "This is also apparent from the history of the negotiations of 
 our treaty of settlement with Germany, which was based upon sim- 
 ilar treaties concluded by Switzerland with the Grand Duchy 
 of Baden October 31, 1863, with France June 30, 1864, with 
 Wurtemberg March 18, 1869. Article 4 of the treaty with Wiir- 
 temberg says that, to obtain permission to settle in either state, 
 it suffices to deposit the certificate of nationality [acte d'origine] 
 and a certificate testifying that the individual is of good charac- 
 ter and not a pauper. 
 
 "There is no mention of any obligation for either government 
 to require these certificates. The Swiss negotiators [delegues] pro- 
 posed the very exacting conditions contained in the treaty of 
 April 27, 1876, so as to make it clear that Germans could not escape 
 the requirements of the Swiss law relative to supervision over 
 aliens and so as to conform to the terms of article 2 of our treaty 
 of June 30, 1864, with France. This article 2 of the treaty of 
 June 30, 1864, with France reads as follows: 
 
 "'To acquire a domicile or to settle in Switzerland French- 
 men must be provided with a certificate of registration giving 
 their nationality, which will be issued to them by the French 
 Embassy after they have exhibited certificates of good 
 character and the other papers required.' 
 
 "The essential provisions of the two treaties are thus seen to 
 be identical, yet France, like the German Chancellor in 1876, 
 never understood the stipulations of this article as constituting 
 an obligation imposed upon Switzerland to restrict the permission 
 of residence to those Frenchmen exclusively who should have 
 complied with the conditions therein enumerated, but considered 
 it as giving Switzerland the right so to act. The same is true of 
 the other countries with whom we have similar treaties. 
 
 "In view of the above considerations we cannot refrain from 
 expressing our surprise to hear it affirmed that even in 1876 the
 
 146 TERMINATION OF TREATIES 
 
 German Government considered it important to prevent Switzer- 
 land, by the stipulations of the treaty of settlement, from receiv- 
 ing all German subjects who did not get on with the German 
 Government. If this desire [on Germany's part] existed, it re- 
 mained a secret. The German negotiator did not express it and 
 article 2 of the treaty does not give expression to it. Such an 
 intention would furthermore have been contrary to the spirit of 
 the treaty, the object of which was not to hinder but to facilitate 
 the reciprocal settlement of citizens of each of the states within 
 the territories of the other, by assuring them the enjoyment of the 
 maximum of rights and advantages possible (articles 3 and 6). 
 
 "We must repel the imputation that we have not observed the 
 terms of the treaty of April 27, 1876, and absolutely contest the 
 right of the German Government to declare the treaty at an end 
 because of our failure to observe it. In regard to the manner in 
 which the treaty has been carried out by the parties we shall 
 only draw attention to the following considerations: 
 
 "In the first place, precise information permits us to affirm that 
 a certificate of good character has not been required in every in- 
 stance of Swiss citizens settled in Germany. 
 
 "Further, it is to be noted that the Federal Council has made 
 known sufficiently its method of applying article 2 through vari- 
 ous official publications, among others the circular of September 
 13, 1880, which gave rise to a diplomatic correspondence with the 
 German Legation at Berne, and again through the supplementary 
 circular of February 16, 1881, and repeatedly through the Coun- 
 cil's annual report [rapport annuel de gestion]. Since these docu- 
 ments were transmitted to the German Legation as soon as they 
 appeared, without ever giving rise to any objection to their con- 
 tents, it is impossible to conceive how the German Government 
 now asserts that it has only learned what is our interpretation of 
 the treaty from our note of June 15. 
 
 "Finally, we ought to make it a subject of remark that our 
 police of the cantons have cause to be exacting in regard to the 
 certificates carried by aliens in order to prevent an invasion of 
 suspected persons who so easily become a danger and a burden 
 to our country. This was the consideration which occupied 
 us when the terms of the treaty of April 26, 1876, were drafted.
 
 THE WOHLGEMUTH AFFAIR 147 
 
 Without placing too great store by the certificates of good char- 
 acter, which are often delivered in such a way as to deprive them 
 of any serious credence, for the worst class of anarchists and 
 revolutionists with their papers perfectly in order are sometimes 
 unsuspectedly admitted, we are, nevertheless, far from wishing 
 to renounce this guarantee intended for our protection. Indeed 
 we are glad to note that the authorities of the cantons may in 
 future require a still more rigorous application [production] of 
 this guarantee without the risk of having the German Government 
 itself make a request for leniency in the execution of this clause 
 of the treaty. 
 
 "The undersigned hopes that this statement of the facts in the 
 case may serve to convince His Highness the Chancellor that the 
 Federal Council never had the intention, with which it is cred- 
 ited, of making the admission of Germans into Switzerland de- 
 pend upon the permission of the German Government, nor did 
 it expect to claim for itself a reciprocal right in respect to the Swiss 
 who take up their residence in Germany. Although it is true, as 
 the dispatch of June 26 remarks, that every international treaty, 
 to the extent of the rights it creates and the obligations it imposes, 
 implies the relinquishment by each of the contracting parties of a 
 part of its sovereignty, it is not less certain that there are some 
 attributes of her sovereignty that Switzerland has not, nor ever 
 will, of her own free will, agree to abandon by treaty stipulation. 
 The preservation of the right of asylum is one of these attributes, 
 as is shown by the whole course of Swiss history. This constitutes 
 one of the principles from which we cannot depart, and by which 
 we shall be governed if we enter into negotiations with Germany 
 for the conclusion of a new treaty of settlement. This reminder 
 appears necessary to us. 
 
 "In his preceding communications, the undersigned has dis- 
 cussed the means proposed to prevent anarchists and revolu- 
 tionists from using Swiss territory as a base to conspire against 
 the material security of Germany, and the measures intended to 
 suppress the plots which unfortunately occur in spite of the pre- 
 cautions taken. 
 
 "The Federal Council can only repeat the categorical declara- 
 tions which it has made in reference to this subject. Recognizing
 
 148 TERMINATION OF TREATIES 
 
 to their fullest extent the international duties which rest upon the 
 Confederation as well as upon every government desirous of main- 
 taining good relations with friendly states, the Federal Council 
 has, in every instance, given evidence, by its acts; of its firm inten- 
 tion not to tolerate in Switzerland any acts contrary to the law of 
 nations or to the respect which states owe to one another. This 
 action is but the expression of the will of the Swiss people, mani- 
 fested in this particular instance by the unanimous votes of the 
 Federal Chambers, when appeal was made to their legislative 
 concurrence. 
 
 "At the present time, thanks to the vigorous measures employed 
 in the last few years, no recognized anarchist or revolutionist 
 leader is settled or allowed in Switzerland. The creation of a 
 central bureau of political supervision [police politique} conse- 
 quent upon the decision taken by the Chambers at their last 
 session will make it possible the better to keep track of and re- 
 press, in so far as is allowed by our constitution, all illicit or dan- 
 gerous activity, whether in the press or on the part of societies 
 and meetings, when of a nature to menace the maintenance of 
 good relations with other nations. 
 
 "The Federal Council does not doubt that these explanations 
 will be of a nature completely to reassure the German Govern- 
 ment and convince it that there is no need of having recourse 
 to exceptional measures contrary to the interests of the two 
 states. That we insist with so much firmness upon the respect 
 for our rights is because our intention is not less firm to fulfill 
 scrupulously our international duties, especially in regard to 
 Germany, with whom we have always been desirous of maintain- 
 ing the best relations. 
 
 "The undersigned begs His Excellency, M. von Billow, to 
 bring that which precedes to the attention of His Highness, 
 Prince Bismarck, and to accept the assurance of his considera- 
 tion." 
 
 After the receipt of the Swiss note of July 13, the German Gov- 
 ernment, on July 20, formally denounced the treaty of April 27, 
 1876, in accordance with its article n, so that it expired one year 
 from that date, on July 20, 1890. 
 
 On July 31, the German Government hi a note to the Swiss
 
 THE EFFECT OF WAR ON TREATIES 149 
 
 Government maintained its views as previously set forth and 
 considered that the Socialists could not be looked upon as political 
 refugees enjoying an asylum in Switzerland, but that they had 
 gone there of their own free will for the purpose of intriguing 
 against the German Empire. The question of Switzerland's viola- 
 tion of her neutralization was not mentioned, but the Chancellor 
 expressed the hope that a new treaty of settlement might be en- 
 tered into. A new treaty was in fact concluded to replace the 
 old one before the date of its expiration. 
 
 (Archives Diplomatiques, 2d series, vol. xxxi, pp. 332-41. 
 Schulthess: Europtiischer Geschichtskalender [1889], vol. xxx, pp. 
 96, 97, 104-05, 112, 143-44, 259; C. K. Hoffmann: Het Conflict 
 tusschen Zwitserland en Duitschland in 1889 [Leiden, 1891]. Cf. 
 also Hilty, Politisches Jahrbuch der schweizerschen Eidgenossenschaft 
 [1889], pp. 477-95; [1890], pp. 628-34, where the question is ably 
 discussed in German from the Swiss point of view, but in an im- 
 partial spirit.) 
 
 THE EFFECT OF WAR ON TREATIES 
 
 IT is a well-recognized principle that war terminates certain 
 treaties. This subject does not fall within the scope of this vol- 
 ume.
 
 PART II 
 
 THE LAW OF NATIONS: SUBSTANTIVE INTERNA- 
 TIONAL LAW RECOGNIZED BY GOVERNMENTS 
 AS A RULE OF CONDUCT BINDING UPON THEM 
 AND OBSERVED BY THEM IN PRACTICE
 
 CHAPTER IV 
 THE EQUALITY OF STATES 
 
 18. SOVEREIGNTY, INDEPENDENCE, AND EQUALITY 
 
 THE first thing that strikes the observant student of the prac- 
 tice of diplomacy is not that alleged equality of states which is 
 made the basis of all treatises on the law of nations. On the 
 contrary, at every turn he meets countless instances where in- 
 equalities are recognized in the relations between states. Here 
 it is necessary to make a distinction. Whenever a matter falls 
 within the province of international law, it means that all states, 
 great and small, may expect to be equal as regards its application 
 to their affairs. In the words of the great Marshall, "No prin- 
 ciple of general law is more universally acknowledged than the 
 perfect equality of nations. Russia and Geneva have equal rights. 
 It results from this equality that no one can rightfully impose a 
 rule on another. Each legislates for itself, but its legislation 
 can operate on itself alone." But in the realm of politics, 
 where states great and small debate and maintain their differ- 
 ent views, the very fact that they are concerned with politics 
 or policies means that there is as yet no agreement among the 
 nations which can be incorporated into the body of inter- 
 national law. In such instances, the power of the government of 
 the mightier state makes its views felt in shaping the rule of the 
 law of nations, which shall be agreed upon in the end to settle 
 the conflict of policies and to regulate the question in dispute. 
 As Westlake has so well said: "Therefore from time to time new 
 rules have to be proposed on reasonable grounds, acted on pro- 
 visionally, and ultimately adopted or rejected as may be deter- 
 mined by experience, including the effect, not less important 
 in international than in national affairs, of interest coupled with
 
 154 SOVEREIGNTY, INDEPENDENCE, EQUALITY 
 
 preponderating power." (Westlake : International Law, part I, 
 Peace [Cambridge, 1910], p. 15.) 
 
 i It would indeed be a most top-heavy system which should 
 attempt to establish law without regard to the strength of opinion 
 upon which it must rely for its maintenance. In due course, as 
 the recognized principles are better understood, and as the 
 spirit of equitable compromise, which is the basis for agreement 
 upon all new law or regulation, is more skillfully and reason- 
 ably applied, the extension of international law will grow apace. 
 Let us not be impatient and attempt to be over-hasty in this 
 process, for the successful accomplishment of which so much 
 wisdom and so much experience are necessary. If we clothe policy 
 with the robes of law, policy it will still remain, but the effect 
 may be to discredit the principles of the real law of nations which 
 lie at the very foundation of individual security. 
 
 (a) Sovereignty 
 
 AN ARREST IN CANADA (1863) 
 
 ON April 15, 1863, Mr. Seward, Secretary of State of the United 
 States, wrote to Mr. Stanton, Secretary of War: "I have carefully 
 examined the report of John A. Haddock, captain commanding 
 Company E, 35th Regiment of New York Volunteers, concerning 
 his arrest of Ebenezer Tyler, a deserter from the forces of the 
 United States, within unquestioned Canadian territories of Great 
 Britain. The violation of the sovereignty of a friendly State 
 was doubtless committed under the influence of an earnest zeal 
 for the interests of the United States, but that motive cannot di- 
 minish the wrongfulness of the act or furnish excuse for this govern- 
 ment to that of Great Britain. Having submitted the matter to 
 the President, I am instructed by him to disavow with regret the 
 proceeding of Captain Haddock, and to inform the British Gov- 
 ernment that the captain will be dismissed from the public service 
 and that the deserter Ebenezer Tyler will be discharged from his 
 enlistment in the volunteer forces of the United States." 
 
 (Moore: Digest of International Law, vol. n, p. 370.)
 
 THE ZAPPA INCIDENT 155 
 
 (b) Independence 
 
 THE ZAPPA INCIDENT (1891) 
 
 THE most remarkable incident that has occurred of late years 
 on the question is that between Greece and Roumania, of the 
 succession to Vanghely Zappa, by birth a Greek of Ottoman 
 nationality, but who had obtained what is called the little natu- 
 ralization in Roumania. He bequeathed his immovable property to 
 a public purpose in Greece, subject to a life interest which ended 
 in 1891, whereupon the Greek Government claimed to be put in 
 possession of the inheritance in Roumania by the Greek Consulate 
 there. At the same time the nephews of the testator claimed the 
 possession in the national court of first instance at Bukharest, on 
 the ground that only Roumanians were allowed by a law of 1879 
 to acquire immovables in country districts, and then the Rou- 
 manian Government intervened in the same court to claim the suc- 
 cession as vacant. The Greek Government, by a note of May 
 16/28, 1892, expressed "its surprise that the Roumanian state per- 
 sisted in desiring to bring differences between states to the judg- 
 ment of the -national courts," and withdrew its representative 
 from Bukharest, a step which led to a long interruption of diplo- 
 matic intercourse between the two states, each of which published 
 opinions given in its favor by eminent international jurists. The 
 faculty of law of the University of Berlin gave an opinion which 
 is specially worthy of mention. It was that national courts are 
 not competent as between states in matters of civil right arising 
 out of international treaties, but are so in matters arising from 
 pure private law, so far as regards the forum rei sita, the forum 
 hereditatis, and the forum prorogatum. 
 
 (Extract from Westlake: International Law, part I, Peace 
 [Cambridge, 1910], p. 251.)
 
 156 SOVEREIGNTY, INDEPENDENCE, EQUALITY 
 
 UNDERBILL v. HERNANDEZ 
 
 The Supreme Court of the United States, 1897 
 
 IN the early part of 1892 a revolution was initiated in Vene- 
 zuela against the administration thereof, which the revolutionists 
 claimed had ceased to be the legitimate government. . . . 
 General Hernandez belonged to the anti- Administration party, 
 and commanded its forces in the vicinity of Ciudad Bolivar. In 
 October the party in revolt had achieved success generally, taking 
 possession of the capital of Venezuela October 6, and on October 
 23, 1892, the Crespo Government, so called, was formally recog- 
 nized as the legitimate Government of Venezuela by the United 
 States. 
 
 George F. Underbill, ... a citizen of the United States, who 
 had constructed a waterworks system for the city of Bolivar under 
 a contract with the government and was engaged in supplying 
 the place with water, . . . some time after the entry of General 
 Hernandez, . . . applied to him as the officer in command for a 
 passport to leave the city. Hernandez refused this request, and 
 requests made by others in Underbill's behalf, until October 18, 
 when a passport was given and Underbill left the country. 
 
 This action was brought to recover damages for the detention 
 caused by reason of the refusal to grant the passport; for the 
 alleged confinement of Underbill to his own house; and for cer- 
 tain alleged assaults and affronts by the officers of Hernandez' 
 army. 
 
 The cause was tried in the Circuit Court of the United States 
 for the Eastern District of New York, and on the conclusion of 
 plaintiff 's case, the Circuit Court ruled that upon the facts plaintiff 
 was not entitled to recover, and directed a verdict for defendant, 
 on the ground that "because the acts of defendant were those of 
 a military commander, representing a de facto government in the 
 prosecution of a war, he was not civilly responsible therefor." 
 Judgment having been rendered for defendant, the case was taken 
 to the Circuit Court of Appeals, and by that court affirmed upon 
 the ground "that the acts of the defendant were the acts of the 
 Government of Venezuela, and as such are not properly the sub- 
 ject of adjudication in the courts of another government." (26
 
 UNDERBILL v. HERNANDEZ 157 
 
 U.S. App. 573.) Thereupon the cause was brought to this court 
 on certiorari. . . . 
 
 Mr. Chief Justice Fuller, after stating the case, delivered the 
 opinion of the court: 
 
 " Every sovereign state is bound to respect the independence of 
 every other sovereign state, and the courts of one country will 
 not sit in judgment on the acts of the government of another done 
 within its own territory. Redress of grievances by reason of such 
 acts must be obtained through the means open to be availed of 
 by sovereign powers as between themselves. 
 
 "Nor can the principle be confined to lawful or recognized gov- 
 ernments, or to cases where redress can manifestly be had through 
 public channels. The immunity of individuals from suits brought 
 in foreign tribunals for acts done within their own states, in the 
 exercise of governmental authority, whether as civil officers or 
 as military commanders, must necessarily extend to the agents 
 of governments ruling by paramount force as matter of fact. 
 Where a civil war prevails, that is, where the people of a country 
 are divided into two hostile parties, who take up arms and oppose 
 one another by military force, generally speaking, foreign nations 
 do not assume to judge of the merits of the quarrel. If the party 
 seeking to dislodge the existing government succeeds, and the 
 independence of the government it has set up is recognized, then 
 the acts of such government from the commencement of its exist- 
 ence are regarded as those of an independent nation. If the 
 political revolt fails of success, still if actual war has been waged, 
 acts of legitimate warfare cannot be made the basis of individual 
 liability. [References omitted.] 
 
 "Revolutions or insurrections may inconvenience other na- 
 tions, but by accommodation to the facts the application of 
 settled rules is readily reached. And where the fact of the exist- 
 ence of war is in issue in the instance of complaint of acts com- 
 mitted within foreign territory, it is not an absolute prerequisite 
 that that fact should be made out by an acknowledgment of 
 belligerency, as other official recognition of its existence may be 
 sufficient proof thereof. (The Three Friends, 166 U.S. i) 
 
 "In this case, the archives of the State Department show that 
 civil war was flagrant in Venezuela from the spring of 1892; that
 
 158 SOVEREIGNTY, INDEPENDENCE, EQUALITY 
 
 the revolution was successful; and that the revolutionary govern- 
 ment was recognized by the United States as the government of 
 the country, it being, to use the language of the Secretary of State 
 in a communication to our Minister to Venezuela, 'accepted by 
 the people, in the possession of the power of the nation and fully 
 established.' 
 
 "That these were facts of which the court is bound to take 
 judicial notice, and for information as to which it may consult 
 the Department of State, there can be no doubt. (Jones v. 
 United States, 137 U.S. 202; Mighell v. StUtan of Jahore, [1894] 
 i Q.B. 149.) 
 
 "It is idle to argue that the proceedings of those who thus 
 triumphed should be treated as the acts of banditti or mere mobs. 
 
 "We entertain no doubt upon the evidence that Hernandez 
 was carrying on military operations in support of the revolutionary 
 party. It may be that adherents of that side of the controversy 
 in the particular locality where Hernandez was the leader of the 
 movement entertained a preference for him as the future executive 
 head of the nation, but that is beside the question. The acts 
 complained of were the acts of a military commander represent- 
 ing the authority of the revolutionary party as a government, 
 which afterwards succeeded and was recognized by the United 
 States. We think the Circuit Court of Appeals was justified in 
 concluding 'that the acts of the defendant were the acts of the 
 Government of Venezuela, and as such are not properly the 
 subject of adjudication in the courts of another government.' 
 
 "The decisions cited on plaintiff's behalf are not in point. 
 Cases respecting arrests by military authority in the absence 
 of the prevalence of war; or the validity of contracts between 
 individuals entered into in aid of insurrection; or the right of 
 revolutionary bodies to vex the commerce of the world on its 
 common highway without incurring the penalties denounced on 
 piracy; and the like, do not involve the questions presented here. 
 
 "We agree with the Circuit Court of Appeals, that ' the evidence 
 upon the trial indicated that the purpose of the defendant in his 
 treatment of the plaintiff was to coerce the plaintiff to operate 
 his waterworks and his repair works for the benefit of the com- 
 munity and the revolutionary forces,' and that 'it was not suf-
 
 THE BRAZILIAN COFFEE CASE 159 
 
 ficient to have warranted a finding by the jury that the defendant 
 was actuated by malice or any personal or private motive;' and 
 we concur in its disposition of the rulings below. The decree of the 
 Circuit Court is affirmed." 
 
 (Extract from United States Reports, vol. 168, pp. 250-54, with 
 reporter's statement of facts abbreviated.) 
 
 THE BRAZILIAN COFFEE CASE (1912) 
 
 IN this suit, which was begun in 1912 in the District Court for 
 the Southern District of New York as United States v. Herman 
 Siekken, but which was afterwards discontinued, the chief point 
 at issue was the power of the Government of the United States 
 to proceed against the property of a foreign state, warehoused in 
 New York, on the ground of violation of the Sherman Anti-Trust 
 Act. The facts were as follows: 
 
 More than three-fourths of the world's coffee is raised in Brazil, 
 the greater part of it in the State of Sao Paulo. In 1006 there 
 was an abnormal crop, almost equal to the production of the two 
 preceding years put together, with the result that the coffee 
 market was demoralized and the planters threatened with bank- 
 ruptcy. To remedy conditions, the Government of Sao Paulo 
 formed the so-called "valorization scheme," whereby the State 
 was to take over such part of the surplus coffee as could not other- 
 wise be marketed to advantage, withhold it from the market for 
 the time being, and regulate its sale later. The plan further pro- 
 vided for the limitation of the acreage under coffee cultivation, 
 for the fixation of a minimum price in Brazilian markets, for the 
 checking of exportation of inferior coffee, and for the raising of 
 loans on the security of the coffee purchased. 
 
 After some temporary financial operations, Sao Paulo in 1908 
 borrowed 15,000,000 from London and Paris bankers "to 
 liquidate the operations effected for the valorization of coffee." 
 This loan was guaranteed by the Federal Government of Brazil 
 and was secured by the coffee still unsold and by an export tax on 
 coffee of five francs. The agreement with the bankers called for 
 the sale of this coffee within ten years, under the control of a com-
 
 160 SOVEREIGNTY, INDEPENDENCE, EQUALITY 
 
 mittee of seven, meeting in London, one of whom was a represen- 
 tative of the Government of Sao Paulo with power to veto all 
 decisions of the committee. Approximately 7,000,000 bags of 
 coffee were delivered to the committee, about a fourth of which 
 was assigned for sale in the United States. All sales were to be 
 made in the name of the Government of Sao Paulo, which was 
 under obligation to sell a minimum amount every year, and more 
 if market conditions warranted. 
 
 On an examination into the facts, the Department of Justice 
 of the United States considered that the operations of the commit- 
 tee were in restraint of trade and suit was entered against the 
 defendant, Herman Sielcken, as the representative of the com- 
 mittee in the United States. As a preliminary step, the Attorney- 
 General sought, under the Sherman Act, to seize 950,000 bags of 
 coffee, stored in New York and controlled by the committee, and 
 to hold this coffee pending the result of the suit, but the tempo- 
 rary injunction was refused. 
 
 In its petition, the government argued that the facts pleaded 
 constituted a violation of the Anti-Trust Act. Acts and agree- 
 ments unlawful under statutes of the United States could not 
 become lawful because they were "not unlawful in Brazil and 
 were participated in by a foreign state." Though courts would 
 not, in general, exercise jurisdiction over the person or property 
 of a foreign sovereign, such jurisdiction would be assumed if "the 
 foreign state engages in a business transaction, as its rights then 
 are not superior to those of an individual citizen." Accordingly, 
 the petition prayed: 
 
 "i. That the acts set forth in the petition be declared to be 
 violative of the Anti-Trust Act, and that all claims, either 
 to the title or possession of the coffee, be declared illegal 
 and void. 
 
 "2. That the acts of the committee in the United States be 
 declared unlawful. (This would include all the sales here- 
 tofore made.) 
 
 "3. That the defendant, Sielcken, be restrained from further 
 withholding any of the American coffee from the market or 
 from imposing conditions in its sale.
 
 THE BRAZILIAN COFFEE CASE 161 
 
 "4 and 5. That a preliminary injunction be granted and that a 
 receiver be appointed, with power to sell." 
 
 On demurrer, the brief for the defendant set forth the follow- 
 ing points: 1 
 
 1. The courts of the United States had no jurisdiction because 
 the property of a foreign state was involved. "Sovereign states 
 stand on a basis of absolute equality, and all differences between 
 them must be adjusted through the ordinary channels of diplo- 
 macy, by the executive departments of the governments. One 
 sovereign will not subject another to the indignity of requiring 
 him to answer for his acts in the courts; and it makes no difference 
 whether the question involved concerns the person or property 
 of the sovereign." In this case, the coffee was the property of 
 Sao Paulo and guaranteed by the Republic of Brazil. "It can, 
 therefore, no more be interfered with by the courts of this country 
 than could the Ambassador of Brazil, if he were here in person 
 attempting to do an act contrary to the laws of this country." 
 The Sherman Act was no more applicable to a foreign sovereign 
 than any provision of the Criminal Code, nor could the property 
 of the Brazilian state be seized and condemned to sale "simply 
 because it is incidentally found in our harbor, in the custody of 
 an agent of that Republic, who appears by the complaint to be 
 acting strictly within his orders received from it." 
 
 2. Nothing in violation of the Sherman Act had been done in 
 the United States. The economic policy adopted by Sao Paulo 
 was lawful in Brazil and every act was controlled by the law of 
 the place where it was done. If it gave rise to no rights or liabili- 
 ties within that jurisdiction, "no rights can be asserted or liabili- 
 ties enforced in consequence of that act in the courts of another 
 jurisdiction, even though the act would have given rise to rights 
 and liabilities if done there." This had been the uniform rule in 
 the courts of the United States. (See American Banana Co. v. 
 United Fruit Co., 213 U.S. 347.) The only act done affecting the 
 United States was the shipment of the coffee to New York for sale. 
 That was not illegal, nor was it illegal to hold property lawfully 
 
 1 Counsel for the defendant were Messrs. Joseph H. Choate and John A. Carver. 
 The brief has been kindly furnished by Mr. Carver.
 
 1 62 SOVEREIGNTY, INDEPENDENCE, EQUALITY 
 
 acquired until such time as it could be sold at an advantageous 
 price. 
 
 3. There was defect of parties defendant. The two states whose 
 property rights were involved had not had an opportunity to be 
 heard. "To seize this coffee and sell it at a forced sale would be 
 such an act of overt hostility that no self-respecting government 
 could fail to resent it." 
 
 While the case was pending, the government found the scope 
 of the Sherman Act too narrow to admit of a successful prosecu- 
 tion of the suit. However, on the understanding that meanwhile 
 the coffee remain unsold, negotiations were opened with Brazil 
 with the result that by agreement the "valorized" coffee was put 
 on the market, on condition that the proceedings instituted by 
 the Government of the United States be discontinued. 
 
 (American Journal of International Law [1912], vol. vi, pp. 
 702-06; Journal of Political Economy [1913], vol. xxi, pp. 162- 
 63 ; Defendant's Brief and Affidavit.) 
 
 (c) Equality 
 
 UNITED STATES AND COLOMBIA (1888) 
 
 ON April 28, 1888, Mr. Bayard, Secretary of State for the 
 United States, wrote to Mr. Walker, American Charge at Bo- 
 gota: "Citizens of the United States in Colombia are exempted 
 from paying any tax from which the subjects or citizens of an- 
 other power are exempt, both by the 'favored nation' clause of 
 our treaty of 1846 with Colombia, and by the general principle 
 of the law of nations which justifies this government in insisting 
 that there shall be no undue discrimination against citizens of 
 the United States wherever they may be resident." 
 
 (Moore: Digest of International Law, vol. n, p. 57.)
 
 RESPECT FOR THE AMERICAN FLAG IN GREECE 163 
 (<f) Respect 
 
 RESPECT FOR THE AMERICAN FLAG LN GREECE 
 
 The Acting Secretary of State to Minister Moses 
 
 DEPARTMENT OF STATE, 
 Washington, June 18, /pop. 
 
 Sir: The Department is advised that in Piraeus the American 
 flag is extensively used by Greeks who have returned from a 
 sojourn in America in advertisement of saloons and cigar stores. 
 It seems probable that this custom also prevails in other parts of 
 Greece. You will, therefore, bring this matter to the attention of 
 the Foreign Office, and say that .the Department is desirous of the 
 cooperation of the Greek Government in preventing this abuse 
 and disgrace of the national emblem of the United States, and 
 confidently trusts that measures looking toward this end will be 
 taken or sanctioned by the Greek Government. 
 
 In this connection you will call to the attention of the Foreign 
 Office a similar case which arose in Brazil in the year 1864, wherein 
 the American Minister, with the consent and approval of the 
 Brazilian Government, issued a circular, directed to the United 
 States Consuls under his jurisdiction, prohibiting the flying of 
 the American flag in Brazil except by those in official capacities 
 or by other persons who should have previously received the per- 
 mission of the United States Minister for so doing. Reference to 
 this case will be found in Moore's Digest of International Law, 
 volume 2, at page 135. 
 
 The Department expects that, in conjunction with the Foreign 
 Office, you will devise means to put a stop to this abuse of the 
 flag of the United States. 
 
 I am, etc., HUNTINGTON WILSON. 
 
 Minister Moses to the Secretary of State 
 
 AMERICAN LEGATION, 
 Athens, October 18, 1909. 
 
 Sir: Referring to your instruction No. 4, of June 18 ultimo 
 (file No. 697/43), I have the honor to report that, having called
 
 164 RECOGNITION 
 
 the matter to the attention of the Greek Government, I have re- 
 ceived from the Minister for Foreign Affairs a communication 
 upon the subject, a copy of which, with translation, is enclosed 
 herewith. . . . 
 I have, etc., GEO. H. MOSES. 
 
 [Enclosure Translation] 
 
 The Minister for Foreign Affairs to Minister Moses. 
 
 THE FOREIGN OFFICE, 
 Athens, September 28, 1909. 
 
 Mr. Minister: Taking note of the steps which you have taken 
 with me toward the suppression of the abuse of the American 
 flag by its display over the saloons and wineshops at the Piraeus, 
 I hasten to bring to your knowledge that the director of police 
 of the neighboring city has received orders to exercise strict watch 
 and prevent the abuse in question. 
 
 K. B. MAVROMICHALIS. 
 
 (Foreign Relations of the United States, 1909, pp. 337-38.) 
 
 19. RECOGNITION 
 
 (a) New States 
 
 THE UNITED STATES AND BUENOS AYRES (1818) 
 
 ON August 24, 1818, Mr. Adams, Secretary of State, wrote to 
 the President: "In the draft of a letter to Mr. Aguirre ... I 
 have stated to him the grounds upon which the Government of 
 the United States have been deterred from an acknowledgment 
 of that of Buenos Ayres as including the dominion of the whole 
 viceroyalty of the La Plata. The result of the late campaign in 
 Venezuela, by comparing the royal and the republican bulletins, 
 has been so far disadvantageous to the latter that they have un- 
 doubtedly failed in obtaining possession of any part of the coast. 
 They have, therefore, at least one more campaign to contest, to go 
 through, for which they will need several months of preparation.
 
 THE UNITED STATES AND BUENOS AYRES 165 
 
 Bolivar appears to have resigned the chief military command to 
 Paez, and the army is to be reorganized. But the royalists do not 
 appear to have gained any ground, and are evidently too much 
 weakened by their losses to act upon the offensive. In this state 
 the independence of Venezuela can scarcely be considered hi a 
 condition to claim the recognition of neutral powers. But there 
 is a stage hi such contests when the parties struggling for inde- 
 pendence have, as I conceive, a right to demand its acknowledg- 
 ment by neutral parties, and when the acknowledgment may be 
 granted without departure from the obligations of neutrality. It 
 is the stage when independence is established as a matter of fact 
 so as to leave the chances of the opposite party to recover their 
 dominion utterly desperate. The neutral nation must, of course, 
 judge for itself when this period has arrived; and as the belliger- 
 ent nation has the same right to judge for itself, it is very likely 
 to judge differently from the neutral and to make it a cause or 
 pretext for war, as Great Britain did expressly against France in 
 our Revolution, and substantially against Holland. If war thus 
 results in point of fact from the measure of recognizing a con- 
 tested independence, the moral right or wrong of the war depends 
 upon the justice and sincerity and prudence with which the recog- 
 nizing nation took the step. I am satisfied that the cause of the 
 South Americans, so far as it consists in the assertion of independ- 
 ence against Spain, is just. But the justice of a cause, however 
 it may enlist individual feelings in its favor, is not sufficient to 
 justify third parties in siding with it. The fact and the right com- 
 bined can alone authorize a neutral to acknowledge a new and 
 disputed sovereignty. The neutral may, indeed, infer the right 
 from the fact, but not the fact from the right. If Buenos Ayres 
 confined its demand of recognition to the provinces of which it is 
 in actual possession, and if it would assert its entire independence 
 by agreeing to place the United States upon the footing of the most 
 favored nation, ... I should think the time now arrived when 
 its government might be recognized without a breach of neu- 
 trality." 
 
 (Moore: Digest of International Law, vol. I, pp. 78-79.)
 
 166 RECOGNITION 
 
 (6) New Governments 
 
 THE FRENCH REPUBLIC (1848) 
 
 FEBRUARY 24, 1848, Mr. Rush, United States Minister at Paris, 
 wrote that the attempt of the government to enforce with troops 
 an interdict forbidding a "reform banquet," which was to have 
 been held by the opposition members of the Chamber of Deputies 
 and others, had produced a state of things "little short of revolu- 
 tionary." Even as he wrote cavalry were hastily passing through 
 the streets within his hearing, and rumors were flying that the 
 King had abdicated and that the Count of Paris was proclaimed. 
 Scarcely had he folded his dispatch, when the revolution was ac- 
 complished and the monarchy overthrown. The King abdicated 
 and fled with the royal family, and all attempts to establish a 
 regency, with the Count of Paris as successor to the throne, failed. 
 A provisional government was immediately formed. It was pro- 
 claimed on the morning of Friday, the 25th, the proclamation 
 declaring that the Provisional Government desired a republic, 
 subject to the ratification of the French people. On Saturday, the 
 26th, Mr. Rush received an intimation that his "personal presence 
 at the Hotel de Ville, to cheer and felicitate the Provisional Govern- 
 ment, would be acceptable." Before the day was out he imparted 
 his determination to take the step. Monday, the 28th, was ap- 
 pointed for it, and on that day he repaired to the Hotel de Ville, 
 accompanied by his secretary of legation, and delivered to the 
 President and other members of the Provisional Government there 
 assembled an address of congratulation. On the same day he 
 acknowledged a note written by M. Lamartine, as Minister of 
 Foreign Affairs of "the Provisional Government of the French 
 Republic," and stated that, pending the receipt of instructions, 
 he would be ready to transact with him whatever business might 
 appertain to the United States or to its citizens in France. 
 
 Mr. Buchanan, in transmitting to Mr. Rush a letter of credence 
 to the French Republic, said: 
 
 "It was right and proper that the envoy extraordinary and 
 minister plenipotentiary from the United States should be the
 
 THE FRENCH REPUBLIC 167 
 
 first to recognize, so far as his powers extended, the Provisional 
 Government of the French Republic. Indeed, had the representa- 
 tive of any other nation preceded you in this good work, it would 
 have been regretted by the President. ... In its intercourse 
 with foreign nations the Government of the United States has, 
 from its origin, always recognized de facto governments. We 
 recognize the right of all nations to create and re-form their 
 political institutions according to their own will and pleasure. 
 We do not go behind the existing government to involve our- 
 selves in the question of legitimacy. It is sufficient for us to know 
 that a government exists capable of maintaining itself; and then 
 its recognition on our part inevitably follows. This principle of 
 action, resulting from our sacred regard for the independence of 
 nations, has occasioned some strange anomalies in our history. 
 The Pope, the Emperor of Russia, and President Jackson were 
 the only authorities on earth which ever recognized Dom Miguel 
 as King of Portugal. 
 
 "Whilst this is our settled policy, it does not follow that we 
 can ever be indifferent spectators to the progress of liberty through- 
 out the world, and especially in France. We can never forget the 
 obligations which we owe to that generous nation for their aid 
 at the darkest period of our Revolutionary War in achieving our 
 own independence. ... It was, therefore, with one universal burst 
 of enthusiasm that the American people hailed the late glorious 
 revolution in France in favor of liberty and republican govern- 
 ment. In this feeling the President strongly sympathizes. Warm 
 aspirations for the success of the new Republic are breathed from 
 every heart." 
 
 President Polk, in a special message to Congress, spoke in 
 similar terms, saying that Mr. Rush, called upon to act in a sudden 
 emergency, which could not have been anticipated by his in- 
 structions, "judged rightly of the feelings and sentiments of his 
 government and of his countrymen, when, in advance of the 
 diplomatic representatives of other countries, he was the first to 
 recognize, so far as it was in his power, the free government estab- 
 lished by the French people. 
 
 "The policy of the United States has ever been that of non- 
 intervention in the domestic affairs of other countries, leaving
 
 168 STATE SUCCESSION 
 
 to each to establish the form of government of its own choice. 
 While this wise policy will be maintained toward France, now 
 suddenly transformed from a monarchy into a republic, all our 
 sympathies are naturally enlisted on the side of a great people, 
 who imitating our example, have resolved to be free." 
 
 Congress, by a joint resolution, tendered its congratulations, 
 in the name of the American people, "to the people of France, 
 upon the success of then- recent efforts to consolidate the principles 
 of liberty in a republican form of government," and requested the 
 President to transmit the resolution to the American Minister at 
 Paris, with instructions to present it to the French Government. 
 
 (Extract from Moore: Digest of International Law, vol. I, 
 pp. 123-25.) 
 
 20. STATE SUCCESSION 
 (a) Things and obligations 
 
 THE SAPPHIRE 
 
 The Supreme Court of the United States, 1871 
 
 THIS was an appeal from the Circuit Court of the United States 
 for the District of California. 
 
 The case was one of collision between the American ship 
 Sapphire and the French transport Euryale, which took place in the 
 harbor of San Francisco on the morning of December 22, 1867, by 
 which the Euryale was considerably damaged. A libel was filed 
 in the District Court two days afterwards, in the name of the Em- 
 peror Napoleon III, then Emperor of the French, as owner of the 
 Euryale, against the Sapphire. The claimants filed an answer, al- 
 leging among other things that the damage was occasioned by the 
 fault of the Euryale. Depositions were taken, and the court 
 decreed in favor of the libelant and awarded him $15,000, the 
 total amount claimed. The claimants appealed to the Circuit 
 Court, which affirmed the decree. They then, in July, 1869, ap- 
 pealed to this court. In the summer of 1870 Napoleon III was 
 deposed. The case came on to be argued here February 16, 1871. 
 Three questions were raised:
 
 THE SAPPHIRE 169 
 
 1. The right of the Emperor of France to have brought suit in 
 our courts. 
 
 2. Whether, if rightly brought, the suit had not become abated 
 by the deposition of the Emperor Napoleon III. 
 
 3. The question of merits; one of fact, and depending upon evi- 
 dence stated toward the conclusion of the opinion, where the 
 point is considered. . . . 
 
 Mr. Justice Bradley delivered the opinion of the court: 
 "The first question raised is as to the right of the French Em- 
 peror to sue in our courts. On this point not the slightest difficulty 
 exists. A foreign sovereign, as well as any other foreign person, 
 who has a demand of a civil nature against any person here, may 
 prosecute it in our courts. To deny him this privilege would mani- 
 fest a want of comity and friendly feeling. Such a suit was sus- 
 tained in behalf of the King of Spain in the Third Circuit by 
 Justice Washington and Judge Peters in 1810. The Constitution 
 expressly extends the judicial power to controversies between a 
 state, or citizens thereof, and foreign states, citizens, or subjects, 
 without reference to the subject-matter of the controversy. Our 
 own government has largely availed itself of the like privilege to 
 bring suits in the English courts in cases growing out of our late 
 Civil War. Twelve or more of such suits are enumerated in the 
 brief of the appellees, brought within the last five years in the 
 English law, chancery, and admiralty courts. There are numer- 
 ous cases in the English reports in which suits of foreign sovereigns 
 have been sustained, though it is held that a sovereign cannot be 
 forced into court by suit. 
 
 "The next question is, whether the suit has become abated by 
 the recent deposition of the Emperor Napoleon. We think it has 
 not. The reigning sovereign represents the national sovereignty, 
 and that sovereignty is continuous and perpetual, residing in the 
 proper successors of the sovereign for the time being. Napoleon 
 was the owner of the Euryale, not as an individual, but as sov- 
 ereign of France. This is substantially averred in the libel. On 
 his deposition the sovereignty does not change, but merely the 
 person or persons in whom it resides. The foreign state is the true 
 and real owner of its public vessels of war. The reigning Emperor,
 
 170 STATE SUCCESSION 
 
 or National Assembly, or other actual person or party in power, 
 is but the agent and representative of the national sovereignty. 
 A change in such representative works no change in the national 
 sovereignty or its rights. The next successor recognized by our 
 government is competent to carry on a suit already commenced 
 and receive the fruits of it. A deed to or treaty with a sovereign 
 as such inures to his successors in the government of the country. 
 If a substitution of names is necessary or proper it is a formal 
 matter, and can be made by the court under its general power to 
 preserve due symmetry in its forms of proceeding. No allegation 
 has been made that any change in the real and substantial owner- 
 ship of the Euryale has occurred by the recent devolution of the 
 sovereign power. The vessel has always belonged and still be- 
 longs to the French nation. 
 
 "If a special case should arise in which it could be shown that 
 injustice to the other party would ensue from a continuance of the 
 proceedings after the death or deposition of a sovereign, the court, 
 in the exercise of its discretionary power, would take such order 
 as the exigency might require to prevent such a result. 
 
 "The remaining question relates to the merits of the case. . . . 
 
 "Decree of the Circuit Court reversed, and the cause remitted 
 to that court with directions to enter a decree in conformity with 
 this opinion." 
 
 (Wallace: Cases argued and adjudged in the Supreme Court of 
 the United States, vol. xi, pp. 164-71.) 
 
 THE CUBAN DEBT (1898) 
 
 BY the protocol of armistice between the United States and 
 Spain, signed at Washington August 12, 1898, it was provided: 
 
 "Article i. Spain will relinquish all claim of sovereignty over 
 and title to Cuba. 
 
 "Article 2. Spain will cede to the United States the Island of 
 Porto Rico and other islands now under Spanish sovereignty in 
 the West Indies, and also an island in the Ladrones to be selected 
 by the United States." 
 
 In the peace negotiations at Paris, the American Commission-
 
 THE CUBAN DEBT 171 
 
 ers, October 3, 1898, proposed the insertion in the definitive treaty 
 of the following clauses: 
 
 "The Government of Spain hereby relinquishes all claim of 
 sovereignty over and title to Cuba." 
 
 "The Government of Spam hereby cedes to the United States 
 the Island of Porto Rico and other islands now under Spanish 
 sovereignty in the West Indies, and also the Island of Guam, in 
 the Ladrones." 
 
 The Spanish Commissioners submitted, October 7, 1898, a 
 counter-proposal, by which Spain was to relinquish her sovereignty 
 over Cuba and transfer it to the United States, and by which the 
 "relinquishment and transfer" were declared to embrace "all 
 the prerogatives, powers, and rights" of Spam over the island and 
 its inhabitants, and "all charges and obligations of every kind in 
 existence at the time of the ratification of this treaty of peace, 
 which the Crown of Spain and her authorities in the Island of 
 Cuba may have contracted lawfully in the exercise of the sover- 
 eignty hereby relinquished and transferred, and which as such 
 constitute an integral part thereof." For the purpose of ascer- 
 taining what were such "charges and obligations," it was pro- 
 posed to be laid down that they "must have been levied and im- 
 posed in constitutional form and in the exercise of its legitimate 
 powers by the Crown of Spain, as the sovereign of the Island of 
 Cuba, or by its lawful authorities in the exercise of their respective 
 powers prior to the ratification of this treaty," and that they must 
 have been created "for the service of the Island of Cuba, or charge- 
 able to its own individual treasury." It was, however, to be ex- 
 pressly declared that they should, within these limitations, in- 
 clude "all debts, of whatsoever kind, lawful charges, the salaries 
 or allowances of all employees, civil and ecclesiastical, who shall 
 continue to render services in the Island of Cuba, and all pensions 
 in the civil and military services, and of widows and orphans." 
 
 And it was proposed that similar stipulations should be inserted 
 with regard to Porto Rico. 
 
 The American Commissioners, October u, 1898, rejected these 
 proposals, on the ground that they appeared to convey not a prop- 
 osition to "relinquish all claim of sovereignty over and title to 
 Cuba," but in substance a proposition to "transfer" to the United
 
 172 STATE SUCCESSION 
 
 States and in turn to Cuba "a mass of Spanish obligations and 
 charges." "It is difficult," added the American Commissioners, 
 "to perceive by what logic an indebtedness contracted for any 
 purpose can be deemed part of the sovereignty of Spain over the 
 Island of Cuba. In the article proposed it is attempted to yoke 
 with the transfer of sovereignty an obligation to assume an in- 
 debtedness arising out of the relations of Spain to Cuba. The 
 unconditional relinquishment of sovereignty by Spain stipulated 
 for in the protocol is to be changed into an engagement by the 
 United States to accept the sovereignty burdened with a large 
 mass of outstanding indebtedness. It is proper to say that if dur- 
 ing the negotiations resulting in the conclusion of the protocol 
 Spain had proposed to add to it stipulations in regard to Cuba such 
 as those now put forward, the proposal, unless abandoned, would 
 have terminated the negotiations. The American Commission- 
 ers, therefore, speaking for their government, must decline to 
 accept the burden which it is now proposed shall be gratuitously 
 assumed." l 
 
 (Extract from Moore: Digest of International Law, vol. I, pp. 
 351-52. Professor Moore was a member of the commission.) 
 
 (b) Allegiance 
 
 THE NATIONALITY OF THE FRENCH RESIDENTS OF 
 ALSACE-LORRAINE (1871) 
 
 As Thiers declared in the National Assembly, December 20, 
 1871, the French plenipotentiaries at Frankfort contended that 
 only those who were domiciled in Alsace-Lorraine at the date of 
 the signature of the preliminaries [of peace] should be considered 
 as becoming German subjects as a result of the conquest. The 
 adoption of this criterion would prevent many difficulties, since it 
 would be easier to bring the terms of the treaty to the attention 
 
 1 In the fuller development of these arguments, which will be found in Moore 
 (Digest of International Law, vol. i, p. 351 jf.), the United States successfully main- 
 tained this attitude, which was eventually accepted by Spain. For reference to the 
 authorities discussing this question, see Hershey : Essentials of International Public 
 Law, p. 135.
 
 FRENCH RESIDENTS OF ALSACE-LORRAINE 173 
 
 of all those domiciled in Alsace than it would be to reach those 
 who had been born there. But the Germans, influenced prob- 
 ably by the idea that Alsace had been formerly a part of the 
 Holy Roman Empire and that the Alsatians and Lorrainers 
 were of German blood, looked at the question from an ethnical 
 point of view and claimed as German subjects all those born on 
 the ceded territory. 
 
 The Treaty of Frankfort of May 10, 1871, has the following 
 stipulation regarding this matter (article 2) : 
 
 "French subjects, natives of the ceded territories, actually 
 domiciled in that territory, who wish to retain their nationality, 
 shall have until the ist of October, 1872, to change their domicile 
 to France and to establish themselves there, upon condition of 
 their making a previous declaration to that effect before the 
 competent authorities. This right may not be affected by laws 
 in regard to military service. Those who remove to France, 
 in accordance with this provision, shall retain their French 
 citizenship." 
 
 The French Government tried to secure as restricted an appli- 
 cation as possible for the word native (originaire), but were fain 
 to agree by article i of the additional convention to the Treaty of 
 Frankfort that the natives even though not domiciled (in the ceded 
 territory) could not retain their French nationality without dec- 
 laration; so that every native of Alsace-Lorraine, in whatever 
 part of the world he might be, could only avoid becoming a Ger- 
 man subject by making the prescribed declaration. 
 
 Another and more serious difference of opinion arose in regard 
 to the inhabitants of the ceded provinces who were natives of 
 other French departments. The German Government did not 
 exact a declaration from individuals in this category in order to 
 preserve their nationality, that would have been manifestly 
 contrary to the terms of the treaty, but announced its inten- 
 tion of requiring them to transfer their domicile to France. The 
 French Government had always believed the cession would not 
 affect the nationality of this class. 
 
 In a note of September i, 1872, to the French Minister for 
 Foreign Affairs, the German Ambassador set forth the views of 
 his government:
 
 174 STATE SUCCESSION 
 
 "The German Government has from the first considered that, 
 by the mere fact of the cession of Alsace and Lorraine to Germany, 
 the inhabitants of French nationality became German, without 
 there being any need that this should be expressly stipulated hi 
 the treaty of peace; and article 2, as Germany looked at it, had 
 no other meaning or aim than to fix the conditions by the observ- 
 ance of which a certain category of inhabitants] might escape 
 from this natural consequence of the cession. In requiring these 
 latter to make a formal declaration in favor of France and to 
 transfer their actual residence [domicile effectif], the German Gov- 
 ernment did not, however, intend to dispense with the requirement 
 of any formality from another category of individuals who also 
 became German in consequence of the cession, in case they desire 
 to recover their former nationality." 
 
 A note was inserted in the Official Journal of September 14, 
 1872, to bring to the attention of those concerned this difference 
 of interpretation that they might have time to act upon it before 
 the expiration of the delay. 
 
 (Condensed and translated from G. Cogordan: La Nationality 
 [2d ed., Paris, 1900], pp. 359-64.) 
 
 (c) Property rights of individuals 
 
 THE CANAL ZONE SQUATTERS (1913) 
 
 IN accordance with the terms of article 15 of the treaty between 
 the United States and Panama signed November 18, 1903, and 
 ratified February 26, 1904, the President of Panama in January, 
 1913, appointed the Honorable Federico Boyd, a former President 
 of the Republic, and the Honorable Samuel Lewis, a former Min- 
 ister of Foreign Affairs, to represent the Republic of Panama on 
 the joint commission under the treaty. At the same tune Presi- 
 dent Taft appointed Dr. Roland P. Falkner, of Washington, 
 D.C., and Dr. L. S. Rowe, of the University of Pennsylvania, to 
 represent the United States. The American Commissioners ar- 
 rived on the Isthmus in February and on the ist of March the 
 first formal meeting of the commission was held.
 
 THE CANAL ZONE SQUATTERS 175 
 
 The competence and purpose of the commission were denned 
 by article 6 of the treaty: 
 
 "The grants herein contained shall in no manner invalidate 
 the titles or rights of private landholders or owners of private 
 property in the said zone or in or to any of the lands or waters 
 granted to the United States by the provisions of any article of 
 this treaty, nor shall they interfere with the rights of way over 
 the public roads passing through the said zone or over any of the 
 said lands or waters unless said rights of way or private rights 
 shall conflict with rights herein granted to the United States, in 
 which case the rights of the United States shall be superior. All 
 damages caused to the owners of private lands or private property 
 of any kind by reason of the grants contained in this treaty or by 
 reason of the operations of the United States, its agents or em- 
 ployees, or by reason of the construction, maintenance, operation, 
 sanitation, and protection of the said canal or of the works of 
 sanitation and protection herein provided for, shall be appraised 
 and settled by a joint commission appointed by the Governments 
 of the United States and the Republic of Panama, whose decisions 
 as to such damages shall be final, and whose awards as to such 
 damages shall be paid solely by the United States. No part of the 
 work on said canal or the Panama Railroad or on any auxiliary 
 works relating thereto and authorized by the terms of this treaty 
 shall be prevented, delayed or impeded by or pending such pro- 
 ceedings to ascertain such damages. The appraisal of said private 
 lands and private property and the assessment of damages to them 
 shall be based upon their value before the date of this convention." 
 
 The most important question confronting the commission re- 
 lated to the status of settlers or occupiers of public lands in the 
 Canal Zone, who went upon such lands prior to the conclusion of 
 the Treaty of February 26, 1904. Under the Colombian law which 
 prevailed in the Canal Zone prior to the independence of the Re- 
 public of Panama, and which continued in force while the Re- 
 public of Panama exercised jurisdiction over the Canal Zone, 
 occupiers of, or squatters on, public lands, were entitled to com- 
 pensation for the value of their improvements if for any reason 
 they were ousted from such lands. Counsel for the United States 
 strenuously contended that the transfer of the political jurisdic-
 
 176 STATE SUCCESSION 
 
 tion over the Canal Zone to the United States destroyed any 
 rights that might have been acquired by settlers or occupiers 
 under the Colombian law. It was argued that under the general 
 principles of American jurisprudence unauthorized occupiers of 
 public lands are mere trespassers, and that a trespass cannot be 
 made the foundation of a right. Great legal acumen was dis- 
 played by counsel both for the United States and the parties in 
 interest, and after an exhaustive argument before the commission 
 and prolonged deliberation within the commission the conclusion 
 was finally reached by unanimous vote that settlers or occupiers 
 of public lands in the Canal Zone, who went upon such lands prior 
 to the conclusion of the Treaty of February 26, 1904, were en- 
 titled to compensation for the value of the improvements which 
 they had made on such lands. The opinion establishing this 
 principle reads as follows: 
 
 " With reference to the status of such occupiers, it is clear that 
 under the provisions of the Laws of the United States of Colombia 
 and subsequently of the Republic of Panama, cultivators on 
 public lands acquire a right to compensation for improvements, 
 which rights were not divested by anything contained in the Treaty 
 of November 18, 1903, or by the change of sovereignty affected by 
 that treaty. 
 
 "The rights of occupiers on public lands of the United States of 
 Colombia to compensation for improvements made thereon, are 
 governed by law No. 48 of 1882. . . ." 
 
 After quoting the terms of the law and referring to decisions 
 of the courts of the Canal Zone, the commission made the follow- 
 ing rule to govern the award of damages in particular instances: 
 "In all those cases in which rights accrued prior to November 18, 
 1903, to occupiers or settlers on public lands, such rights were not 
 divested by the Treaty of November 18, 1903, and . . . such 
 settlers or occupiers are entitled to compensation for such rights 
 as have accrued." 
 
 (Prepared from an article by Dr. Leo S. Rowe, a member of 
 the commission, in The American Journal of International Law 
 [1914], vol. vm, pp. 738-42.)
 
 NORTH ATLANTIC FISHERIES ARBITRATION 177 
 21. SERVITUDES AND LEASES 
 
 THE NORTH ATLANTIC FISHERIES ARBITRATION 
 
 The Permanent Court of Arbitration at The Hague, 
 
 WHEN, on January 27, 1909, Mr. Root, Secretary of State of 
 the United States, and Mr. Bryce, British Ambassador at Wash- 
 ington, signed a special agreement submitting the North Atlantic 
 Fisheries dispute to arbitration at The Hague, the final step was 
 taken toward the settlement of the most persistent controversy 
 in the history of American diplomacy. It was just the kind of 
 question contemplated in the General Arbitration Treaty of 
 April 4, 1908, which undertook to refer to arbitration "differences 
 which may arise of a legal nature or relating to the interpretation 
 of treaties existing between the two contracting parties and which 
 it may not have been possible to settle by diplomacy;" and it 
 was in conformity with this treaty that the agreement was made, 
 inasmuch as the issue submitted called for the interpretation of 
 the first article of the Convention of 1818, by which the two 
 parties had sought to define the rights of American fishermen in 
 British North American waters. 
 
 In 1782-83, when Great Britain and her former colonies came 
 together in negotiations for peace, one of the subjects upon which 
 agreement was found most difficult was the nature The Treaty of 
 and the extent of the fishing rights hi the North Peftce ^83 
 Atlantic. Previous to the Revolution, the colonists had resorted 
 to the fishing grounds on equal terms with their fellow-subjects 
 in the mother country. They had assisted in acquiring them 
 during the colonial wars and had found in them one of their chief 
 sources of wealth, relatively much more important at that time 
 than to-day. But these national and economic interests of the 
 United States collided with the British claim to sovereign control, 
 and hence, when the negotiators addressed themselves to the 
 disposal of the fisheries, two opposite theories were advanced. 
 The Americans, especially John Adams, maintained that what 
 was taking place was a "division of empire" and that the colonies,
 
 1 78 SERVITUDES AND LEASES 
 
 on withdrawal, still retained all their former rights, among them 
 the free use and enjoyment of the fisheries. "The treaty was 
 nothing more than mutual acknowledgment of antecedent right." 
 The British, on the other hand, considered the fisheries an acqui- 
 sition by the British Crown for the use of British subjects and 
 always at the disposal of Great Britain, and maintained that the 
 Americans, having lost the rights as well as the status of British 
 subjects, could get back former fishing privileges only by way of 
 grant from Great Britain. After several proposals on each side, 
 agreement was reached in article 3 of the treaty of peace, as 
 follows: 
 
 "It is agreed that the people of the United States shall con- 
 tinue to enjoy unmolested the right to take fish of every kind on 
 the Grand Bank, and on all the other banks of Newfoundland; 
 also in the Gulf of St. Lawrence, and at all other places in the sea, 
 where the inhabitants of both countries used at any time hereto- 
 fore to fish; and also that the inhabitants of the United States 
 shall have liberty to take fish of every kind on such part of the 
 coast of Newfoundland as British fishermen shall use (but not to 
 dry or cure the same on that island) ; and also on the coasts, bays 
 and creeks of all other of His Britannic Majesty's dominions in 
 America; and that the American fishermen shall have liberty to 
 dry and cure fish in any of the unsettled bays, harbors, and creeks 
 of Nova Scotia, Magdalen Islands, and Labrador, so long as the 
 same shall remain unsettled; but so soon as the same or either of 
 them shall be settled, it shall not be lawful for the said fishermen 
 to dry or cure fish at such settlement, without a previous agree- 
 ment for that purpose with the inhabitants, proprietors, or pos- 
 sessors of the ground." 
 
 Two kinds of fishery were the subject of this article the 
 offshore and deep-sea fishery, which is designated as a right to be 
 continued in enjoyment, and the inshore fishery, participation in 
 which was said to be a liberty. The reservation, "such part of the 
 coast of Newfoundland as British fishermen shall use," had in 
 mind the restriction already placed on the western and northern 
 coasts of that island by the fishing rights possessed by the French 
 under the Treaties of Utrecht and Paris. The other liberty ob- 
 tained that of drying and curing fish was limited in scope
 
 NORTH ATLANTIC FISHERIES ARBITRATION 179 
 
 and of uncertain tenure, because conditional upon the non- 
 settlement of the coast. 
 
 The fishery agreement of 1783 proved satisfactory and re- 
 mained unchallenged, until the War of 1812 disclosed a funda- 
 mental difference of view as to the effect of the war The Controver- 
 upon the Treaty of 1783, especially upon its third 8y ~~ I8l2 ~ l8 
 article. Great Britain contended that the "liberties" obtained 
 under that treaty, being in the nature of commercial concessions, 
 had been abrogated by the event of "war and could be recovered 
 only for a consideration. The United States contended that the 
 treaty of peace had been, from its nature, a permanent settlement, 
 not to be affected by future wars, and that any fishing privileges 
 specified were preexisting rights automatically remaining with 
 the Americans on the "division of empire," the permanency of 
 which rights was no more open to challenge than the recognition 
 of independence or the establishment of the boundaries. No 
 agreement, however, could be reached by the negotiators of the 
 Treaty of Ghent, and the subject of the fisheries was left in 
 abeyance. Thus, for a time, the status of American fishermen in 
 British colonial waters remained undefined. 
 
 Such a condition, however, produced friction, and seizures of 
 American fishing vessels began to be made within British waters, 
 though no claim was made by Great Britain to exercise jurisdic- 
 tion over fishing on the high seas. A warning given to an American 
 vessel by a British warship to desist from fishing within sixty 
 miles of the coast of Nova Scotia, when made the subject of 
 protest by the United States, brought forth the declaration from 
 the British Government that "as, on the one hand, Great Britain 
 could not permit the vessels of the United States to fish within 
 the creeks and close upon the shores of the British territories, so, 
 on the other hand, it was by no means her intention to interrupt 
 them in fishing anywhere in the open sea, or without the territorial 
 jurisdiction, a marine league from the shore; and, therefore, that 
 the warning given at the place stated, in the case referred to, was 
 altogether unauthorized." 
 
 This intention of Great Britain to exclude American fishing 
 vessels from the territorial waters met with continuous protest 
 from the United States and a considerable correspondence passed
 
 l8o SERVITUDES AND LEASES 
 
 in 1815-16 between John Quincy Adams, then Minister of the 
 United States at London, and Lord Bathurst, on the part of the 
 British Government. The positions taken in the negotiations at 
 Ghent were maintained. Lord Bathurst argued that, while some 
 of the provisions of the Treaty of 1783 might, from their nature, 
 be irrevocable, the language of the article dealing with the fish- 
 eries showed that it was not intended to survive a war between the 
 parties. The words "right" and "liberty" were contrasted, the 
 former, throughout the treaty, being used "as applicable to what 
 the United States were to enjoy in virtue of a recognized inde- 
 pendence," the latter, "to what they were to enjoy as concessions 
 strictly dependent on the treaty itself." "The grant of this 
 liberty," wrote Lord Bathurst, "has all the aspect of a policy 
 temporary and experimental, depending on the use that might be 
 made of it." Mr. Adams, on the other hand, stoutly reiterated 
 his former argument that the treaty had survived the war and 
 with it the fishing liberties. He understood the term "liberty" 
 to be "essentially as permanent as that of 'right' . . . and a 
 modification of the same thing." The liberties had never been 
 renounced by the United States and hence were as much in its 
 possession as ever. In Mr. Adams's opinion, "the participation 
 in the liberties of which their right is now maintained is far more 
 important to the interests of the people of the United States than 
 the exclusive enjoyment of them can be to the interests of Great 
 Britain," and he expressed the belief that the smuggling on the 
 part of American fishing vessels and their obstruction of British 
 fishermen, both objects of complaint by Great Britain, could be 
 "obviated by arrangements duly concerted between the two 
 governments." 
 
 After two or three years of unsuccessful negotiations, commis- 
 sioners from both sides at last met in London in 1818 to draw up 
 TheConven- a new commercial convention in place of the one 
 tion of 1818 w hich was to expire in 1819. At the same time they 
 were empowered to make a settlement of the fishery dispute 
 and other questions arising out of the late war. The result was 
 the convention, signed October 20, 1818, respecting fisheries, 
 boundaries, and the restoration of slaves, the first article of which 
 is as follows:
 
 NORTH ATLANTIC FISHERIES ARBITRATION 181 
 
 "Whereas differences have arisen respecting the liberty claimed 
 by the United States for the inhabitants thereof, to take, dry, 
 and cure fish on certain coasts, bays, harbors, and creeks of His 
 Britannic Majesty's dominions in America, it is agreed between 
 the high contracting parties, that the inhabitants of the said 
 United States shall have forever, in common with the subjects of 
 His Britannic Majesty, the liberty to take fish of every kind on 
 that part of the southern coast of Newfoundland which extends 
 from Cape Ray to the Rameau Islands, on the western and north- 
 ern coast of Newfoundland, from the said Cape Ray to the Quirpon 
 Islands on the shores of the Magdalen Islands, and also on the 
 coasts, bays, harbors, and creeks from Mount Joly on the south- 
 ern coast of Labrador, to and through the Straits of Belleisle and 
 thence northwardly indefinitely along the coast, without preju- 
 dice however, to any of the exclusive rights of the Hudson Bay 
 Company: and that the American fishermen shall also have 
 liberty forever, to dry and cure fish in any of the unsettled bays, 
 harbors, and creeks of the southern part of the coast of New- 
 foundland hereabove described, and of the coast of Labrador; 
 but so soon as the same, or any portion thereof, shall be settled, it 
 shall not be lawful for the said fishermen to dry or cure fish at 
 such portion so settled, without previous agreement for such pur- 
 pose with the inhabitants, proprietors, or possessors of the ground. 
 And the United States hereby renounce forever any liberty here- 
 tofore enjoyed or claimed by the inhabitants thereof, to take, 
 dry, or cure fish on, or within three marine miles of any of 
 the coasts, bays, creeks, or harbors of His Britannic Majesty's 
 dominions in America not included within the above-mentioned 
 limits; provided, however, that the American fishermen shall 
 be admitted to enter such bays or harbors for the purpose 
 of shelter and of repairing damages therein, or purchasing wood, 
 and of obtaining water, and for no other purpose whatever. But 
 they shall be under such restrictions as may be necessary to 
 prevent their taking, drying, or curing fish therein, or in any 
 other manner whatever abusing the privileges hereby reserved 
 to them." 
 
 An analysis of the terms of this article and a comparison with 
 the corresponding article in 1783 show that
 
 1 82 SERVITUDES AND LEASES 
 
 1. Nothing was said in 1818 of the "right" to the deep-sea 
 fishery, admitted in 1783. As no controversy had arisen 
 over its permanence, it remained with the United States. 
 
 2. In 1783, the "liberty" to take fish, granted to the inhabitants 
 of the United States, was to be exercised in all British terri- 
 torial waters except those of Newfoundland, where it was 
 restricted to "such part of the coast as British fishermen 
 shall use;" in 1818, this liberty was .limited to four specified 
 coasts, one of them the "French shore," so called. 
 
 3. The liberty of 1818 was to be enjoyed "forever," which 
 word was insisted upon by the American Commissioners. 
 
 4. The words, "in common with the subjects of His Britannic 
 Majesty," were inserted in 1818 at the instance of the British 
 Commissioners, it being understood at the time by the 
 American Commissioners that they were intended to pre- 
 vent exclusion of British fishermen from these treaty coasts. 
 Later, Great Britain interpreted the words to imply subjec- 
 tion to regulation in common with British fishermen. 
 
 5. The liberty to dry and cure fish was continued "forever" 
 in 1818, but with changes in locality. 
 
 6. As consideration, the United States "renounced forever" all 
 other liberties possessed under the Treaty of 1783, the in- 
 ference being that something had continued from 1783 and 
 was perpetual save for the renunciation. 
 
 7. This renunciation was to be effective "within three marine 
 miles of any of the coasts, bays, creeks, or harbors of His 
 Britannic Majesty's dominions in America not included 
 within the above mentioned limits." 
 
 8. Entry, however, was permitted in the renounced waters for 
 four specified purposes and for no other. 
 
 9. Such entry was subject to the restrictions necessary to con- 
 fine it to the purposes of the convention. 
 
 The Convention of 1818 put an end for a time to all questions 
 of treaty interpretation. Great Britain supplemented the con- 
 The Controver- vention with appropriate governmental action by 
 871818-1909 th e ac t o f June 14, 1819, empowering the Crown, 
 by regulations and instructions to colonial fishery officers, to give
 
 NORTH ATLANTIC FISHERIES ARBITRATION 183 
 
 effect to the purpose of the convention, and by the orders in council 
 which issued in accordance with the act. Some seizures continued 
 to be made, but they became questions of fact, not of debatable 
 right. Nothing happened to challenge the fisheries settlement 
 until the passage in 1836 of the Nova Scotia Hovering Act by 
 which it was sought to prevent infraction of the revenue laws on 
 the part of American fishing vessels by making it an offense 
 punishable by confiscation for them to hover under suspicious 
 circumstances within three miles of the Nova Scotia coast. This 
 act was adopted by the British Government "as the rules, regu- 
 lations, and restrictions respecting the fisheries on the coasts, bays, 
 creeks, and harbors of the province of Nova Scotia." Some seiz- 
 ures were made under the Hovering Act, but all for offenses com- 
 mitted within the ordinary territorial jurisdiction of three miles 
 from the shore. In 1839, however, the authorities of Nova Scotia 
 began to put a new interpretation upon the renunciation clause 
 in so far as it applied to "bays." The term, they maintained, was 
 geographical and included all bays, whatever their extent, and 
 corollary to this was advanced the "headland theory," under 
 which the jurisdictional limit of three miles was to be measured 
 by a line drawn from headland to headland along the coast. The 
 privileges of entry under the treaty were also scrutinized and 
 made difficult of enjoyment. At about the same time attempt 
 was made to compel American fishing vessels to pay light dues on 
 their passage through the Strait of Canso, which was claimed by 
 the United States as part of the high seas and not at all within the 
 scope of the renunciation clause of the Convention of 1818. Fresh 
 seizures were made in accordance with these new interpretations, 
 notably that of the Washington in the Bay of Fundy and that of 
 the Argus off the coast of Cape Breton, in each case far beyond 
 three miles from shore. Both seizures were protested by the 
 United States, and under the claims of the Convention of 1853 
 favorable awards were obtained. 
 
 In 1854 all disputes over fishing rights were for a time termi- 
 nated by the Reciprocity Treaty negotiated among other reasons 
 "to avoid further misunderstanding ... in regard to the extent 
 of the right of fishing on the coasts of British North America." 
 Under this treaty the American fishing liberties of 1818 were
 
 1 84 SERVITUDES AND LEASES 
 
 extended so as to operate in all coast waters of the provinces 
 (with the exception of Newfoundland whose participation in the 
 treaty was to be upon conditions) in return for similar liberties 
 accorded British fishermen in the waters of the United States 
 north of the thirty-sixth parallel of north latitude. This recip- 
 rocal agreement remained in force until 1866, being terminated 
 in that year by notice from the United States, given in accordance 
 with .the fifth article of the treaty. Thereupon, the status of 
 fishing rights reverted back to the Convention of 1818. To avoid 
 temporarily a revival of the former controversies, American 
 fishermen were allowed to enjoy the privileges they had had under 
 the Reciprocity Treaty on payment of special licenses, but in 
 1870 this system was discontinued. 
 
 In 1867 the provinces of Canada, New Brunswick, and Nova 
 Scotia confederated and after that time jurisdiction over their 
 fisheries was vested in the Dominion Government. Newfound- 
 land remained outside the Confederation, as she still does, and 
 her legislation is always to be considered apart from that of 
 Canada. The remaining maritime province, Prince Edward 
 Island, entered the Dominion in 1873. One of the diplomatic 
 difficulties throughout the whole controversy, and especially in 
 its later years, has been the virtual independence of Canada and 
 Newfoundland with respect to fishery legislation, coupled with 
 the international responsibility of Great Britain for the same. In 
 1868 and 1870 legislation was enacted by the Dominion Parlia- 
 ment "respecting fishing by foreign vessels" which was more 
 severe in its application than the Nova Scotia Hovering Act of 
 1836. In particular several seizures were made for the offense of 
 purchasing bait within Canadian waters, held by the Canadian 
 courts to be "a preparing to fish" within the meaning of the acts. 
 The Government of the United States was contemplating retalia- 
 tory measures, among them the suspension of the bonding 
 privilege extended to Canadian goods when in transit through 
 the United States, but before any such action became neces- 
 sary a joint high commission met in Washington in 1871 to settle 
 outstanding differences between the two nations. The result of 
 their negotiations was the Treaty of Washington, which, in so 
 far as it dealt with the fisheries, virtually revived the reciprocal
 
 NORTH ATLANTIC FISHERIES ARBITRATION 185 
 
 arrangements of 1854 save that the limit for British fishing in 
 American waters was now 39 north latitude. The fishery pro- 
 visions of the Treaty of Washington went into effect in 1873 ( m 
 Newfoundland in 1874) and expired, again by notice from the 
 United States, in 1885, after which date the Convention of 1818 
 for the third time became the measure of American fishing rights. 
 
 As Great Britain contended that the United States was re- 
 ceiving the more valuable consideration, it was provided in the 
 Treaty of Washington that a commission should determine the 
 difference in value, if any, between the two reciprocal conces- 
 sions and award a corresponding amount to Great Britain in com- 
 pensation. This commission met in Halifax hi 1877 and awarded 
 to Great Britain' $5, 500,000, which sum was duly paid by the 
 United States. 
 
 The agreement of 1871, however, failed to remove the sources of 
 friction. Local regulations, especially in Newfoundland, were 
 disregarded by American fishermen as contravening treaty rights, 
 and the attempt to enforce them led to occasional collisions. The 
 most serious of these occurred at Fortune Bay in Newfoundland 
 on January 6, 1878, when American fishermen were attacked by 
 the inhabitants and forcibly prevented from taking fish, the 
 reason assigned being the infringement of Newfoundland laws 
 preventing Sunday fishing as well as the use of seines at that 
 season of the year. This raised in a direct manner the question 
 as to whether fishing liberties held "in common with the subjects 
 of Her Britannic Majesty" could be restricted in their exercise 
 by colonial or British regulation. The treaty involved in this 
 case was that of 1871 under which all coast waters were open to 
 Americans, but the same question was later at issue within the 
 limits of the treaty coast on the revival in 1885 of the Convention 
 of 1818. The Fortune Bay incident was settled in 1881 by the 
 payment by Great Britain of 15,000 by way of damages, but 
 "without prejudice to any question of the rights of either of the 
 two governments" under the Treaty of 1871. The incident, how- 
 ever, implying as it did the claim of Newfoundland to legislate for 
 American fishermen, together with the dissatisfaction of the 
 United States over the award of the Halifax Commission, was 
 responsible for the failure to renew the Treaty of Washington.
 
 1 86 SERVITUDES AND LEASES 
 
 On the termination of the Treaty of Washington, the Canadian 
 Government revived its fishing regulations and gave instructions 
 that they be strictly enforced. With respect to foreign fishermen, 
 the fishery officers were "to see that they obey the laws of the 
 country, that they do not molest British fishermen in the pursuit 
 of their calling, and that they observe the regulation of the fish- 
 ing laws in every respect;" and they were also "to prevent 
 foreign fishing vessels and boats which enter bays and harbors 
 for the four legal purposes . . . from taking advantage thereof 
 to take, dry, or cure fish therein, to purchase bait, ice, or supplies, 
 or to trans-ship cargoes or from transacting any business in con- 
 nection with their fishing operations." In accordance with these 
 restrictions, seizures began again to occur, at which vigorous 
 diplomatic protest was made by the United States, followed up in 
 1887 by the passage of a retaliatory act to be enforced at the dis- 
 cretion of the President. But the same year proposals were made 
 for a new treaty and negotiations were held at Washington by 
 joint commissioners, who, on February 15, 1888, signed a new 
 agreement on the fisheries, which, however, failed to secure the 
 consent of the Senate of the United States. Pending ratification 
 of the treaty the commissioners agreed to a modus vivendi, which 
 temporarily removed all difficulties and which, despite the failure 
 of the treaty, was continued hi force by Canada down to 1910. 
 Newfoundland obviated further disputes by a system of licenses 
 permitting the purchase of bait and supplies and the shipment 
 of crews for foreign vessels. 
 
 In 1892 an effort was made to improve relations between the 
 United States and Newfoundland by the so-called Blaine-Bond 
 Treaty, which Great Britain failed to ratify because of Canadian 
 opposition. In 1902 another treaty was negotiated, the Hay- 
 Bond Convention, but it, too, failed of ratification, this time in the 
 Senate of the United States. By way of retaliation, Newfound- 
 land, after 1905, began to refuse American fishermen licenses and 
 to enact legislation calculated to make the exercise of American 
 fishing rights as difficult as possible. Regulations as to the days, 
 hours, and manner of fishing were enforced, Newfoundlanders 
 were forbidden to be employed on foreign vessels in treaty waters, 
 and entry and clearance at custom-houses were required of
 
 NORTH ATLANTIC FISHERIES ARBITRATION 187 
 
 American fishing vessels, as well as payment of light and harbor 
 dues. These measures drew immediate protest from the Govern- 
 ment of the United States and in consequence the whole question 
 of American fishing rights under the Convention of 1818 was re- 
 opened. The positions taken were found to be irreconcilable 
 through diplomacy, but, on the suggestion of the United States, 
 it was decided to have recourse to arbitration, with the result 
 that after much time and care a form of submission was agreed 
 upon. Meanwhile, a modus vivendi, renewed annually, prevented 
 further trouble in Newfoundland waters. 
 
 Under the special agreement to arbitrate, the tribunal was to 
 be chosen from the Permanent Court of Arbitration at The Hague 
 and its procedure was substantially that laid down TheArbitra- 
 in the Convention for the Pacific Settlement of Inter- tion of x 10 
 national Disputes of 1907. Should any question be raised as to 
 the reasonableness of any regulation, the tribunal might refer 
 such question to a commission of experts. At the same time it 
 was empowered to recommend rules and a method of procedure 
 for the determination of any questions arising in the future as to 
 the exercise of the fishing liberties. 
 
 The personnel of the tribunal was chosen by direct agreement, 
 as follows: Dr. Lammasch, of Austria, who presided; Dr. A. F. 
 de Savornin Lohman, of the Netherlands; Dr. Drago, of the 
 Argentine Republic; Judge Gray, of the United States Circuit 
 Court of Appeals; and Sir Charles Fitzpatrick, Chief Justice of 
 Canada. Each party was represented by an agent, Great Britain 
 by the Honorable A. B. Aylesworth, the United States by the 
 Honorable Chandler P. Anderson. There was a large array of 
 counsel on each side, chief among whom were Senator Root for 
 the United States and Sir Robert Finlay for Great Britain. The 
 tribunal convened on July i, 1910, and held forty-one sessions, 
 rendering its award on September 7, 1910. 
 
 As has been already indicated, the arbitral submission called 
 for the interpretation of article i of the Convention of 1818. 
 The scope of arbitration was slightly narrowed by an agreement, 
 in an exchange of notes, to omit any question as to the Bay of 
 Fundy or the right of innocent passage through the Gut of Canso, 
 there being in the present arbitration no prejudice to the respec-
 
 1 88 SERVITUDES AND LEASES 
 
 tive contentions on either side. But apart from this, all the 
 controversy of the century was summed up in a series of seven 
 questions submitted to the tribunal for decision. For the sake of 
 convenience each question, with that part of the award bearing 
 upon it, will be discussed separately. 
 _ . _ " To what extent are the following contentions or 
 
 Question One . , 
 
 either of them justified? 
 
 "It is contended on the part of Great Britain that the exercise 
 of the liberty to take fish referred to in the said article, which 
 the inhabitants of the United States have forever in common with 
 the subjects of His Britannic Majesty, is subject, without the 
 consent of the United States, to reasonable regulation by Great 
 Britain, Canada, or Newfoundland, hi the form of municipal laws, 
 ordinances, or rules, as, for example, to regulations in respect of 
 (i) the hours, days, or seasons when fish may be taken on the 
 treaty coasts; (2) the method, means, and implements to be used 
 in the taking of fish or in the carrying on of fishing operations on 
 such coasts; (3) any other matters of a similar character relating 
 to fishing; such regulations being reasonable, as being, for 
 instance 
 
 " (a) Appropriate or necessary for the protection and preserva- 
 tion of such fisheries and the exercise of the rights of British 
 subjects therein and of the liberty which by the said article 
 i the inhabitants of the United States have therein in com- 
 mon with British subjects; 
 
 " (6) Desirable on grounds of public order and morals; 
 
 " (c) Equitable and fair as between local fishermen and the in- 
 habitants of the United States exercising the said treaty 
 liberty, and not so framed as. to give unfairly an advantage 
 to the former over the latter class. 
 
 "It is contended on the part of the United States that the exer- 
 cise of such liberty is not subject to limitations or restraints by 
 Great Britain, Canada, or Newfoundland in the form of municipal 
 laws, ordinances, or regulations in respect of (i) the hours, days, 
 or seasons when the inhabitants of the United States may take 
 fish on the treaty coasts; or (2) the method, means, and imple- 
 ments used by them in taking fish or in carrying on fishing opera-
 
 NORTH ATLANTIC FISHERIES ARBITRATION 189 
 
 tions on such coasts; or (3) any other limitations or restraints of 
 similar character 
 
 " (a) Unless they are appropriate and necessary for the protec- 
 tion and preservation of the common rights in such fisheries 
 and the exercise thereof; and 
 
 " (6) Unless they are reasonable in themselves and fair as be- 
 tween local fishermen and fishermen coming from the 
 United States, and not so framed as to give an advantage 
 to the former over the latter class; and 
 
 " (c) Unless their appropriateness, necessity, reasonableness, 
 and fairness be determined by the United States and Great 
 Britain by common accord and the United States con- 
 curs in their enforcement." 
 
 It will be noticed that in the submission of this question both 
 parties are in substantial accord as to the necessity of regulations 
 and as to the nature of them: they must in all cases be "reason- 
 able." The main contention is over what is "reasonable regula- 
 tion." "Reasonableness" as a standard is liable to vary. Who 
 shall be the judge? Shall Great Britain alone, in virtue of her 
 territorial sovereignty, determine what is reasonable for them or 
 shall such reasonableness be a matter for "common accord"? 
 "The two parties," said Mr. Root, "approach the subject of the 
 first question from different points of view. . . . Great Britain 
 states the question as a question relating to the exercise of her 
 sovereign rights. The United States states the question as relating 
 to the inviolability of her grant of right." The essential point to 
 establish, the United States maintained, was just what power to 
 regulate remained with Great Britain after she had given up ex- 
 clusive sovereignty by the "grant" to the United States of an 
 equal right in the fishery. 
 
 This contention that Great Britain had limited her sovereignty 
 was equivalent to asserting that she had instituted a servitude 
 for the benefit of the United States and it necessitated an exhaus- 
 tive examination of the history and the significance of the doctrine 
 of international servitudes, especially hi its bearing upon the 
 concept of the sovereignty of states. The doctrine, it was argued, 
 was well established in modern international law, having passed by
 
 190 SERVITUDES AND LEASES 
 
 analogy from Roman law and having been continually confirmed 
 by international practice. The essentials of a servitude were, that 
 it was created by one state, the servient state, for the benefit of 
 another state, the dominant state; that its permanency was be- 
 yond the control of the state creating it; and that it made the ter- 
 ritory of the one state serve the interest of the other. All three 
 essentials were present in the treaty right of 1818: (i) it could be 
 enjoyed only through the "inhabitants," that is, the "people" of 
 the United States, being thus in effect a grant to "the United 
 States," for in a republic sovereignty resides in the body of the 
 people; (2) the right was to be in perpetuity in 1818 the word 
 "forever" was inserted; and (3) it made certain specified coasts 
 serve the economic interest of the United States. Unless other- 
 wise stated, the concurrent exercise of a servitude was presumed 
 (concurrent, that is, with the servient state's enjoyment of the 
 subject-matter of the servitude), but a servitude limited the 
 power of the state granting it to the extent that the full exer- 
 cise of sovereign power was inconsistent with the full enjoyment 
 of the servitude. The United States did not contend that 
 the sovereignty of Great Britain over the treaty coasts was 
 limited for the general purposes of jurisdiction, but she did 
 contend that, in the matter of the common fishery rights, there 
 had been a transfer of sovereignty to the extent required for the 
 fulfillment of the treaty, or, if not an actual transfer, an implied 
 undertaking not to exercise sovereignty where, by so exercising 
 it, the enjoyment of the liberty might be impaired. To quote 
 Mr. Root's argument, "one of the essential qualities of this grant 
 ... is that it is removed from the exercise of the powers of sover- 
 eignty of Great Britain . . . and is vested alone in the sover- 
 eign to which the grant was made. The sovereignty to which 
 the grant was made . . . arrogating to itself the right to control 
 its own inhabitants, to condition the right to them, is exercising 
 that which is the right of the sovereign to which it is granted and 
 not the right of the sovereign making the grant. . . . When the 
 grant limited British sovereignty, it excluded British sovereignty 
 from the field of operation commensurate with the right granted 
 according to its terms." 
 The force of this argument depended upon the meaning attached
 
 NORTH ATLANTIC FISHERIES ARBITRATION 191 
 
 to the terms "liberty" and "in common." The United States 
 held "liberty" in the treaty to be synonymous with "right," cit- 
 ing its common-law meaning of "franchise," especially that pecul- 
 iar form of franchise known as "incorporeal hereditament," such 
 as grants of forest, park, and fishery. It was natural for both 
 common-law countries to attach the same meaning to the word. 
 The "French shore" fishery was a "right," yet the word "liberty" 
 had been used to describe it in the Treaty of 1763. Later, in the 
 reciprocity agreements of 1854 and 1871, the two words were 
 treated as synonymous. The intent of the negotiators in 1783 
 was to establish a "right," though they had used the word "lib- 
 erty," and the word had been continued in 1818. According to 
 John Adams "liberty" in the treaty of peace was substituted for 
 "right" at the request of the British negotiators who thought 
 the word "right" would be unpleasant to British ears. The ex- 
 pression "in common" was likewise used in a technical sense well 
 known to both parties, conforming thus to an accepted canon of 
 treaty construction. In 1818 it would be understood to denote 
 "a common and equal right as opposed to a several or exclusive 
 right;" hence the "liberty" of the treaty was "to be enjoyed by 
 neither to the exclusion of the other." While this argued against 
 exclusive regulation by Great Britain it did not imply lack of 
 regulation, for joint administration of property rights by nations 
 was feasible and in this case was demanded by self-interest, and 
 it had good precedent in the joint regulation of the "French 
 shore" fishery by Great Britain and France. The words "in 
 common," it was suggested, were inserted by Great Britain to 
 save herself from future trouble over French rights in the same 
 localities, as well as to prevent any exclusion of British by Ameri- 
 can fishermen, of which complaint had been made by Lord Bath- 
 urst before the Convention of 1818 had been negotiated. Because 
 American fishermen had the "liberty in common" with British 
 fishermen and because Great Britain could regulate the exercise 
 of the fishing rights of the latter, it did not follow that she could 
 extend her power to regulate to the "liberty" of the former; "it 
 is a right that the inhabitants of the United States are to have in 
 common; it is not that it is to be exercised in common with British 
 subjects." If the fishing " liberty " were analogous to trading privi-
 
 192 SERVITUDES AND LEASES 
 
 leges and if Great Britain had intended to retain the power to 
 regulate, there would have been express mention of it in the 
 treaty, as there had been in all the commercial treaties negotiated 
 up to that time between the two countries. The provisions in the 
 French treaties were very similar to the treaty with the United 
 States in 1783; Great Britain had never attempted to regulate 
 the French fishery; hence there was no reason why she should 
 regulate the American. That Great Britain might promise 
 reasonable regulation removed no difficulties, for the power to 
 make reasonable regulation was tantamount to regulation at will 
 as long as the regulating state was the judge of the reasonableness. 
 Great Britain and her colonies had no superior economic or moral 
 insight; on the contrary, colonial legislatures had regulated un- 
 reasonably in that they had discriminated in favor of local fisher- 
 men. 
 
 In a word, a servitude had been created, no right to regulate 
 had been reserved to Great Britain and, failing such, nothing 
 affecting American fishing rights could be done without the con- 
 sent of the United States. 
 
 In joining issue on the doctrine of servitudes, Great Britain 
 admitted their existence in international law, but held it danger- 
 ous to press too closely their analogy with private law. No servi- 
 tude, however, had been created in 1818, for the essence of a 
 servitude is territory, servient and dominant, whereas under the 
 treaty the grant was one to be personally enjoyed by the "in- 
 habitants of the United States." No sovereign rights had been 
 granted, for such rights are fundamental and could be transferred 
 only in express terms, leaving no doubt of intention. Sovereignty 
 was always considered to remain unless explicitly abrogated; it 
 was personal and unitary and could not, on the modern view of 
 it, be partitioned. The right to legislate was implied in sover- 
 eignty, and as the Treaty of 1818 did not touch sovereignty, it 
 left this right solely with Great Britain. A fishing "liberty" 
 which, in the British argument, meant a "permission" when 
 granted was always given subject to regulation by the sovereign 
 grantor, unless an exception was made explicitly in the grant. 
 In 1818 the right of regulation was merged in the subject-matter 
 of the treaty; the United States partook of the subject-matter and
 
 NORTH ATLANTIC FISHERIES ARBITRATION 193 
 
 therefore came under regulation "in common with subjects of 
 His Britannic Majesty," implying that, as the fishery was a 
 regulated one for British fishermen, it was equally so for fisher- 
 men of the United States. Jurisdiction over fishing rights could 
 not be conferred upon the United States without involving juris- 
 diction on land, with the result that the United States would be 
 exercising jurisdiction on British territory, a situation to which 
 Great Britain could not give assent. The history of Anglo- 
 American treaty relations did not support either exemption from, 
 or participation in, the right to regulate. Exemption might lead 
 to anarchy on the fishing ground. Participation, by requiring its 
 concurrence, would in effect give the United States the exclusive 
 decision as to what was reasonable regulation, a situation incon- 
 sistent with the legislative independence of Great Britain and 
 her colonies. 
 
 In its award on Question One the tribunal gave its decision 
 against the claim of the United States to a servitude in the fish- 
 eries. The doctrine of international servitudes, it was pointed 
 out, was unfamiliar to American and British publicists in 1818. 
 It was not consistent with modern political theory "owing to the 
 constitution of a modern state requiring essential sovereignty and 
 independence," but had been developed hi the peculiar relations, 
 now obsolete, of the Holy Roman Empire. Because of this lack 
 of adaptation, especially to the principles of constitutional gov- 
 ernments, "it could, therefore, in the general interest of the com- 
 munity of nations and of the parties to this treaty be affirmed by 
 this tribunal only on the express evidence of an international 
 contract." Apart from these considerations, "by the Treaty of 
 1818 one state grants a liberty to fish, which is not a sovereign 
 right but a purely economic right, to the inhabitants of another 
 state," there being no analogy of dominant and servient territory. 
 The fishery to which admission was given was a regulated one in 
 1818, and the words "in common with British subjects" implied 
 that the inhabitants of the United States came under a com- 
 mon regulation. The contention that these words were in- 
 tended merely to negative exclusion of British fishermen was 
 not supported "by the historical basis of the American fishing 
 liberty," for the same words in the same connection occurred in
 
 194 SERVITUDES AND LEASES 
 
 1854 and 1871, when no such interpretation could possibly be 
 put upon them. 
 
 The tribunal also found itself unable to accept the alternative 
 contention of the United States that the sovereign jurisdiction of * 
 Great Britain was limited to reasonable regulation, of the reason- 
 ableness of which the United States must approve. "Every 
 state," it said, "has to execute the obligations incurred by treaty 
 bona fide and is urged thereto by the ordinary sanctions of inter- 
 national law." The right of a state to regulate admission of 
 foreigners to its territory was everywhere admitted and no excep- 
 tion in this respect could be found in the Convention of 1818. 
 Great Britain, as the local sovereign, was "not only entitled but 
 obliged to provide for the protection and preservation of the 
 fisheries;" but that the United States should exercise a right of 
 consent "would predicate an abandonment of its independence 
 in this respect by Great Britain." The rights of legislation were 
 not mentioned in the treaty, the provisions of which referred only 
 to a liberty to fish in common and "a line which would limit the 
 exercise of sovereignty of a state within the limits of its own ter- 
 ritory can be drawn only on the ground of express stipulation and 
 not by implication from stipulations concerning a different sub- 
 ject-matter." The claim of the United States, if conceded, would 
 amount to a participation in the domestic legislation of Great 
 Britain and her colonies "and to that extent would reduce those 
 countries to a state of dependence." 
 
 In accordance with the reasons given, the tribunal decided and 
 awarded as follows: 
 
 "The right of Great Britain to make regulations without the 
 consent of the United States as to the exercise of the liberty to 
 take fish, referred to in article i of the Treaty of October 20, 1818, 
 in the form of municipal laws, ordinances, or rules of Great Britain, 
 Canada, or Newfoundland is inherent to the sovereign of Great 
 Britain. 
 
 "The exercise of that right by Great Britain is, however, 
 limited by the said treaty in respect to the said liberties therein 
 granted to the inhabitants of the United States in that such reg- 
 ulations must be made bona fide and must not be in violation of 
 said treaty."
 
 NORTH ATLANTIC FISHERIES ARBITRATION 195 
 
 Inasmuch, however, as there was agreement on both sides that 
 Great Britain should not be the sole judge of reasonableness of 
 fishing regulations, the tribunal further decided that " the reason- 
 ableness of such regulation, if contested, must be decided not by 
 either of the parties but by an impartial authority," and it made 
 use of the power given it under the special agreement to institute 
 a commission of three expert specialists to pass upon any exist- 
 ing regulations requiring examination, the third member of the 
 commission being a non-national. For questions arising in future, 
 the tribunal recommended, as authorized, rules and a method 
 of procedure, the essential feature of which was to be the establish- 
 ment of permanent mixed fishery commissions for Canada and 
 Newfoundland respectively. These commissions, similar in com- 
 position to the one designated by the tribunal, were to be the 
 arbitral bodies whose decisions in the countries that contested the 
 regulations were to be accepted as final. That part of the special 
 agreement under which the commissions were instituted was de- 
 cided by the tribunal to be "permanent in its effect and not ter- 
 minable by the expiration of the General Arbitration Treaty of 
 1908 between Great Britain and the United States." 
 
 The submission of the second question was as 
 
 , ,, Question Two 
 
 follows: 
 
 "Have the inhabitants of the United States, while exercising 
 the liberties referred to in the said article, a right to employ as 
 members of the fishing crews of their vessels persons not inhabit- 
 ants of the United States?" 
 
 This question had in view primarily the legislation of New- 
 foundland forbidding its citizens to engage as members of crews 
 of American fishing vessels. The United States maintained that 
 the fishing liberty was in the vessels, as fishing vessels, and that 
 the composition of their crews was governed by the ordinary rules 
 of master and servant. Those receiving the liberty the in- 
 habitants of the United States could use all customary means 
 for exercising it, including the engaging of crews, the nationality 
 of whom was under no restriction in the treaty. It was not merely 
 the manual act of catching fish that constituted the liberty, but 
 also the more important enterprise of owning and operating the 
 vessels. On the contrary, Great Britain relied on the explicit
 
 196 SERVITUDES AND LEASES 
 
 words of the treaty "inhabitants." Vessels, as vessels, had 
 no rights. The effect of the contention of the United States 
 would be, in theory, to throw the fisheries open to the world and 
 to put no limit to fishing operations because of the great capital the 
 United States could invest under these conditions. Further, it 
 was not inconsistent with the treaty for Great Britain or her colo- 
 nies to regulate the employment both of subjects and aliens 
 within their jurisdiction, for otherwise the treaty would be affect- 
 ing a sovereign right. 
 
 The tribunal answered this question in the affirmative, mainly 
 on the ground that the fishing liberty was an economic right 
 which included the right to employ servants without any treaty 
 limitation as to nationality. Hence the award: 
 
 "Now, therefore, in view of the preceding considerations, this 
 tribunal is of opinion that the inhabitants of the United States 
 while exercising the liberties referred to in the said article have a 
 right to employ as members of the fishing crews of their vessels 
 persons not inhabitants of the United States. But in view of the 
 preceding considerations the tribunal, to prevent any misunder- 
 standing as to the effect of its award, expresses the opinion that 
 non-inhabitants employed as members of the fishing crews of 
 United States vessels derive no benefit or immunity from the 
 treaty and it is so decided and awarded." 
 
 Questions These two questions relating to a specific point 
 
 Three and Four o regulation were formulated in similar terms. 
 Question Three was as follows: 
 
 " Can the exercise by the inhabitants of the United States of the 
 liberties referred to in the said article be subjected, without the 
 consent of the United States, to the requirements of entry or 
 report at custom-houses or the payment of light or harbor or 
 other dues, or to any other similar requirement or condition or 
 exaction?" 
 
 The United States argued that fishing vessels, when not en- 
 gaged in commercial pursuits, should not be subjected to what 
 are purely commercial requirements, for such was not the intent 
 of the treaty. Great Britain met this argument with the conten- 
 tion that such charges were normal and that thus it was incum- 
 bent upon the United States to prove special exemption. Fishing
 
 NORTH ATLANTIC FISHERIES ARBITRATION 197 
 
 vessels were often disposed to contravene the revenue laws and 
 the only effectual means of prevention was to require entry and 
 report. This latter argument was felt by the tribunal to be not 
 unreasonable, whenever entry or report was feasible, but on the 
 question as such the decision was in favor of the United States, 
 as follows: 
 
 "The requirement that an American fishing vessel should re- 
 port, if proper conveniences for doing so are at hand, is not un- 
 reasonable for the reasons stated in the foregoing opinion. There 
 should be no such requirement, however, unless there be reason- 
 ably convenient opportunity afforded to report in person or by 
 delegation either at a custom-house or to a customs official. But 
 the exercise of the fishing liberty by the inhabitants of the United 
 States should not be subject to the purely commercial formalities 
 of report, entry, and clearance at a custom-house nor to light, 
 harbor, or other dues not imposed upon Newfoundland fishermen." 
 
 Question Four dealt with the restrictions under the renunci- 
 atory clause of the treaty: 
 
 "Under the provision of the said article that the American fish- 
 ermen shall be admitted to enter certain bays, or harbors for 
 shelter, repairs, wood, or water and for no other purposes what- 
 ever, but that they shall be under such restrictions as may be 
 necessary to prevent then* taking, drying, or curing fish therein or 
 in any other manner abusing the privileges thereby reserved to 
 them, is it permissible to impose restrictions making the exercise 
 of such privileges conditional upon the payment of light or harbor 
 or other dues or entering or reporting at custom-houses, or any 
 similar conditions?" 
 
 The tribunal held that as these privileges were granted upon 
 grounds of humanity and hospitality, it would be inconsistent 
 with their free exercise to impose conditions, but it seemed reason- 
 able that report should be made, if convenient, in case there was 
 intention to remain longer than forty-eight hours. 
 
 "From where must be measured the 'three marine miles of 
 any of the coasts, bays, creeks, or harbors' referred 
 
 ; .,, ' Question Five 
 
 to in the said article? 
 
 From the point of view of international law this question came 
 next in importance to Question One. It related, in effect, to the
 
 198 SERVITUDES AND LEASES 
 
 meaning of the word "bays" as it occurs in the renunciatory 
 clause of the treaty and was bound up with the thorough dis- 
 cussion of marine jurisdiction. Great Britain held that the term 
 as used in 1818 was geographical and inclusive of all bays of what- 
 ever size; the United States held that it was to be read along with 
 its context, "coasts . . . creeks or harbors of His Britannic 
 Majesty's dominions," as meaning territorial bays, that is, those 
 smaller bays so related to the land as to be within British terri- 
 torial jurisdiction and suitable for the four purposes specified. 
 According to the British contention the "three marine miles" 
 should be measured in the case of bays from a line drawn from 
 headland to headland; according to the American contention 
 the line called for should follow the sinuosities of the coast. The 
 United States argued that a state, if it wishes to extend its juris- 
 diction beyond the customary jurisdictional zone, must assert its 
 right to do so and secure the acquiescence of other states in its 
 assertion. Great Britain had never claimed such jurisdiction 
 over the bays in question before 1818. The treaty with France 
 in 1839 and the North Sea Fisheries Convention showed that 
 Great Britain had not exercised general jurisdiction over her bays, 
 for in those cases conventional lines of jurisdiction had been agreed 
 upon. In the negotiations prior to the unratified treaty of 1806, 
 the United States had proposed to Great Britain an extension 
 of marine jurisdiction so as to include waters between headlands, 
 and this proposal was repeated in 1818, but on both occasions 
 Great Britain had refused assent. The inference was that Great 
 Britain was estopped by her refusal from claiming any such rights 
 later. In the diplomatic correspondence leading up to the 
 Convention of 1818, the expressions used by British statesmen 
 imported that the subject-matter of the controversy was the ex- 
 clusion of American fishermen from waters within territorial juris- 
 diction. This limit, in 1818, was well established in international 
 law as a marine league and it still remained so. Outside of that 
 limit there had been no renunciation, for every independent 
 state had a natural right to fish on the high seas. The intention 
 of the American negotiators was clear on the point: "In signing 
 it," one of them, Mr. Rush, wrote afterwards, "we believed that 
 we retained the right of fishing in the sea, whether called a bay,
 
 NORTH ATLANTIC FISHERIES ARBITRATION 199 
 
 gulf, or by whatever term designated, that washed any part of 
 the coast of the British North American Provinces, with the single 
 exception that we did not come within a 'marine league of the 
 shore.'" The seizures made under the "headland theory" 
 (supra, p. 183) had not been sustained when referred to arbitra- 
 tion, nor had Great Britain been able to establish her position in 
 the case of the Bay of Fundy. 
 
 In her arguments in reply, Great Britain differentiated through- 
 out between the open, unenclosed waters off the coast, and those 
 in "bays" or "chambers between headlands." It was only to 
 the former that the three-mile rule applied; the latter were con- 
 trolled by other considerations, such as configuration, relation to 
 land and naval defenses, the necessities of commerce, or the as- 
 sumption of jurisdiction in the interests of the domestic order of 
 the state. For some or all of these reasons the United States had 
 extended its jurisdiction over several large bays on its coast-line, 
 notably Chesapeake Bay and Delaware Bay, and this extension 
 had been recognized by Great Britain and other states. Similarly, 
 the British jurisdiction over Conception Bay in Newfoundland, 
 assumed to exist in a case before the Privy Council, had been 
 acquiesced in by the United States. In the Strait of Fuca, when 
 the Pacific boundary was delimited, the line of jurisdiction was 
 run out far beyond three miles. The Bay of Fundy did not in- 
 validate the British contention; it had been given up hi that case 
 on grounds of favor, not of law. Besides, the headlands in the 
 Bay of Fundy were not both in British territory, hence the "head- 
 land theory" could not be applied. The British contention was 
 for a historical construction, not a technical. Far from there being 
 an established limit in 1818, both the United States and Great 
 Britain were at that time urging wide extensions of jurisdiction. 
 But whatever may have been the limit, the negotiators used the 
 word "bays" in the general meaning of that word as required by 
 the sense of the treaty. All maps in 1818 had these bays indicated. 
 There was no qualification in the treaty and hence it ought to be 
 interpreted as it read and as it was interpreted by the United 
 States herself, when she called upon Great Britain in 1823 to guar- 
 antee her liberty under the treaty as against the French attempts 
 to molest American fishermen in bays beyond the three-mile
 
 200 SERVITUDES AND LEASES 
 
 limit, "clearly within the jurisdiction and sovereignty of Great 
 Britain." 
 
 In its award on this Question, the tribunal accepted the argu- 
 ments of Great Britain. The term "bays" in its opinion applied 
 to "every bay on the coast in question that might be reasonably 
 supposed to have been considered as a bay by the negotiators of 
 the treaty under the general conditions then prevailing." The 
 geographical character of a bay was held to be of vital importance 
 to the interests of the territorial sovereign, "but as no principle 
 of international law recognized any specific relation between the 
 concavity of the bay and the requirements for control by the 
 territorial sovereignty, this tribunal is unable to qualify, by the 
 application of any new principle, its interpretation of the Treaty 
 of 1 8 1 8 as excluding bays in general from the strict and systematic 
 application of the three-mile rule." The opinions of jurists did 
 not point to its unanimous application to bays, nor had it been 
 shown that its application "was present to the minds of the nego- 
 tiators in 1818 and they could not reasonably have been expected 
 either to presume it or to provide against its presumption." In 
 the geographical sense, as accepted by the tribunal, "a bay is to 
 be considered as an indentation of the coast, bearing a configura- 
 tion of a particular character easy to determine specifically but 
 difficult to describe generally." 
 
 For these reasons the tribunal decided and awarded as follows: 
 
 " In case of bays the three marine miles are to be measured from 
 a straight line drawn across a body of water at the place where it 
 ceases to have the configuration and characteristics of a bay. At 
 all other places the three marine miles are to be measured follow- 
 ing the sinuosities of the coast." 
 
 But to make the award more practicable without claiming to 
 constitute thereby a principle of international law, the tribunal 
 proceeded to recommend to the parties, and to apply by vir- 
 tue of its powers under the special agreement, the ten-mile 
 rule already applied by certain fishery treaties, among them 
 the North Sea Convention and the treaties between France 
 and Great Britain in 1839 and 1867. The rule was enunciated 
 as follows: 
 
 "In every bay, not hereinafter specifically provided for, the
 
 NORTH ATLANTIC FISHERIES ARBITRATION 2OI 
 
 limits of exclusion shall be drawn three miles seaward from a 
 straight line across the bay in the part nearest the entrance at the 
 first point where the width does not exceed ten miles." 
 
 For the bays specifically provided for, a series of arbitrary lines 
 was drawn which followed in general those laid down in the un- 
 ratified treaty of 1888. 
 
 The award on this Question was not unanimous, Dr. Drago 
 having filed a dissenting opinion, though signing the award as a 
 whole. He maintained that the treaties and the practice of Great 
 Britain and other states had established a principle for territorial 
 waters the three-mile marginal belt, together with "the ten- 
 mile entrance rule or the six miles, according to occasion," the 
 extension being given strictly for the convenience of the fisheries 
 and having "its root and connection with the marginal belt of 
 three miles." Apart, however, from the interpretation it had 
 given to the treaty, the decision of the tribunal in his opinion was 
 not a satisfactory solution, for "no rule is laid out or general 
 principle evolved for the parties to know what the nature of such 
 configuration is or by what methods the points should be ascer- 
 tained from which the bay should lose all the characteristics of 
 such." 
 
 "Have the inhabitants of the United States the liberty under 
 the said article or otherwise to take fish in the bays, harbors, and 
 creeks on that part of the southern coast of New- 
 
 Question Six 
 
 foundland which extends from Cape Ray to Rameau 
 Islands or on the western and northern coasts of Newfoundland 
 from Cape Ray to Quirpon Islands, or on the Magdalen Islands?" 
 This question was one of purely verbal interpretation and re- 
 lated to a construction of the treaty put forward by the Govern- 
 ment of Newfoundland for the first time in 1905. It was based 
 on the omission of the words "bays, harbors, and creeks" in 
 specifying the fishing liberties on the "coast" of Newfoundland 
 and on the " shores " of the Magdalen Islands, and if adopted, would 
 have deprived American fishermen of the valuable herring fishery 
 on the west coast of Newfoundland. The award on this Question 
 held that "American inhabitants are entitled to fish in the bays, 
 creeks, and harbors of the treaty coasts of Newfoundland and the 
 Magdalen Islands." 
 
 SANTA BARBARA STATE COLLEGE LIBRA! T 
 
 LL * ^ ^ Q
 
 202 SERVITUDES AND LEASES 
 
 "Are the inhabitants of the United States, whose vessels resort 
 to the treaty coasts for the purpose of exercising the liberties 
 Question referred to in article i of the Treaty of 1818, entitled 
 Seven to nave f or these vessels, when duly authorized by 
 
 the United States in that behalf, the commercial privileges on the 
 treaty coasts accorded by agreement or otherwise to the United 
 States trading vessels generally?" 
 
 When the American fishing liberties were secured in 1818, 
 colonial trade was closed to foreign vessels and hence the exercise 
 of American trading privileges was not contemplated in the treaty. 
 In 1830, however, the latter were acquired by reciprocal agreement 
 with Great Britain without any reservation in the case of fishing 
 vessels. Hence the question arose whether American vessels 
 could both trade and fish concurrently on the treaty coasts. 
 Great Britain maintained that they could not, basing her position 
 on a strict interpretation of intention in 1818. Besides, the failure 
 to maintain the distinction between fishing and trading vessels 
 would conduce to smuggling. The United States claimed the 
 double privilege on the ground that there was nothing in the 
 Treaty of 1818 to prevent the exercise of rights acquired later. 
 The right to trade was not the subject-matter in 1818 nor was 
 the right to fish burdened with any restriction in 1830, but both 
 rights, once obtained, were to be exercised in the discretion of the 
 United States. 
 
 This Question also was answered in favor of the United States, 
 the tribunal being of opinion that "the inhabitants of the United 
 States are so entitled in so far as concerns this treaty, there being 
 nothing in its provisions to disentitle them, provided the treaty 
 liberty of fishing and the commercial privileges are not exercised 
 concurrently." 
 
 (Proceedings, 12 vols., published by the Government Printing 
 Office, Washington; American Journal of International Law [191 1], 
 vol. v, pp. 1-31; [1913], vol. vn, pp. 1-16; Moore: Digest of Inter- 
 national Law, vol. I, pp. 767-874; G. G. Wilson, The Hague Arbi- 
 tration Cases.)
 
 LEASED TERRITORY IN CHINA 203 
 
 LEASED TERRITORY IN CHINA (1898) 
 
 As a result of her defeat in 1894, China had to cede to Japan, 
 by the Treaty of Shimonoseki, April 17, 1895, Formosa, the 
 Pescadores, and the southern portion of the Province of Feng- 
 tien (the Liao-tung Peninsula). In addition, an indemnity of 
 200,000,000 taels was exacted, the Japanese to remain in occupa- 
 tion of Wei-hai-wei until the last installment was paid. The ces- 
 sion of Liao-tung carried with it the possession of Port Arthur, a 
 strategic position dominating the northern approach to Peking. 
 For this reason soon after the conclusion of the treaty, Russia, 
 Germany, and France, considering their vital interests in China 
 endangered, addressed a collective note to Japan, in which they 
 urged the retrocession of Liao-tung to China in order to preserve 
 her territorial integrity. Japan assented to the revision of the 
 terms in return for an increase hi indemnity. 
 
 On November i, 1897, two German missionaries were mur- 
 dered in the Province of Shantung. A few days later German 
 warships appeared at the port of Kiao-chau, and an ultimatum 
 was sent to the commandant requesting him to evacuate the 
 place within forty-eight hours. This was followed by a series of 
 demands presented to the Chinese Government calling for prompt 
 reparation and the payment of an indemnity for the loss of the 
 missionaries' lives. Coupled with these, was a demand for a 
 lease to Germany of Kiao-chau, "as a guarantee of good behavior 
 for the future." China yielded, and on February 8, 1898, the 
 German Foreign Secretary was able to announce in the Reichstag 
 the successful negotiation of the lease, the chief provisions of which, 
 as embodied in the Treaty of March 6, 1898, were as follows: 
 
 "Art. i. His Majesty the Emperor of China, guided by the in- 
 tention to strengthen the friendly relations between China and 
 Germany, and at the same time to increase the military readiness 
 of the Chinese Empire, engages, while reserving to himself all 
 rights of sovereignty in a zone of 50 kilometres (100 Chinese /) 
 surrounding the Bay of Kiao-chau at high water, to permit the 
 free passage of German troops within this zone at any time, as also 
 to abstain from taking any measures, or issuing any ordinances
 
 204 SERVITUDES AND LEASES 
 
 therein without the previous consent of the German Government, 
 and especially to place no obstacle in the way of any regulation of 
 the water-courses which may prove to be necessary. His Majesty 
 the Emperor of China, at the same time, reserves to himself the 
 right to station troops within that zone, hi agreement with the 
 German Government, and to take other military measures. 
 
 "Art. 2. With the intention of meeting the legitimate desire 
 of His Majesty the German Emperor, that Germany, like other 
 powers, should hold a place on the Chinese coast for the repair 
 and equipment of her ships, for the storage of materials and pro- 
 visions for the same, and for other arrangements connected there- 
 with, HJS Majesty the Emperor of China cedes to Germany on 
 lease, provisionally for ninety-nine years, both sides of the en- 
 trance to the Bay of Kiao-chau. Germany engages to construct, at 
 a suitable moment, on the territory thus ceded, fortifications for 
 the protection of the buildings to be constructed there and of the 
 entrance of the harbor. 
 
 "Art. 3. In order to avoid the possibility of conflicts, the Im- 
 perial Chinese Government will abstain from exercising rights of 
 sovereignty in the ceded territory during the term of the lease, 
 and leaves the exercise of the same to Germany. . . . 
 
 " Chinese ships of war and merchant vessels shall enjoy the same 
 privileges in the Bay of Kiao-chau as the ships of other nations on 
 friendly terms with Germany; and the entrance, departure, and 
 sojourn of Chinese ships in the bay shall not be subject to any 
 restrictions other than those which the Imperial German Govern- 
 ment, in virtue of the rights of sovereignty over the whole of the 
 water area of the bay transferred to Germany, may at any time 
 find it necessary to impose with regard to the ships of other 
 nations. . . . 
 
 "Art. 5. Should Germany at some future time express the wish 
 to return Kiao-chau Bay to China before the expiration of the 
 lease, China engages to refund to Germany the expenditure she 
 has incurred at Kiao-chau, and to cede to Germany a more suit- 
 able place. 
 
 "Germany engages at no time to sublet the territory leased 
 from China to another power. ..." (Parliamentary Papers 
 [1899,] (59), China, No. i, pp. 69-71.)
 
 LEASED TERRITORY IN CHINA 205 
 
 The rent payable to China, the Foreign Minister said, was 
 merely nominal, "representing the continuation in theory of the 
 proprietorship of China over the territory ceded." 
 
 While negotiations were going on with Germany, it was an- 
 nounced that the Chinese Government had given permission to 
 Russian warships to winter at Port Arthur. The Russian Foreign 
 Minister was careful to explain, on December 26, that this "had 
 absolutely no connection with the occupation of the Bay of Kiao- 
 chau by Germany," but that Russia "had been glad to accept 
 the offer of the Chinese Government." Early in March, 1898, 
 however, Russia demanded a lease of Port Arthur and Talien Bay, 
 failing which she would take hostile measures. Again China was 
 forced to alienate her territory, granting, on March 27, 1898, a 
 lease in the following terms: 
 
 "Art. i. In order to provide for Russia a suitable basis on the 
 northern coast of China, and thereby to render her naval position 
 complete and secure, His Majesty the Emperor of China agrees 
 hereby to lease Port Arthur and Talien, together with their ad- 
 jacent waters, to Russia: Provided, that the sovereign rights of 
 the Middle Kingdom shall not be impaired by the transaction. . . . 
 
 "Art. 3. The period of the lease shall be twenty-five years from 
 date of signing this convention: Provided, that at the conclusion 
 of that period, it may be prolonged by mutual agreement between 
 the contracting parties. . . . 
 
 "Art. 4. ... The troops of the Middle Kingdom shall not be 
 permitted to encamp within the limits of the leased land. ... In 
 the event of a breach of the law by a Chinese subject he shall be 
 handed over to the nearest Chinese local tribunal for judgment 
 and the infliction of a penalty. . . . 
 
 "Art. 5. Beyond the northern boundary of the leased land an 
 uninhabited space shall be left, its limits to be hereafter deter- 
 mined. . . . All affairs within this space shall be under the con- 
 trol of Chinese officials, but Chinese troops may not enter there 
 except after consultation with the Russian authorities. 
 
 "Art. 6. The contracting authorities agree to regard Port 
 Arthur as a naval station. It shall be used by Russian and Chinese 
 ships only, and neither the men-of-war nor the merchantmen of 
 any other power shall have access to it. Similarly, in the case
 
 206 SERVITUDES AND LEASES 
 
 of Talien Bay, one part shall serve as a naval station for the 
 warships of China and Russia, but the rest shall be a commercial 
 port, open for the ingress and egress of the ships of all nations. ..." 
 (Foreign Relations of the United States [1898], p. 184.) 
 
 In consequence of these changes in the Chinese balance of power, 
 it became necessary for the other powers interested to make 
 counter-moves. Accordingly, on March 25, 1898, Lord Salisbury, 
 the British Foreign Secretary, instructed the British Minister at 
 Peking that it was "necessary to obtain, in the manner you think 
 most efficacious and speedy, the refusal of Wei-hai-wei on the 
 departure of the Japanese. The terms should be similar to those 
 granted to Russia for Port Arthur." (Parliamentary Papers 
 [1898], (54), China, No. i, p. 54.) While Great Britain was medi- 
 tating this step, the Chinese Government granted further conces- 
 sions, this tune to France, among them the lease for ninety-nine 
 years of Kwang-chau Bay on the southwestern coast of China, 
 which port France proceeded to occupy on April 22, 1898. The 
 lease of Wei-hai-wei to Great Britain followed on July i, 1898, in 
 terms, as follows: 
 
 "In order to provide Great Britain with a suitable naval harbor 
 in North China, and for the better protection of British commerce 
 in the neighboring seas, the Government of His Majesty the Em- 
 peror of China agrees to lease to the Government of Her Majesty 
 the Queen of Great Britain and Ireland, Wei-hai-wei in the Prov- 
 ince of Shantung and the adjacent waters, for so long a period 
 as Port Arthur shall remain in the occupation of Russia. . . . 
 
 ". . . Within the above-mentioned territory leased Great 
 Britain shall have sole jurisdiction. 
 
 "Great Britain shall have in addition the right to erect forti- 
 fications, station troops, or take any other measures necessary 
 for defensive purposes, at any points on or near the coast of the 
 region. . . . Within that zone Chinese administration will not 
 be interfered with, but no troops other than Chinese or British 
 shall be allowed therein. 
 
 "It is also agreed that within the walled city of Wei-hai-wei 
 Chinese officials shall continue to exercise jurisdiction except so 
 far as may be inconsistent with naval and military requirements 
 for the defense of the territory leased.
 
 LEASED TERRITORY IN CHINA 207 
 
 "It is further agreed that Chinese vessels of war, whether 
 neutral or otherwise, shall retain the right to use the waters 
 herein leased to Great Britain." 
 
 In addition, Great Britain obtained Kowloon on the mainland 
 opposite Hong Kong, for ninety-nine years on terms similar to 
 those of the lease of Wei-hai-wei, with the following clause 
 added: 
 
 "If cases of extradition occur they shall be dealt with in ac- 
 cordance with the existing treaties between Great Britain and 
 China and the Hong Kong Regulations." (Treaties between China 
 and Foreign States, vol. I, pp. 347-50.) 
 
 As one of the causes of the Russo-Japanese War was the pres- 
 ence of Russia in the Liao-tung Peninsula, the Treaty of Ports- 
 mouth, September 5, 1905, provided for the transfer to Japan of 
 Russia's unexpired lease, as follows: 
 
 "The Imperial Russian Government transfer and assign to the 
 Imperial Government of Japan, with the consent of the Govern- 
 ment of China, the lease of Port Arthur, Talien, and adjacent 
 territory and territorial waters and all rights, privileges, and con- 
 cessions connected with or forming part of such lease, and they 
 also transfer and assign to the Imperial Government of Japan all 
 public works and properties in the territory affected by the 
 above-mentioned lease. 
 
 "The two high contracting parties mutually engage to obtain 
 the consent of the Chinese Government mentioned in the fore- 
 going stipulation. 
 
 "The Imperial Government of Japan on their part undertake 
 that the proprietary rights of Russian subjects in the territory 
 above referred to shall be perfectly respected." (Traites et Con- 
 ventions entre I' Empire -du Japon et les Puissances Etrangeres, vol. i, 
 
 p. 588-) 
 
 In 1914, Japan entered the European War for the announced 
 purpose of expelling Germany from Kiao-chau and restoring it to 
 China. After the capture of Tsing-tau, a long list of demands was 
 made by Japan upon China, several of them referring to the leases 
 of Port Arthur and Kiao-chau. Much negotiation followed, but 
 in May, 1915, a compromise was reached, the terms of which, in 
 the matter of the leases, were as follows:
 
 208 TITLE TO TERRITORY 
 
 " Ai. China consents to all the arrangements that may be made 
 in the treaty of peace between Japan and Germany concerning the 
 disposal of the rights, advantages, and concessions possessed by 
 the latter vis-d-vis China in regard to the Province of Shantung 
 in virtue of treaty agreements or otherwise." 
 
 "2. China shall not cede or lease to any power any portion of 
 the Province of Shantung or any part of the seacoast thereof or 
 any island along such coast. . . . 
 
 "Bi. The terms of the lease of the Kwantung Province 
 Port Arthur and Dairen and also of the South Manchurian and 
 Antung-Mukden Railways, are extended to ninety-nine years 
 from the dates of original agreements respectively. . . ." (Lon- 
 don Times, May n, 1915.) 
 
 (Parliamentary Papers [1898, 1899], sub China, passim; Treaties 
 between China and Foreign Powers; Traites et Conventions entre 
 I 'Empire du Japon et les Puissances Etrangeres.) 
 
 22. TITLE TO TERRITORY 
 
 THE FALKLAND ISLANDS (1829) 
 
 IN the year 1810 a revolution broke out in the Spanish Vice- 
 royalty of Rio de la Plata, which, in the course of a few years, re- 
 sulted in its complete severance from Spain. Ultimately, its vast 
 territory became the seat of several independent states, successors 
 to the Spanish sovereignty, among them the Argentine Republic. 
 When, however, the Government of Buenos Ayres (that is, the 
 Argentine Republic), in pursuance of what it conceived to be the 
 principles of state succession, proceeded to provide for the ad- 
 ministration of the Falkland Islands, it was met by protest from 
 Great Britain on the ground of prior claim to ownership. A little 
 later, also, the United States refused to recognize Argentine juris- 
 diction over the Falklands, more especially over the rights of 
 fishery upon their coasts. The controversy raised at the time has 
 never been settled by arbitral or diplomatic means, though the 
 practical effect has been the possession and occupation of the 
 Falklands by Great Britain for eighty-five years.
 
 THE FALKLAND ISLANDS 209 
 
 It was on June 10, 1829, that the Government of Buenos Ayres 
 issued a decree, asserting sovereignty over the islands, as follows: 
 
 "When by the glorious revolution of the 25th of May, 1810, 
 these provinces separated themselves from the dominion of the 
 mother country, Spain held the important possession of the Islands 
 of the Malvinas (Falkland Islands), and of all the others which 
 approximate to Cape Horn, including that known under the 
 denomination of Tierra del Fuego; this possession was justified by 
 the right of being the first occupant, by the consent of the principal 
 maritime powers of Europe, and by the proximity of these islands 
 to the continent which formed the Viceroyalty of Buenos Ayres, 
 unto which government they depended. For this reason, the 
 Government of the Republic, having succeeded to every right 
 which the mother country previously exercised over these prov- 
 inces, and which its viceroys possessed, continued to exercise acts 
 of dominion in the said islands, its ports, and coasts, notwith- 
 standing circumstances have hitherto prevented this Republic 
 from paying the attention to that part of the territory which, 
 from its importance, it demands. Nevertheless, the necessity of 
 no longer delaying such precautionary measures as shall be neces- 
 sary to secure the rights of the Republic; and at the same time to 
 possess the advantages which the productions of the said islands 
 may yield, and to afford to the inhabitants that protection of 
 which they stand in need, and to which they are entitled; the 
 government has ordered and decreed, as follows: 
 
 "Art. i. The Islands of the Malvinas, and those adjacent t6 
 Cape Horn in the Atlantic Ocean, shall be under the command 
 of a political and military governor, to be named immediately by 
 the Government of the Republic. 
 
 "Art. 2. The political and military governor shall reside in the 
 Island de la Soledad, on which a battery shall be erected under 
 the flag of the Republic. 
 
 "Art 3. The political and military governor shall cause the 
 laws of the Republic to be observed by the inhabitants of the 
 said islands, and provide for the due performance of the regula- 
 tions respecting seal fishery on the coasts. 
 
 "Art. 4. Let this be made public. RODRIGUEZ." 
 
 (British and Foreign Stale Papers, vol. xx, pp. 314-15.)
 
 210 TITLE TO TERRITORY 
 
 As soon as this decree had been communicated to the British 
 Government, it instructed its charge d'affaires at Buenos Ayres to 
 enter protest, which he did in the following note of November 19, 
 1829: 
 
 "... The undersigned has received the order of his court to 
 represent to His Excellency that the Argentine Republic, in issu- 
 ing this decree, have assumed an authority incompatible with 
 His Britannic Majesty's rights of sovereignty over the Falkland 
 Islands. 
 
 "These rights, founded upon the original discovery and sub- 
 sequent occupation of the said islands, acquired an additional 
 sanction from the restoration, by His Catholic Majesty, of the 
 British settlement, in the year 1771, which, in the preceding year, 
 had been attacked and occupied by a Spanish force, and which act 
 of violence had led to much angry discussion between the Govern- 
 ments of the two countries. 
 
 "The withdrawal of His Majesty's forces from these islands, in 
 the year 1774, cannot be considered as invalidating His Majesty's 
 just rights. That measure took place in pursuance of a system 
 of retrenchment, adopted at that time by His Britannic Majesty's 
 Government; but the marks and signals of possession and property 
 were left upon the islands: when the governor took his departure, 
 the British flag remained flying, and all those formalities were ob- 
 served which indicated the rights of ownership, as well as an in- 
 tention to resume the occupation of the territory, at a more 
 convenient season. 
 
 "The undersigned, therefore, in execution of the instructions 
 of his court, formally protests, in the name of His Britannic Maj- 
 esty, against the pretensions set up by the Government of Buenos 
 Ayres, in then- decree of the zoth of June, and against all acts 
 which have been, or may hereafter be done, to the prejudice of 
 the just rights of sovereignty which have heretofore been exer- 
 cised by the Crown of Great Britain. 
 
 "The undersigned, etc. 
 
 "WOODBINE PARISH." 
 
 (British and Foreign State Papers, vol. xx, pp. 346-47.) 
 
 Even before the decree of June 10, 1829, the Government of 
 Buenos Ayres had made grants of land and of exclusive fishing
 
 THE FALKLAND ISLANDS 21 1 
 
 rights in the Falklands to one, Lewis Vernet, who was later 
 appointed governor of the islands. Vernet having seized and 
 confiscated some American fishing vessels without process of law, 
 the United States took vigorous measures to protect rights of 
 fishery enjoyed for more than half a century, which, it maintained, 
 could not be withdrawn without notice, "even supposing the 
 rights of the Buenos Ayres Government to be uncontroverted." 
 An American warship, the Lexington, was sent to the Falklands, 
 which suppressed by force the operations of Vernet, but the 
 incident afterwards became the subject of diplomatic discussion 
 between the two governments, in the course of which the Argen- 
 tine title to the Falklands was fully examined by the American 
 representative at Buenos Ayres and an opinion expressed ad- 
 verse to the claim of the Government of Buenos Ayres. (British 
 and Foreign State Papers, vol. xx, pp. 338-55.) The view of the 
 Secretary of State, Mr. Livingston, was set forth in a note to the 
 American Charg6 at Buenos Ayres, in 1832, wherein he expressed 
 the belief that Patagonia had never been included in the Province 
 of Buenos Ayres proper: "A project was formed by the Spaniards 
 in 1778 of forming settlements there, but although the settlers 
 came'out to Monte Video the project was abandoned, and the whole 
 of the continent, and islands of Terra del Fuego and Staten Land 
 remain as unsettled and desert now as they were found at the time 
 of their discovery." (Moore: Digest of International Law, vol. I, 
 p. 888.) 
 
 In a discussion with Great Britain, in 1834, a warning, issued 
 by the Department of State to American fishermen resorting to 
 the Falklands to respect British regulations, was silent about 
 sovereignty, but "while it claimed no rights for the United States, 
 it conceded none to Great Britain or any other power." (Moore: 
 Digest of International Law, vol. I, p. 888.) 
 
 While the United States was questioning the Argentine title 
 to the Falklands, the Government of Great Britain proceeded to 
 reoccupy the islands. On January 2, 1833, Commander Onslow, 
 of H.M.S. Clio, acting under instructions, addressed to the com- 
 mander of the Buenos Ayrean forces at Port Louis, in the Falk- 
 lands, the following communication announcing the intended 
 occupation :
 
 212 TITLE TO TERRITORY 
 
 "Sir: I have to acquaint you that I have received direc- 
 tions from His Excellency the Commander-in-Chief of His Brit- 
 annic Majesty's ships and vessels of war, on the South American 
 station, to exercise the rights of sovereignty over these islands, hi 
 the name of His Britannic Majesty. 
 
 "It is my intention to hoist, to-morrow morning, the national 
 flag of Great Britain on shore; when I request you will be pleased 
 to haul down your flag, and to withdraw your forces, taking with 
 you all the stores, etc., belonging to your government. 
 
 "I am, etc., 
 
 " J. J. ONSLOW, Commander. 
 
 "H. E., the Commander of the Buenos Ayrean Forces 
 at Port Louis, Berkeley Sound." 
 
 (British and Foreign State Papers, vol. xx, p. 1197.) 
 
 The Argentine commander protested against the proposed ac- 
 tion, but, as his forces were inferior, he offered no resistance, an- 
 nouncing that "it was his intention to depart, but that he would 
 not strike the flag on shore." Accordingly, "at nine o'clock in 
 the morning of the 3d, three boats manned with seamen and 
 marines from the English sloop, landed at the point of Port Louis, 
 and, placing a flagstaff at the house of an Englishman, about four 
 squares distant from the commandancy, they hoisted thereon 
 the British flag, and then proceeded to strike that of the Republic, 
 which was still flying on shore, and which was immediately de- 
 livered up to the Sarandi by an officer sent for that purpose." 
 (British and Foreign State Papers, vol. xx, p. 1196.) 
 
 As soon as the news of the occupation reached Buenos Ayres, 
 the government made formal protest in a note addressed to the 
 British Charge, January 22, 1833. (British and Foreign State 
 Papers, vol. xx, pp. 1198-99.) On April 24, its minister at Lon- 
 don, M. Moreno, asked to be informed whether the British Gov- 
 ernment had really given the order to occupy the islands, and on 
 April 27, Lord Palmerston, the Foreign Secretary, replied that 
 the admiral on the station had been instructed by the govern- 
 ment "to exercise the ancient and indisputable rights of sover- 
 eignty belonging to His Majesty." Thereupon, on June 17, 
 M. Moreno sent to Lord Palmerston a note in which the rights of
 
 THE FALKLAND ISLANDS 213 
 
 the Republic to sovereignty over the Falklands were fully set 
 forth and the British claim contested on the ground of antecedent 
 Spanish rights. Lord Palmerston replied on January 8, 1834, 
 denying the claims of the Republic and expressing the hope that 
 "when the true circumstances of the case shall have been com- 
 municated to the knowledge of the Government of the United 
 States of the Rio de la Plata, that government will no longer call 
 in question the right of sovereignty which has been exercised by 
 His Majesty as undoubtedly belonging to the Crown of Great 
 Britain." (British and Foreign State Papers, vol. xxn, p. 1394.) 
 
 M. Moreno made further reply on December 29, 1834, but after 
 that, the discussion was not continued. On December 31, 1835, 
 President De Rosas, in his annual message to the legislature of 
 the Province of Buenos Ayres, asserted that "the government will 
 never desist from its obligation to demand of the justice of the 
 British Cabinet, both an acknowledgment of the clear and un- 
 questionable right of the Republic to those Islands and adequate 
 reparation." (British and Foreign State Papers, vol. xxm, p. 193.) 
 This resolve was reiterated in the message of January i, 1837, and 
 four years later, M. Moreno, in a note to Lord Aberdeen, British 
 Foreign Secretary, again expressed his government's "great 
 regret that it has not hitherto obtained that satisfaction to which 
 it believes itself entitled, and which it claimed in vain from the 
 preceding administration." (British and Foreign State Papers, 
 vol. xxxi, p. 1004.) 
 
 The question at issue involved the discussion of the principles 
 of prior discovery, formal possession, and effective occupation as 
 applicable to the rights of sovereignty. There was substantial 
 agreement by all parties on the following points of historical fact: 
 
 1520. Magellan, sailing in the service of Spain, enters the 
 strait which has since borne his name. 
 
 1527. The voyage of Loaisa in the same region. 
 
 1578. Sir Francis Drake discovers Cape Horn and "a cluster 
 of islands." 
 
 1592. Davies said to have discovered the Falklands on his 
 voyage to the South Seas. 
 
 1594. Hawkins sees the islands, giving them the name of 
 Hawkins* Maiden-land.
 
 214 TITLE TO TERRITORY 
 
 1598. The islands visited by a Dutch squadron and named the 
 Sabald Islands. 
 
 1616. Le Maire, in the Dutch service, doubles the Horn and 
 gives it its name. 
 
 1689. Captain Strong, an English navigator, gives the islands 
 the name of Falkland. 
 
 1700-1708. French navigators from St. Malo visit the islands 
 and give them the name of Malouines, from which the Spanish 
 name Malvinas is derived. 
 
 1764, February 3. The French, under M. de Bougainville, 
 establish at Port Louis the first settlement on the Malouines. 
 Spam, regarding this as a usurpation, asserts her title to them as a 
 dependency of the continent of South America. France does not 
 contest the Spanish claim. 
 
 1764, June 17. Commodore Byron instructed by the British 
 Government to make a survey of the islands. 
 
 1765, January 23. Commodore Byron takes formal possession 
 for Great Britain, under the name of Falkland Islands. 
 
 1766, January 8. Captain MacBride arrives at Port Egmont 
 with a British military force and stations a garrison. 
 
 1766, October 4. M. de Bougainville signs an agreement to 
 evacuate the islands on receiving compensation from Spam. 
 
 1767, March 27. Formal delivery of the French colony to 
 Puente, the Spanish governor. 
 
 1770, June 10. A Spanish force under Admiral Madariaga dis- 
 possesses the British at Port Egmont. 
 
 1771, January 22. Spanish declaration restoring the Falklands 
 to Great Britain, without affecting the "question of anterior 
 right of sovereignty." British counter-declaration of same date 
 is silent about any such right. 
 
 1771, September 16. Possession of Port Egmont formally re- 
 stored to Great Britain. 
 
 1774, May 22. Great Britain withdraws her forces from Port 
 Egmont, leaving "the marks and signals of possession" and the 
 British flag still flying. 
 
 1790, October 28. Treaty of San Lorenzo between Spain and 
 Great Britain. Neither party to form settlements south of 
 coasts and islands then occupied by Spain. British subjects
 
 THE FALKLAND ISLANDS 215 
 
 not to fish in South Seas within ten leagues of any part of 
 said coasts. 
 
 1810, May 25. Revolution in the United Provinces of Rio de 
 la Plata. 
 
 1820, November 6. Colonel Daniel Jewett takes formal posses- 
 sion of the islands in the name of "the Supreme Government of 
 The United Provinces of South America." 
 
 Based upon these data, the British claim may be thus summa- 
 rized: 
 
 1. Prior discovery. At least, in the absence of certainty, it was 
 contended, the British claim on this ground was as probable 
 as the Spanish. 
 
 2. Formal possession by Commodore Byron in 1765. While ad- 
 mitting that the French had taken prior possession (in 1764), 
 Great Britain contended that France by her retirement had 
 confessed her lack of title and hence could transfer no rights 
 to Spain. "If," as the American Charge at Buenos Ayres 
 expressed it in his note of July 10, 1832, "the doctrine as- 
 sumed by Spain was correct, that France had not even a 
 colorable title, the cession was a nullity; and it is a fact that 
 Spain so regarded it, and relied on her prior rights alone, in 
 her subsequent controversy with Great Britain." (British 
 and Foreign Stale Papers, vol. xx, p. 345.) 
 
 3. Actual occupation in 1766. 
 
 4. The disavowal by Spain in 1771 of the dispossession of the 
 British colony the year before and the subsequent restora- 
 tion to Great Britain without "any secret understanding" 
 that Great Britain "was pledged to restore the islands to 
 Spain at a subsequent period." 
 
 5. The formalities observed on the evacuation in 1774, "cal- 
 culated not only to assert the rights of ownership, but to 
 indicate the intention of resuming the occupation of the 
 territory at some future period." 
 
 Consequently, said Lord Palmerston, in his note of January 8, 
 1834, "the Government of the United Provinces could not reason- 
 ably have anticipated that the British Government would permit 
 any other state to exercise a right, as derived from Spain, which
 
 2l6 TITLE TO TERRITORY 
 
 Great Britain had denied to Spain herself; and this consideration 
 alone would fully justify His Majesty's Government in declining 
 to enter into any further explanation upon a question which, 
 upwards of half a century ago, was so notoriously and decisively 
 adjusted with another government more immediately concerned." 
 (British and Foreign State Papers, vol. xxn, p. 1386.) 
 
 The Spanish claims, upon which those of the Argentine Republic 
 depend, were based upon similar principles, as follows: 
 
 1. Prior discovery attributed by M. de Bougainville to Ves- 
 pucius and by the British Naval Chronicle of 1809 to Magel- 
 lan. (Note of M. Moreno in British and Foreign State Papers, 
 vol. xxn, pp. 1370-71.) 
 
 2. Possession effectively asserted, when on protest from Spam 
 Great Britain in 1754 renounced an intention on the part of 
 the Admiralty under Lord Anson to establish a port of call 
 in the Falklands. 
 
 3. The geographical position of the archipelago, as a depend- 
 ency of the continental territory of Spanish America. This 
 was urged successfully against France in 1764-67. 
 
 4. Prior occupation, the rights based upon which were derived 
 from France in 1767, when the French establishment was 
 formally handed over to Spain, all French rights having been 
 extinguished by treaty and the payment of indemnity. 
 
 5. Reservation of the rights of sovereignty by Spain in 1771, 
 and the subsequent exercise of acts of sovereignty by her 
 after the abandonment of the islands by the British in 1774 
 such acts as the nomination of governors, the maintenance 
 of garrisons, and -the exclusion of foreign vessels from the 
 fisheries. 
 
 6. The implied recognition by Great Britain in the Treaty of 
 1790 of exclusive Spanish possession of the islands. 
 
 The Argentine Republic, as successor to the state rights of 
 Spain, has asserted in support of its claims: 
 
 1. The acquisition by treaty of all Spanish rights. 
 
 2. Possession begun and exercised.
 
 THE FALKLAND ISLANDS 217 
 
 3. Recognition, tacit and explicit, by other states. 
 
 4. Prescription, "resulting from a possession uncontested and 
 uninterrupted for fifty-nine consecutive years" (1774-1833). 
 
 "Accordingly," says Calvo, himself the Argentine Minister at 
 Paris, writing in 1896, " the Argentine Republic maintains and will 
 maintain over the islands in question, as long as the usurpation 
 of its sovereign domain by the English Government continues, 
 the absolute right of ownership which it holds impliedly from 
 Spain, which was formally recognized in 1820, and the exercise 
 of which would never have been interrupted save for the abuse of 
 force on the part of Great Britain." (Calvo: Droit International 
 [Paris, 1896], vol. i, pp. 423-24-) 
 
 As far as can be ascertained there has been no more recent 
 pronouncement upon the controversy. 
 
 (British and Foreign State Papers, vol. xx, pp. 311-441, 1194- 
 99; vol. xxn, pp. 1366-94; vol. xxxi, pp. 1003-05; Calvo: Droit 
 International, vol. i, p. 417-24; Moore: Digest of International 
 Law, pp. 876-90.)
 
 CHAPTER V 
 
 THE RESTRICTIONS WHICH INTERNATIONAL LAW 
 PLACES UPON THE EXERCISE OF JURISDICTION 
 BY THE STATE WITHIN THE NATIONAL BOUND- 
 ARIES 
 
 23. PHYSICAL LIMITS WITHIN WHICH A STATE IS RECOG- 
 NIZED AS SOVEREIGN AND RESPONSIBLE FOR THE 
 L ENFORCEMENT OF INTERNATIONAL LAW 
 
 THE FUR SEAL ARBITRATION 
 
 Special Arbitral Tribunal at Paris, 1893 
 
 IN 1867, when the United States purchased Alaska, it acquired 
 "all the territory and dominion" which the Emperor of Russia 
 possessed "on the continent of America and in the adjacent 
 islands." By the treaty the western boundary of the cession was 
 denned as a line drawn through Behring Strait and southwesterly 
 through Behring Sea "so as to include in the territory conveyed 
 the whole of the Aleutian Islands." On reference to the map it 
 will be seen that the major portion of Behring Sea lies to the east 
 of this line, but whether or not the "dominion" conveyed im- 
 plied jurisdiction over Behring Sea was in no way indicated in the 
 treaty. 
 
 By an imperial ukase in 1821, Russia had reserved exclusively 
 for Russian subjects the rights of commerce and fishing on the 
 northwest coast of America down to 51 north latitude, and had 
 asserted jurisdiction over Behring Sea to the distance of one 
 hundred Italian miles from her coasts. This ukase was promptly 
 protested by the United States and Great Britain, both of whom 
 had territorial claims north of 51. As a result of their protests, 
 Russia receded from her extreme position and, by treaties in 1824 
 and 1825 with the United States and Great Britain respectively,
 
 THE FUR SEAL ARBITRATION 219 
 
 recognized that "her jurisdiction in said sea should be restricted 
 to the reach of cannon shot from shore." 
 
 Soon after the cession of Alaska, the United States enacted 
 legislation with a view to the protection of the fur seal and the 
 regulation of the sealing industry. The islands of St. Paul and 
 St. George in the Pribilof group, whither the seals resort during 
 the breeding season, were set aside as "a special reservation for 
 government purposes," and the right to take the seals on these 
 islands was given to a company, under a strict lease Limiting the 
 number of seals to be taken per annum, and making it "unlawful 
 to kill any fur seal upon the islands of St. Paul and St. George and 
 in the waters adjacent thereto except during the months of June, 
 July, September, and October." Just what extent of maritime 
 jurisdiction was implied by "waters adjacent" was not specified. 
 Opinion on the point, as expressed in Congress and by government 
 officials, was not uniform, but in 1881 the Acting Secretary of the 
 Treasury, in answer to an inquiry, stated that "all the waters 
 within that boundary [the western boundary of the Alaskan 
 cession] to the western end of the Aleutian Archipelago and chain 
 of islands are considered as comprised within the waters of Alaska 
 Territory." 
 
 In 1886 revenue officers of the United States seized three Cana- 
 dian schooners which they found sealing in the Behring Sea, 
 within waters over which the United States claimed jurisdiction, 
 more than sixty miles from the nearest land. The vessels were 
 taken to Sitka and condemned by the justice of the District Court 
 at that place for violation of the sealing regulations of the United 
 States. Diplomatic representation was at once made by Great 
 Britain and the vessels were released; but in 1887 other Canadian 
 sealing schooners were seized and condemned by the court at 
 Sitka on the ground that Behring Sea was mare clausum and that 
 the United States alone had jurisdiction over it. Negotiations 
 were resumed and proposals made that the powers interested take 
 joint action to prevent the extermination of the industry; but the 
 negotiations were suspended in 1888, and next year the seizures 
 were renewed. In the course of the communications that fol- 
 lowed, the United States did not set up the claim of mare clausum, 
 but justified the seizures on the ground that the Canadian ves-
 
 220 PHYSICAL LIMITS OF SOVEREIGNTY 
 
 sels, by engaging in pelagic sealing, were exterminating the fur 
 seal, contra bonos mores. 
 
 After further seizures, protests, and negotiations, a treaty was 
 finally concluded between the two powers on February 29, 1892, 
 whereby the questions that had arisen were to be submitted to a 
 tribunal of seven arbitrators, two to be named by the President 
 of the United States, two by Her Britannic Majesty, and one 
 each by the President of France, the King of Italy, and the King 
 of Sweden and Norway. Article 6 of the treaty specified five points 
 upon which the decision of the tribunal was sought, as follows: 
 
 "i. What exclusive jurisdiction in the sea now known as 
 the Behring's Sea, and what exclusive rights in the seal 
 fisheries therein, did Russia assert and exercise prior and 
 up to the time of the cession of Alaska to the United 
 States? 
 
 "2. How far were these claims of jurisdiction as to the seal 
 fisheries recognized and conceded by Great Britain? 
 
 "3. Was the body of water now known as the Behring's Sea 
 included in the phrase 'Pacific Ocean* as used in the 
 Treaty of 1825 between Great Britain and Russia; and 
 what rights, if any, in the Behring's Sea were held and 
 exclusively exercised by Russia after said treaty? 
 
 "4. Did not all the rights of Russia as to jurisdiction, and as 
 to the seal fisheries in Behring's Sea east of the water 
 boundary, in the treaty between the United States and 
 Russia of the 3oth March, 1867, pass unimpaired to the 
 United States under that treaty? 
 
 "5. Has the United States any right, and if so, what right of 
 protection or property in the fur seals frequenting the 
 islands of the United States in Behring's Sea, when such 
 seals are found outside the ordinary three-mile limit?" 
 
 It was further provided, by article 7, that, if the decision on 
 these points should be against the contentions of the United States, 
 the arbitrators should determine "what concurrent regulations 
 outside the jurisdictional limits of the respective governments are 
 necessary, and over what waters such regulations should extend." 
 
 The tribunal, constituted in accordance with the treaty, held
 
 THE FUR SEAL ARBITRATION 221 
 
 its first session in Paris on February 23, 1893. The American 
 arbitrators were Mr. Justice Harlan, of the Supreme Court of the 
 United States, and Senator Morgan. Representing Great Britain 
 on the tribunal were Lord Hannen, of the High Court of Appeal, 
 and Sir John Thompson, Minister of Justice for Canada. The 
 three neutral members were Baron de Courcel, chosen by the 
 President of France, Marquis Venosta, by the King of Italy, and 
 M. Gregers Gram, by the King of Sweden and Norway. Baron 
 de Courcel was chosen president. 
 
 The United States, in its case, counter-case, and arguments, 
 did not press the claim that Behring Sea was mare clausum, but 
 maintained that, both in international law and by treaty with 
 Russia, it had acquired a property in the fur seal, and, corollary 
 to that, a right to protect it by "the practical prohibition of 
 pelagic sealing in all the waters to which it resorts." 
 
 The situation, it was admitted, was a new one, but the principle 
 involved was fundamental. International law was merely the 
 international standard of justice and advanced by analogy. It 
 was necessary that the decision of the tribunal be based upon the 
 principle of right, for, in addition to usage and practice, "nations 
 presumed to agree upon what natural and universal justice dic- 
 tates." There was a distinction between exercising jurisdiction 
 on the high seas and protecting one's property thereon. The 
 Alaskan fur seal, being by nature a land animal, had its permanent 
 home on the Pribilof Islands and was thus to be considered a 
 natural product of the soil. It exhibited all the essentials of prop- 
 erty: it submitted to the dominion of man, could be "husbanded" 
 by him, and, though migrating seawards at stated seasons, always 
 manifested the animus revertendi. The very existence of the 
 Alaskan herd was due to the protection afforded it by Russia and 
 the United States, and it was in order to extend such protection 
 that Russia had issued her ukase of 1821. The objection to the 
 ukase on the part of the United States had been made not against 
 the right to protect Russian industries, but against unfounded 
 territorial claims. The property was in the herd, rather than in 
 the individual seals, and with the property right went a moral, and, 
 in the view of the United States, a legal, right to protect this 
 property wherever found.
 
 222 PHYSICAL LIMITS OF SOVEREIGNTY 
 
 But even if the seals themselves could not be protected by the 
 United States, there remained the sealing industry on the islands. 
 Might it be destroyed with impunity by pelagic sealing? The 
 right of self-defense implies the right to protect industry, even on 
 the high seas. The Ceylon pearl-fishery was a case in point, 
 where such protection was exercised beyond the usual limits of 
 jurisdiction, and further instances might be found in the revenue 
 laws of both Great Britain and the United States. 
 
 Finally, over and above all technical arguments, it was urged 
 that the United States held the seal industry in trust for the 
 benefit of mankind, and that it was justified, in the contemplation 
 of the law of nations, in taking all measures to prevent the exter- 
 mination of the industry, even to the extent of seizing foreign 
 sealing vessels upon the high seas. 
 
 In reply to these arguments, Great Britain maintained that 
 international law, so far from having the comprehensive ethical 
 basis contended for by the United States, comprised "only so 
 much of the principle of morality and justice as the nations have 
 agreed shall be part of those rules of conduct which shall govern 
 their relations with one another." The test was the consent of 
 nations placuitne gentibus? An ocean fishery was a natural 
 right and open to all, unless restricted by international agreement. 
 Property in seals was without precedent, and protection in any 
 case was limited to territorial waters. In all the instances cited 
 by the United States where such protection had been exercised 
 outside the ordinary limits, there was no attempt at extrater- 
 ritorial jurisdiction over foreigners. The contention that Russia 
 had exercised such jurisdiction was not borne out by the 
 facts. The ukase of 1821 had been protested by both the 
 United States and Great Britain, and down to 1867 Russia had 
 exercised in Behring Sea only her strict rights according to in- 
 ternational law. The western line in the treaty of cession had 
 been drawn to divide the islands, not to transfer jurisdiction 
 which did not exist. After 1867 the United States had legis- 
 lated to protect the seals when on the islands only, not when 
 found on the high seas. 
 
 As to the contention that the Alaskan seals presented all the 
 essentials of property, Great Britain argued that seals were fera
 
 THE FUR SEAL ARBITRATION 223 
 
 naturcB (wild creatures) and hence res nullius (the property of no 
 one). So far from being a land animal, the seal spent most of its 
 time in the open sea; it got its food there, and went north to the 
 islands merely for breeding purposes. While on the islands it 
 could be said to be controllable by man, only because it was help- 
 less. Nor could he be said to "husband" them except in a 
 negative way by refraining from killing all. He did nothing to 
 improve the breed or change their habits; and as to the animus 
 revertendi, this doctrine, as establishing a property right, applied 
 only to brief intervals of time, not to the movements of migratory 
 animals. "The fur seal might as truly be said to have an animus 
 revertendi to the ocean as an animus revertendi to the Pribilof 
 Islands." Furthermore, to claim property in the seal herd, but 
 none in the individual seals, was to beg the entire question of 
 property rights. "The whole was made up of parts, and if there 
 was no property in the parts, how could there be in the whole?" 
 The United States could not maintain, for example, an action of 
 trespass for the capture of an individual seal, and such an action 
 was an ultimate test of a property right. 
 
 The argument that the property in the industry, as carried on 
 in the islands, implied a right to protection in the Behring Sea, 
 was likewise considered by Great Britain to be without ground in 
 international law. Sealing on the high seas was lawful; indeed, 
 the earliest form of the industry was pelagic. True, it might 
 compete with the land industry to the disadvantage of the latter, 
 but competition was an economic necessity that conditioned all 
 industry. Acts of self-defense were, in the main, belligerent rights 
 exercised in the face of exceptional emergencies. The historical 
 attitude of the United States toward the principle of visit and 
 search made for the support of the British contention hi the pres- 
 ent instance; nor were revenue laws, enforced beyond the ac- 
 cepted limits of maritime jurisdiction, any exception to the general 
 principle, for they were always directed against an offense con- 
 templated within municipal jurisdiction. 
 
 On the conclusion of the oral arguments, the tribunal deliber- 
 ated behind closed doors upon the questions submitted. Agree- 
 ment was finally reached on August 15, 1893, an ^ tne award 
 signed by all seven arbitrators. In addition, they signed three
 
 224 PHYSICAL LIMITS OF SOVEREIGNTY 
 
 declarations which "were referred to the Governments of the 
 United States and Great Britain for their consideration." 
 
 Summarized, the award was as follows: 
 
 On the first three points submitted those concerning Rus- 
 sian jurisdiction the tribunal decided that, from the time of the 
 Russian treaties with the United States and Great Britain down 
 to the time of the cession of Alaska, "Russia never asserted in 
 fact or exercised any exclusive jurisdiction hi Behring's Sea or 
 any exclusive rights in the seal fisheries therein beyond the ordi- 
 nary limits of territorial waters;" that Great Britain had obvi- 
 ously never conceded such claim; and that the phrase "Pacific 
 Ocean" as used in the Treaty of 1825 included the Behring Sea. 
 On all three points Justice Harlan voted with the majority, 
 Senator Morgan dissenting. 
 
 On the fourth point the tribunal was unanimous in its decision 
 that the United States had succeeded to all the rights of Russia 
 "as to jurisdiction and as to the seal fisheries in the Behring Sea 
 east of the water boundary." 
 
 On the fifth point the important one of property rights a 
 majority of the arbitrators decided "that the United States had 
 not any right of protection or property in the fur seals frequenting 
 the islands of the United States in Behring Sea, when such seals 
 are found outside the ordinary three-mile limit." From this part 
 of the award both American arbitrators dissented. 
 
 The decision having been against the claims of the United 
 States, it was incumbent upon the tribunal, in accordance with 
 article 7 of the treaty of arbitration, to agree upon regulations 
 necessary for the protection and preservation of the seals in 
 Behring Sea. This they did in nine articles which dealt specifically 
 with the time, place, and manner of sealing "outside the juris- 
 dictional limits of the respective governments." No seals were to 
 be taken within sixty miles of the Pribilof Islands. There was to 
 be a dosed season each year from May i to July 31 in the part 
 of the Pacific Ocean east of 180 longitude and north of 35 lati- 
 tude as far as Behring Strait. Only sailing vessels could engage 
 in sealing operations, for which special licenses were required. 
 There was to be supervision of those engaged in the industry, but 
 Indians were to be exempt from the scope of the regulations when
 
 THE SCHNAEBELE INCIDENT 225 
 
 fishing for themselves. The use of nets, firearms, and explosives 
 was prohibited. Lastly, the regulations were to remain in force 
 "until they have been, in whole or in part, abolished or modified 
 by common agreement," but every five years they were to be 
 examined with a view to necessary revision. 
 
 The three declarations recommended to the two powers (i) the 
 desirability of supplementary regulations within their respective 
 jurisdictions; (2) a closed season everywhere for two or three 
 years; and (3) the enactment of municipal measures to give effect 
 to the regulations determined upon by the tribunal. 
 
 It may be added that, by a convention between the two govern- 
 ments in 1896, two commissioners were appointed to determine 
 the amount of damages due Great Britain by reason of the seizures. 
 After several sessions in Canada and the United States the sum 
 of $473,151.26 was agreed upon and duly paid by the Government 
 of the United States hi full settlement of all claims. 
 
 (Proceedings, 15 vols., published by the Government Printing 
 Office, Washington; Moore: International Arbitrations, vol. I, 
 PP- 755-96i.) 
 
 24. IMMUNITIES OF THE AGENTS OF INTERNATIONAL 
 
 INTERCOURSE 
 
 THE SCHNAEBELfi INCIDENT (1887) 
 
 THE somewhat delicate relations between France and Germany 
 in the early part of 1887 were suddenly strained to the breaking 
 point by an incident which occurred on the Alsatian frontier. A 
 French police inspector, who crossed the frontier on April 22 to 
 hold an interview with a German official, was arrested in the rail- 
 way station at Pagny by two agents of the German secret police. 
 The indignation in France was dangerously increased by the report 
 of the attorney-general at Nancy that the arrest had been made 
 on French territory. 
 
 The French Cabinet, as it later became known, voted 6 to 5 
 against an ultimatum which would almost certainly have meant 
 war. The President of the Council, Goblet, General Boulanger
 
 226 IMMUNITIES OF INTERNATIONAL AGENTS 
 
 and Admiral Aube, Lockroy, and Granet were in favor of sending 
 the ultimatum, but President Grevy and the Minister of Foreign 
 Affairs, Flourens, counseled patience and were able to muster a 
 majority of one vote. 
 
 The incident was terminated by the following note which the 
 German Chancellor, Count von Bismarck, transmitted April 28, 
 1887, to the French Ambassador at Berlin: 
 
 "In regard to the arrest of the French police commissioner 
 Schnaebele, the undersigned has given the matter a careful exami- 
 nation in which he has taken into account the information trans- 
 mitted to him by His Excellency the Ambassador of the French 
 Republic and the communications of the French Minister for 
 Foreign Affairs transmitted through the intermediary of the Ger- 
 man Charge d'Affaires at Paris. The judicial authorities con- 
 cerned in the affair have also been called upon to submit the 
 papers setting forth the grounds for M. Schnaebele's arrest. 
 
 "A copy of the more important of these documents, and especi- 
 ally the statement made by Schnaebele after his arrest, together 
 with the depositions of all the witnesses examined in the affair, 
 has been given to the Ambassador of the French Republic. From 
 these documents it is made clear beyond all doubt that the arrest 
 occurred entirely on German territory, and that the French 
 frontier was not crossed. 
 
 "The judicial proceedings directed against M. Schnaebele re- 
 lated to the crime of high- treason committed upon German ter- 
 ritory, and were based upon conclusive evidence of his guilt, con- 
 sisting in the confession of the German subject Klein and in his 
 autograph letters mailed at Metz, which have since been admitted 
 by Schnaebele as coming from Klein. In consideration of his guilt, 
 which Schnaebele afterwards confessed to, the court ordered his 
 arrest as soon as he should set foot upon German territory. This 
 occurred on the 2oth of the present month, when an opportunity 
 was afforded by an appointment at the frontier made by the 
 German police commissioner Gautsch to discuss official matters 
 with Schnaebele. 
 
 "Under the circumstances Schnaebel6's conviction cannot be 
 considered as doubtful, and is still more sure to occur in that 
 Schnaebele in his reprehensible activity took advantage of his
 
 THE SCHNAEBELfi INCIDENT 227 
 
 official position which allowed him special opportunities because 
 of the mutual confidence which both nations place in their official 
 relations on the frontier. Schnaebele has injured the indispen- 
 sable confidence necessary for international intercourse by the 
 manner in which he has taken advantage of his official position as 
 a frontier official to induce German subjects to commit for pay 
 criminal offenses against the Fatherland. This misuse of his 
 official position increases, in the eyes of the court, the gravity of 
 Schnaebele's offense, irrespective of the question whether he 
 acted at the direction of his superiors. The undersigned allows 
 himself to make these observations in case, after Schnaebele's re- 
 lease, he should again be found on German soil without the offi- 
 cial understanding previously referred to, to protect him against 
 arrest. 
 
 "The undersigned hopes that the French Ambassador will be 
 convinced from his inspection of the communicated documents 
 that the order issued by the court for Schnaebele's arrest was well 
 founded, and that its execution took place within German terri- 
 tory without any violation of French sovereignty. If, notwith- 
 standing, the undersigned considers it his duty to request His 
 Gracious Majesty, the Emperor, to order Schnaebele's release, it is 
 out of respect to the principle of international law which regards 
 all crossings of the border, undertaken on the basis of an under- 
 standing between officials of neighboring states, as a tacit agree- 
 ment of safe-conduct. It is impossible to believe that the German 
 official, Gautsch, asked Schnaebele to confer with him in order 
 to facilitate his arrest. There are letters, however, which show 
 that Schnaebele's presence at the place where his arrest occurred 
 was due to an understanding made with an official on this side of 
 the frontier for the purpose of transacting business of common 
 concern. If frontier officials engaged on such a mission should be 
 subject to the process of the courts of the neighboring state, the 
 consequence would be to render more difficult the handling of 
 those matters which are incidental to the frontier relations be- 
 tween states. Such a result is not in conformity with the spirit 
 and traditions of international relations at the present time. The 
 undersigned is of the opinion that such interviews for the trans- 
 action of business must always be considered as covered by a
 
 228 LEGATIONS 
 
 safe-conduct of the two governments. In this belief and with the 
 full recognition of the perfect legality of the action taken by the 
 German authorities, the undersigned has laid the matter before 
 His Majesty the Emperor, who has decided, in consideration of 
 the principle of international law which requires absolute security 
 for international negotiations, to release Police Commissioner 
 Schnaebele, notwithstanding his arrest in German territory and 
 notwithstanding the above-mentioned proofs exhibited against 
 him. The undersigned makes this known to the Ambassador of 
 the French Republic and announces at the same time that the 
 requisite order for the release of Schnaebele has been expedited, 
 and begs His Excellency to accept the assurance of his highest 
 consideration. 
 
 "VoN BISMARCK." 
 
 (Das Staatsarchiv, vol. 48 [1889], Nos. 9596, 9597; Schulthess: 
 Europaischer Geschichtskalender [1887], pp. in, 133-34, 328.) 
 
 25. LEGATIONS 
 
 THE NIKITCHENKOFF l CASE 
 
 Court of Cassation, 1863 
 
 THE reporter charged with presenting the case pointed out 
 that "the attempts at assassination for which the appellant had 
 been condemned to imprisonment for life with hard labor had been 
 committed by a Russian subject upon a Russian subject within 
 the interior of the Russian Embassy at Paris." After discussing 
 the nature and extent of the diplomatic immunity and its appli- 
 cation to the present case, the reporter draws attention "to the 
 attitude in regard to the affair taken by the Russian Embassy, 
 which, he remarks, so well understood that the principle to which 
 it owed its protection was in no wise concerned in this matter, that 
 appeal was made to the intervention of the French police. The 
 arrest was made as a result of a demand from the embassy itself, 
 and the trial continued with its -concurrence and silence. May it 
 
 1 Dalloz has Mikiischenkojf.
 
 THE NIKITCHENKOFF CASE 229 
 
 not be asked whether from this very circumstance the action 
 taken was not both necessary and legal?" The reporter then 
 alludes to the inapplicability for a foreign government to de- 
 mand extradition in such a case and draws attention to the 
 care "with which the Russian Government had abstained from 
 making a demand of this nature." 1 But, he continues, "even 
 had it been made, the fact was that the appellant had also in 
 this case committed an attack upon a Frenchman engaged as 
 a porter at the embassy and against an Italian who happened 
 there by chance and who was placed under the protection of 
 French law." 
 
 The decision of the Court of Cassation, section of Criminal 
 Affairs, rendered October 13, 1865, was as follows: 
 
 "In regard to the plea brought forward that the offense com- 
 plained of was committed by a Russian upon a Russian or foreign 
 subject in the Russian Embassy at Paris, and consequently in a 
 place outside of French territory, where French law was not ap- 
 plicable and to which the competence of our courts could not ex- 
 tend: Whereas according to the terms of article 3, code Napo- 
 leon, the police regulations for the public safety are obligatory 
 upon all those dwelling within their territory; where'as it may 
 be admitted, as an exception to this rule of public law, that 
 international law in certain instances affords a personal immunity 
 
 1 Notwithstanding what is said, it appears that the Russian Government did de- 
 mand extradition. The Solicitor's Journal (1865-66, vol. x, p. 56) notes: "It will be 
 remembered that this case gave rise to a diplomatic correspondence, the Russian 
 Government having disputed the right of the French courts to try the murderer, and 
 claimed a right to have him given up for trial in Russia." And de Martens, whose 
 statement, in spite of its evident inaccuracy in dating the occurrence, may be taken 
 as authoritative, says: "In this connection the question was raised as to whether the 
 prisoner should be brought to trial before a French or a Russian court. The Govern- 
 ment of the Tsar maintained from the beginning that the case was within the juris- 
 diction of the Russian courts, inasmuch as the crime had been committed in the 
 residence of the ambassador and both victim and perpetrator of the violence were 
 Russian subjects. But the French Government replied that the extraterritoriality of 
 the embassy afforded no protection to criminals, and that moreover the French au- 
 thorities entrusted with conducting the preliminary examination at the request of 
 the embassy itself ought naturally to be considered competent to carry the case 
 through to the end. The Cabinet of St. Petersburg yielded this point, reserving the 
 right to take similar action in the future with reference to the French Embassy at St. 
 Petersburg." (Translated from F. de Martens: Traill de Droit International [Paris, 
 1886], vol. n, p. 68.) The fact that the Russian Government yielded after contesting 
 the French view of the fact gives of course increased value to the case as a precedent.
 
 230 ARMED FORCES AND WARSHIPS 
 
 to foreign diplomatic agents and that by virtue of a legal fiction 
 their residence is looked upon as situated outside the territory 
 of the sovereign to whom they are accredited; But whereas 
 this legal fiction cannot be extended, whereas it is outside of the 
 common law, and is confined strictly to ambassadors or ministers, 
 whose independence it is designed to protect, and to their subor- 
 dinates who nevertheless are invested with the like public charac- 
 ter; Whereas the plaintiff holds no office at the Russian Em- 
 bassy, but, as a foreigner temporarily resident in France, is 
 subject to French laws; whereas the place where the offense was 
 said to have been committed can no longer be held as outside the 
 limits of the territory so far as relates to the plaintiff personally, 
 the operation and competence of the French judicial authorities 
 being therefore beyond question; Whereas they have acted, at 
 the express request of the agents of the Russian Government, 
 after the latter had turned the plaintiff over to be prosecuted; 
 Decided that on all these counts the plea invoked is not well 
 founded. . . ." l 
 
 (Translated and condensed from Dalloz [1866], part I, p. 
 233/0 
 
 26. ARMED FORCES AND WARSHIPS 
 I 
 
 THE SCHOONER EXCHANGE 
 
 The Supreme Court of the United States, 1812 
 
 AN armed vessel sailing under the flag of Napoleon, Emperor 
 of France, entered the port of Philadelphia, where shortly after 
 her arrival she was arrested upon a libel filed August 24, 1811, 
 against the schooner Exchange, by John M'Faddon, and William 
 Greetham, setting forth that they were her owners on October 27, 
 1809, when she sailed from Baltimore bound to St. Sebastian, in 
 Spain, and that she had been violently and forcibly taken by 
 persons acting under the decrees and orders of Napoleon and dis- 
 
 1 The rest of the opinion deals with exceptions to the competence of the court on 
 technical grounds relating to the violation of the Code of Civil Procedure. On this 
 latter ground also the court decided against the appeal.
 
 THE SCHOONER EXCHANGE 231 
 
 posed of in violation of the rights of the libelants and of the law of 
 nations. No claim was put in by any person, but the attorney for 
 the district, acting by order of the executive department of the 
 government, filed a suggestion to the effect that, a state of peace 
 existing between the United States and France, the public vessels 
 of France may freely enter and depart from the ports of the United 
 States without seizure, arrest, detention, or molestation; that 'a 
 certain public vessel of France known as the Balaou, having 
 entered the port of Philadelphia for repairs, had not been seized 
 in the manner described by the libelants, but that even if the said 
 public vessel ever had been a vessel navigating under the flag of 
 the United States and possessed by the libelants (which never- 
 theless the attorney did not admit), the property had since been 
 divested. In consideration of these premises the attorney asked 
 the court to quash the process of attachment, to dismiss the libel 
 with costs, and to release the vessel. 
 
 On October 4, 1811, the district judge dismissed the libel with 
 costs, upon the ground that a public armed vessel of a foreign 
 sovereign, in amity with our government, is not subject to the 
 ordinary judicial tribunals of the country so far as regards the 
 question of title by which such sovereign claims to hold the 
 vessel. 
 
 On appeal to the Circuit Court this sentence was reversed, 
 October 28, 1811, and from the sentence of reversal the district 
 attorney appealed to the Supreme Court of the United States. 
 
 Chief Justice Marshall delivered the opinion of the Supreme 
 Court: 
 
 "This case involves the very delicate and important inquiry, 
 whether an American citizen can assert, in an American court, a 
 title to an armed national vessel, found within the waters of the 
 United States. 
 
 "The question has been considered with an earnest solicitude, 
 that the decision may conform to those principles of national and 
 municipal law by which it ought to be regulated. 
 
 " In exploring an unbeaten path, with few, if any aids, from prec- 
 edents or written law, the court has found it necessary to rely 
 much on general principles, and on a train of reasoning, founded on 
 cases in some degree analogous to this.
 
 232 ARMED FORCES AND WARSHIPS 
 
 " The jurisdiction of courts is a branch of that which is possessed 
 by the nation as an independent sovereign power. 
 
 "The jurisdiction of the nation within its own territory is 
 necessarily exclusive and absolute. It is susceptible of no limita- 
 tion not imposed by itself. Any restriction upon it, deriving 
 validity from an external source, would imply a diminution of its 
 sovereignty to the extent of the restriction, and an investment of 
 that sovereignty to the same extent in that power which could 
 impose such restrictions. 
 
 "All exceptions, therefore, to the full and complete power of a 
 nation within its own territories, must be traced up to the consent 
 of the nation itself. They can flow from no other legitimate source. 
 
 "This consent may be either express or implied. In the latter 
 case, it is less determinate, exposed more to the uncertainties of 
 construction; but, if understood, not less obligatory. 
 
 "The world being composed of distinct sovereignties, possessing 
 equal rights and equal independence, whose mutual benefit is pro- 
 moted by intercourse with each other, and by an interchange of 
 those good offices which humanity dictates and its wants require, 
 all sovereigns have consented to a relaxation in practice, in cases 
 under certain peculiar circumstances, of that absolute and com- 
 plete jurisdiction within their respective territories which sover- 
 eignty confers. 
 
 "This consent may, in some instances, be tested by common 
 usage, and by common opinion growing out of that usage. 
 
 "A nation would justly be considered as violating its faith, 
 although that faith might not be expressly plighted, which should 
 suddenly and without previous notice, exercise its territorial 
 powers in a manner not consonant to the usages and received 
 obligations of the civilized world. 
 
 "This full and absolute territorial jurisdiction being alike the 
 attribute of every sovereign, and being incapable of conferring 
 extraterritorial power, would not seem to contemplate foreign 
 sovereigns nor their sovereign rights as its objects. One sovereign 
 being in no respect amenable to another, and being bound by obli- 
 gations of the highest character not to degrade the dignity of his 
 nation, by placing himself or its sovereign rights within the juris- 
 diction of another, can be supposed to enter a foreign territory
 
 THE SCHOONER EXCHANGE 233 
 
 only under an express license, or in the confidence that the immuni- 
 ties belonging to his independent sovereign station, though not 
 expressly stipulated, are reserved by implication, and will be 
 extended to him. 
 
 "This perfect equality and absolute independence of sovereigns, 
 and this common interest impelling them to mutual intercourse, 
 and an interchange of good offices with each other, have given 
 rise to a class of cases in which every sovereign is understood to 
 waive the exercise of a part of that complete exclusive territorial 
 jurisdiction, which has been stated to be the attribute of every 
 nation. 
 
 " ist. One of these is admitted to be the exemption of the person 
 of the sovereign from arrest or detention within a foreign territory. 
 
 "If he enters that territory with the knowledge and license of 
 its sovereign, that license, although containing no stipulation 
 exempting his person from arrest, is universally understood to 
 imply such stipulation. 
 
 "Why has the whole civilized world concurred in this construc- 
 tion? The answer cannot be mistaken. A foreign sovereign is not 
 understood as intending to subject himself to a jurisdiction in- 
 compatible with his dignity, and the dignity of his nation, and it 
 is to avoid this subjection that the license has been obtained. 
 The character to whom it is given, and the object for which it is 
 granted, equally require that it should be construed to impart full 
 security to the person who has obtained it. This security, how- 
 ever, need not be expressed; it is implied from the circumstances 
 of the case. 
 
 " Should one sovereign enter the territory of another, without the 
 consent of that other, expressed or implied, it would present a 
 question which does not appear to be perfectly settled, a decision 
 of which is not necessary to any conclusion to which the court may 
 come in the cause under consideration. If he did not thereby ex- 
 pose himself to the territorial jurisdiction of the sovereign, whose 
 dominions he had entered, it would seem to be because all sov- 
 ereigns impliedly engage not to avail themselves of a power over 
 their equal, which a romantic confidence in their magnanimity 
 has placed in their hands. 
 
 " 2d. A second case, standing on the same principles with the
 
 234 ARMED FORCES AND WARSHIPS 
 
 first, is the immunity which all civilized nations allow to foreign 
 ministers. 
 
 "Whatever may be the principle on which this immunity is 
 established, whether we consider him as hi the place of the sover- 
 eign he represents, or by a political fiction suppose him to be 
 extraterritorial, and, therefore, hi point of law, not within the 
 jurisdiction of the sovereign at whose court he resides; still the 
 immunity itself is granted by the governing power of the nation 
 to which the minister is deputed. This fiction of exterritoriality 
 [extraterritoriality] could not be erected and supported against the 
 will of the sovereign of the territory. He is supposed to assent 
 to it. 
 
 "This consent is not expressed. It is true that in some coun- 
 tries, and in this among others, a special law is enacted for the 
 case. But the law obviously proceeds on the idea of prescribing 
 the punishment of an act previously unlawful, not of granting to 
 a foreign minister a privilege which he would not otherwise possess. 
 
 "The assent of the sovereign to the very important and exten- 
 sive exemptions from territorial jurisdiction which are admitted to 
 attach to foreign ministers, is implied from the considerations 
 that, without such exemption, every sovereign would hazard his 
 own dignity by employing a public minister abroad. His minister 
 would owe temporary and local allegiance to a foreign prince, and 
 would be less competent to the objects of his mission. A sovereign 
 committing the interests of his nation with a foreign power, to 
 the care of a person whom he has selected for that purpose, cannot 
 intend to subject his minister in any degree to that power; and, 
 therefore, a consent to receive him, implies a consent that he shall 
 possess those privileges which his principal intended he should 
 retain, privileges which are essential to the dignity of his sovereign, 
 and to the duties he is bound to perform. 
 
 "In what cases a minister, by infracting the laws of the country 
 in which he resides, may subject himself to other punishment than 
 will be inflicted by his own sovereign, is an inquiry foreign to the 
 present purpose. If his crimes be such as to render him amenable 
 to the local jurisdiction, it must be because they forfeit the priv- 
 ileges annexed to his character; and the minister, by violating the 
 conditions under which he was received as the representative of a
 
 THE SCHOONER EXCHANGE 235 
 
 foreign sovereign, has surrendered the immunities granted on those 
 conditions; or, according to the true meaning of the original as- 
 sent, has ceased to be entitled to them. 
 
 "3d. A third case in which a sovereign is understood to cede a 
 portion of his territorial jurisdiction is, where he allows the troops 
 of a foreign prince to pass through his dominions. 
 
 "In such case, without any express declaration waiving jurisdic- 
 tion over the army to which this right of passage has been granted, 
 the sovereign who should attempt to exercise it would certainly be 
 considered as violating his faith. By exercising it, the purpose for 
 which the free passage was granted would be defeated, and a por- 
 tion of the military force of a foreign independent nation would be 
 diverted from those national objects and duties to which it was 
 applicable, and would be withdrawn from the control of the sover- 
 eign whose power and whose safety might greatly depend on re- 
 taining the exclusive command and disposition of this force. The 
 grant of a free passage, therefore, implies a waiver of all jurisdic- 
 tion over the troops during their passage, and permits the foreign 
 general to use that discipline, and to inflict those punishments 
 which the government of his army may require. 
 
 "But if, without such express permit, an army should be led 
 through the territories of a foreign prince, might the jurisdiction 
 of the territory be rightfully exercised over the individuals com- 
 posing this army? 
 
 "Without doubt, a military force can never gain immunities of 
 any other description than those which war gives, by entering a 
 foreign territory against the will of its sovereign. But if his con- 
 sent, instead of being expressed by a particular license, be expressed 
 by. a general declaration that foreign troops may pass through a 
 specified tract of country, a. distinction between such general per- 
 mit and a particular license is not perceived. It would seem rea- 
 sonable that every immunity which would be conferred by a special 
 license, would be in like manner conferred by such general permit. 
 
 "We have seen that a license to pass through a territory implies 
 immunities not expressed, and it is material to inquire why the 
 license itself may not be presumed. 
 
 "It is obvious that the passage of an army through a foreign 
 territory will probably be at all times inconvenient and injuri-
 
 236 ARMED FORCES AND WARSHIPS 
 
 ous, and would often be imminently dangerous to the sovereign 
 through whose dominion it passed. Such a practice would break 
 down some of the most decisive distinctions between peace and 
 war, and would reduce a nation to the necessity of resisting by 
 war an act not absolutely hostile in its character, or of exposing 
 itself to the strategems and frauds of a power whose integrity 
 might be doubted, and who might enter the country under de- 
 ceitful pretexts. It is for reasons like these that the general license 
 to foreigners to enter the dominions of a friendly power, is never 
 understood to extend to a military force; and an army marching 
 into the dominions of another sovereign, may justly be considered 
 as committing an act of hostility; and, if not opposed by force, 
 acquires no privilege by its irregular and improper conduct. It 
 may, however, well be questioned whether any other than the 
 sovereign power of the state be capable of deciding that such 
 military commander is without a license. 
 
 "But the rule which is applicable to armies, does not appear to 
 be equally applicable to ships of war entering the ports of a friendly 
 power. The injury inseparable from the march of an army 
 through an inhabited country, and the dangers often, indeed gener- 
 ally, attending it, do not ensue from admitting a ship of war, with- 
 out a special license, into a friendly port. A different rule, there- 
 fore, with respect to this species of military force has been gener- 
 ally adopted. If, for reasons of state, the ports of a nation 
 generally, or any particular ports be closed against vessels of war 
 generally, or the vessels of any particular nation, notice is usually 
 given of such determination. If there be no prohibition, the ports 
 of a friendly nation are considered as open to the public ships of 
 all powers with whom it is at peace, and they are supposed to enter 
 such ports and to remain hi them while allowed to remain, under 
 the protection of the government of the place. 
 
 "In almost every instance, the treaties between civilized na- 
 tions contain a stipulation to this effect in favor of vessels driven 
 in by stress of weather or other urgent necessity. In such cases 
 the sovereign is bound by compact to authorize foreign vessels to 
 enter his ports. The treaty binds him to allow vessels in distress 
 to find refuge and asylum in his ports, and this is a license which he 
 is not at liberty to retract. If would be difficult to assign a reason
 
 THE SCHOONER EXCHANGE 237 
 
 for withholding from a license thus granted, any immunity from 
 local jurisdiction which would be implied in a special license. 
 
 "If there be no treaty applicable to the case, and the sovereign, 
 from motives deemed adequate by himself, permits his ports to 
 remain open to the public ships of foreign friendly powers, the 
 conclusion seems irresistible, that they enter by his assent. And 
 if they enter by his assent necessarily implied, no just reason is 
 perceived by the court for distinguishing their case from that of 
 vessels which enter by express assent. 
 
 "In all the cases of exemption which have been reviewed, much 
 has been implied, but the obligation of what was implied has been 
 found equal to the obligation of that which was expressed. Are 
 there reasons for denying the application of this principle to ships 
 of war? 
 
 " In this part of the subject a difficulty is to be encountered, the 
 seriousness of which is acknowledged, but which the court will not 
 attempt to evade. 
 
 "Those treaties which provide for the admission and safe de- 
 parture of public vessels entering a port from stress of weather, or 
 other urgent cause, provide in like manner for the private vessels 
 of the nation; and where public vessels enter a port under the 
 general license which is implied merely from the absence of a pro- 
 hibition, they are, it may be urged, in the same condition with 
 merchant vessels entering the same port for the purposes of trade 
 who cannot thereby claim any exemption from the jurisdiction of 
 the country. It may be contended, certainly with much plausi- 
 bility if not correctness, that the same rule, and same principle 
 are applicable to public and private ships; and since it is admitted 
 that private ships entering without special license become subject 
 to the local jurisdiction, it is demanded on what authority an 
 exception is made in favor of ships of war. 
 
 " It is by no means conceded, that a private vessel really availing 
 herself of an asylum provided by treaty, and not attempting to 
 trade, would become amenable to the local jurisdiction, unless she 
 committed some act forfeiting the protection she claims under 
 compact. On the contrary, motives may be assigned for stipulating 
 and according immunities to vessels in cases of distress, which 
 would not be demanded for, or allowed to those which enter
 
 238 ARMED FORCES AND WARSHIPS 
 
 voluntarily and for ordinary purposes. On this part of the subject, 
 however, the court does not mean to indicate any opinion. The 
 case itself may possibly occur, and ought not to be prejudged. 
 
 "Without deciding how far such stipulations in favor of dis- 
 tressed vessels, as are usual in treaties, may exempt private ships 
 from the jurisdiction of the place, it may safely be asserted, that 
 the whole reasoning upon which such exemption has been implied 
 in other cases, applies with full force to the exemption of ships of 
 war in this. * 
 
 "'It is impossible to conceive,' says Vattel, 'that a prince who 
 sends an ambassador or any other minister can have any intention 
 of subjecting him to the authority of a foreign power, and this 
 consideration furnishes an additional argument, which completely 
 establishes the independency of a public minister. If it cannot be 
 reasonably presumed that his sovereign means to subject him to 
 the authority of the prince to whom he is sent, the latter, in re- 
 ceiving the minister, consents to admit him on the footing of in- 
 dependency; and thus there exists between the two princes a tacit 
 convention, which gives a new force to the natural obligation.' 
 
 "Equally impossible is it to conceive, whatever may be the 
 construction as to private ships, that a prince who stipulates a 
 passage for his troops, or an asylum for his ships of war in distress, 
 should mean to subject his army or his navy to the jurisdiction of 
 a foreign sovereign. And if this cannot be presumed, the sover- 
 eign of the port must be considered as having conceded the privi- 
 lege to the extent in which it must have been understood to be 
 asked. 
 
 "To the court, it appears, that where, without treaty, the ports 
 of a nation are open to the private and public ships of a friendly 
 power, whose subjects have also liberty without special license, to 
 enter the country for business or amusement, a clear distinction is 
 to be drawn between the rights accorded to private individuals or 
 private trading vessels, and those accorded to public armed ships 
 which constitute a part of the military force of the nation. 
 
 "The preceding reasoning has maintained the propositions that 
 all exemptions from territorial jurisdiction must be derived from 
 the consent of the sovereign of the territory; that this consent may 
 be implied or expressed; and that, when implied, its extent must
 
 THE SCHOONER EXCHANGE 239 
 
 be regulated by the nature of the case, and the views under which 
 the parties requiring and conceding it must be supposed to act. 
 
 "When private individuals of one nation spread themselves 
 through another as business or caprice may direct, mingling in- 
 discriminately with the inhabitants of that other, or when mer- 
 chant vessels enter for the purposes of trade, it would be obviously 
 inconvenient and dangerous to society, and would subject the 
 laws to continual infraction, and the government to degradation, 
 if such individuals or merchants did not owe temporary and local 
 allegiance, and were not amenable to the jurisdiction of the coun- 
 try. Nor can the foreign sovereign have any motive for wishing 
 such exemption. His subjects thus passing into foreign countries 
 are not employed by him, nor are they engaged in national pur- 
 suits. Consequently there are powerful motives for not exempt- 
 ing persons of this description from the jurisdiction of the country 
 in which they are found, and no one motive for requiring it. The 
 implied license, therefore, under which they enter, can never be 
 construed to grant such exemption. 
 
 "But in all respects different is the situation of a public armed 
 ship. She constitutes a part of the military force of her nation; 
 acts under the immediate and direct command of the sovereign; 
 is employed by him in national objects. He has many and power- 
 ful motives for preventing those objects from being defeated by 
 the interference of a foreign state. Such interference cannot take 
 place without affecting his power and his dignity. The implied 
 license, therefore, under which such vessel enters a friendly port, 
 may reasonably be construed, and it seems to the court, ought to be 
 construed, as containing an exemption from the jurisdiction of the 
 sovereign, within whose territory she claims the rights of hospitality. 
 
 "Upon these principles, by the unanimous consent of nations, a 
 foreigner is amenable to the laws of the place; but certainly in 
 practice, nations have not yet asserted their jurisdiction over the 
 public armed ships of a foreign sovereign entering a port open for 
 their reception. 
 
 "Bynkershoek, a jurist of great reputation, has indeed main- 
 tained that the property of a foreign sovereign is not distinguish- 
 able by any legal exemption from the property of an ordinary 
 individual, and has quoted several cases in which courts have
 
 240 ARMED FORCES AND WARSHIPS 
 
 exercised jurisdiction over causes in which a foreign sovereign was 
 made a party defendant. 
 
 "Without indicating any opinion on this question, it may safely 
 be affirmed, that there is a manifest distinction between the private 
 property of the person who happens to be a prince, and that mili- 
 tary force which supports the sovereign power, and maintains the 
 dignity and the independence of a nation. A prince, by acquiring 
 private property in a foreign country, may possibly be considered 
 as subjecting that property to the territorial jurisdiction; he may 
 be considered as so far laying down the prince, and assuming the 
 character of a private individual; but this he cannot be presumed 
 to do with respect to any portion of that armed force, which up- 
 holds his crown, and the nation he is intrusted to govern. 
 
 "The only applicable case cited by Bynkershoek, is that of the 
 Spanish ships of war, seized in Flushing for a debt due from the 
 King of Spain. In that case the States-General interposed; and 
 there is reason to believe, from the manner in which the trans- 
 action is stated, that, either by the interference of government, or 
 the decision of the court, the vessels were released. 
 
 "This case of the Spanish vessels is, it is believed, the only case 
 furnished by the history of the world, of an attempt made by an 
 individual to assert a claim against a foreign prince, by seizing the 
 armed vessels of the nation. That this proceeding was at once 
 arrested by the government, in a nation which appears to have 
 asserted the power of proceeding in the same manner against the 
 private property of the prince, would seem to furnish no feeble 
 argument in support of the universality of the opinion hi favor of 
 the exemption claimed for ships of war. The distinction made in 
 our own laws between public and private ships would appear to 
 proceed from the same opinion. 
 
 "It seems then to the court, to be a principle of public law, that 
 national ships of war, entering the port of a friendly power open 
 for their reception, are to be considered as exempted by the con- 
 sent of that power from its jurisdiction. 
 
 "Without doubt, the sovereign of the place is capable of de- 
 stroying this implication. He may claim and exercise jurisdic- 
 tion either by employing force, or by subjecting such vessels to 
 the ordinary tribunals. But until such power be exerted in a
 
 THE SCHOONER EXCHANGE 241 
 
 manner not to be misunderstood, the sovereign cannot be consid- 
 ered as having imparted to the ordinary tribunals a jurisdiction, 
 which it would be a breach of faith to exercise. Those general 
 statutory provisions, therefore, which are descriptive of the ordi- 
 nary jurisdiction of the judicial tribunals, which give an individual 
 whose property has been wrested from him, a right to claim that 
 property in the courts of the country in which it is found, ought 
 not, in the opinion of this court, to be so construed as to give 
 them jurisdiction in a case in which the sovereign power has 
 impliedly consented to waive its jurisdiction. 
 
 " The arguments in favor of this opinion which have been drawn 
 from the general inability of the judicial power to enforce its 
 decisions in cases of this description, from the consideration that 
 the sovereign power of the nation is alone competent to avenge 
 wrongs committed by a sovereign, that the questions to which 
 such wrongs give birth are rather questions of policy than of law, 
 that they are for diplomatic, rather than legal discussion, are of 
 great weight, and merit serious attention. But the argument has 
 already been drawn to a length, which forbids a particular exami- 
 nation of these points. 
 
 "The principles which have been stated, will now be applied 
 to the case at bar. 
 
 "In the present state of the evidence and proceedings, the Ex- 
 change must be considered as a vessel, which was the property of 
 the libelants, whose claim is repelled by the fact that she is now 
 a national armed vessel, commissioned by, and in the service of 
 the Emperor of France. The evidence of this fact is not contro- 
 verted. But it is contended that it constitutes no bar to an inquiry 
 into the validity of the title, by which the Emperor holds this ves- 
 sel. Every person, it is alleged, who is entitled to property brought 
 within the jurisdiction of our courts, has a right to assert his title 
 in those courts, unless there be some law taking his case out of the 
 general rule. It is therefore said to be the right, and if it be the 
 right, it is the duty of the court, to inquire whethef this title has 
 been extinguished by an act, the validity of which is recognized 
 by national or municipal law. 
 
 "If the preceding reasoning be correct, the Exchange, being a 
 public armed ship, in the service of a foreign sovereign, with whom
 
 242 ASYLUM 
 
 the Government of the United States is at peace, and having 
 entered an American port open for her reception, on the terms on 
 which ships of war are generally permitted to enter the ports of a 
 friendly power, must be considered as having come into the Ameri- 
 can territory, under an implied promise, that while necessarily 
 within it, and demeaning herself in a friendly manner, she should 
 be exempt from the jurisdiction of the country. 
 
 "If this opinion be correct, there seems to be a necessity for 
 admitting that the fact might be disclosed to the court by the 
 suggestion of the attorney for the United States. 
 
 "I am directed to deliver it, as the opinion of the court, that 
 the sentence of the Circuit Court reversing the sentence of the 
 District Court, in the case of the Exchange be reversed, and that 
 of the District Court, dismissing the libel, be affirmed." 
 
 (The Schooner Exchange v. M'Faddon and others, 7 Cranch, 116; 
 2 Curtis, 487.) 
 
 27. ASYLUM 
 
 THE SPANISH WARSHIPS AT NEW ORLEANS (1862) 
 
 IN 1862, while the city of New Orleans was occupied by the 
 forces of the United States, three Spanish men-of-war then in that 
 port received on board a large number of passengers for Cuba, 
 among whom were many citizens of the United States who, under 
 the orders then in force, were not permitted to leave the city 
 without passes. General Butler, the officer in command, claimed 
 the right to search the vessels "for criminals other than rebels," 
 and after much difficulty he obtained the privilege of searching 
 two of the ships. In consequence of this occurrence, he pro- 
 hibited the entry of Spanish men-of-war above the forts till 
 further orders from the War Department. Mr. Seward, while 
 recommending to the Secretary of War the suspension of the pro- 
 hibition pending explanations from the Spanish Government, 
 made urgent representations to the Spanish Minister. The 
 Spanish Government, after considering the subject, defended the 
 action of its naval officers on the ground that asylum at least for
 
 THE OVERTHROW OF BALMACEDA 243 
 
 political offenders might be granted on men-of-war. Mr. Seward 
 refused to concede this claim, saying that the United States 
 adhered to its former declaration that no ship of war of any nation 
 would be expected to carry into or out from any port of the United 
 States, which was either occupied by their forces or in the posses- 
 sion of the insurgents, any person who did not actually belong to 
 the civil, military, or naval service of the country whose flag the 
 vessel carried, and especially that ships of war should not, with- 
 out express leave of the military authorities, carry into or out of 
 such ports any citizen of the United States. It was only, said Mr. 
 Seward, on an expected compliance with these terms that any 
 foreign ship of war could enter a port in a military occupation 
 during the Civil War. 
 
 (Extract from an article by J. B. Moore: Asylum in Legations 
 and Consulates and in Vessels, in Political Science Quarterly [1892], 
 vol. vn, pp. 410-11, citing Dip. Cor. [1863], part n, p. 915.) 
 
 THE OVERTHROW OF BALMACEDA (1891) 
 
 DURING the summer of 1891, while the civil war growing out of 
 the dispute between President Balmaceda and the Chilean Con- 
 gress was raging, Mr. Egan, Minister of the United States at 
 Santiago, afforded asylum to Senors Augustin Edwards and Edu- 
 ardo Matte, prominent Congressionalists, on the ground, as he 
 stated, that there was reason to apprehend that their lives were in 
 danger. Subsequently Senor Edwards was given a safe-conduct 
 and went to Callao, leaving Senor Matte in the legation. A few 
 days later an unofficial intimation was conveyed to Mr. Egan 
 through the dean of the diplomatic corps that the President was 
 much annoyed at the granting of asylum to Congressionalists, 
 and that if they did not leave immediately the legations might be 
 searched, that of the United States being particularly mentioned. 
 On hearing of this threat, Mr. Egan called at the Ministry of 
 Foreign Relations and stated that, while he was prepared to dis- 
 cuss the question of asylum in a friendly spirit, his legation could 
 not be searched but by force, and that he would himself shoot the 
 first man who attempted to enter it for that purpose. On the 
 following day he received from the President an assurance that
 
 244 ASYLUM 
 
 there was no intention to search any of the legations, "and above 
 all that of the United States." (House Ex. Doc. 91, 52d Cong, 
 ist Sess., p. 64.) 
 
 On the 2ist of August the army of Balmaceda was routed at 
 Vina del Mar; and the excitement and confusion which that event 
 occasioned in Santiago culminated after the dispersion of his 
 forces at Placillas on the 28th. His resignation on the 2Qth was 
 followed by the demoralization of the military and police forces, 
 and the houses of some of his prominent partisans were attacked. 
 Toward evening, however, order was restored and all danger of 
 further trouble seemed to vanish. Meanwhile many persons had 
 sought refuge in the houses of the foreign ministers. The American 
 Legation received eighty and the Spanish Legation about the same 
 number. The Brazilian Legation received eight; the French, 
 five; the Uruguayan, several; the German, two; the English, one, 
 perhaps involuntarily. 1 Balmaceda took refuge in the Argentine 
 Legation. On the subsidence of the first excitement, many of the 
 refugees left the legations, some seeking concealment elsewhere and 
 others giving bond to appear before the tribunals. Such was the 
 course pursued by the refugees in the Brazilian and French Lega- 
 tions. The refugee in the English Legation went out immediately 
 to his own house, promising to remain there. Balmaceda com- 
 mitted suicide in the Argentine Legation on the igth of Septem- 
 ber. One refugee, General Velasquez, ex-Minister of War, re- 
 mained in the German Legation, but, encouraged by the German 
 Minister, he proposed to give himself up as soon as he had suf- 
 ficiently recovered from the effects of an accident from which he 
 was suffering. In no instance was safe-conduct granted. 
 
 No trouble occurred till the 22d of September, when the govern- 
 ment, alleging that the refugees and their friends were abusing 
 the privilege of asylum, began to police the American and the 
 Spanish Legations. At that time there were nineteen refugees in 
 
 1 In a dispatch of August 31, Mr. Egan says that "the only legation which dosed 
 its doors and denied asylum was that of England, which refused to admit a single per- 
 son." In a telegram of September 27 he states that two persons entered the British 
 Legation. In a dispatch of September 29, he states that "one or two" got in "across 
 the roof" of a neighboring house that was being searched. Subsequently he states 
 that there was one. But the original statement is doubtless correct, in so far as it rep- 
 resents the policy of the British Legation. (Note by J. B. Moore.)
 
 THE OVERTHROW OF BALMACEDA 245 
 
 the former and five in the latter; and on the first three days of 
 the surveillance many persons were interfered with in entering or 
 in leaving the buildings. Mr. Egan protested against the course 
 of the government, contending that its action was without pre- 
 cedent and violative of the rights of the legation, while Sefior 
 Matta, the Minister for Foreign Affairs, replied in a manner not 
 calculated to allay irritation. In view of what has been shown to 
 have been the practice in cases of asylum, to say nothing of the 
 opinions of publicists on the subject, the policing of a minister's 
 domicile, when it is used as a shelter for refugees, does not present 
 a ground for complaint. On the other hand, any excesses that may 
 be committed in the enforcement of such a measure may form a 
 subject for representation with a view to their correction. Mr. 
 Egan not only protested against particular acts which he regarded 
 as unwarrantable, but also against the surveillance itself. Senor 
 Matta declined to consider the protests even against particular 
 acts as a subject for discussion. Nevertheless, after September 25 
 the strictness of the surveillance was relaxed, though for several 
 days in the latter part of December it was again closely enforced, 
 especially about the Spanish Legation. 
 
 On September 29 the number of refugees in the American Lega- 
 tion had been reduced to fifteen, one of whom not long afterward 
 went out on bond. On January 9, 1892, Mr. Egan escorted two 
 refugees to Valparaiso and put them on board the United States 
 man-of-war Yorktown. On the 1 3th he and the Spanish and Italian 
 Ministers disposed of seven refugees in the same manner five 
 from the American and two from the Spanish Legation. These 
 were all that remained. What had become of the rest does not 
 appear, though the correspondent of the Herald, in a dispatch from 
 Valparaiso of January 13, stated that one of the nine who were 
 apparently in the American Legation at the opening of the year 
 had determined to stay in Chile "and fight his case out in the 
 courts." The refugees were transported on the Yorktown to 
 Callao, Sefior Pereira, who had succeeded Senor Matta in the 
 Foreign Office, refusing to guarantee their security on private 
 vessels calling at Chilean ports; and he expressed displeasure at 
 the minister's accompanying them, apparently being averse to 
 the display of any sign of diplomatic authority in the matter.
 
 246 MERCHANT VESSELS 
 
 With the departure of the refugees, the police were removed from 
 about the diplomatic residences. 
 
 In discussing the question of safe-conducts, Mr. Egan and 
 Senor Matta set forth their views as to the legal foundations and 
 limitations of asylum. They both accepted the extraterritoriality 
 of a minister's domicile, but while Senor Matta deduced from that 
 notion merely the right to grant asylum, Mr. Egan pushed it 
 further. Senor Matta argued that safe-conducts might have been 
 and might be given, not in virtue of any right on the part of a 
 legation to demand them, but "of the courtesy, convenience, and 
 will" of the government, and with due consideration for its own 
 laws and interests; and he maintained that safe-conducts could 
 not be granted for men who, as was the case with the refugees in 
 question, had been submitted to the tribunals. Mr. Egan re- 
 plied that his house was "an integral part of the United States," 
 and that "without the will and permission" of that government, 
 Chile "could not consider" as subject to her "judicial action" 
 persons "who, from every point of view," were "beyond its juris- 
 diction;" and he added that as Senor Matta had recognized that 
 safe-conducts had been and might be given "as acts of courtesy 
 and at the spontaneous will of the government," he could not 
 be surprised if the United States should "interpret as an act of 
 but slight courtsey and consideration" the refusal of the Chilean 
 Government now to grant them "in accordance with the respect 
 due to the invariable practice and international policy of Chile." 
 
 (Extract from an article by J. B. Moore: Asylum in Legations 
 and Consulates and in Vessels, in Political Science Quarterly [1892], 
 vol. vn, pp. 226-29.) 
 
 28. MERCHANT VESSELS 
 
 THE CASES OF THE SALLY AND THE NEWTON (1806) 
 
 Opinion of the Council of State in regard to the question of competence in the matter of 
 ojfenses committed on board neutral vessels in ports and roads of France, November 
 20, 1806. 
 
 THE Council of State, having had the matters referred to them 
 by His Majesty and having heard thereon the report of the
 
 THE CASES OF THE SALLY AND THE NEWTON 247 
 
 division on legislation made by the Grand Judge, the Minister of 
 Justice, with respect to denning the limits of jurisdiction claimed 
 by consuls of the United States of America in the ports of 
 Marseilles and Antwerp in connection with : offenses 'Commit- 
 ted on board vessels of their nation in the ports and roads of 
 France; 
 
 Considering that a neutral vessel cannot be regarded vaguely 
 as a neutral place, and that the protection which it is accorded hi 
 French ports cannot render local jurisdiction incompetent for 
 anything touching the interests of the state; 
 
 And that a neutral vessel admitted into a port of the state is 
 clearly subject to the police laws governing the place where it is 
 received; 
 
 That the members of its crew are equally amenable to the courts 
 of the country for offenses which they may commit, even on 
 board, upon persons outside the crew, as well as for agree- 
 ments covered by common law into which they may enter with 
 such persons; 
 
 That, on the other hand, if up to this point local jurisdiction is 
 unquestionable, it is otherwise with respect to offenses committed 
 on board a neutral vessel by a member of a neutral crew upon 
 . another member of the same crew; 
 
 That, in this case, the rights of the neutral power should be 
 respected as relating to the internal discipline of the vessel, with 
 which local authority may not interfere when its aid is not sought 
 or when the tranquillity of the port is not endangered; 
 
 Is of the opinion that this distinction, which is indicated in the 
 report of the high judge and is in conformity with usage, is the 
 only rule which it is proper to follow in this matter; 
 
 And applying this principle to the two particular cases in which 
 consuls of the United States have claimed jurisdiction; 
 
 Considering that, in one of these cases, it is a question of ra 
 quarrel which took place in the cutter of the American ship 
 Newton between two sailors of the same ship; and in the pother, 
 of a severe wound given by the first mate of the ship Sally 
 to one of the sailors for having made ready a cutter without 
 his order; 
 
 Is of the opinion that there is room for entertaining the claim
 
 248 MERCHANT VESSELS 
 
 and forbidding the French courts from taking cognizance of the 
 two cases abovenamed. 
 
 (Translation : Collection Complete des Lois, Decrets, Ordonnances, 
 Riglemens et Avis du Conseil-d'Etat . . . de 1788 d 1824 inclusive- 
 ment [Paris, 1826], vol. xvi, p. 65.) 
 
 THE CASE OF THE CREOLE (1853) 
 
 IN the course of the thirties in a number of instances (the Comet, 
 Encomium, Enterprise, and Hermosd), when American vessels 
 transporting slaves from one American port to another were 
 driven by stress of weather or other accident to take refuge in 
 British ports, the local authorities had liberated their human cargo 
 in spite of the vigorous protests of the American Consuls. Be- 
 cause of this action the United States made vigorous protests to 
 the British Government without receiving the redress it claimed. 
 
 In 1840 the Senate adopted a resolution declaring that, where a 
 vessel on the high seas, in time of peace, engaged in a lawful 
 voyage, was forced by stress of weather or other unavoidable 
 circumstance into the port of a friendly power, the country to 
 which she belonged lost "none of the rights appertaining to her 
 on the high seas, either over the vessel or the personal relations 
 of those on board." 
 
 The excitement created by these incidents culminated in the 
 case of the brig Creole, which sailed from Hampton Roads for 
 New Orleans on the 27th of October, 1841, having on board one 
 hundred and thirty-five slaves. On the night of the yth of No- 
 vember a portion of the slaves revolted, wounded the master, 
 chief mate, and two of the crew, and murdered one of the passen- 
 gers, and having secured possession of the vessel, ordered the mate, 
 under pain of death, to steer for Nassau, where the brig arrived 
 on the Qth of November. The slaves were afterwards liberated, 
 under circumstances disclosed below in the opinion of Mr. Bates, 
 umpire of the mixed commission under the treaty between the 
 United States and Great Britain of 1853, to which commission the 
 cases of the Enterprise, Hermosa, and Creole were ultimately sub- 
 mitted, on claims for damages.
 
 THE CASE OF THE CREOLE 249 
 
 In the cases of the Comet and Encomium, which respectively 
 occurred in 1831 and February, 1833, Great Britain in the latter 
 part of President Van Buren's Administration paid an indemnity 
 of $116,179.62. But in the cases of the Enterprise, Hermosa, and 
 Creole, which occurred after August i, 1834, when the act of Par- 
 liament of August 28, 1833, for the abolition of slavery in the 
 British colonies took effect, the British Government refused to 
 acknowledge any liability on the ground that the slaves on enter- 
 ing British jurisdiction became free. The United States, on the 
 other hand, maintained that if a vessel were driven by necessity 
 to enter the port of another nation the local law could not operate 
 so as to affect existing rights of property as .between persons on 
 board, or their personal obligations or relations under the law of 
 the country to which the vessel belonged. In the case of the Creole 
 this argument was emphasized by the fact that the vessel was 
 brought into British jurisdiction by means of a crime against the 
 law of the flag. The case gave rise to animated discussions in the 
 British Parliament as well as in the Congress of the United States, 
 and came near breaking up the negotiations between Mr. Webster 
 and Lord Ashburton in 1842. 
 
 Bates, umpire in the case of the Creole under the convention 
 between the United States and Great Britain of February 8, 
 1853, rendered the following opinion: 
 
 "This case having been submitted to the umpire for his de- 
 cision, he hereby reports that the claim has grown out of the fol- 
 lowing circumstances: 
 
 "The American brig Creole, Captain Ensor, sailed from Hamp- 
 ton Roads, in the State of Virginia, on the 2yth October, 1841, 
 having on board one hundred and thirty-five slaves, bound for 
 New Orleans. On the 7th November, at nine o'clock in the even- 
 ing, a portion of the slaves rose against the officers, crew, and pas- 
 sengers, wounding severely the captain, the chief mate, and two of 
 the crew, and murdering one of the passengers; the mutineers, 
 having got complete possession of the vessel, ordered the mate, 
 under threat of instant death should he disobey or deceive them, 
 to steer for Nassau, in the bland of New Providence, where the 
 brig arrived on the gth November, 1841. 
 
 "The American Consul was apprised of the situation of the
 
 250 MERCHANT VESSELS 
 
 vessel, and requested the governor to take measures to prevent 
 the escape of the slaves, and to have the murderers secured. 
 The consul received reply from the governor, stating that under 
 the circumstances he would comply with the request. 
 
 "The consul went on board the brig, placed the mate hi com- 
 mand in place of the disabled master, and found the slaves all 
 quiet. 
 
 "About noon twenty African soldiers, with an African sergeant 
 and corporal, commanded by a white officer, came on board. The 
 officer was introduced by the consul to the mate as commanding 
 officer of the vessel. 
 
 "The consul, on returning to the shore, was summoned to 
 attend the governor and council, who were in session, who. in- 
 formed the consul that they had come to the following decision: 
 
 "' i st. That the courts of law have no jurisdiction over the 
 alleged offenses. 
 
 " ' 2d. That, as an information had been lodged before the 
 governor, charging that the crime of murder had been com- 
 mitted on board said vessel while on the high seas, it was ex- 
 pedient that the parties, implicated in so grave a charge, 
 should not be allowed to go at large, and that an investiga- 
 tion ought therefore to be made into the charges, and exami- 
 nations taken on oath; when, if it should appear that the 
 original information was correct, and that a murder had 
 actually been committed, that all parties implicated in such 
 crime, or other acts of violence, should be detained here until 
 reference could be made to the Secretary of State to ascer- 
 tain whether the parties should be delivered over to the United 
 States Government; if not, how otherwise to dispose of them. 
 
 "*3d. That as soon as such examinations should be taken, 
 all persons on board the Creole, not implicated in any of the 
 offences alleged to have been committed on board the vessel, 
 must be released from further restraint/ 
 
 "Then two magistrates were sent on board. The American 
 Consul went also. The examination was commenced on Tuesday, 
 the gth, and was continued on Wednesday, the loth, and then post- 
 poned until Friday, on account of the illness of Captain Ensor.
 
 THE CASE OF THE CREOLE 251 
 
 On Friday morning it was abruptly, and without any explanation, 
 terminated. 
 
 "On the same day, a large number of boats assembled near the 
 Creole, filled with colored persons armed with bludgeons. They 
 were under the immediate command of the pilot, who took the 
 vessel into the port, who was an officer of the government, and a 
 colored man. A sloop or larger launch was also towed from the 
 shore and anchored near the brig. The sloop was filled with men 
 armed with clubs, and clubs were passed from her to the persons 
 in the boats. A vast concourse of people were collected on shore 
 opposite the brig. 
 
 "During the whole time the officers of the government were on 
 board they encouraged the insubordination of the slaves. 
 
 "The Americans in port determined to unite and furnish the 
 necessary aid to forward the vessel and negroes to New Orleans. 
 The consul and the officers and crews of two other American ves- 
 sels had, in fact, united with the officers, men, and passengers of 
 the Creole to effect this. They were to conduct her first to Indian 
 Quay, Florida, where there was a vessel of war of the United 
 States. 
 
 "On Friday morning, the consul was informed that attempts 
 would be made to liberate the slaves by force, and from the mate 
 he received information of the threatening state of things. The 
 result was, that the attorney-general and other officers went on 
 board the Creole. The slaves, identified as on board the vessel 
 concerned in the mutiny, were sent on shore, and the residue of 
 the slaves were called on deck by direction of the attorney-general, 
 who addressed them in the following terms: 'My friends,' or, 'my 
 men, you have been detained a short time on board the Creole for 
 the purpose of ascertaining what individuals were concerned in 
 the murder. They have been identified, and will be detained. 
 The rest of you are free, and at liberty to go on shore, and where- 
 ever you please.' 
 
 "The liberated slaves, assisted by the magistrates, were then 
 taken on board the boats, and when landed were conducted by a 
 vast assemblage to the superintendent of police, by whom their 
 names were registered. They were thus forcibly taken from the 
 custody of the master of the Creole, and lost to the claimants.
 
 252 MERCHANT VESSELS 
 
 "I need not refer to authorities to show that slavery, however 
 odious and contrary to the principles of justice and humanity, 
 may be established by law in any country; and, having been so 
 established in many countries, it cannot be contrary to the law 
 of nations. 
 
 "The Creole was on a voyage, sanctioned and protected by the 
 laws of the United States, and by the law of nations. Her right 
 to navigate the ocean could not be questioned, and as growing out 
 of that right, the right to seek shelter or enter the ports of a 
 friendly power in case of distress or any unavoidable necessity. 
 
 "A vessel navigating the ocean carries with her the laws of her 
 own country, so far as relates to the persons and property on board, 
 and to a certain extent, retains those rights even in the ports of 
 the foreign nations she may visit. Now, this being the state of the 
 law of nations, what were the duties of the authorities at Nassau 
 in regard to the Creole ? It is submitted the mutineers could not 
 be tried by the courts of that island, the crime having been com- 
 mitted on the high seas. All that the authorities could lawfully do, 
 was to comply with the request of the American Consul, and keep 
 the mutineers in custody until a conveyance could be found for 
 sending them to the United States. 
 
 "The other slaves, being perfectly quiet, and under the com- 
 mand of the captain and owners, and on board an American ship, 
 the authorities should have seen that they were protected by the 
 law of nations; their rights under which cannot be abrogated or 
 varied, either by the emancipation act or any other act of the 
 British Parliament. 
 
 "Blackstone, 4th volume, speaking of the law of nations, states: 
 'Whenever any question arises, which is properly the object of its 
 jurisdiction, such law is here adopted in its full extent by the 
 common law.' 
 
 "The municipal law of England cannot authorize a magistrate 
 to violate the law of nations by invading with an armed force the 
 vessel of a friendly nation that has committed no offense, and 
 forcibly dissolving the relations which by the laws of his country 
 the captain is bound to preserve and enforce on board. 
 
 "These rights, sanctioned by the law of nations viz. : the right 
 to navigate the ocean, and to seek shelter in case of distress or
 
 THE WILDENHUS CASE 253 
 
 other unavoidable circumstances, and to retain over the ship, her 
 cargo, and passengers, the laws of her own country must be 
 respected by all nations; for no independent nation would submit 
 to then: violation. 
 
 "Having read all the authorities referred to in the arguments on 
 both sides, I have come to the conclusion that the conduct of the 
 authorities at Nassau was hi violation of the established law of na- 
 tions, and that the claimants are justly entitled to compensation 
 for their losses. I therefore award to the undermentioned parties, 
 their assigns, or legal representatives, the sums set opposite their 
 names, due on the i5th of January, 1855." The total amount 
 awarded was $110,330. 
 
 (Extracted and condensed from Moore: Digest of International 
 Law, vol. n, pp. 350-61.) 
 
 THE WILDENHUS CASE 
 
 The Supreme Court of the United States, 1886 
 
 THIS was an appeal by the Belgian Consul for the States of 
 New York and New Jersey hi the United States for himself as 
 consul in behalf of Wildenhus and two others for their release 
 upon a writ of habeas corpus from the custody of the keeper of the 
 jail. The facts as stated in the application recount that on or 
 about October 6, 1886, Wildenhus, on board the Belgian steam- 
 ship Nordland, stabbed one Figens and inflicted a wound from 
 which he afterwards died. Wildenhus and Figens were both 
 members of the crew and subjects of Belgium, where they had 
 their domicile. - The Nordland was lying moored at the dock of 
 the port of Jersey City at the time and the whole affray took place 
 below decks, so that the tranquillity of the port was in no wise 
 disturbed or injured thereby. All the witnesses of the affray were 
 without exception members of the crew. The application further 
 cited certain articles from the Belgian decree of March, 1857, re- 
 lating to consuls, authorizing and denning the jurisdiction which 
 they might exercise on Belgian merchant vessels in the ports and 
 harbors of their consular districts. 
 
 Article n of a convention between the United States and Bel-
 
 254 MERCHANT VESSELS 
 
 gium "concerning the rights, privileges, and immunities of con- 
 sular officers," concluded March 9, 1880, and proclaimed by the 
 President of the United States, March i, 1881 (21 St. 123), is as 
 follows: "The respective consuls general, consuls, vice-consuls, 
 and consular agents shall have exclusive charge of the internal 
 order of the merchant vessels of their nation, and shall alone take 
 cognizance of all differences which may arise, either at sea or in 
 port, between the captains, officers, and crews, without excep- 
 tion, particularly with reference to the adjustment of wages and 
 the execution of contracts. The local authorities shall not inter- 
 fere, except when the disorder that has arisen is of such a nature as 
 to disturb tranquillity and public order on shore or in the port, 
 or when a person of the country, or not belonging to the crew, 
 shall be concerned therein. In all other cases, the aforesaid au- 
 thorities shall confine themselves to lending aid to the consuls 
 and vice-consuls or consular agents, if they are requested by them 
 to do so, in causing the arrest and imprisonment of any person 
 whose name is inscribed on the crew list, whenever, for any cause, 
 the said officers shall think proper." 
 
 The claim of the consul was that, by the law of nations and the 
 provisions of this treaty, the offense with which Wildenhus had 
 been charged was "solely cognizable by the authority of the laws 
 of the Kingdom of Belgium," and that the State of New Jersey 
 was without jurisdiction in the premises. The Circuit Court refused 
 to deliver the prisoners to the consul, and remanded them to the cus- 
 tody of the jailer. To reverse that decision this appeal was taken. 
 
 Chief Justice Waite, after stating the facts substantially as 
 recited above, continued, delivering the opinion of the court: 
 
 "By sections 751 and 753 of the Revised Statutes the courts of 
 the United States have power to issue writs of habeas corpus which 
 shall extend to prisoners in jail when they are in 'custody in viola- 
 tion of the Constitution or a law or treaty of the United States,' 
 and the question we have to consider is whether these prisoners 
 are held in violation of the provisions of the existing treaty be- 
 tween the United States and Belgium. 
 
 "It is part of the law of civilized nations that, when a merchant 
 vessel of one country enters the ports of another for the purposes 
 of trade, it subjects itself to the law of the place to which it goes,
 
 THE WILDENHUS CASE 255 
 
 unless, by treaty or otherwise, the two countries have come to 
 some different understanding or agreement. . . . 
 
 "From experience, however, it was found long ago that it would 
 be beneficial to commerce if the local government would abstain 
 from interfering with the internal discipline of the ship, and the 
 general regulation of the rights and duties of the officers and crew 
 towards the vessel, or among themselves. And so by comity it 
 came to be generally understood among civilized nations, that all 
 matters of discipline and all things done on board which affected 
 only the vessel or those belonging to her and did not involve the 
 peace or dignity of the country, or the tranquillity of the port, 
 should be left by the local government to be dealt with by the 
 authorities of the nation to which the vessel belonged as the laws 
 of that nation, or the interests of its commerce, should require. 
 But if crimes are committed on board of a character to disturb 
 the peace and tranquillity of the country to which the vessel has 
 been brought, the offenders have never, by comity or usage, been 
 entitled to any exemption from the operation of the local laws for 
 their punishment, if the local tribunals see fit to assert their au- 
 thority. Such being the general public law on this subject, trea- 
 ties and conventions have been entered into by nations having 
 commercial intercourse, the purpose of which was to settle and 
 define the rights and duties of the contracting parties with respect 
 to each other in these particulars, and thus prevent the incon- 
 venience that might arise from attempts to exercise conflicting 
 jurisdictions." 
 
 The opinion, after a brief historical review of the various pro- 
 visions of the earlier treaties, continues: 
 
 "The form of the provision found in the present convention with 
 Belgium first appeared in a convention with Austria concluded 
 in 1870, art. n (17 St. 827), and it is found now in substantially 
 the same language in all the treaties and conventions which have 
 since been entered into by the United States on the same subject. 
 See the conventions with the German Empire in 1871, art. 13 
 (17 St. 927); with the Netherlands in 1878, art. n (21 St. 668); 
 with Italy in 1881, art. i (22 St. 832); with Belgium in 1881, as 
 stated above; and with Roumania, the same year, art. u (23 St. 
 7H).
 
 256 MERCHANT VESSELS 
 
 " It thus appears that at first provision was made only for giving 
 consuls police authority over the interior of the ship, and juris- 
 diction in civil matters arising out of disputes or differences on 
 board, that is to say, between those belonging to the vessel. Under 
 this police authority the duties of the consuls were evidently con- 
 fined to the maintenance of order and discipline on board. This 
 gave them no power to punish for crimes against the peace of the 
 country. In fact, they were expressly prohibited from interfer- 
 ing with the local police in matters of that kind. The cases of the 
 Sally and the Newton are illustrative of this position. That of the 
 Sally related to the discipline of the ship, and that of the Newton 
 to the maintenance of order on board. In neither case was the 
 disturbance of a character to affect the peace or the dignity of 
 the country. 
 
 "In the next conventions consuls were simply made judges and 
 arbitrators to settle and adjust differences between those on board. 
 This clearly related to such differences between those belonging to 
 the vessel as are capable of adjustment and settlement by judicial 
 decision or by arbitration, for it simply made the consuls judges or 
 arbitrators in such matters. That would of itself exclude all idea 
 of punishment for crimes against the state which affected the peace 
 and tranquillity of the port; but, to prevent all doubt on this 
 subject, it was expressly provided that it should not apply to 
 differences of that character. 
 
 "Next came a form of convention which in terms gave the con- 
 suls authority to cause proper order to be maintained on board, 
 and to decide disputes between the officers and crew, but allowed 
 the local authorities to interfere if the disorders taking place on 
 board were of such a nature as to disturb the public tranquillity, 
 and that is substantially all there is in the convention with 
 Belgium which we have now to consider. This treaty is the law 
 which now governs the conduct of the United States and Belgium 
 towards each other in this particular. Each nation has granted to 
 the other such local jurisdiction within its own dominion as may 
 be necessary to maintain order on board a merchant vessel, but 
 has reserved to itself the right to interfere if the disorder on board 
 is of a nature to disturb the public tranquillity. 
 
 "The treaty is part of the supreme law of the United States,
 
 THE WTLDENHUS CASE 257 
 
 and has the same force and effect in New Jersey that it is entitled to 
 elsewhere. If it gives the consul of Belgium exclusive jurisdiction 
 over the offense which it is alleged has been committed within the 
 territory of New Jersey, we see no reason why he may not enforce 
 his rights under the treaty by writ of habeas corpus hi any proper 
 court of the United States. This being the case, the only im- 
 portant question left for our determination is whether the thing 
 which has been done the disorder that has arisen on board 
 this vessel is of a nature to disturb the public peace, or, as some 
 writers term it, the 'public repose,' of the people who look to the 
 State of New Jersey for their protection. If the thing done 
 'the disorder,' as it is called in the treaty is of a character to 
 affect those on shore or in the port when it becomes known, the 
 fact that only those on the ship saw it when it was done is a mat- 
 ter of no moment. Those who are not on the vessel pay no special 
 attention to the mere disputes or quarrels of the seamen while on 
 board, whether they occur under deck or above. Neither do they 
 as a rule care for anything done on board which relates only to 
 the discipline of the ship, or to the preservation of order and au- 
 thority. Not so, however, with crimes which from their gravity 
 awaken a public interest as soon as they become known, and 
 especially those of a character which every civilized nation con- 
 siders itself bound to provide a severe punishment for when com- 
 mitted within its own jurisdiction. In such cases inquiry is cer- 
 tain to be instituted at once to ascertain how or why the thing was 
 done, and the popular excitement rises or falls as the news spreads, 
 and the facts become known. It is not alone the publicity of the 
 act, or the noise and clamor which attends it, that fixes the nature 
 of the crime, but the act itself. If that is of a character to awaken 
 public interest when it becomes known, it is a ' disorder,' the nature 
 of which is to affect the community at large, and consequently to 
 invoke the power of the local government whose people have been 
 disturbed by what was done. The very nature of such an act is to 
 disturb the quiet of a peaceful community, and to create, in the 
 language of the treaty, a 'disorder' which will 'disturb tranquillity 
 and public order on shore or in the port.' The principle which 
 governs the whole matter is this: Disorders which disturb only 
 the peace of the ship or those on board are to be dealt with ex-
 
 258 MERCHANT VESSELS 
 
 clusively by the sovereignty of the home of the ship, but those 
 which disturb the public peace may be suppressed, and, if need be, 
 the offenders punished, by the proper authorities of the local 
 jurisdiction. It may not be easy at all times to determine to which 
 of the two jurisdictions a particular act of disorder belongs. Much 
 will undoubtedly depend on the attending circumstances of the 
 particular case, but all must concede that felonious homicide is a 
 subject for the local jurisdiction; and that, if the proper authori- 
 ties are proceeding with the case in a regular way, the consul has 
 no right to interfere to prevent it. That, according to the petition 
 for the habeas corpus, is this case. 
 
 "This is fully in accord with the practice in France, where the 
 government has been quite as liberal towards foreign nations in 
 this particular as any other, and where, as we have seen in the 
 cases of the Sally and the Newton, by a decree of the Council of 
 State, representing the political department of the government, 
 the French courts were prevented from exercising jurisdiction. 
 But afterwards, in 1859, in the case of Jally, the mate of an Ameri- 
 can merchantman, who had killed one of the crew and severely 
 wounded another on board the ship in the port of Havre, the 
 Court of Cassation, the highest judicial tribunal of France, upon 
 full consideration held, while the Convention of 1853 was ^ force, 
 that the French courts had rightful jurisdiction, for reasons which 
 sufficiently appear in the following extract from its judgment: 
 ' Considering that it is a principle of the law of nations that every 
 state has sovereign jurisdiction throughout its territory; consid- 
 ering that, by the terms of article 3 of the Code Napoleon, the 
 laws of police and safety bind all those who inhabit French terri- 
 tory, and that consequently foreigners, even transeuntes [in 
 transit], find themselves subject to those laws; considering that 
 merchant vessels entering the port of a nation other than that 
 to which they belong cannot be withdrawn from the territorial 
 jurisdiction, in any case in which the interest of the state of 
 which that port forms part finds itself concerned, without danger 
 to good order and to the dignity of the government; considering 
 that every state is interested in the repression of crimes and 
 offenses that may be committed in the ports of its territory, 
 not only by the men of the ship's company of a foreign merchant
 
 THE TORREY CASE 259 
 
 vessel towards men not forming part of that company, but even 
 by men of the ship's company among themselves, whenever the 
 act is of a nature to compromise the tranquillity of the port, or 
 the intervention of the local authority is invoked, or the act con- 
 stitutes a crime by common law [droit commun, the law common 
 to all civilized nations], the gravity of which does not permit any 
 nation to leave it unpunished, without impugning its rights of 
 jurisdictional and territorial sovereignty, because that crime is 
 in itself the most manifest as well as the most flagrant violation of 
 the laws which it is the duty of every nation to cause to be res- 
 pected hi all parts of its territory.' i Ortolan, Diplomatic de la 
 Mer (4th ed.), 4S5> 456; Sirey (N. S.) 1859, p. 189. 
 "The judgment of the Circuit Court is affirmed." 
 (Condensed and extracted from United States Reports, vol. 120, 
 p. i et seq.) 
 
 29. RIGHTS OF ALIENS 
 
 THE TORREY CASE 
 
 American-Venezuelan Mixed Claims Commission, 
 
 Dr. Jose de J. Paul, Venezuelan Commissioner (for the com- 
 mission) : 
 
 "Charles W. Torrey claims from the Government of Venezuela 
 the sum of $10,000 for damages caused by unjust arrest at the 
 port of La Guaira, on May 3, 1876, and for personal ill treatment 
 in connection therewith. 
 
 "The memorialist bases his pretension on the following 
 facts: 
 
 "Early in the year 1876 he went to Curacao for health and 
 pleasure. Shortly after his arrival there he concluded to go to 
 Venezuela to see the country and visit its capital, Caracas. After 
 remaining in Caracas for about a week, he concluded to return to 
 Curacao, by the English royal mail steamer Severn. On the 9th of 
 May, 1876, after having obtained a passport with all the neces- 
 sary vists by the authorized officers of the Venezuelan Government 
 in Caracas, he started for La Guaira, where he intended taking the
 
 260 RIGHTS OF ALIENS 
 
 steamer Severn back to Curasao. With him at the same time were 
 a Mr. Bartram and Dr. Elbert Nostrand, also citizens of the United 
 States. The steamer was lying out in the stream and the three 
 embarked on a boat belonging to said steamer to reach it. While 
 on the way to said steamer they were hailed from shore and or- 
 dered back and commanded to report to the civil officer in charge 
 at La Guaira. This officer ordered them all to be imprisoned in 
 the common jail. Torrey claims that he was lodged in a cell with 
 many low prisoners, his cell containing no other accommodation 
 or furniture than a common table and a set of wooden stocks. His 
 request to remain at the hotel under guard, although he was suf- 
 fering from an attack of inflammatory rheumatism, was arbitrarily 
 refused, and he was taken to jail, and kept in said prison for four 
 hours. He was released through the immediate exertions of the 
 United States Consul at La Guaira and the United States repre- 
 sentative at Caracas, and he took the steamer bound for Curasao 
 the same evening at 7 o'clock. 
 
 "Among the documents presented there is a copy of the com- 
 munication addressed on the i2th of June, 1885, by the honorable 
 Secretary of State, T. F. Bayard, to Mr. Torrey in reference to 
 his claim, which hi itself is sufficient to fix the appreciation that 
 this Commission must make about the fact of the unjust arrest 
 suffered by Mr. Torrey for a few hours in the port of La Guaira. 
 Said communication reproduces the opinion of Mr. Evarts, Sec- 
 retary of State, contained in a letter addressed by him to the said 
 claimant on April 5, 1877, after having examined the voluminous 
 diplomatic correspondence caused by this affair. This opinion 
 was as follows: 
 
 "'Though the Department would have preferred that the 
 apology for your arrest should have come directly from that 
 functionary [President Guzman Blanco], the fact that he 
 ordered his chief of police to make it may be regarded as 
 sufficient. Your complaint may, however, be taken into con- 
 sideration when diplomatic intercourse with Venezuela shall 
 be resumed, but you [Mr. Torrey] must not expect that this 
 Department will authorize a demand for vindictive damages.' 
 
 "Mr. Bayard, in the same communication, adds:
 
 THE TORRE Y CASE 261 
 
 "'Under the circumstances of the case as herein presented, 
 further diplomatic intervention in your behalf is thought to 
 be neither expedient or proper. The Department must, 
 therefore, regard the matter as practically closed, unless you 
 can show to it that the apology made was not a sufficient 
 atonement for the injury done to you, or that an error has 
 accrued to your prejudice in the Department's decision. 
 
 "'This decision need not, however, prejudice your ulti- 
 mate rights if you see fit to present and support a claim be- 
 fore any international tribunal which may hereafter be organ- 
 ized to take cognizance of cases arising since the award of the 
 late Caracas Commission/ 
 
 "As it appears from the above communications, and as it is 
 plainly shown by the voluminous correspondence between the 
 two Departments of Foreign Affairs of both governments, the in- 
 cident of the four hours' arrest of the American citizen, Charles 
 W. Torrey, in the port of La Guaira was the act of a local officer, 
 and was due to special circumstances of that epoch, in which act 
 there was no intention to hurt, by any means, the person of an 
 American citizen, and, on the contrary, the same gave occasion 
 for the President of the Republic, General Guzman Blanco, as 
 soon as he knew of said arrest to order by telegraph that the prison- 
 ers be put at liberty, thus: 
 
 "'Gen. J. J. Yepez: Those gentlemen should not have 
 taken passage to Curasao when their passports were for the 
 United States of America, but I have reason to confide in 
 them; thus, I expect you will put them at liberty, stating to 
 them that you are sorry for what has happened. The 
 steamer has my permission to leave as soon as those gentle- 
 men are on board. GUZMAN BLANCO.' 
 
 "In view of the foregoing, and regarding the compensation to 
 be given in this case as limited to reparation for the personal in- 
 convenience and discomfort suffered by the claimant during his 
 brief detention, an award will be made in the sum of $250 United 
 States gold." 
 
 (Venezuela Arbitrations of 1903, prepared by J. H. Ralston 
 [Washington, 1904], pp. 162-64.)
 
 262 RIGHTS OF ALIENS 
 
 THE CADENHEAD CASE 
 
 American and British Claims Arbitration Tribunal, 
 
 THE following decision was rendered in this case May i, 1914: 
 
 "His Britannic Majesty's Government present a memorial in 
 this case 'in support of the claim respecting the killing of Eliza- 
 beth Cadenhead,' a British subject, who left next of kin her sur- 
 viving as stated in annex i of the memorial, all of whom are 
 British subjects. The amount claimed as compensation for the 
 death of Miss Cadenhead is twenty-five thousand dollars ($25,000). 
 
 "The death of Miss Cadenhead occurred under the following 
 circumstances: 
 
 "July 22, 1907, Miss Cadenhead with her brother, George M. 
 Cadenhead, and Katharine Fordyce Cadenhead were at Sault 
 Ste. Marie, a city in the State of Michigan, United States of 
 America; it was about 3.30 P.M. and they were returning to the 
 city from a visit to a military post named Fort Brady, the en- 
 trance of which is situated on a public highway, called South 
 Street. They were proceeding along the sidewalk of South 
 Street, and when at about two hundred yards from the en- 
 trance of the fort, Miss Cadenhead was hit by a rifle-shot and 
 instantly killed. 
 
 "The shot was fired by a private soldier belonging to Company 
 M of the Seventh Infantry, garrisoned at Fort Brady, and was 
 aimed at a military prisoner, who was escaping from his custody 
 when at work just at the entrance of the fort on South Street, by 
 running easterly along the sidewalk on that street in the rear of 
 the Cadenhead party. 
 
 "His Britannic Majesty's Government contend that this sol- 
 dier was not justified in firing upon an unarmed man on a public 
 highway, that he acted unnecessarily, recklessly, and with gross 
 negligence, and that compensation should be paid by the Govern- 
 ment of the United States on the ground that under the circum- 
 stances it was responsible for the act of this soldier. 
 
 "The question whether or not a private soldier belonging to 
 the United States Army and being on duty acted in violation of 
 or in conformity with his military duty is a question of municipal
 
 THE CADENHEAD CASE 263 
 
 law of the United States, and it has been established by the com- 
 petent military court of the United States that he acted in entire 
 conformity with the military orders and regulations, namely, 
 section 365 of the Manual of Guard Duty, United States Army, 
 approved June 14, 1902. 
 
 "The only question for this tribunal to decide is whether or 
 not, under these circumstances, the United States Government 
 should be held liable to pay compensation for this act of its 
 agent. 
 
 "It is established by the evidence that the aforesaid orders 
 under which this soldier, who fired at the escaping prisoner, acted, 
 were issued pursuant to the national law of the United States for 
 the enforcement of military discipline, and were within the com- 
 petency and jurisdiction of that government. 
 
 "It has not been shown that there was a denial of justice, or 
 that there were any special circumstances or grounds of exception 
 to the generally recognized rule of international law that a for- 
 eigner within the United States is subject to its public law, and 
 has no greater rights than nationals of that country. 
 
 "Furthermore, no evidence is offered and no contention is made 
 as to any personal pecuniary loss or damage resulting to the rela- 
 tives or legal representatives of the unfortunate victim of the acci- 
 dent, and it is to be noted that this is a pecuniary claim based on 
 alleged personal wrongs of nationals of Great Britain, as appears 
 from its inclusion in clause 3 of the schedule of claims in the 
 Pecuniary Claims Convention, under which it is presented. 
 
 "Under those conditions the tribunal is of the opinion that in 
 the circumstances of this case no pecuniary liability attaches to 
 the Government of the United States. 
 
 "It should be said, however, that it may not have been alto- 
 gether prudent for the United States authorities to permit pris- 
 oners under the charge of a single guard, to be put at work just 
 at the entrance of a fort on a public highway in a city, and order 
 or authorize that guard, after allowing one of these prisoners to 
 escape under these circumstances, to fire at him, while running 
 along that highway. 
 
 "This tribunal, therefore, ventures to express the desire that 
 the United States Government will consider favorably the pay-
 
 264 RIGHTS OF ALIENS 
 
 ment of some compensation as an act of grace to the representa- 
 tives of Miss Cadenhead, on account of the unfortunate loss of 
 their relative, under such distressing circumstances. 
 
 "On these motives the tribunal decides that with the above 
 recommendation, the claim presented by His Britannic Majesty's 
 Government in this case be disallowed. 
 
 "The President of the Tribunal, 
 
 "HENRI FROMAGEOT. 
 
 "WASHINGTON, May i, 1914" 
 
 (American Journal of International Law [1914], vol. vm, pp. 
 663-^65.) 
 
 THE NEW ORLEANS LYNCHING (1891) 
 
 ONE of the difficulties attendant upon the adjustment of a con- 
 stitution like that of the United States is the occasional failure to 
 coordinate federal powers with state authority, especially in the 
 matter of treaty obligations. All relations with foreign states are 
 entrusted to the Federal Government. To it alone they look for 
 faithful execution of treaties or for reparation and indemnity in 
 case of violation. Foreign governments do not, officially, know 
 the various states of the Union as states; all they are concerned 
 with is the political entity, "the United States." On the other 
 hand, for the great purposes of national life, such as civil and 
 criminal law, social relations, landholding, and so on, the states 
 are supreme the federal authority does not control them. 
 Hence the hiatus between the two spheres of power and the deli- 
 cate situation into which the diplomacy of the United States is 
 sometimes brought by reason of the inability of foreign statesmen 
 to understand or to appreciate the working of a federal system of 
 government. 
 
 A notable instance of this difficulty is the diplomatic disagree- 
 ment that arose out of the affair at New Orleans, March 14, 1891, 
 when eleven persons of Italian origin, some of them Italian sub- 
 jects, were taken from prison and lynched by a mob, without any 
 apparent efforts on the part of the local authorities to give pro- 
 tection. The mob included many prominent citizens and was 
 variously estimated at from 6,000 to 8,000 in number. "In fact,"
 
 THE NEW ORLEANS LYNCHING 265 
 
 said the report of the grand jury, "the act seemed to involve the 
 entire people of the parish and city of New Orleans." 
 
 It would seem that, for a quarter of a century preceding, there 
 had been in New Orleans a long series of assassinations which had 
 been attributed to the machinations of Italian secret societies. 
 These had culminated in the murder of the chief of police on the 
 night of October 15, 1890, and for this crime a number of Italians 
 were arrested. While they were in prison awaiting trial, their 
 treatment was the subject of diplomatic complaint on the part of 
 the Italian Minister at Washington, but on the representation of 
 Mr. Elaine, the Secretary of State, the Governor of Louisiana 
 took steps to punish offending prison officials, at the same time 
 assuring Mr. Elaine that "the nationality of the prisoners had 
 nothing whatever to do with the outrages committed upon them." 
 
 The conduct of the trial was under suspicion from the first; 
 but public feeling became thoroughly incensed when, on March 
 13, the jury reported three of the prisoners not guilty and in the 
 case of three others announced its inability to agree upon a ver- 
 dict. In the belief that there had been a failure of justice, a call 
 was issued to the citizens to vindicate the law, and next morning, 
 in response to the call, several thousand began to assemble in one 
 of the public squares. Anticipating danger, the Italian Consul 
 asked the governor to send troops to protect the prisoners, but 
 the latter pleaded that he was powerless to act without request 
 of the mayor, who at the time could not be found. Before 
 any further action could be taken by the consul, the mob pro- 
 ceeded to the prison where the accused were confined, and shot to 
 death eleven of them, including the six upon whose cases the jury 
 had made report. 
 
 Immediately upon receipt of the news of the massacre, the 
 Marquis Rudini, Italian Minister of Foreign Affairs, instructed 
 Baron Fava, the Italian Minister at Washington, "to denounce 
 immediately to the United States Government the atrocious deed 
 of New Orleans, requesting immediate and energetic steps to re- 
 press, to protect the Italian colony endangered, and to punish 
 severely the guilty;" and next day, confirming his telegram of 
 March 14, he authorized Baron Fava, in the event of any agita- 
 tion, "to present a formal protest, with the reserve of asking later
 
 266 RIGHTS OF ALIENS 
 
 the satisfaction to which we are entitled." Baron Fava inter- 
 viewed Mr. Elaine in the sense of his instructions and made em- 
 phatic protest against "the unjustifiable conduct of the local 
 authorities, who . . . maintained a purely passive attitude while 
 the massacre of the Italians was going on in the prison." 
 
 As soon as the protest had been received, Mr. Elaine sent a 
 communication to the Governor of Louisiana, reminding him that 
 the Treaty of 1871 with Italy guaranteed reciprocal protection 
 of person and property and expressing the hope of the President 
 that he would cooperate with him "in maintaining the obliga- 
 tions of the United States towards the Italian subjects who may 
 be within the perils of the present excitement . . . and that all 
 offenders against the law may be promptly brought to justice." 
 
 Replying on the 2ist of March, the governor assured Mr. Elaine 
 of the cooperation asked for and informed him that the matter 
 was under the investigation of the grand jury. He added that 
 only two or three of the victims were Italian subjects. Baron 
 Fava admitted that his representations had nothing to do with 
 any who were American citizens, but he was all the more insistent 
 that those responsible for the murder of persons under the pro- 
 tection of Italy be brought to justice. 
 
 But public opinion in Italy was becoming restive at the delay 
 and this impatience was reflected in the action of the Italian 
 Government, which, according to the American Minister at 
 Rome, was taking "a course more extreme than would otherwise 
 perhaps be adopted." On March 24 Marquis Rudini telegraphed 
 Baron Fava as follows: 
 
 "Our requests to the Federal Government are very simple. 
 Some Italian subjects, acquitted by the American magistrates, 
 have been murdered in prison while under the immediate protec- 
 tion of the authorities. Our right, therefore, to demand and ob- 
 tain the punishment of the murderers and an indemnity for the 
 victims is unquestionable. I wish to add that the public opinion in 
 Italy is justly impatient, and, if concrete provisions are not at 
 once taken, I should find myself in the painful necessity of show- 
 ing openly our dissatisfaction by recalling the minister of His 
 Majesty from a country where he is unable to obtain justice." 
 This was followed next day by another cablegram from Rudini,
 
 THE NEW ORLEANS LYNCHING 267 
 
 in which he stated that an immediate solution was indispensable. 
 Baron Fava promptly communicated these views to Mr. Elaine 
 and requested a reply without further delay. Not having received 
 one by March 31, the Italian Minister on that day addressed Mr. 
 Blaine, in part, as follows: 
 
 "... The reparation demanded by the Government of the 
 King, as I have had the honor to inform you in our interviews 
 held during the last few days, was to consist of the following points: 
 
 "(i) The official assurance by the Federal Government that 
 the guilty parties should be brought to trial. 
 
 " (2) The recognition, in principle, that an indemnity is due to 
 the relatives of the victims. 
 
 "Your Excellency was pleased to declare to me that, as the 
 Federal Government did not think it could take this view of the 
 case, it declined to take the two aforesaid demands into con- 
 sideration. 
 
 "Under the circumstances, the Government of His Majesty, 
 considering that the legitimate action of the King's Minister at 
 Washington becomes inefficacious, has ordered me to take my 
 departure on leave. . . ." 
 
 On the minister's departure, the business of the legation was 
 left in the hands of the Marquis Imperiali, to whom, on April i, 
 Mr. Blaine addressed his note in reply. After commenting upon 
 the change of phrase in the first demand, but assuming that the 
 same thing was meant, viz., the punishment of the murderers, 
 Mr. Blaine again pointed out that the Government of the United 
 States, "so far from refusing, has distinctly recognized the prin- 
 ciple of indemnity to those Italian subjects who may have been 
 wronged by a violation of the rights secured to them under the 
 treaty with the United States concluded February 26, 1871." 
 In conclusion, Mr. Blaine gave assurance that investigation would 
 be thorough but not hurried; nor would the Government of the 
 United States "make answer to any demand until every fact 
 essential to a correct judgment shall have been fully ascertained 
 through legal authority." 
 
 One of the reasons for Mr. Elaine's delay had been his desire 
 to ascertain whether or not the Italian Government was cogni- 
 zant of the dual character of the American system of government.
 
 268 RIGHTS OF ALIENS 
 
 On March 31, the very day Baron Fava had left Washington, 
 Mr. Porter, the American Minister at Rome, called at the Italian 
 Foreign Office and, in a conversation with the Under-Secretary, 
 found that there was no misunderstanding as to the interrelation 
 of state and federal powers, but that there was widespread sus- 
 picion that the Government of the United States was not acting 
 with sufficient promptitude. Mr. Porter pointed out that, "as 
 the Federal Government could not exercise direct authority over 
 state courts, its proceedings could not be as prompt as might be 
 thought desirable," but he expressed confidence that all treaty 
 obligations would be fulfilled, and added that, in other cases of a 
 similar nature, "where a seeming slowness in accomplishing what 
 was desired had occasioned temporary impatience, the end had 
 fully vindicated the good faith of the government and had re- 
 moved dissatisfaction." 
 
 Mr. Elaine's note of April i was answered next day. The Gov- 
 ernment of Italy disclaimed any demand for punishment apart 
 from due legal process, but insisted that judicial proceedings be 
 instituted at once. Satisfaction was also expressed that the 
 Federal Government recognized "that an indemnity is due to 
 the families of the victims in virtue of the treaty in force between 
 the two countries." 
 
 Mr. Elaine made no further reply until April 14, when, in a 
 note of some length, he discussed the constitutional difficulties 
 involved and the measure of a government's responsibilities in 
 the case of mob violence. But first of all he demurred to the con- 
 struction placed upon his note of April i ; he had not stated that 
 an indemnity was due in virtue of the treaty; what he did say 
 was, that the United States had recognized "the principle of in- 
 demnity to those Italian subjects who may have been wronged 
 by a violation of treaty rights," but that it was yet to be estab- 
 lished whether the treaty had been violated. Ordinarily, repara- 
 tion for mob violence is to be sought in the courts, which are open 
 to citizen and resident alien alike, except that the latter has the 
 additional privilege of seeking judicial remedy in the federal 
 courts. But no claim for indemnity can be made against the gov- 
 ernment unless the authorities of the government can be shown 
 to have been in collusion with the mob or grossly remiss in their
 
 THE NEW ORLEANS LYNCHING 269 
 
 duty. "No government," said Mr. Elaine, "is able, however 
 high its civilization, . . . however prompt and inflexible its crim- 
 inal administration, to secure its own citizens against violence 
 promoted by individual malice or by sudden popular tumult. 
 . . . Foreign residents are not made a favored class. . . . The 
 foreign resident must be content ... to share the same redress 
 that is offered by the law to the citizen, and has no just cause of 
 complaint or right to ask the interposition of his country if the 
 courts are equally open to him for the redress of his hi juries." 
 
 However, Mr. Elaine admitted that the circumstances of the 
 massacre at New Orleans conformed, in all probability, to the 
 exception stated, namely, that the officials had been in connivance 
 with the mob. He stated that the facts were still under investi- 
 gation by the Attorney-General, who had been asked for an opinion 
 as to whether the Federal Government could maintain a criminal 
 prosecution against the murderers. Should it appear that the 
 State of Louisiana alone could act, the President, it was pointed 
 out, could "do no more than to urge upon the state officers the 
 duty of promptly bringing the offenders to trial." Failing action 
 on the part of the state courts, the United States would then feel it 
 incumbent upon itself to find other means of redress, and the 
 President "would, under such circumstances, feel that a case was 
 established that should be submitted to the consideration of 
 Congress with a view to the relief of the families of the Italian 
 subjects who had lost their lives by lawless violence." 
 
 But the misunderstanding persisted in spite of these assurances. 
 The Italian Government admitted that the payment of indemnity 
 was conditional upon proof of the violation of the treaty, but in 
 their opinion, such proof was complete: "Italian subjects acquitted 
 by American juries were massacred in prisons of the State without 
 measures being taken to defend them." "We have affirmed," 
 added Marquis Rudini, "and we again affirm our right. Let the 
 Federal Government reflect upon its side if it is expedient to leave 
 to the mercy of each state of the Union, irresponsible to foreign 
 countries, the efficiency of treaties pledging its faith and honor to 
 entire nations." 
 
 On May 5, the grand jury of the District Court of New Orleans 
 reported that, in the matter of the New Orleans massacre, "the
 
 270 RIGHTS OF ALIENS 
 
 thorough examination of the subject has failed to disclose the nec- 
 essary facts to justify the grand jury in presenting indictments." 
 Thus, in view of the necessity for legal process in the punishment of 
 crime as well as of the independence of the states in criminal juris- 
 diction, the Federal Government was powerless to bring the guilty 
 parties to trial. 
 
 Nothing further had been done toward a settlement, when, in 
 his annual message of December 9, 1891, the President called the 
 attention of Congress to the unfortunate diplomatic situation in 
 which the government found itself. "The federal officers and 
 courts," he said, "have no power in such cases to intervene either 
 for the protection of a foreign citizen or for the punishment of 
 his slayers." In his opinion, therefore, "the officers of the State 
 charged with police and judicial powers in such cases must, in the 
 consideration of international questions growing out of such in- 
 cidents, be regarded in such sense as federal agents as to make this 
 government answerable for their acts in cases where it would be 
 answerable if the United States had used its constitutional power 
 to define and punish crimes against treaty rights." As a permanent 
 safeguard against similar situations in future, he held it to be 
 within the competence of Congress "to make offenses against 
 the treaty rights of foreigners domiciled in the United States 
 cognizable in the federal courts." 
 
 Though no steps were taken to enact any general remedial legis- 
 lation, the diplomatic incident with Italy was closed, when, on 
 April 12, 1892, Mr. Elaine, under instructions from the President, 
 offered, and the Government of Italy accepted, an indemnity of 
 125,000 francs "without prejudice to the judicial steps which it 
 may be proper for the parties to take." Thereupon, the Italian 
 Minister returned to Washington and diplomatic relations were 
 fully resumed. 
 
 (Foreign Relations of the United States, 1891, pp. 658-728.) 
 
 CONNELL'S CASE (1888) 
 
 WITH regard to the complaint of E. R. Connell, a citizen of the 
 United States residing at Batavia, as agent for an American house,
 
 CONNELL'S CASE 271 
 
 that he was subjected to compulsory semiweekly drills, which 
 greatly interfered with his business duties, the American Minister 
 at The Hague was instructed as follows: 
 
 "It is desirable in the first place to point out that . . . neither 
 Mr. Connell nor this Department has questioned his treatment as 
 being exceptional hi any way or as being different from what was 
 required by the local law of Batavia. 
 
 "The question presented by Mr. Connell and by this Depart- 
 ment for the consideration of the Netherlands Government is 
 whether or not the existence of such a local law is justifiable under 
 international usage. . . . 
 
 "It appears that the ' schuttery ' is a local corps in which all resi- 
 dents of Batavia, whether the subjects of the Netherlands Gov- 
 ernment or not, are compulsorily enrolled, and that that guard 
 may be called upon to take part not only in the defense of Bata- 
 via, but also in expeditions to repress disorder in neighboring 
 provinces. 
 
 "It is well settled by international law that foreigners tempo- 
 rarily resident in a country cannot be compelled to enter into its 
 permanent military service. 1 It is true that in times of social dis- 
 turbance or of invasion then* services in police or home guards 
 may be exacted, and that they may be required to take up arms to 
 help in the defense of their place of residence against the invasion 
 of savages, pirates, etc., as a means of warding off some great public 
 calamity by which all would suffer indiscriminately. The test in 
 each case, as to whether a foreigner can properly be enrolled against 
 his will, is that of necessity. Unless social order and immunity 
 from attack by uncivilized tribes cannot be secured except 
 through the enrollment of such a force, a nation has no right to 
 call upon foreigners for assistance against their will. 
 
 "There is no evidence in the possession of this Department 
 tending to show that the condition of affairs at Batavia is such as 
 to bring the question within the fair meaning of the rule as I have 
 stated it, ... and, short of some such condition of affairs as 
 this, it is the belief of this government that the general principles 
 
 1 With regard to the duration of his residence at Batavia, Mr. Connell said: "I 
 do not pretend to be a temporary resident only, my expectation being to remain here 
 for an extended period"
 
 272 RIGHTS OF ALIENS 
 
 of international law would not warrant the Netherlands Govern- 
 ment in resorting to so extreme a measure. 
 
 "The Government of the United States has always favored the 
 residence of its citizens abroad for commercial purposes connected 
 with this country. Such a residence is conducive to the interests 
 not only of the United States, but also of the country in which 
 such agents may temporarily reside. 
 
 "Although the right of the Dutch Government to expel foreign- 
 ers from their control cannot be disputed, the Government of the 
 United States cannot but regard it as a somewhat inhospitable 
 manner of dealing with strangers who reside in the Dutch provinces 
 for the purpose of commerce to insist as a condition of their resi- 
 dence that they shall endure compulsory military service, which 
 may, under some circumstances, become extremely dangerous and 
 onerous. 
 
 "You may bring this matter verbally to the attention of the 
 Minister of Foreign Affairs, and explain to him in a frank and 
 friendly manner the views expressed in this instruction and im- 
 press upon him that we do not regard the position of Mr. Connell 
 as in any way exceptional." 
 
 The American Minister at The Hague replied March 3, 1888: 
 
 "After having carefully considered your instruction, I called 
 upon the Minister of Foreign Affairs and presented to him ver- 
 bally and in a frank and friendly manner the views expressed by 
 you. 
 
 "The Minister of Foreign Affairs said that in his opinion and 
 in the opinion of his government there was nothing in the law or 
 its operation which' in any way conflicted with international usage, 
 and that it would not therefore be possible for him to enter into any 
 investigation of the law or its operation with a view to its modifi- 
 cation. 
 
 "His Excellency urged that the services exacted were simply of 
 a police nature for mutual protection, and as the organization had 
 never at any time been mobilized or mustered into the regular 
 military service of the country, or such an event contemplated, 
 such an emergency could not be discussed. 
 
 "His Excellency did not contend that the remoteness of the 
 colony from the home government prevented it from being com-
 
 THE CASE OF MRS. HONEY 273 
 
 pletely administered within the range of international law, nor 
 did His Excellency intimate that the disturbed state of affairs in 
 Atcheen had in any way affected the condition of affairs at 
 Batavia. 
 
 "Without citing any circumstance or condition in justification 
 of the provisions of the law, His Excellency concluded by saying 
 that a similar law existed in the Netherlands, and that such laws 
 were regarded by this government as necessary, and not in conflict 
 with international usage. 
 
 "In my opinion there is no excuse for the contention that it is 
 a case of necessity. 
 
 "The whole Dutch schuttery system is only machinery for 
 effecting a saving of national expenditure, and has no positive 
 value for the government beyond its economical features. 
 
 "It further seems to me not only illogical, but absolutely irra- 
 tional, for this government, while providing that citizenship must 
 be vacated by Dutch subjects who render foreign military service 
 without the consent of this government, to resolutely insist upon 
 considering all foreign residents within its jurisdiction as liable to 
 compulsory military service." 
 
 On March 26, 1888, the Department of State made reply as 
 follows: "Your observations on the Dutch Minister's views point 
 out very clearly the anomaly in the Dutch practice, but as Mr. 
 Connell has withdrawn the basis of our complaint, the Depart- 
 ment, while not assenting to the position of the Dutch Govern- 
 ment as to the principle involved, is willing that the question may 
 rest until another case revives it." 
 
 (Moore: Digest of International Law, vol. iv, pp. 61-63.) 
 
 THE CASE OF MRS. HONEY (1887) 
 
 IN 1887 the city authorities of Frankfort-on-the-Main sought 
 to levy an income tax on Mrs. Samuel R. Honey, the wife of a 
 citizen of the United States. It appeared that Mrs. Honey was 
 making an extended but temporary sojourn at Frankfort with her 
 daughter, who was attending the school of music, and that she 
 received a monthly allowance from her husband to defray her 
 own and her daughter's expenses. Under the circumstances the
 
 274 RIGHTS OF ALIENS 
 
 authorities came to the conclusion that she was not subject to 
 the tax, but proceeded to levy an income tax on Mr. Honey, on 
 the theory that, as his wife and daughter occupied a dwelling 
 there, he had a domicile at Frankfort. It appeared that Mrs. 
 Honey rented furnished rooms, and that all the furniture in them 
 belonged to the landlord. Mr. Honey was a citizen of the United 
 States and was domiciled at Newport, Rhode Island, where he 
 pursued the profession of the law. He stated that the money 
 which he sent to his wife was derived almost exclusively from the 
 proceeds of his professional income, and that she had no income 
 or estate of her own. Mr. Honey had never resided in Germany 
 and had no property, business, or income there. It appeared that 
 in September, 1887, the Prussian authorities also sought to levy 
 a state income tax upon Mr. Honey. These levies were the sub- 
 ject of discussion between the Consul-General of the United 
 States at Frankfort-on-the-Main and the local authorities, and 
 the matter was ultimately communicated by the legation of the 
 United States at Berlin to the German Foreign Office, hi order 
 that it might be laid before the Prussian Minister of Finance. 
 The Prussian Minister of Finance subsequently directed that the 
 assessment of the state income tax should be discontinued and 
 the amount already paid refunded. A similar conclusion was 
 reached in regard to the communal tax. 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 n, pp. 60-61.)
 
 CHAPTER VI 
 
 THE REGULATION OF COMMERCE, TRAVEL, 
 AND SOJOURN 
 
 30. REGULATION OF IMMIGRATION AND SOJOURN 
 
 THE CASE OF CHARALAMBIS (1903) 
 
 SOTIRIOS S. LONTOS CHARALAMBIS, a Greek subject, arrived 
 at New York, May 6, 1903, as a first-cabin passenger on the 
 steamer Trave. Questioned by the immigration officials, he stated 
 that he expected to act as chief accountant for the Greek Currant 
 Company (a Greek corporation), at a salary of one thousand dol- 
 lars a year, in a branch which was to be established in the United 
 States. He was ordered to be deported as a contract laborer. On 
 a rehearing, before a special board of inquiry, it appeared that 
 Lontos was a cousin of the chairman of the directors of the Greek 
 Currant Company and a nephew of the president of the National 
 Bank of Greece, who was the largest stockholder in the company; 
 that, by reason of these facts, his position was peculiarly confiden- 
 tial and representative; and that he was also to make a special 
 study of the banking business in the United States. The chairman 
 of the special board expressed the view that the contract-labor 
 law did not apply to such a case, but this view did not prevail and 
 the order of deportation was reaffirmed. The Secretary of the 
 Treasury on appeal, May 29, affirmed this decision, and the Act- 
 ing Secretary, on June 2, refused a rehearing. On the next day 
 the writ of habeas corpus was obtained, Lontos remaining in the 
 custody of his counsel. The court, however, declined to review 
 the decision of the special board, and an appeal was then taken 
 to the Supreme Court. Meanwhile, the Greek Government had 
 strongly and repeatedly protested. In January, 1905, after the
 
 276 REGULATION OF IMMIGRATION AND SOJOURN 
 
 case was placed on the day calendar of the Supreme Court, Mr. 
 Hayes agreed to move for a dismissal of the appeal, on an assur- 
 ance from the Department of Justice that his client would be ad- 
 mitted. An order of admission was made by the Secretary of 
 Commerce and Labor, January 21, 1905. The appeal was dis- 
 missed. (196 U.S. 643.) The proposed agency of the Greek Cur- 
 rant Company was established in New York, and has been con- 
 ducting, as Mr. Hayes states, a large and successful wholesale 
 business. 
 
 (Extract from Moore: Digest of International Law, vol. iv, pp. 
 179-80.) 
 
 THE CASE OF ROUSSEL (1909) 
 The French Ambassador to the Secretary of State 
 
 [Translation] 
 
 FRENCH EMBASSY, 
 Washington, November 27, igog. 
 
 Mr. Secretary of State: I have the honor to draw Your Excel- 
 lency's kind attention to the situation of a young Frenchman, Mr. 
 Charles Roussel, who arrived on the steamship Caroline, of the 
 Compagnie Generate Transatlantique, on the i8th instant and 
 was denied admission into the United States by the Immigration 
 Service. 
 
 The young man formerly lived at Providence, Rhode Island, 
 with his parents. Having returned to France to perform his mili- 
 tary service, as required by law, he was discharged from the ranks 
 on account of his weak constitution and came back to the United 
 States, his traveling expenses being, under the regulation, paid 
 both ways by the Ministry of War of the Republic. 
 
 The Consul-General of France at New York, hearing that 
 Roussel was detained at Ellis Island, wrote to Mr. Williams, 
 Commissioner of Immigration, to tell him how the young man 
 was situated and inform him that the consulate-general was ready 
 to pay his way to Providence. Mr. Lanel, who was then advised 
 that Mr. Roussel was excluded on account of his weak constitu- 
 tion and was about to be sent back to France, immediately wrote 
 again to the commissioner to ask that his deportation be deferred.
 
 THE CASE OF ROUSSEL 277 
 
 This young man's case is all the more interesting as he has no 
 relations in France, and his parents reside in Providence. I ven- 
 ture to hope that, taking this situation into account, Your Ex- 
 cellency will kindly use your good offices with the proper depart- 
 ment in behalf of my fellow countryman, who, if the decision of 
 the Immigration Service were maintained, would find himself 
 separated, resourceless, from his people, for performing his duty 
 and obeying the laws of the Republic. 
 
 Be pleased, etc., JUSSERAND. 
 
 The French Ambassador to the Secretary of State 
 
 [Translation] 
 
 FRENCH EMBASSY, 
 Washington, November 29, /pop. 
 
 Mr. Secretary of State: Our consuls in the United States report 
 to me that for some time past the Federal Immigration Service 
 has been opposing difficulties to French soldiers, who have been 
 released from the military service after its completion and return 
 to their homes in the United States. Unless provided with a sum 
 of two hundred and fifty francs, they are detained and threatened 
 with deportation to France. 
 
 I venture to bring Your Excellency's notice to the fact that, in 
 the first place, the persons concerned were residents of the United 
 States before going to France to perform then: military service, . 
 and, in the second place, our consuls are required by law to pay 
 the way of these young men to their residence hi the United States, 
 no matter how distant it may be. 
 
 I should be very thankful to Your Excellency if you would 
 kindly draw to this situation the favorable attention of the proper 
 federal authorities, with the remark that it could hardly be con- 
 sistent with law and logic to consider returning foreigners, who 
 resided in the United States before going to their country there 
 to perform their military service out of a sense of duty, as immi- 
 grants, and treat them as though they had not already been ad- 
 mitted, once for all, to residence in this country. 
 
 Be pleased, etc., JUSSERAND.
 
 278 REGULATION OF IMMIGRATION AND SOJOURN 
 The French Ambassador to the Secretary of State 
 
 [Translation] 
 
 FRENCH EMBASSY, 
 Washington, December 14, 1909. 
 
 Mr. Secretary of State: Your Excellency was so good as to ad- 
 vise me, in your letter of the yth instant, that you had forwarded 
 to the Department of Commerce and Labor my request on behalf 
 of a young Frenchman, Charles Roussel, whom the authorities 
 of the Immigration Service will not allow to land in New York. 
 
 I have just been informed that the said authorities have sent 
 the young man back to France without waiting for the outcome 
 of my request. My government will surely be extremely sorry to 
 hear of this decision. . . . 
 
 Your Excellency will surely consider these provisions which 
 may work so much hardship, and to which I took the liberty of 
 drawing your attention in a second letter, dated November 29, 
 to be inconsistent with the true intent of the legislator. I should 
 be very thankful to you if you would acquaint me with your views 
 in this respect and let me know whether the law really is that an 
 alien once admitted in the United States may thereafter be ex- 
 cluded if he leaves the country, even for the performance of a duty 
 held to be sacred the world over and if his health becomes un- 
 paired. 
 
 Be pleased to accept, etc., JUSSERAND. 
 
 The Acting Secretary of State to the French Ambassador 
 
 DEPARTMENT OF STAIE, 
 Washington, December 21, /pop. 
 
 Excellency: In further reply to Your Excellency's note of the 
 27th ultimo, and with reference also to your note of the i4th in- 
 stant, in regard to the case of one Charles Roussel, a French 
 citizen, who recently returned to this country, but was denied ad- 
 mission, notwithstanding the fact that he had certain interests 
 here, I have now the honor to advise you of the result of this De- 
 partment's communication to the Department of Commerce and 
 Labor of Your Excellency's note of November 27. 
 
 It appears that this case came before the Department of Com-
 
 THE CASE OF ROUSSEL 279 
 
 merce and Labor in connection with an application for admission 
 under bond, on November 24, 1909. A medical certificate was 
 rendered showing Mr. Roussel to be afflicted with "chronic in- 
 flammation connective tissue neck with suppuration and sinus, 
 which affects ability to earn a living." It further appears from 
 the statement made by the Acting Secretary of Commerce and 
 Labor, that the passage of this alien was paid by the French Gov- 
 ernment pursuant to a statute calling for such payment when a 
 native of France returns thither for military service. Mr. Roussel 
 was totally destitute of money and, although his father appeared 
 as a witness in his behalf, evidence was not submitted to overcome 
 the presumption of his likelihood to become a public charge. Con- 
 sequently, the application was denied and the applicant was 
 deported. 
 
 I may add that the Third Assistant Secretary of State, in con- 
 sultation with the Acting Secretary of Commerce and Labor, 
 orally pointed out that this case seemed to be one involving par- 
 ticular hardship. The Acting Secretary of Commerce and Labor 
 could, however, only reiterate the statement made in his corre- 
 spondence with this Department, that under the law an alien re- 
 turning to this country must be subjected to the same treatment 
 as that attending his initial immigration. The Department re- 
 grets that, in view of the provisions of law applying in such cases, 
 no other course was open to the Department of Commerce and 
 Labor than to order the deportation of Roussel. 
 
 I have also the honor hi this relation to refer to Your Excel- 
 lency's note of November 29 last, wherein you discussed the 
 general subject of French citizens who have emigrated to the 
 United States and later returned to then* homes in France for the 
 purpose of performing military duty, upon the conclusion of which 
 they again emigrated to the United States. Your Excellency is of 
 opinion that, in such event, they should be admitted without 
 question. 
 
 Your Excellency's note was communicated to the Secretary of 
 Commerce and Labor, who, with reference to the comments made 
 therein, advises me as follows: 
 
 A reference to the act of February 20, 1907, will indicate that 
 the administrative officers of the Immigration Service have no
 
 280 REGULATION OF IMMIGRATION AND SOJOURN 
 
 authority to waive the examination of arriving aliens upon dis- 
 covery of the existence of such a state of facts as set forth in Your 
 Excellency's note of November 29. 
 
 With respect to your contention that the first admission of an 
 alien to the United States is conclusive as to his right to remain in 
 this country and to return hither after an absence abroad without 
 being subject to the immigration laws, the Department of Com- 
 merce and Labor points out that this impression is an erroneous 
 one, inasmuch as an alien regularly admitted may be arrested 
 and deported at any time within three years subsequent, if found 
 to have entered in violation of law or to be a public charge from 
 causes existing prior to landing. Moreover, it is added, an alien 
 resident of this country, who goes abroad for any purpose, is sub- 
 ject to the immigration laws upon his return. The fact of previous 
 residence here, while it might be deemed a factor to assist in the 
 determination of his right to land, is by no means conclusive as to 
 the existence of such right. Indeed, it appears that the only per- 
 sons exempt from the requirements of the immigration laws are 
 bona-fide American citizens and the diplomatic and consular 
 officers of foreign countries, their suites, families, and guests. 
 
 Accept, etc., 
 
 HUNTINGTON WlLSON. 
 
 (Foreign Relations of the United States, 1909, pp. 260-63). 
 
 THE CASE OF ALFRED LUMB (1910) 
 
 The Acting Secretary of State to Ambassador Reid 
 [Telegram Paraphrase] 
 
 DEPARTMENT or STATE, 
 Washington, March 12, 1910. 
 
 MR. WILSON instructs Mr. Reid to consult Consul- General 
 Griffiths regarding reported deportation of Alfred Lumb, a British 
 subject convicted in England of counterfeiting, to the United 
 States; to make careful investigation, and, if facts are found to be 
 as reported by Mr. Griffiths, and, if order of deportation to the 
 United States has been issued, to bring the matter to the atten- 
 tion of the British Foreign Office, calling attention to section 2 of
 
 THE CASE OF ALFRED LUMB 281 
 
 Immigration Act of February 20, 1907, 34 Statutes at Large, 898. 
 Mr. Reid is informed that the attitude of this Government re- 
 garding compulsory or assisted emigration is set forth in 4 Moore's 
 Int. L. Dig. sections 560 and 565, and he is directed to inform 
 the British Government of this attitude, and to say that the Gov- 
 ernment of the United States feels confident that when the action 
 of the local officers at Leeds has been called to the attention of 
 the British Government steps will be taken to prevent the con- 
 summation of the order of deportation. 
 
 Ambassador Reid to the Secretary of State 
 
 AMERICAN EMBASSY, 
 
 London, March 18, 1910. 
 
 Sir: On receipt of your cable instruction of the i3th instant I 
 immediately took steps to investigate whether the commissioner 
 of assize at Leeds had taken the course reported to you through 
 the American Consul- General in London. 
 
 The first information which I received from the consul at Leeds, 
 which was confirmed by the press reports, led me to believe that 
 the commissioner of assize had merely withheld sentence on the 
 ground that Alfred Lumb should leave the country within a cer- 
 tain period and that the court itself had made no reference to the 
 prisoner's going to the United States. 
 
 On receipt, however, of a copy of the transcript of the court 
 records it became evident that the commissioner, in addressing 
 the prisoner, said, "Are you ready, if I let you go, to be bound 
 over to go to America?" to which the prisoner replied, "Yes," 
 and thereupon the commissioner stated that he was prepared to 
 release prisoner on his recognizance and his brother's for the sum 
 of 50 each. 
 
 I have accordingly to-day addressed a note to the Foreign 
 Office in which, after bringing the facts to the attention of Sir 
 Edward Grey, I request him to take such steps as may be neces- 
 sary to prevent the consummation of the order. 
 
 I have, etc., 
 
 WHITELAW REID.
 
 282 REGULATION OF IMMIGRATION AND SOJOURN 
 
 [Enclosure] 
 
 Ambassador Reid to the Minister for Foreign A fairs 
 
 AMERICAN EMBASSY. 
 
 London, March 16, igio. 
 
 Sir: My attention has been called to reports published in the 
 Yorkshire Evening Post of the 8th and gth instant to the effect 
 that one Alfred Lumb, a British subject, has been indicted for 
 uttering counterfeit coin and for silvering with a certain liquid 
 pennies and a halfpenny so that they would resemble current 
 silver coins, to which indictment the prisoner pleaded guilty. 
 
 It appears that having asked prisoner whether in the event of 
 his discharge being granted he would be ready to be bound over 
 to leave the country and to go to America, and the prisoner hav- 
 ing answered in the affirmative, the commissioner announced 
 that prisoner would be released upon entering into a recognizance 
 of 50 to leave the country within one month, the prisoner's 
 brother entering into a like recognizance that the prisoner would 
 go within the stated period. 
 
 If the reports that have appeared in the Yorkshire Evening 
 Post are not incorrect, it would appear that the commissioner of 
 assize was unaware of the provisions of the United States Immi- 
 gration Act of 1875, section 3, providing that "it shall be unlaw- 
 ful for aliens of the following classes, namely, . . . whose sen- 
 tence has been remitted on condition of then- emigration" - this 
 provision being intended to put a stop to a practice in certain 
 countries, whereby, on sending such persons to the United States, 
 the authorities were able to avoid the trouble and expense of tak- 
 ing care of their own criminals. 
 
 The Immigration Act of February 22, 1907, provides that per- 
 sons inter alios who have been convicted of or admit having com- 
 mitted a felony shall be excluded from admission to the United 
 States. Lumb would, therefore, if his identity were discovered, 
 not only be denied admission, but would, on his arrival, be 
 deported. 
 
 In bringing the matter to your attention, I wish to point out, 
 in order to avoid similar cases in the future, what will, I think, 
 have occurred to you, that the commissioner of assize, in post-
 
 THE CASE OF ALFRED LUMB 283 
 
 poning a sentence upon the express condition that the prisoner 
 should go to America, was unwittingly violating international 
 comity, in requiring by his sentence that the prisoner before him 
 should attempt to violate the laws of the United States. 
 
 My government feels confident that if the facts of the case prove 
 to be as stated you will take such steps as may be necessary to 
 prevent the consummation of the commissioner's order. 
 
 I have, etc., 
 
 WHITELAW REID. 
 
 [On June 22 Mr. Reid enclosed to the Secretary of State at 
 Washington a note dated June 17 which he had received from the 
 British Foreign Office:] 
 
 The Minister for Foreign A fairs to Ambassador Reid 
 
 FOREIGN OFFICE, 
 London, June 17, 
 
 Your Excellency: I did not fail to refer to the proper department 
 of His Majesty's Government the note which Your Excellency 
 addressed to me on the i6th of March last, respecting the case of 
 Alfred Lumb, a British subject, who was recently convicted of 
 uttering counterfeit coin and was released on condition of leaving 
 the United Kingdom and proceeding to the United States, and I 
 now have the honor to inform Your Excellency that the commis- 
 sioner of assize who heard the case acted in the matter in ignorance 
 of the United States statutes bearing upon the immigration of 
 convicted offenders. 
 
 With the object of avoiding any possible recurrence of such a 
 case the Secretary of State for the Home Department has ad- 
 dressed to all judges of the high court, recorders of boroughs, and 
 chairmen of quarter sessions, a circular calling their attention to 
 the provisions of United States law on this subject. 
 
 I have, etc., 
 
 (For Sir E. Grey) : 
 W. LANGLEY. 
 
 (Foreign Relations of the United States, 1910, pp. 593-97.)
 
 284 EXPULSION 
 
 31. EXPULSION 
 
 THE CASE OF BEN TILLETT (1896) 
 
 BEN TILLETT, a British subject, arrived at Antwerp on August 
 20, 1896, for the purpose of effecting an international federation 
 and strike of the dock laborers. He was arrested and after a de- 
 tention of twenty-six hours was placed on board a vessel returning 
 to England. The British Government protested against his ex- 
 pulsion. After a diplomatic interchange in which the governments 
 could reach no agreement, it was agreed by a convention of March 
 19, 1898, to submit the question to a foreign jurist for arbitration. 
 Article 2 of the compromis (agreement for arbitration) defined the 
 competence of the arbitrator as follows: "It shall be the duty of 
 the arbitrator to consider whether the claim for a pecuniary in- 
 demnity, advanced by Her Majesty's Government on behalf of 
 Mr. Ben Tillett, is well founded, and, if so, to determine the 
 amount of such indemnity." 
 
 M. Desjardins, who had received an invitation from the two- 
 governments to act as arbitrator, rendered his decision as follows: 
 
 "In discharge of the functions of arbitrator conferred on me, 
 with the authority of the French Government, by virtue of the 
 Convention of the i9th March, 1898, concluded between the Gov- 
 ernment of His Majesty the King of the Belgians and the Gov- 
 ernment of Her Britannic Majesty, on the subject of the interna- 
 tional dispute occasioned by the expulsion of Mr. Ben Tillett, a 
 British subject, from Belgian territory; 
 
 "Having carefully examined and maturely weighed the docu- 
 ments that have been produced on either side concerning the 
 indemnity claimed by the Government of Her Britannic Majesty 
 from the Government of His Majesty the King of the Belgians on 
 behalf of Mr. Ben Tillett; 
 
 "Having, moreover, proceeded to Antwerp on the i5th August, 
 1898, in order, by means of a full knowledge of the case, to solve 
 certain questions which seemed doubtful to me, and having held 
 an inquiry in the Antwerp prison itself; 
 
 "I pronounce the following award of arbitration:
 
 THE CASE OF BEN TILLETT 285 
 
 " (A.) On the Tight of expulsion from the point of view of prin- 
 ciple: 
 
 "Whereas the right of a state to exclude from its territory 
 foreigners when their dealings or presence appears to compromise 
 its security, cannot be contested; 
 
 "Whereas, moreover, the state in the plenitude of its sover- 
 eignty judges the scope of the acts which lead to this prohibition; 
 
 "(B.) As to the watch kept on the person of Ben Tillett in 
 consequence of the meeting of the 2ist August, 1896, and up to 
 the confinement of this British subject in the lock-up at Antwerp: 
 
 "Whereas, if the right of the state to expel be recognized, the 
 means of insuring the execution of its injunctions in that regard 
 cannot be denied to it; 
 
 "Whereas the state should have the power to keep a watch on 
 foreigners whose presence seems dangerous to public order, and, 
 if it fears lest those to whom it forbids its territory should escape 
 this vigilance, it may keep them in view; 
 
 "Whereas, in fact, Ben Tillett repaired to Belgium to organize 
 the international federation of dockers there, and to foment a 
 strike which was considered by the Royal Government to be at 
 once prejudicial to the interests of the port of Antwerp and 
 dangerous to the public tranquillity; 
 
 "Whereas the Belgian Government had plausible reasons for 
 thinking that Ben Tillett had already harangued the dock labor- 
 ers at the 'Werker' Club on the evening of the 22d July, 1896, 
 and, after this speech, had cleverly eluded the search of the 
 police; 
 
 "Whereas that government did not overstep its functions or 
 exceed its right in endeavoring not to lose sight of Ben Tillett on 
 the afternoon of the 2ist August, and in subsequently securing 
 his person after the meeting held in the courtyard of Schram's 
 Inn; 
 
 "Whereas no measure of expulsion had, it is true, yet been taken 
 against Ben Tillett at the time of his being conducted to the police 
 station about 4 o'clock in the afternoon of the 2ist August, 1896; 
 but whereas the ministerial dispatch of the 9th July, 1896 (re- 
 ferred to in the requisition of the commissary of police of Antwerp, 
 fifth southern section, dated the 2ist August), relative to foreign-
 
 286 EXPULSION 
 
 ers arriving at Antwerp for the purpose of holding meetings there 
 on behalf of a universal union of sailors and dock laborers, left no 
 doubt as to the wishes of the central power; and whereas the 
 Antwerp police could not, without disobeying these instructions, 
 fail to detain, on behalf of the government, foreigners who came 
 to take an active part in the agitation set on foot since June, 1896, 
 for the organization of the international federation; 
 
 "Whereas, moreover, according to the papers produced in the 
 case, and, in particular, a report of the Assistant Commissary 
 Bucan, dated the 3ist August, 1896, Ben Tillett had been formally 
 advised of the instructions given by the Minister; whereas, accord- 
 ing to the deposition of the aforesaid Bucan, taken by me on oath 
 on the 1 5th August, 1898, Ben Tillett knew perfectly well what he 
 had to expect; he had been officially informed, directly he had 
 landed, that if he meant to hold the public meeting loudly 
 announced in the Seamen's Chronicle of the 8th August, 1896, 
 'he must quit Belgian territory; otherwise he would render 
 himsel liable to be arrested and conducted under escort to the 
 frontier;' 
 
 "Whereas, in this condition of things, the agents of the execu- 
 tive were entitled to detain Ben Tillett at the police station rather 
 more than three hours, with a view to insuring the execution of a 
 measure of expulsion which had been decreed hi principle by the 
 government in council, and which was shortly to become an ac- 
 complished fact; 
 
 "Whereas decrees of expulsion do not generally precede the 
 events which call for them, and whereas, it forcible means may 
 not be employed to hold in safe-keeping for a few hours a foreigner 
 whose conduct has become a cause of trouble, until this measure 
 is officially taken, this person will have time to evade the police, 
 and the Government will find itself powerless; 
 
 "(C.) On the imprisonment in a lock-up: 
 
 "Whereas the British Government reproach the Belgian au- 
 thorities with having taken Ben Tillett from the police station to 
 conduct him to a prison, where he found himself mixed up with 
 men under sentence for, or accused of, common law offenses; 
 
 "Whereas, as a matter of fact, Ben Tillett was entered in the 
 books at the Antwerp lock-up at 8 o'clock in the evening of the
 
 THE CASE OF BEN TILLETT 287 
 
 2ist August, 1896, in order, according to the requisition of the 
 2ist August, 1896, to be 'kept at the disposal of the gendar- 
 merie/ and thence 'conducted out of the kingdom;' 
 
 "Whereas the Belgian authorities undoubtedly conformed to 
 the rule of this penitentiary establishment, according to which the 
 lock-up is intended not only for accused persons, but also for 
 'foreigners detained on behalf of the Administrator of Public 
 Safety, and for those whose extradition is demanded by foreign 
 governments; 1 and whereas the sole question at issue is whether 
 the Royal Government has not infringed an obligation of inter- 
 national propriety in imprisoning Ben Tillett in quarters simul- 
 taneously devoted to these different classes of prisoners; 
 
 "But whereas, in fact, on the one hand, Ben Tillett was con- 
 fined hi two cells of this building successively; 
 
 "And whereas in law, on the other hand, it is impossible to com- 
 pel a sovereign state either to construct special establishments 
 exclusively designed for the provisional detention of foreigners 
 between the time of their arrest and the moment when the measure 
 of expulsion can be carried out, or even to reserve them special 
 quarters in houses already constructed; whereas the Belgian Gov- 
 ernment satisfied the exigencies of international courtesy by 
 isolating Ben Tillett, and thereby preventing him from coming 
 into contact with persons awaiting their trial; 
 
 "(D.) On the duration of the whole detention: 
 
 "Whereas, in fact, Ben Tillett, having been entered in the books 
 of the Antwerp prison at 8 o'clock in the evening of the 2ist 
 August, was not taken out till 6 o'clock in the evening of the next 
 day, the 22d August, in order to be taken on board the Harwich 
 boat which left for England at 7 o'clock; and whereas twenty-six 
 (? twenty-two) hours thus elapsed from the moment when this 
 English subject was consigned to the police station until the time 
 when he was put in a position to go back to his country; 
 
 "But whereas the Belgian Government could not be compelled 
 to send Ben Tillett away by the Harwich boat at 7 P.M. on the 
 2ist August; whereas the Antwerp police had to concert with the 
 government, and consequently communicate with Brussels; and 
 whereas the instructions awaited by the witness Winne, assistant 
 
 1 Article 4 under the general heading: "purposes of the prison."
 
 288 EXPULSION 
 
 to the police commissary at Antwerp, heard by us on oath, had 
 not reached him at 7 o'clock; 
 
 "Whereas it is impossible to maintain that these instructions 
 ought necessarily to have reached the Antwerp police agents by 
 7 o'clock, without considering with excessive strictness the manner 
 in which the representatives of the Belgian Government use their 
 time; 
 
 "Whereas other boats, it is true, left for England both on the 
 night of the 2ist-22d August and hi the morning of the 22d August, 
 and whereas the British Government asks in its second memo- 
 randum why one of these various means of transport was not made 
 use of; 
 
 "But whereas it appears from the documents produced and 
 from the depositions taken by us in the prison at Antwerp on the 
 1 5th August, 1898: 
 
 "i. That Ben Tillett, when he embarked for Antwerp on the 
 Harwich boat, had taken a return ticket which was available for 
 thirty days. 
 
 "2. That, in order to utilize the ticket in question, he intended 
 to make use of the same line of steamers on his return voyage; 
 
 "3. That he had expressly informed the witness Winne of his 
 intention of returning by the Harwich boat; 
 
 "That under these circumstances the Belgian Government were 
 guilty of no error in sending Ben Tillett on board the Harwich 
 boat at 7 o'clock on the 22d August, this being the earliest time 
 of sailing of that vessel; 
 
 " (E.) As to the treatment to which he was exposed in the lock- 
 up: 
 
 "Whereas when I was at Antwerp on the i5th August, 1898, I 
 requested M. van Calster, the officer in charge of the lock-up, to 
 have cells 6 and 29 successively occupied by Ben Tillett on the 
 2ist and 22d August opened for my inspection; 
 
 "Whereas I found that they were dry, sufficiently ventilated, 
 clean, with no smell; that the beds were sufficiently large; the 
 single blanket on the latter appeared to me to be sufficient for the 
 needs of the persons occupying the cells, hi view of the temperature 
 which prevails during the month of August; and it did not appear 
 to me that a stay of twenty-two hours in either of these cells at
 
 THE CASE OF BEN TILLETT 289 
 
 that season of the year could possibly endanger the health of a 
 person detained in them; 
 
 "Whereas cells 6 and 29 might have been tampered with, in 
 view of my approaching visit, I caused cells 8, 12, and 21 to be 
 opened; and found these three cells to be arranged in the same 
 manner; 
 
 "Whereas an official extract from the register of the prison at 
 Antwerp, which was submitted for my inspection, showed that 
 the administration had paid during the first seven months of 1896, 
 80 1 days' wages to whitewashes, 259 days' wages to bricklayers, 
 334 days' wages to painters, 117 days' wages to mattress-stuff ers; 
 the lockup being clearly maintained on the same footing in 1896 as 
 it is in 1898; 
 
 "Whereas, moreover, Ben Tillett had every facility for obtain- 
 ing an additional supply of food if the ordinary prison fare ap- 
 peared to him insufficient in quantity; 
 
 "Whereas the director of the prison declared to me very posi- 
 tively on oath that persons detained there and foreigners placed at 
 the disposal of the Administration of Public Safety were never 
 compelled to wear prison dress, except in cases of manifest want 
 of cleanliness and for hygienic reasons; the 8ist article of the 
 prison Regulations merely stating that ' the prisoner is to be made 
 to wear the prison dress if he is dirty; ' whereas the use even of the 
 hood, according to the Ministerial Circular of August 24, 1891, 
 is not obligatory in the case of persons detained or accused or in 
 the case of persons arrested for debt; and whereas according to 
 the deposition of the witness Gillade, Ben Tillett was not com- 
 pelled to wear prison dress, in accordance with the provision of 
 article 81 of the Regulations; that, in fact, it is not established that 
 this humiliation was inflicted on him; 
 
 " (F.) As to the relation between the detention of Ben Tillett 
 in the prison at Antwerp and the state of his health: 
 
 "Whereas there is no ground for supposing that there is a rela- 
 tion of cause and effect between the detention of twenty-two 
 hours and the state of ill-health certified to by two physicians; 
 
 "Whereas one of the certificates connects the nervous troubles 
 of which Ben Tillett complains with a state of 'prolonged ner- 
 vous excitement,' and that this orator did, from the 29th August
 
 290 EXPULSION 
 
 and during the whole month of September, carry on a campaign 
 of meetings, with the greatest zeal and activity; 
 
 "For these reasons: 
 
 "I decide that the demand for compensation put forward by 
 Her Majesty's Government has no basis, and I declare them non- 
 suited; 
 
 "I condemn them in costs, in virtue of article 5 of the Conven- 
 tion of the ipth March, 1898, assuming that there are costs to be 
 paid; but at the same time I declare that, as far as I myself am 
 concerned, I make no claim to fees or reimbursement of expenses. 
 
 "Done at Paris in duplicate, the 26th December, 1898. 
 " (Signed) ARTHUR DESJARDINS, 
 
 " Membre de I'Institut de France et de 
 VInstitvt de Droit International, 
 Avocat Central pres la Cour de 
 Cassation de France." 
 
 (Parliamentary Papers [1899], (46), Papers relating to the Arbi- 
 tration in the case of Mr. Alderman Ben Tittett.) 
 
 PAQUET'S CASE 
 
 Belgian-Venezuelan Mixed Claims Commission, 1903. 
 
 Filtz, Umpire: 
 
 "The umpire having examined and studied the record, and con- 
 sidering 
 
 "That Mr. N. A. Paquet, a Belgian subject, domiciled in Ca- 
 racas, claims the sum of 280,000 bolivars for damages, direct and 
 indirect, traveling expenses and hotel expenses, because the Gov- 
 ernment of Venezuela prevented him from landing at La Guaira; 
 
 "That the claim has been reduced by the Belgian Commissioner 
 by the sum of 250,000 bolivars for indirect damages, and insisted 
 upon only for direct damages, estimated at 4,500 bolivars; 
 
 "That the right to expel foreigners from or prohibit their entry 
 into the national territory is generally recognized; that each state 
 reserves to itself the exercise of this right with respect to the per- 
 son of a foreigner if it considers him dangerous to public order, or 
 for considerations of a high political character, but that its ap- 
 plication cannot be invoked except to that end; 
 
 "That, on the other hand, the general practice among govern-
 
 GUATEMALAN CUSTOMS LAWS 291 
 
 ments is to give explanations to the government of the person ex- 
 pelled if it asks them, and when such explanations are refused, as 
 in the case under consideration, the expulsion can be considered 
 as an arbitrary act of such a nature as to entail reparation, which is 
 aggravated in the present case by the fact that the attributes of 
 the executive power, according to the Constitution of Venezuela, 
 do not extend to the power to prohibit the entry into the national 
 territory, or expelling therefrom the domiciled foreigners whom 
 the government suspects of being prejudicial to the public order; 
 
 "That, besides, the sum demanded does not appear to be exag- 
 gerated 
 
 "Decides that this claim of N. A. Paquet is allowed for 4,500 
 francs." 
 
 (Venezuelan Arbitrations of 1903, prepared by J. H. Ralston 
 [Washington, 1904], pp. 267-68.) 
 
 32. TARIFF AND THE REGULATION OF IMPORTS 
 
 GUATEMALAN CUSTOMS LAWS (1875) 
 
 COMPLAINT was made by an American firm against the Govern- 
 ment of Guatemala for causing some packages of imported mer- 
 chandise to be opened. "Though the inconvenience to which those 
 gentlemen may have been subjected by that proceeding may," said 
 the Department of State, "be a subject of regret, it is apprehended 
 that exemption from it cannot be claimed on the principle of 
 international law which you suppose may be applicable to the 
 case. In the absence of a treaty, at least, that government may 
 carry into effect its municipal law in regard to importations 
 from abroad in such way as may be deemed necessary for the pro- 
 tection of its revenue. The same right will be exercised here in 
 respect to importations by citizens of Guatemala into the United 
 States." 
 
 (Moore: Digest of International Law, vol. n, pp. 66-67.)
 
 292 TARIFF AND THE REGULATION OF IMPORTS 
 
 INSPECTION OF AMERICAN PORK EXPORTS 
 
 IN 1 88 1, and for several years thereafter, the Government of 
 the United States was involved in a diplomatic controversy with 
 the Governments of France and Germany over their action in for- 
 bidding the importation into their respective countries of American 
 pork. The prohibition was based on the alleged occurrence of 
 trichinae in American hogs, but later it was practically avowed to 
 be for the protection of the agricultural interests. One of the 
 French officials in the course of the discussion, while stating that 
 the exclusion was made in the first instance on sanitary grounds, 
 admitted that "the idea of protection to French producers of salt 
 pork may have had its weight in maintaining the prohibition. He 
 personally did not sympathize with the protectionist views . . . 
 but he was sorry to say the tendency of the new Chamber seemed 
 to be strongly in the opposite direction." The American Minister 
 reminded him "that there was a difference between protection and 
 prohibition" and that there was "invidious discrimination in 
 admitting the same class of products from other countries while 
 prohibiting ours." (Foreign Relations of the United States, i88p, 
 pp. 166-67.) The prohibition was finally removed by France in 
 1891 and high tariff duties substituted. 
 
 On January 24, 1891, Mr. Phelps, the American Minister at 
 Berlin, reported to his government as follows: 
 
 "I have the honor to call your attention to the debate which 
 occupied two sessions of the Reichstag, one on Wednesday, the 
 other on Friday of this week. . . . 
 
 "The debate was opened by Dr. Earth. He referred to the 
 origin of this policy of exclusion as so near in time and spirit to 
 Germany's adoption of the protective system that one cannot but 
 draw the inference that it was part of that system ; and the prob- 
 ability that the policy of exclusion was one of protection and not 
 of sanitation was used with more or less directness by all who 
 subsequently spoke on his side, and as earnestly and uniformly 
 denied by those who spoke for the government." (Foreign Rela- 
 tions of the United States, 1891, pp. 501-02.) 
 
 In his correspondence with the German Minister for Foreign 
 Affairs, Mr. Phelps argued strongly against the position taken
 
 INSPECTION OF AMERICAN PORK EXPORTS 293 
 
 by the German Government. -"Everybody knows," he said, 
 "that 65,000,000 Americans eat American pork, and that 
 there has not been a case of illness or death reported as oc- 
 curring from its use. . . . Everybody knows that 35,000,000 
 Englishmen eat it, and that it is the staple and cheap nourish- 
 ment of the British laborer, whose health and strength are 
 models for emulation. . . 
 
 "The undersigned is informed that this almost universal testi- 
 mony met with a single objection: American pork is harmless to 
 Americans and other consumers, because they eat it cooked; is 
 harmful to German consumers, however, because they use it un- 
 cooked. In answer to this statement, may it not be urged that 
 6,000,000 Americans born in Germany or from parents who were 
 born in Germany probably retain to a great extent the tastes and 
 habits of their Fatherland in this particular? Yet it has never been 
 charged that American pork has done them any harm." (Foreign 
 Relations of the United States, i8pi, p. 506.) 
 
 Congress having provided, by the act of March 3, 1891, for the 
 inspection of cattle and hogs, the German Government intimated 
 its intention to accept the act as satisfactory and to repeal the 
 decree excluding American pork. It suggested, however, as con- 
 sideration, the removal of American duties on German sugar. But 
 the American Government was not willing to negotiate on that 
 basis. "The German Government," it was pointed out, "has 
 persistently adhered to the position that the origin and mainte- 
 nance of the pork prohibition was based on the absence of, or 
 imperfect, inspection of American pork, which, it was alleged, 
 exposed German consumers to disease. If that government rec- 
 ognizes the sufficiency of the present inspection, it hardly seems 
 reasonable to ask that the United States should purchase the 
 revocation of the prohibition by a promised concession of duties 
 on sugar. The President is disposed to treat with the German 
 Government respecting commercial reciprocity . . . with the 
 greatest spirit of liberality, and the prompt action of that govern- 
 ment regarding the pork inspection will have its due weight in 
 determining the terms of the reciprocity arrangement; but it 
 would hardly comport with the past contention of the German 
 Government to make the revocation of the prohibition dependent
 
 294 TARIFF AND THE REGULATION OF IMPORTS 
 
 upon an act having no relation to it." (Foreign Relations of the 
 United States, 1891, p. 511.) 
 
 The German decree of exclusion was repealed without condi- 
 tions on September 3, 1891, and American pork admitted on 
 certification of American inspection. 
 
 The grievances of American pork exporters, however, did not 
 cease with the repeal of the prohibition. Microscopical examina- 
 tion was expensive, and in the absence of disease in the United 
 States was felt to be unnecessary. Besides, the additional ex- 
 amination of American pork in Germany was vexatious and easily 
 gave rise to further misunderstanding. 
 
 In 1895 the report of the Secretary of Agriculture referred to 
 "the agrarian protectionists of Germany, who have instituted by 
 unjust discriminations every possible impediment to the consump- 
 tion of pork and beef from the United States in that Empire" and 
 suggested that "reciprocal certification of the chemical purity of 
 wines exported from those countries to the United States may some 
 time be demanded from the German and French Governments as 
 a sanitary shield to American consumers, for certainly American 
 meats are as wholesome as foreign wines." (House Documents, 
 54th Cong., ist Sess. [1895-96], vol. 74, p. 10.) 
 
 In a dispatch of November 20, 1897, Mr. Sherman, Secretary 
 of State, requested Mr. White, the American Minister at Berlin, 
 to make representations on the subject to the German Govern- 
 ment, in part, as follows: 
 
 "... You will bring the foregoing to the attention of the 
 Minister for Foreign Affairs, at the same time insisting that 
 
 "i. American pork as sent to Germany is practically harmless 
 and certainly far less dangerous than inspected German pork, 
 as is shown by the medical records of Germany. 
 
 "2. The discovery of trichinae in a few pieces of our pork when 
 reexamined abroad cannot be accepted as evidence of inefficient 
 inspection. The numerous cases of trichinosis in man which have 
 occurred in Germany from eating pork inspected there shows the 
 impossibility of discovering all trichinous meat by the first 
 inspection. 
 
 "3. As American pork is carefully inspected here before ship- 
 ment, it is unjust to our shippers to require them to pay the
 
 PRIVILEGES OF TRANSIT TO CHINESE LABORERS 295 
 
 expense of a second inspection after it arrives in Germany. This 
 expense, together with the damage from unpacking, exposure, 
 and hastily repacking, is a great obstacle to this important branch 
 of our commerce with the German nation." (Foreign Relations of 
 the United States, 1897, P- I 9 1 -) 
 
 In 1898 the American Consul at Cologne, in a report upon 
 trichinae in Germany, stated that the German inspection of Ameri- 
 can meats was "much more rigid than the tests for the German 
 home products." He added that "other expedients also appear to 
 be resorted to by self-constituted authorities in order to discour- 
 age and prevent the large consumption of American meats. There 
 is now pending before the court at Elberfeld, a town near Cologne, 
 a suit relating to a case of meat from America which was packed 
 in borax. It seems that the municipality of Cologne issued, through 
 the daily papers, a notice or warning to dealers that such meat 
 should not be handled or sold by them, alleging its use to be detri- 
 mental to the health of the consumer. Any citizen is permitted 
 under this order to file a complaint regarding this kind of meat. As 
 a consequence, when the Burgermeister [mayor] issues his edict or 
 warning, the dealers in meats are afraid to handle or sell the pro- 
 hibited products; and this is done in spite of the fact that the Em- 
 peror alone has the power to prescribe the manner of packing or 
 preparing human food." (House Documents, 55th Cong., 3d Sess. 
 [1898-90], vol. 89, pp. 
 
 33. TRANSIT FACILITIES 
 
 PRIVILEGES OF TRANSIT TO CHINESE LABORERS 
 
 (1882) 
 
 THE Attorney-General, in an opinion given to the Secretary of 
 State, December 26, 1882, held that Chinese laborers, hi transit 
 across the territory of the United States from one foreign country 
 to another, were neither emigrants nor Chinese coming to the 
 United States as laborers, within the Treaty of November 17, 
 1880, or the act of May 6, 1882, and further that they were not
 
 296 TRANSIT FACILITIES 
 
 required to produce the certificates of identification prescribed 
 by sections 4 and 6 of that act, provided that they established by 
 competent proof their transient status. This opinion was approved 
 by the Department of State and transmitted to the Secretary of 
 the Treasury, who revoked a contrary decision of his Department 
 of July 20, 1882, and adopted on January 23, 1883, regulations 
 permitting Chinese Consuls in the ports of the United States to 
 issue certificates to Chinese laborers arriving in transit. Such a 
 certificate was required wherever there was a resident Chinese 
 Consul, but if there was no such consul, other competent evidence 
 was receivable, such as a through ticket across the territory of the 
 United States, and affidavits. 
 
 (Extracts from Moore: Digest of International Law, vol. rv, 
 pp. 232-33.) 
 
 NAVIGATION OF THE MISSISSIPPI (1792) 
 
 THE question of the navigation of the Mississippi was the sub- 
 ject of consideration in the Continental Congress and of negotia- 
 tion at Madrid during the American Revolution, Spain demand- 
 ing the recognition of her claim to the exclusive navigation of the 
 river as a necessary condition of aid to the United States in their 
 struggle with Great Britain. 
 
 The treaty of peace between the United States and Great 
 Britain of 1782-83 declared (art. 8): "The navigation of the river 
 Mississippi, from its source to the ocean, shall forever remain 
 free and open to the subjects of Great Britain and the citizens of 
 the United States." 
 
 In 1790 the diplomatic representative of the United States at 
 Madrid was instructed to urge upon the Spanish Government the 
 immediate opening of the river. 
 
 In a report to the President of March 18, 1792, Mr. Jefferson, 
 as Secretary of State, asserted the right of the United States to 
 the free navigation of the Mississippi within the Spanish dominions 
 on the ground (i) of the Treaty of Paris of 1763, (2) of the treaty 
 of peace with Great Britain of 1782-83, and (3) of "the law of 
 nature and nations," a ground declared to be "still broader and 
 more unquestionable" than either of the others. "The ocean,"
 
 NAVIGATION OF THE MISSISSIPPI 297 
 
 said Mr. Jefferson, "is free to all men, and their rivers to all their 
 inhabitants. . . . Accordingly, in all tracts of country united 
 under the same political society, we find this natural right uni- 
 versally acknowledged and protected by laying the navigable 
 rivers open to all their inhabitants. When their rivers enter the 
 limits of another society, if the right of the upper inhabitants to 
 descend the stream is in any case obstructed, it is an act of force 
 by a stronger society against a weaker, condemned by the judg- 
 ment of mankind. . . . The Roman law, which, like other munici- 
 pal laws, placed the navigation of their rivers on the footing of 
 nature, as to their own citizens, by declaring them public (fiumina 
 publica sunt, hoc est populi Romani, Inst. 2, t. i, 2), declared also 
 that the right to the use of the shores was incident to that of the 
 water. 
 
 (Extract from Moore: Digest of International Law, vol. I, pp. 
 623-24.)
 
 CHAPTER VII 
 
 THE PROTECTION OF NATIONAL INTERESTS 
 ABROAD 
 
 34. BASIS OF PROTECTION 
 
 THE KOSZTA CASE (1853) 
 
 To the note of the Austrian Charge d'Affaires of August 29, 
 1853, Secretary of State Marcy replied in a note of September 
 26, 1853, as follows: 
 
 "To bring out conspicuously the questions to be passed upon, 
 it seems to the undersigned that the facts should be more fully 
 and clearly stated than they are in Mr. Hulsemann's note. 
 
 "Martin Koszta, by birth a Hungarian, and of course an Aus- 
 trian subject at that time, took an open and active part in the 
 political movement of 1848-49, designed to detach Hungary from 
 the dominion of the Emperor of Austria. At the close of that 
 disastrous revolutionary movement, Koszta, with many others 
 engaged hi the same cause, fled from the Austrian dominions, and 
 took refuge in Turkey. The extradition of these fugitives, Koszta 
 among them, was demanded and pressed with great vigor by 
 Austria, but firmly resisted by the Turkish Government. They 
 were, however, confined at Kutahia, but at length released, with 
 the understanding or by express agreement of Austria that they 
 should leave Turkey and go into foreign parts. Most of them, it 
 is believed, before they obtained their release, indicated the 
 United States as the country of their exile. It is alleged that 
 Koszta left Turkey in company with Kossuth this is believed 
 to be a mistake; and that he engaged never to return this is 
 regarded as doubtful. To this sentence of banishment for 
 such is the true character of their expulsion from Turkey Aus-
 
 THE KOSZTA CASE 299 
 
 tria gave her consent; in truth, it was the result of her efforts to 
 procure their extradition, and was accepted by her as a substi- 
 tute for it. She had agents or commissioners at Kutahia to at- 
 tend to then* embarkation, and to her the legal consequences of 
 this act are the same as if it had been done directly by herself, 
 and not by the agency of the Ottoman Porte. Koszta came to the 
 United States and selected this country for his future home. 
 
 "On the 3ist of July, 1852, he made a declaration, under oath, 
 before a proper tribunal, of his intention to become a citizen of 
 the United States and renounce all allegiance to any other state 
 or sovereign. 
 
 "After remaining here one year and eleven months, he returned, 
 on account, as is alleged, of private business of a temporary char- 
 acter, to Turkey in an American vessel, claimed the rights of a 
 naturalized American citizen, and offered to place himself under 
 the protection of the United States Consul at Smyrna. The con- 
 sul at first hesitated to recognize and receive him as such; but 
 afterwards, and sometime before his seizure, he, and the American 
 Charge d'Affaires ad interim at Constantinople, did extend pro- 
 tection to him, and furnished him with a tezkereh a kind of 
 passport or letter of safe-conduct, usually given by foreign con- 
 suls in Turkey to persons to whom they extend protection, as by 
 Turkish laws they have a right to do. It is important to observe 
 that there is no exception taken to his conduct after his return to 
 Turkey, and that Austria has not alleged that he was there for 
 any political object, or for any other purpose than the transac- 
 tion of private business. While waiting, as is alleged, for an op- 
 portunity to return to the United States, he was seized by a band 
 of lawless men freely, perhaps harshly, characterized in the 
 dispatches as 'ruffians,' 'Greek hirelings/ 'robbers' who had 
 not, nor did they pretend to have, any color of authority emanat- 
 ing from Turkey or Austria, treated with violence and cruelty, 
 and thrown into the sea. Immediately thereafter he was taken 
 up by a boat's crew lying in wait for him, belonging to the Aus- 
 trian brig-of-war the Huszar, forced on board of that vessel, and 
 there confined in irons. It is now avowed, as it was then suspected, 
 that these desperadoes were instigated to this outrage by the Aus- 
 trian Consul-General at Smyrna; but it is not pretended that he
 
 300 BASIS OF PROTECTION 
 
 acted under the civil authority of Turkey, but, on the contrary, 
 it is admitted that, on application to the Turkish Governor at 
 Smyrna, that magistrate refused to grant the Austrian Consul 
 any authority to arrest Koszta. 
 
 "The Consul of the United States at Smyrna, as soon as he 
 heard of the seizure of Koszta, and the Charg6 d'Affaires of the 
 United States ad interim at Constantinople, afterwards inter- 
 ceded with the Turkish authorities, with the Austrian Consul- 
 General at Smyrna, and the commander of the Austrian brig-of- 
 war, for his release, on the ground of his American nationality. 
 To support this claim, Koszta's original certificate of having 
 made, under oath, in a court in New York, a declaration of in- 
 tention to become an American citizen, was produced at Smyrna, 
 and an imperfect copy of it placed in the hands of the Imperial 
 Austrian Internuncio at Constantinople. The application to 
 these officers at Smyrna for his liberation, as well as that of Mr. 
 Brown, our Charg6 d'Affaires, to Baron de Bruck, the Austrian 
 Minister at Constantinople, was fruitless, and it became noto- 
 rious at Smyrna that there was a settled design on the part of 
 the Austrian officials to convey him clandestinely to Trieste 
 a city within the dominion of the Emperor of Austria. Oppor- 
 tunely, the United States sloop-of-war, the St. Louis, under the 
 command of Captain Ingraham, arrived in the harbor of Smyrna 
 before this design was executed. The commander of the St. 
 Louis, from the representation of the case made to him, felt it to 
 be his duty, as it unquestionably was, to inquire into the validity 
 of Koszta's claim to American protection. He proceeded with de- 
 liberation and prudence, and discovered what he considered just 
 grounds for inquiring into Koszta's claim to be discharged on ac- 
 count of his American nationality. During the pendency of this 
 inquiry, he received notice of the design to take Koszta clandes- 
 tinely, before the question at issue was settled, into the dominions 
 of the Emperor of Austria. As there was other evidence of bad 
 faith besides the discovered design of evading the inquiry, Cap- 
 tain Ingraham demanded his release, and intimated that he should 
 resort to force if the demand was not complied with by a certain 
 hour. Fortunately, however, no force was used. An arrangement 
 was made by which the prisoner was delivered into the custody
 
 THE KOSZTA CASE 301 
 
 of the French Consul-General, to be kept by hi until the United 
 States and Austria should agree as to the manner of disposing of 
 him. . . . 
 
 "His Imperial Majesty demands that the Government of the 
 United States shall direct Koszta to be delivered to him; that it 
 shall disavow the conduct of the American agents in this affair, 
 call them to a severe account, and tender satisfaction propor- 
 tionate to the outrage. 
 
 "In order to arrive at just conclusions, it is necessary to ascer- 
 tain and clearly define Koszta's political relation with Austria 
 and with the United States when he was seized at Smyrna. This 
 is the first point which naturally presents itself for consideration, 
 and perhaps the most important one in its bearings upon the 
 merits of the case. . . . 
 
 "The conflicting laws on the subject of allegiance are of a 
 municipal character, and have no controlling operation beyond 
 the territorial limits of jbhe_countries enacting them. All uncer- 
 tainty sis well as confusion on this subject is avoided by giving 
 due consideration to the fact that the parties to the question now 
 under consideration are two independent nations, and that neither 
 has the right to appeal to its own municipal laws for the rules to 
 settle the matter in dispute, which occurred within the jurisdic- 
 tion of a third independent power. 
 
 "Neither Austrian decrees nor American laws can be properly 
 invoked for aid or direction in this case, but international law 
 furnishes the rules for a correct decision, and by the light from 
 this source shed upon the transaction at Smyrna are its true fea- 
 tures to be discerned. 
 
 "Koszta being beyond the jurisdiction of Austria, her laws 
 were entirely inoperative in his case, unless the Sultan of Turkey 
 has consented to give them vigor within his dominions by treaty 
 stipulations. The law of nations has rules of its own on the sub- 
 ject of allegiance, and disregards, generally, all restrictions im- 
 posed upon it by municipal codes. 
 
 "This is rendered most evident by the proceedings of independ- 
 ent states in relation to extradition. No state can demand from 
 any other, as a matter of right, the surrender of a native-born or 
 naturalized citizen or subject, an emigrant, or even a fugitive 
 
 SANTA BARBARA STATE COLLEGE LIBRA*/
 
 302 BASIS OF PROTECTION 
 
 from justice, unless the demand is authorized by express treaty 
 stipulation. International law allows no such claim, though 
 comity may sometimes yield what right withholds. To surrender 
 political offenders (and in this class Austria places Koszta) is not 
 a duty; but, on the contrary, compliance with such a demand 
 would be considered a dishonorable subserviency to a foreign 
 power, and an act meriting the reprobation of mankind. As ren- 
 dering needless all further argument on this point, the undersigned 
 will recall to Mr. Hiilsemann's recollection what took place in 
 1849 an d 1850, hi relation to the reclamation of Polish refugees 
 in Turkey by Russia, and of Hungarian refugees (of whom Koszta 
 was one) by Austria. This demand was made in concert, as it 
 were, by two powerful sovereigns, while their triumphant armies, 
 which had just put an end to the revolutionary movements in 
 Hungary, stood upon the borders of Turkey, with power to erase 
 her name from the list of nations. She might well apprehend for 
 herself, as the nations of Western Europe apprehended for her, 
 that a refusal in her critical condition would put in jeopardy her 
 existence as an independent power; but she did refuse, and the 
 civilized world justified and commended the act. Both Austria 
 and Russia placed their respective demands on higher grounds 
 than a right of extradition under the law of nations; they at- 
 tempted to strengthen their claim by founding it upon the obliga- 
 tions of existing treaties the same, undoubtedly, that are now 
 urged upon the consideration of the United States. Russia and 
 Austria, however, both submitted to the refusal, and never pre- 
 sumed to impute to Turkey the act of refusal as a breach of her 
 duty or a violation of their rights. . . . 
 
 "It is to be regretted that this claim for the surrender of Koszta 
 and his companions, so fully considered then and so signally over- 
 ruled, should be again revived by Austria under circumstances 
 which make the United States a reluctant party in the contro- 
 versy. . *,^ 
 
 "Austria appears to have been aware that her right to seize 
 Koszta could not be sustained by international law, and she has 
 attempted to derive it from certain treaties, or 'ancient capitula- 
 tions, by treaty and usage.' The very slight and inexplicit manner 
 in which this authority is adverted to in Mr. Hiilsemann's note
 
 THE KOSZTA CASE 303 
 
 apparently indicates, if not a want of confidence in it, at least 
 a desire not to have it scrutinized. ... It is not shown or al- 
 leged that new treaty stipulations since 1849 have been entered 
 into by Turkey and Austria. The 'ancient capitulations' were 
 relied on to support the demand in that year for the surrender 
 of the Hungarian refugees; they were scrutinized, and no such 
 authority as is now claimed was found in them. ... On this sub- 
 ject it is allowable to resort to the declarations of the public men 
 of the Porte as evidence in regard to an issue of this kind. 
 Their explicit denial may be fairly considered as equivalent 
 to Austria's affirmation without proof, where proof, if it ex- 
 isted, could be so easily adduced. . . . There is now, how- 
 ever, something more decisive from Turkey than the opinion 
 of her public men in opposition to this treaty-claim of Austria. 
 The Government of the Porte has pronounced a judgment in 
 relation to the seizure of Koszta, which Austria herself is 
 bound to respect. It has protested against the conduct of the 
 Austrian agents in that affair as unlawful and as a violation 
 of its sovereignty; but not one word of complaint, not a murmur 
 of dissatisfaction, from Turkey against the conduct of the func- 
 tionaries of the United States at Smyrna has yet reached this 
 government. . . . 
 
 "But if^Austria really has such authority by treaties as she 
 now claims, it confessedly extends only to 'Austrian subjects.' 
 ... By the consent and procurement of the Emperor of Austria, 
 Koszta had been sent into perpetual banishment. The Emperor 
 was a party to the expulsion of the Hungarian refugees from Tur- 
 key. The sovereign by such an act deprives his subjects to whom 
 it is appfiedf of all their rights under his government. He places 
 them where he can not, if he would, afford them protection. By 
 such an act he releases the subjects thus banished from the bond 
 of allegiance. . . . 
 
 "The proposition that Koszta at Smyrna was not an 'Austrian 
 subject' can be sustained on another ground. By a decree of the 
 Emperor of Austria, of the 24th of March, 1832, Austrian sub- 
 jects leaving the dominions of the Emperor without permission 
 of the magistrate and a release of Austrian citizenship, and with 
 an intention never to return, become 'unlawful emigrants,' and
 
 304 BASIS OF PROTECTION 
 
 lose all their civil and political rights at home. (Ency. Amer., tit. 
 ^Emigration,' 2 Kent's Com. 50, 51.) 
 
 "Koszta had left Austria without permission, and with the 
 obvious and avowed intention never to return: he was, therefore, 
 within the strict meaning of the imperial decree, 'an unlawful 
 emigrant.' He had incurred and paid the penalty of that offence 
 by the loss of all his civil and political rights. ... It seems to 
 have been the very object of the Austrian decree to dissolve the 
 previous political connection between the 'unlawful emigrant' 
 and the Emperor. In Koszta's case it was dissolved. . . . 
 
 "The undersigned is brought, by a fair application of sound 
 principles of law, and by a careful consideration of the facts, to 
 this important conclusion: that those who acted in behalf of 
 Austria had no right whatever to seize and imprison Martin 
 Koszta. 
 
 "It will be conceded that the civil authority of Turkey, during 
 the whole period of the occurrences at Smyrna, was dormant, and 
 in no way called into action. Under these circumstances Aus- 
 tria without any authority, Turkey exercising none, and the 
 American functionaries, as Austria asserts, having no right in 
 behalf of their government to interfere in the affair, (a proposi- 
 tion which will be hereafter contested) what, then, was the 
 condition of the parties at the commencement of the outrage and 
 through its whole progress? They were all, in this view of the 
 case, without the immediate presence and controlling direction 
 of civil or international law in regard to the treatment of Koszta. 
 The Greek hirelings, Koszta, their victim, and the Austrian and 
 American agents, were, upon this supposition, all in the same 
 condition at Smyrna, in respect to rights and duties, so far as 
 regards that transaction, as they would have been in if it had oc- 
 curred in their presence in some unappropriated region lying far 
 beyond the confines of any sovereign state whatever; they were 
 the liege subjects of the law of nature, moral agents, bound each 
 and all alike to observe the precepts of that law, and especially 
 that which is confirmed by divine sanction, and enjoins upon all 
 men, everywhere, when not acting under legal restraints, to do 
 unto others whatsoever they would that others should do unto 
 them; they were bound to do no wrong, and, to the extent of their
 
 THE KOSZTA CASE 305 
 
 means, to prevent wrong from being done to protect the weak 
 from being oppressed by the strong, and to relieve the distressed. 
 In the case supposed, Koszta was seized without any rightful au- 
 thority. He was suffering grievous wrong; any one that could, 
 might relieve him. To do so was a duty imposed, under the pecul- 
 iar circumstances of the case, by the laws of humanity. Captain 
 Ingraham, in doing what he did for the release of Koszta, would, 
 in this view of the case, be fully justified upon this principle. 
 Who, in such a case, can fairly take offence? Who have a right to 
 complain? Not the wrongdoers, surely for they can appeal to no 
 law to justify their conduct; they can derive no support from 
 civil authority, for there was none called into action; nor from the 
 law of nature, for that they have violated. 
 
 "To place the justification of the American agents still further 
 beyond controversy, the undersigned will now proceed to show 
 that Koszta, when he was seized and imprisoned at Smyrna, had 
 the national character of an American, and the Government of 
 the United States had the right to extend its protection over 
 
 him. . . . 
 
 " Mr. Hiilsemann, as the undersigned believes, falls into a great 
 error an error fatal to some of his most important conclusions 
 by assuming that a nation can properly extend its protection 
 only to native born or naturalized citizens. Thhisno^ the doc- 
 trine of international law, nor is the practice of nations circum- 
 scribed within such narrow limits. ... It is a maxim of inter- 
 national law that domicile confers a national character; it does not 
 allow any one who has a domicile to decline the national charac- 
 ter thus conferred; it forces it upon him often very much against 
 his will, and to his great detriment. International law looks only 
 to the national character in determining what country has the 
 right to protect. If a person goes from this country abroad, with 
 the nationality of the United States, this law enjoins upon other 
 nations to respect him, in regard to protection, as an American 
 citizen. It concedes to every country the right to protect any and 
 all who may be clothed with its nationality. These are important 
 principles in their bearings upon the questions presented in Mr. 
 Hlilsemann's note, and are too obvious to be contested; but as 
 they are opposed to some of the positions taken by Austria, the
 
 306 BASIS OF PROTECTION 
 
 undersigned deems it respectful in such a case to sustain them by 
 reference to authorities. 
 
 "'The position is a clear one, that if a person goes into a foreign 
 country and engages hi trade there, he is, by the law of nations, 
 to be considered a merchant of that country, and a subject for all 
 civil purposes, whether that country be hostile or neutral.' (i 
 Kent's Com. 75.) 
 
 "Again: the same authority says that 'in the law of nations, as 
 to Europe, the rule is, that men take their national character 
 from the general character of the country in which they reside.' 
 (Ibid. 78.) . . . 
 
 "The most approved definitions of a domicile are the fol- 
 lowing: 
 
 "'A residence at a particular place, accompanied with positive 
 or presumptive proof of continuing there for an unlimited time.' 
 (i Binney's Reports, 349.) 'If it sufficiently appear that the in- 
 tention of removing was to make a permanent settlement, or for 
 an indefinite time, the right of domicile is acquired by a residence 
 of a few days.' (The Venus, 8 Cranch, 279.) 'Vattel has defined 
 domicile to be a fixed residence in any place, with an intention of 
 always staying there. But this is not an accurate statement. It 
 would be more correct to say that that place is properly the domi- 
 cile of a person in which his habitation is fixed, without any pres- 
 ent intention of removing therefrom.' (Story's Con. of Laws, 43.) 
 'A person who removes to a foreign country, settles himself there, 
 and engages in the trade of the country, furnishes by these acts 
 sucii evidence of an intention permanently to reside there as to 
 stamp him with the national character of the state where he re- 
 sides.' (The Venus, 8 Cranch, 279.) 
 
 "Apply these principles to the case under consideration, and 
 the inevitable result is that Koszta had a domicile in the United 
 States. He came to and resided in this country one year and 
 eleven months. He came here with the intention of making it his 
 future abode. This intention was manifested in several ways, but 
 most significantly by his solemn declaration upon oath. There 
 can be no better evidence of his design of making the United 
 States his future home than such a declaration; and to this kind 
 of evidence of the intention, the indispensable element of true
 
 THE KOSZTA CASE 307 
 
 domicile, civilians have always attached importance. (Philli- 
 more, 188.) . . . 
 
 "The establishment of his domicile here invested him with the 
 national character of this country, and with that character he ac- 
 quired the right to claim protection from the United States, and 
 they had the right to extend it to him as long as that character 
 continued. 
 
 "The next question is, Was Koszta clothed with that char- 
 acter when he was kidnapped in the streets of Smyrna, and im- 
 prisoned on board of the Austrian brig-of-war Huszar? The 
 national character acquired by residence remains as long as the 
 domicile continues. . . . To lose a domicile when once obtained, 
 the domiciled person must leave the country of his residence with 
 the intention to abandon that residence, and must acquire a 
 domicile in another. Both of these facts are necessary to effect a 
 change of domicile; but neither of them exists in Koszta's case. 
 The facts show that he was only temporarily absent from this 
 country on private business, with no intention of remaining per- 
 manently in Turkey, but, on the contrary, was at the time of 
 his seizure awaiting an opportunity to return to the United 
 States. . . . 
 
 "This right to protect persons having a domicile, though not 
 native-born or naturalized citizens, rests on the firm foundation 
 of justice, and the claim to be protected is earned by considera- 
 tions which the protecting power is not at liberty to disregard. 
 Such domiciled citizen pays the same price for his protection as 
 native-born or naturalized citizens pay for theirs. He is under 
 the bonds of allegiance to the country of his residence, and if he 
 breaks them incurs the same penalties; he owes the same obedience 
 to the civil laws, and must discharge the duties they impose on 
 him; his property is in the same way, and to the same extent as 
 theirs, liable to contribute to the support of the government. In 
 war he shares equally with them in the calamities which may be- 
 fall the country; his services may be required for its defence; his 
 life may be perilled and sacrificed in maintaining its rights and 
 vindicating its honor. In nearly all respects his and their condi- 
 tion as to the duties and burdens of government are undistin- 
 guishable; and what reasons can be given why, so far at least as
 
 308 BASIS OF PROTECTION 
 
 regards protection to person and property abroad as well as at 
 home, his rights should not be coextensive with the rights of native- 
 born or naturalized citizens? By the law of nations they have the 
 same nationality; and what right has any foreign power, for the 
 purpose of making distinction between them, to look behind the 
 character given them by that code which regulates national inter- 
 course? When the law of nations determines the nationality of 
 any man, foreign governments are bound to respect its deci- 
 sion. . . . 
 
 "There is another view of this case which places the conduct of 
 the agents of this government at Smyrna upon equally defensible 
 grounds. . . . 
 
 "By the laws of Turkey and other eastern nations, the con- 
 sulates therein may receive under their protection strangers and 
 sojourners whose religion and social manners do not assimilate 
 with the religion and manners of those countries. The persons 
 thus received become thereby invested with the nationality of the 
 protecting consulate. These consulates and other European es- 
 tablishments in the East, are in the constant habit of opening 
 their doors for the reception of such inmates, who are received 
 irrespective of the country of their birth or allegiance. It is not 
 uncommon for them to have a large number of such proteges. In- 
 ternational law recognizes and sanctions the rights acquired by 
 this connection. 
 
 "'In the law of nations as to Europe, the rule is, that men take 
 their national character from the general character of the country 
 hi which they reside; and this rule applies equally to America. 
 But in Asia and Africa an immiscible character is kept up, and 
 Europeans trading under the protection of a factory take their 
 national character from the establishment under which they live 
 and trade. This rule applies to those parts of the world from ob- 
 vious reasons of policy, because foreigners are not admitted there, 
 as in Europe "and the western part of the world," into the general 
 body and mass of the society of the nation, but they continue 
 strangers and sojourners, not acquiring any national character 
 under the general sovereignty of the country.' (i Kent's Com. 
 78-79.) 
 
 "The Lords of Appeals in the High Court of Admiralty in
 
 THE KOSZTA CASE 309 
 
 England decided in 1784, that a merchant carrying on trade at 
 Smyrna, under the protection of a Dutch Consul, was to be con- 
 sidered a Dutchman as to his national character. (Wheaton's 
 Inter. Law, 384; 3 Rob. Adm. Reports, 12.) 
 
 "This decision has been examined and approved by the emi- 
 nent jurists who have since written treatises on international 
 law. 
 
 "According to the principle established in this case, Koszta 
 was invested with the nationality of the United States, if he had 
 it not before, the moment he was under the protection of the 
 American Consul at Smyrna and the American Legation at Con- 
 stantinople. That he was so received is established by the tezkereh 
 they gave him, and the efforts they made for his release. . . . 
 
 "Having been received under the protection of these American 
 establishments, he had thereby acquired, according to the law of 
 nations, their nationality; and when wronged and outraged as he 
 was, they might interpose for his liberation, and Captain Ingra- 
 ham had a right to cooperate with them for the accomplishment of 
 that object. The exceptions taken to the manner of that coopera- 
 tion remain to be considered. . . . 
 
 "It has excited some surprise here that, after a consideration of 
 the circumstances, an impression should be entertained in any 
 quarter that Captain Ingraham either committed or meditated 
 hostility towards Austria on that occasion. . . . The first aggres- 
 sive act in this case was the seizure of Koszta at Smyrna, com- 
 mitted by the procurement of the Austrian functionaries; the first 
 improper use of a national ship, the imprisonment of Koszta 
 therein, was made by the commander of the Austrian brig Huszar. 
 That ship was converted into a prison for the illegal detention of 
 a person clothed with the nationality of the United States, and 
 consequently entitled to their protection. If Austria upholds, as 
 it appears she does, the conduct of the commander of the Huszar, 
 she is in fact the first aggressor. This act of the commander of the 
 Huszar led to the series of other acts which constitute the ground 
 of complaint against the United States. . . . 
 
 "There is a consideration probably not brought to the notice of 
 Austria, and not suffiicently regarded by others, which places the 
 acts of Captain Ingraham in a true light, and repels the inference
 
 310 BASIS OF PROTECTION 
 
 of intended hostile demonstrations towards Austria. It was the 
 understanding of the parties that Koszta should be retained at 
 Smyrna while the question of his nationality was pending. Cap- 
 tain Ingraham received satisfactory evidence of a design, on the 
 part of the Austrian functionaries at Smyrna and Constantinople, 
 to disregard this arrangement, and remove him clandestinely from 
 the Huszar on board of a steamer, for the purpose of taking him to 
 Trieste. . . . The captain of the St. Louis was placed hi the per- 
 plexing alternative of surrendering their captive, without further 
 efforts, to the sad fate which awaited him, or to demand his im- 
 mediate release, and, in case of refusal, to enforce it. ... It is 
 not just to Captain Ingraham to look at the affair as it was at the 
 precise point of time when the demand for the release of Koszta 
 was made. The antecedent events qualify and legalize that act. 
 The Austrian functionaries had obtained the possession of the per- 
 son of Koszta, not in a fair or allowable way, but by violating the 
 civil laws of Turkey and the rights of humanity. Under these cir- 
 cumstances, their custody of him was entitled to no respect from 
 the agent of the government which, by virtue of his nationality, 
 had a right to protect him. . . . 
 
 "The undersigned yields a ready assent to that part of Mr. 
 Hiilsemann's note relative to the war-making power. The doctrine 
 contained in it is sound, and well sustained by most approved 
 authorities; but the undersigned has not been able to discover its 
 applicability to the case under consideration. . . . 
 
 "Before closing this communication the undersigned will briefly 
 notice the complaint of Austria against Captain Ingraham for 
 violating the neutral soil of the Ottoman Empire. The right of 
 Austria to call the United States to an account for the acts of their 
 agents affecting the sovereign territorial rights of Turkey is not 
 perceived, and they do not acknowledge her right to require any 
 explanation. 
 
 "If anything was done at Smyrna in derogation of the sover- 
 eignty of Turkey, this government will give satisfactory explana- 
 tion to the Sultan when he shall demand it, and it has instructed 
 its minister resident to make this known to him. He is the judge, 
 and the only rightful judge, in this affair, and the injured party too. 
 He has investigated its merits, pronounced judgment against
 
 THE CASE OF DUBUC 311 
 
 Austria, and acquitted the United States; yet, strange as it is, 
 Austria has called the United States to an account for violating 
 the sovereign territorial rights of the Emperor of Turkey.. . . . 
 
 "The President does not see sufficient cause for disavowing the 
 acts of the American agents which are complained of by Austria. 
 Her claim for satisfaction on that account has been carefully 
 considered, and is respectfully declined. 
 
 "Being convinced that the seizure and imprisonment of Koszta 
 were illegal and unjustifiable, the President also declines to give 
 his consent to his delivery to the Consul-General of Austria at 
 Smyrna; but, after a full examination of the case, as herein pre- 
 sented, he has instructed the undersigned to communicate to Mr. 
 Hiilsemann his confident expectation that the Emperor of Austria 
 will take the proper measures to cause Martin Koszta to be re- 
 stored to the same condition he was in before he was seized in the 
 streets of Smyrna on the 2ist of June last." 
 
 President Pierce, in his annual message of December 5, 1853, 
 refers to this incident: "Under an arrangement between the agents 
 of the United States and of Austria, he [Koszta] was transferred 
 to the custody of the French Consul-General at Smyrna, there to 
 remain until he should be disposed of by the mutual agreement of 
 the consuls of the respective governments at that place. Pursuant 
 to that agreement, he has been released, and is now in the United 
 States." 
 
 (Moore: Digest of International Law, vol. m, pp. 824-35.) 
 
 35. NATIONALITY OF INDIVIDUALS 
 
 THE CASE OF DUBUC (1910) 
 
 The Secretary of State to Ambassador Bacon 
 
 DEPARTMENT OP STATE, 
 Washington, February 16, 1910. 
 
 Sir: I enclose a copy of a letter addressed to this Department 
 on January 31, 1910, by Mr. John Gibson Hale, of Chicago, 111., 
 inquiring whether Mr. R6n6 Dubuc, who was born in France, has
 
 312 NATIONALITY OF INDIVIDUALS 
 
 not yet attained his majority, and claims citizenship of the United 
 States through the naturalization of his father, may visit his native 
 land without fear of molestation on account of the military-service 
 laws. You will note that Mr. Hale states that some time ago he 
 addressed the French Minister of Justice in this matter, but has 
 received no response to his letter. 
 
 The Department desires you to present this case to the French 
 Government, explaining that Mr. Dubuc was naturalized as a 
 citizen of the United States through the naturalization of his 
 father under our law. You will inquire whether he would be held 
 liable to perform military service should he place himself within 
 French jurisdiction for a short time. 
 
 I am, etc., P. C. EJSTOX. 
 
 Ambassador Bacon to the Secretary of State 
 
 AMERICAN EMBASSY, 
 Paris, March 24, 
 
 Sir: Referring to the Department's No. 29, of February 16, 
 1910, 1 have the honor to forward herewith a copy and translation 
 of the note dated March 10, with memorandum, which I received 
 from the Minister of Foreign Affairs in reply to my query in pur- 
 suance of your instructions. . . . 
 
 As you will observe in the above-mentioned memorandum, in 
 the absence of conventions the French tribunals declare to be 
 French minor children of French parents naturalized in foreign 
 countries during their minority. Mr. Dubuc, according to French 
 law, is therefore French, and consequently subject to all the obliga- 
 tions of a Frenchman, notably those of military service. His 
 naturalization abroad will not cause him to lose his quality of 
 Frenchman except if it has been authorized by the French Gov- 
 ernment. (Art. 17, par. 2, of the Civil Code.) 
 
 Mr. Pichon further states that the Keeper of the Seals, after 
 informing him that Mr. Dubuc solicited, through the medium of 
 Mr. John Gibson Hale, attorney and counselor, Marquette Build- 
 ing, Chicago, the necessary authorization to become an American 
 citizen, in order that his naturalization be recognized in France, 
 has requested him to inform the petitioner that by reason of his
 
 THE CASE OF DUBUC 313 
 
 minority, he being born in Paris on February 20, 1890, he could 
 not now be authorized to change his nationality, and that after 
 the 26th of February, 1911, when he will have attained his major- 
 ity, if he persists in his intention, he should renew his request and 
 annex thereto his birth certificate, that of his father, and the natu- 
 ralization papers of the latter. 
 
 In compliance with this request the Minister of Foreign Affairs 
 states that he has instructed the French Consul at Chicago to 
 bring to the notice of Mr. Dubuc the above information. 
 
 I have, etc., ROBERT BACON. 
 
 [The translated memorandum communicated to Mr. Bacon by 
 the French Minister of Foreign Affairs is as follows:] 
 
 According to the terms of Article vm i of the French Code, is 
 French 
 
 Every individual born of a Frenchman in France or abroad. 
 
 Foreign naturalization obtained by a French father only pro- 
 duces, according to French legislation, strictly individual results 
 and is inoperative with a view to changing the French nationality 
 of his minor children born before his naturalization, even though 
 the legislation of certain foreign countries admits that the naturali- 
 zation of the head of the family produces a collective effect and 
 extends by right to his wife and his minor children. 
 
 In this case there is a conflict of laws a conflict which each 
 sovereign and independent nation settles by making the national 
 law prevail in its territory over the foreign law. 
 
 France has concluded with certain states notably Switzer- 
 land (Convention of July 23, 1879) and Belgium (Convention of 
 July 23, 1891) conventions with a view to the settlement of 
 the conflict of laws of this nature by the recognition for the benefit 
 of minors of a right of option for the nationality of their parents at 
 their majority. 
 
 No convention of this nature exists between France and the 
 United States. 
 
 In the absence of conventions the French tribunals, sole judges 
 of questions of nationality, declare to be French minor children 
 of French parents naturalized foreigners during their minority. 
 In this sense may be cited, notably:
 
 314 NATIONALITY OF INDIVIDUALS 
 
 The decision of the court of Besangon of July 30, 1902. (Gide 
 case, J. Dr. Int. Pr. [1903], p. 370.) 
 
 A decision of the Court of Appeal of Amiens of July 13, 1899 
 (Vacquerel case, /. Dr. Int. Pr. [1902], p. 837), has moreover 
 established that a child born in the United States of a French 
 father who had taken out his naturalization papers, but who was 
 not yet naturalized, was French, as being born of a father who had 
 not yet lost his quality of Frenchman at the time of his birth. 
 
 The child remaining French continues, moreover, subject to all 
 the obligations of a Frenchman, notably those of military service. 
 
 If he is still subject to military service for the active army his 
 naturalization abroad will not cause him to lose quality of French- 
 man except if his naturalization has been authorized by the gov- 
 ernment (art. 17, par. 2, of the Civil Code). 
 \ 
 
 The Secretary of State to Ambassador Bacon 
 
 DEPARTMENT OF STATE, 
 Washington, November n, IQIO. 
 
 Sir: . . . The Department desires that you ascertain, if pos- 
 sible, and report as to what fee, if any, must accompany Mr. 
 Dubuc's request for authorization to relinquish French national- 
 ity. The Department also desires to be informed to what official 
 Mr. Dubuc's request should be addressed. 
 
 I am, etc., P. C. KNOX. 
 
 Ambassador Bacon to the Secretary of State 
 
 AMERICAN EMBASSY, 
 
 Paris, November 30, /pro. 
 
 Sir: Referring to your instruction No. 159 of November n, 
 1910, relative to the nationality of Rene Dubuc, I have the honor 
 to inform you that upon inquiry at the Foreign Office I learn that, 
 in order for Mr. Dubuc to relinquish his French nationality, when 
 he becomes of age it will be necessary for him to apply, through 
 the French Consul at Chicago, to the Minister of Justice for such 
 authorization, and at the same time to pay a fee of 637 francs. 
 
 I have, etc., ROBERT BACON. 
 
 (Foreign Relations of the United States, ipio, pp. 514-16'.)
 
 JUS SANGUINIS AND JUS SOLI IN CHILE 315 
 
 JUS SANGUINIS AND JUS SOLI IN CHILE (1907) 
 Charge Janes to the Secretary of State 
 
 AMERICAN LEGATION, 
 Santiago, August 5, 1907. 
 
 Sir: I have the honor to transmit herewith a copy of an inter- 
 esting decision handed down on the i8th of July by the Court of 
 Appeals of Santiago. In this it is decided that a child born in 
 Chile of Spanish parents is not necessarily a Chilean citizen, and 
 that therefore the laws prescribing military service for all citizens 
 of this country cannot be enforced against him. This marks a 
 triumph of the principle of the jus sanguinis over ihejus soli. 
 
 The facts of the case are as follows: 
 
 A minor, the son of Spanish parents, Hector Garcia by name, 
 was summoned to do military service according to the Chilean 
 laws. Garcia refused to enroll himself as a Chilean soldier, stat- 
 ing that, although he was born in Chile, he was a Spanish subject, 
 and as such the duty of military service in Chile could not be de- 
 manded of him. Whereupon he was brought before a lower court 
 and sentenced to thirty days' confinement in jail. 
 
 Appeal was then taken from this decision to the higher court. 
 
 It appears that the appellant had been registered in the Spanish 
 Legation by his parents and that this entry had been duly trans- 
 mitted and reported to the Spanish Foreign Office. According to 
 the Spanish Constitution the children of Spanish parents are Span- 
 ish citizens, whether the birthplace of the offspring be Spain or a 
 foreign country. On the other hand, all persons born in Chile are 
 declared by article 6 of the Chilean Constitution citizens of that 
 country. In this conflict of the fundamental laws of the two 
 countries the court adopted the opinion of the great commentator 
 of the Chilean Constitution, Senor Jorje Huneeus, according to 
 whom, "in spite of the imperative terms hi which the clause head- 
 ing this article [clause i, article 5] is written, it does not impose 
 the character of Chilean citizenship, but only offers it to those who, 
 possessing the qualifications enumerated in the different pro- 
 visions included in this article, are freely willing to accept it, when, 
 at the same time, the citizenship of another country is offered to
 
 316 NATIONALITY OF INDIVIDUALS 
 
 them by the legislation in force in the latter." The parents of 
 Hector Garcia made use of the right of election possessed by their 
 son by registering him in the Spanish Legation. 
 
 The clerk of the court states that the government will not 
 carry the case further, but accepts the decision as it stands. 
 
 I have, etc., 
 
 HENRY L. JANES. 
 
 (Foreign Relations of the United States, ipo/, pp. 124-25.) 
 
 THE CANEVARO CLAIM 
 ITALY v. PERU 
 
 The Permanent Court of Arbitration at The Hague, 1912 
 
 THIS case, as far as the issue involved is concerned, is one of 
 the least important of the dozen or so that have been referred to 
 The Hague; but the fact that Peru was willing to submit her 
 domeslaw to the interpretation of an arbitral tribunal reveals 
 the possible extent of jurisdiction that may attach in time to an 
 international supreme court. 
 
 The subject-matter of the case was the claim of the brothers 
 Canevaro for the payment of a debt owing them by the Peruvian 
 Government. The history of the financial and legal transactions 
 leading up to the submission of the claim to The Hague is as 
 follows: 
 
 In 1880, the Government of Peru, then under the dictatorship 
 of Pierola, borrowed from the firm of Jose Canevaro & Sons, of 
 Lima, the sum of 77,000, to meet which were created pay checks 
 for that amount, payable at various periods. But the payments 
 were not made as stipulated, because of dvil disorders. 
 
 In 1883, on the death of Jose Canevaro, the firm was dissolved, 
 but in 1885 it was restored under the same name, the members 
 composing it being Jose Francisco and Cesar Canevaro, both of 
 whom were of Peruvian nationality, and Raphael Canevaro, who 
 could claim double nationality, having been born in Peru of an 
 Italian father. The same year (1885) a payment of 35,000 was 
 made on this debt, leaving 43,140 unpaid. By various measures 
 between 1886 and 1898, the Peruvian Government, in view of the
 
 THE CANEVARO CLAIM 317 
 
 depressed state of the national finances, placed the domestic debt 
 under severe regulation and provided for the redemption of its 
 bonds on terms unfavorable to the creditors. In order to dis- 
 credit all acts of Pierola, the government, by a law of October 26, 
 1886, announced that it would acknowledge only obligations 
 issued by the national bureaus up to January, 1880. The Cane- 
 varo transactions with Pierola dated from December 23, 1880, 
 and hence, on a literal interpretation of the law, might have 
 been invalidated; but as was pointed out by the tribunal in its 
 award, the terms of the agreement to arbitrate indicated that the 
 Peruvian Government had not excluded this claim from the 
 consideration accorded to the financial measures antedating " 
 Pierola's regime. 
 
 On June 12, 1889, provision was made by the government to 
 pay off the domestic debt by issuing one per cent bonds. At that 
 time the Canevaro company and its claim were undoubtedly 
 Peruvian and thus came within the scope of the law reducing the 
 value of any claim nationally owned. 9 
 
 In 1890 the company requested payment for the amount out- 
 standing, and in 1891 further pressed its claim, invoking in its 
 favor article 14 of the law of June 12, 1889, which provided more 
 liberal treatment for that part of the Peruvian* debt created to 
 provide for military measures against Chile. But the Peruvian 
 tribunals did not give the firm the benefit of this provision, be- 
 cause the obligation had been incurred, not for supplies furnished, 
 but to repay previous drafts. 
 
 The company ceased to exist in 1900, on the death of Jose 
 Francisco Canevaro, and the ownership of the claim in question 
 passed to the brothers Napoleon, Carlo, and Raphael Canevaro, 
 the first two of whom were Italians. It was by virtue of their 
 nationality that Italy became interested in the payment of the 
 claim, with the result that, on April 25, 1910, the Governments of 
 Italy and Peru made an agreement to submit the Canevaro claim 
 to arbitration, and a special tribunal of three, cwistituted under 
 the agreement, met at The Hague on April 20, 1912. The 
 arbitrators were M. Fusinato, of Italy, M. Calderon, Peru- 
 vian Minister at Brussels, and M. Renault, of Paris, who was 
 President.
 
 3l8 NATIONALITY OF INDIVIDUALS 
 
 The questions submitted to the tribunal were as follows: 
 
 "Ought the Peruvian Government to pay in coin, or in accord- 
 ance with the provisions of the Peruvian law on the domestic 
 debt of June 12, 1889, the drafts (lettres d ordre, cambiali, libra- 
 mientos) now in the possession of the brothers Napoleon, Carlo, 
 and Raphael Canevaro, and which were drawn by the Peruvian 
 Government to the order of the firm of Jose Canevaro & Sons for 
 the sum of 43,140 pounds sterling, plus the legal interest on the 
 said amount? 
 
 "Have the Canevaro brothers a right to demand the total of 
 the amount claimed? 
 
 "Has Count Raphael Canevaro a right to be considered as an 
 Italian claimant?" 
 
 The tribunal rendered its award May 3, 1912. Addressing 
 itself to the third question first, it decided that, in the matter of 
 the nationality of Raphael Canevaro, "the Government of Peru 
 has a right to consider him as a Peruvian citizen and to deny his 
 status as an Italian claimant." He had been born in Peru, and 
 thus by Peruvian law was a Peruvian, though by jus sanguinis 
 Italy might also claim him. The decisive fact, for the tribunal, 
 was the exercise of Peruvian citizenship by Raphael; he had been 
 a candidate for the Senate, and had even acted abroad in the 
 Peruvian consular service. This decision as to Raphael's national- 
 ity answered the second question, in effect; for it followed that 
 the tribunal had to pass judgment upon the claim only in so far 
 as it was owned by the brothers of Italian nationality. 
 
 The main question the method of payment depended 
 upon the significance of the nationality of the two Italian claim- 
 ants. Did the succession of Italians to the partial ownership of 
 what, when the law of 1889 was enacted, was a wholly Peruvian 
 claim, remove their share of the claim from the operation of 
 domestic law and require payment in gold? That the Canevaro 
 debt was subject to domestic law was acknowledged, in the 
 opinion of the tribunal, by the Canevaro firm itself when in 1891 
 it invoked article 14 of the law in question in order to get prefer- 
 ential treatment. The fact that the certificates issued in 1880 
 were to order and payable in pounds sterling did not give the debt 
 the status of a foreign holding, for it was a question "of a settle-
 
 THE CANEVARO CLAIM 319 
 
 ment of a domestic nature of evidences of debt created at Lima 
 and payable at Lima, in compensation for a payment made 
 voluntarily in behalf of the Peruvian Government;" and there 
 was nothing hi the circumstances attending the debt "to prevent 
 the Peruvian law from being applicable to evidences of debt 
 created and payable in the territory in which said law governed." 
 Thus only the change in ownership, if anything, could alter the 
 method of payment prescribed. 
 
 On this point, however, the tribunal held that the Italian 
 claimants had merely the rights that they had obtained from the 
 original owners, and that, too, whether succession were by en- 
 dorsement or inheritance. According to the Peruvian Code of 
 Commerce of 1902, "Endorsement subsequent to maturity is to 
 have the force only of an ordinary conveyance," while it is a 
 general rule, the tribunal pointed out, "that heirs receive prop- 
 erty in the condition it was in when in the possession of the 
 decedent." Hence the claim was completely within the operation 
 of the law of June 12, 1889. The contention that the claimants 
 were entitled to indemnity for delay hi payment was considered 
 by the tribunal to be outside the terms of submission. 
 
 In fixing the amount to be paid, the tribunal allowed interest 
 of 4 per cent per annum after December 23, 1880, until maturity 
 of the bonds, and thereafter 6 per cent until January i, 1889. 
 After the latter date, principal and interest, converted into bonds, 
 were to yield i per cent interest per annum in gold, until final 
 payment. 
 
 Accordingly, 
 
 "The arbitral tribunal decides that the Peruvian Government 
 shall, on July 31, 1912, deliver to the Italian Legation at Lima, 
 on account of the brothers Napoleon and Carlo Canevaro: 
 
 "i. In bonds of the domestic (i per cent) debt of 1889, the 
 nominal amount of 39,811 pounds, 8 shillings, and i penny ster- 
 ling upon the surrender of two-thirds of the bonds delivered on 
 December 23, 1880, to the firm of Jos6 Canevaro & Sons; 
 
 "2. In gold, the sum of 9,388 pounds, 17 shillings, i penny 
 sterling, constituting the interest at i per cent from January i, 
 1889, to July 31, 1912. 
 
 "The Peruvian Government may delay the payment of this
 
 320 EXPATRIATION AND PERPETUAL ALLEGIANCE 
 
 latter sum until January i, 1913, provided it pays interest thereon 
 at the rate of 6 per cent from August i, 1912." 
 
 (American Journal of International Law, vol. vi, pp. 709-12; 
 746-54; Revue Generale de Droit International Public [1913], vol. 
 xx, pp. 317-72; G. G. Wilson: The Hague Arbitration Cases.) 
 
 36. EXPATRIATION AND PERPETUAL ALLEGIANCE 
 
 PROFESSOR MOORE, in his Digest of International Law, gives 
 the following account of the diplomatic discussion between the 
 United States and Great Britain in regard to the matter of ex- 
 patriation, 1 especially with reference to the case of Warren and 
 Costello: 
 
 Early in 1866 the United States Consul at Dublin transmitted 
 to the Department of State a correspondence in relation to a num- 
 ber of naturalized citizens of the United States who had been 
 arrested and thrown into prison. It appeared by the correspond- 
 ence that the Lord Lieutenant of Ireland had declined to recognize 
 the interposition of the consul with respect to persons who were 
 originally British subjects, on the ground that they must still be 
 regarded as such. Mr. Seward, referring to this statement, ob- 
 served that there was a conflict between the laws of Great Britain 
 and those of the United States with regard to the effect of naturali- 
 zation, Great Britain declining to concede that a native British 
 subject could divest himself of his allegiance by renouncing it, 
 while the United States had maintained that the process of natu- 
 ralization completely absolved the person from his former allegi- 
 ance, and invested him "with the right equally with native-born 
 citizens to such protection and care of the Government of the 
 United States as it can, in conformity with treaties and the law of 
 nations, extend over him, wherever he may sojourn, whether in 
 the land of his nativity or in any other foreign country." The con- 
 flict, when once practically raised, could, said Mr. Seward, find 
 
 1 A concise yet sufficient consideration of this whole question of the doctrine of 
 expatriation will be found in J. B. Moore's American Diplomacy, pp. 168-99.
 
 THE WARREN AND COSTELLO CASES 321 
 
 a friendly adjustment only by concession, in the form of a treaty or 
 of mutual legislation, or of some form of arbitrament. The 
 answer of the Lord Lieutenant, if it should be adopted by Her 
 Majesty's Government, "must bring the question up for imme- 
 diate solution." Among the naturalized citizens of the United 
 States, in regard to whom the discrimination had been made, were 
 some who had borne arms in defense of the United States during 
 the Civil War. Her Majesty's Government could conceive "how 
 impossible it would be for the Government of the United States to 
 agree to a denial or abridgment of their right to extend to them 
 the same natural protection and care which the United States 
 extend to native-born citizens of the United States in similar 
 cases." 
 
 The foregoing cases grew out of the Fenian movement. In 
 consequence of the arrest of naturalized American citizens on 
 charges connected with this movement, the question of expatria- 
 tion assumed an acute form. Among the numerous cases arising 
 at that time, the most notable one, historically, is that of Warren 
 and Costello, two naturalized American citizens who were tried 
 and sentenced in Dublin, in 1867, for treason-felony, on account 
 of participation in the Jacmel expedition. It was shown that they 
 had come over to Ireland hi that vessel and had cruised along the 
 coast for the purpose of effecting a landing of men and arms, in 
 order to raise an insurrection. At their trial they claimed, as 
 American citizens, a jury de medietate lingua, which was then al- 
 lowed by the English law to aliens. The demand was refused on 
 the ground of their original British allegiance. This incident, to- 
 gether with others, produced an excitement that, as Mr. Seward 
 stated, extended "throughout the whole country, from Portland 
 to San Francisco and from St. Paul to Pensacola." The subject was 
 discussed in Congress, and exhaustive reports were made both in 
 the Senate and in the House of Representatives on the subject of 
 expatriation. The cause of the advocates of the right of voluntary 
 expatriation was greatly strengthened by the conclusion by Mr. 
 Bancroft, February 22, 1868, of the convention with the North 
 German Union, by which the naturalization of German subjects 
 in the United States, after an uninterrupted residence of five 
 years, was recognized. By an act of July 27, 1868, Congress de-
 
 322 EXPATRIATION AND PERPETUAL ALLEGIANCE 
 
 clared "the right of expatriation" to be "an inherent right of all 
 people," and pronounced "any declaration, instruction, opinion, 
 order, or decision of any officers of this government which denies, 
 restricts, impairs, or questions the right of expatriation" to be "in- 
 consistent with the fundamental principles of this government." 
 It was further declared that naturalized citizens of the United 
 States should, while abroad, be entitled to receive from the United 
 States "the same protection of persons and property that is ac- 
 corded to native-born citizens in like situations and circum- 
 stances." It was, moreover, declared that, whenever it should be 
 made known to the President that any citizen of the United States 
 had been unjustly deprived of his liberty by or under the authority 
 of any foreign government, it should be the President's duty 
 forthwith to demand of such government the reasons for the im- 
 prisonment, and, if it appeared to be wrongful and in violation 
 of the rights of American citizenship, forthwith to demand the re- 
 lease of such citizen, and, if the release was unreasonably delayed 
 or refused, to use such means not amounting to acts of war as 
 might be necessary and proper to obtain such release, and then, 
 as soon as practicable, to communicate all the facts and proceed- 
 ings to Congress. 
 
 (Extract from Moore: Digest of International Law, vol. in, pp. 
 579-80.) 
 
 THE CASE OF JOHN B. FOICHAT (1884) 
 
 JOHN B. FOICHAT was born in France, January 4, 1853. 1 I ^7o, 
 at the age of seventeen, he came to the United States, where, in 
 1883, he was admitted to citizenship. In August, 1883, he obtained 
 a passport and went to France, arriving there in the following 
 month. In November, 1884, he was arrested on the charge of 
 having failed to report for military service. He protested and, 
 exhibiting his naturalization papers and passport, demanded that 
 he be released. He was kept, however, two days and three nights 
 in the military prison at Chambery, and was then handcuffed and 
 taken to the military prison at Grenoble to be tried by court- 
 martial. He was detained at Grenoble four days, when he was re- 
 leased through the efforts of the United States Consul at Lyons.
 
 THE CASE OF JOHN B. FOICHAT 323 
 
 March 25, 1884, the American Minister at Paris was instructed 
 to look into the case and, if the facts were found to be as stated, to 
 present it to the Minister of Foreign Affairs, with an earnest request 
 that it might receive early and just consideration and that a reason- 
 able pecuniary indemnity might be paid. The French Government 
 admitted that the facts were substantially as stated, but denied 
 that they entitled the claimant to any compensation. In a note to 
 the American Legation, October 22, 1884, M. Ferry, Minister of 
 Foreign Affairs, said that Foichat was arrested on the charge of 
 insoumission, 1 and added: "Upon principle we have constantly 
 
 1 In a dispatch to Mr. Frelinghuysen, No. 665, November 13, 1884, Mr. Vignaud 
 makes an extended and interesting report on the French law of citizenship, especially 
 with regard to military service. The son of every Frenchman, says Mr. Vignaud, is 
 registered at the place of his birth if born in France, or at the place of his family's resi- 
 dence if bom abroad, as liable to military service. This registration forms in each 
 commune a recruiting list, which is drawn up every year by the mayor, who after- 
 wards sends it to the prefecture of the department, where it is combined with all the 
 other lists in a general one, comprising all men belonging to the department born 
 twenty years before. When the time comes each person on the list is notified to pre- 
 sent himself at a designated place. If he resides abroad the notice is served on him 
 through his consul or through members of his family residing in France. If he fails to 
 report, he is charged with the offense known to French law as " insubmissSon " (insou- 
 mission), and the police are ordered to arrest him when found. If, when arrested, he 
 does not resist, he is generally dealt with gently; if he resists, he is handcuffed and 
 treated roughly. The police deliver him to the military authorities as an insoumis, 
 and a court-martial proceeds to try him as such. If he pleads that he has renounced 
 his original nationality, the court-martial suspends action while the defendant appeals 
 to the civil courts. While this appeal is pending he is usually left at liberty. In the 
 civil court the course of procedure is by summons to the prefect of the department to 
 erase the individual named from the recruiting list. On production of duly authenti- 
 cated proofs of foreign nationality, by birth or by naturalization, the civil court 
 renders a judgment to the effect that the defendant, having ceased to be a French 
 citizen, cannot serve in the French army. The defendant is then sent back to the 
 military court. His name is erased from the military rolls; but he is then tried for 
 the offense of " insubmission " committed before the rendering of the judgment that 
 he had lost French nationality. If three years have elapsed since he was naturalized, 
 he is discharged by limitation. If such a period has not elapsed, he is sentenced to 
 a fine or to a few weeks' or months' imprisonment, or both, according to the circum- 
 stances. If he has lived a long time abroad, and the circumstances indicate that he 
 expatriated himself in good faith and not for the purpose of evading his military 
 obligations, the sentence is made as light as possible, if not altogether omitted; but, 
 in the contrary case, it is made as severe as possible. When, whether punished or 
 not, he is released by the military authorities, he is again turned over to the civil 
 authorities, who, if he is considered a bonafide foreigner, discharge him, but, in the 
 contrary case, order him to be expelled. " Nine times out of ten," says Mr. Vignaud, 
 "an order of expulsion awaits the Frenchman naturalized abroad who ventures to 
 come to France before having performed his military service. The interposition of 
 the legation in such cases is useless. The French Government is very sensitive on this
 
 324 EXPATRIATION AND PERPETUAL ALLEGIANCE 
 
 refused to admit that a Frenchman, naturalized in a foreign coun- 
 try, can be exempted if he returns to France from being answerable 
 for the offense of insubmission, when the naturalization has taken 
 place subsequently to the existence of the offense. You will 
 understand that we cannot abandon this jurisprudence, which is 
 
 point, and will listen to no request tending to allow one who has averted military 
 service by placing himself under a foreign flag to remain unmolested, and apparently 
 in defiance of the French military laws, in the midst of those who are rigorously held 
 to obey them. We have occasionally obtained a short extension of the time allowed 
 for leaving France. We have never secured the revocation of an order of expulsion 
 issued under such circumstances." (Moore: Digest of International Law, vol. in, 
 pp. 594-95 ) 
 
 The following "notice to citizens formerly subjects of Italy who contemplate re- 
 turning to that country" was issued by the Department of State at Washington, 
 March 18, 1901: 
 
 "The information given below is believed to be correct, yet it is not to be consid- 
 ered as official, as it relates to the laws and regulations of a foreign country. 
 
 "Italian subjects between the ages of twenty and thirty-nine years are liable for 
 the performance of military duty under Italian law, except in the case of an only son, 
 or where two brothers are so nearly of the same age that both would be serving at 
 the same time, in which event only one is drafted, or when there are two sons of a 
 widow, when only one is taken. 
 
 "Naturalization of an Italian subject in a foreign country without consent of the 
 Italian Government is no bar to liability to military service. 
 
 "A former Italian subject may visit Italy without fear of molestation when he is 
 under the age of twenty years; but between the ages of twenty and thirty-nine he is 
 liable to arrest and forced military service, if he has not previously reported for such 
 service. After the age of thirty-nine he may be arrested and imprisoned (but will not 
 be compelled to do military duty) unless he has been pardoned. He may petition the 
 Italian Government for pardon, but this Department will not act as the inter- 
 mediary in presenting his petition." (Moore: Digest of International Law, vol. in, 
 pp. 615-16.) 
 
 The outcome of the case of Vittorio Gardella was exceptional to this procedure. 
 It appeared that he was born in Italy in 1861 and was taken to the United States 
 when only six years of age. He was naturalized in 1884. He resided in the United 
 States continuously from 1877 to 1895, his home being in the city of New York 
 where he had a wife and family. He was on a visit to Italy when he was drafted into 
 the army. On October 19, 1896, Mr. MacVeagh, United States Ambassador at Rome, 
 brought the case personally to the attention of the Italian Minister for Foreign Af- 
 fairs, the Marquis Visconti Venosta, and obtained Gardella's release in the form of 
 a grant of unlimited leave, which did not formally waive the contention of the Italian 
 Government. Indeed, the Marquis Visconti Venosta, in informing Mr. MacVeagh 
 of Gardella's release, observed that while he had no doubt lost his Italian citizenship 
 by virtue of article u, paragraph 2, of the Italian Civil Code, he nevertheless re- 
 mained "liable to military service in the Kingdom, according to the peremptory 
 provisions of the succeeding article 12," and that the case of Gardella had been dis- 
 posed of " in an exceptional way " in view of his exceptional situation, of certain amend- 
 ments which were expected to be made in the law regulating the levy of persons re- 
 siding abroad when enlisted, and of the interest which Mr. MacVeagh took in 
 the case. (Condensed extract from Moore: Digest of International Law, vol. ra, 
 pp. 614-15.)
 
 THE CASE OF THE CARACAS WATERWORKS 325 
 
 dictated by a question of public order of a most important char- 
 acter, and against which the Government of the United States 
 would be all the less founded in protesting, as it is in conformity 
 with one of the principal provisions which appear in the treaties 
 of naturalization concluded by it with certain powers." M. Ferry 
 then cited article 2 of the treaty between the United States and 
 the North-German Union of February 22, 1868, to the effect that 
 a naturalized citizen remains punishable for offenses committed 
 prior to his emigration, subject to the statutes of limitation. 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 ni, p. S93-) 
 
 37. PROTECTION OF THE LIFE, LIBERTY, AND PROPERTY 
 OF NATIONALS WITHIN ANOTHER STATE 
 
 THE many important cases which fall under this heading will 
 be found in other sections. 
 
 38. NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 THE CASE OF THE CARACAS WATERWORKS 
 (COMPAGNIE GfiNfiRALE DES EAUX DE CARACAS) 
 
 Belgian-Venezuelan Mixed Claims Commission, 1903 
 
 Filtz, Umpire: 
 
 "The umpire having examined and studied the documents in 
 the record and considering: 
 
 "That article i of the protocol of Washington declares that the 
 Commission has jurisdiction to examine and decide all Belgian 
 claims against the Republic of Venezuela which have not been 
 settled by diplomatic agreement between the two governments, 
 and which may have been presented to the commission by the 
 Belgian Government or by the Legation of Belgium at Caracas; 
 
 "That the present claim has not been settled by diplomatic 
 agreement between the two governments, and that it has been pre-
 
 326 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 sented to the commission by the agent of the government at 
 Caracas; 
 
 "That the claimant company's Belgian character has not been 
 disputed, and that it has not lost it, because among the holders of 
 the bonds which have been issued by the Government of the 
 Republic persons of a different nationality are found; 
 
 "For these reasons declares that the commission has jurisdic- 
 tion and orders that it proceed to decide upon the merits without 
 delay." 
 
 (Venezuelan Arbitrations of ipoj, prepared by J. H. Ralston 
 [Washington, 1904], pp. 275-76.) 
 
 THE ALSOP CLAIM 
 
 Award pronounced by His Majesty King George V as Amiable Compositeur between the 
 United States and Chile, July 5, 
 
 Tms claim, like many others pressed against the Latin-Ameri- 
 can states, had its origin in the unstable economic and political 
 conditions so often found in those countries. Though finally as- 
 sumed by Chile, it arose out of transactions had by the Bolivian 
 Government with one Pedro Lopez Gama, a Brazilian, who, by 
 various contracts between 1860 and 1876, had acquired extensive 
 rights in the development of the guano industry. He was assisted 
 in his financial arrangements by the firm of Alsop and Company, 
 the members of which were American citizens, though the firm 
 itself was registered in Chile. In 1875 Gama assigned all his 
 claims against Bolivia to the Alsops, and in 1876 this assignment 
 was recognized by the Bolivian Government through an agree- 
 ment entered into with Mr. Wheelwright, the liquidator of the 
 Alsop firm, looking to the discharge of all obligations due by 
 Bolivia to Gama. This, known as the Wheelwright contract, was 
 the basis of the claim in question, and under it Bolivia admitted 
 an indebtedness to Alsop and Company of 835,000 bolivianos 
 with interest at the rate of five per cent per annum, not compound- 
 
 1 Having decided this preliminary question of jurisdiction, the umpire in his 
 decision as to the merits of the case allowed damages to the amount of 10,565,199.44 
 bolivars, or about three-fourths of the claim. In making this award the umpire 
 gave as one of his grounds: "It is not to be considered whether foreign bondholders 
 can indirectly take advantage of its action [to recover the damages]."
 
 THE ALSOP CLAIM 327 
 
 able. This debt was to be liquidated by liens on customs receipts 
 and by concessions in the operation of government silver mines. 
 At that time the customs duties for the coast provinces of Bolivia 
 were collected at the Peruvian port of Arica under an arrange- 
 ment whereby the duties were divided between the two states 
 without any further revenue collections at the Bolivian frontier. 
 By the contract with Wheelwright, Bolivia agreed to apply 
 toward the liquidation of the Alsop claim the sums by which the 
 Bolivian share of the customs duties exceeded 405,000 bolivianos 
 annually. Bolivia was expecting a new arrangement with Peru 
 under which her revenue would be materially increased, and this 
 was the surplus contemplated in the Wheelwright contract. 
 The mining privileges applied to certain "estacas" or areas which, 
 under Bolivian mining law, were reserved to the government. 
 The right to operate these was given to Alsop and Company, 
 sixty per cent of the net proceeds to go to the firm and forty per 
 cent to the government. The latter share, however, was not 
 actually to be paid to Bolivia, but was to be retained by the Alsops 
 and used in liquidation of the debt. 
 
 In 1879 war broke out between Bolivia and Chile and a few 
 months later Peru was involved as well. One of its results was, 
 that the port of Arica, together with the coast of Bolivia, came 
 under the military occupation of Chile, and thus Bolivia was un- 
 able to discharge her obligations under the Wheelwright contract. 
 This temporary occupation became permanent under the Pact of 
 Indefinite Truce in 1884 and Chilean sovereignty over the Bo- 
 livian coast was finally recognized by treaty in 1904. In the mean- 
 time, the Peruvian port of Arica had been ceded to Chile in 1883, 
 and under the Pact of 1884 a new customs agreement had been 
 made between Chile and Bolivia, whereby twenty-five per cent 
 of the receipts were to be retained by Chile and forty per cent 
 more in satisfaction of war claims against Bolivia; the remaining 
 thirty-five per cent went to Bolivia. From 1880 the date of 
 the occupation of Arica to 1884, Chile had levied the duties 
 by virtue of her right as military occupant and had appropriated 
 the revenues to her own purposes, giving no recognition to the 
 Alsop claim to a share of the receipts. 
 
 The mining operations proved equally unsatisfactory to the
 
 328 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 firm. Even under Bolivian sovereignty it had been difficult to 
 get possession in all cases and many of the properties had not 
 come under the firm's control at the outbreak of war. After oc- 
 cupation by Chile, Bolivia was no longer able to give possession, 
 for Chile regarded the "estacas" as Bolivian public property and 
 hence passing to Chile as conqueror. The rights of the firm were 
 not regarded as "real" rights except where possession had actually 
 been entered upon, and, on this ground, the Chilean courts re- 
 fused to recognize title on the part of the firm to some of the prop- 
 erties claimed under the Wheelwright contract. 
 
 Failing to get settlement from either Chile or Bolivia, the firm 
 invoked action by the Government of the United States. While 
 still considering Bolivia as liable for the original debt under the 
 Wheelwright contract, the Government of the United States 
 contended that a claim for the amount might justly be made upon 
 Chile. This was done before the Claims Commission of 1890, and 
 again in 1894, but was dismissed on the ground that the firm was 
 a "juridical entity possessing Chilean nationality." The same 
 treatment was given to the claim by another Claims Commission 
 in 1901, but on that occasion the agent of Chile made the state- 
 ment that "in order to induce the Bolivian Government to sign 
 the definite treaty of peace which has been negotiated for many 
 years, the Chilean Government offers to meet this and other 
 claims as part of the payment or consideration which it offers to 
 Bolivia for the signature of the treaty." To that end it was finally 
 agreed by treaty in 1904 that Chile should appropriate 2,000,000 
 pesos in gold to discharge certain obligations of Bolivia, among 
 which the Alsop claim was specified, and 4,500,000 for certain 
 other claims. As the claims exceeded the amount designated, 
 payment was to be made pro rata. In a note explanatory of the 
 treaty, the Chilean Government, through its negotiator, considered 
 "that the obligation which Chile contracts by article 5 of the said 
 treaty comprises that of arranging directly with the two groups 
 of creditors recognized by Bolivia for the permanent cancellation 
 of each of the claims mentioned in said article, thus relieving 
 Bolivia of all subsequent liabilities." 
 
 Having assumed this liability, the Chilean Government offered 
 a certain sum in settlement, but the Government of the United
 
 THE ALSOP CLAIM 329 
 
 States refused it "as being insufficient to satisfy either the just 
 claim of Alsop and Company on Bolivia or Chile, or the liability 
 which Chile has herself undertaken on behalf of Bolivia." Upon 
 failure to arrive at a diplomatic settlement, the two governments 
 on December i, 1909, agreed upon a protocol wherein they sub- 
 mitted the whole controversy to His Majesty, Edward VII, who, 
 as amiable compositeur, was empowered to determine the amount, 
 if any, equitably due the claimants in the Alsop claim. 
 
 King Edward died before he could act in accordance with the 
 protocol, but on request of the parties George V consented to take 
 his place. To assist him in arriving at an award, His Majesty 
 designated a commission of three Lord Desart, Lord Robson, 
 and C. J. Hurst to study all necessary documents and to sub- 
 mit a report as to the amount equitably due. In their report, 
 which became the basis of the award, the commissioners denned 
 the function of an amiable compositeur to be one " of pronouncing 
 an award which shall do substantial justice between the parties 
 without attaching too great an importance to the technical points 
 which may be raised on either side." In accordance with the re- 
 port, King George rendered his award on July 5, 1911. 
 
 In its case and counter-case in support of the claim, the Gov- 
 ernment of the United States emphasized the fact that "the firm 
 of Alsop and Company, whatever its status may have been as a 
 matter of mere legal fiction, was in essence and in fact wholly 
 American, and that its members, being American citizens, in- 
 vesting their own American capital, the Government of the 
 United States had a right to make and to continue to make its 
 representations in behalf of these American citizens, and for the 
 protection of this American property in respect to any and all 
 actions which in the judgment of the Government of the United 
 States were injurious and contrary to the law of nations." Several 
 precedents were cited in support of its action, among them the 
 Cemiti case in Colombia and the Delagoa Bay Railway case. 
 The real parties in interest were not "the artificial entity of Alsop 
 and Company, but the American citizens who composed the 
 firm," or, as the protocol put it, " the claimants in the Alsop claim," 
 all of whom were citizens of the United States. As to the merits 
 of the claim itself, the position of the United States was clear: it
 
 330 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 considered the Wheelwright contract as "legal, valid and equitable 
 in all its parts" and to be regarded as existing until the debt was 
 satisfied. The debt was originally due from Bolivia and that 
 state still remained liable until it was paid with interest. The 
 United States did not contend that Chile was liable upon the 
 Wheelwright contract, for such an obligation was personal to 
 Bolivia as a state, and did not pass with the transfer of the con- 
 quered provinces. The claim in question was preferred against 
 Chile on other grounds. Chile had arbitrarily appropriated funds 
 from the Arica customs which under the contract were vested 
 property rights; hence Chile became responsible for money which 
 otherwise would have been remitted to Bolivia, and by her 
 to the Alsops. In effect, the contract had assigned to that 
 firm all the receipts at Arica except the 405,000 bolivianos, 
 and "such assignment . . . was a transaction which could toot 
 be set aside and constituted an arrangement which Chile was 
 bound to respect." In this it resembled the case of the Silesian 
 loan. 
 
 Chile was further under liability, the United States contended, 
 because she had "interfered with and failed to vindicate the 
 mining rights given to the concessionaries." The United States 
 maintained that the contract of 1876 had obtained for the Alsops 
 "an absolute lease of the mines for a period of twenty-five years, 
 creating a vested right in the firm to the possession of the mines, 
 which the Government of Chile were bound to treat as the prop- 
 erty of Alsop and Company," since, in modern practice, private 
 rights suffer no confiscation at the hands of a conqueror. 
 
 Finally, the United States considered Chile responsible for the 
 payment of the claim by reason of "repeated promises and diplo- 
 matic undertakings" made by the Government of Chile to the 
 Government of the United States as well as to the Government of 
 Bolivia, especially in the Treaty of 1904, by which "the obliga- 
 tion of Chile to meet the contract was complete and unlimited," 
 and in the "secret" notes, in which Chile had made declaration 
 that she recognized the freedom of Bolivia from all liability. 
 
 The Government of Chile on its part, contended that the 
 claim was not one for the United States to press, for quoting the 
 Commission of 1901, the firm of Alsop and Company "was duly
 
 THE ALSOP CLAIM 331 
 
 created, incorporated, and registered under the Chilean law," 
 and hence was a juridical person of Chilean domicile. This left 
 the claim a matter for the Chilean courts, not for diplomacy, but 
 on no occasion had the Alsops "put forward the slightest claim, 
 either to the Government of Chile or to her tribunals, for the pay- 
 ment of this debt." As to the Wheelwright contract, no liability 
 in any of its parts could attach to Chile. The customs at Arica 
 had been merely a matter of arrangement between Bolivia and 
 Peru, the sovereign of Arica. When Chile entered Arica, she ap- 
 propriated the customs receipts as legitimate occupant in ac- 
 cordance with the principles of international law. The revenues 
 at Arica had not been encumbered with any local charges that 
 might be construed as going with the land. Only the sovereign 
 could make such an assignment, and Peru had never done so. 
 Bolivia had merely designated part of her income to satisfy a 
 particular obligation. This was a personal undertaking, and 
 when her expected source of income was cut off, Bolivia and 
 her creditors must look to other arrangements. Chile, however, 
 had gone further than required and had agreed to give Bolivia 
 a large share of the customs receipts at Arica. If Bolivia did 
 not satisfy claims against her from these, Chile could not be held 
 responsible. 
 
 In the matter of the mines, Chile maintained that Bolivia had, 
 in the first instance, no valid title to the territory in which they 
 were situated; it was Chilean, and Chile had lawfully recovered 
 it by war and was under no necessity to recognize the Alsop con- 
 cessions. Even if Bolivia's grants were valid, there was no duty 
 to respect them, "as the claims did not arise from debts contracted 
 by Bolivia for the special benefits of this territory, but for the 
 general purposes of the whole of Bolivia, and Bolivia remained 
 liable to pay Alsop and Company from other sources." The min- 
 ing concessions, according to the Chilean argument, were not 
 "real" rights which a conqueror was bound to respect, but only 
 rights held under a contract of anticresis, that is, a contract 
 "whereby there is delivered to the creditor a real property in 
 order that he may pay himself out of the proceeds." When the 
 mines were in actual possession of the firm, their rights had been 
 recognized by Chile; other cases were for the courts to decide.
 
 332 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 That the Alsops had to undertake much litigation did not im- 
 pose upon Chile any liability for claims, as long as there had been 
 no denial of justice in Chilean courts. 
 
 In the last place, Chile considered that she had given no under- 
 taking applicable to the claim in question other than that con- 
 tained in the treaty with Bolivia in 1904. While admitting some 
 liability assumed, she contended that the satisfaction of the Alsop 
 claim was to be limited to the pro rata share of the amount set 
 aside in the treaty. Chile stood ready to pay to that extent; in- 
 deed, had made offers to that end, and, falling acceptance by the 
 claimants, would make payment to the Bolivian Government, 
 leaving the latter to settle the claim. The notes cited in the argu- 
 ment of the United States did not modify the treaty in any re- 
 spect, but were only "intended to insure that Bolivia should 
 finally be relieved from any liability under the Wheelwright con- 
 tract by the payment of the sum provided in article 5 of the 
 treaty: . . . their purpose was in fact to insure that Chile should 
 not pay to any of the claimants their proportion of the 6,500,000 
 pesos without procuring from the claimants a full discharge so 
 that no further claim could be preferred either against Bolivia 
 or Chile." 
 
 In their report to King George the commissioners found no 
 responsibility attaching to Chile under the Wheelwright contract 
 itself. Bolivia had at no time been sovereign of Arica, and hence 
 could put no lien upon its customs. When the Chilean occupa- 
 tion took place, the effect was "to put it out of the power of Peru 
 to carry out the agreement of 1878; consequently, Bolivia's right 
 to any share in the customs collected at Arica determined from 
 that moment." The precedent of the Silesian loan was not ap- 
 plicable, for in that case the customs revenues had been assigned 
 by the sovereign of the territory affected. "The result is," the 
 report went on to say, "that with regard to this part of the case 
 we can only report to Your Majesty that the Wheelwright con- 
 tract effected no assignment or hypothecation of the Arica cus- 
 toms, that the arrangement embodied in article 2 of that contract 
 was not binding on Chile, that Chile in appropriating the pro- 
 ceeds of the Arica customs, either before or after the Pact of In- 
 definite Truce in 1884, did not receive the money to the use of
 
 THE ALSOP CLAIM 333 
 
 Alsop and Company, and that the claim under this head for 
 $2,337,384.28 payable in gold is not sustainable." 
 
 On the question of the mining concessions the commission re- 
 ported equally adversely to the claimants. In its opinion, "the 
 rights which Alsop and Company possessed under the Wheel- 
 wright contract to work a particular 'estaca' was merely a con- 
 tractual right against Bolivia; until they had secured possession 
 of the 'estaca,' they had nothing which could fairly be described 
 as property." The occupation transferred the "estacas," being 
 government property, to Chile, but did not bind Chile in any way 
 to give possession to the Alsops; "she was under no obligation to 
 facilitate the transfer of the 'estacas' to Alsop and Company in 
 order that they might use them to obtain money for the pay- 
 ment of a debt owing by Bolivia." Chile had respected actual 
 possession; as regards "estacas" claimed but not obtained, 
 it could hardly be maintained that damages had been suf- 
 fered, even if Chilean law had refused possession, for oper- 
 ation of the mines, as a whole, had been unprofitable, and 
 thus, apart from all technicalities, there was no equitable claim 
 to indemnity. 
 
 The commission, however, considered Chile responsible for the 
 claim on the ground that she had undertaken to pay it. Such an 
 undertaking was not found in any promise given or statement 
 made to the Government of the United States, but in the treaty 
 with Bolivia in 1904 and in the two notes of the same year. The 
 contention of Chile that Bolivia was to be relieved from all her 
 liability by a part payment of it by Chile, did not recommend 
 itself to the commissioners. "The more natural construction of 
 the wording of the two notes is, that they were intended to re- 
 lieve Bolivia altogether of any further liability under these claims, 
 whether the proportionate share of the six and a half millions was 
 accepted in final settlement or not." Bolivia had reluctantly 
 parted with her coast provinces, and the consideration was this 
 very freedom from all liability for the claims specified in the 
 treaty. Hence, if the intention expressed in the notes was to be 
 carried out, Chile would have to relieve Bolivia of all liability, 
 and if the Wheelwright contract was to be fulfilled, she must 
 make complete payment.
 
 334 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 In accordance with the report King George rendered his award 
 as follows: 
 
 "Whereas, after mature consideration we are fully persuaded 
 of the wisdom and justice of the said report; 
 
 "Now therefore we, George, by the Grace of God, of the United 
 Kingdom of Great Britain and Ireland and of the British Domin- 
 ions beyond the Seas King, Defender of the Faith, Emperor of 
 India, do hereby award and determine that the sum of two mil- 
 lion two hundred and seventy-five thousand three hundred and 
 seventy-five bolivianos is equitably due to the representatives of 
 Alsop and Company. 
 
 "Given in triplicate under our hand and seal at our Court of 
 St. James', this fifth day of July, one thousand nine hundred and 
 eleven in the second year of our reign. 
 
 "GEORGE R.L" 
 
 (Award, Cases, and Appendices, published by Government 
 Printing Office, Washington, 1910-11; American Journal of In- 
 ternational Law [1911], vol. v, pp. 1079-1107.) 
 
 THE DELAGOA BAY RAILWAY ARBITRATION 
 
 Special Arbitral Tribunal at Berne, 1900 
 
 THIS was a case where two governments intervened to protect 
 interests held by their nationals in a foreign corporation when its 
 assets were endangered by the action of the government legally 
 entitled to control it. The circumstances leading to the arbitra- 
 tion were as follows: 
 
 On December n, 1875, in a protocol annexed to a treaty of 
 amity and commerce between Portugal and the Transvaal, it 
 was stipulated that railway communication should be instituted 
 between the port of Lourenfo Marques and some point in the 
 Transvaal, each party to promote construction within its own 
 territory. No steps, however, were taken to realize the under- 
 taking until December 14, 1883, on which date the Portuguese 
 Government granted to Colonel Edward MacMurdo, a citizen 
 of the United States, the exclusive right to construct a railway 
 from Lourenjo Marques "to the frontier (as yet undetermined)
 
 THE DELAGOA BAY RAILWAY ARBITRATION 335 
 
 separating Portuguese territory from the territory of the Trans- 
 vaal." The contract governing the concession required Mac- 
 Murdo to organize a company within six months from the date 
 of the contract and to complete construction within three years 
 after his plans had been approved by the Portuguese Govern- 
 ment. The concession carried with it the exclusive right to 
 operate the road for ninety-nine years, at the end of which time 
 it was to become the property of the government. By article 2 
 the government promised neither to construct, nor to grant a 
 concession for, any other railway leading to the Transvaal within 
 a zone of one hundred kilometers on either side of the projected 
 line. By article 42 the government had the right to rescind the 
 contract, if, after the work had commenced, satisfactory progress 
 was not maintained, or if the road was not completed within the 
 time specified. The contract might also be rescinded, after due 
 notice given by the government, in case of total or partial inter- 
 ruption in the promotion of the enterprise. Both the contract 
 and the company to be formed to execute its purposes were to be 
 amenable to the laws and tribunals of Portugal, but any differ- 
 ences that might arise as to the execution of the contract were to 
 be settled by arbitration. 
 
 In accordance with the contract the Lourenc.o Marques and 
 Transvaal Railway Company was organized at Lisbon with a 
 capital of 500,000, its statutes being approved by royal decree 
 on May 14, 1884. By a contract entered into on May 26, 1884, 
 between this company and MacMurdo, the company undertook 
 to issue bonds to the amount of 425,000, the proceeds of which 
 were to be used by MacMurdo to construct the railway. In re- 
 turn, MacMurdo transferred to the company his rights under the 
 concession and received for them 498,940 shares in the company. 
 The Portuguese Government, however, according to its own as- 
 sertion, had no knowledge of this arrangement until three years 
 after it had been made. 
 
 Soon after the government had entered into its agreement with 
 MacMurdo, a delegation from the Transvaal, headed by the 
 President, Paul Krtiger, arrived at Lisbon to negotiate a new 
 convention and to discuss the question of railways. Having al- 
 ready interested a Dutch syndicate in the construction of the
 
 336 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 Transvaal section, it expressed disappointment at the MacMurdo 
 concession, for, in its opinion, "there was no guarantee that the 
 American concessionaire could find the capital necessary to con- 
 struct the line." An offer by MacMurdo to sell the concession 
 was rejected by the Boer delegation, the Dutch company con- 
 sidering it exorbitant. In a memorandum addressed to the 
 Minister of the Colonies on May 9, 1884, the delegation asserted 
 that the Transvaal section was dependent for the transportation 
 of constructional material upon the speedy and efficient comple- 
 tion of the line from Lourenco Marques, but that such was not 
 likely to be accomplished by MacMurdo. As an alternative, the 
 delegation suggested that the Portuguese Government authorize 
 the company building the Transvaal section to construct a tram- 
 way upon Portuguese territory for the purpose of transporting 
 material for construction from Lourenco Marques, without hav- 
 ing to await the completion of MacMurdo's line. On May 16, 
 the Minister of the Colonies, although inclined to favor the pro- 
 posal for the tramway, refused to make any formal promise that 
 might be construed as disloyal to existing engagements. Next 
 day, however, May 17, 1884, the Portuguese Government 
 concluded with the Transvaal delegation a convention supple- 
 mentary to that of 1875, to which was added a memorandum 
 granting, in effect, the request for the tramway, "provided the 
 Lourenco Marques company does not build its road with the speed 
 necessary to the assurance that work may begin on the Transvaal 
 railway." The Portuguese Government further promised to 
 allow the tramway to be used for the transportation of passengers 
 and freight, should the two companies be unable to reach agree- 
 ment as to rates. But nothing was to be done to the prejudice of 
 the contract of December 14, 1883. 
 
 This memorandum was not communicated to MacMurdo or 
 his company, nor was it made public by the Portuguese Govern- 
 ment. The Transvaal, however, did not preserve the same se- 
 crecy, and news of it soon found its way into the European press. 
 On June 14, a dispatch in the London Times from Amsterdam 
 gave MacMurdo his first intimation about the tramway conces- 
 sion. As a consequence, the financing of the company's bonds 
 was rendered difficult, but on the assurance of the Portuguese
 
 THE DELAGOA BAY RAILWAY ARBITRATION 337 
 
 Government that the concession for the tramway was conditional 
 and in no way prejudicial to the MacMurdo contract, the work 
 of the Lourenc.o Marques company proceeded and its plans, duly 
 submitted, were approved by the Portuguese Government on 
 October 30, 1884, "without any prejudice to the presentation of 
 a project for the latter part of the railway up to the frontier." 
 The length of the line as stated in the plans was approximately 
 eighty-two kilometers, but in August, 1885, the Portuguese Gov- 
 ernment was informed by its engineer, Major Machado, that this 
 estimate was short of the true distance, and that an additional 
 section of nine kilometers was necessary to bring the line up to 
 the frontier. 
 
 On December 28, 1885, the Portuguese Government extended 
 the period for completion to four years on condition that the 
 work begin before June, 1886. But financial difficulties con- 
 tinued, especially after the ratification of the convention with the 
 Transvaal was announced, in February, 1886, and in the course 
 of that year the company had to admit that it had not the neces- 
 sary capital to proceed. Further assurances, however, were given 
 by the Portuguese Government that the concession had in no 
 way been prejudiced, and, on March 3, 1887, the Delagoa Bay 
 and East African Railway Company was formed in London for 
 the purpose of securing funds to complete the railway. The 
 capital of the English company was 500,0x30, and to it Mac- 
 Murdo transferred his contract with the Portuguese company, 
 as well as the shares which he held in it, and received in return 
 shares in the English company to the full amount of its capital. 
 As a result of these financial transactions, the Portuguese com- 
 pany still remained the owner of the MacMurdo concession, but 
 the English company, of which MacMurdo was the chief share- 
 holder, controlled the Portuguese company, "supplied the funds, 
 executed the works, and possessed the entire property of the rail- 
 way." 
 
 In the summer of 1887, the English company was informed for 
 the first time by Major Machado of the proposed change in plans 
 calling for the extension of the railway nine kilometers beyond 
 the terminal point indicated in the original plans. Shortly after- 
 wards, on December 14, 1887, the line of eighty-two kilometers
 
 338 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 was accepted by the Portuguese Government and opened to 
 traffic, "with the express reservation that neither the opening of 
 the line nor the official inauguration should imply prejudice to 
 the right of the government to compel the company to construct 
 the last section as well as the rest of the work necessary to com- 
 plete the undertaking." In reply to inquiries as to the terminal 
 section of nine kilometers, the Portuguese Government, on Jan- 
 uary 31, 1888, informed the Portuguese company that no 
 decision could be made just then, pending the negotiations 
 with the Transvaal with reference to the boundary, but 
 when once the frontier was denned, a reasonable period would 
 be granted for the completion of the line. This period was 
 fixed, by decree of October 24, 1888, at eight months, the com- 
 pany thus being required to complete the work by June 24, 
 1889. At first the Portuguese company offered only technical 
 protest, but on November 30, its director at Lisbon repre- 
 sented to the Minister of the Colonies that the approaching 
 rainy season and the consequent physical obstacles would make 
 it impossible to comply with the decree within the period fixed, 
 and a more equitable extension of time was requested. This 
 request was refused by the decree of December 27, 1888, accor- 
 ding to which "the period allowed should for all intents and pur- 
 poses be maintained." 
 
 The heavy rains of the season following did much damage to 
 the section of road already built, which further complicated re- 
 lations between the company and the government. The company, 
 for various reasons, was not able to let the contract for the addi- 
 tional section until March 27, 1889, and it was not until June 10 
 that the contractor arrived at Louren^o Marques. As the con- 
 tract was to expire in a few days, the company on June 18 asked 
 for an extension on the ground that the period of eight months 
 was unreasonable and that the rainy season with its resultant 
 damage had constituted a case of force majeure [necessity]. In 
 the meantime, on June 3, the British Foreign Office had in- 
 structed its representative at Lisbon to do all in his power to in- 
 duce the Portuguese Government to grant an extension of time 
 in the interests of the English company and at the same time to 
 point out that "under these circumstances, the arbitrary confis-
 
 THE DELAGOA BAY RAILWAY ARBITRATION 339 
 
 cation of the British capital invested in the concession, which 
 would result from its threatened annulment, would appear to 
 Her Majesty's Government to be altogether without justifica- 
 tion." (Parliamentary Papers [1890], Africa, No. i, p. 13.) On 
 June 21, the British Minister at Lisbon requested a definite exten- 
 sion of three months and about the same time the Secretary of 
 State of the United States asked, through its Minister at Lis- 
 bon, that action be deferred until it could examine the case more 
 fully on behalf of the American interests involved. These re- 
 quests were not complied with, and, on June 24, the Portuguese 
 Government proceeded to cancel the concession and to take pos- 
 session of the railway, in accordance with article 42 of the con- 
 tract with MacMurdo. 
 
 In a note to the Portuguese Government the same day (June 
 24) Lord Salisbury, the British Foreign Minister, intimated that, 
 failing other settlement, the case would become one for diplomatic 
 intervention. The first step to that end was taken on September 
 10 in a communication from Lord Salisbury to the Government 
 at Lisbon, which, in part, was as follows: 
 
 "... Her Majesty's Government are of opinion that the 
 Portuguese Government had no right to cancel the concession, 
 nor to forfeit the line already constructed. 
 
 "They hold the action of the Portuguese Government to have 
 been wrongful, and to have violated the clear rights and injured 
 the interests of the British company, which was powerless to pre- 
 vent it, and which, as the Portuguese company is practically de- 
 funct, has no remedy except through the intervention of its own 
 government. 
 
 "In their judgment, the British investors have suffered a 
 grievous wrong in consequence of the forcible confiscation by the 
 Portuguese Government of the line and the materials belonging 
 to the British company, and of the security on which the deben- 
 tures of the British company had been advanced; and that for 
 that wrong Her Majesty's Government are bound to ask for com- 
 pensation from the Government of Portugal. . . . 
 
 "If the Portuguese Government admit their liability to com- 
 pensate the British company . . . Her Majesty's Government 
 will admit that the amount of that compensation is a proper
 
 340 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 matter for arbitration." (Parliamentary Papers [1890], Africa, 
 No. i, p. 58.) 
 
 The Government of the United States had also entered formal 
 protest on July i, reserving all American rights in the concession. 
 On November 8, Mr. Elaine set forth its attitude more fully in 
 the following instructions sent to the Minister of the United 
 States at Lisbon: 
 
 "... Upon full consideration of the circumstances of the 
 case, this government is forced to the conclusion that the violent 
 seizure of the railway by the Portuguese Government was an 
 act of confiscation which renders it the duty of the Government 
 of the United States to ask that compensation should be made 
 to such citizens of this country as may be involved. With respect 
 to the case of Colonel MacMurdo, who is now represented by his 
 widow, Katherine A. MacMurdo, his sole executrix and legatee, 
 it is to be observed that by the terms of the concession the com- 
 pany which he was required to form was to include himself and 
 that his personal liability was not merged in that of the company. 
 But in any case, the Portuguese company being without remedy 
 and having now practically ceased to exist, the only recourse of 
 those whose property has been confiscated is the intervention of 
 their respective governments." (Moore: International Arbitra- 
 tions, vol. n, p. 1869.) 
 
 In his note of November 13, in reply to Lord Salisbury, the 
 Portuguese Foreign Minister expressed confidence that the matter 
 could be settled by direct negotiation with agents of the Portu- 
 guese company, which, according to the Portuguese contention, 
 was still in existence. In the event of failure to reach such settle- 
 ment, "His Majesty's Government would not object to sub- 
 mit to arbitration the point under discussion." Provision for 
 arbitration had been made in article 53 of the contract, but 
 if found otherwise desirable, it could be arranged for "in a 
 different form, but, at the same time, in such a manner as may 
 by mutual agreement secure for the parties engaged in the suit 
 strictest impartiality." (Parliamentary Papers [1890], Africa, 
 No. i, p. 70.) 
 
 During the negotiations that followed, the United States took 
 a firm stand for an international arbitration, and, as the British
 
 THE DELAGOA BAY RAILWAY ARBITRATION 341 
 
 Minister at Lisbon was instructed to support the view of the 
 United States, the three parties succeeded, in the course of the 
 year 1890, in reaching an agreement to arbitrate. Accordingly, 
 on August 13, 1890, identic notes were sent to the President of 
 Switzerland, asking the Federal Council to select three Swiss 
 jurists as an arbitral tribunal to decide upon the matter in dis- 
 pute. The Swiss President, in his reply of September 15, 1890, 
 designated as arbitrators Messrs. Blaesi, Heussler, and Soldan, 
 and indicated Berne as the place of session. 
 
 Some delay was experienced in arriving at agreement upon the 
 protocol which was to govern the arbitration, because of the 
 claim of the English company to represent all claimants and to 
 receive whatever sums might be awarded. This point of differ- 
 ence having been removed by providing that the MacMurdo in- 
 terests should be entirely controlled by the United States, the 
 protocol was negotiated without further difficulty and signed 
 June 13, 1891. The question at issue was submitted in article i, 
 as follows: 
 
 "The mandate which the three governments have agreed to 
 refer to the arbitration tribunal is, to fix, as it shall deem most 
 just, the amount of the compensation due by the Portuguese 
 Government to the claimants of the other two countries, in con- 
 sequence of the rescission of the concession of the Lourengo Mar- 
 ques Railroad, and the taking possession of that railroad by the 
 Portuguese Government, and thereby to settle the controversy 
 existing between the three governments on the subject." (Moore: 
 International Arbitrations, vol. n, p. 1874.) 
 
 The tribunal was empowered to fix its own procedure and its 
 award was to be "final and without appeal." The relation of 
 the two governments to the claims of their nationals was strictly 
 defined, it being understood that "although it appertains to 
 the arbitration tribunal to designate the private persons or the 
 moral persons who are entitled to the indemnity, the amount of 
 that indemnity shall be paid by the Portuguese Government to 
 the other two governments, in order that they may make dis- 
 tribution of it to the claimants." 
 
 In various memorials, opinions, and pleadings presented to the 
 tribunal, the United States and Great Britain maintained that
 
 342 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 the Portuguese Government had broken its contract with Mac- 
 Murdo on three counts: 
 
 (1) By its agreement with the Transvaal of May 17, 1884. 
 
 (2) By the decree of October 24, 1888, and the decree of an- 
 nulment, June 25, 1889. 
 
 (3) By its failure to offer the road at public sale, in accordance 
 with article 42 of the contract. 
 
 1. Under the contract, the claimant governments contended, 
 the concessionaire had secured the sole right both to construct 
 and to operate, which latter carried with it the right to fix rates. 
 The tramway concession attacked these valuable privileges and 
 made it difficult for the company to interest capital in their en- 
 terprise. There had been no reservation of rights on the part of 
 Portugal with respect to regulation of rates, and to presume it 
 vested otherwise than in the company would be to render the 
 concession in large measure valueless. The Transvaal had no 
 control over the company's rights; they were a matter for con- 
 tract with the Portuguese Government, "which could not urge 
 its obligations to the Transvaal for the purpose of diminishing 
 the rights which it had granted to the concessionaire." 
 
 2. The cancellation of the contract, it was pointed out, was 
 inconsistent with article 40, which had accorded to the company a 
 period of three years, to date from the approval of plans. This 
 approval had not been given, for the last section of nine kilo- 
 meters, until February 23, 1889. Hence, on strict interpretation, 
 three years from that date was the period fixed by the contract. 
 This period could have been abridged by common agreement, 
 and neither MacMurdo nor the company would have objected 
 to any reasonable change; but the term stipulated could not be 
 modified by the Portuguese Government alone, without consent 
 of the other party. The decree of October 24 was arbitrary and 
 not obligatory upon the company. Even if it were conceded that 
 the Portuguese Government had the right to fix, of its own accord, 
 a reasonable period for completion, the one indicated in the de- 
 cree was not sufficient. On account of the rainy season, only 
 three months out of the eight were suitable for construction. 
 The last section of njne kilometers was the most difficult of the
 
 THE DELAGOA BAY RAILWAY ARBITRATION 343 
 
 whole line, and the government had taken eight months to con- 
 struct it in the favorable season. Apart from this, there were at 
 the time abnormal conditions amounting to the force majeure 
 contemplated in the contract. In fine, the rescission was an act 
 of bad faith, "an abuse of power, tyrannical and unconstitu- 
 tional," rendering the Portuguese Government liable not only 
 for damages such as are commonly awarded for simple non- 
 execution of a contract, but for extraordinary damages of a penal 
 character. 
 
 3. The failure to offer the road at auction still further damaged 
 the interests of the claimants. If sold, they argued, it might have 
 realized "a sum more than enough to pay all the indemnity 
 claimed." The reasons for this deviation, they asserted, were, 
 first, the rate agreement with the Transvaal company, which in- 
 troduced conditions incompatible with the MacMurdo conces- 
 sion, and, secondly, the fixed intention of Portugal to keep for 
 itself "a line which promised to become a source of wealth." 
 
 For these reasons the claimants asked for an indemnity "equiv- 
 alent to the loss sustained and the profit foregone . . . provided 
 always that the deprivation of this profit was the natural and 
 direct consequence of the non-execution of the contract by the 
 other party." In addition, the United States desired that "the 
 indemnity to be allowed should be of an exemplary and penal 
 character." (Archives Diplomatiques [1900], vol. LXXTV, p. 201.) 
 The total amount claimed by Great Britain was 1,138,503, by 
 the United States, 760,000 (including the value of the Mac- 
 Murdo "control"), in both cases exclusive of interest, expenses, 
 and costs. 
 
 In defense of her position, Portugal maintained that she had 
 both the right and the duty to render the decree of rescission. 
 The right to rescind is a sovereign right and inalienable. The 
 Portuguese Government had expressly reserved this right by 
 articles 42 and 45 of the contract with MacMurdo, to be exer- 
 cised in certain contingencies (supra, p. 335), all of which had 
 arisen. The following reasons could especially be urged to justify 
 the rescission: 
 
 i. The spirit of the contract had been violated by the obsti- 
 nate resistance to a reasonable agreement upon the question of
 
 344 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 rates. Such an agreement was necessary, for otherwise the line 
 would have been useless, because the cabinet at Pretoria intended 
 to renounce its share of the undertaking, if reasonable rates were 
 not granted. The whole railway enterprise had been entered 
 upon with a view to discharging the obligations assumed toward 
 the Transvaal, and the concession to MacMurdo had to be ap- 
 plied in the interests of both countries. 
 
 2. The right to regulate, especially in the light of international 
 agreements, is inherent in sovereignty and could not be presumed 
 to pass from Portugal. "Portugal could not abandon to Mac- 
 Murdo her sovereign right to contract with the Transvaal in 
 virtue of the maxims of the law of nations. The Boers had the 
 right to demand an arrangement as to rates, and Portugal was 
 obliged to accord it." 
 
 3. On the expiration of the contract, a large part of the neces- 
 sary work on the first section of eighty-two kilometers had not 
 been completed or had proved defective, whereas work on the 
 last section had scarcely begun. Construction had not been under- 
 taken or continued on a scale proportional to length, and the line 
 could not have been opened within the period fixed or even after 
 long delay. 
 
 4. The period assigned for completion of the road expired on 
 June 24, 1889. Originally it was to end on October 30, 1887, and 
 subsequent extensions did not modify the date at which the period 
 of three years began; they were acts of grace, emanating from 
 sovereignty and not requiring consent of the other party. The 
 plans for the first section had been approved with a reservation 
 as to the latter part of the line (supra, p. 337), and the government 
 was bound to file plans for this section only in time to enable the 
 whole to be completed in three years. The fact that these plans 
 were not communicated to the company until July 27, 1887, was 
 without significance, because the company itself was to send out 
 an engineer to make the surveys. It was not a question of con- 
 structing nine kilometers, but of defining the frontier. The latter 
 part of the road was easy of construction and the company had 
 expressed itself as having nothing to object to, if the frontier was 
 as indicated. The rainy season was no obstacle, for it could have 
 been spent in assembling men and materiel, and the contractor,
 
 THE DELAGOA BAY RAILWAY ARBITRATION 345 
 
 Sir Thomas Tancred, had undertaken to construct the first eighty- 
 two kilometers for the English company in a similar period of 
 eight months. 
 
 As for the argument of force majeure, it was infected with the 
 negligence of the company, for it had let almost the entire period 
 of eight months go by without taking steps to complete the road. 
 The damages to the first section had been due to faulty construc- 
 tion and could not be held to justify delay. In the words of the 
 Portuguese argument, "all the motives alleged by the conces- 
 sionaire hi justification of the failure to construct the latter part 
 of the line have been only pretexts to conceal the financial weak- 
 ness of the two companies and the designs of their dictator, who 
 wished to keep this weapon in his hands to exercise pressure upon 
 the Transvaal." (Archives Diplomatiques [1900], vol. LXXTY, p. 
 205.) 
 
 In estimating indemnity, Portugal contended, the claimants 
 could not demand the value of the shares in the English company, 
 nor could a proper estimate be put upon the MacMurdo "con- 
 trol." The price at auction would have been the proper basis of 
 value, but the auction had not been held because it had been 
 forestalled by diplomatic intervention. As an equivalent settle- 
 ment, however, the Portuguese Government offered to pay the 
 sum by which it had been enriched through the possession of the 
 road less 28,000 already paid to the account of the British 
 Government, and 15,000 deposited by the concessionaire with 
 the Portuguese Government as a guarantee that engagements 
 would be kept, and forfeited in consequence of the non-fulfillment 
 of the contract, but later given back to the company. 
 
 Although the tribunal was constituted in 1890, the award 
 was not rendered until March 29, 1900, owing to long 
 delays in the conduct of the proceedings, due in part to the 
 necessity of sending experts to Africa to make reports on ques- 
 tions of fact. 
 
 In the opinion of the arbitrators, the rescission of the contract 
 was final and could not be reopened. Only the question of the 
 amount of compensation due was before the tribunal, which had 
 been asked to award what it considered equitable. But prelimi- 
 nary to this, it was necessary to determine what law was appli-
 
 346 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 cable to the case. The Portuguese company alone could be con- 
 sidered as having relations with the government, the English 
 company being merely the proprietor of a majority of shares in 
 the former. The enterprise had never ceased to be Portuguese 
 and the government had never allowed the concession to be trans- 
 ferred. Hence, Portuguese law was to be applied, provided it 
 did not run counter to the accepted principles of international 
 law. 
 
 The tribunal considered the question at issue to reduce itself 
 to this: Whether or not the government was justified in the asser- 
 tion that the work had not been continued on a scale propor- 
 tionate to the length, or that the railway had not been completed 
 "within the terms and periods fixed in article 40." But the an- 
 swer to this depended upon the answer to a previous question: 
 What was the period of three years in article 40 and when did it 
 expire? There had been an approval of plans on two occasions 
 October 30, 1884, and February 23, 1889. From which was the 
 period fixed for completion to date? The tribunal held that under 
 the contract the government had to furnish plans of the entire 
 line, to be examined by MacMurdo's engineers with a view to 
 making modifications, if desired. But an extension of eight or 
 nine kilometers was not a modification within the spirit of the 
 contract. Hence, the tribunal concluded, "the concessionaire 
 was justified in assuming in good faith that the plans, as furnished 
 to him, represented the entire length of the road; and the Portu- 
 guese Government itself appeared to have been of this opinion, 
 at least at the time the contract was made." The plea that the 
 government had to await an agreement with the Transvaal with 
 reference to the frontier before the plans for the last section could 
 be definitely submitted, was not considered by the tribunal to be 
 pertinent, for the government might have renounced (as it did 
 later) the preliminary agreement with the Transvaal and have 
 fixed the terminus of its own accord, or have left matters in sus- 
 pense until a settlement with the Transvaal could be brought 
 about. It was clear that, under article 40, the period within 
 which the last section was to be completed did not commence to 
 run until the plans for it had been approved that is, from 
 February 23, 1889; and the concession contained no clause au-
 
 THE DELAGOA BAY RAILWAY ARBITRATION 347 
 
 thorizing the government to fix of its own accord any period " to 
 replace for all intents the period indicated in article 40." A new 
 agreement should have been made regarding the final section, or, 
 failing this, the matter should have been referred to arbitration 
 as provided in article 53. As it was, the government had assumed 
 the r61es of party and judge, acting in a manner "decidedly inad- 
 missible and contrary to the text of the concession as well as to 
 its bilateral character." 
 
 The tribunal further considered that the Portuguese Govern- 
 ment was estopped from making any objections on the ground of 
 defective construction, since no official statement had been issued 
 on the matter. Besides, it was difficult to distinguish between 
 original defects and the damage wrought by floods. 
 
 Having arrived at the conclusion that "the decree of rescission 
 and the taking possession of the railway had not been carried out 
 in conformity with the contract of concession," the tribunal ruled 
 that there was but one principle of law applicable to the fixing 
 of the compensation that of dommages et interets, comprising, in 
 accordance with the rules of law universally admitted, damnum 
 emergens (the actual loss sustained) and lucrum cessans (the ces- 
 sation of profit). {Archives Diplomatiqttes, vol. LXXIV, p. 214.) 
 The action of the government, however, was illegal in form rather 
 than in substance, for the eight months accorded could not be 
 considered an unreasonable period. Further, the company, when 
 asked what time it would deem sufficient, had remained silent and 
 had even acquiesced in the period fixed. Hence, in the judgment 
 of the tribunal, the government was relieved from damages of a 
 penal character, "such as might have been claimed by a person 
 who was the victim of arbitrary treatment absolutely unmerited." 
 
 The tribunal did not consider that the failure to put the road 
 up at auction called for indemnity, diplomatic intervention having, 
 in its opinion, absolved the government from this obligation. Nor 
 was the Transvaal memorandum of May 17, 1884, held to be a 
 cause of delay, assessable in damages; other reasons, especially 
 lack of finances, were sufficient to explain the company's in- 
 action. 
 
 On the indemnity awarded, moratory interest was allowed at 
 the rate of 5 per cent, simple interest, in conformity with Portu-
 
 348 NATIONALITY AND PROTECTION OF CORPORATIONS 
 
 guese commercial law, as well as with "the method of calculation 
 generally adopted in the matter of moratory interest." 
 
 In accordance with these reasons the tribunal awarded, as 
 follows: 
 
 "The Delagoa Bay court of arbitration, created by the arbitra- 
 tion convention signed at Berne, June 13, 1891, by the representa- 
 tives of Portugal, the United States of North America, and Great 
 Britain, being charged by said convention with the duty of 'fix- 
 ing, as it shall deem most just, the amount of the compensation 
 due from Portugal to the claimants of the two other countries in 
 consequence of the cancellation of the concession of the Lourengo 
 Marques Railway and of the taking possession of said railway by 
 the Portuguese Government,' said court being composed of the 
 three arbitrators designated by the Swiss Federal Council, to 
 wit: Joseph Blaesi, at that time vice-president, and now a mem- 
 ber of the Federal Court at Lausanne, President; Andreas Heus- 
 ler, LL.D., professor of law at the University of Basel; Charles 
 Soldan, at that time President of the Council of State of the 
 Canton of Vaud, and now a member of the Federal Court at 
 Lausanne; after the preparation of the case, after an examination 
 of the papers exchanged and of the documents produced in the 
 course of the proceedings, and also of the reports of the technical 
 experts appointed by the court; deciding concerning the funda- 
 mental question, after hearing the arguments of the parties, says 
 and pronounces as follows: 
 
 "i. The Government of Portugal, the defendant, is sentenced 
 to pay to the Government of the United States of North America 
 and that of Great Britain, the plaintiffs, in addition to the 28,000 
 paid on account in 1890, the sum of 15,314,000 francs in Swiss 
 lawful money, with simple interest on said sum, at the rate of 5 
 per cent per annum, from the 25th day of June, 1899, to the day 
 on which payment shall be made. 
 
 "2. This sum, after the deduction of what shall be necessary 
 to meet the costs of the arbitration, which are payable by the 
 plaintiffs, and, besides, the balance remaining due of the amount 
 on which 28,000 were paid on account in 1890, shall be applied 
 to the payment of the holders of the debenture bonds of the De- 
 lagoa Bay Company, and to the payment of other creditors of
 
 THE DELAGOA BAY RAILWAY ARBITRATION 349 
 
 said company, if any there be, according to the category of 
 each. 
 
 "The plaintiffs shall prepare, to this effect, a schedule of dis- 
 tribution. 
 
 "The Government of Portugal shall pay to that of the United 
 States the sum which, according to said schedule, Mrs. Mac- 
 Murdo, who is represented by the latter government, shall be 
 entitled to receive as a holder of first and second debenture 
 bonds. 
 
 "It shall pay the remainder to the Government of Great Brit- 
 ain for the account of all the other claimants. 
 
 "3. The period of six months, fixed by the last paragraph of 
 article 4 of the arbitration convention, shall begin to-day. 
 
 "4. As to the expenses: The expenses incurred by each party 
 shall be paid by it. The costs of the arbitration, according to the 
 statement to be furnished in conformity with article 5 of the con- 
 vention, shall be equally borne by the three parties concerned; 
 that is to say, one-third by each of them. 
 
 "5. The petitions of the parties, so far as they differ from the 
 above conclusion, are rejected. 
 
 "6. An authentic copy of this award shall be transmitted, 
 through the Swiss Federal Council, to each of the three parties 
 concerned. 
 
 "Thus decided at a session of the court of arbitration, and 
 issued at Berne this 29th day of March, 1900. 
 
 "BLAESI, 
 "A. HEUSLER, 
 "CHARLES SOLDAN, 
 
 "Arbitrators. 
 "BRUSTLEIN, 
 
 "Secretary." 
 
 (Moore: International Arbitrations, vol. n, pp. 1865-99; Parlia- 
 mentary Papers [1890], Africa, No. i ; Archives Diplomatiques[igoo}, 
 vol. Lxxm, pp. 341-68; vol. LXXTV, pp. 171-227; Foreign Relations 
 of the United States, 1900, pp. 901-02.)
 
 350 NATIONALITY AND PROTECTION OF VESSELS 
 
 39. NATIONALITY AND PROTECTION OF VESSELS 
 
 THE DHOWS OF MUSCAT 
 FRANCE AND GREAT BRITAIN 
 
 The Permanent Court of Arbitration at The Hague, 1905 
 
 ON the i3th of October, 1904, Lord Lansdowne, the British 
 Foreign Secretary, and M. Cambon, the French Ambassador at 
 London, concluded an agreement between Great Britain and 
 France, the preamble of which was as follows: 
 
 "Whereas the Government of His Britannic Majesty and that 
 of the French Republic have thought it right, by the Declaration 
 of the loth March, 1862, 'to engage reciprocally to respect the 
 independence' of His Highness the Sultan of Muscat; 
 
 "And whereas difficulties as to the scope of that declaration 
 have arisen in relation to the issue, by the French Republic, to 
 certain subjects of His Highness the Sultan of Muscat of papers 
 authorizing them to fly the French flag, and also as to the nature 
 of the privileges and immunities claimed by subjects of His High- 
 ness who are owners or masters of dhows and in possession of 
 such papers or are members of the crew of such dhows and their 
 families, especially as to the manner in which such privileges and 
 immunities affect the jurisdiction of His Highness the Sultan over 
 his said subjects; 
 
 "The undersigned, being duly authorized thereto by their re- 
 spective governments, hereby agree that these questions shall be 
 determined by reference to arbitration, in accordance with the 
 provisions of article i of the convention concluded between the 
 two countries on the i4th October last, and that the decision of 
 The Hague Tribunal shall be final." 
 
 The Sultan of Muscat is an independent Mohammedan sov- 
 ereign ruling over that part of eastern and southern Arabia known 
 as Oman. Formerly the sultanate included Zanzibar, but in 1856 
 the latter became independent and later, in 1890, passed under 
 the "protection of Great Britain. As is the practice in Moslem 
 countries, various treaties with western nations have been made
 
 THE DHOWS OF MUSCAT 351 
 
 by the rulers of Muscat, in which are granted the usual privi- 
 leges of extraterritoriality. As the controversy over the dhows 
 had its origin in the conflicting interpretation given to certain 
 of these treaties, it will elucidate the matter in dispute to enu- 
 merate the chief conventional agreements affecting the relations 
 of Oman with the parties to the arbitration. They are as follows: 
 
 1. On November 17, 1844, was concluded a treaty of friendship 
 and commerce between France and Muscat, whereby the nationals 
 of each were accorded reciprocal commercial privileges on the 
 most-favored nation basis. The provisions upon which France in 
 large part based her case are the following: 
 
 "Art. 3. ... The French cannot, under any pretext, be res- 
 trained of their liberty in the dominions of the Sultan of 
 Muscat. 
 
 "Art. 4. The subjects of His Highness the Sultan of Muscat 
 -who may be in the service of the French [au service des Fran$ais] 
 are to enjoy the same protection as the French themselves. . . ." 
 
 2. Similar treaties have been made at various times with 
 Great Britain, the latest on August 19, 1891. In these are gen- 
 erous concessions of commercial privileges and extraterritorial 
 jurisdiction, which the French enjoy also by reason of the most- 
 favored-nation clause in the Treaty of 1844. 
 
 3. Other treaties have been made between Great Britain and 
 the Sultan of Muscat with a view to the suppression of the slave 
 trade, the Sultan undertaking to prevent his subjects from en- 
 gaging hi any way in such trade. 
 
 4. In 1862 a joint declaration was signed at Paris whereby 
 Great Britain and France "deemed it advisable to make a re- 
 ciprocal engagement to respect the independence" of the Sultan 
 of Muscat and the Sultan of Zanzibar. 
 
 5. In 1890 the Brussels Conference on the slave trade adopted 
 a general act by which the signatory powers agreed upon meas- 
 ures of cooperation in their efforts to suppress the traffic. The 
 general act was ratified by France in 1892, subject, however, to 
 reservations in which France refused to admit the right of visit 
 and search, as applying to vessels under the French flag, or the 
 right to detain said vessels on suspicion of engaging in the slave 
 trade. The Sultan of Muscat did not sign the act, his engage-
 
 352 NATIONALITY AND PROTECTION OF VESSELS 
 
 ments in the matter being defined by his treaties with Great 
 Britain. 
 
 As stated in the preamble quoted, the cause of the controversy 
 was the issuing by French consular and colonial officials of ships' 
 papers (litres de navigation) and French flags to many of the 
 Sultan's subjects, in excess of the privileges accorded France by 
 the Treaty of 1844. Few French citizens have resided in the sul- 
 tanate and hence few of the Sultan's subjects can claim extra- 
 territorial status by reason of having been in the service of French 
 residents. But many owners of Arab dhows, finding the French 
 flag convenient for the purpose of avoiding search, sought and 
 obtained the right to fly it, especially since the Brussels Act of 
 1800. The result was that natives of Oman, having no domicile in 
 French territory and no authorization to change their national- 
 ity, claimed to be under the protection of France, even when in 
 the territories of the Sultan, and to be completely removed from 
 his jurisdiction over their property and persons. The Sultan pro- 
 tested that by such practice France was withdrawing his subjects 
 from their allegiance, and even as early as 1891, on the representa- 
 tions of Great Britain, M. Ribot, the French Minister for Foreign 
 Affairs, announced that in future French Consuls would be pre- 
 vented from making such grants. They continued to be issued, 
 however, especially to the owners of dhows in Sur, a town in the 
 sultanate of Muscat. In 1897, and again in 1899, the Sultan 
 renewed his protests to the French Consul at Muscat, chiefly on 
 the ground that the action of France was contrary to the Declara- 
 tion of 1862, and in 1900 he ordered his subjects to refrain from 
 accepting flags and papers from foreign governments. The sub- 
 ject became a matter for discussion between the French and 
 British Governments, and in 1902 an exchange of views took 
 place which promised a satisfactory settlement. But in 1903 
 some incidents occurred to reopen the controversy, especially 
 one in which five Suris, subjects of the Sultan, were sentenced by 
 him to a term of imprisonment for breaking quarantine. Three 
 of these were French proteges, and the French Consul promptly 
 claimed their release. The Sultan was upheld in his action by the 
 British Consul and the British Government, to whom he had ap- 
 pealed, and after friendly representations to the French Govern-
 
 THE DHOWS OF MUSCAT 353 
 
 ment, it was agreed to refer the question at issue to the Permanent 
 Court of Arbitration. 
 
 A tribunal, constituted in accordance with the agreement, met 
 at The Hague on July 25, 1905, under the presidency of M. Lam- 
 masch, of Austria, who was nominated by the King of Italy at 
 the request of the parties to the arbitration. The other two mem- 
 bers were Chief- Justice Fuller, of the United States, designated 
 by Great Britain, and Jonkheer A. F. de Savornin Lohman, desig- 
 nated by France. Four sessions were held and the award was 
 rendered August 8, 1905. 
 
 In support of its practice of "francisation," so-called, France 
 relied in a general way upon the nature of the capitulations in 
 Mohammedan countries, the specific Treaty of 1844, an d the 
 municipal ordinances of the French colonial administration. The 
 origin of the francised dhows dated from the acquisition of the 
 French colonies on the east littoral of Africa. When France took 
 possession, many Omani owners of dhows had intimate commercial 
 relations with that region, some of them owning plantations and 
 engaging in commerce on their own account; but after the occu- 
 pation by France, they became auxiliaries of the French mer- 
 chants and shipowners. Before this time, they flew no flag, unless 
 it was the Arab red flag, which had merely religious significance, 
 they carried no papers, and some of them had even no personal 
 status, for "they could "not be considered as having any country 
 but the ocean." To exercise supervision over Arab commerce as 
 well as to suppress the slave trade more efficaciously, a maritime 
 bureau was created at Mayotte, and, from that time on, the 
 French flag and papers (litres) began to be granted to the Arab 
 dhows, one of the earliest of these documents dating from 1845. 
 The process of francisation was strictly regulated by the colonial 
 authorities. A boat had to be the property of French citizens or 
 corporations or of natives having a commercial domicile in a 
 French colony or owning property there. Extreme circumspec- 
 tion had been shown in these grants of francisation and in each 
 case the license was for a year only and had to be renewed. The 
 owner of a dhow seeking such grant must furnish proof of his 
 qualifications; in 1875 it was ordered that such persons must 
 have property in the French colonies, have an honorable reputa-
 
 354 NATIONALITY AND PROTECTION OF VESSELS 
 
 tion, and be in a position to furnish all guarantees. Among others 
 settling definitely in French colonies or emigrating without in- 
 tention to return were some originally from Oman. These 
 Omanis were in the habit of making long voyages, were polyga- 
 mous, with domestic establishments in various places, but with 
 their principal domicile in French territory, especially the Suns, 
 who had always claimed to be independent of the Sultan of Mus- 
 cat. French legislation would permit these Omani traders to ac- 
 quire easily the quality of French citizens, but out of deference 
 to the sovereignty of the Sultan, the grant had usually been one 
 of protection instead of citizenship. However, having obtained 
 this right to French protection, these Omanis did not, on a tem- 
 porary return to Muscat, lose this right, for they were still pro- 
 teges of France and possessors of real estate within French juris- 
 diction. This was quite within the spirit and the practice of the 
 capitulations in force in non-Christian countries and in this specific 
 case was clearly to be inferred from the Treaty of 1844, which 
 admitted protection to subjects of Oman in the service of French- 
 men, which service would include all those carrying on the com- 
 mercial relations that the treaty was intended to develop. Fur- 
 ther, some of the owners of dhows had become denationalized 
 and could not be regarded, when in Oman, as within the jurisdic- 
 tion of the Sultan, for the latter had not voluntarily protested 
 against emigration or put forward a claim to indelible allegiance. 
 Possibly, on occasion, it might be hard to establish personal 
 status in the absence of documents, but France had not hesitated 
 to disavow the zeal of its officials when in the wrong. As for the 
 accusation that the slave trade was facilitated by the francisa- 
 tion of the dhows, the evidence offered was largely hearsay or 
 based upon native depositions taken under unfair circumstances. 
 The few exceptions where there was real guilt had been punished 
 rigorously, as in the case of two dhows in 1897 convicted of hav- 
 ing been engaged in the transportation of slaves. 
 
 France also contended that the intervention of Great Britain 
 in the affairs of Muscat was inadmissible, for the Declaration of 
 1862 was not affected. The francisation of the dhows found its 
 sanction in the Treaty of 1844 and no attempt had been made 
 under it to derogate from the sovereignty of the Sultan. If there
 
 THE DHOWS OF MUSCAT 355 
 
 had been, he alone had the right to complain. As a matter of 
 fact, there had been no complaint from 1863 to 1895, and it was 
 only because Indian officials had established political influence 
 in Muscat, that the granting of French litres to the dhows had 
 suddenly been represented as a violation of the treaty with Mus- 
 cat. The present Sultan was under financial pressure from Great 
 Britain, being dependent upon the Zanzibar subsidy which was 
 paid through the Government of India. The actual authority 
 of the Sultan had been much restricted: Great Britain had made 
 treaties with several of the chiefs quite independently of the 
 Sultan; indeed, the treaties made with the Sultan himself were 
 hard to reconcile with his independence. A British protectorate 
 had been established in fact at Muscat, and British desire to con- 
 trol not only the affairs of Muscat but the commerce of the Per- 
 sian Gulf and the Indian Ocean was at the base of all the diffi- 
 culties that had arisen hi the relations of France with Muscat. 
 
 With respect to the particular incidents that had given rise to 
 the present arbitration, France recognized the right of the Sultan 
 to make rules concerning sanitation, etc., provided they did not 
 impose taxes upon French nationals or prot6gs. While the Sultan 
 had complete sovereignty over his ships in his territorial waters, 
 he had none over French ships, and hence could not delegate to 
 any state Great Britain, for instance rights which did not 
 belong to him. Nor did the Brussels Act take away any rights that 
 France had in Omani waters. It merely affirmed the status es- 
 tablished by the Treaty of 1844, which is always to be interpreted 
 in the general sense of the capitulations in Moslem countries. 
 
 In reply to the contentions of France, Great Britain gave a 
 general denial to the statements of fact. There had been no 
 trenching upon the sovereignty of the Sultan, though assistance 
 had sometimes been given him to put down rebellion against his 
 authority. The fact that several Arab rulers, including the Sul- 
 tan of Muscat, had made treaties giving Great Britain the right 
 of preemption in case of alienation did not impair their independ- 
 ence. Such treaties merely provided against certain contingen- 
 cies; they "tend to preserve and not to destroy the state which 
 enters into the arrangements." The so-called "trucial" chiefs 
 with whom Great Britain had made treaties were not under the
 
 356 NATIONALITY AND PROTECTION OF VESSELS 
 
 sovereignty of the Sultan; Great Britain had dealt with them 
 as independent rulers forty years before the Declaration of 
 1862. 
 
 With regard to the arguments advanced by France in support 
 of the practice of francisation, Great Britain maintained that no 
 warrant for it could be found hi the Treaty of 1844. That treaty 
 was on the strict basis of extraterritoriality; "it contains no sur- 
 render of the Sultan's right of police over his waters, and grants 
 no right to France to exercise that police." Only Omanis who were 
 actually in the service of French citizens were within the juris- 
 diction of French Consuls in Oman. Nor was there any validity 
 in the other claim put forward by M. Cambon in 1903 that 
 those possessing this right to fly the French flag were outside the 
 treaty and that they were entitled to protection from the mere 
 fact that the flag had been granted them. Such a claim "involves 
 an assertion of the right of France spontaneously to create as 
 many proteges as it chooses in Muscat . . . and the claim is 
 equally applicable to the subjects of any European power in the 
 territories of their natural sovereign a contention which no 
 civilized state would for a moment admit." If a foreign state were 
 to have the unquestioned right to say just who its proteges were, 
 it could "transfer to its protection masses of a foreign population 
 residing in their own country, and . . . create semi-independent 
 communities within the borders of a friendly state." 
 
 On the maui question of international law involved the im- 
 port of domicile Great Britain pointed out that domicile is not 
 equivalent in effect to nationality. It may give "certain rights 
 in the country in which it is acquired . . . but it gives no title 
 to protection as a national in other countries, least of all hi that 
 of origin." The burden of proof that the domicile of origin had 
 been lost and the quality of French protege had been acquired lay 
 in each case upon those making such claims, and France should 
 see to it that such proof was furnished to the Sultan. Under the 
 Declaration of 1862, France could not withdraw any subject of 
 the Sultan from his allegiance, nor could she, under the Brussels 
 Act, grant French flags or papers to any native vessel unless owned 
 by a French citizen or by a subject of a protectorate of France. 
 Should a native of Oman accept such papers and flags, he could
 
 THE DHOWS OF MUSCAT 357 
 
 not thereby withdraw either himself, his crew, family, or employes 
 from the jurisdiction of the Sultan when within the territories 
 or territorial waters of Oman. Nor, should such Omani be the 
 owner, captain, or a member of the crew of a francised dhow, 
 could he be considered a proteg6 within the provision of the 
 Treaty of 1844, for "the phrase au service clearly implies engage- 
 ment in the capacity of a clerk or domestic or some subordinate 
 capacity; and it cannot include all persons with whom Frenchmen 
 happen to have contracts of a commercial nature." Merely voy- 
 aging to a French colony did not give them this right. 
 
 As for the regime of capitulations and its application to rela- 
 tions with Muscat, Great Britain contended that it was not pos- 
 sible to argue from the concessions in one Oriental country to 
 those in another. Besides, France was seeking to extend protec- 
 tion, not to Christians, as the capitulations contemplate, but to 
 Arab dhow owners. 
 
 Great Britain further maintained that these litres, granted 
 with respect to a particular vessel, could not be made the object of 
 inheritance or transfer. "The question in each case is one of 
 personal status." 
 
 In conclusion, Great Britain submitted that "France should 
 with all reasonable dispatch, erase from her marine registers all 
 native vessels owned by subjects of the Sultan of Muscat, and, 
 in cooperation with the Sultan, should take steps to obtain the 
 surrender of all French flags and papers now held by any such 
 subjects." 
 
 The tribunal, in rendering its decision on the first question, 
 that of the right to fly the French flag, recognized that every 
 sovereign had the right to determine who should fly his flag, and 
 hence, as far as the general rule of law was concerned, the French 
 Government might grant this right to subjects of Muscat. But 
 a sovereign might be limited by treaties and, in the case of the 
 right in question, the Brussels Act had imposed limitations for the 
 purpose of suppressing the slave trade. France was party to this 
 act, according to which fitters-out or owners of native vessels 
 must be subjects or proteges of the power whose flag they claim 
 to fly. The term prot6g6 was not defined in the Brussels Act, but 
 its connotation underwent a restriction in virtue of the Ottoman
 
 358 NATIONALITY AND PROTECTION OF VESSELS 
 
 law of August, 1863, implicitly accepted by powers having capitu- 
 lations, as well as in virtue of the treaty between France and 
 Morocco in 1863, to which treaty many powers have acceded. 
 By analogy these modifications extended to other Oriental 
 countries, save that, while in Turkey the status of proteg6 might 
 be inherited, this did not obtain in Muscat, where religious con- 
 ditions were different. The term protege, therefore, according to 
 the tribunal, now embraced the following classes only: (i) per- 
 sons subjects of a country under the protectorate of the power 
 whose protection they claim; (2) persons corresponding to the 
 enumerated classes in the Moroccan treaties and the Ottoman 
 law of 1863; (3) persons recognized as proteges by special treaty, 
 as that in 1844 with Muscat, and (4) persons who had the quality 
 of proteg6s before 1863 and who had not lost it subsequently. 
 
 In accordance with this reasoning, the tribunal decided the 
 first question as follows: 
 
 "i. Before January 2, 1892, France had the right to authorize 
 vessels belonging to subjects of His Highness the Sultan 
 of Muscat to fly the French flag, subject only to her own 
 laws and administrative regulations. 
 
 "2. Owners of dhows who, before 1892, had been authorized by 
 France to fly the French flag, retain this authorization as 
 long as France continues it to the grantee. 
 
 "3. After January 2, 1892, France had no right to authorize 
 vessels belonging to the subjects of His Highness the Sul- 
 tan of Muscat to fly the French flag unless their owners 
 or fitters-out had proved or should prove that they had 
 been regarded and treated by France as her proteges before 
 the year 1863." 
 
 As regards the second question before it the nature and 
 the extent of the immunities of Omani proteges of France when 
 within the dominions of the Sultan of Muscat the tribunal 
 considered that the owners, captains, and crews of dhows author- 
 ized to fly the French flag, if natives of Oman, did not come 
 within the purview of article 4 of the Treaty of 1844 which with- 
 drew natives of Oman in the service of Frenchmen from the 
 jurisdiction of the Sultan. Any such attempt to derogate from the
 
 THE CASE OF FRANCIS BOYLE 359 
 
 sovereignty of the Sultan would be in contravention of the Declara- 
 tion of 1862. Hence the decision on the second point: 
 
 "i. Dhows of Muscat that have been authorized, as indicated 
 above, to fly the French flag, are entitled in the territorial 
 waters of Muscat to the inviolability provided by the 
 Franco-Muscat Treaty of November 17, 1844. 
 
 "2. The authorization to fly the French flag cannot be trans- 
 mitted or transferred to any other person or dhow, even 
 though the latter belong to the same owner. 
 
 "3. Subjects of the Sultan of Muscat that are owners or cap- 
 tains of dhows authorized to fly the French flag or that 
 are members of the crews of such dhows or belong to their 
 families, do not, in consequence of this fact, enjoy any 
 right of extraterritoriality exempting them from the sover- 
 eignty, especially from the jurisdiction, of His Highness 
 the Sultan of Muscat." 
 
 (Recueil des Actes et Protocoks, published by the International 
 Bureau at The Hague; Archives Diplomatiques, vol. xcrv, pp. 554- 
 58; vol. xcvn, pp. 111-28; 407-29; vol. c, 233-377; British and 
 Foreign State Papers, vol. xcvm, pp. 46-48; 113-18; G. G. Wil- 
 son: The Hague Arbitration Cases.) 
 
 THE CASE OF FRANCIS BOYLE (1853) 
 
 MR. MARCY, Secretary of State for the United States, on Sep- 
 tember i, 1853, wrote to the American Consul at Hamburg: 
 
 "A copy of your dispatch in relation to the sailor Francis Boyle, 
 under date of August 5th, addressed to the Hon. D. D. Bernard, 
 late minister plenipotentiary and envoy extraordinary, has been 
 transmitted by him to this Department. 
 
 "It appears, so far as the facts have been presented to the De- 
 partment, that Francis Boyle, the sailor above mentioned, be- 
 longed to the crew of the ship Talleyrand, an American vessel, 
 commanded by Captain Young, lying on the 2d of August hi the 
 port of the free city of Hamburg; that, on this day, the Hamburg
 
 360 NATIONALITY AND PROTECTION OF VESSELS 
 
 police went on board the said vessel, during the absence of the 
 captain, and, under pretense of his having been concerned in a 
 riot on shore, arrested Francis Boyle, who held at the time a pro- 
 tection as a citizen of the United States, and who was so desig- 
 nated on the crew list; that the cause assigned for the arrest was 
 merely a pretense, since, in point of fact, it was done at the instiga- 
 tion of the Prussian authorities of Stettin who forwarded a requi- 
 sition for the sailor, as being a Prussian by birth, and as such 
 liable to military service; that it was alleged by the Prussian Min- 
 ister, and the chief of the police at Hamburg, that his "protection" 
 could not shield him, as it was assumed by them that the said 
 Boyle, not having been five years in the United States, could not 
 be a citizen thereof; and, finally, that the chief of police, after 
 declaring that he must surrender the man to the Prussian authori- 
 ties, having been deterred from so doing by the energetic remon- 
 strances of yourself and of Captain Young, referred the matter 
 to the syndicus, in charge of foreign affairs, by whom the sailor, 
 after a detention of three days, was liberated and sent back on 
 board his vessel. 
 
 " These facts, as they are thus presented, exhibit a case of so 
 gross a violation of the rights of an American sailor, that I deem 
 it unnecessary at this time to do more than to assure you that 
 your active exertions to prevent the consummation of a high- 
 handed outrage deserve and have received the strong approbation 
 of the President. 
 
 "It is for the authorities of the so-called 'Republic and Free 
 Hanseatic City of Hamburg' to determine how it may affect the 
 commerce of that flourishing state, to permit their police officers 
 to become the instruments of foreign nations in acts of violence 
 and oppression, and upholding them in their entry, under a false 
 pretext, on board of an American vessel, lying peacefully at their 
 wharves engaged in commercial transactions under the sanction 
 of solemn treaty stipulations, and arrest one of its crew, shipped 
 as an American sailor, holding an American protection and rely- 
 ing upon it, and upon the flag, which floated over him, as his safe- 
 guards from all illegal acts. 
 
 "It is for the Government of the United States to determine 
 what steps it will take to vindicate its sovereignty, violated in the
 
 THE CASE OF THE MASONIC 361 
 
 person of one under its protection, and to make known its deter- 
 mination to protect those who place themselves under the banner 
 of the Republic. 
 
 "I do not deem it necessary at the present time to enter into 
 any argument as to the question whether Francis Boyle was or 
 was not a native-born citizen of the United States, whether he 
 had been naturalized or had not resided five years in the United 
 States, as contended by the Prussian authorities. The principles 
 heretofore laid down, and acted upon by this government, in re- 
 gard to the citizenship of seamen are plain and well settled and 
 require no elaborate vindication. The various questions which 
 have arisen in respect to the protection to be extended to those 
 who have taken the incipient steps to become American citizens, 
 do not apply to them. 
 
 "The rule laid down by the distinguished person who first held 
 the office of Secretary of State, Mr. Jefferson, was, 'that the vessel 
 being American shall be evidence that the seamen on board are 
 such,' and fifty years afterwards it was restated, with no less pre- 
 cision by one of the most eminent of American statesmen, one of 
 my predecessors, that 'in every regularly documented merchant 
 vessel the crew who navigate it will find their protection in the 
 flag which is over them.' 
 
 "This is the principle which will hereafter, certainly not less 
 than heretofore, be maintained, in its fullest extent, by the Gov- 
 ernment of the United States." 
 
 (Moore: Digest of International Law, vol. n, pp. 274-75.) 
 
 THE CASE OF THE MASONIC (1879) 
 
 ON May 16, 1878, the American bark Masonic, Nichols, master, 
 sailed from New York for Nagasaki, Japan, with a cargo of 
 16,500 cases of petroleum. On the 5th of the following November 
 she put into Manila, in the Philippine Islands, in distress; but on 
 the 1 2th of December, her sails and rigging having been repaired, 
 she sailed for her destination. She again encountered heavy seas 
 and was obliged to put back to Manila, where she arrived Janu- 
 ary 12, 1879; and as she was too badly damaged to continue on
 
 362 NATIONALITY AND PROTECTION OF VESSELS 
 
 her voyage, permission was obtained from the customs authori- 
 ties to transfer her cargo to the British schooner Mt. Lebanon, for 
 Nagasaki. The transfer was made while the vessels were an- 
 chored at a considerable distance from the shore and in rough 
 water. The local officials who were put on board to supervise the 
 transfer claimed that the cargo turned out to be 22 cases short of 
 the 16,500 packages specified in the manifest, and for this de- 
 ficiency a fine of $100 a case, amounting to $2,200, was imposed 
 on the captain and denounced against the vessel. Having no funds, 
 and deeming the fine to be wrongful, the captain made a protest 
 to the chief officer of the customs. He was informed, in reply, that 
 his protest could not be received till his fine was paid. The vessel 
 was then seized and held in custody by five customs officers, though 
 the American flag was kept flying at her mizzenmast. In course 
 of time orders were received from her owners in New York to sell 
 her, and the United States Vice-Consul informed the customs 
 authorities that the bark would be sold at auction, at the same 
 time handing them an inventory of everything on board. At first 
 the customs authorities claimed a prior right to sell the vessel, but 
 they subsequently informed the vice-consul that they would 
 permit him to make the sale, holding him responsible for the 
 proceeds. The vice-consul declined to assume any responsibility 
 to the Manila officials, and on February 24 postponed the sale 
 indefinitely, at the same time protesting to the governor-general 
 against the whole proceeding. The authorities then sold the 
 vessel themselves. On the unloading of the Mt. Lebanon at Naga- 
 saki it was found that the Manila authorities had in reality made 
 a mistake, and that there was no shortage in the number of 
 cases. 
 
 When the Department of State was informed of these facts, it 
 laid them before the Spanish Minister at Washington with a view 
 to effect a prompt adjustment of the case. The minister, after 
 reading the papers, replied that the certificate made at Nagasaki 
 of the unloading of the Mt. Lebanon merely stated that there had 
 been discharged from her 16,500 cases, and that it was to be sup- 
 posed that the cases missing at Manila had been added after the 
 transshipment of the Masonic's cargo at that port. There was no 
 evidence, however, that the Mt. Lebanon had touched at any port
 
 THE CASE OF THE MASONIC 363 
 
 between Manila and Nagasaki; and under the circumstances the 
 Department of State instructed the Minister of the United States 
 at Madrid at once to bring the case to the attention of the Spanish 
 Government, and to express an earnest desire for its early consid- 
 eration and settlement. Soon afterward he was informed that the 
 United States consular officer at Manila had been directed to pro- 
 test against all the proceedings; and he was instructed to impress 
 upon the Spanish Government not only the groundlessness of the 
 particular prosecution, but also the principle "that vessels driven 
 by stress of weather to seek refuge in Spanish harbors . . . should 
 be exempted from the operation of the Spanish customs law except 
 in so far as it is strictly necessary for the prevention of smuggling 
 and the enforcement of sanitary regulations." 
 
 To the representations of the United States, the Spanish Gov- 
 ernment replied that, the governor of the Philippines having deter- 
 mined the case to be a proper one for legal proceedings, an inves- 
 tigation had been instituted by royal order before the Council of 
 Administration, and was then pending, and that the continued 
 delay in the disposition of the case was due to the refusal of the 
 representatives of the Masonic to file a bond with sureties for the 
 payment of any expenses which might be incurred by the board 
 of examination. The United States protested against the require- 
 ment of such a bond under the circumstances; and asked, besides, 
 that the judicial proceedings in the Philippines be discontinued, 
 and that the case be disposed of by the authorities at Madrid. 
 The Spanish Government, while waiving the execution of the 
 bond, on legal grounds declined to order the discontinuance of the 
 judicial proceedings, but directed the Manila authorities to hasten 
 their conclusion. The Government of the United States expressed 
 appreciation of this action, but instructed its minister at Madrid 
 to say that an adverse decision by the authorities at Manila, 
 after the incontrovertible evidence of innocence which had been 
 produced by the United States, "would be regarded as so far a 
 denial of justice to an American citizen as to require us to present 
 an ultimate appeal in the premises directly to the supreme gov- 
 ernment at Madrid, claiming to be heard thereon, without preju- 
 dice, however, to such rights as the owner of the Masonic may have 
 before the Consejo de Estada" (Council of State).
 
 364 NATIONALITY AND PROTECTION OF VESSELS 
 
 As a result of the administrative and judicial proceedings at 
 Manila the decree was revoked by order of the court, which 
 ordered restitution of the fine, and directed an indemnity to be 
 paid to Captain Nichols for any loss and damage which he might 
 prove that he had suffered. 
 
 On September 25, 1883, Mr. Frelinghuysen enclosed a copy of 
 this sentence to Mr. John W. Foster, then Minister of the United 
 States at Madrid, with an expression of the hope that in view of 
 the completion of the judicial proceedings at Manila the case 
 would be speedily adjusted. The matter was duly presented to 
 the Spanish Government, but the authorities in the Philippines 
 had sought to obtain a review of the sentence at Madrid, and the 
 diplomatic consideration of the case was again delayed. On the 
 i gth of September, 1884, however, Mr. Foster informed Mr. 
 Elduayen, then Spanish Minister of State, that he had been in- 
 structed to insist that the position originally assumed by his gov- 
 ernment might be accepted, and that steps might at once be taken 
 to adjust the claim diplomatically, and he adverted to the fact 
 that the case had been twice presented by the President to Con- 
 gress. On the 1 6th of October the Council of State, having com- 
 pleted the examination of the case, rendered a definitive decision 
 in favor of the vessel. Mr. Elduayen thought that this should be 
 accepted as a sufficient protection of the rights of the American 
 claimants. They had, he said, been charged with violating the 
 laws of Spain, to which they became subject on touching Spanish 
 territory; the proceedings had followed the regular legal course, 
 except that as a special favor to the United States the complain- 
 ant was dispensed from giving bonds, and the case bore from the 
 beginning to the end no indication of outrage. 
 
 Mr. Foster replied that he could neither concur in nor accept 
 these conclusions, but that instead of attempting an argumenta- 
 tive answer to them he would submit a suggestion in the interest 
 both of justice and of harmony. The United States had awaited 
 for nearly six years the result of the judicial proceedings, in 
 which it had finally been decided that the authorities of the 
 Philippines had acted without law or justice. It would add another 
 wrong to the original injustice if the American citizen whose 
 property had been seized and confiscated should be required to go
 
 THE CASE OF THE MASONIC 365 
 
 to Manila and follow up the judgment by seeking to recover from 
 those authorities the losses and injuries sustained by him. His 
 means had been taken from him. Mr. Foster therefore suggested 
 that as the decisions of the Spanish courts had established the 
 injustice which had been done, the mode of settlement originally 
 suggested by the United States should be adopted. Responding 
 to this suggestion, Mr. Elduayen obtained from the Minister of Ul- 
 tramar authority to settle the case in accordance with the deci- 
 sion of the Council of State, leaving the amount of damages to be 
 determined by an arbitrator named by common accord. Mr. 
 Elduayen proposed that six months should be allowed for the 
 rendering of a decision, and that the amount awarded should be 
 paid at Washington within six months, with interest at six per 
 cent from the day of the decision to the day of payment. The 
 United States accepted this proposition, with the qualification 
 that the award should be payable in American gold. This qualifi- 
 cation was, however, subsequently waived, it being left to the 
 arbitrator to determine in what money the award should be paid. 
 
 For the post of arbitrator Mr. Elduayen proposed Baron Blanc, 
 then Italian Minister at Madrid, who had at one time served as 
 umpire in the then recent Spanish Claims Commission at Wash- 
 ington. This proposal the United States promptly accepted; and 
 on the 28th of February, 1885, the Spanish Minister of State and 
 the Charg6 d' Affaires ad interim of the United States addressed 
 to Baron Blanc a note inviting him to act as arbitrator. Baron 
 Blanc, having received the permission of his government, ac- 
 cepted the nomination and on June 27 rendered the following 
 award: 
 
 "The undersigned, requested by a collective note of His Ex- 
 cellency the Minister of State of His Majesty the King of Spain 
 and of the Charg6 d'Affaires of the United States at Madrid, 
 dated 28th February ultimo, in the name of the respective gov- 
 ernments, to decide in justice and equity, as arbiter, within a 
 period not exceeding six months, the amount of the pecuniary 
 indemnity to be paid by the Spanish Treasury to the owner of the 
 North American vessel Masonic in virtue of the decreed sentence 
 of the Council of State of Spain of October 16, 1884, and in accord- 
 ance with the damages and injuries duly proved by the claimant,
 
 366 NATIONALITY AND PROTECTION OF VESSELS 
 
 has received from the high parties to form his decision the follow- 
 ing documents: . . ." 
 
 [After enumerating the documents and discussing the cause of 
 the disagreement between the two governments in regard to the 
 amount of the indemnity, the arbitrator concluded:] 
 
 "The undersigned, to discharge in its entire integrity the com- 
 mission with which both governments have honored him, had 
 therefore to solve these differences of estimate by basing his de- 
 cision upon the documents produced by both parties as proofs. 
 
 "The undersigned, having enlightened his conscience in the 
 best possible way by the scrupulous verification of the proofs 
 submitted in the arbitration, in virtue of the powers which have 
 been conferred upon him by both governments, declares in jus- 
 tice and equity that in conformity with the letter and spirit of 
 the decreed sentence of the Council of State of Spain of 16 Octo- 
 ber, 1884, according to his personal knowledge and estimation, the 
 sum to be paid as an indemnity by the Spanish Treasury to the 
 owner of the Masonic, both as capital and interest up to the date 
 of the present decision, is $51,674.07." 
 
 The grounds of his decision were set forth by Baron Blanc in a 
 memoir which he sent to his own government. He afterward gave 
 a copy of the paper to Mr. Foster, with permission to communi- 
 cate it to the Government of the United States. The paper may 
 be summarized as follows: 
 
 The arbitrator found that the value of the Masonic had been 
 estimated at $23,000 to $25,000 at her departure from New York. 
 Value of The cost of the necessary repairs had been estimated 
 the vessel by t h e sn ip' s officers at $3,000 and by the official at 
 Manila at $20,000. 
 
 The claimant in the account, presented without proofs and by 
 way of amiable compromise, had asked $14,500. The value as 
 estimated by the Spanish Minister of State was $6,000. 
 
 The arbitrator considered the claimant bound by his claim for 
 $14,500. Consequently an appraisement exceeding that amount 
 could not be made against the Spanish Government. The value 
 of the vessel was accordingly limited to and fixed at $14,500. 
 
 Stating that the Spanish Government "recognized in principle 
 the admissibility of proofs of ordinary and reasonable earnings of
 
 THE CASE OF THE MASONIC 367 
 
 a vessel in good condition and ready to go to sea/' the arbitrator 
 admitted the "annual payment of $5,000 as net earnings lost from 
 the 7th of May, 1879, that is to say, two months after Value of the 
 
 . f. , , , , ., ,, earnings of the 
 
 the seizure, which took place on the yth of March, a Masonic " 
 time deemed necessary for the repairs to be made at Hong-Kong 
 up to the date of the arbitral decision." 
 
 In regard to the allowance of interest, the arbitrator, "in con- 
 formity with the sense of high equity of the declarations of His 
 Excellency the Minister of State, inasmuch as he [the Allowance of 
 latter] admits in principle the 6 per cent interest from "tf* 8 * 
 the yth March, 1879, on the cash capital which in equity and 
 justice may bear interest, and inasmuch as in the offer of total 
 indemnity made by the note of 3oth May he includes the interest 
 on the total capital which he found then proved, " adjudged "the 
 interest asked on the net earnings capitalized at the end of each 
 year from the 7th May," and therefore did "not adjudge the 
 supplementary interest for the value of the ship." 
 
 The arbitrator also made allowances for telegrams, stamped 
 paper, payments to the officers of the vessel, consular fees, and 
 lawyers' fees, with interest at six per cent where it t 
 
 f Other items 
 
 had been asked. 
 
 In regard to the item of traveling expenses between New York 
 and Washington, Baron Blanc said: "In spite of the likelihood 
 and moderation of the amount of $360 asked, of the Proof of 
 difficulty of the proofs for such expenses, and of the P enses 
 assurance given by the Government of the United States as to 
 the honesty of the claimant, the undersigned does not think that 
 he can deviate from the principle not to admit what is not proved 
 by formal documents. For this item, as it is not admitted by the 
 Spanish Government, the undersigned does not adjudge any 
 reimbursement." 
 
 July 20, 1885, Mr. Elduayen formally notified Mr. Foster that 
 the Spanish Government, considering the decision of the arbitrator 
 as binding and without appeal, would take the necessary measures 
 to pay the sum awarded in the manner agreed upon. The money 
 was duly paid. It was distributed by the Department of State. 
 
 (Extracted and condensed from Moore: International Arbi- 
 trations, vol. n, pp. 1055-69.)
 
 368 PROTECTION ON THE HIGH SEAS 
 
 40. PROTECTION OF PROPERTY AND PERSON OF NA- 
 TIONALS ON THE HIGH SEAS, AND ELSEWHERE OUT- 
 SIDE THE FRONTIERS OF ANY STATE 
 
 IMPRESSMENT OF SEAMEN 
 
 IT is constantly stated that the United States maintained the 
 right of expatriation in its controversies with Great Britain con- 
 cerning the impressment of seamen. This is true, but only in a 
 very limited sense. Taking the dispute over impressment as a 
 whole, it did not involve the crucial point of the later contro- 
 versies as to expatriation. The burden of the complaint in regard 
 to impressment, as denned in Madison's war message of June i, 
 1812, was that Great Britain sought, under cover of belligerent 
 right, to execute her municipal law of allegiance on board the 
 ships of other countries on the high seas, where no laws could 
 operate "but the law of nations, and the laws of the country to 
 which the vessels belong." Precisely the same position was main- 
 tained by Webster in his correspondence with Lord Ashburton 
 in 1842. Ships on the high seas are treated, for purposes of juris- 
 diction, as if they were part of the territory of the nation to which 
 they belong. The complaint that the British Government en- 
 forced the English law of allegiance on board American vessels 
 on the high seas was manifestly a different thing from objecting 
 to her enforcement of the same law within British jurisdiction. 
 
 (Extract from Moore: American Diplomacy [New York, 1905], 
 PP- 173-740 
 
 THE CASE OF THE VIRGINIUS (1873) 
 
 THE Virginiuswas a merchant ship presumably entitled to fly the 
 American flag because of her registry in the custom house at New 
 York as the property of a citizen of the United States. For some 
 years she had been engaged in the service of the Cuban insurgents 
 and as such had become an object of suspicion to the Spanish au- 
 thorities. In October, 1873, she left Kingston, Jamaica, ostensibly
 
 THE CASE OF THE VIRGINIUS 369 
 
 for Costa Rica, but in reality with men and arms for Cuba. While 
 on the high seas, she was pursued and captured by the Spanish 
 man-of-war Tornado and taken to Santiago de Cuba, where 
 fifty-three of her passengers and crew were summarily put to 
 death on the charge of piracy. Of those executed, nineteen were 
 of British and six of American nationality. Further executions 
 were prevented by the arrival of a British warship at Santiago, 
 followed a few days later by the U.S.S. Wyoming, whose com- 
 mander, Gushing, by his vigorous protest, backed up by a threat 
 of force, had a restraining effect upon the governor, General 
 Burriel. 
 
 The Government of the United States made immediate demand 
 for complete reparation, and on November 29 an agreement was 
 arrived at between the Secretary of State and the Spanish Min- 
 ister at Washington, whereby Spain stipulated to restore the 
 Virginius and the survivors of her passengers and crew, and to 
 salute the flag of the United States on the 25th of December 
 unless "before that time Spain should prove to the satisfaction 
 of the Government of the United States that the Virginius was 
 not entitled to carry the flag of the United States, and was carry- 
 ing it at the time of her capture without right and improperly," 
 in which case the salute was to be dispensed with, "as not being 
 necessarily requirable." 
 
 On examination instituted by the Attorney-General of the 
 United States, it was found that the Virginius had been fraudu- 
 lently registered and in fact belonged to residents of Cuba, and 
 hence was not entitled to fly the American flag. In the opinion 
 of the Attorney-General, however, this did not justify the capture. 
 "She was as much exempt," he said, "from interference on the 
 high seas by another power ... as though she had been lawfully 
 registered. . . . Spain may defend her territory and people from 
 the hostile attack of what is, or appears to be, an American ves- 
 sel, but she has no jurisdiction whatever over the question as to 
 whether or not such vessel is on the high seas in violation of any 
 law of the United States." 
 
 Having proved the registry to be false, Spain was not required 
 to salute the flag, it being considered sufficient that she make dec- 
 laration that no indignity to the American flag had been intended.
 
 370 PROTECTION ON THE HIGH SEAS 
 
 The Virginius was delivered to the United States at Bahia Honda 
 in Cuba, but on the passage north she foundered off Cape Fear. 
 Those of the passengers and crew that escaped execution were 
 also handed over to the American authorities. Later, Spain paid 
 $80,000 to the United States in settlement of all claims arising 
 out of the affair, in addition to indemnities paid to Great Britain 
 on account of the British subjects executed. 
 
 The case of the Virginius has been much discussed by writers 
 on international law because of the fundamental principles in- 
 volved. The Spanish authorities justified the seizure and whole- 
 sale executions on the ground of piracy; but, although engaged in a 
 filibustering expedition, the Virginius was guilty of no act of 
 piracy under the law of nations, however illegal the voyage may 
 have been under Spanish or American law. Her crew had not the 
 animus furandi (intention to depredate), nor had they put them- 
 selves outside the pale of lawful authority. Hence, as Hall, in 
 his discussion of the case, has said, "although the Spanish au- 
 thorities had ample reason for watching her, for seizing her if she 
 entered the Cuban territorial waters, and possibly even for pre- 
 cautionary seizure upon the high seas, no excuse existed for re- 
 garding the vessel and crew as piratical at the moment of capture." 
 
 Piracy aside, the question arises: Had Spain the right to seize 
 the Virginius on the high seas in time of peace? This involves the 
 vital right of self-defense and, corollary to it, the right of visit and 
 search. It is conceded that a state may exercise the right of self- 
 preservation in the case of an attack upon its territory, but some- 
 times the danger that threatens is less overt, though more insidi- 
 ous and fully as imminent, and in the face of such a danger, "to 
 seek out and destroy the enemy " may be the most patent means 
 of defense. If a state possesses the right of self-preservation, it 
 must possess it in time of peace as well as of war, and "there is no 
 greater inconvenience to be suffered by admitting that this right 
 may be exercised on the ocean, than is constantly suffered by 
 neutrals from an exercise of the belligerent rights of nations at 
 war." l And to be effective this right would seem to imply "de- 
 fense which prevents as well as that which repels attack." 
 
 As to the contention of the Attorney-General that the flag which 
 
 1 G. T. Curtis, cited in Woolsey: Ittternational Law [6th ed.], p. 369.
 
 THE CASE OF THE COSTA RICA PACKET 371 
 
 she flew and the papers which she carried should have exempted 
 the Virginius from any interference upon the high seas, it may be 
 argued that such a line of reasoning would serve the purpose of 
 false papers very well. If a vessel come under suspicion of being 
 improperly documented, it may happen that the only way to 
 ascertain the fact, in a situation requiring prompt action, would 
 be by visit and search on the high seas even in time of peace. To 
 this effect are the opinions of Woolsey and Hall, both of whom 
 have discussed the case of the Virginius. Dana, perhaps, has gone 
 more directly to the central fact when he points out that the Vir- 
 ginius was really owned by Spanish subjects, which fact put her 
 under Spanish jurisdiction, for jurisdiction depends on owner- 
 ship, not on a certificate of registry. As for the registry of the 
 ship, "nations," he says, "having cause to arrest a vessel would go 
 behind such a document to ascertain the jurisdictional fact which 
 gives character to the document, and not the document to the 
 fact." 1 
 
 But whatever justification Spain may have had for seizing the 
 Virginius on the plea of self-preservation, no excuse could be 
 offered in palliation of the summary executions, and it was on 
 account of these that Spain made reparation to the United States 
 and Great Britain. 
 
 (Foreign Relations of the United States, 1874, pp. 922-1117; 
 1875, pp. 1144-1256; British and Foreign State Papers, vol. 
 LXV, pp. 98-229; Moore: Digest of International Law, vol. n, pp. 
 967, 980-83.) 
 
 THE CASE OF THE COSTA RICA PACKET (1888) 
 
 JANUARY 24, 1888, an Australian whaling ship, the Costa Rka 
 Packet, sighted at sea a water-logged derelict prauw (native 
 Malayan boat) of about a ton burden. Two boats were put off, 
 which, finding goods on board the prauw, towed it alongside the 
 ship, where there were transferred to her deck from the prauw ten 
 cases of gin, three cases of brandy, and a can of kerosene, the 
 
 1 Dana, cited in Moore: Digest of International Law, vol. n, pp. 081-82.
 
 372 PROTECTION ON THE HIGH SEAS 
 
 brandy and gin being more or less damaged by sea water. The 
 prauw and its contents belonged to some natives of the Dutch 
 East Indies; and three years afterwards, the Costa Rica Packet 
 being then in the port of Ternate, Dutch East Indies, the master 
 was arrested on a charge of theft, in having seized the prauw and 
 maliciously appropriated the goods on it. A claim was made 
 against the Dutch Government for his arrest and imprisonment, 
 on the ground that the act complained of took place on the high 
 seas outside Dutch jurisdiction. The warrant of arrest alleged that 
 it took place not more than three miles from land, but the evidence 
 showed that it was at least fifteen or twenty. The case was re- 
 ferred to Dr. von Martens, of St. Petersburg, as arbitrator, who 
 awarded damages to the British Government, holding that "the 
 prauw, floating derelict at sea, . . . was seized incontrovertibly 
 outside the territorial waters of the Dutch Indies." In the course 
 of his award he observed that "the right of sovereignty of the 
 state over territorial waters is determined by the range of cannon 
 measured from the low-water mark." On the facts proved, how- 
 ever, the question of the three-mile limit was not involved in the 
 decision, the distance of the prauw from the shore having far ex- 
 ceeded the range of cannon shot. 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 
 J i PP-
 
 CHAPTER VIII 
 
 THE CONTROL OVER NATIONALS AND NATIONAL VES- 
 SELS, AND THE EXERCISE OF JURISDICTION OVER 
 CERTAIN ACTS OCCURRING WITHIN A FOREIGN 
 STATE 
 
 41. EXERCISE OF JURISDICTION OVER REPATRIATED 
 NATIONALS FOR CRIMES AND ACTS DONE ABROAD 
 
 OFFENSES COMMITTED BY FRENCHMEN ABROAD 
 
 (1910) 
 
 CERTAIN states, notably France and Italy, refuse to extradite 
 their nationals for the trial of crimes committed in other coun- 
 tries. Notwithstanding the forceful arguments which other gov- 
 ernments adduce, France continues to make the non-extradition 
 of her nationals a fixed principle from which she will not recede. 
 As a corollary France recognizes her obligation to punish French- 
 men for offenses committed abroad. In a recent act passed Febru- 
 ary 26, 1910, the French Government modified article 5 of the 
 Code of Criminal Procedure to read as follows: 
 
 " Every Frenchman who has, outside of the territory of France, 
 committed a crime punished by the French law, may be prosecuted 
 and judgment passed upon him in France. 
 
 "Every Frenchman who, outside of French territory, has com- 
 mitted an act qualified by the French law as an offense (dtlif), 
 may be prosecuted and judged in France if such act is punished 
 by the legislation of the country where it was committed. 
 
 "The same provision applies if the accused has acquired French 
 nationality since the commission of the crime or offense. 
 
 "Nevertheless, no prosecution shall be instituted in the case of
 
 374 
 
 a crime or offense when the accused shows that he was tried 
 abroad, and in case of conviction, has served his sentence, or been 
 pardoned, or the sentence itself has been outlawed, 
 
 "In the case of an offense committed against a Frenchman or 
 an alien, the prosecution cannot be begun without a complaint 
 made by the attorney of the government. It should be preceded 
 by a complaint of the party injured or by an official notification 
 to the French authorities by the government of the country where 
 the offense was committed. 
 
 "No prosecution shall be begun before the return to France of 
 the accused, except in the case of the crimes enumerated in article 
 7, which follows." 
 
 (British and Foreign State Papers [1909-10], vol. cm, pp. 
 S36-37-) 
 
 42. EXERCISE OF JURISDICTION OVER NATIONALS 
 RESIDENT ABROAD 
 
 MARRIAGE OF AMERICAN WOMEN TO SUBJECTS OF 
 GREECE (1910) 
 
 Minister Moses to the Secretary of State 
 
 AMERICAN LEGATION, 
 
 Athens, January 27, ipio. 
 
 Sir: I have the honor to report that Mr. Horton, Consul-General 
 
 at Athens, has called to my attention the case of Mrs. , of 
 
 , a native American, married to a Greek, who now, as 
 she writes to Mr. Horton, has deserted her and returned to his 
 native country, where, as she suspects, he purposes to take another 
 wife. 
 
 Both Mr. Horton's inquiries and my own have been fruitless to 
 locate the man; and even had we been successful in this no sub- 
 stantial relief could have been found for Mrs. . The 
 
 Greek Church is established by the constitution, and it and the 
 Greek nation are practically coeval. Marriage is, therefore, by 
 Greek law, a sacrament and not a civil contract, and has no valid- 
 ity unless the ceremony is performed by an orthodox priest. Ac-
 
 THE CASE OF ARAKELYAN 375 
 
 cordingly, a Greek who marries in a foreign jurisdiction is at per- 
 fect freedom to regard his marriage bonds annulled upon returning 
 to Greek jurisdiction; and Mr. Horton tells me that several cases 
 of this character have occurred during his residence here. 
 
 There seems to be no remedy. The British Minister here tells 
 me that his countrywomen have encountered this difficulty, and 
 that he found himself powerless to help them. He added that 
 a similar condition formerly existed in respect of Anglo-French 
 marriages contracted in Great Britain, and that a special conven- 
 tion was necessary to remedy it. Such recourse cannot be had 
 here by reason of the peculiar ecclesiastical situation, but I have 
 the honor to suggest that the publication in America by the De- 
 partment of the conditions outlined above might serve as some 
 measure of protection to American women who contemplate 
 matrimony with Greek subjects. 
 
 I have, etc., 
 
 GEORGE H. MOSES. 
 
 (Foreign Relations of the United States, 1910, p. 640.) 
 
 THE CASE OF ARAKELYAN (1885) 
 
 ON May 16, 1885, Jacob J. Arakelyan, of Boston, wrote the 
 following letter to the Secretary of State: 
 
 Dear Sir: I was about nineteen years old when I left Turkey and 
 came to the United States. It is now nearly eighteen years that I 
 have been in this country, where I have married an American lady, 
 and become so permanently settled, that it is not likely I shall 
 ever return to the East. For more than fourteen years I have 
 been an American citizen, taxpayer, and voter. My father, Arakel 
 Jangigian (an Armenian), with his family, resides in the town of 
 Arabkir, Harpoot Pashalik, Turkey. His circumstances, like the 
 majority of those in that land, are not in a prosperous condition, 
 and I am obliged to aid him pecuniarily. 
 
 "Letters from him tell me that the Turkish Government not 
 only continue the habit of collecting taxes from him, on my ac- 
 count, but to improve the roads of that vicinity (compelling the 
 people to work without pay) they have taken my young brother
 
 376 JURISDICTION OVER NATIONALS ABROAD 
 
 and kept him double length of the required time because of my 
 absence." 
 
 The letter concluded with an appeal to secure the interposition 
 of the government. Arakelyan was told that " before any measures 
 could be taken in the premises he must furnish proof of his naturali- 
 zation," and in a letter of the 2gth he enclosed a certified copy of 
 the required paper. 
 
 Whereupon Acting Secretary of State Porter sent the American 
 Charge at Constantinople the following instructions: 
 
 "Taxation may no doubt be imposed, in conformity with the 
 law of nations, by a sovereign on the property within his jurisdic- 
 tion of a person who is domiciled in and owes allegiance to a foreign 
 country. It is otherwise, however, as to a tax imposed, not on 
 such property, but on the person of the party taxed when elsewhere 
 domiciled and elsewhere a citizen. Such a decree is internationally 
 void, and an attempt to execute it by penalties on the relatives of 
 the party taxed gives the person as taxed a right to appeal for 
 diplomatic intervention to the government to which he owes 
 allegiance. To sustain such a claim it is not necessary that the 
 penalties should have been imposed originally and expressly on 
 the person so excepted from jurisdiction. It is enough if it appears 
 that the tax was levied in such a way as to reach him through his 
 relatives. 
 
 "It is desired, therefore, that you bring the complaint of Mr. 
 Arakelyan, as cited in the enclosed copies of his letters, to the 
 notice of the Ottoman Government, requesting that the sum re- 
 ceived for any taxes imposed on his relatives on his account be 
 refunded, that the value of the road services rendered by Mr. 
 Arakelyan's brother be returned, and that no further taxes on 
 account of Mr. Arakelyan be imposed on his family." 
 
 On July 23 Charge Emmet reported his interview with the 
 Turkish Foreign Minister in regard to the case: 
 
 "His Excellency presupposes that at the time Mr. J. J. Ara- 
 kelyan left his native town, Arabkir, some of his relatives entered 
 into bonds, thereby enabling him to absent himself from home, 
 and hence the exaction of taxes and labor on his behalf since his 
 departure. 
 
 "If Mr. Arakelyan will take the trouble to file a petition with
 
 THE CASABLANCA ARBITRATION 377 
 
 the Turkish Minister in America, setting forth the facts of his 
 case, his reason for becoming naturalized, and exhibiting the 
 proofs of his naturalization, the minister will forward a communi- 
 cation to the authorities of his former home, and have his name 
 stricken from the records, thus relieving his parents from the bur- 
 den of further taxation or labor on his account. As to the restitu- 
 tion of moneys already disbursed, or remuneration for labor per- 
 formed, His Excellency said there would be no hope for recovery. 
 In his own words, 'We will forgive him for the future, and he must 
 forgive the Turkish Government for the past.' 
 
 "The system of bonding would-be absentees is quite a general 
 practice in Turkey, and will undoubtedly be found the origin of 
 the above case." 
 
 In a letter of August 20, 1885, to Secretary Bayard, Arakelyan 
 reviewed the facts of his case and said: "Please observe, in view 
 of the above facts, that there have been no obstacles to my coming 
 to this country besides my father's unwillingness to part with his 
 son, at first, and that no one has ever entered into bonds for me 
 that I know of, nor did I ever hear of such a custom, as I must have 
 done had any such arrangement been entered into for me, as the 
 Turkish Minister of Foreign Affairs presupposes." 
 
 On August 27, 1885, the Department of State transmitted this 
 letter to the American representative and instructed him "to peti- 
 tion the Turkish Government for an irade, so that his name may be 
 stricken from the records, thereby relieving his parents from the 
 burden of further taxation or labor on his account." 
 
 (Foreign Relations of the United States, 1885, pp. 848-49; 854- 
 55 J 860-) 
 
 43. CONSULAR OR EXTRATERRITORIAL JURISDICTION 
 
 THE CASABLANCA ARBITRATION 
 
 The Permanent Court of Arbitration at The Hague, 1909 
 
 IN 1908, in the course of French expansion in Morocco, the 
 city of Casablanca was occupied by French troops and jurisdic- 
 tion over it passed to the military authorities. During the occu-
 
 378 CONSULAR OR EXTRATERRITORIAL JURISDICTION 
 
 pation, on September 25, an incident occurred which at once 
 assumed international importance and all but precipitated a Euro- 
 pean crisis. Six deserters from the Foreign Legion, under the 
 conduct and protection of M. Just, chancellor of the German Con- 
 sulate at Casablanca, attempted to take passage on a German 
 vessel lying off the harbor, bound for Hamburg. The deserters, 
 three of whom were of German nationality, were promptly seized 
 by the French officials; a scuffle ensued, blows were exchanged, and 
 Abd-el-Kerim, a Moroccan soldier attached to the consulate, was 
 overpowered only after much violence on both sides. In vain 
 M. Just protested that the men were being embarked under an 
 order signed by the German Consul; the military authorities re- 
 fused to release the deserters, though Abd-el-Kerim was given his 
 freedom as being a German protege. 
 
 The German Consul at Casablanca made immediate protest to 
 the French Consul, and on October 10 this was followed up by the 
 demand of the German Government for the release of the desert- 
 ers and for an apology for injury to the consular prerogatives. 
 France refused to discuss the matter on this basis, but eagerly 
 adopted a German suggestion of arbitration. In spite of military 
 tension, and chiefly through the good offices of the Emperor of 
 Austria, an agreement was arrived at between the two govern- 
 ments, submitting the whole question to arbitration, each party 
 undertaking "to express its regrets for the acts of its agents in 
 accordance with the award to be rendered by the arbitrators 
 upon the facts and upon the question of law." Accordingly, M. 
 Renault, for France, and M. Kriege, for Germany, were empow- 
 ered to fix upon the details of the arbitral procedure to be fol- 
 lowed, and on November 24 a compromis of nine articles was 
 signed at Berlin by representatives of the two governments. It 
 was provided that there should be five arbitrators, chosen from 
 the Permanent Court of Arbitration at The Hague within fifteen 
 days of the date of the compromis, that copies of the respective 
 cases and counter-cases should be furnished the tribunal on speci- 
 fied dates, that either the French or German language might be 
 employed, and that, in matters not otherwise provided for, the 
 Hague Convention of 1907 was to govern. After the tribunal had 
 decided the questions of law and of fact, it was to determine
 
 THE CASABLANCA ARBITRATION 379 
 
 the situation of the individuate about whom the dispute had 
 arisen. 
 
 As its representatives upon the tribunal, Germany designated 
 M. Kriege and M. Fusinato, an Italian, while France designated 
 M. Renault and Sir Edward Fry, a British jurist. These four 
 chose as fifth member and President ex officio M. von Hammarsk- 
 jb'ld, of Sweden. The tribunal met for the first time on May i, 
 1909, and held six sessions in all. Its award was rendered on 
 May 22, 1909. 
 
 The question at issue stood out very clear: Which was para- 
 mount, in the event of conflict, the authority of a military occu- 
 pant or the consular jurisdiction of the capitulations? The French 
 case maintained the urgent and exclusive nature of military neces- 
 sity, the German case, the exceptional status of extraterritoriality 
 and its complete freedom from any modification or supersession 
 not concurred in by the power possessing it. 
 
 It was pointed out in the French argument that two questions 
 were before the consideration of the tribunal: 
 
 (1) Were the deserters entitled to the protection of the German 
 Consul as against the military authorities? 
 
 (2) Had the consular officials been treated contrary to inter- 
 national law, and if so, upon whom was the responsibility? 
 
 Of the six deserters, three were non-Germans, and in extending 
 his protection to them the German Consul had been guilty of an 
 abuse of power, admitting of no argument; "such an act is con- 
 trary to the law of nations which restricts the consular protection 
 to nationals or proteges of the consul's state." A fourth deserter 
 was a native of Alsace-Lorraine, who had become naturalized in 
 France, but inasmuch as Germany still considered him a German, 
 the French case did not seek to establish for him a status different 
 from that of the other two about whose German nationality there 
 was no question. Strictly, therefore, the point at issue was the 
 right of the German Consul to lend his aid and protection to the 
 three Germans. In this he had acted counter both to the regula- 
 tions of the German consular establishment and to the principles of 
 international law. The consular regulations were clear as to who 
 were not entitled to protection, and among others were those
 
 380 CONSULAR OR EXTRATERRITORIAL JURISDICTION 
 
 employed, without authorization, in the civil or military service 
 of a foreign state. The precedents supported this contention, 
 notably the similar instances of desertion at Port Said in 1895 and 
 at Cairo in 1900, in both of which cases German Consuls had de- 
 clined to extend official assistance to then* compatriots. But, 
 besides, the German Consul should be censured in the name of 
 international law, for he had violated rights which were always 
 recognized as belonging to a military occupant of foreign terri- 
 tory. The immunity from local jurisdiction attaching to the latter 
 implied not only that the troops were still under the military law 
 of their state, but that all offenses against the army of occupation 
 came under the same jurisdiction. Positive law in most states was 
 clear on the point, as well as international practice and military 
 legislation. For instance, the military penal code of Germany, of 
 June 22, 1872, provided that "every foreigner or German, who, in 
 foreign territory occupied by German forces, commits against 
 German troops or their allies or against an authority established 
 by order of the Emperor an offense provided for in the laws of the 
 German Empire, shall be punished in the same manner as if he 
 had committed the offense in German federal territory." 
 
 It followed that, in countries like Morocco, there resulted from 
 the fact of military occupation a state of affairs incompatible with 
 the complete exercise of consular jurisdiction over foreign subjects 
 in occupied territory. The authority of the army superseded the 
 territorial jurisdiction in western countries; still more so in coun- 
 tries of capitulations. If <the Sultan, the sovereign of the occupied 
 territory, was obliged to yield his rights of jurisdiction, those who 
 derived from him their privileges of extraterritoriality ceased to ex- 
 ercise their jurisdiction also in cases of conflict with the rights of 
 the occupant, though in the occupation of Casablanca all consular 
 privileges had been maintained except where military security 
 demanded otherwise. German law recognized this paramountcy 
 of military occupation in its provisions for consular jurisdiction 
 (Law of the Empire, April 7, 1900), while ample precedent for it 
 could be found in recent events in Tunis, Crete, and especially in 
 Samoa, where the German Government itself, in the course of 
 military operations in 1889, had acted in the same manner with 
 respect to desertion as had the French at Casablanca. In the
 
 THE CASABLANCA ARBITRATION 381 
 
 Orient, states sometimes voluntarily gave up jurisdiction in favor 
 of military authorities of other states; the United States and Great 
 Britain had agreed to this effect in China, Japan, and Siam as 
 regards British subjects enlisted in the American navy, on the 
 principle that "all persons in the service of a foreign state are 
 subject, during the period of service, to the exclusive jurisdiction 
 of that state." 
 
 On a personal view of the case, the deserters had entered the 
 French service by regular contract, a contract of public law, which 
 the legionaries could not break at will and which in any case was 
 governed by French law. This personal law was exclusive and 
 consular protection could not interpose itself between military au- 
 thority and its soldiers of foreign nationality. Nor could it be 
 maintained that the deserters, having broken the contractual 
 bond, forthwith came under the exclusive jurisdiction of their 
 own state, in this case recovering the benefit of extraterritoriality; 
 for, not to mention other objections, this would make possible, with 
 impunity, attempts on the part of the deserters to corrupt those 
 legionaries that remained loyal. 
 
 As to the questions of fact, the French argument maintained 
 that there was evidence that the deserters had been assisted by 
 a plot fomented from without. That they had been assembled 
 singly, showed premeditation. The consul must have had knowl- 
 edge that he was departing from his consular functions, for he had 
 had the deserters concealed and did not mention their quality or 
 nationality in the order signed. The omission of words in a safe- 
 conduct was serious and, though M. Just was primarily respon- 
 sible for this, the consul himself was at fault in lending his 
 authority and signature. It was no justification to say that his 
 attention had not been drawn to the changes in the safe-conduct, 
 and that he had not read it; there was not much to read and 
 omissions were easily noticeable. 
 
 The treatment of the consular officials was justified by France 
 on the ground of self-defense. The inviolability of public ministers 
 (including consuls in countries of capitulations) was not absolute, 
 but was subject to qualification in the case of acts provocative of 
 measures of defense or precaution. In the Casablanca affair the 
 German officials had been the aggressors, while the French sol-
 
 382 CONSULAR OR EXTRATERRITORIAL JURISDICTION 
 
 diers and marines "had only employed the right of legitimate 
 defense against Abd-el-Kerim and M. Just and had done no vio- 
 lence to the consular inviolability." 
 
 In its version of the facts, the German argument repelled the 
 statement that the consulate had encouraged desertion. On the 
 contrary, its aid had been solicited at various tunes by Germans 
 who had left the Foreign Legion, and this had been given to the 
 extent of providing lodging and securing transportation to Ger- 
 many for them on condition that they repaid expenses later. In 
 order to regularize the embarkations, the consul had adopted a 
 special form of safe-conduct and had delegated the secretary of 
 the consulate, M. Just, to supervise them. On September 22, a 
 German journalist, Sievers, asked the consular protection for three 
 German subjects, which was accorded after the consul had satis-* 
 fied himself that the claims to German nationality were genuine. 
 But in the safe-conduct issued by M. Just the number was stated 
 as six and the words "of German nationality" were omitted. 
 The consul signed the order without noticing the exact number 
 to be embarked or the omission in the text. This error on the part 
 of M. Just was freely confessed by Germany, but in no event could 
 it have the effect of withdrawing the three German deserters from 
 the consular protection. 
 
 On the question of law Germany maintained that German na- 
 tionality, according to the Law of 1870, was not lost by enlistment 
 in the military service of a foreign state. Under the Convention 
 of Madrid (1880) and the Act of Algeciras (1906), Germany en- 
 joyed in Morocco the rights of the most-favored nation, which 
 included, among others, the right of consular jurisdiction as pos- 
 sessed by Great Britain under treaty with Morocco in 1856. Hence 
 the German deserters, once away from the French army, clearly 
 passed over to German jurisdiction, which, as administered by the 
 consul in Morocco, was exclusive of all other. The presence of 
 French troops in Casablanca did not alter the situation. The 
 Act of Algeciras had not accorded to France any right of sover- 
 eignty over Morocco and the independence of the Sultan and the 
 integrity of his state ought to be safeguarded. The operations in 
 which the French were engaged were only of the nature of police 
 measures with a view to tranquilizing the country, and that France
 
 THE CASABLANCA ARBITRATION 383 
 
 had no intention of making any political changes was stated in a 
 note communicated to the German Consul at Casablanca by the 
 French Consul in September, 1908. Pacific occupation did not 
 have the same juridical effects as military occupation in the course 
 of a war, duly declared, just as a pacific blockade differed in its 
 legal consequences from a war blockade. The authority of Morocco 
 had not been contested by France, as it would have been in case 
 of war. In consequence, the powers of the occupant were no greater 
 than those of the occupied state, and hence consular jurisdiction 
 remained unchanged. 
 
 Further, it was not a certainty that theories of military occupa- 
 tion applied to countries with capitulations when subjects of third 
 states were concerned. France had no more rights in Morocco than 
 Germany had in Samoa in 1889, when Great Britain and the 
 United States stood upon their rights of extraterritorial jurisdic- 
 tion and Germany acquiesced in their claims. Similar instances 
 of the independence and integrity of consular jurisdiction in the 
 face of military measures were furnished by events in Crete hi 
 1897 and in China in 1900. Hence, German extraterritoriality 
 remaining intact, German subjects, when they deserted from the 
 Foreign Legion, came under the jurisdiction of their consul. It 
 was like passing beyond a frontier the former jurisdiction 
 ceased and another took its place. In fully civilized states this 
 was the territorial power, in countries of capitulations, the juris- 
 diction of the consul. This was evident from French precedent 
 itself, as at Port Said, when French troops deserted on the way 
 through the canal, as well as in China in 1905, when the French 
 Minister recognized that German authorities had jurisdiction 
 over French deserters of German nationality on Chinese territory. 
 
 Viewing the military service of the legionaries as a contract, 
 the German contention was that it was entirely a matter of private 
 law, having no effects of public law except in France itself cer- 
 tainly none in Germany or in Morocco. Such a contract was void 
 for a German so long as he had military obligations toward Ger- 
 many. It was very serious if the legionary still owed service to a 
 German corps. Any contract that annulled German military 
 obligations was contrary to public policy and might give rise to 
 serious complications; for example, the contractant might be re-
 
 384 CONSULAR OR EXTRATERRITORIAL JURISDICTION 
 
 garded as a traitor, if fighting against his native land. Even it the 
 contract was legal, the legionaries did not always remain under 
 jurisdiction to the end of the contract. The military authority 
 was effective only within the limits of French territory or of 
 French extraterritorial privileges in so far as they related to a 
 French corps in a foreign country. And the military extraterri- 
 toriality applied only to the troop as such. The soldier, as an indi- 
 vidual, participated in this privileged status only to the extent 
 that he belonged effectively to the corps. Once the connection 
 was broken, he passed beyond its jurisdiction. 
 
 The French contention that the military authorities had been 
 subjected to the aggression of the consular officials was incon- 
 sistent on the face of it; there had been but two unarmed men as 
 against a large number of armed soldiers; and even if M. Just had 
 used violence, it could be justified by reason of his official relations 
 with the three German deserters. It was especially serious to 
 affront a consular official in public and before the native popula- 
 tion, for it prejudiced the standing of all consular establishments 
 in Morocco and worked detriment to the principles of extraterri- 
 toriality so essential to communities under the regime of capitu- 
 lations. 
 
 Accordingly, it was requested of the tribunal that its award 
 direct the French Government to release the three German de- 
 serters and to place them at the disposal of the German Govern- 
 ment. 
 
 The decision in the Casablanca case was, in a legal sense, some- 
 what unsatisfactory, for it did not take a pronounced position 
 in favor of either of the conflicting principles involved. It showed 
 evidence, in its balanced reasoning, that a political compromise 
 was sought rather than a judicial ruling. The substantial results 
 of the decision, however, were in favor of France, for it did not 
 call upon her to surrender the deserters to Germany. After indi- 
 cating the conflict of jurisdiction and pointing out that France 
 had not made known the composition of the expeditionary force 
 nor had Germany protested against the employment of German 
 legionaries in Morocco, the tribunal proceeded to exonerate the 
 German Consul from any intentional error in signing the safe- 
 conduct, but declared that the secretary of the consulate " ex-
 
 THE CASABLANCA ARBITRATION 385 
 
 ceeded the limits of his authority and committed a grave and mani- 
 fest violation of his duties." The tribunal was further of opinion 
 that "the actual situation should have been respected by the 
 French military authority as far as possible," leaving [the deserters 
 "in sequestration at the German Consulate until the question 
 of the competent jurisdiction had been decided." Such a course 
 of action would have preserved consular prestige and given oppor- 
 tunity for more pacific measures of settlement. For all of these 
 reasons the tribunal declared and decided as follows: 
 
 "It was wrong and through a grave and manifest error that 
 the secretary of the Imperial German Consulate at Casablanca 
 attempted to have embarked, on a German steamship, deserters 
 from the French Foreign Legion who were not of German na- 
 tionality. 
 
 "The German Consul and the other officers of the consulate 
 were not responsible in this regard; however, in signing the safe- 
 conduct which was presented to him, the consul committed an 
 unintentional error. 
 
 "The German Consulate did not, under the circumstances of 
 the case, have the right to grant its protection to the deserters of 
 German nationality; however, the error of law committed on this 
 point by the officials of the consulate cannot be imputed against 
 them either as an intentional or an unintentional error. 
 
 " It was wrong for the French military authorities not to respect, 
 as far as possible, the actual protection exercised over these de- 
 serters in the name of the German Consulate. 
 
 "Even leaving out of consideration the obligation to respect 
 consular protection, the circumstances did not warrant, on the 
 part of the French soldiers, either the threat made with a revolver 
 or the continuation of the blows inflicted upon the Moroccan 
 soldier of the consulate. 
 
 "There is no occasion for passing on the other charges con- 
 tained in the conclusions of the two parties." 
 
 (Revue Generate de Droit International Public, vol. xvn, pp. 
 326-407; American Journal of International Law, vol. m, pp. 
 176-78; 755-60; G. G. Wilson: The Hague Arbitration Cases.)
 
 386 JURISDICTION OVER ALIENS FOR ACTS ABROAD 
 
 44. EXERCISE OF JURISDICTION OVER ALIENS FOR ACTS 
 DONE WITHIN ANOTHER STATE 
 
 CUTTING'S CASE (1886) 
 
 IN his instructions of July 20, 1886, to Mr. Jackson, Minister 
 to Mexico, Secretary Bayard said: 
 
 "After reading the telegrams and dispatches (copies of which I 
 enclose for your information) of Mr. J. Harvey Brigham, United 
 States Consul at El Paso, Mexico, and also your No. 266, dated 
 the 8th instant, relating to the case of Mr. A. K. Cutting, I tele- 
 graphed you on the igth instant as follows: 
 
 "'You are instructed to demand of the Mexican Govern- 
 ment the instant release of A. K. Cutting, a citizen of the 
 United States, now unlawfully imprisoned at Paso del 
 Norte.' 
 
 "By the documents before me the following facts appear: 
 "On June 18 last A. K. Cutting, a citizen of the United States, 
 who for the preceding eighteen months had been a resident, 'off 
 and on,' of Paso del Norte, Mexico, and as to whose character for 
 respectability strong evidence has been adduced, published in a 
 newspaper of El Paso, Texas, a card commenting on certain 
 proceedings of Emigdio Medina, a citizen of Mexico, with whom 
 Mr. Cutting has been in controversy. For this publication Mr. 
 Cutting was imprisoned on the 22d of June last, at El Paso del 
 Norte, in Mexico. Such a publication would not, even had it 
 been made in Mexico, be the subject of criminal prosecution in 
 that country, according to the Roman common law there in force, 
 nor of any adverse governmental action, unless, perhaps, for the 
 single purpose of requiring security in some small sum to keep the 
 peace. But the paper was not published in Mexico, and the propo- 
 sition that Mexico can take jurisdiction of its author on account 
 of its publication in Texas is wholly inadmissible and is peremp- 
 torily denied by this government. It is equivalent to asserting 
 that Mexico can take jurisdiction over the authors of the various
 
 CUTTING'S CASE 387 
 
 criticisms of Mexican business operations which appear in the 
 newspapers of the United States. If Mr. Cutting can be tried and 
 imprisoned in Mexico for publishing in the United States a criti- 
 cism on a Mexican business transaction in which he was concerned, 
 there is not an editor or publisher of a newspaper in the United 
 States who could not, were he found in Mexico, be subjected to 
 like indignities and injuries on the same ground. To an assump- 
 tion of such jurisdiction by Mexico neither the Government of the 
 United States nor the governments of our several states will 
 submit. They will each mete out due justice to all offenses com- 
 mitted in their respective jurisdictions. They will not permit 
 that this prerogative shall in any degree be usurped by Mexico, 
 nor, aside from the fact of the exclusiveness of their jurisdiction 
 over acts done within their own boundaries, will they permit a 
 citizen of the United States to be called to account by Mexico 
 for acts done by him within the boundaries of the United 
 States. On this ground, therefore, you will demand Mr. Cutting's 
 release. 
 
 "But there is another ground on which this demand may with 
 equal positiveness be based. By the law of nations no punishment 
 can be inflicted by a sovereign on citizens of other countries unless 
 in conformity with those sanctions of justice which all civilized 
 nations hold in common. 
 
 "Among these sanctions are the right of having the facts on 
 which the charge of guilt was made examined by an impartial 
 court, the explanation to the accused of these facts, the oppor- 
 tunity granted to him of counsel, such delay as is necessary to 
 prepare his case, permission in all cases not capital to go at large 
 on bail till trial, the due production under oath of all evidence 
 prejudicing the accused, giving him the right to cross-examination, 
 the right to produce his own evidence in exculpation, release even 
 from temporary imprisonment in all cases where the charge is 
 simply one of threatened breach of the peace, and where due 
 security to keep the peace is tendered. All these sanctions were 
 violated in the present case. Mr. Cutting was summarily impris- 
 oned by a tribunal whose partiality and incompetency were alike 
 shown by its proceedings. He was refused counsel; he was refused 
 an interpreter to explain to him the nature of the charges brought
 
 388 JURISDICTION OVER ALIENS FOR ACTS ABROAD 
 
 against him; if there was evidence against him it was not produced 
 under oath, with an opportunity given him for cross-examination; 
 bail was refused to him; and after a trial, if it can be called such, 
 violating, in its way, the fundamental sanctions of civilized jus- 
 tice, he was cast into a 'loathsome and filthy' cell, where, accord- 
 ing to one of the affidavits attached to Mr. Brigham's report, 
 ' there are from six to eight other prisoners, and when the door is 
 locked there are no other means of ventilation ' an adobe house, 
 almost air-tight, with a 'dirt floor;' he was allowed about '8^ cents 
 American money for his subsistence;' he was 'not furnished with 
 any bedding, not even a blanket.' In this wretched cell, subjected 
 to pains and deprivations which no civilized government should 
 permit to be inflicted on those detained in its prisons, he still lan- 
 guishes, and this for an act committed in the United States, and 
 in itself not subject to prosecution in any humane system of 
 jurisprudence, and after a trial violating the chief sanctions of 
 criminal procedure. 
 
 "These circumstances you will state as giving an additional 
 basis, a basis which if it be established this government will not 
 permit to be questioned, for the demand for Mr. Cutting's imme- 
 diate release." 
 
 On July 24, the Mexican Minister communicated a copy of 
 article 186 of the Mexican Penal Code authorizing punishment 
 for the offense of which Cutting was accused. 
 
 Although Cutting had been previously released, President 
 Cleveland, in his annual message of December 6, 1886, said in 
 criticism of the Mexican contention: 
 
 "The admission of such a pretension would be attended with 
 serious results, invasive of the jurisdiction of this government, and 
 highly dangerous to our citizens in foreign lands; therefore I have 
 denied it, and protested against its attempted exercise, as unwar- 
 ranted by the principles of law and international usages. 
 
 "A sovereign has jurisdiction of offenses which take effect within 
 his territory, although concocted or commenced outside of it; but 
 the right is denied of any foreign sovereign to punish a citizen of 
 the United States for an offense consummated on our soil in viola- 
 tion of our laws, even though the offense be against a subject or 
 citizen of such sovereign. The Mexican statute in question makes
 
 CUTTING'S CASE 389 
 
 the claim broadly, and the principle, if conceded, would create a 
 dual responsibility in the citizen, and lead to inextricable confu- 
 sion, destructive of that certainty in the law which is an essential 
 of liberty." 
 
 In a note to the Mexican Charg6, of November i, 1887, Secretary 
 Bayard reviewed the case, and referred to the action of the French 
 Government in 1852, when, because of representations made by 
 the British Government, a proposed law to exercise jurisdiction 
 over offenses against Frenchmen committed abroad by aliens was 
 withdrawn. In this connection Mr. Bayard said: "Sincerely de- 
 sirous of maintaining with the Government of Mexico the most 
 cordial and friendly relations, I cannot think that that end could 
 be more signally promoted than by that government following the 
 highly honorable example of France in removing from the amica- 
 ble relations of the two countries a law which stands as a constant 
 menace to their continuance." 
 
 In regard to the objection on the ground of the inability of the 
 federal authorities to interfere, the Secretary of State instanced the 
 case of McLeod when " Congress amended the law relating to the 
 issuance of writs of habeas corpus so as to facilitate the perform- 
 ance by the Government of the United States of its international 
 obligations." These arguments in the note were accompanied by 
 the exhaustive report prepared by John Bassett Moore on extra- 
 territorial crime. 
 
 The difference was satisfactorily settled some years later by a 
 provision in the extradition treaty of February 22, 1899, between 
 the United States and Mexico, by which the contracting parties 
 agreed, except in the case of the crimes of "embezzlement or 
 criminal malversation of public funds committed within the 
 jurisdiction of either party by public officers or depositaries, . . . 
 not to assume jurisdiction in the punishment of crimes committed 
 exclusively within the territory of the other." 
 
 (Extracted and condensed from Moore: Digest of International 
 Law, vol. n, pp. 228-42.)
 
 390 CONTROL OVER VESSELS FLYING NATIONAL FLAG 
 45. TAXATION OF PROPERTY SITUATED ABROAD 
 
 (See Case of Arakelyan, p. 375, and Case of Mrs. Honey, p. 373.) 
 
 46. CONTROL OVER VESSELS FLYING THE NATIONAL FLAG 
 
 REGINA v. LESLEY (1860) 
 
 THE judgment of the court, delivered January 28, 1860, suf- 
 ficiently states the case: 
 
 "In this case the question is, whether a conviction for false 
 imprisonment can be sustained upon the following facts: 
 
 "The prosecutor and others, being in Chile, and subjects of 
 that state, were banished by the government from Chile to 
 England. 
 
 "The defendant, being master of an English merchant vessel 
 lying in the territorial waters of Chile, near Valparaiso, contracted 
 with that government to take the prosecutor and his companions 
 from Valparaiso to Liverpool, and they were accordingly brought 
 on board the defendant's vessel by the officers of the government, 
 and carried to Liverpool by the defendant under his contract. 
 Then, can the conviction be sustained for that which was done 
 within the Chilean waters? We answer no. 
 
 "We assume that in Chile the act -of the government towards 
 its subjects was lawful; and, although an English ship in some re- 
 spects carries with her the laws of her country in the territorial 
 waters of a foreign state, yet in other respects she is subject to the 
 laws of that state as to acts done to the subjects thereof. 
 
 "We assume that the government could justify all that it did 
 within its own territory, and we think it follows that the defend- 
 ant can justify all that he did there as agent for the government, 
 and under its authority. In Dobree v. Napier, 1 the defendant, on 
 
 1 2 Bing. N. C. 781.
 
 REGINA r. LESLEY 391 
 
 behalf of the Queen of Portugal, seized the plaintiff's vessel for 
 violating a blockade of a Portuguese port in time of war. The 
 plaintiff brought trespass; and judgment was for the defendant, 
 because the Queen of Portugal, in her own territory, had a right 
 to seize the vessel and to employ whom she would to make the 
 seizure; and therefore the defendant, though an Englishman 
 seizing an English vessel, could justify the act under the employ- 
 ment of the Queen. 
 
 "We think that the acts of the defendant in Chile become 
 lawful on the same principle, and therefore no ground for the 
 conviction. 
 
 "The further question remains, can the conviction be sustained 
 for that which was done out of the Chilean territory? And we think 
 it can. 
 
 "It is clear that an English ship on the high seas, out of any 
 foreign territory, is subject to the laws of England; and persons, 
 whether foreign or English, on board such ship, are as much amen- 
 able to English law as they would be on English soil. In Regina 
 v. Saltier (Dears. & Bell's C. C. R. 525), this principle was acted 
 on, so as to make the prisoner, a foreigner, responsible for mur- 
 der on board an English ship at sea: the same principle has been 
 laid down by foreign writers on international law, among which 
 it is enough to cite Ortolan (sur la Diplomatic de la Mer, liv. 2, 
 cap. 13). 
 
 "The Merchant Shipping Act (17 & 18 Viet. c. 104, s. 267) 
 makes the master and seamen of a British ship responsible for 
 all offenses against property or person committed on the sea out 
 of Her Majesty's dominions as if they had been committed within 
 the jurisdiction of the Admiralty of England. 
 
 "Such being the law, if the act of the defendant amounted to a 
 false imprisonment he was liable to be convicted. Now, as the 
 contract of the defendant was to receive the prosecutor and the 
 others as prisoners on board his ship, and to take them, without 
 their consent, over the sea to England, although he was justified 
 in first receiving them in Chile, yet that justification ceased when 
 he passed the line of Chilean jurisdiction, and after that it was a 
 wrong which was intentionally planned and executed in pursuance 
 of the contract, amounting in law to a false imprisonment.
 
 392 CONTROL OVER VESSELS FLYING NATIONAL FLAG 
 
 "It may be that transportation to England is lawful by the law 
 of Chile, and that a Chilean ship might so lawfully transport 
 Chilean subjects; but for an English ship the laws of Chile, out of 
 the state, are powerless, and the lawfulness of the acts must be 
 tried by English law. 
 
 "For these reasons, to the extent above mentioned, the convic- 
 tion is affirmed. 
 
 "Conviction confirmed accordingly." 
 
 (Bell's Crown Cases, Court of Queen's Bench and the Courts 
 of Error [London, 1861], pp. 232-35.) 
 
 THE TCHERNIAK AFFAIR (1907) 
 
 ERNEST L MONON (under Notes in the Revue de Droit Inter- 
 national et de Legislation Comparee [1907], 2d series, vol. ix, pp. 
 316-20) relates an interesting case from which is taken the fol- 
 lowing abstract of the facts: 
 
 February 15, 1907, a Swedish merchantman, Olof Wyk, bound 
 for Sweden, touched at the port of Antwerp having on board four 
 dead. The vessel intended to make but a short stay at Antwerp, 
 but because of circumstances consequent upon the death of the 
 four passengers she could not leave before the i8th. 
 
 Upon the vessel's arrival at Antwerp, one filie Tcherniak, 
 brother of one of the deceased, the French revolutionist Tcher- 
 niak, notified the Antwerp authorities that his brother had been 
 assassinated by a person unknown. The Antwerp authorities 
 refused to act upon the complaint because the place where the 
 alleged crime was committed was aboard a Swedish ship upon 
 the high seas. They considered that the Swedish Consul was 
 the authority competent to investigate the matter, not the Bel- 
 gian officials. Following this advice, filie Tcherniak laid his 
 complaint before the Swedish Consul, who then asked the Belgian 
 authorities to help him conduct the investigation. Acting upon 
 a commission rogatory, the investigating magistrate, Caroly, of 
 Antwerp, appointed four experts, two doctors of medicine and two 
 chemists, to make an autopsy of the four bodies and in particular 
 of the body of Tcherniak, for the purpose of discovering the cause
 
 THE TCHERNIAK AFFAIR 393 
 
 of the deaths. ] The ship's officers were unable to give any precise 
 information in regard to the circumstances attending the death 
 of the four passengers, and the principal effort of the investigation 
 was to decide if the deaths had been caused by murder or if there 
 had been, on the contrary, some simple accidental cause. Certain 
 Socialists in Belgium made great clamor about the affair and lost 
 no time in proclaiming that Tcherniak, who had been expelled 
 from Russia as a revolutionist and had taken refuge in France 
 and then in England, had certainly been assassinated on board 
 the Olof Wyk at the instigation of the Russian police and the 
 supporters of the Tsar, who were terrified at the prospect of his 
 return to Sweden. 
 
 On the part of the public, there was, however, a general disposi- 
 tion to await the result of the inquest' before forming an opinion. 
 After the experts had made the autopsy of jthe bodies and visited 
 the Olof Wyk, they eliminated the hypothesis that the deaths 
 were due to crime and concluded, as! far as concerned Tcherniak, 
 that death had been due to carbon monoxide, the poisonous 
 fumes of which had been given off by a defective heating appa- 
 ratus. They asked that a fifth expert and engineer be added to 
 their number for the purpose of examining the technical arrange- 
 ments of the vessel.
 
 CHAPTER IX 
 
 THE COOPERATION OF STATES FOR A RECIPROCAL 
 
 BENEFIT 
 
 47. RECIPROCITY AS A BASIS OF TREATMENT BETWEEN 
 
 GOVERNMENTS 
 
 THE SANTA CRUZ 
 
 The High Court of Admiralty, 1798 
 
 THIS was a case of a Portuguese vessel taken by the French, 
 and retaken by English cruisers, after being a month in the pos- 
 session of the enemy: it was the leading case of several of the same 
 nature, as to the general law of recapture between England and 
 Portugal. . . . 
 
 Sir W. Scott: "These are cases of Portuguese ships or cargoes, 
 eight in number, which have been recaptured at different times by 
 British cruisers. 
 
 "As far as the dates of the recaptures are material, they are to 
 be distinguished under three periods: The first vessel was recap- 
 tured before the month of December 1796, when an ordinance on 
 the subject of recapture passed in Portugal; the second was retaken 
 between the months of December 1796 and May 1797, when an- 
 other ordinance took place, more expressly respecting the prop- 
 erty of allies recaptured from the enemy; the rest may be stated 
 generally, without farther distinction, to have been taken subse- 
 quently to the 9th of May 1797. It is necessary to distinguish 
 these dates, as it is said the difference of date may affect the appli- 
 cation of the general principle, whatever that may be, to the par- 
 ticular cases. 
 
 "They are cases of very considerable value, of much impor- 
 tance, and of no mean difficulty in many respects; under a choice
 
 THE SANTA CRUZ 395 
 
 of cases, they are not such as I should particularly wish to de- 
 termine; but they devolve on me in the regular course of my duty; 
 and I am bound to decide them according to my own best informed 
 apprehensions of law and justice, of the general law of nations, 
 as it has been understood and administered in the British Courts 
 of Admiralty. 
 
 "In the arguments of the council, I have heard much of the 
 rules which the law of nations prescribes on recapture, respecting 
 the time when property vests in the captor; and it certainly is a 
 question of much curiosity, to enquire what is the true rule on 
 this subject; when I say, the true rule, I mean only the rule to 
 which civilized nations, attending to just principles, ought to ad- 
 here; for the moment you admit, as admitted it must be, that the 
 practice of nations is various, you admit there is no rule operating 
 with the proper force and authority of a general law. 
 
 "It may be fit there should be some rule, and it might be either 
 the rule of immediate possession, or the rule of pernoctation and 
 twenty-four hours possession; or it might be the rule of bringing 
 infra prasidia; or it might be a rule requiring an actual sentence 
 of condemnation. Either of these rules might be sufficient for gen- 
 eral practical convenience, although hi theory perhaps one might 
 appear more just than another. But the fact is, there is no such rule 
 of practice; nations concur in principle indeed, so far as regards 
 firm and secure possession. But their rules of evidence respecting 
 the possession are so discordant, and lead to such opposite con- 
 clusions, that the mere unity of principle forms no uniform rule to 
 regulate the general practice. But were the public opinion of Euro- 
 pean states more distinctly agreed, on any principle, as fit to form 
 the rule of the law of nations on this subject, it by no means 
 follows that any one nation would lie under an obligation to 
 observe it. 
 
 "That obligation could arise only from a reciprocity of practice 
 in other nations; for from the very circumstance of the prevalence 
 of a different rule among other nations, it would become not only 
 lawful, but necessary, to that one nation to pursue a different 
 conduct: for instance, were there a rule prevailing among other 
 nations, that the immediate possession and the very act of capture 
 should divest the property from the first owner, it would be ab-
 
 3 96 RECIPROCITY AS A BASIS OF TREATMENT 
 
 surd in Great Britain to act towards them on a more extended 
 principle; and to lay it down as a general rule, that a bringing infra 
 pr&sidia, though probably the true rule, should in all cases of 
 recapture be deemed necessary to divest the original proprietor of 
 his right; for the effect of adhering to such a rule would be gross 
 injustice to British subjects; and a rule, from which gross injustice 
 must ensue in practice, can never be the true rule of law between 
 independent nations; for it cannot be supposed to be the duty of 
 any country to make itself a martyr to speculative propriety, were 
 that established on clearer demonstration than such questions will 
 generally admit. Where mere abstract propriety therefore is on one 
 side, and real practical justice on the other, the rule of substantial 
 justice must be held to be the true rule of the law of nations be- 
 tween independent states. 
 
 "If I am asked, under the known diversity of practice on this 
 subject, What is the proper rule for a state to apply to the recap- 
 tured property of its allies? I should answer, that the liberal and 
 rational proceeding would be, to apply in the first instance the 
 rule of that country to which the recaptured property belongs. I 
 admit the practice of nations is not so; but I think such a rule 
 would be both liberal and just: to the recaptured, it presents his 
 own consent, bound up in the legislative wisdom of his own 
 country; to the recaptor, it cannot be considered as injurious. 
 Where the rule of the recaptured would condemn, whilst the rule 
 of the recaptor prevailing amongst his own countrymen would 
 restore, it brings an obvious advantage; and even in the case of 
 immediate restitution, under the rules of the recaptured, the re- 
 capturing country would rest secure in the reliance of receiving 
 reciprocal justice in its turn. 
 
 "It may be said, What if this reliance should be disappointed? 
 Redress must then be sought from retaliation; which, in the dis- 
 putes of independent states, is not to be considered as vindictive 
 retaliation, but as the just and equal measure of civil retribution: 
 this will be their ultimate security, and it is a security sufficient 
 to warrant the trust. For the transactions of states cannot be 
 balanced by minute arithmetic; something must on all occasions 
 be hazarded on just and liberal presumptions. 
 
 ' ' Or it may be asked, What if there is no rule in the country of the
 
 THE SANTA CRUZ 397 
 
 recaptured? I answer, first, this is scarcely to be supposed; there 
 may be no ordinance, no prize acts immediately applying to re- 
 capture; but there is a law of habit, a law of usage, a standing and 
 known principle on the subject, in all civilized commercial coun- 
 tries: it is the common practice of European states, in every war, 
 to issue proclamations and edicts on the subject of prize; but till 
 they appear, Courts of Admiralty have a law and usage on which 
 they proceed, from habit and ancient practice, as regularly as they 
 afterwards conform to the express regulations of their prize acts. 
 But secondly, if there should exist a country in which no rule pre- 
 vails, the recapturing country must then of necessity apply its 
 own rule, and rest on the presumption, that that rule will be 
 adopted and administered in the future practice of its allies. 
 
 "Again, it is said that a country applying to other countries 
 then* own respective rules will have a practice discordant and ir- 
 regular. It may be so; but it will be a discordance proceeding from 
 the most exact uniformity of principle; it will be idem per diver sa. 
 It is asked also, Will you adopt the rules of Tunis and Algiers? If 
 you take the people of Tunis and Algiers for your allies, undoubt- 
 edly you must; you must act towards them on the same rules of 
 relative justice on which you conduct yourselves towards other 
 nations. And upon the whole of these objections, it is to be ob- 
 served, that a rule may bear marks of apparent inconsistency, and 
 nevertheless contain much relative fitness and propriety: a regula- 
 tion may be extremely unfit to be made, which yet shall be ex- 
 tremely fit, and shall indeed be the only fit rule, to be observed 
 towards other parties who have originally established it for 
 themselves. 
 
 "So much it might be necessary to explain myself on the mere 
 question of propriety; but it is much more material to consider 
 what is the actual rule of the maritime law of England on this sub- 
 ject. I understand it to be clearly this: that the maritime law of 
 England having adopted a most liberal rule of restitution on sal- 
 vage, with respect to the recaptured property of its own subjects, 
 gives the benefit of that rule to its allies, till it appears that they 
 act towards British property on a less liberal principle: in such a 
 case it adopts their rule, and treats them according to their own 
 measure of justice. This I consider to be the true statement of the
 
 398 RECIPROCITY AS A BASIS OF TREATMENT 
 
 law of England on this subject: it was clearly so recognized in the 
 case of the San lago, a case which was not, as it has been insinu- 
 ated, decided on special circumstances nor on novel principles, 
 but on principles of established use and authority in the jurispru- 
 dence of this country. In the discussion of that case, much atten- 
 tion was paid to an opinion found amongst the manuscript collec- 
 tions of a very experienced practitioner in this profession (Sir 
 E. Simson), which records the practice and the rule as it was un- 
 derstood to prevail in his time. 'The rule is: that England re- 
 stores, on salvage, to its allies; but if instances can be given of 
 British property retaken by them and condemned as prize, the 
 Court of Admiralty will determine their cases according to their 
 own rule.' 
 
 "I conceive this principle of reciprocity is by no means peculiar 
 to cases of recapture; it is found also to operate in other cases of 
 maritime law: at the breaking out of a war it is the constant prac- 
 tice of this country to condemn property seized before the war, it 
 the enemy condemns, and to restore if the enemy restores. 
 
 " It is a principle sanctioned by that great foundation of the law 
 of England, Magna Charta itself; which prescribes, that at the 
 commencement of a war the enemy's merchants shall be kept and 
 treated as our own merchants are treated in their country. 
 
 "In recaptures, it is observable, the liberality of this country 
 outsteps its caution; it restores on salvage without inquiry, till it 
 appears that the ally pursues a different rule. It may be said, there 
 may be inequality and hazard in this prompt liberality, and we may 
 restore while the ally condemns, and so the fact has been; for it is 
 not to be denied that before the case of the San lago had intro- 
 duced a more accurate knowledge of the Spanish law, restitutions 
 of Spanish property on recapture had passed as of course; the 
 more accurate rule however is that which I have laid down. 
 
 " In the present state of hostility (if so it may be called) between 
 America and France, the practice of this court restores American 
 property on its own rule, without inquiring into the practice of 
 America. It acts on the same principle towards Danes, and Swedes, 
 and Hamburghers, in the ambiguous state in which the rapine of 
 France has placed the subjects of these governments. Towards 
 Portugal then undoubtedly a less liberal treatment would not be
 
 THE SANTA CRUZ 399 
 
 observed; connected by long alliance, by ancient treaties, by mu- 
 tual interests and common dangers, if Portugal forfeits the benefit 
 of a rule which has been before observed as a general rule, it can 
 be only on this ground that the courts of that country have applied 
 a different rule to the property of British subjects. The ques- 
 tion then for the court to determine will be simply this: Has Por- 
 tugal applied a different rule to British property taken by the 
 enemy, and coming out of their hands into the possession of Por- 
 tuguese subjects?" 
 
 [After discussing the bearing upon the case of conventional re- 
 lations between the two countries and discussing the value of the 
 evidence submitted and upon whom rested the burden of the proof, 
 the eminent judge states:] 
 
 "I consider myself, therefore, justified to conclude, that the 
 law of Portugal established twenty-four hours' possession by the 
 enemy to be a legal divestment of the property of the original 
 owner; and also, that it would have applied the same rule to the 
 property of allies. 
 
 "But I acknowledge it is not sufficient to say such a rule 
 would have been applied. It is also necessary to show that there 
 have been actual proceedings under it; and for that purpose two 
 cases have been produced: the cases of The Anne and of The 
 Endeavour." 
 
 [Proceeding then to examine the course taken by Portugal in 
 these two cases, Sir William Scott gives as his opinion that "un- 
 less they could be overthrown they would sufficiently establish 
 this fact: that it was the practice of the courts of Portugal, either 
 under ancient ordinances, or under a silent, but prevailing usage, 
 or under some recent edict, to confiscate the property of allies 
 coming into the possession of Portuguese subjects from the hands 
 of the enemy." He concludes his opinion in the following words:] 
 
 " Such are the observations which I think myself justified in mak- 
 ing on the proceedings in these two cases; and after the general 
 view which I have taken of the whole of this subject, it may be un- 
 necessary to dwell more particularly on the minute parts of the 
 several papers. It is, I think, clearly proved, that before the ordi- 
 nance of May 1797, the courts of Portugal considered British prop- 
 erty coming out of the hands of the enemy as subject to confisca-
 
 400 RECIPROCITY AS A BASIS OF TREATMENT 
 
 tion; in two instances such property was actually confiscated, 
 not by remote and inferior jurisdictions, but in their highest 
 courts, in the capital of the empire, and under the direction of the 
 state. The ordinance of 1797 cannot be applicable to preexisting 
 cases; I must determine all cases, as if they had come before me at 
 the time of capture. The two former cases, therefore, of this class 
 can receive no protection from this ordinance. 
 
 "Looking then to the conduct which Portugal had observed 
 towards British property, and conceiving myself bound by the 
 general law of this country, and more particularly by the authority 
 of the case of the San lago, to proceed on strict principles of reci- 
 procity, I have no hesitation in pronouncing the first two cases 
 subject to confiscation. 
 
 "I now come to the consideration of the subsequent cases. It 
 has already been laid down, that the law of England restores on 
 salvage, unless it is forced out of its natural course by the practice 
 of its allies. In the preceding cases it has been reluctantly so 
 diverted from its free course; but in May 1797, it appears Portu- 
 gal renounced the harsher principles, and adopted a more liberal 
 rule; upon what ground then can it be contended, that this coun- 
 try must, in regard to those cases which have occurred subsequent 
 to this ordinance, follow the harsh and antiquated, in preference 
 to the new and more lenient rule? It is said Portugal is not at lib- 
 erty to make such an alteration in time of war, and that those who 
 have once established a rule, must abide the consequences of it; 
 but I confess I see no one reason on which this exercise of legislation 
 can be denied to an independent state. 
 
 "It is said, Portugal will then legislate for this country; and so 
 must every country in some degree legislate for us, whilst Great 
 Britain professes to act upon the old principle, and adopt the law 
 of its ally. In peace it is allowed such an alteration might be made, 
 and why not in a time of war? There are no depending interests 
 to be affected by it; it was an alteration as harmless to the world, 
 as if it had been made in times of most profound peace. But it is 
 said, the law is not even now established on equal terms of reci- 
 procity towards this country. The salvage which Portugal has 
 decreed is one-fifth, whilst the law of this country restores on pay- 
 ment of a sixth only. Perhaps a rule more closely concurring with
 
 THE CASE OF BINZEGGER 401 
 
 our own might have been more convenient; but the difference is 
 not sufficient to justify this country in refusing Portuguese sub- 
 jects the benefit of their alteration. In professing to act on the law 
 of our ally, we must do it for better and for worse. 
 
 "I therefore restore the several vessels that have been taken 
 since the ordinance of May 1797, on the salvage which Portugal 
 has established, a salvage of one-eighth to ships of war, and one- 
 fifth to privateers. 
 
 "In the condemned cases, I order the expenses of the claimants 
 to be defrayed out of the proceeds." 
 
 (Extracted and condensed from Robinson: Reports of Cases 
 argued and determined in the High Court of Admiralty, vol. I, 
 pp. 42-67.) 
 
 CATTLE ON THE MEXICAN BORDER (1896) 
 
 THE Mexican Minister at Washington stated in a note of No- 
 vember 2, 1896, that the Mexican Treasury Department had 
 given instructions to the Mexican custom houses at Nogales, 
 Ciudad Juarez, and Las Palmas to permit the cattlemen of the 
 United States to cross into Mexico to aid in collecting their herds 
 under the same conditions that the custom houses of the United 
 States exacted from Mexican cattlemen under similar circum- 
 stances, thus establishing a reciprocity of practice of both gov- 
 ernments in the matter. 
 
 (Extract from Moore: Digest of International Law, vol. iv, 
 
 P- 4I7-) 
 
 48. COMITY 
 
 THE CASE OF BINZEGGER (1884) 
 
 NOVEMBER 22, 1884, a Swiss newspaper published a statement 
 that the authorities of the Canton of Zug had granted the petition 
 for pardon of one Binzegger, who was sentenced in 1867 to life 
 imprisonment for incendiarism, on condition of his promised emi- 
 gration to America. The American Legation at Berne asked the 
 
 SANTA BARBARA STATE COLLEGE LIBRA*!
 
 402 COMITY 
 
 Federal Council to call the attention of the cantonal authorities 
 to the laws of the United States which prohibited the landing of 
 such persons. The action of the legation was approved by Mr. 
 Frelinghuysen, with the statement that it was presumed that the 
 Federal Council would prevent the consummation of the design 
 to land a criminal in the United States, "as a violation of the 
 comity, which should obtain between the two governments." 
 The Federal Council, in reply to the legation, stated that Binzeg- 
 ger had been pardoned by the cantonal authorities on the ground 
 of his good conduct during imprisonment; that he had been par- 
 doned without any restrictive condition, and that he had mani- 
 fested no intention of emigrating to the United States, but in- 
 tended to go to Buenos Ayres. 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 IV, p. 147.) 
 
 THE CASE OF JACOB FRANCK (1896) 
 
 IN February, 1896, a discussion took place between the United 
 States and Germany as to one Jacob Franck, a seaman on a Ger- 
 man steamer, who had been discharged from that vessel or had 
 deserted from it in December, 1895, at Savannah, Georgia, and 
 had become a public charge by reason of insanity. The German 
 Ambassador stated that no provision for his return was made by 
 the imperial laws. It seems there was a question as to his citizen- 
 ship. By the laws and regulations of the United States, provision 
 is made for the relief of 'destitute or disabled American seamen in 
 foreign lands by the consular representatives of [the United States 
 where such seamen are found to be citizens of the United States, 
 even though they may have deserted. 
 
 The case was brought to the attention of the Secretary of the 
 Treasury, who held that Franck was not an alien immigrant and 
 could not be returned to Germany under the immigration laws, it 
 being impossible to eliminate from the case his character as a de- 
 serting seaman. In this relation the attention of the German Am- 
 bassador was called to article 14 of the treaty between the United 
 States and the German Empire of December u, 1871, in relation 
 to the delivery of deserters, and it was suggested that although the
 
 THE EXTRADITION OF NALBANDIAN 403 
 
 article was permissive in form, it was framed on the assumption 
 that each contracting party would recover its deserters and not 
 permit them to become a charge upon a foreign community, and 
 that the execution of it in such a case was "an international obli- 
 gation of comity as well as a duty ofj humanity to the sufferer. " 
 The German Ambassador subsequently stated that the Imperial 
 Government was unable to regard the article in question as im- 
 posing any obligation on German Consuls to take charge of sea- 
 men who were deserters. He also stated that three years pre- 
 viously the United States Legation at Berlin "expressly informed 
 the Foreign Office that it declined, on principle, to send home at 
 the expense of the United States destitute Americans who were 
 in German insane asylums." 
 
 (Extract from Moore: Digest of International Law, vol. m, pp. 
 807-09.) 
 
 49. EXTRADITION 
 
 THE EXTRADITION OF NALBANDIAN (1910) 
 
 [THE following selection of the papers given in the Foreign Rela- 
 tions of the United States indicates the procedure hi this interesting 
 case:] 
 
 Charge Harvey to the Secretary of State 
 
 [Telegram Paraphrase] 
 
 AMERICAN LEGATION, 
 Bucharest, February 5, 
 
 Mr. Harvey says that Vahan Nalbandian, who is wanted by the 
 police of Lynn, Massachusetts, for murder, is held by the Bulga- 
 rian authorities, and that if extradition papers are sent at once the 
 prisoner will be surrendered upon their presentation. 
 
 Chargt Harvey to the Secretary of State 
 
 AMERICAN LEGATION, 
 (No. 52, Bulgarian series.) Bucharest, February 5, 1910. 
 
 Sir: I have the honor to report on January 8 I received from Mr. 
 Thomas M. Burckes, chief of police of Lynn, Massachusetts, a
 
 404 EXTRADITION 
 
 communication stating that one Vahan Nalbandian had been in- 
 dicted by the grand jury of Essex County in that state for the 
 murder of one Minas K. Monigan, and that the said Nalbandian 
 was supposed to be at Silistra, Bulgaria. He enclosed a circular 
 police description, with pictures of the accused, and asked that 
 the Bulgarian authorities be communicated with and the man ap- 
 prehended and placed under arrest to await the receipt of extradi- 
 tion papers from his government. 
 
 I immediately went to the Bulgarian Legation in this city and 
 communicated to them the request as above stated, and gave them 
 the circular and picture of the accused. Yesterday I received a 
 letter from the state's attorney (procureur du tribunal), of Silistra, 
 Theodore Maneff, stating that Nalbandian has been arrested and 
 had acknowledged that he was the person wanted by the Lynn 
 police. After consultation with the Bulgarian Legation as to 
 whether then* government would permit the extradition of the 
 accused, there being no treaty or convention of extradition between 
 the two countries, I telegraphed the Bulgarian Foreign Office, 
 stating that Nalbandian was wanted by the American police for a 
 murder committed at Lynn, and that he had been arrested in Bul- 
 garia and was now being held on my demand, and asked whether 
 the Bulgarian Government would permit his extradition upon the 
 presentation of the necessary papers, and whether they would 
 hold the prisoner until such papers should arrive. 
 
 In response, I received a telegram last night from the Bulgarian 
 Government stating that they had instructed their legation here 
 how to act in the matter. This morning I received a message by 
 telephone from the Bulgarian Legation that their government 
 would surrender the accused on the presentation of proper extra- 
 dition papers if the same were sent without delay. I immediately 
 telegraphed the Department that the accused was wanted by the 
 Lynn police and that the Bulgarian authorities would surrender 
 him on presentation of the proper extradition papers. 
 
 I have, etc., 
 
 ROLAND B. HARVEY.
 
 THE EXTRADITION OF NALBANDIAN 405 
 
 [Enclosure Translation] 
 
 The Royal Bulgarian Legation to Charge Harvey 
 
 BUCHAREST, January 23, igjo. 
 
 In reply to the verbal requests made by M. le Charg6 d' Affaires 
 of the United States in regard to the search for and arrest of one 
 Vahan Nalbandian, the Royal Legation of Bulgaria has the honor 
 to inform the Legation of the United States of America that ac- 
 cording to a communication from the Royal Ministry for Foreign 
 Affairs the individual in question has just been arrested by the 
 authorities of Silistra. 
 
 In bringing the foregoing to the knowledge of the honorable 
 Legation of the United States the Royal Legation of Bulgaria has 
 the honor to beg it to take the necessary steps at its earliest con- 
 venience and request the extradition of the said V. Nalbandian of 
 the Royal Government, annexing the necessary papers. 
 
 The Acting Secretary of State to Chargi Harvey 
 
 DEPARTMENT OF STATE, 
 [No. 30.] Washington, February 19, 1910. 
 
 Sir: I enclose the extradition papers in the case of Vahan Nal- 
 bandian, alias Frank Jones, whose extradition from Bulgaria is de- 
 sired by the State of Massachusetts. You will transmit the papers 
 to the Foreign Office and request, as an act of grace, the surrender 
 of Nalbandian upon the charge of murder. You will at the same 
 time formally state in your note of request that owing to the limi- 
 tations placed upon the power of the executive in this country it 
 will not be possible for this government, in the absence of a treaty 
 of extradition, to reciprocate this considerate action of the Bulga- 
 rian Government. You will also express the high appreciation of 
 this government for the courtesy extended by the Bulgarian au- 
 thorities in expressing their willingness to surrender this man. 
 
 I am, etc., 
 
 HUNTINGTON WlLSON.
 
 406 EXTRADITION 
 
 Chargt Harvey to the Secretary of State 
 
 AMERICAN LEGATION, 
 [No. 9, Bulgarian series.] Bucharest, April 7, igzo. 
 
 Sir: Referring to the case of Vahan Nalbandian, whose extradi- 
 tion from Bulgaria was asked for by the police authorities of Lynn, 
 Massachusetts, on the charge of murder committed in that city, I 
 have the honor to inform the Department that after the receipt 
 of the Department's instruction, Bulgarian series No. 30, of Feb- 
 ruary 19, and upon the arrival of Stacey R. Burckes, the special 
 agent of the President, named in the warrant accompanying the 
 extradition papers enclosed in the said instruction No. 30 (Mar. 13), 
 I prepared, with the aid and advice of Mr. Carter, a note to Gen- 
 eral Paprikoff, the Minister for Foreign Affairs of Bulgaria, a copy 
 of which I herewith enclose, formally asking for the extradition 
 of the said Nalbandian as an act of grace on the part of the Bul- 
 garian Government, and again informing them, as I had previ- 
 ously done in the case of the Bulgarian Legation in this city, that, 
 owing to the limitations placed by the Constitution of the United 
 States upon the executive, my government would not be able to 
 reciprocate under like circumstances. 
 
 As neither Mr. Burckes nor Mr. Wells, who accompanied him, 
 could speak any language except English and were entirely unfa- 
 miliar with the necessary formalities in these countries, and as I 
 was about to proceed to Sofia anyhow, Mr. Carter and myself con- 
 sidered it necessary for me to proceed to Sofia with the agents 
 above referred to. We arrived at Sofia in the evening of March 15, 
 and I obtained an audience and presented my note to General 
 Paprikoff in person, on the morning of March 17. I went over the 
 matter fully with him and with Mr. Radeff, the chief of the politi- 
 cal section, who had the matter in charge, and reiterated the im- 
 possibility of my government to reciprocate. General Paprikoff 
 at once stated that he thought there would be no difficulty about 
 the matter, but that, as it would have to be referred to the Minis- 
 ter of Justice, and that as some if not all the papers would have to 
 be translated into Bulgarian, he would not be able to give me defi- 
 nite word before Saturday, March 19. On that day I received an 
 informal communication that the extradition would be granted and
 
 THE EXTRADITION OF NALBANDIAN 407 
 
 that the formal papers would be delivered to me on Monday. I im- 
 mediately communicated to Mr. Carter the information received, 
 and steps were at once taken at Bucharest to arrange for his tran- 
 sit across Roumania and Hungary to Fiume, as that route seemed 
 to be the least troublesome and most expeditious, there being a 
 Cunard Line steamer, the Ultonia, sailing from that port on April 
 2. On Monday I received a formal notice from the Bulgarian Gov- 
 ernment that the extradition would be granted. The Bulgarian 
 Government also informed me that it would assume all the expenses 
 incident to the retention of the prisoner while in Bulgaria, as well 
 as his transportation to whatever port or city on their frontier that 
 we might designate for his delivery to our agents. It also refused 
 to allow me to pay for the translation of the papers, or, in fact, to 
 bear any part of the expenses incurred in the whole matter while 
 in Bulgaria. The whole attitude of the Bulgarian authorities was 
 most courteous and obliging, and I took pains to assure them of the 
 great appreciation of my government and the legation. 
 I have, etc., 
 
 ROLAND B. HARVEY. 
 
 Minister Carter to the Secretary of State 
 
 [Extract] 
 
 AMERICAN LEGATION, 
 [No. 63, Roumanian series.] Bucharest, April g, igio. 
 
 Sir: With reference to the Department's No. 30, Bulgarian 
 series, of February 19 (File No. 21641/7), relating to the extradi- 
 tion of Vahan Nalbandian, the statement of the case in Mr. Har- 
 vey's No. 9, Bulgarian series, of the yth instant, is so full that I 
 have little to add for the information of the Department. 
 
 During Mr. Harvey's absence at Sofia I arranged with the 
 Austrian Legation here for the safe-conduct of the United States 
 agents with their prisoner across Austrian territory to Fiume, and 
 with the Foreign Office at Bucharest for their transit by way of 
 Roumania. 
 
 At the last moment, however, the Minister for Foreign Affairs 
 informed me that permission for the transit of the prisoner could 
 not be granted. This refusal was based upon the grounds that 
 having no extradition treaty with us, Roumanian law demanded
 
 408 EXTRADITION 
 
 the same process for the transit as if it were a question of a case 
 of extradition, and, besides, that the prisoner being extradited on 
 the charge of murder, for which the penalty in the United States 
 is death, the transit could not have been effected in any case unless 
 our government promised not to exact the death penalty. 
 
 That the law of the country did not permit it I could not ques- 
 tion, but I did express my regret that I should not have been so 
 informed either on the day I made the request or at least in suf- 
 ficient time during the ten days thereafter to enable me to change 
 the arrangement. 
 
 However, by the great courtesy and prompt action of the officials 
 of the Bulgarian, Servian, and Austrian Governments, the arrange- 
 ments were speedily altered so that the agents with their prisoner 
 were thereby enabled to reach Fiume the very morning of the day 
 their ship sailed. 
 
 I may mention that at the request of the agents I sent Mr. 
 Bancroft, the clerk of this legation, with them to help them on 
 their way. His presence of mind at the Austrian frontier, owing to 
 our late change of plans (the instructions to the police had not 
 arrived), made it possible for the agents to proceed by the one train 
 which got them to their destination in time. 
 
 I have, etc., 
 
 JOHN RIDGELY CARTER. 
 
 (Foreign Relations of the United States, 1910, pp. 122-28.) 
 
 THE CHARLTON EXTRADITION CASE 
 
 The Supreme Court of the United States, 1913 
 
 THIS was an appeal to the Supreme Court of the United States 
 from the judgment of the Circuit Court of the United States for 
 the District of New Jersey dismissing a petition for a writ of 
 habeas corpus on behalf of one Porter Charlton, held under war- 
 rant for extradition to Italy as a fugitive from justice. 
 
 The petitioner was an American citizen who, on his own con- 
 fession, had murdered his wife at Moltrasio, Italy, and had es- 
 caped to New Jersey. On complaint duly made by the Italian 
 Vice-Consul, extradition proceedings were instituted in accordance
 
 THE CHARLTON EXTRADITION CASE 409 
 
 with the treaty between the United States and Italy, article i of 
 which is as follows: 
 
 "The Government of the United States and the Government of 
 Italy mutually agree to deliver up persons who, having been con- 
 victed of or charged with the crimes specified in the following 
 article, committed within the jurisdiction of one of the contract- 
 ing parties, shall seek an asylum or be found within the territories 
 of the other; Provided, that this shall only be done upon such 
 evidence of criminality as, according to the laws of the place 
 where the fugitive or person so charged shall be found, would 
 justify his or her apprehension and commitment for trial, if the 
 crime had been there committed." (Malloy: Treaties, vol. I, 
 p. 967.) 
 
 A warrant having duly issued for Charlton's arrest, the magis- 
 trate found, from the evidence submitted, probable cause for the 
 charge of murder, and committed Charlton to await a warrant 
 from the Secretary of State authorizing his extradition to Italy. 
 The execution of the warrant was stayed by habeas corpus pro- 
 ceedings and the appeal taken to the Supreme Court. 
 
 Three main objections were urged against the extradition of 
 Charlton: 
 
 (1) That evidence of the insanity of the accused had been 
 offered and excluded. 
 
 (2) That under the treaty with Italy neither party is bound to 
 deliver up its own citizens: i.e., the term "persons" does 
 not include citizens of the asylum country. 
 
 (3) That inasmuch as Italy forbids extradition of her own citi- 
 zens, the treaty lacks mutuality and, as regards a case like 
 that of Charlton, has been abrogated. 
 
 i. It was contended for the appellant that by excluding evi- 
 dence as to his insanity, the magistrate had failed to give effect to 
 the provision of the Act of 1882 (22 Statutes, 215, Dec. 3) requir- 
 ing that the defendant's witnesses shall be heard. But the court 
 held that the proceeding before the magistrate is not a trial ; " the 
 issue is confined to the single question of whether the evidence for 
 the state makes a prima facie case of guilt sufficient to make it 
 proper to hold the party for trial." Hence, in the opinion of the
 
 410 EXTRADITION 
 
 court, the examining magistrate did not act in excess of his author- 
 ity. "If the evidence was only for the purpose of showing present 
 insanity by reason of which the accused was not capable of defend- 
 ing the charge of crime, it is an objection which should be taken 
 before or at the time of his trial for the crime, and heard by the 
 court having jurisdiction of the crime. If it was offered to show 
 insanity at the time of the commission of the crime, it was obvi- 
 ously a defense which should be heard at the time of his trial, or 
 by a preliminary hearing in the jurisdiction of the crime, if so 
 provided for by its laws." 
 
 2. The second objection turned upon the interpretation of the 
 word "persons" in the treaty with Italy. Does it include citizens 
 of the asylum country? Counsel for the appellant maintained that 
 it does not, that there is an implied exclusion and that this inter- 
 pretation is supported by the practice of Italy, which refuses to 
 extradite its own citizens on the ground that the penal jurisdiction 
 of Italy takes cognizance of crimes committed by Italians in a 
 foreign country. Further, many extradition treaties, even some 
 made by the United States, expressly exclude citizens from their 
 scope. The court held, however, that such an exception must be 
 explicit; "the word 'persons' includes all persons when not quali- 
 fied as it is in some of the treaties between this and other nations." 
 And the court went on to point out the effect of such an interpre- 
 tation upon extradition treaties such as that with Great Britain 
 in 1843. "Inasmuch as under the laws of that country, as of this, 
 crimes committed by their citizens within the jurisdiction of an- 
 other country were punishable only where the crime was com- 
 mitted, it was important that the Italian interpretation should not 
 be accepted." 
 
 3. The objection that the treaty was void was more fundamen- 
 tal; Italy had refused to extradite Italian citizens to the United 
 States, and, even in the present proceedings, had gone on record 
 as still adhering to that principle; hence, the appellant contended, 
 the obligations under the treaty were not reciprocal and the 
 treaty, pro tanto, was void. The court recognized that absence 
 of mutuality rendered the treaty voidable, but until the United 
 States expressly abrogated the treaty, it was still in force. The 
 alternative to abrogation of this particular treaty was to give up
 
 THE CASE OF MYERS AND TUNSTALL 411 
 
 its interpretation of "persons" as including citizens, and this 
 would affect adversely five other treaties. "If the attitude of 
 Italy was, as contended, a violation of the obligations of the 
 treaty, which, in international law, would have justified the 
 United States in denouncing the treaty as no longer obligatory, 
 it did not automatically have that effect." In the language of 
 Vattel, quoted by the court, "when the treaty of peace is vio- 
 lated by one of the contracting parties, the other has the op- 
 tion of either declaring the treaty null and void, or allowing it 
 still to subsist; ... if he chooses not to come to a rupture, the 
 treaty remains valid and obligatory." There was, further, the 
 controlling fact that the executive department had recognized the 
 treaty obligation as still binding. In his decision to extradite 
 Charlton, the Secretary of State had stated that "it would seem 
 entirely sound to consider ourselves as bound to surrender our 
 citizens to Italy, even though Italy should not, by reason of the 
 provision of her municipal law, be able to surrender its citizens 
 to us." l This was considered decisive by the court and judgment 
 was affirmed. 
 
 (Charlton v. Kelly, 229 U.S. 447-76; American Journal of Inter- 
 national Law [1913], vol. vn, pp. 580-82; 637-53.) 
 
 THE CASE OF MYERS AND TUNSTALL (1862) 
 
 IN February, 1862, Henry Myers and J. F. Tunstall, American 
 citizens, members of the crew of the Confederate vessel Sumtcr, 
 then lying at Gibraltar, took passage on the French merchant 
 steamer Ville de Malaga for Cadiz, in order to obtain a supply of 
 coal for the Confederate cruiser. The Ville de Malaga, having 
 called at Tangier, Morocco, Myers and Tunstall went ashore, 
 where, as they were walking in the street, the United States Con- 
 sul, with the aid of a Moorish military guard, seized them and con- 
 veyed them to the consulate, where they were kept in irons till 
 the arrival of the U.S.S. Ino, on which they were shipped for the 
 United States. They were subsequently committed to military 
 
 1 The French Government has, In its practice of extradition, made It a fixed and 
 apparently unalterable rule not to extradite its own nationals. See | 41, p. 373.
 
 412 EXTRADITION 
 
 custody at Fort Warren, Boston. The point having been raised 
 that, because the men were political offenders, Morocco should 
 have been asked to deliver them up, Mr. Seward replied that none 
 of the treaties of the Christian nations with Morocco excepted that 
 class of offenders from its operation. He intimated that extradi- 
 tion treaties between Christian nations contained such an excep- 
 tion, because those nations trusted one another to prevent any 
 abuse of their protection by refugees. No Christian state had 
 shown itself willing thus to trust the Empire of Morocco. The ut- 
 most, he said, that could be pretended was " that some Christian 
 nations, including the United States, have informally manifested 
 their approval of the extension of the right of asylum granted by 
 the Sultan of Turkey to the Hungarian refugees in the late civil 
 war in Austria. But they were no longer combatants; their at- 
 tempted revolution was ended, and the refugees were demanded 
 by Austria, not on the ground of apprehensions of danger from the 
 continued hostility, but to punish them for the treason which she 
 alleged they had committed. Assuming the facts as reported, the 
 offenders in this case were not held or sheltered hi Tangier as 
 exiles, or as refugees in asylum, but they were taken in the very act 
 of war against this government." Mr. Seward added that the 
 whole proceeding was conducted with the acquiescence and aid of 
 the Moorish governor. 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 iv, pp. 332-33-) 
 
 ANARCHISTS (1894) 
 
 ALTHOUGH anarchists profess political motives for their acts, yet 
 in June, 1894, the British Government, after full consideration of 
 the question by the Court of Queen's Bench, delivered up to France 
 a fugitive from justice, who was charged with causing the explo- 
 sion at the Cafe Very in Paris, as well as another explosion at cer- 
 tain government barracks. The court held "that, in order to con- 
 stitute an offense of a political character, there must be two or 
 more parties in the state, each seeking to impose the government 
 of their own choice on the other;" and that the offense must
 
 UNITED STATES v. RAUSCHER 413 
 
 be "committed by one side or the other in pursuance of that 
 object." 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 iv, p. 354.) 
 
 UNITED STATES v. RAUSCHER 
 
 The Supreme Court of the United States, 1886 
 
 IN 1886 the defendant Rauscher was indicted in the Circuit 
 Court of the United States for the Southern District of New York 
 on the charge of inflicting cruel and unusual punishment upon 
 Janssen, a member of the crew of an American vessel of which 
 Rauscher was an officer. Previous to the indictment, Rauscher 
 had been extradited from Great Britain charged with the murder 
 of Janssen, the same set of facts having been submitted as proof 
 in the extradition proceedings as had later formed the basis of the 
 indictment for the minor offense. Rauscher, however, had not 
 been tried for murder, the charge in the indictment having been 
 substituted, although the latter offense was not extraditable under 
 the treaty involved the Webster-Ashburton Treaty of 1842. 
 The prisoner having been found guilty, it was contended, on mo- 
 tion in arrest of judgment, that there was no jurisdiction to try 
 Rauscher on a charge other than that for which he had been extra- 
 dited, and upon a division of opinion among the judges of the Cir- 
 cuit Court, the question was certified to the Supreme Court of the 
 United States for its judgment. 
 
 Having pointed out that there is no obligation to extradite, 
 apart from treaty, and that, in the United States, extradition is a 
 matter falling solely within the powers of the Federal Government, 
 the court considered the treaty of 1842 in so far as it provided " for 
 the giving up of criminals, fugitives from justice, in certain cases," 
 seven in all. It was recalled that the very question before the court 
 had formed the subject of diplomatic negotiations between the 
 United States and Great Britain in previous cases of extradition. 
 "... Mr. Fish defended the right of the government or state in 
 which the offense was committed to try a person extradited under 
 this treaty for any other criminal offense, as well as for the one for 
 which the extradition had been demanded ; while Lord Derby, at 
 the head of the Foreign Office in England, construed the treaty as
 
 4H EXTRADITION 
 
 requiring the government which had demanded the extradition of 
 an offender against its laws for a prescribed offense, mentioned in 
 the treaty and in the demand for his extradition, to try him for that 
 offense and for no other. . . . The negotiations between the two 
 governments, however, on that subject were inconclusive. . . ." 
 The court expressed its own opinion, in part, as follows: 
 "We have already seen that, according to the doctrine of pub- 
 licists and writers on international law, the country receiving the 
 offender against its laws from another country had no right to 
 proceed against him for any other offense than that for which he 
 had been delivered up. This is a principle which commends itself 
 as an appropriate adjunct to the discretionary exercise of the power 
 of rendition, because it can hardly be supposed that a government 
 which was under no treaty obligation nor any absolute obligation 
 of public duty to seize a person who had found an asylum within 
 its bosom and turn him over to another country for trial, would be 
 willing to do this, unless a case was made of some specific offense 
 of a character which justified the government in depriving the 
 party of his asylum. It is unreasonable that the country of the 
 asylum should be expected to deliver up such person to be dealt 
 with by the demanding government without any limitation, im- 
 plied or otherwise, upon its prosecution of the party. In exer- 
 cising its discretion, it might" be very willing to deliver up offend- 
 ers against such laws as were essential to the protection of life, 
 liberty, and person, while it would not be willing to do this on ac- 
 count of minor misdemeanors or of a certain class of political 
 offenses in which it would have no interest or sympathy. . . . In- 
 deed, the enumeration of offenses in most of these treaties, and es- 
 pecially in the treaty now under consideration, is so specific, and 
 marked by such a clear line in regard to the magnitude and impor- 
 tance of those offenses, that it is impossible to give any other inter- 
 pretation to it than that of the exclusion of the right of extradi- 
 tion for any others. . . . 
 
 "It is unreasonable to suppose that any demand for rendition 
 framed upon a general representation to the government of the 
 asylum, (if we may use such an expression), that the party for 
 whom the demand was made was guilty of some violation of the 
 laws of the country which demanded him, without specifying any
 
 UNITED STATES v. RAUSCHER 415 
 
 particular offense with which he was charged, and even without 
 specifying an offense mentioned in the treaty, would receive any 
 serious attention; and yet such is the effect of the construction that 
 the party is properly liable to trial for any other offense than that 
 for which he was demanded, and which is described in the treaty. 
 There would, under that view of the subject, seem to be no need 
 of a description of a specific offense in making the demand. . . . 
 If the proceedings under which the party is arrested in a country 
 where he is peaceably and quietly living, and to the protection of 
 whose laws he is entitled, are to have no influence in limiting the 
 prosecution in the country where the offense is charged to have 
 been committed, there is very little use for this particularity in 
 charging a specific offense, requiring that offense to be one men- 
 tioned in the treaty, as well as sufficient evidence of the party's 
 guilt to put him upon trial for it. ... 
 
 "If there should remain any doubt upon this construction of 
 the treaty itself, the language of two acts of Congress, hereto- 
 fore cited, incorporated in the Revised Statutes, must set this 
 question at rest. [Rev. Stat., 5272, 5275.] . . . 
 
 "The obvious meaning of these two statutes, which have ref- 
 erence to all treaties of extradition made by the United States, 
 is that the party shall not be delivered up by this government to 
 be tried for any other offense than that charged in the extradi- 
 tion proceedings; and that, when brought into this country upon 
 similar proceedings, he shall not be arrested or tried for any other 
 offense than that with which he was charged in those proceedings, 
 until he shall have had a reasonable time to return unmolested 
 to the country from which he was brought. . . . 
 
 "Upon a review of these decisions of the federal and state 
 courts, to which may be added the opinions of the distinguished 
 writers which we have cited in the earlier part of this opinion, 
 we feel authorized to state that the weight of authority and of 
 sound principle are in favor of the proposition, that a person 
 who has been brought within the jurisdiction of the court by 
 virtue of proceedings under an extradition treaty, can only be 
 tried for one of the offenses described in that treaty, and for the 
 offense with which he is charged in the proceedings for his extra- 
 dition, until a reasonable time and opportunity have been given
 
 416 EXTRADITION 
 
 him, after his release or trial upon such charge, to return to the 
 country from whose asylum he had been forcibly taken under 
 those proceedings." 1 
 
 (United States v. Rauscher, 119 U.S. 407-36; Foreign Relations 
 of the United States, 1876, pp. 204-307; Moore: Extradition, vol. 
 I, pp. 212-46.) 
 
 THE SAVARKAR CASE 
 
 The Permanent Court of Arbitration at The Hague, 1911 
 
 BY an exchange of notes on the 4th and the 5th of October, 1910, 
 the British and the French Governments agreed to submit to arbi- 
 tration, "on the one hand, the questions of fact and law raised by 
 the arrest and restoration to the mail steamer Morea at Marseilles, 
 on the 8th of July, 1910, of the Indian, Vinayak Damodar Savar- 
 kar, who had escaped from that vessel, on board of which he was 
 in custody; and on the other hand, the demand of the Govern- 
 ment of the Republic with a view to the restitution to them of 
 Savarkar." 
 
 The circumstances leading up to the demand of the French 
 Government for the restitution of Savarkar were as follows: 
 
 Savarkar was a Hindu revolutionary accused of abetting the 
 
 1 By its decision in Rauscher's case the Supreme Court enunciated for the United 
 States the principle contended for by Great Britain ten years previously in its 
 controversy with the United States arising out of the Lawrence and the Winslow 
 cases. So apparently irreconcilable were the respective contentions, that when 
 Great Britain in Winslow's case asked for an assurance that he would not be tried 
 for any offense other than the one for which extradition was requested "until he had 
 been restored or had an opportunity of returning to Her Majesty's dominions," Mr. 
 Fish replied that "neither the President, nor any officer of the Federal Government, 
 has power to control or to dismiss the prosecution in Winslow's case, or in any case 
 where the offense is against the laws of one of the states, and could not give any 
 stipulation or make any arrangement whatever as to the offenses for which he should 
 be tried when returned to the justice of the state against whose laws he may have 
 offended." As a result, extradition proceedings under the Treaty of 1842 were sus- 
 pended for six months, neither government making requisitions and many criminals 
 in consequence escaping, among them Winslow. But as such a situation was found 
 inconvenient, the British Government undertook to apply the provisions of the old 
 treaty until a new extradition arrangement could be made " without asking for any 
 engagement as to such persons not being tried in the United States for other than the 
 offenses for which extradition has been demanded." 
 
 The new extradition treaty with Great Britain was concluded in 1889 and contains 
 a provision in the sense of the British contention and the Rauscher decision.
 
 THE SAVARKAR CASE 417 
 
 murder of an Indian official. He was arrested in London and, 
 after a preliminary examination, ordered to- be sent back to India 
 to stand trial. As the steamer Morea, on which he was to sail, 
 would in the ordinary course of her voyage touch at Marseilles, 
 and as there might possibly be an attempt on the part of Hindu 
 sympathizers at that port to rescue Savarkar, Sir E. Henry, the 
 Commissioner of the Metropolitan Police in London, wrote on 
 June 29 to M. Hennion, Directeur de la Stirete General at Paris, 
 asking him to insure the safety of the prisoner while at Mar- 
 seilles. Though M. Hennion did not send a reply until the Qth of 
 July, the Ministry of the Interior gave the necessary instructions 
 through the Prefect of the Rhdne, to whom was communicated 
 the letter of Sir E. Henry. On the yth of July the Morea arrived 
 at Marseilles, and, soon after her arrival, M. Leblais, Commis- 
 sionaire Special, came on board and showed a letter relative to as- 
 sistance to be given by the French police in case of need, and, be- 
 fore leaving, introduced the British officials in charge of Savarkar 
 to the French officer of gendarmerie. 
 
 Next morning Savarkar escaped through a porthole and swam 
 ashore. The Indian constables on the Morea raised a shout and 
 the French policeman on guard, Brigadier Pesqui6, went in pur- 
 suit. Overtaking him, he started back to the ship with him, and, 
 on the way, three men from the Morea came up and seized Savar- 
 kar by the shoulder, though Pesquie still kept custody of his pris- 
 oner and handed him over to the British officials on board. 
 
 The Morea left Marseilles on July 9 and arrived at Aden on 
 July 17. But it was not till July 18 that France made representa- 
 tion to Great Britain that the surrender of Savarkar had been 
 irregular and in violation of international law, and requested the 
 restoration of Savarkar to French jurisdiction. In the course of 
 negotiations, the matter was seen to present an interesting and 
 important subject for international adjudication. Accordingly, 
 following the exchange of notes referred to, a protocol was signed 
 at London on October 25, 1910, referring the matter to a tribunal 
 of five arbitrators to be chosen from the Permanent Court at The 
 Hague. The procedure to be followed was laid down in the proto- 
 col, but in a supplementary note a few days later it was agreed 
 that, in the absence of specific provisions on any point, the Con-
 
 4i 8 EXTRADITION 
 
 vention of 1907 for the Pacific Settlement of International Dis- 
 putes was to govern. 
 
 The tribunal met at The Hague on February 14, 1911, under 
 the presidency of M. Beernaert, of Belgium. The other members 
 were the Earl of Desart, of Great Britain, M. Renault, of France, 
 M. Gram, of Norway, and Jonkeer A. F. de Savornin Lohman, of 
 the Netherlands. The decision was rendered February 24, 1911. 
 
 As the case was presented, it was not so much the facts that were 
 in controversy as the juridical interpretation of the facts and the 
 principles to be applied. France advanced four arguments to sup- 
 port her demand: 
 
 1. Savarkar, on French territory, had an inalienable right of 
 asylum. 
 
 2. British officials had violated French sovereignty. 
 
 3. The surrender by a subordinate official was irregular in 
 French law and in international law, and for this reason 
 Savarkar ought to have been given back to the French 
 authorities. 
 
 4. There had been error on the part of Pesquie as to the iden- 
 tity of the person surrendered. 
 
 1. France did not press this point before the tribunal, though 
 it had put it forward in the diplomatic correspondence with the 
 British Foreign Secretary. As the British case put it, " the power 
 of expulsion is the complement of the power of exclusion," and 
 though a government may grant asylum, the fugitive may not 
 claim it as of right. Great Britain has used the power of expulsion 
 so rarely that a mistaken idea has arisen about the right of asylum 
 in that country. There may be some question as to where the 
 power to expel resides, but Great Britain adheres to the universal 
 principle of the right of expulsion. 
 
 2. The violation of French sovereignty, it was argued, arose 
 from the detention of Savarkar in a French port as well as from 
 his arrest on French soil. France had not guaranteed transit in 
 the arrangement made with Sir E. Henry. Such an agreement 
 would have to be explicit and was not in the power of M. Hennion 
 to make. Nor had Pesquie orders to arrest Savarkar, as such, on 
 French territory. His instructions were merely to keep off Hindus
 
 THE SAVARKAR CASE 419 
 
 and to prevent the crew from going ashore. Savarkar, the revo- 
 lutionary, once upon French soil did not come under the ordinary 
 precautionary measures taken by the French police at Marseilles 
 in accordance with the Anglo-French Declaration re deserters, 
 and could not be delivered up except by the sovereign act of extra- 
 dition. In the events leading to the arrest, the British officials had 
 taken the initiative by raising an outcry which caused Pesqui to 
 pursue and had assisted in the arrest, thus usurping authority 
 within French jurisdiction. 
 
 On the contrary, Great Britain maintained that the detention 
 of Savarkar on the Morea was not illegal under the law of the 
 flag, and hence French sovereignty over territorial waters had 
 not been violated. Merely touching at a port in the prosecu- 
 tion of a voyage does not, for purposes of jurisdiction, have the 
 same significance as transit over French soil. The Morea, especially 
 after the Henry-Hennion correspondence, entered the port under 
 an implied permission, and, further, the action of the French 
 police authorities, hi allowing Savarkar to remain on board, showed 
 a dear intention not to exercise any jurisdiction over Savarkar. 
 Were it otherwise, the Morea would not have come within French 
 waters; at any rate, other arrangements would have been made 
 for Savarkar's transportation. As for the violation of sovereignty 
 upon French soil, Great Britain contended that the French Gov- 
 ernment had issued instructions recognizing the legality of the 
 custody of Savarkar on the Morea and directing steps to be taken 
 to prevent escape. The inference that the British Government 
 made was that France would deny to Savarkar any right to avail 
 himself of an opportunity to find asylum on French soil. The police 
 arrangements had been made in accordance with these instruc- 
 tions. The order preventing the crew from going ashore was the 
 complement of that preventing any Hindus from going on board 
 and not a mere precaution against desertion. The English officials 
 did not effect the arrest that was done by Pesqui6; they merely 
 gave the assistance that any bystander might have been called 
 upon to render, and gave it in all good faith and in reliance upon 
 arrangements already made. If, suggested the British reply, a 
 Hindu sympathizer had succeeded in getting Savarkar ashore, 
 would the same set of circumstances be regarded as anything else
 
 420 EXTRADITION 
 
 than proper? And If the latter situation would have been covered 
 by the arrangements at ^Marseilles, why not the actual case that 
 arose, especially as the telegraphic instructions of the Minister 
 of the Interior were "to prevent all attempts of this kind"? 
 
 3. Irregularity of surrender was the chief objection taken by 
 France. Once Savarkar was on French soil, his status became a 
 matter for the Anglo-French extradition treaty to determine. In 
 extradition proceedings only competent agents of the state com- 
 petent to punish can make the demand and only competent agents 
 of the state of refuge can surrender. Extradition is in its nature 
 an international contract, a diplomatic bargain, and the consent 
 of the state of refuge must be expressed in the manner indicated in 
 the treaty. In the case of Savarkar this should have been through 
 the diplomatic channel; in no case could the action of agents not 
 qualified-have the effect of removing him from French jurisdiction. 
 
 Great Britain admitted that the return had been made without 
 conforming to the formalities of the extradition treaties. As 
 Savarkar had been handed over without any diplomatic demand, 
 there was no occasion to make one afterwards. The proceedings 
 had been outside of extradition procedure, but were none the less 
 regular because exceptional. States had various methods of ridding 
 themselves of aliens. They could exclude or expel; expulsion might 
 be made of their own accord or on request; and a request might be 
 presented through the diplomatic channel or directly. Extradition 
 implied surrender after formal demand, usually, but not neces- 
 sarily, in pursuance of an extradition treaty. A state may sur- 
 render for an offense outside the treaty and in a manner other than 
 stipulated in the treaty. The Anglo-French treaty did not pre- 
 clude other arrangements and the British Government had been 
 entitled to rely on the correspondence of the administrative offi- 
 cials as a guarantee that the French Government acquiesced in the 
 return of Savarkar, especially as no immediate protest was made. 
 Even granting that Pesquie had acted irregularly, that fact could 
 not remove Savarkar from the forum where he stood charged with 
 crime. The mistake of a municipal official is not a matter of inter- 
 national concern. France had taken this ground very strongly in 
 the Lamirande case in 1866, where, by an irregularity on the part 
 of a Canadian official, France had obtained Lamirande and had
 
 THE SAVARKAR CASE 421 
 
 refused to give him up, although, to the knowledge of the French 
 Consul, habeas corpus proceedings were still pending in the Cana- 
 dian courts. In a word, the British contention was, that, as the 
 British authorities had used neither fraud nor violence, Savarkar 
 was rightly before the Indian courts and could not be removed 
 therefrom because a French police officer had acted in excess of 
 his authority. 
 
 4. The ignorance of Pesquie as to the identity of the man ar- 
 rested was held by France to constitute essential error and to 
 make the whole proceeding a nullity. PesquiS affirmed that he 
 thought Savarkar was merely one of the crew that had deserted or 
 "possibly had committed an offense on board." The order given 
 him to prevent the crew from coming off was the reason for the 
 pursuit, not any zeal to execute extraterritorial commissions for 
 Great Britain. 
 
 Great Britain, however, pointed out in reply that the British 
 officials could not be taxed with the misapprehension under which 
 Pesquie had acted. He had asked no questions about his prisoner, 
 although he had conversed in French with the British inspector in 
 charge of Savarkar. He had received no false information and the 
 British constables could not be expected to know that he was igno- 
 rant of Savarkar's identity. At any rate, his superior officials 
 were well aware of it, for Pesqui6 did not put forward this plea 
 until July 23, several days after France had taken up the matter 
 diplomatically, yet no one asserted the man to be other than Savar- 
 kar. But whether there had been error or not, Great Britain con- 
 tended, the right to retain Savarkar was in no way affected. 
 
 The tribunal, in rendering its award, attached full value to the 
 arrangements made through the Henry-Hennion correspondence 
 and considered that " the circumstances show that the persons on 
 board in charge of Savarkar might well have believed that they 
 could count on the assistance of the French police." The igno- 
 rance of the brigadier as to the identity of Savarkar, as well as the 
 assistance given by the British officials, was without significance; 
 there had been no recourse to fraud or force, and "there was not, 
 in the circumstances of the arrest and delivery of Savarkar to the 
 British authorities and of his removal to India, anything in the 
 nature of a violation of the sovereignty of France, and ... all
 
 422 LETTERS ROGATORY 
 
 those who took part in the matter certainly acted in good faith 
 and had no thought of doing anything unlawful." 
 
 On the important point of irregularity, the tribunal sustained 
 the contention of the French, but affirmed that " there is no rule of 
 international law imposing, in circumstances such as those which 
 have been set out above, any obligation on the power which has in 
 its custody a prisoner, to restore him because of a mistake com- 
 mitted by the foreign agent who delivered him up to that power." 
 
 Hence the award: "The arbitral tribunal decides that the 
 Government of His Britannic Majesty is not required to restore 
 the said Vinayak Damodar Savarkar to the Government of the 
 French Republic." 
 
 (British Case and Counter-case, published as White Papers; 
 Revue Generate de Droit International Public [1911], vol. xvin, pp. 
 303-52; American Journal of International Law [1911], vol. v, pp. 
 208-10; 520-23; Supplement, pp. 37-38; Revue de Droit Interna- 
 tional [1911], vol. XLVTH, pp. 370-403; G. G. Wilson: The Hague 
 Arbitration Cases.) 
 
 50. LETTERS ROGATORY 
 
 LETTERS ROGATORY (1874) 
 
 IN 1874 a suit was pending in the District Court of the United 
 States for the Southern District of New York against a German 
 firm having a branch in New York City, to recover penalties for 
 alleged undervaluation in the importation of goods. As both 
 parties desired to obtain the testimony of persons at various 
 places in Europe, the court, on motion of the attorney, made, in 
 conformity with the practice long prevailing in the district, an 
 order designating the United States Consuls at the specified places 
 as commissioners to take the desired testimony. The order au- 
 thorized, but did not require, the consuls so to act, and in perform- 
 ing such functions it was understood that they acted as commis- 
 sioners and not as consuls, their compensation being paid by the 
 litigants, and that they had no power to compel the attendance 
 of witnesses, except with the cooperation of the local authorities, 
 which was sometimes granted and sometimes withheld.
 
 LETTERS ROGATORY 423 
 
 Among the consuls designated to act in the present instance, 
 four were in Germany. The German Government objected to 
 theu: executing the commissions, on the ground that the taking 
 of the sworn testimony of German subjects in the cities of the 
 Empire was not one of the functions of consuls, and could not be 
 derived from article 9 of the consular convention between the 
 two countries. 
 
 The United States replied that it was not claimed that a United 
 States Consul, as such, had, by treaty or convention, the right to 
 take such testimony; that the consul's services hi such matters 
 were purely ministerial and entirely voluntary; that the govern- 
 ment was not a party to the proceeding, except so far as it might 
 have, as in the present instance, an interest in the action; and that 
 it was hoped that the German Government would, with these 
 explanations, withdraw its objections and consider it an act of 
 comity to facilitate the taking of the testimony. 
 
 The German Government answered that, while the competency 
 of the courts in the United States to appoint commissioners to 
 take testimony was not doubted, yet, if the testimony was to be 
 taken in a foreign country, it could, according to international law, 
 be taken, in the absence of a treaty on the subject, only under the 
 limitations and forms prescribed by the laws there in force; that 
 the objection of the German Government "was not so much to 
 the taking of testimony under oath by American Consuls in their 
 official capacity" as to "the taking of testimony by American 
 Commissioners within the limits of the German Empire, ... it 
 being incompatible with the legal system of this country;" that 
 the German courts, however, recognized the duty, under the 
 sanction of German law, of assisting the courts of other countries 
 to do justice, and therefore made it a practice to comply, without 
 treaty obligation, with the requests of foreign courts to obtain 
 testimony, such demands being known in Germany as "requi- 
 sitions," which were analogous to "letters rogatory" in England 
 and the United States; and that in such proceedings the parties 
 to the litigation were at liberty through their attorneys to exercise 
 a proper influence by putting questions through the judges. 
 
 (Extract from Moore: Digest of International Law, vol. n, 
 pp. 124-26.)
 
 CHAPTER X 
 
 51. PIRACY 
 
 SIR LEOLINE JENKINS RELATES THE TRIAL OF 
 PRIVATEERS FOR PIRACY (1675) 
 
 "BUT I see your embarrass hath been much greater about our 
 Scotch privateers: The truth is, I am much scandalized at them 
 in a time of war; they are in my poor judgment great instruments 
 to irritate the king's friends, to undo his subjects, and none at all 
 to profit upon the enemy; but it will not be remedied: the priva- 
 teers in our wars are like the mathematici in old Rome, a sort of 
 people that will be always found fault with, but still made use of: 
 I may venture to say the same upon your question, which is the 
 proper place of judging these Scots, that it will often fall out, but 
 it will never be decided; because there is no third power that can 
 give a law that shall be decisive or binding between two inde- 
 pendent princes, unless themselves shall please to do it (which 
 seldom happens) and then cannot be extended beyond the cases 
 expressed by that treaty. His Majesty had, when I came from 
 home, a controversy with France, in a case not much unlike yours: 
 a French merchantman had gone out from La Rochelle to the 
 West Indies, and had committed many robberies and great 
 cruelties upon those of his crew in the voyage; he, in his return, 
 put in at Kinsale for refreshment, his company accuse him, he 
 flies, his ship and goods are confiscated, as the goods of pirates: 
 This sentence was opposed by the French Ambassador M. Col- 
 bert, and the cause desired to be remanded to the natural judge
 
 EMPEROR OF AUSTRIA v. DAY AND KOSSUTH 425 
 
 (as was pretended) in France. This produced several memorials, 
 and several answers, in which my little service was commanded; 
 and the King and his council were pleased to adjudge, he was suf- 
 ficiently founded in point of jurisdiction, to confiscate that ship 
 and goods, and to try capitally the person himself, had he been 
 in hold; the matter of renvoy being a thing quite disused among 
 princes; and as every man, by the usage of our European nations, 
 is justiciable in the place where the crime is committed; so are 
 pirates, being reputed out of the protection of all laws and privi- 
 leges, and to be tried in what ports soever they are taken." 1 
 
 (Extract from Wynne: Life of Sir Leoline Jenkins [London, 
 1724], vol. n, p. 714.) 
 
 52. PROTECTION OF SOVEREIGN INTERESTS 
 
 THE EMPEROR OF AUSTRIA v. DAY AND KOSSUTH 
 
 (1861) 
 
 THE defendants having manufactured a large quantity of 
 printed paper to represent the public paper money of the Kingdom 
 of Hungary, in order to use it, when opportunity should occur, 
 for purposes hostile to the sovereign ruling power of that kingdom, 
 they were restrained, at the suit of the Emperor of Austria, as 
 King of Hungary, and decreed to deliver up the paper to be can- 
 celed, and restrained by perpetual injunction .from manufacturing 
 such paper. 
 
 [The arguments of counsel were omitted.] 
 
 The Vice-Chancellor (Sir John Stuart). The plaintiff sues in his 
 sovereign character, as King of Hungary. He asks the assistance 
 of the [court to prevent an injury, of a public kind, to what he 
 asserts to be his legal rights. These rights he claims as the ac- 
 
 1 Sir Leoline Jenkins in a charge given at a session of Admiralty within the Cinque 
 Ports September a, 1668, said: "You are therefore to enquire of all pirates and sea- 
 rovers, they are in the eye of the law hcslfs humani genrris, enemies not of one na- 
 tion or of one sort of people only, but of all mankind. They are outlawed, as I may 
 say, by the laws of all nations; that is, out of the protection of all princes and of all 
 laws whatsoever. Everybody is commissioned, and is to be armed against them, as 
 against rebels and traitors, to subdue and to root them out." (Extract from Wynne: 
 Life of Sir Leoline Jenkins [London, 17x4], vol. I, p. Luurvi.)
 
 426 PROTECTION OF SOVEREIGN INTERESTS 
 
 knowledged possessor of the sovereign in a foreign state at peace 
 with this kingdom. 
 
 It appears that the defendants have manufactured and pre- 
 pared in this country a vast quantity of printed paper, purported 
 to represent public paper money of Hungary, such as could be 
 lawfully issued by the sovereign power. What they have thus 
 prepared is intended to be circulated at some future time as the 
 public paper money of Hungary. This paper has been thus made 
 and prepared, not only without the license of the plaintiff, but as 
 in exercise of some contemplated power hostile to that of the 
 plaintiff, and intended to supersede it. 
 
 What the court has now to decide is the question whether the 
 defendants can, by the law of England, be allowed to continue in 
 possession, or to be protected in the possession, of this large 
 quantity of printed paper, manufactured and held by them for 
 such a purpose; or whether, on the other hand, the plaintiff is 
 entitled to have the right of which he claims to be in possession 
 protected against the invasion of the defendants, and to have 
 delivered up to him what has been thus prepared, and made 
 ready to be used, for a purpose hostile to his existing right. 
 
 For the defendants, it has been argued that this court has no 
 jurisdiction in such a case; that what is complained of is a public 
 wrong, not cognizable by the law of England, because it relates 
 merely to the public and political affairs of a foreign nation. The 
 defendant's counsel have admitted that a foreign sovereign may 
 have relief in this court when he sues in his public character to 
 recover public property within the jurisdiction of this court. 
 But they insist that what is in question in this cause is not any 
 right of property, but a mere public and political right which, by 
 the Constitution of Hungary, is not absolute in the sovereign, 
 but subject to the control and direction of the Diet of that king- 
 dom. Such a right, they say, is beyond the jurisdiction of this court. 
 
 If the question related merely to an affair of state it would be 
 a question, not of law, but for mere political discussion. But the 
 regulation of the coin and currency of every state is a great pre- 
 rogative right of the sovereign power. It is not a mere municipal 
 right, or a mere question of municipal law. Money is the medium 
 of commerce between all civilized nations; therefore, the prerog-
 
 EMPEROR OF AUSTRIA t. DAY AND KOSSUTH 427 
 
 ative of each sovereign state as to money is but a great public 
 right recognized and protected by the law of nations. A public 
 right, recognized by the law of nations, is a legal right; because 
 the law of nations is part of the common law of England. 
 
 These propositions are supported by unquestionable authority. 
 In the modern version of Blackstone's Commentaries (4 Steph. 
 Com. 282) it is laid down (and it has so always been held in our 
 courts) that the law of nations, wherever any question arises, 
 which is properly the object of its jurisdiction, is adopted in its 
 full extent by the common law of England, and held to be part 
 of the law of the land. Acts of Parliament, which have been from 
 time to time made to enforce this universal law, or to facilitate 
 the execution of its decisions, are not considered as introductive of 
 any new rule, but merely declaratory of the old fundamental con- 
 stitution of the kingdom, without which it must cease to be part 
 of the civilized world. 
 
 To apply these acknowledged principles of the law of nations 
 and law of England to the present case, it appears that the British 
 Parliament (by the Act n Geo. 4 and i Wm. 4, c. 66) has enacted 
 that the forgery or counterfeiting the paper money of any foreign 
 sovereign or state is a felony punishable by the law of England. 
 This statute is a legislative recognition of the general right of the 
 sovereign authority in foreign states to the assistance of the laws 
 of this country to protect their rights as to the regulation of their 
 paper money as well as their coin, and to punish, by the law of 
 England, offenses against that power. 
 
 The friendly relations between civilized countries require, for 
 their safety, the protection by municipal law of an existing 
 sovereign right of this kind recognized by the law of nations. It 
 appears from the evidence of the defendant, Kossuth, himself that 
 the present plaintiff is in possession of the supreme power in 
 Hungary, and that the property now in question, which this de- 
 fendant has caused to be manufactured in order, at some future 
 time, to issue it as the public paper money of the State of Hun- 
 gary, is not intended to be immediately used for that purpose, 
 because of the existing power of the plaintiff. But it also appears 
 that the paper so manufactured is now in the possession and power 
 of both the defendants, ready to be used, when the defendant,
 
 428 PROTECTION OF SOVEREIGN INTERESTS 
 
 Kossuth, shall think fit, for a purpose adverse to the existing 
 right of the plaintiff. 
 
 The manufactured paper in question, therefore, is property 
 which has been made for no other purpose, and can be used for 
 no other purpose, except one hostile to the sovereign rights of the 
 plaintiff. It is not property of a kind which, like warlike weapons 
 or other property, may be lawfully used for other purposes. And 
 if the avowed and single purpose, for which this property is now 
 in the hands of the defendants, be a purpose hostile to the plain- 
 tiff's rights, if this court were to refuse its interference, the refusal 
 would amount to a decision that it has no jurisdiction to protect 
 the legal right of the plaintiff a legal right recognized by the 
 law of nations, and, therefore, by the law of England. 
 
 But it has been said that the right of the plaintiff is not an 
 absolute right, but is subject to the control of the Diet of Hungary. 
 The prerogative rights of the Crown of England are all directly 
 or indirectly subject to control of Parliament, and the sovereign 
 rights in most other nations are subject to some control or limita- 
 tion, yet they are not therefore the less actual rights; and it is at 
 the suit of the sovereign that they are to be protected by the law. 
 
 Then it is said that the defendant, Kossuth, contemplates the 
 overthrow of the existing right of the plaintiff, and that when it 
 is overthrown, and the power transferred to himself or to some 
 other body, which shall sanction the use of this paper as the current 
 money of the Kingdom of Hungary, he will then be entitled to 
 use it; and therefore that this court ought not now to interfere. 
 
 To this argument the answer is that this court, like other pub- 
 lic tribunals, can deal only with existing laws and existing govern- 
 ments. Obedience to existing laws and to existing governments, 
 by which alone the laws can be enforced, are purposes essential 
 to the distribution of justice, and to the maintenance of civil so- 
 ciety. Therefore, if by the existing laws the plaintiff has the right 
 which he asserts, and if the defendants have made and have now 
 in their possession the property in question, which has been made 
 and now is in their hands for no other purpose than one hostile 
 to the legal rights of the plaintiff, the legal right of the plaintiff 
 ought to be protected by the interference of this court. This 
 right of the plaintiff is clear on principle, unless the court is to aban-
 
 EMPEROR OF AUSTRIA v. DAY AND KOSSUTH 429 
 
 don its protective jurisdiction. It is clear also upon authority. 
 In the case of Farina v. Silverlock (i K. & J. 509), an injunction 
 was granted against a printer, who had made and printed papers 
 which he had in his possession, merely because they might be 
 used, and were ready to be used, in such a manner as to violate 
 the legal right of the plaintiff, although they were not in fact 
 actually used for that purpose. 
 
 Foreign states at peace with this [country have always been 
 held entitled to the assistance of the law of England to vindicate 
 and protect their rights, and to punish offenders against those 
 acknowledged public privileges recognized by the law of nations. 
 Even the sovereign power, under a revolutionary government 
 recognized for the time by the Crown of England as an existing 
 government, has had its rights protected, and offenders against 
 those rights punished by prosecution in the courts of England. 
 The prosecution and conviction of M. Peltier, for a libel on the 
 First Consul of France, proceeded on this principle. In earlier 
 times Lord George Gordon was tried and convicted for a libel on 
 the Queen of France. 
 
 These rights of foreign powers may be for a time suppressed, 
 and the law may be silent during the flagrance of rebellion and 
 revolution, when rights, both public and private, are overturned 
 and destroyed during the crimes and calamities of civil war. But 
 where, as in the present case, the existing rights of the plaintiff, 
 as sovereign of Hungary, are recognized by the Crown of Eng- 
 land, the relief which he seeks in this cause is for the protection 
 of a legal right of universal public importance against the acts 
 of the defendants. 
 
 That protection can only be effectually afforded by the relief 
 prayed for in this suit; and there must be a decree against the 
 defendants, according to the prayer of the bill. 
 
 Sir Hugh Cairns. In the case of Hullett v. The King of Spain, 
 the House of Lords said they would not disparage the dignity 
 of the defendent by giving him costs. I must accept the same rule 
 in this case, on behalf of the Emperor of Austria. 
 
 The Vice-Chancellor. Certainly. 
 
 (Extract from English Reports, Vice-Chancellor's Court [Lon- 
 don, 1906], vol. LXVI, pp. 263-86.)
 
 430 SLAVE TRADE 
 
 53. POLICE ACTION BY COLLECTIVE INTERVENTION 
 
 THE BLOCKADE OF ZANZIBAR (1888-89) 
 
 IN 1888-89 a "very anomalous" blockade of the coasts of Zan- 
 zibar was instituted by the British and German admirals, by order 
 of their governments, but in the name of the Sultan, against the 
 importation of "materials of war and the exportation of slaves." 
 The operation "was in reality a measure of high international 
 police, exercised, directly or indirectly, by all the powers of West- 
 ern Europe who were interested in the locality, for the prevention 
 of a traffic generally recognized by them as cruel and immoral." 
 Italy and Portugal aided actively in the blockade, and France sent 
 a warship to visit vessels flying the French flag. Auxiliary steps 
 were taken on the mainland by the Congo State and the Nether- 
 lands. 
 
 (Extract from Moore: Digest of International Law, vol. vn, 
 pp. 138-39, citing Holland: Studies in International Law, pp. 139- 
 40, and M. Rolin-Jaequemyns, in the Revue de Droit Interna- 
 tional, vol. xxi, p. 207, to whom Holland refers.) 
 
 54. SLAVE TRADE 
 
 THE CASE OF THE BRIG LAWRENCE (1848) 
 
 OPINION of Joshua Bates, Umpire, January 4, 1855 : 
 "The umpire appointed agreeably to the provisions of the con- 
 vention entered into between Great Britain and the United States 
 on the 8th of February, 1853, for the adjustment of claims by a 
 mixed commission, having been duly notified by the commission- 
 ers under the said convention that they had been unable to agree 
 upon the decision to be given with reference to the claim of the 
 owners of the brig Lawrence, Captain York, against the British 
 Government, and having carefully examined and considered the 
 papers and evidence produced on the hearing of the said claim, and 
 having conferred with the said commissioners thereon, hereby
 
 THE CASE OF THE BRIG LAWRENCE 431 
 
 reports that the brig Lawrence, York, master, under American 
 colors and having an American register and papers, bound from 
 Havana to Cabenda, in Africa, with a cargo of rum, etc., having 
 sprung a leak and put into Gallenas, on the coast of Africa, loth 
 September, 1848, and being unable to stop the leak there, it was 
 determined to proceed to Sierra Leone, where they could beach 
 the vessel and repair her. She arrived at Freetown on the 22d Sep- 
 tember and on the 25th she was seized and libeled in the Vice- 
 Admiralty Court for being found in a British port equipped for the 
 slave trade, condemned, and the vessel and cargo decreed forfeited 
 to the Crown. 
 
 "The cargo shipped at Havana on board the Lawrence consisted 
 of 60 pipes of rum, 116 half pipes of rum, 30 barrels of flour, 4 
 boxes of beads, 48 boxes of cigars, i box woolen caps, 10 barrels of 
 beans, 39 barrels of corn meal, 5 barrels of pork, 5 barrels of beef, 
 46 buckets, 2 packages tinware, which by charter party were to be 
 delivered at Cabenda, in Africa, for a freight of $3,250. It is not 
 denied that the papers were in order as an American vessel. The 
 crew, excepting one man, were Spanish and could not speak Eng- 
 lish, nor could Captain York speak Spanish. There were two super- 
 cargoes, one Spanish and one French, on board. Looking at the 
 voyage as a trading operation, it appears simply absurd. The 
 whole value of the cargo would not exceed 600, on which 700 
 freight was to be paid. But looking at the vessel as to be a slaver 
 whenever the opportunity should offer so to employ her, the cargo 
 and the fittings would appear well arranged for the business and 
 in conformity with the fittings of several vessels under the Ameri- 
 can flag that had been overhauled by cruisers and suffered to pass 
 on account of the flag, but were soon afterward captured with 
 slaves on board under Spanish or Portuguese colors. 
 
 "The African slave trade at the time of this condemnation, 
 being prohibited by all civilized nations, was contrary to the 
 law of nations, and being prohibited by the laws of the United 
 States, the owners of the Lawrence could not claim the protec- 
 tion of their own government, and therefore, in my judgment, 
 can have no claim before this commission." 
 
 (Extract from Moore: International Arbitrations, vol. m, pp. 
 2824-25.)
 
 432 MARITIME JURISDICTION 
 
 55. MARITIME JURISDICTION 
 
 THE SCOTIA 
 
 The Supreme Court of the United States, 1871 
 
 THIS case came on appeal to the United States Supreme Court. 
 
 The Berkshire, an American sailing vessel, collided with the 
 British steamer Scotia, of the Cunard line, in mid-ocean and was 
 sunk and totally lost. From the statement of the case and the 
 opinion it appears that Great Britain and the United States had 
 both adopted the same regulations in regard to the lights for steam- 
 ships and sailing vessels as were contained in the British Order in 
 Council of January 9, 1863, authorized by virtue of the Merchant 
 Shipping Amendment Act of 1862. By Act of April 29, 1864, Con- 
 gress had made a similar regulation in regard to the carrying of 
 lights. The Scotia was admitted to have complied with these 
 regulations. The Berkshire, however, did not carry the red and 
 green lights on her port and starboard side as required by the Act, 
 but carried only a single white light, of which the use was prohib- 
 ited to sailing vessels and reserved for steamers which were re- 
 quired to carry it at the masthead. As this light was but a few 
 feet above the deck, an approaching steamer, believing it to be at 
 the masthead, would naturally infer that the vessel carrying it 
 was still far distant. 
 
 The appellants representing the owners of the sunken vessel, 
 recognizing that they would have no case against the Scotia if 
 either the British or American law should be applied, contended 
 that since the collision was between ships of different nations 
 upon the high seas the law applicable must be the law of the high 
 sea, that is, international law. 
 
 Associate Justice Strong, after a careful review of what occurred 
 and declaring that no country could legislate on the high seas for 
 vessels of another nation, discussed the intent of the American 
 navigation laws and concluded his opinion as follows: 
 
 "But we need not affirm that the Berkshire was under obligation 
 to show colored lights, or to refrain from showing a white light, 
 merely because of an act of Congress, nor need we affirm that the
 
 THE SCOTIA 433 
 
 Scotia can protect herself by setting up the ship's violation of that 
 act. Nor is it necessary to our conclusions that the British rules 
 in regard to lights are the same as ours, though that is an important 
 consideration. We are not unmindful that the English Courts of 
 Admiralty have ruled that a foreigner cannot set up against a Brit- 
 ish vessel, with which his ship has collided, that the British vessel 
 violated the British mercantile marine act, on the high seas, for 
 the reason, as given, that the foreigner was not bound by it, inas- 
 much as it is beyond the power of Parliament to make rules appli- 
 cable to foreign vessels outside of British waters. This decision 
 was made in 1856, in the case of the Zollverein (i Swabey, 96). A 
 similar rule was asserted also in the Dumfries (ib. 63), decided 
 the same year; in the Saxonia (i Lushington, 410), decided in 
 the High Court of Admiralty in 1858, and by the Privy Council in 
 1862. The same doctrine was laid down in 1858, in the case of 
 Cope v. Doherty, (4 Kay & Johnson, 367 ; 2 De Gex & Jones, 626) 
 and in the Chancellor (4 Law Times, 627), decided in 1861. All 
 these decisions were made before the passage of the Merchant 
 Shipping Amendment Act, which took effect on the ist day of 
 June, 1863. By that act the same rules in regard to lights and move- 
 ments of steamers and sailing vessels on the high seas were adopted 
 as those which were prescribed by the Act of Congress of 1864, and 
 by the same act it was provided that the government of any 
 foreign state might assent to the regulations and consent to their 
 application to the ships of such state, and that thereupon the 
 Queen, by Order in Council, might direct that such regulations 
 should apply to ships of such foreign state when within or without 
 British jurisdiction. The act further provided that whenever an 
 Order in Council should be issued applying any regulation made 
 under it to the ships of any foreign country, such ships should in 
 all cases arising in British courts be deemed to be subject to such 
 regulations, and for the purpose thereof be treated as British ships. 
 Historically, we know that before the close of the year 1864, nearly 
 all the commercial nations of the world had adopted the same 
 regulations respecting lights, and that they were recognized as 
 having adopted them. These nations were the following: Austria, 
 the Argentine Republic, Belgium, Brazil, Bremen, Chile, Denmark, 
 Ecuador, France, Great Britain, Greece, Hamburg, Hanover,
 
 434 MARITIME JURISDICTION 
 
 Hawaii, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco, 
 Netherlands, Norway, Oldenburg, Peru, Portugal, Prussia, Roman 
 States, Russia, Schleswig, Spain, Sweden, Turkey, United States, 
 and Uruguay almost every commercial nation in existence. 
 (See Holt's Rule of the Road, page 2.) Had this libel then been 
 filed in a British court, the Berkshire must have been found solely 
 in fault, because her white light and her neglect to exhibit colored 
 lights signaled to the Scotia that she was a steamer, and directed 
 the Scotia to do exactly what she did. 
 
 "It must be conceded, however, that the rights and merits of a 
 case may be governed by a different law from that which controls 
 a court in which a remedy may be sought. The question still re- 
 mains, What was the law of the place where the collision occurred, 
 and at the tune when it occurred? Conceding that it was not the 
 law of the United States, nor that of Great Britain, nor the con- 
 current regulations of the two governments, but that it was the 
 law of the sea, was it the ancient maritime law, that which existed 
 before the commercial nations of the world adopted the regulations 
 of 1863 and 1864, or the law changed after those regulations were 
 adopted? Undoubtedly, no single nation can change the law of the 
 sea. That law is of universal obligation, and no statute of one or 
 two nations can create obligations for the world. Like all the laws 
 of nations, it rests upon the common consent of civilized communi- 
 ties. It is of force, not because it was prescribed by any superior 
 power, but because it has been generally accepted as a rule of 
 conduct. Whatever may have been its origin, whether in the usages 
 of navigation or in the ordinances of maritime states, or in both, 
 it has become the law of the sea only by the concurrent sanction of 
 those nations who may be said to constitute the commercial world. 
 Many of the usages which prevail, and which have the force of 
 law, doubtless originated in the positive prescriptions of some single 
 state, which were at first of limited effect, but which when gener- 
 ally accepted became of universal obligation. The Rhodian law 
 is supposed to have been the earliest system of marine rules. It 
 was a code for Rhodians only, but it soon became of general 
 authority because accepted and assented to as a wise and desirable 
 system by other maritime nations. The same may be said of the 
 Amalphitan table, of the ordinances of the Hanseatic League, and
 
 THE SCOTIA 435 
 
 o! parts of the marine ordinances of Louis XIV. They all became 
 the law of the sea, not on account of their origin, but by reason of 
 then- acceptance as such. And it is evident that unless general 
 assent is efficacious to give sanction to international law, there 
 never can be that growth and development of maritime rules which 
 the constant changes in the instruments and necessities of naviga- 
 tion require. Changes in nautical rules have taken place. How 
 have they been accomplished, if not by the concurrent assent, 
 express or understood, of maritime nations? When, therefore, we 
 find such rules of navigation as are mentioned in the British Orders 
 in Council of January 9, 1863, and in our Act of Congress of 1864, 
 accepted as obligatory rules by more than thirty of the principal 
 commercial states of the world, including almost all which have any 
 shipping on the Atlantic Ocean, we are constrained to regard them 
 as in part at least, and so far as relates to these vessels, the laws of 
 the sea, and as having been the law at the time when the collision 
 of which the libelants complain took place. 
 
 "This is not giving to the statutes of any nation extraterritorial 
 effect. It is not treating them as general maritime laws, but it is 
 recognition of the historical fact that by common consent of man- 
 kind, these rules have been acquiesced in as of general obligation. 
 Of that fact we think we may take judicial notice. Foreign munici- 
 pal laws must indeed be proved as facts, but it is not so with the 
 law of nations. 
 
 "The consequences of this ruling are decisive of the case before 
 us. The violation of maritime law by the Berkshire in carrying a 
 white light (to say nothing of her neglect to carry colored lights), 
 and her carrying it on deck instead of at her masthead, were false 
 representations to the Scotia. They proclaimed that the Berkshire 
 was a steamer, and such she was manifestly taken to be. The 
 movements of the Scotia were therefore entirely proper, and she 
 was without fault. 
 
 "Decree affirmed, with costs." 
 
 (Extract from Wallace: Reports of the Supreme Court of the 
 United States, vol. xrv, pp. 170-89.)
 
 436 FOREIGN JUDGMENTS 
 
 56. FOREIGN JUDGMENTS 
 
 HILTON v. GUYOT 
 
 The Supreme Court of the United States, 1894 
 
 Mr. Justice Gray, after stating the case, delivered the opinion 
 of the court from which the following extract is taken: 
 
 "It appears, therefore, that there is hardly a civilized nation 
 on either continent, which, by its general law. allows conclusive 
 effect to an executory foreign judgment for the recovery of money. 
 In France, and in a few smaller states, Norway, Portugal, 
 Greece, Monaco, and Hayti, the merits of the controversy are 
 reviewed, as of course, allowing to the foreign judgment, at the 
 most, no more effect than of being prima facie evidence of the jus- 
 tice of the claim. In the great majority of the countries on the 
 continent of Europe in Belgium, Holland, Denmark, Sweden, 
 Germany, in many cantons of Switzerland, in Russia and Poland, 
 in Roumania, in Austria and Hungary (perhaps in Italy), and in 
 Spain as well as in Egypt, in Mexico, and in a great part of 
 South America, the judgment rendered in a foreign country is al- 
 lowed the same effect only as the courts of that country allow to 
 the judgments of the country in which the judgment in question 
 is sought to be executed. 
 
 "The prediction of Mr. Justice Story (in sec. 618 of his Com- 
 mentaries on the Conflict of Laws, already cited) has thus been ful- 
 filled, and the rule of reciprocity has worked itself firmly into the 
 structure of international jurisprudence. 
 
 "The reasonable, if not the necessary, conclusion appears to us 
 to be that judgments rendered in France, or in any other foreign 
 country, by the laws of which our own judgments are reviewable 
 upon the merits, are not entitled to full credit and conclusive 
 effect when sued upon in this country, but are prima facie evidence 
 only of the justice of the plaintiff's claim. 
 
 "In holding such a judgment, for want of reciprocity, not to be 
 conclusive evidence of the merits of the claim, we do not proceed 
 upon any theory of retaliation upon one person by reason of in- 
 justice done to another; but upon the broad ground that inter-
 
 HILTON r. GUYOT 437 
 
 national law is founded upon mutuality and reciprocity, and that 
 by the principles of international law recognized in most civilized 
 nations, and by the comity of our own country, which it is our 
 judicial duty to know and to declare, the judgment is not entitled 
 to be considered conclusive. 
 
 "By our law, at the time of the adoption of the Constitution, 
 a foreign judgment was considered as prima facie evidence, and 
 not conclusive. There is no statute of the United States, and no 
 treaty of the United States with France, or with any other nation, 
 which has changed that law, or has made any provision upon the 
 subject. It is not to be supposed that, if any statute or treaty 
 had been or should be made, it would recognize as conclusive the 
 judgments of any country, which did not give like effect to our 
 own judgments. In the absence of statute or treaty, it appears 
 to us equally unwarrantable to assume that the comity of the 
 United States requires anything more. 
 
 "If we should hold this judgment to be conclusive, we should 
 allow it an effect to which, supposing the defendants' offers to 
 be sustained by actual proof, it would, hi the absence of a 
 special treaty, be entitled in hardly any other country in Christen- 
 dom, except the country in which it was rendered. If the judgment 
 had been rendered in this country, or in any other outside of the 
 jurisdiction of France, the French courts would not have executed 
 or enforced it, except after examining into its merits. The very 
 judgment now sued on would be held inconclusive in almost any 
 other country than France. In England, and in the colonies sub- 
 ject to the law of England, the fraud alleged in its procurement 
 would be a sufficient ground for disregarding it. In the courts of 
 nearly every other nation, it would be subject to reexamination, 
 either merely because it was a foreign judgment, or because judg- 
 ments of that nation would be reexaminable in the courts of France. 
 
 "For these reasons, in the action at law, the judgment is re- 
 versed, and the cause remanded to the Circuit Court with direc- 
 tions to set aside the verdict and to order a new trial. 
 
 " For the same reasons, in the suit in equity between these par- 
 ties, the foreign judgment is not a bar, and, therefore, the decree 
 dismissing the bill is reversed, the plea adjudged bad, and the cause 
 remanded to the Circuit Court for further proceedings not incon-
 
 438 FOREIGN JUDGMENTS 
 
 sistent with this opinion." (Extract from United States Reports 
 [1896], vol. 159, pp. 227-29.) 
 
 The opinion of the court was by a bare majority of five to four, 
 and its views were contested in a vigorous minority opinion by 
 Chief Justice Fuller, with whom concurred Associate Justices 
 Harlan, Brewer, and Jackson. The opening paragraph of the dis- 
 senting opinion is as follows: 
 
 "Plaintiffs brought their action on a judgment recovered by 
 them against the defendants in the courts of France, which courts 
 had jurisdiction over person and subject-matter, and in respect of 
 which judgment no fraud was alleged, except in particulars con- 
 tested in and considered by the French courts. The question is 
 whether under these circumstances, and in the absence of a treaty 
 or act of Congress, the judgment is reexaminable upon the merits. 
 This question I regard as one to be determined by the ordinary 
 and settled rule in respect of allowing a party, who has had an op- 
 portunity to prove his case in a competent court, to retry it on the 
 merits, and it seems to me that the doctrine of res judicata appli- 
 cable to domestic judgments should be applied to foreign judg- 
 ments as well, and rests on the same general ground of public 
 policy that there should be an end of litigation." (Extract from 
 Hilton v. Guyot, United States Reports, vol. 159, p. 229.) 
 
 The Chief Justice in the course of his opinion severely condemns 
 the retaliatory doctrine upon which the majority opinion of the 
 court was based: * "I cannot yield my assent to the proposition 
 that because by legislation and judicial decision in France that 
 
 1 Compare (Moore, Digest of International Law, vol. iv, pp. 102-10): "On the 
 same day the court sustained a Canadian judgment, which the defendant sought to 
 attack on the ground that, although he had appeared in the action, he did not appear 
 at the trial, and that the judgment was entered against him in his absence, without 
 a full examination of the merits. (Ritchie v. McMullen, 159 U.S. 235.) " 
 
 Although Professor Moore in his Digest has given extracts from Hilton v. Guyot 
 as decided, in his lectures he has criticised the majority opinion on the ground 
 " that it leaves the courts without any certain criterion and may result in their 
 refusing to accept the judgments of countries that have a highly developed judicial 
 system while accepting the judgments of tribunals in whose decisions there is less 
 reason to feel confidence." 
 
 The matter of the execution of foreign judgments relates to the whole question of 
 private international law (conflict of laws) one of the most important and one of 
 the most difficult in the whole realm of jurisprudence. The reader is referred to the 
 remarkable discussion by Westlake: International Law, part i, Peace (Cambridge, 
 1910), pp. 246-52.
 
 THE MERCHANT SHIPPING ACT 439 
 
 effect is not there given to judgments recovered in this country 
 which, according to our jurisprudence, we think should be given 
 to judgments wherever recovered (subject, of course, to the recog- 
 nized exceptions), therefore we should pursue the same line of 
 conduct as respects the judgments of French tribunals. The appli- 
 cation of the doctrine of res judicata does not rest in discretion; and 
 it is for the government, and not for its courts, to adopt the prin- 
 ciple of retorsion, if deemed under any circumstances desirable or 
 necessary." (Dissenting opinion of Chief Justice Fuller in Hilton 
 v.Guyot, United States Reports, Supreme Court, vol. 159, p. 234.) 
 
 57. PROTECTION OF THE LIFE AND LIBERTY OF NATION- 
 ALS OF OTHER STATES 
 
 THE MERCHANT SHIPPING ACT (1876) 
 
 DURING the debates in the British Parliament in 1876 upon the 
 bill to amend the Merchant Shipping Acts, there was a divergence 
 of opinion as to the right to apply British legislation to foreign 
 shipping. One member (Mr. T. E. Smith) by way of amendment 
 to the clause empowering the authorities to detain unsafe ships, 
 proposed that this legislation should be extended to foreign ships: 
 "To the objection that the House would go beyond its province in 
 legislating for foreign ships, he replied, we already legislated for 
 them in regard to passengers and surely the lives of sailors would 
 justify equal interference, and such interference was already found 
 practicable in Canada and the United States. Many ships sailing 
 under foreign flags were just the ships the House desired to deal 
 with; they sailed under foreign flags to evade existing British 
 regulations, and the number of such ships would be increased if 
 this legislation were confined to British ships." (Hansard's Par- 
 liamentary Debates [1876], vol. 228, p. 1148.) 
 
 The President of the Board of Trade (Sir Charles Adderley), who 
 was in charge of the bill, admitted the force of this argument, but 
 found himself unable to accept the amendment. "No doubt," he 
 said, "we should as far as possible make all necessary government
 
 440 PROTECTION, ETC., OF NATIONALS OF OTHER STATES 
 
 interferences weigh equally on our foreign competitors and our- 
 selves. ... As a general rule foreign ships in our ports were sub- 
 ject to our municipal law and their crews were amenable to our 
 criminal law. Practically, however, our courts did not deal with 
 matters affecting the discipline and management of a foreign 
 vessel or any concerns of her own, but only with what might affect 
 general law, and then only in extreme cases, and that with refer- 
 ence always to their consul. When a foreign ship took emigrants 
 from an English port, the government saw that our rules were 
 observed; but it was our own interest which was then looked after, 
 as it was when a foreign state took precautions against the land- 
 ing of infected emigrants upon its shores. . . . The proposition 
 of the honorable member for Tynemouth went much further. He 
 proposed to say to foreign ships, 'We will detain you if we think 
 you overloaded or in any way unseaworthy, and you shall not 
 drown your men by running risks which we do not allow our ships 
 to run.' But that would be a great stretch of assumed jurisdic- 
 tion over foreign subjects, and it would be a strong measure, in 
 order to enforce it, to inflict penalties upon foreigners. ... If the 
 proposal were agreed to, we must be prepared for retaliation." 
 (Parliamentary Debates [1876], vol. 228, pp. 1149-50.) 
 
 The amendment in the form presented was not carried, but 
 jurisdiction in certain cases of overloading was extended over 
 foreign vessels by section 13 of the act, as follows: 
 
 "Where a foreign ship has taken on board all or any part of her 
 cargo at a port in the United Kingdom, and is whilst at that port 
 unsafe by reason of overloading or improper loading, the provi- 
 sions of this act with respect to the detention of ships shall apply 
 to that ship as if she were a British ship, with the following modi- 
 fications. . . ." (English Law Reports [1876], Statutes, vol. xi, 
 p. 498.) 
 
 Later in the session the Chancellor of the Exchequer (Sir Staf- 
 ford Northcote) announced that it was the intention of the gov- 
 ernment to propose an additional clause with regard to deckloads, 
 and that such clause would apply to foreign as well as to British 
 ships. But at the same time he acknowledged "it was a serious 
 and difficult matter how to deal with foreign ships, in consequence 
 of the questions that might arise in connection with international
 
 THE MERCHANT SHIPPING ACT 441 
 
 law from British shipping going into the ports of all the nations in 
 the world and that the same rules and laws this country might 
 lay down for the treatment of foreign ships in our ports might be 
 applied to British ships in foreign ports." (Parliamentary Debates 
 [1876], vol. 228, p. 1781.) 
 
 Sir Henry James thought that the government had acted boldly 
 and courageously, but that the clause was a serious one: "For 
 the first time we were setting the example of legislating for offenses 
 committed out of our own jurisdiction; because the offense would 
 be committed when the cargo was placed on deck, and by persons 
 who were ignorant of it. ... Again, the penalty of the clause 
 upon the foreigner would substantially mean imprisonment. 
 . . . Foreigners in that way would learn that they would be sent 
 to prison, though what they had done was no breach of their own 
 law, and simply because they had broken a law of our own of which 
 they had never heard." (Parliamentary Debates [1876], vol. 228, 
 p. 1925.) 
 
 The Chancellor of the Exchequer replied that, "although at 
 first sight it did appear that any attempt to deal with foreign ships 
 might carry them to a dangerous extent, the more he had consid- 
 ered the subject, the more he felt that with care and caution, by 
 giving foreign countries reasonable notice of their proceedings, and 
 by exercising reasonable fairness in the execution of the law, the 
 danger was not one that need be attended with very serious conse- 
 quences. . . . The government felt that in bringing forward the 
 clause, which they did with considerable anxiety, they were doing 
 what was best for the promotion of the great objects of the bill 
 and for the interests of the country." (Parliamentary Debates 
 [1876], vol. 228, p. 1932.) 
 
 As the legislation respecting deckloads was to apply only to 
 cargoes of timber, the Scandinavian shipping interests were more 
 affected than any other foreigners. Accordingly, when an earlier 
 amendment to the same effect was proposed by Mr. Plimsoll, the 
 Government of Norway and Sweden, in a note of June 16, 1876, 
 indicated its views, in part, as follows: 
 
 "... The definite adoption of the amendment would have the 
 inevitable result of increasing the freight of timber cargoes dur- 
 ing a great part of the year, but this inconvenience, although con-
 
 442 PROTECTION, ETC., OF NATIONALS OF OTHER STATES 
 
 siderable, ought naturally to be tolerated, if the restriction im- 
 posed by the House of Commons is required in the interests of 
 humanity. 
 
 "The Government of the King, after an examination of the 
 question undertaken some years ago, and recently resumed, do not 
 believe that there is any necessity for proceeding with such a 
 rigorous measure. . . . 
 
 "It is true that the right limit is difficult to fix, but the King's 
 Government, knowing that Her Majesty's Government have care- 
 fully considered the circumstances before fixing the maximum of 
 three feet, earnestly desire that Parliament should stop at that 
 point, and that they trust that more mature consideration will 
 cause the House of Commons to modify its decision. . . . 
 
 "If this amendment were the result of a complete and pro- 
 found examination of the question, the King's Government would 
 not have made themselves the organ of the interests affected 
 by its adoption, but not being able to allow that the measure 
 proposed by Mr. Plimsoll is justified in this way, the Govern- 
 ment of the King would be glad to think that Her Majesty's 
 Government will kindly take into consideration the foregoing 
 observation." (Parliamentary Accounts and Papers [1876], vol. 
 66, pp. 96-97.) 
 
 As finally enacted, section 24 is as follows: 
 
 "After the first day of November, one thousand eight hundred 
 and seventy six, if a ship, British or foreign, arrives between the 
 last day of October and the sixteenth day of April in any year at 
 any port in the United Kingdom from any port out of the United 
 Kingdom, carrying as deck cargo, that is to say, in any uncovered 
 space upon deck, or in any covered space not included in the cubi- 
 cal contents forming the ship's registered tonnage, any wood 
 goods coming within the following descriptions . . . the master 
 of the ship, and also the owner, if he is privy to the offense, shall 
 be liable to a penalty not exceeding five pounds for every hundred 
 cubic feet of wood goods carried hi contravention of this section, 
 and such penalty may be recovered by action or on indictment or 
 to an amount not exceeding one hundred pounds (whatever may 
 be the maximum penalty recoverable) on summary conviction." 
 (English Law Reports [1876], Statutes, vol. xi, pp. 502-03.)
 
 THE MERCHANT SHIPPING ACT 443 
 
 In regard to the application of the act to American vessels, 
 Moore, in his Digest of International Law (vol. n, pp. 282-83), 
 says: 
 
 "September 28, 1876, Sir Edward Thornton, British Minister at 
 Washington, communicated to the Department of State a copy of 
 the Merchant Shipping Act, 1876, and called attention to the clause 
 with respect to the overloading and improper loading of foreign 
 ships in the United Kingdom, and particularly to section 24, im- 
 posing certain penalties in case of the arrival of a ship, whether 
 British or foreign, between the last day of October and the i6th of 
 April, at any port of the United Kingdom from any port out of the 
 United Kingdom, carrying deck cargo in violation of the act; and 
 in subsequent notes of January 22 and 29, 1877, Sir Edward trans- 
 mitted reports made by officers of the Board of Trade with refer- 
 ence to the alleged infraction of section 24 by certain American 
 vessels. 
 
 . "The Department of State replied that, as attention was thus 
 particularly called to the questions under section 24, it seemed 
 proper to state that the right to impose penalties on the master or 
 owner of an American vessel, sailing from a port of the United 
 States, for the manner in which the cargo was laden or stored, was 
 of so doubtful a character that, however wise or beneficent the 
 intent of the act might be, the Government of the United States 
 'cannot but invite the attention of Her Majesty's Government 
 particularly thereto, before further steps are taken in Great 
 Britain to enforce obedience to the law in these particular cases, 
 and before any steps be taken toward the enforcement of fines in 
 these or similar cases.' 
 
 "The representations of the United States 'appear to have re- 
 ceived the careful attention of the Government of Great Britain, 
 and toward the dose of the year 1877, the Minister of the United 
 States at London received a note from Lord Derby, justifying the 
 provisions of the act adverted to, which had been specially made 
 the subject of complaint, as not inconsistent wkh the principles of 
 international law, or with the practice of nations in such matters,' 
 and expressing the hope that the United States would 'yield the 
 provisions of the act mentioned a friendly support, by enjoining its 
 observance on the part of American shippers and owners of vessels,
 
 444 PROTECTION, ETC., OF NATIONALS OF OTHER STATES 
 
 in the interest of humanity.' The subject thereafter 'failed to be- 
 come one of special action on the part of the United States.' 
 
 "In 1886, the British Minister having reported the arrival of an 
 American vessel in London with a deck cargo of heavy wood in 
 contravention of section 24, he was advised that the Secretary of 
 the Treasury had called the attention of collectors of customs to 
 the law, with a view to notifying masters of vessels sailing from the 
 United States of its provisions. It was observed, however, that it 
 was not to be understood that the notification would reach all such 
 masters, and that therefore the action of Her Majesty's Govern- 
 ment in such cases arising in the future should not be based on the 
 supposition that the masters of all American vessels were ac- 
 quainted with the law." 
 
 The enactments relating to merchant shipping were consoli- 
 dated by the Act of 1894, the provisions of the Act of 1876 re- 
 specting foreign shipping remaining in effect unchanged. (Statutes 
 [1894], 451, 462.) In consequence, however, of the report, 
 in 1905, of a select committee on the statutory requirements for 
 foreign ships, Parliament passed an act in 1906 amending the 
 Merchant Shipping Acts by the addition, amongst others, of 
 several provisions affecting foreign shipping. The British load- 
 line provisions were made to apply to foreign ships "while they 
 are within any port of the United Kingdom," the power to detain 
 unsafe ships of foreign nationality was extended to include cases 
 of defective equipment, and power was given to apply rules as 
 to life-saving appliances to foreign ships "provided that His 
 Majesty may by Order in Council direct that these provisions 
 shall not apply to any ship of a foreign country in which the pro- 
 visions in force relating to life-saving appliances appear to His 
 Majesty to be as effective as the provisions of Part v of the princi- 
 pal act, on proof that this provision was complied with in the case 
 of that ship." (Statutes [1905-06], pp. 248-49.) But the most 
 significant extension of jurisdiction in 1906 was that laid down 
 in the section relating to foreign ships carrying cargoes of grain, 
 as follows: 
 
 "If after the first day of October, one thousand nine hundred 
 and seven, a foreign ship laden with grain cargo arrives at any 
 port in the United Kingdom having the grain cargo so loaded
 
 THE JEWS IN PERSIA 445 
 
 that the master of the ship, if the ship were a British ship, would 
 be liable to a penalty under the provisions of Part v of the princi- 
 pal act relating to the carriage of grain, the master of that foreign 
 ship shall be liable to a fine not exceeding three hundred pounds." 
 (Statutes [1905-06], p. 248.) 
 
 The provisions respecting deckloads of timber remain sub- 
 stantially as in 1876. 
 
 On October 13, 1910, an order in council was issued exempting 
 Swedish vessels complying with Swedish regulations from deten- 
 tion for non-compliance with the Merchant Shipping Acts as to 
 overloading, as follows: 
 
 "Whereas the Board of Trade have certified that certain statu- 
 tory regulations which have been approved by the Swedish Gov- 
 ernment relating to overloading, so far as regards the assignment 
 of loadlines to Swedish ships, are equally effective with the cor- 
 responding regulations in force in this country respecting the 
 assignment of loadlines to British merchant ships: 
 
 "Now, therefore, His Majesty in Council doth direct that on 
 proof that Swedish ships have complied with the aforesaid Swed- 
 ish Regulations, such ships shall not, when hi ports of the United 
 Kingdom, be liable to detention for non-compliance with the 
 provisions of the Merchant Shipping Acts relating to overload- 
 ing, nor shall there arise any liability to any fine or penalty which 
 would otherwise arise for non-compliance with those provisions." 
 (British and Foreign State Papers, vol. 103, p. 165.) 
 
 THE JEWS IN PERSIA (1897) 
 
 IN May, 1897, the Minister of the United States at Teheran 
 interposed unofficially his good offices in behalf of the Jews in that 
 city, who were then being subjected to mob violence at the hands 
 of the Mohammedans. His course was approved with the state- 
 ment that his "good offices in this somewhat delicate question 
 seem to have been discreetly used in the interest of common hu- 
 manity and in accordance with the precepts of civilization." 
 
 (Taken textually from Moore: Digest of International Law, vol. 
 iv, p. 592.)
 
 446 SUCCOR 
 
 58. SUCCOR 
 
 UNITED STATES AND ITALIAN EARTHQUAKES (1908) 
 Ambassador Griscom to the Secretary of State 
 
 [Telegram] 
 
 AMERICAN EMBASSY, 
 
 Rome, December 29, 1908. 
 
 A terribly disastrous earthquake occurred yesterday in Sicily 
 and southern Italy. The town of Messina is said to be entirely 
 destroyed. There are no official estimates of mortality, but the 
 newspapers announce 50,000 killed. I saw the King this morning 
 before he left for the scene and expressed to him the heartfelt 
 sympathy of the President and the American people. He informed 
 me that the latest news is that fires are everywhere adding to the 
 disaster. I am trying to obtain news of our consulate at Messina 
 and of other Americans who may have suffered. 
 
 GRISCOM. 
 
 President Roosevelt to the King of Italy 
 
 [Telegram] 
 
 WASHINGTON, December 29, 1908. 
 
 With all my countrymen, I am appalled by the dreadful calam- 
 ity which has befallen your country. I offer my sincerest sym- 
 pathy. American National Red Cross has issued appeal for 
 contributions for the sufferers and notified me that they will im- 
 mediately communicate with the Italian Red Cross. 
 
 THEODORE ROOSEVELT. 
 
 Ambassador Griscom to the Secretary of State 
 
 [Telegram] 
 
 AMERICAN EMBASSY, 
 Rome, December 30, 1908. 
 
 Having received no word from consul at Messina and Palermo, 
 have asked the Foreign Office to furnish me information. They 
 have promised to use every effort through their army and navy
 
 UNITED STATES AND ITALIAN EARTHQUAKES 447 
 
 officers to obtain immediate news. British Consul at Messina is 
 reported injured and his wife and child dead. It is reported that 
 ninety Americans were in the Hotel Trinacria at Messina, which 
 is reported totally destroyed. It is known that some of the guests 
 escaped. 
 
 The Foreign Office informs me that several foreign nations are 
 hurrying warships to the scene to offer assistance. I think it 
 would be highly appreciated if we sent one or two warships at 
 earliest possible moment. Much assistance might be rendered 
 American citizens. Will you authorize sending Naples Vice- 
 Consul to Messina immediately? 
 
 GRISCOM. 
 
 The Acting Secretary of State to Ambassador Griscom 
 
 [Telegram] 
 
 DEPARTMENT or STATE, 
 Washington, December 30, 1908. 
 
 The National Red Cross will cable to-morrow for account of the 
 Italian Red Cross $50,000 for the relief of the earthquake sufferers. 
 
 BACON. 
 
 The Acting Secretary of State to Ambassador Griscom 
 
 [Telegram] 
 
 DEPARTMENT OF STATE, 
 Washington, December 37, 1908. 
 
 Regret no warships could reach Italy before the arrival of the 
 fleet in those waters about January 14, about which we will cable 
 you further. Scorpion ordered last night from Constantinople. 
 You may possibly find her of use in rendering assistance to Ameri- 
 can citizens or others in distress or to facilitate communication. 
 Telegram 3ist received. May draw for $5,000 if necessary. 
 
 BACON. 
 
 Ambassador Griscom to the Secretary of State 
 
 [Telegram] 
 
 AMERICAN EMBASSY, 
 
 Rom*, December jr, 1908. 
 
 The Prime Minister has invited me to proceed to Messina and 
 offered steamship accommodations from Naples. I have accepted
 
 448 SUCCOR 
 
 the offer, in order to avail of exceptional opportunity of getting 
 transportation for two or three consular officers and to profit by 
 special opportunities which are offered me for obtaining and send- 
 ing news. I leave Rome January i, taking with me Vice-Consul 
 Cutting from Milan, and will place him temporarily in charge of 
 consulate at Messina and secure recognition of Italian Govern- 
 ment; also taking interpreter of the embassy and one of the staff 
 of Naples Consulate, and Winthrop Chanler, a private citizen, 
 to do special work searching for and relieving American citizens. 
 As soon as I have organized and distributed the work I will return 
 to Rome. Expect to be absent few days only. I would be glad to 
 have a few thousand dollars in case necessary for relieving Ameri- 
 cans. 
 
 A newspaper telegram this morning from Messina states that 
 Lupton is dead, as well as Consul Cheney and family and Vice- 
 Consul Pierce and family. The nephew of the German Consul at 
 Messina, on arrival at Naples, confirms death of Consul Cheney 
 and family. 
 
 The Foreign Office this morning consider that the estimate of 
 100,000 dead is not exaggerated. 
 
 The Foreign Office informs me that foreign aid for sufferers will 
 be gratefully accepted, owing to immensity of disaster. 
 
 GRISCOM. 
 
 The Acting Secretary of State to Ambassador Griscom 
 
 [Telegram] 
 
 DEPARTMENT OF STATE, 
 Washington, December 31, 1908. 
 
 American Red Cross desire following delivered to Italian Red 
 Cross: 
 
 "Please advise if clothing, food, desired from America. Cable 
 our expense, brief statement, character, magnitude Italian Red 
 Cross relief operations. Red Cross, Washington, or through 
 American Embassy." 
 
 BACON.
 
 UNITED STATES AND ITALIAN EARTHQUAKES 449 
 The Acting Secretary of State to Ambassador Griscom l 
 
 [Telegram] 
 
 DEPARTMENT OP STATE, 
 Washington, December j/, 1908. 
 
 Draw on Secretary of State for $70,000 and pay to Italian Red 
 Cross for relief of sufferers, taking duplicate receipts. Fifty 
 thousand contributed by American Red Cross and $20,000 by 
 Louis Klopsch, of Christian Herald. 
 
 BACON. 
 
 (Foreign Relations of the United States, ipio, pp. 490-501.) 
 
 1 The American Red Cross, between December 31, 1908, and November 23, 1009, 
 transmitted through the State Department, and other channels of communication, 
 the sum of $90,755.69 for the relief of the earthquake sufferers. The Christian Herald 
 transmitted through the Department of State $35,000. (Foreign Relations of the 
 United States, iyzo, p. 501.)
 
 CHAPTER XI 
 
 COOPERATIVE ACTION BETWEEN A GROUP OF 
 STATES FOR THE PROTECTION OF THEIR COM- 
 MON INTERESTS 
 
 59. INTERNATIONAL COMMISSIONS FOR THE REGULATION 
 
 OF RIVERS 
 
 NAVIGATION OF EUROPEAN RIVERS (1814-15) 
 
 THE "navigation of the Rhine, from the point where it becomes 
 navigable unto the sea, and vice versa," was, by the Peace of Paris 
 of May 30, 1814, declared to be "free, so that it can be interdicted 
 to no one;" and it was provided that at the congress to be held 
 at Vienna "attention" should "be paid to the establishment of 
 the principles according to which the duties to be raised by the 
 states bordering on the Rhine may be regulated, in the mode most 
 impartial and the most favorable to the commerce of all nations." 
 And it was further stipulated that "the future congress, with a 
 view to facilitate communication between nations, and continu- 
 ally to render them less strangers to each other," should "likewise 
 examine and determine in what manner the above provisions can 
 be extended to other rivers which in their navigable course sepa- 
 rate or traverse different states." 
 
 By the Treaty of Vienna of June 9, 1815, the powers whose 
 states were "separated or traversed by the same navigable river" 
 engaged "to regulate, by common consent, all that regards its 
 navigation," and for this purpose to name commissioners who 
 should adopt as the bases of then- proceedings certain principles, 
 the chief of which was that the navigation of such rivers, "along 
 their whole course, . . . from the point where each of them be- 
 comes navigable to its mouth shall be entirely free, and shall not,
 
 UNIVERSAL POSTAL UNION 451 
 
 in respect to commerce, be prohibited to any one," subject to 
 regulations of police. In order to assure the application of this 
 principle, articles were inserted expressly regulating in certain 
 respects the free navigation of the Rhine; and it was provided that 
 "the same freedom of navigation" should "be extended to the 
 Necker, the Mayne, the Moselle, the Meuse, and the Scheldt, 
 from the point where each of them becomes navigable to their 
 mouths." And in order to "establish a perfect control" over the 
 regulation of the navigation, and to "constitute an authority 
 which may serve as a means of communication between the states 
 of the Rhine upon all subjects relating to navigation," it was 
 stipulated that a central commission should be appointed, con- 
 sisting of delegates named by the various bordering states, which 
 commission should regularly assemble at Mayence on the ist of 
 November in each year. Regulations for the navigation of the 
 Moselle and the Meuse were to be drawn up by those members 
 of the central commission whose governments should have pos- 
 sessions on the banks of those rivers. 
 
 (Extract from Moore: Digest of International Law, vol. I, p. 628.) 
 
 60. INTERNATIONAL UNIONS 
 
 UNIVERSAL POSTAL UNION 
 
 IF, in the postal relations of the independent states which 
 compose the family of nations, the ordinary principle of inde- 
 pendent action held sway, great would be the confusion and in- 
 convenience to every individual in the whole world as well as to 
 the governments responsible for the maintenance of these com- 
 munications. Different rates of postage would prevail to meet 
 the exigencies and interests of the different states. Some states 
 would have a uniform rate for the whole country, while others 
 would be divided in much the same way as the United States is 
 now apportioned into zones for the parcels post. Those states 
 over whose territory other states were obliged to ship their mail 
 might selfishly take advantage of the situation to exact exorbitant 
 charges, although such action might well bring in its turn retalia-
 
 452 INTERNATIONAL UNIONS 
 
 tory regulations against it on the part of other states. This would 
 again make the confusion worse confounded, if it did not actually 
 lead to a suspension of postal relations from time to time. These 
 are only a few of the inconveniences which would result from such 
 a situation. In point of fact inconveniences such as these did 
 actually exist before the formation of the Union Postale Univer- 
 selle (Universal Postal Union). The name is well deserved, for the 
 Union which wasfirst established by the Treaty of October 9, 1874, 
 now includes about threescore states and colonies, whose com- 
 bined territory forms "a single postal territory for the reciprocal 
 exchange of correspondence between their post-offices." (Article 
 I, Universal Postal Convention, May 26, 1906.) 
 The mechanism of this Union consists of three essential parts: 
 
 (1) The convention establishing the Union; 
 
 (2) The bureau established at Berne; 
 
 (3) Periodic congresses for the modification or revision of the 
 fundamental act of the convention upon which the Union 
 was based. 
 
 The convention, like any treaty, depends for its authority upon 
 the consent of the signatory states, so that the regulations which 
 it adopts are of necessity such as find universal favor and are ap- 
 plicable to all signatory states whatever their degree of civiliza- 
 tion and commercial development. 
 
 Whatever inconveniences result from the application of the 
 convention as adopted can be modified by unanimous agreement 
 at the succeeding congress to which the signatories send delegates 
 with the requisite full powers. The full appreciation of the needs 
 of the situation make the delegates at these conferences ready to 
 reconcile their differences in a large spirit of compromise so as to ' 
 secure as far as possible a uniform rule of practical application. 
 But here, as at The Hague, the curse of the liberum veto, or right of 
 any state to block by its refusal what the others may wish to 
 adopt, limits the efficacy of the regulations contained in the con- 
 vention. Any group of states is free, however, to enter upon a 
 restricted union of broad application; and many of the most im- 
 portant postal regulations between the states rest still upon bi- 
 lateral treaties for example, the two-cent postage between the
 
 UNIVERSAL POSTAL UNION 453 
 
 United States and Great Britain. The postal convention, as 
 modified by successive congresses, has been able to effect such 
 important regulations as a uniform charge of twenty-five centimes 
 for twenty grams, while the color of the stamp for this charge must 
 be blue in all countries. Each separate country interprets the 
 official French designations into the nearest practical equivalent 
 in its own units, so that in the United States this makes the charge 
 for foreign postage five cents. The charges for transit through 
 other countries have been standardized and the exorbitant de- 
 mands of certain countries curtailed. 
 
 The most interesting feature of the Postal Union is the Inter- 
 national Bureau established at Berne. To it is delegated the 
 important task of preparing the work of the succeeding congress, 
 at which the director and vice-director are present to advise the 
 congress, without of course enjoying any vote in its decisions. 
 The Bureau publishes a journal of information in three languages, 
 French, English, and German, in three parallel columns, although 
 the official language of the Union is French and all the discussions 
 at the congress are conducted in French. 
 
 In the interval between the meetings of the postal congress the 
 International Bureau is often called upon to give its advice in 
 regard to the interpretation of the provisions of the convention. 
 It may likewise be asked to act as an arbitrator to settle any dis- 
 agreement between two members of the Union in reference to the 
 application of the convention. The Bureau may also be asked to 
 settle the accounts between those administrations which care to 
 make use of its services. The Bureau also serves as an intermedi- 
 ary to secure any desired modification of the convention during 
 the interval between the congresses. Provided that three adminis- 
 trations make the appeal, the Bureau submits the proposal to the 
 other administrations. Article 26 of the convention permits such 
 modifications without the convocation of the congress and regu- 
 lates what the vote shall be, unanimity, two-thirds, or a simple 
 majority. 1 
 
 1 It is hard to understand why, when a majority is allowed to legislate in this 
 way for the minority, the same simple method cannot be adopted at the meetings 
 of the congress. But governments, nevertheless, jealously adhere to the principle of 
 
 unanimity.
 
 454 INTERNATIONAL UNIONS 
 
 With a view to the apportionment of the expenses of mainten- 
 ance, the separate .administrations composing the Union are 
 divided into seven ^classes, on the basis of the volume of their 
 international postal relations. This convenient and equitable 
 recognition of the economic inequality of the states has been 
 adopted as a basis for the assessment of the expense of main- 
 taining the International Bureau at The Hague in accordance 
 with Article 50 of the Convention for the Peaceful Settlement of 
 International Differences signed October 18, 1907. 
 
 Although war interrupts postal relations between states en- 
 gaged in conflict, the suspension is only temporary, and with the 
 return of peace the postal relations of the erstwhile belligerents are 
 renewed under the empire of the convention. This is an advantage 
 international conventions possess, since ordinary bilateral treaties 
 are definitely terminated by the outbreak of hostilities. 
 
 Many other unions for the regulation and administration of 
 interests common to a large group of states have been established. 
 While the independent states are laboriously working out their 
 political problems and discussing the organization of a world- 
 state, each one of these international unions, in its special but 
 important sphere, is acting as an administrative agent for the 
 world.
 
 LIST OF CASES 
 
 Alsace-Lorraine, Nationality of French Residents in 172 
 
 Alsop Claim 326 
 
 American Flag, Respect for, in Greece 163 
 
 American Pork Exports, Inspection of 292 
 
 Americans, Protection of, in Turkey 44 
 
 Arakelyan Case 375 
 
 Atocha and Gardiner Cases (cited) 78 
 
 Balmaceda, Overthrow of 243 
 
 Barbuit's Case 19. 
 
 Binzegger Case 401 
 
 Black Sea, Neutralization of 134 
 
 Blockade of Zanzibar 430 
 
 Bombardment of Greytown 119 
 
 Boyle, Francis, Case of 359 
 
 Brazilian Coffee Case 159 
 
 Cadenhead Case 262 
 
 Californias, Pious Fund of the 64 
 
 Canal Zone, Vested Rights in 127 
 
 Canal Zone, Squatters 174 
 
 Canevaro Claim 316 
 
 Caracas Waterworks, Case of 325 
 
 Caroline and McLeod Cases 121 
 
 Caroline Islands (Mediation concerning) 49 
 
 Casablanca Arbitration 377 
 
 Cattle on the Mexican Border 401 
 
 Charalambis Case 275 
 
 Charlton Extradition Case 408 
 
 Chinese Indemnity, Return of 117 
 
 Chinese Laborers, Transit Privileges to 295 
 
 Connell's Case 270 
 
 Costa Rica Packet Case 37* 
 
 Costello and Warren Cases 3 2 
 
 Creole Case 248 
 
 Cuban Debt, the ... 170 
 
 Cutting's Case 386
 
 456 LIST OF CASES 
 
 De Haber v. The Queen of Portugal 6 ., 46 
 
 Delagoa Bay Railway Arbitration 334 
 
 Dhows of Muscat 350 
 
 Dillon's Case 31 
 
 Diplomatic Representatives, Withdrawal of, from Venezuela 108 
 
 Dogger Bank Incident 98 
 
 Dubuc Case 311 
 
 Duke of Ripperda's Case 16 
 
 Emperor of Austria v. Day and Kossuth 425 
 
 European Rivers, Navigation of 450 
 
 Euryale Case 168 
 
 Exchange Case 230 
 
 Falkland Islands 208 
 
 Fisheries Arbitration, North Atlantic 177 
 
 Florence, Incident of the French Consulate at 34 
 
 Foichat, John B., Case of 322 
 
 Forte Case 38 
 
 Franck, Jacob, Case of 402 
 
 Fur Seal Arbitration 218 
 
 Gallatin's Coachman, Case of 7 
 
 Gamble's Case 43 
 
 Gardiner Case (cited) 78 
 
 Gordon, Lord George, Case of (cited} 429 
 
 Greytown, Bombardment of 119 
 
 Guatemalan Customs Laws 291 
 
 Hague, The, the First Peace Conference at 52 
 
 Hilton v. Guyot 436 
 
 Honey, Mrs., Case of 273 
 
 Impressment of Seamen 368 
 
 Inspection of American Pork Exports 292 
 
 Intervention, Collective, of the Powers in China 112 
 
 Italian Earthquakes 44-6 
 
 Jews in Persia 445 
 
 Jortin, Lee, Case of 26 
 
 Jus Sanguinis and Jus Soli in Chile 315
 
 LIST OF CASES 457 
 
 Koszta, Martin, Case of 51, 298 
 
 La Abra Case 75 
 
 Lamirande Case (cited) 420 
 
 Lawrence Case 430 
 
 Lawrence Extradition Case (cited} 416 . 
 
 Lazare Claim 82, 96 
 
 Leased Territory in China 203 
 
 Leases, Perpetual, in Japan 127 
 
 Letters Rogatory 422 
 
 Lumb, Alfred, Case of 280 
 
 McLeod Case 121 
 
 Marriage of American Women with Greeks 374 
 
 Masonic Case 361 
 
 Mattueof , Ambassador of Peter the Great, Case of 3 
 
 Merchant Shipping Act, the 439 
 
 Mexican Border, Cattle on 401 
 
 Missionaries in Turkey, American Naval Officers sent to Aid of, 124 
 
 Mississippi, Navigation of 296 
 
 Muscat, Dhows of 350 
 
 Myers and Tunstall, Case of 411 
 
 Nalbandian, Extradition of 403 
 
 Navigation of European Rivers 450 
 
 Neutralization of the Black Sea 134 
 
 New Orleans Lynching 264 
 
 Newton Case 246 
 
 Nikitchenkoff Case 228 
 
 North Atlantic Fisheries Arbitration 177 
 
 Northeastern Boundary of the United States 81 
 
 Nunciature, Expulsion of Secretary of, at Paris 17 
 
 Offenses Committed by Frenchmen Abroad 373 
 
 Orinoco Steamship Company Case 89 
 
 Overthrow of Balmaceda 243 
 
 Paquet's Case 
 
 Paquete Habana Case 
 
 Peace Conference, First, at The Hague 5* 
 
 Pelew Islands. . 49
 
 458 LIST OF CASES 
 
 Pelletier Claim 82 
 
 Peltier, Case of (cited) 429 
 
 Perpetual Leases in Japan 127 
 
 Peter the Great's Ambassador, Case of 3 
 
 Pious Fund of the Californias, the 64 
 
 Piracy, Trial of Privateers for 424 
 
 Pork, Inspection of American Exports of 292 
 
 Priest's Case 18 
 
 Pritchard Affair 22 
 
 Rauscher Case : 413 
 
 Regina v. Lesley 390 
 
 Ripperda Case 16 
 
 Ritchie v. McMullen (cited) 438 n. 
 
 Rogers's Case 30 
 
 Roussel Case 276 
 
 Russia v. Turkey 58 
 
 Sackville West-Incident 10 
 
 Sally Case 246 
 
 Samoa, Restoration of Order hi 45 
 
 San lago Case (cited} 398 
 
 Santa Cruz Case ' 394 
 
 Sapphire Case 168 
 
 Savarkar Case 416 
 
 Schnaebele Incident 225 
 
 Schooner Exchange Case 230 
 
 Scotia Case 43 2 
 
 Soule's Case 9 
 
 Spanish Warships at New Orleans 242 
 
 Suchet Case 107 
 
 Tcherniak Affair 39 2 
 
 Tillett, Ben, Case of 284 
 
 Torrey Case .259 
 
 Triquet v, Bath xxxi, 6 n. 
 
 Tyler, Ebenezer, Arrest of, on Canadian territory 154 
 
 Underbill v. Hernandez 156 
 
 Universal Postal Union 45 1 
 
 United States v. Rauscher 413
 
 LIST OF CASES 459 
 
 Venezuela, Claims against 69 
 
 Venezuelan Citizens in France, Protection of 51 
 
 Virginius Case 368 
 
 Warren and Costello Cases 320 
 
 Weil and La Abra Cases 75 
 
 Weile's Claim 22 
 
 Wildenhus Case 253 
 
 Williams, John H., Claim of 55 
 
 Wohlgemuth Affair 137 
 
 Zappa Incident 155
 
 LIST OF ARBITRATIONS 
 
 Alsop Claim (1911) 326 
 
 Brig Lawrence (1848) 430 
 
 Cadenhead Case (1914) 262 
 
 Canevaro Claim (1912) 316 
 
 Casablanca Arbitration (1909) 377 
 
 Costa Rica Packet (1888) 371 
 
 Creole (1853) 248 
 
 Delagoa Bay Railway Arbitration (1900) 334 
 
 Dhows of Muscat (1905) 350 
 
 Dogger Bank Incident (1904) (Commission of Inquiry) 98 
 
 Fur Seal Arbitration (1893) 218 
 
 Lazare Claim (1884-87) 96 
 
 Masonic (1879) 3^i 
 
 North Atlantic Fisheries Arbitration (1910) 177 
 
 Northeastern Boundary of the United States (1831) (Award not 
 
 accepted) 81 
 
 Orinoco Steamship Company Case (1910) 89 
 
 Paquet's Case (1903) 290 
 
 Pelletier Claim (1884-87) (set aside) 82 
 
 Perpetual Leases in Japan (1905) 127 
 
 Pious Fund of the California^ (1902) 64 
 
 Russia v. Turkey (1912) 58 
 
 Savarkar Case (1911) 416 
 
 Torrey Case (1903) 259 
 
 Venezuela, Claims against (1866-90) (set aside) 69 
 
 Weil and La Abra Cases (1868-1902) 75 
 
 Williams, John H., Claim of (1885) 55
 
 INDEX 
 
 A List of Cases is given on page 455; and a List of Arbitrations on page 460. 
 
 Acts of state: responsibility for (Caro- 
 line), 122 Jf . ; officials not responsible 
 for, before courts of another state, 156. 
 
 Adams, John: maintains theory of "divi- 
 sion of empire," 177; on "liberty" 
 and "right," 191. 
 
 Adams, J. Q., Secretary of Slate of U.S. : 
 explanation of, in case of Captain 
 Gamble, 43; letter of, on recognition 
 of new states, 164; argument of, as to 
 survival of Treaty of 1783, 180. 
 
 Administration of international law: pro- 
 cedure in regard to transit of Chinese, 
 296. 
 
 Administrative procedure: U.S. method 
 of, in cases of deportation, 275. 
 
 Agency: legal consequences of Turkey's 
 banishment of Koszta under compul- 
 sion from Austria, 209; irregularity of, 
 according to national law, in deliver- 
 ing Savarkar, not material under in- 
 ternational law, 422; regulation of 
 vessels in interest of humanity, 442; 
 international unions act as adminis- 
 trative, for world, 454. 
 
 Agents: immunities of, of international 
 intercourse, 3-46, 225-28; jurisdic- 
 tion over acts done by nationals 
 abroad as, of foreign state, 300-91. 
 
 Agreement, diplomatic: record of, in ex- 
 change of notes, 48; treaty used for 
 record of, 48; of governments as bar 
 to international claims, 55; between 
 Great Britain and Russia re Commis- 
 sion of Inquiry, 101, 102. 
 
 Agreements, international (see also Trea- 
 ties): 126 /. 
 
 Ahmed Reoiid Bey: arbitrator in case 
 of Russia v. Turkey, 58. 
 
 Alaska: purchase of, 218. 
 
 Algeciras: Act of, grants Germany most- 
 favored-nation treatment in Morocco, 
 382. 
 
 Aliens: Congress enacts legislation giving 
 jurisdiction over, to federal courts 
 (Caroline), 123; rights of, 250-75; ex- 
 ercise of jurisdiction over, for acts 
 
 done within another state, 386-89: 
 protection of, afforded by international 
 law against unjust punishment, 387. 
 
 Allegiance: succession of, 172; conflict of 
 laws in regard to, of municipal char- 
 acter, 301; banishment releases from, 
 303; perpetual, and expatriation, 320- 
 25; protest of Sultan of Muscat gi" t '^t 
 withdrawal of subjects from, 352; en- 
 forcement of law of, within territorial 
 jurisdiction, 368; attempt of Great 
 Britain to enforce municipal law of, 
 on high seas, 368. 
 
 Alsace-Lorraine: nationality of French 
 residents in (1871), 172. 
 
 Alsop claim: 326-34. 
 
 Amalfi, Tables of: 434. 
 
 Ambassador (see also under Diplomatic 
 representatives) : British, on own initia- 
 tive asks explanation of Dogger Bank 
 incident, 99. 
 
 American flag: respect for, in Greece, 
 163- 
 
 Amiable compositeur : functions of, de- 
 nned, 329. 
 
 Analogy: U.S. contends international 
 law to be "international standard of 
 justice and advanced by," 221. 
 
 Anarchist: Swiss Government does not 
 allow, to settle in Switzerland, 148. 
 
 Anderson, Chandler P.: agent for U.S. 
 in North Atlantic Fisheries case, 187. 
 
 Animus furandi: presence of, in piracy, 
 370. 
 
 Animus revrrtenat : intention to return. 
 
 Anne, Queen of Great Britain: assures 
 Russian Ambassador of sense of out- 
 rage on him and intention to prose- 
 cute all implicated, 3; writes letter to 
 Peter the Great expressing "just 
 horror against this violent insult," 5 *.; 
 apology tendered to Peter the Great 
 in Queen's name. 6; writes appropriate 
 letter to Mattueof, 7. 
 
 Annulment of awards: commission on 
 Venezuelan claims sets aside awards 
 of former commission, 74.
 
 462 
 
 INDEX 
 
 Apologies: sometimes tendered by gov- 
 ernments, 106; and protests, 106-07. 
 
 Apology: English Ambassador makes, 
 in open audience, 6; French Govern- 
 ment expresses regrets for arrest of 
 Pritchard, 25-26; salute of French 
 flag by U.S., 33; U.S. makes redress 
 to France for violation of consul's 
 rights, 33; China expresses, for Boxer 
 outrages, 113 jf.; who should make, 
 for unjustifiable detention (Torrey 
 case), 260. 
 
 A posteriori: that which is subsequent to 
 something else. 
 
 Arakelyan, case of: 375-77. 
 
 Arbitral procedure: governed by the 
 compromis, 54; arbitration and the 
 
 1 presentation of claims, 54-58; in Casa- 
 
 ' blanca case, 378. 
 
 Arbitration: difficulty to get governments 
 to employ (Moore), vi; nature and 
 advantages of, xxix; Permanent Court 
 of, at The Hague, established 1899, 
 54; U.S. demands, of Venezuela, 108; 
 refusal of Venezuela to submit claims 
 to, 109, no; the Halifax award for the 
 fishing rights, 185; Hague Tribunal 
 (Fisheries) authorized to make rules 
 of procedure for fisheries, 187; tribunal 
 suggests an act of grace (Cadenhead), 
 263-64; differences as to execution of 
 contract to be referred to, 335; ap- 
 plication of Portuguese law to, if not 
 counter to international law, 346; 
 remarks of Jenkins in reference to, 
 424. 
 
 Arbitrations, List of: 460. 
 
 Arbitrator: departure from powers dele- 
 gated to, 81-82. 
 
 Archives, consular: violated by clause 
 duces tecum in subpoena, 32; French 
 Government considers subpoena duces 
 tecum involved violation of, 32; French, 
 at Florence, inviolable under Treaty 
 of 1862, 35. 
 
 Argentine Republic: claim of, to Falkland 
 Islands, 208-17. 
 
 Arica: arrangements as to customs at, 
 
 327- 
 
 Armaments: military and naval, limita- 
 tion of, proposed by Russian Govern- 
 ment, 53. 
 
 Armed forces: extra territoriality of, 
 
 235 Jf- 
 
 Armed forces and warships: 230-42. 
 
 Ashburton, Lord: regrets violation of 
 territory in Caroline affair, 122; nego- 
 tiations of, with Webster, 249, 368. 
 
 Asser, T. M. C.: arbitrator in Pious 
 
 Fund case at Permanent Court at 
 The Hague (1912), 66. 
 
 Asylum (see also Refuge): legation not 
 inviolable, 8; refused by Dutch Em- 
 bassy to Duke of Ripperda, 16; Duke 
 of Ripperda seeks, at British Embassy, 
 1 6; not allowed by Spanish Govern- 
 ment to obtain, 16; not to be forcibly 
 terminated without notice, 17; Switzer- 
 land will not give up right of, 147; 
 vessels in distress have right of, in 
 foreign ports, 236; U.S. does not rec- 
 ognize, in case of Spanish warships at 
 New Orleans, 242-46; U.S. seizes 
 Confederates in Morocco, 411; anarch- 
 ists not considered political refugees, 
 412-13; France claims that Savarkar 
 had right to, 418. 
 
 Atocha and Gardiner cases: 78. 
 
 Aube, Admiral: favors ultimatum to 
 Germany, 226. 
 
 Au service: meaning of, in French treaty 
 with Muscat, 357, 358-59. 
 
 Austria-Hungary: seizure of Koszta at 
 Smyrna by authorities of, 51; party to 
 Treaty of Paris (1856), 134; warns 
 Switzerland against danger to Swiss 
 neutrality, 139; demand of, for ex- 
 tradition of Koszta from Turkey, 298; 
 seizure of Koszta by authorities of, 
 299-311; grants U.S. transit of extra- 
 dited person, 407-08; British court 
 restrains manufacture of paper money 
 of, 425-29- 
 
 Australia: seizure of derelict on high 
 seas, by vessel from, 371-72. 
 
 Authorities: help of, in ascertaining the 
 rule of conduct, xxviii; Greece and 
 Roumania consult international jurists 
 in regard to Zappa affair, 155. 
 
 Authority: law of nations to be collected 
 from, of writers, xxxii. 
 
 Award: Mosquitia, cited in Russia . 
 Turkey, 62; is principle of res judicata 
 applicable to, 66; protest against, of 
 King of Netherlands on ground of 
 excess of powers, 82; essential error 
 ground for annulment of, 82-89; pro- 
 test by Hayti against execution of, 
 83; revisability of, of international 
 commission, 64-69, 89-96; protest by 
 U.S. against Barge, 92; of Halifax, arbi- 
 tration for the fishing rights, 185; final- 
 ity of, provided for, 341 ; unsatisfactory 
 nature of, in Casablanca case, 385. 
 
 Award, annulment of: commission on 
 Venezuelan claims sets aside awards 
 of former commission, 74; on ground 
 of new evidence, 96-98.
 
 Award, conclusions of: have force of res 
 judicata, 67. 
 
 Awards: final nature of, opinion of Mr. 
 Fish on, 76; suspension of payments 
 on, 77; duty of government to refuse 
 to enforce inequitable, 78, 88; unpaid 
 balance of, returned by U.S. to Mexico, 
 80, 81; revision of, chief reasons for, 
 93, 94; international, annulled by in- 
 ternational tribunal, 95. 
 
 Aylesworth, A. B.: agent for Great 
 Britain in North Atlantic Fisheries 
 case, 187. 
 
 Bail: Russian Ambassador compelled to 
 furnish, 3. 
 
 Balance of power: Great Britain seeks 
 concession to maintain, 206. 
 
 Balfour, British Premier: announces 
 commission of inquiry on Dogger Bank 
 incident, 100. 
 
 Balmaceda, President of Chile: war be- 
 tween Congressionalists and, 243; 
 takes refuge at Argentine Legation, 
 244. 
 
 Bancroft: naturalization treaties, 321; 
 signs convention with North German 
 Confederation (1868), 321. 
 
 Banishment: Austria accepts, of Koszta 
 as substitute for extradition, 299; 
 legal consequences of, from Turkey 
 of Koszta, same as if done by Austria, 
 209; releases from bond of allegiance, 
 303; of certain Chileans, 390. 
 
 Barbcyrac: xxxii; opinion of, on consular 
 privileges, 21. 
 
 Barbuit's case: cited in Triquet r. Bath, 
 xxxi, 19-22. 
 
 Bardo, Treaty of the: 8. 
 
 Barge, Dr. : umpire on U.S.-Venezuela 
 Mixed Commission of 1903, 92; dis- 
 allows larger part of Orinoco Steam- 
 ship Co. claim, 92; award of, protested 
 by U.S., 92; award of, annulled in part 
 by Permanent Court of Arbitration 
 (1910), 95. 
 
 Basis of protection : 298311. 
 
 Batavia: liability of U.S. citizen to mili- 
 tary service in, 270. 
 
 Bates, Joshua: umpire, Commission of 
 1853, 248; opinion of, in Creole case, 
 249-53; opinion in Lawrence case, 
 
 430-31- 
 
 Bat hurst, Lord: argument of, as to sur- 
 vival of Treaty of 1783, 180. 
 
 Bayard, Secretary of State of U3.: asks 
 Lord Salisbury to recall Lord Sack- 
 villc, 10; authorized by President 
 Cleveland to send Lord Sackvillc his 
 
 INDEX 463 
 
 passports, 10; replies to Lord Salis- 
 bury, 13; quotes rule laid down by 
 Calvo, 14; signs new convention for 
 settlement of Venezuelan claims (1885), 
 73; signs another convention (1888), 
 73; report of, on Weil and La Abra 
 claims, 78; reports against enforcement 
 of Petletier and Lazare awards, 83, 
 96; letter of, protesting against undue 
 discrimination against American citi- 
 zens, 162; on Torrey claim, 260, 261; 
 demands instant release of Cutting 
 386. 
 
 Bays: difficulty of making definition of, 
 183; intention of negotiators of Treaty 
 of 1818 regarding, 199 ff. 
 
 Beaumont, Admiral : British representa- 
 tive on Commission of Inquiry, Dogger 
 Bank incident, 102. 
 
 Beemaert: arbitrator in Savarkar case, 
 418. 
 
 Behring Sea: ukase of Russia asserting 
 jurisdiction over (1821), 218; Cana- 
 dian sailing vessels seized in, 219; 
 considered mare clausum by U.S. 
 tribunal, 219; question of jurisdiction 
 over, submitted to arbitration, 220; 
 exclusive jurisdiction in, never as- 
 serted by Russia, 224; included in 
 "Pacific Ocean," 224. 
 
 Belgium: consular convention between 
 U.S. and, 253; expulsion of British 
 subject from, 284-90; subject of, ex- 
 cluded from Venezuela, 200-91; juris- 
 diction over claims of, against Vene- 
 zuela, 325. 
 
 Belligerency: recognition of, not neces- 
 sary to judicially establish fact of ex- 
 istence of revolution or insurrection, 
 
 157- 
 
 Berne: International Bureau of Postal 
 Union established at, 453. 
 
 Binzeggcr, case of: 401-02. 
 
 Bismarck: suggests conference at Lon- 
 don (1871) on neutralization of Black 
 Sea, 136; demands release of Wohlge- 
 muth, 138; views of, on treaty between 
 Germany and Switzerland, 144; note 
 of, on Schnaebcl incident, 226. 
 
 Black Sea: neutralization of, 134. 
 
 Blackstonc: on law of nations and com- 
 mon law of England, 252. 
 
 DiiMi arbitrator in Dcbgoa Bay Rail- 
 way case, 341, 348. 
 
 Blaine, IfJl. Secretary of Slate: opinion 
 of, on fraudulent claims m f tm f* 
 Mexico, 77 .; petition against, to 
 compel distribution in Weil award, 
 79; negotiates treaty on naherics
 
 464 
 
 INDEX 
 
 (1892), 186; communication of, to 
 Governor of Louisiana, 266; notes of, 
 on New Orleans lynching, 267, 268; 
 gives assurance of redress by U.S. in 
 case of violation of treaty, 269; offer 
 of indemnity by, accepted by Italy, 
 270; diplomatic intervention of, in 
 Delagoa Bay Railway case, 340. 
 
 Blanc, Baron: arbitrator in case of the 
 Masonic, 365; award of, 365-67. 
 
 Blanco, Guzman, President of Venezuela : 
 orders release of American citizens, 
 261. 
 
 Blockade: of Orinoco, right of Venezue- 
 lan Government to institute, 92; of 
 Zanzibar, 430. 
 
 Bolivia: financial transactions of, with 
 the Alsops, 326-34; customs of, col- 
 lected [at Peruvian port, 327; war be- 
 tween Chile and, 327; Pact of Indefi- 
 nite Truce between Chile and, 327; 
 obligations of, assumed by Chile, 328. 
 
 Bond, Sir Robert: negotiates treaties 
 on fisheries (1892, 1902), 186. 
 
 Borchard, Edwin M.: international claims 
 discussed by, in The Diplomatic Pro- 
 tection of Citizens Abroad, 55 . 
 
 Borland, U.S. Minister to Central 
 America: attacked by mob at Grey- 
 town, 1 20. 
 
 Bosphorus: passage of warships through, 
 prohibited by Treaty of Paris (1856), 
 
 134- 
 
 Boulanger, General: in favor of ultima- 
 tum to Germany, 225. 
 
 Boycott: China required to prohibit 
 anti -foreign societies, 115. 
 
 Boyd, Federico: member of U.S.- 
 Panama Joint Commission (1913), 174. 
 
 Boyle, Francis, case of: 359-61. 
 
 Bradley, Justice : opinion of, in case of the 
 Sapphire, 169. 
 
 Brazil: British naval officers arrested 
 in, 38; reprisals by Great Britain 
 against, to obtain redress in Forte 
 case, 40; valorization of coffee in, 159; 
 public property of, in U.S. not subject 
 to seizure, 161. 
 
 Brazilian Coffee case: 150-62. 
 
 Brussels Conference: General Act of, on 
 slave trade, 351. 
 
 Bryce, Lord, British Ambassador at Wash- 
 ington: signs special agreement sub- 
 mitting North Atlantic Fisheries dis- 
 pute to arbitration (1909), 177. 
 
 Buchanan: approves recognition of 
 French Government by Mr. Rush, 
 166; states policy of U.S. with respect 
 to de facto governments, 167. 
 
 Buenos Ayres: policy of U.S. in recogni- 
 tion of government of, 164. 
 
 Bulgaria: grants extradition to U.S. 
 without treaty as act of grace, 403- 
 08. 
 
 Bulwer, Sir Henry, British Minister at 
 Madrid: dismissal of (1848), 12. 
 
 Buruaga, Asta, Chilean Minister at 
 Washington: complains of revocation 
 of exequatur of Consul Rogers, 30. 
 
 Business: national courts jurisdiction in 
 case of, of foreign government, 160. 
 
 Butler, General: claims right to search 
 Spanish warship at New Orleans, 242. 
 
 Bynkershoek: xxxii; on jurisdiction over 
 foreign sovereigns, 239, 240. 
 
 Cadenhead case: 262-64. 
 
 Calderon: arbitrator in the Canevaro 
 claim, 317. 
 
 Calif ornias, Pious Fund of the: 64-69. 
 
 Calvo: opinion of, on recall of diplomatic 
 officials, 14; rules for dismissal of 
 diplomatic representative stated by, 
 14; statement of, on claim to Falk- 
 land Islands, 217. 
 
 Calvo clause: inserted in Venezuelan 
 contracts, 91-92. 
 
 Cambon, French Ambassador at London: 
 concludes agreement with Great Brit- 
 ain re dhows of Muscat, 350; on right 
 to fly the French flag, 356. 
 
 Campbell, Lord, Chief-Justice of England : 
 refuses to cite Queen of Portugal into 
 a British court, 46. 
 
 Canada: forces from, destroy Caroline 
 on U.S. territory, 121; arrest of Ameri- 
 can deserter in, disavowed by U.S., 
 154; Dominion of, formed (1867), 
 184; responsibility of Great Britain 
 for legislation of, 184; has bonding 
 privilege in U.S., 184; regulation of 
 fisheries by, 184-86; institution of 
 permanent mixed fishery commission 
 for, 195; sealing vessels of, seized in 
 Behring Sea, 219; damages paid by 
 U.S. for seizures of sealing vessels of, 
 225; execution of judgment of, in U.S., 
 438 n. 
 
 Canal Zone: rights of squatters on, 174; 
 property rights in, not divested by 
 transfer of sovereignty, 176. 
 
 Canevaro claim: 316-20. 
 
 Canso, Strait of: right of innocent pas- 
 sage through, 183-87. 
 
 Cape Bretcn: American fishing vessel 
 seized off coast of, 183. 
 
 Capitulations: see Koszta case, 301 ff.; 
 appli cation of, to Muscat, 354-57.
 
 Caracas Waterworks case: 325-26. 
 Caroline and McLeod cases: 121-23. 
 Caroline Islands: dispute about, settled 
 by mediation of Pope Leo XIII, 40- 
 
 50- 
 
 Casablanca arbitration: 377-85. 
 
 Case-book method of teaching: v. 
 
 Cases, List of, 455. 
 
 Cassation, Court of: the Supreme Court 
 of France. It corresponds most 
 nearly to our Supreme Court, but has 
 less extensive and somewhat different 
 functions. 
 
 Castile, Council of: opinion of, on 
 asylum in embassies, 16. 
 
 Cattle on the Mexican Border: 401. 
 
 Certiorari: a writ from a superior to an 
 inferior court directing a certified 
 record of its proceedings in a desig- 
 nated case to be sent up for review. 
 (Standard.) The purpose is to secure 
 a fairer or more speedy trial. 
 
 Cerruti case: cited in Alsop claim, 329. 
 
 Cessions of territory: status of loans re- 
 lating to, 171; effect of, as to nation- 
 ality of residents, 173; effects in case 
 of recognition of independence of 
 seceding state, 177 ff. 
 
 Ceylon: pearl fishery in, protected be- 
 yond ordinary limit of jurisdiction, 
 222. 
 
 Change of government: effect of, upon 
 property of chief of state, 169. 
 
 Change of sovereignty: see Transfer of 
 sovereignty. 
 
 Charalambis case: 275-76. 
 
 Charge d'affaires ad interim : distinguished 
 from charge des affaires, 15 . 
 
 Chargt des affaires: distinguished from 
 chargi d'affaires ad interim, 15 n. 
 
 Charlton Extradition case: 408-11. 
 
 Chesapeake Bay: jurisdiction of U.S. 
 extends over, 199. 
 
 Chile: consul of, at New York, revoca- 
 tion of exequatur of, 30; U.S. Minister 
 to, grants asylum to Congressionalists 
 at Santiago, 243; policing of foreign 
 legations by government of, 244; re- 
 fusal of government of, to grant safe- 
 conduct to refugees, 245, 246; adop- 
 tion by, of principle of jus sanguints, 
 315; the Alsop claim against, 326- 
 34; war between Bolivia and Peru 
 and, 327; Pact of Indefinite Truce 
 between Bolivia and, 327; obligations 
 of Bolivia assumed by, in Treaty of 
 1904, 328; responsibility of, for un- 
 dertaking with Bolivia, 333; law* of 
 Great Britain not applicable to act* 
 
 INDEX 465 
 
 of British vessel in waters of, 300-01; 
 laws of, not applicable to British ship 
 on high seas, 391-92. 
 
 China: collective intervention of the 
 powers in, 112; return of Chinese in- 
 demnity to, by U.S., 117; Treaty of 
 Shimonoseki between Japan and 
 (1895), 203; cession of Liao-tung Penin- 
 sula to Japan by, 203; retrocession of 
 Liao-tung to, 203; leases by, of Kiao- 
 chau to Germany, 203-05; of Port 
 Arthur and Talien to Russia, 205-06; 
 of Kwang-chau to France, 206; of 
 Wei-hai-wei and Kowloon to England, 
 206-07; consent of, to transfer of 
 lease of Port Arthur to Japan, 207; 
 demands of Japan upon (1915), 207; 
 transit of Chinese laborers across 
 U.S., 295; Germany cites action re- 
 garding consular jurisdiction in, 383. 
 
 Chinese exclusion: privileges of transit 
 issued, 296. 
 
 Chinese indemnity: return of, by U.S., 
 112-19. 
 
 Citizenship: exercise of, considered de- 
 cisive factor in determining nationality, 
 318. 
 
 Civil war: foreign nations do not assume 
 to judge merits of, 157. 
 
 Claims: presentation of, arbitration, ar- 
 bitral procedure, 54-58; fraudulent, 
 reservation of Mexico with respect to, 
 76; for loss of property at Greytown, 
 presented to U.S., 120; jurisdiction of 
 domestic regulations over claim ac- 
 quired by alien, 319; assignment of, 
 recognized by Bolivian Government, 
 326- 
 
 Classification: what constitutes good, ri. 
 
 Cleveland, President: dismisses Lord 
 Sackville West, British Minuter at 
 Washington, n; opinion of, in Cut- 
 ting's case, 388-89. 
 
 Codification: general treaties sometimes 
 are, xxvi n. 
 
 Coercive measures short of war: 107-21. 
 
 Coffee, Brazilian, case: 159. 
 
 Collective intervention: of the powers in 
 China, 112-17; police action by, 430. 
 
 Collective note: Russia, Germany, and 
 France address, to Japan, urging re- 
 trocession of Port Arthur. 203. 
 
 Colombia: discrimination by, in taxa- 
 tion, 162; Cerruti case in, cited in 
 Alsop claim, 329. 
 
 Comity: exemption of fishing vessels 
 from capture originally based on, 
 xxxiii; refusal to allow foreign sov- 
 ereign to sue in U.S. courts would be
 
 4 66 
 
 INDEX 
 
 want of, 169; extent of jurisdiction 
 over crew left to consuls as measures 
 of, 255; deportation of criminal to 
 another state violation of, 283; may 
 yield extradition which law does not re- 
 quire, 302, 401-03; U.S. asks Germany 
 to allow consuls to take testimony as 
 act of, 423; judicial application of rule 
 of reciprocity out of regard for na- 
 tional, 437. 
 
 Commerce, questions of: proper concern 
 of public ministers, 20. 
 
 Commercial agent: not entitled to diplo- 
 matic privileges, 19; functions of, 21; 
 attack on U.S. Minister at residence 
 of American, at Greytown, 120. 
 
 Commission: as agent of commerce, 19; 
 at Russian Embassy to examine 
 claims against Turkey, 58. 
 
 Commission, Halifax: award of (1877), 
 185- 
 
 Commission, International, of Inquiry: 
 in Dogger Bank incident, 98-106. 
 
 Commission, international: of experts es- 
 tablished by Fisheries Arbitration, 195; 
 for the regulation of rivers, 450-51. 
 
 Commission, mixed: under Treaty of 
 1868 between U.S. and Mexico, 65; 
 under Convention of 1866 between U.S. 
 and Venezuela, 69. 
 
 Commission, mixed claims: February 
 17, 1903, between U.S. and Vene- 
 zuela, 89. 
 
 Commission, new: on Venezuelan claims, 
 to rehear, not to review former award, 
 
 74- 
 
 Communications, postal: see Universal 
 Postal Union, 45 1 ff. 
 
 Compensation: Great Britain pays dam- 
 ages for Fortune Bay incident, 185; 
 law applicable to fixing of, 347. 
 
 Compensatory interest: distinguished 
 from moratory, 61. 
 
 Compromis: see also special agreement, 
 187; recognized as governing rule in 
 arbitration, 55. 
 
 Compromise: treaties based upon, xxvi; 
 through discussion, essence of diplo- 
 macy, 47; settlement by, not always 
 considered a precedent, 47; basis of 
 settlement of political differences, 48; 
 equitable, basis of all new rules, 154; 
 settlement of Brazilian Coffee case, 
 162; Austria accepts banishment of 
 Koszta from Turkey in place of extra- 
 dition, 299; large spirit of, prevails 
 in Postal Union congresses, 452. 
 
 Conception Bay: jurisdiction of Great 
 Britain extends over, 199. 
 
 Conduct: international law rule of, bind- 
 ing on nations, 151. 
 
 Conference of teachers of international 
 law: resolutions adopted by, viii n- 
 ix ;/. 
 
 Conferences: International Hague, 52-54. 
 
 Conflict of laws: see Private international 
 law; Foreign judgments; Nationality. 
 
 Congress: resolution of, upon appoint- 
 ment of new commission on Venezuelan 
 claims (1883), 71; President to ask, 
 to remit Chinese indemnity, 118-19; 
 by joint resolution tenders congratula- 
 tions to France upon establishment of 
 Republic (1848), 168; passes act de- 
 claring right of expatriation, 322; of 
 Vienna, navigation of Rhine, 450; In- 
 ternational, one of the essential parts 
 of Postal Union, 452. 
 
 Congo Free State: cooperation of, in 
 blockade of Zanzibar, 430. 
 
 ConnelTs case: 270-73. 
 
 Conquest: effect of, to transfer debts, 
 170; effect of, to transfer nationality, 
 172; effect of, on Arica mining con- 
 cessions, 331. 
 
 Consent: all restrictions of national 
 jurisdiction must be traced to, 232; 
 may be tested by common opinion, 
 growing out of usage, 232. 
 
 Constitution: of Chile: interpretation 
 of provision relating to citizenship, 
 315; of U.S.: overrides conflicting 
 treaties, 32; of U.S.: distribution of 
 authority between federal and state 
 governments, 264; of U.S. : in Winslow's 
 case U.S. refused to give assurances 
 regarding action of judiciary, 416 n. 
 
 Constraint: means of, necessity to resort 
 to, 107. 
 
 Consul: rights and immunities of, 18- 
 38; nature of, denned, 21; not entitled 
 to diplomatic pri vileges, 21; wrongful 
 arrest of, in Chile, 22; removal of 
 English, from Tahiti, 22; suit against 
 English, in court at Dieppe, 26; office 
 as, ceased when Pritchard hauled 
 down his consular flag, 23 n.; responsi- 
 bility for official acts, 26 ff.; enjoys 
 immunity necessary for discharge of 
 official duties, 28; status and privileges 
 of, 28; exequatur of Chilean, at N.Y., 
 revoked, 30; French, exercises good 
 offices in Koszta's case, 301; French, 
 at San Francisco, brought before U.S. 
 tribunal, 31; commander of Erie be- 
 lieved consul would receive citation 
 he refused to accept, 43; American, 
 retained in Venezuela upon with-
 
 drawal of diplomatic representative, 
 112; naval officers instructed to con- 
 fer with, regarding protection of 
 Americans, 124; Greek Government 
 claimed to be put in possession of 
 Zappa estate by consulate, 155; U.S., 
 at La Guaira obtains release of Torrey, 
 260; Italian, asks governor to send 
 troops to protect prisoners (New Or- 
 leans lynching), 265; American, places 
 mate in command of the Creole, 250; 
 Belgian, claims jurisdiction over crew 
 under treaty (Wildenhus), 253; 
 American, obtains release of Forchat 
 imprisoned for " insoumission," 323; 
 jurisdiction of, over vessels to investi- 
 gate crimes committed on the high 
 seas, 392; makes complaint in extradi- 
 tion case, 408; always referred to, 
 before taking action against a foreign 
 vessel, 440. 
 
 Consular corps: at Florence protests 
 against violation of French Consulate, 
 36. 
 
 Consular jurisdiction: in Japan, see Per- 
 petual Leases, 127 ff.; or extraterri- 
 torial, 377-85; France in Casablanca 
 case argues, must yield to military au- 
 thority, 380; Seward considers, extends 
 to political refugees, 411-12. 
 
 Consul-general: French, good offices of, 
 in Koszta case, 51. 
 
 Consul missus: professional consul, dis- 
 tinguished from an elected or merchant 
 consul who is also engaged in trade. 
 
 Consuls: conference between, and naval 
 officers for protection of citizens, 44- 
 45; American Minister issues to, direc- 
 tions regarding flying of American 
 flag, 163; limits of jurisdiction of, over 
 vesseb and crews (Sally), 246 ff.; 
 vigorous protest of U.S., at release of 
 slaves from U.S. vessels, 248; Chinese, 
 permitted to issue transit certificates, 
 206; relief of destitute seamen, 402; 
 designated by U.S. courts to take 
 testimony abroad, 422 ff.; asked to 
 furnish information about Messina 
 earthquakes, 446-47. 
 
 Consuls at Florence: draw up official 
 report on violation of French Consu- 
 late, 36. 
 
 Contra bonos mores: U.S. claims exter- 
 mination of seals on high seas is, 220. 
 
 Contract laborer: Charalambis ordered 
 deported as, 275. 
 
 Control over vessels flying the national 
 flag: 3.00-93. 
 
 Convention: concerning the Uwi and 
 
 INDEX 467 
 
 customs of war on land (1899), 54; 
 for the peaceful settlement of inter- 
 national differences, 54; of 1866 be- 
 tween U.S. and Venezuela, mixed 
 commission under, 69; of July 4, 1868, 
 between U.S. and Mexico for adjust- 
 ment of claims, 75. 
 
 Cooperation of U.S. in restoring order 
 in Samoa: 45. 
 
 Corporations: protection and national- 
 ity of, 325-50. 
 
 Corruption of the tribunal: 69. 
 
 Costa Rica Packet case: 371-72. 
 
 Costello and Warren cases :* 20-2 a. 
 
 Council of State (Consfil d'&at]: a body 
 entrusted with certain advisory and 
 judicial functions relative to the ap- 
 plication of the law. Its judicial 
 actions extend to some cases affect- 
 ing the interest of foreigners. 
 
 Council of State: French (1859) declares 
 local authorities competent to exer- 
 cise jurisdiction over crew in case of 
 homicide on vessel, 258-59. 
 
 Courcel, Baron de: arbitrator in Fur 
 Seal case, 221. 
 
 Court (see also National courts) : Perma- 
 nent, of Arbitration at The Hague, es- 
 tablished 1809, 54! officials not re- 
 sponsible for acts of government 
 before courts of another state, 156. 
 
 Court of Claims: of U.S., Venezuela not 
 to be forced into, 73; jurisdiction of, 
 to investigate fraudulent claims, 79; 
 decision of, on fraudulent awards of 
 mixed commission, 80. 
 
 Courts: see also Prize courts. 
 
 Covarrubias, Chilean Minister of Foreign 
 Affairs: expresses surprise at revoca- 
 tion of exequatur of Consul Rogers, 30. 
 
 Creole case: 248-53. 
 
 Crete: Germany cites action regarding 
 consular jurisdiction in, 383. 
 
 Crew: decision in case of the Sally de- 
 nning limits of jurisdiction of consuls 
 over vessels and, 246 fi.; when local 
 authorities may exercise jurisdiction 
 over, of foreign vessels, 247; Belgian 
 Consul claims jurisdiction over, under 
 treaty (Wildenhus), 253; French 
 Council of State (1859), declares local 
 authorities competent to exercise juris- 
 diction over, in case of homicide on 
 vessel, 258-50; French official de- 
 livering Savarkar thought him mem- 
 ber of, 421. 
 
 Crime: U.S. in case of the CnoU con- 
 tends entry into British jurisdiction 
 result of, 249.
 
 468 
 
 INDEX 
 
 CriminaJs: U.S. protests against deporta- 
 tion of, to America, 281. 
 
 Crispi, President of Council, Italy: per- 
 sonally examines case of French Con- 
 sulate at Florence, 37; telegram from, 
 closing incident at Florence, 38. 
 
 Cross-bill: the bill filed by a defendant 
 in a suit in equity against the com- 
 plainant in order to obtain some relief 
 against him. 
 
 Cuba: U.S. declines to assume debt of, 
 179. 
 
 Curtis, G. T.: opinion of, on case of the 
 Virginius, 370. 
 
 Gushing, Commander : protest of, against 
 summary executions in case of the 
 Virginias, 369. 
 
 Custom: nature and value of, as to rule 
 of conduct, xxvii. 
 
 Customs: Venezuela tries to force French- 
 men to pay, already paid revolution- 
 ists, 108; collection of Bolivian, at 
 . Peruvian port, 327; liens on, in liqui- 
 dation of national debt, 327. 
 
 Cutting's case: 386-89. 
 
 Damages: measure of, 58-64, 366-67; 
 U.S. informs Torrey will not ask 
 "vindictive damages" for his arrest, 
 260; award of, for illegal detention, 
 261. 
 
 Damnum emergens: element of, in fixing 
 compensation, 347. 
 
 Dana: opinion of, in case of the Vir- 
 ginius, 371. 
 
 Dardanelles: passage of warships through, 
 
 134- 
 
 Davis, Admiral: American representa- 
 tive on Commission of Inquiry, 
 Dogger Bank incident, 102. 
 
 Debt, national: liquidation of, by liens 
 on customs receipts, 327. 
 
 Decision: of French tribunal against 
 U.S. warship respected by U.S. Gov- 
 ernment, 44. 
 
 Deckloads: British regulations in regard 
 to, 440. 
 
 Declaration: of intention to become 
 citizen of U.S., 209; to respect in- 
 dependence of Sultan of Muscat, 350, 
 
 35i- 
 
 De facto: actually existent, irrespective 
 of the legal right to fill the office. It 
 is contrasted with dejure, which means 
 in accordance with law. A govern- 
 ment actually independent and exer- 
 cising all the powers of an independent 
 community is a government de facto 
 until it has been recognized as a legal 
 
 government on the part of other 
 states. 
 
 De facto governments: U.S. always rec- 
 ognizes, 167. 
 
 De Haber v. Queen of Portugal: 6 n., 46. 
 
 De jure : see De facto. 
 
 Delagoa Bay Railway Arbitration: 334- 
 49. 
 
 Delaware Bay: jurisdiction of U.S. ex- 
 tends over, 199. 
 
 Delay: Great Britain informs Russia 
 situation does not admit of, 99; 
 Roussel deported without waiting 
 outcome of ambassador's request for 
 reconsideration, 278; no excuse for 
 summary executions in the Virginius 
 case, 37. 
 
 Demand for interest: debtor state en- 
 titled to privilege of, 63; right to, 
 forfeited by Russia, 63. 
 
 Dennis, William C.: agent for U.S. in 
 Orinoco Steamship Company arbitra- 
 tion, 95 n. 
 
 Deportation: U.S. procedure in cases of, 
 275; order of, for contract laborer, 
 275; U.S. orders, in case of Roussel 
 for weak constitution, 276; U.S. pro- 
 tests against, of criminals to America, 
 281. 
 
 Derby, Lord, British Foreign Secretary; 
 413-14, 443. 
 
 Derelict: seizure of, on high seas, 371. 
 
 Desart, Lord: commissioner in Alsop 
 claim, 329; arbitrator in Savarkar 
 case, 418. 
 
 Deserter: arrested in Canada by U.S. 
 officer, released, 154; Germany claims, 
 falls under consular jurisdiction, 383. 
 
 Deserting seaman: French official acts 
 on belief that Savarkar is, 421. 
 
 Desjardins: decision of, in case of Ben 
 Tillett, 284-90. 
 
 Detention: award of damages for illegal, 
 261. 
 
 Dhows of Muscat, case of: 350-59. 
 
 Differences: international, methods of 
 procedure for the settlement of, 47- 
 126; between states, Greece objects 
 to Roumania's action in submitting, 
 to national court, 155; fisheries, found 
 irreconcilable by diplomacy, 187; 
 Seward relates method of settling 
 Warren and Costello cases, 320-21. 
 
 Dignity: incident of Greytown supposed 
 to affect, of U.S., 120. 
 
 Diligence: required to keep claim alive, 
 
 55- 
 
 Dillon, French Consul at San Francisco : 
 protests against issuance of legal
 
 INDEX 469 
 
 process against him, 31; hauls down 
 consular Sag, 32. 
 
 Dillon's case: 31-34; President Pierce 
 refers to settlement of, 10. 
 
 Diplomacy: practice of, method of 
 study, xiii; purpose of, xxx; Swiss Gov- 
 ernment considers friendly discussion 
 would have settled differences, 143; 
 President Buchanan transmits letter 
 of credence to Rush upon change of 
 government in France, 166; example 
 of verbal informal friendly negotia- 
 tion (Connell's case), 270^. 
 
 Diplomatic corps: protests against pro- 
 posed act of Parliament, 5; dean of, 
 conveys message to U.S. Minister at 
 Santiago, 243. 
 
 Diplomatic interposition: of U.S. in- 
 voked by Alsops, 328; to protect 
 interests of nationals in foreign cor- 
 porations, 334-48- 
 
 Diplomatic relations: broken off between 
 France and Holy See (1004), 17; re- 
 newal of, between Brazil and Great 
 Britain, 42; withdrawal of U.S. Lega- 
 tion from Venezuela, 108-13. 
 
 Diplomatic representatives: rights and 
 immunities of, 3-18; withdrawal of, 
 3; dismissal of, case of Lord Sackville 
 West, 10; cannot be dismissed with- 
 out reasons, 12; retention of, deter- 
 mined by receiving government, 12; 
 interference of, in politics ground for 
 dismissal, 13; rules for dismissal, 14; 
 withdrawal of, between France and 
 Holy See (1904), 17; privileges of, 19, 
 20; may not renounce privileges, 20, 
 21 .; withdrawal of, ceremony of 
 renewal of relations between England 
 and Brazil, 42; preservation of immu- 
 nities until departure, in: withdrawal 
 of, 108-12; withdrawal of, Greece re- 
 calls representative from Bukharest, 
 155; withdrawal of, Italian Minister 
 withdraws from Washington "on 
 leave" (New Orleans lynching), 267; 
 inviolability of, not superior to right 
 of self -defense, 381. 
 
 Diplomatic residence: not inviolable, 8. 
 
 Diplomatic rights and immunities: repa- 
 ration for murder of Minister at 
 Peking, 113 ff.j Legation at Peking 
 attacked, 113 ff.\ American Minister 
 issues to consuls directions regarding 
 flying of American flag, 163; ice also 
 Legations, 228-29. 
 
 Diplomats: redrew for insult to (Grey- 
 town). 110-20; basis for the immuni- 
 ties of, from jurisdiction, 234. 
 
 Disavowal: French Government makes, 
 of acts done in Tahiti, 25; by U.S. 
 of dismissal of Captain Haddock, 154; 
 Great Britain disavows action of 
 warships in warning off Americans 
 from deep-sea fishing, 179; Austria 
 asks U.S. to make, of action of com- 
 mander of St. Louis, 301. 
 
 Discovery: title to Caroline Islands 
 based by Spain on, 49. 
 
 Discrimination: in regard to taxes con- 
 trary to general principles, 162; U.S. 
 justified in protest against, as to taxes, 
 162; Blaine assures Italy nationality of 
 New Orleans victims not a factor, 265. 
 
 Discussion : and compromise, as a method 
 of settlement,' 47-48; Swiss Govern- 
 ment considers friendly, would have 
 settled differences, 143. 
 
 Display of force, threats: 107. 
 
 Distress: U.S. in case of the Creole con- 
 tends entry into British jurisdiction 
 result of crime, 249. 
 
 Dobree r. Napier: cited, 00-91. 
 
 Dogger Bank incident: 98-106. 
 
 Domestics: of diplomats not free from 
 arrest, 7. 
 
 Domicile: effect of transfer of territory 
 upon nationality of those having a, 
 i73-74> confers national character, 
 305; defined, 306; loss of, 307; not 
 equivalent in effect to nationality, 
 356. 
 
 Dommagfs interUs: obligation of states 
 to pay, maintained by Russia, 60: 
 principle of, applicable to fixing of 
 compensation, 347; comprise d<im*um 
 emrrgens and lucrum ffssans, 347. 
 
 Dago, Dr. : arbitrator in North Atlantic 
 Fisheries case, 187; dissenting opinion 
 of, 201. 
 
 Dronyn de l*Huys, French Minister for 
 Foreign Affairs: makes statement on 
 detention of Minister Soule, 9. 
 
 Dubassoff, Admiral: takes place of Ad- 
 miral Kazankoff on Commission of 
 Inquiry, Dogger Bank incident, 102; 
 does not concur in opinion of Com- 
 mission, 105. 
 
 Dubuc, case of: 311-14. 
 
 Ducts Ucum: a judicial command to a 
 person to appear in court with all 
 necessary books and documents, 31. 
 
 Dudley, Earl, British Stcrdtry for 
 Foreign Affairs : state* premue* of an 
 ambassador not inviolable (1817), 8. 
 
 Edward VII, King of Grtat Britain: 
 Tsar ujUMMI regret to, (or Dogger
 
 470 
 
 INDEX 
 
 Bank incident, 100; agrees to act as 
 amiable compositeur in AJsop case, 329. 
 
 Egan, U. Minister to Chile: affords 
 asylum to Congressionalists, 243; 
 refuses search of legation, 243; pro- 
 tests against policing of American 
 Legation, 245; views of, on question 
 of asylum, 246. 
 
 Embargo: a detention of shipping in 
 port by state authority either of 
 national shipping for political reasons 
 or of foreign shipping for purposes of 
 reprisal. 
 
 Emigration: "unlawful" effect of, from 
 Austria, 303-04. 
 
 Emperor: title of, first given to Tsar, 
 6. 
 
 Emperor of Austria v. Day and Kossuth: 
 425-29. 
 
 Emotions: dangers due to, xxx n. 
 
 Enlistment: foreign, does not work ex- 
 patriation under German law, 382; 
 of German troops matter of private 
 law, 383. 
 
 Equality: of states, not apparent, 153, 
 162. 
 
 Error: essential, 82; of official deliver- 
 ing Savarkar not attributed to British, 
 421. 
 
 Essential error: on part of arbitrator 
 ground for annulment of award, 82- 
 89; ground for revision of award, 89- 
 96; France urged, made null rendition 
 of Savarkar, 421. 
 
 "Estacas": 328. 
 
 European rivers: navigation of, 450-51. 
 
 Euryale: case of the Sapphire and the, 
 168-70. 
 
 Evarts, U.S. Secretary of Stale: recom- 
 mends reopening awards in Weil and 
 La Abra claims, 77; opinion of, on 
 Torrey claim, 260. 
 
 Evidence: new, 92. 
 
 Excess of power: 81; as ground of pro- 
 test against award of King of Nether- 
 lands, 82; as reason for revision of 
 award, 89-96. 
 
 Exchange, case of: 230. 
 
 Exchange of notes: forms record of diplo- 
 matic agreement, 48. 
 
 Exclusion: of British vessels from U.S. 
 ports (1818), 107, 
 
 Exequatur: authorization given consuls 
 by the receiving state to exercise their 
 functions. 
 
 Exequatur: right to refuse, 18; U.S. 
 does not give reasons for withdrawing, 
 30; grant of, to ad interim consul, 30; 
 revocation of, of Chilean Consul at 
 
 N.Y. for violation of neutrality laws, 
 30; of U.S. Consul at Valparaiso, 31; 
 minister takes measures to secure 
 recognition of vice-consul placed tem- 
 porarily in charge at Messina, 448. 
 
 Exercise of jurisdiction: over repatriated 
 nationals for acts done abroad, 373- 
 74; over nationals resident abroad, 
 374-77; over aliens for acts done 
 within another state, 386-89. 
 
 Exercise of national jurisdiction: sudden, 
 without notice and contrary to usage, 
 constitutes violation of faith, 232. 
 
 Ex parte : action taken by one side only, 
 or on application of one of the parties 
 to a suit. 
 
 Expatriation: effect of banishment and 
 "unlawful" emigration, 304; pro- 
 vision of French law in regard to, 
 3 J 3 ff-'t and perpetual allegiance, 320- 
 25; does not exempt for punishment 
 for acts committed before, 323; right 
 of: limited application of, to dispute 
 over impressment, 368; under German 
 Law of 1807, foreign enlistment did 
 not effect, 382. 
 
 Experts: fisheries arbitrators allowed to 
 refer certain questions to, 187. 
 
 Exports: American pork, 292-95. 
 
 Ex post facto: action taken after and rela- 
 tive to something prior. [Arising or 
 enacted after the fact; retrospective; 
 retroactive (Standard).] 
 
 Expulsion: 284-91; of secretary of nun- 
 ciature at Paris (1906), 17; of German 
 official by Switzerland, 138; U.S. 
 objects to use of penalty of, to impose 
 unjustifiable military service, 272; 
 right of, discussed, 285 ff.; comple- 
 ment of power of exclusion, 418; 
 nature and right to exercise, 418. 
 
 Extradition: Russian Government de- 
 mands, in Nikitchenkoff's case, 229 
 n.', Austria presses Turkey for, of 
 political refugees, 298 ff.; Austria ac- 
 cepts banishment of Koszta from 
 Turkey in lieu of, 299; limitations im- 
 posed upon right to demand, 301-02; 
 of nationals cannot be demanded as 
 right, 301; France and Italy refuse, of 
 nationals, 373, 403-22; Bulgaria ac- 
 cords, to U.S. without reciprocity, 
 
 4S- 
 
 Extraordinary mission: China sends, to 
 Berlin to apologize, 1 13 ff. 
 
 Extraterritorial: or consular jurisdic- 
 tion, 377-85; offenses (see Cutting's 
 case), 387 ff.; jurisdiction, Roumania 
 refuses extradition because of U.S.
 
 INDEX 
 
 471 
 
 penal legislation, 407-08; jurisdiction 
 over aliens (see Charlton case), 408 #.; 
 jurisdiction, British regulations of 
 foreign vessels constitutes, 441. 
 Extraterritoriality (see case of the Per- 
 petual Leases in Japan, 127 ff.; Dip- 
 lomatic rights and immunities, 163): 
 legation is subject to local jurisdic- 
 tion (Nikitchenkoff's case), 228-29; of 
 ambassadors, legal fiction of, cannot 
 be extended to individuals not re- 
 lated to, 230; (see case of the Exchange, 
 2 3 ff->) territorial jurisdiction cannot 
 extend to sovereigns, 232-33; of armed 
 forces, 235 ff.; vessels entering ports 
 in distress have implied license and 
 immunities, 236, 237; neutral vessels 
 not exempt from local jurisdiction, 
 247; Senate declares vessel entering 
 harbor in distress loses none of her 
 rights on high seas, 248; Austrian 
 laws inoperative in Turkey unless 
 with Sultan's consent, 301; status 
 of protege's in Turkey, 308; (see also 
 case of Dhows of Muscat, 350 ff.;) 
 privileges of, granted in Muscat, 351; 
 native owners of dhows not entitled 
 to, in Muscat, 359. 
 
 Fact: question of, submitted to arbitral 
 tribunal, 416. 
 
 Facts: Casablanca arbitration author- 
 ized to decide, 378; foreign municipal 
 laws must be proved as, 435; inter- 
 national law not required to be proved 
 as, 435- 
 
 Faith: exercise of national jurisdiction 
 suddenly, without notice, and con- 
 trary to usage, constitutes violation 
 of, 232. 
 
 Falkland Islands case: 208-17. 
 
 Faya, Baron, Italian Minister at Wash- 
 ington: 255-67; departure of , on leave, 
 267; returns to Washington, 270. 
 
 Favored-nation (see also Most-favored- 
 nation), application of, clause to pre- 
 vent Colombia discriminating in taxa- 
 tion of Americans, 162; in relation to 
 recognizing Buenos Ayres Govern- 
 ment, 165. 
 
 Fera naturer: Great Britain contends 
 that seals are, 222-23. 
 
 Ferry, French Minister of Foreign Affairs : 
 on expatriation, 323-25. 
 
 Fiction, legal: of extraterritoriality of 
 diplomatic agents cannot be extended 
 to individuals not related to them, 
 230. 
 
 Filtz: umpire, 325-26. 
 
 Final Act of Hague Peace Conference: 
 .54- 
 
 Finlay, Sir Robert: counsel in North 
 Atlantic Fisheries case, 187. 
 
 Fish, Hamilton, US. Secretary of State: 
 276. 413, 4i6 . 
 
 Fisheries (see also Pelagic sealing): 
 U.S. refuses to recognize rights of 
 Buenos Ayres regarding Falkland, 208; 
 rights of, cannot be withdrawn with- 
 out notice, 211; pearl, on high seas, 
 222. 
 
 Fisheries Arbitration, North Atlantic: 
 177-202. 
 
 Fishing vessels: exemption of, from cap- 
 ture in war, xxxii-xxxvi; exceptions to 
 the rule, xxxv. 
 
 Fitzpatrick, Sir Charles: arbitrator in 
 North Atlantic Fisheries case, 187. 
 
 Flag: English Consul at Tahiti hauls 
 down, as protest against French 
 action, 23; French Consul at San 
 Francisco hauls down, 32; salute of 
 French, by U.S. and return of salute, 
 33; respect for American, in Greece, 
 163; Great Britain gives notice of in- 
 tention to hoist, over Falklands, 212; 
 authorization of Muscat dhows to fly 
 French, 350-59; right to fly, deter- 
 mined by sovereign, 357; authoriza- 
 tion to fly French, not to be trans- 
 mitted or transferred, 359; crew of 
 vessel find protection in, 361; right 
 to fly, usually determined by registry, 
 368-71; Spain agrees to salute Ameri- 
 can, 369; salute of, not required of 
 Spain, 369; control over vessels flying 
 the national, 390-93. 
 
 Florence: incident of the French Con- 
 sulate at, 34-38. 
 
 Flourens, French Minuter for Foreign 
 Affairs: settles incident of French 
 Consulate at Florence, 32; votes against 
 ultimatum to Germany, 226. 
 
 Foichat, John B., case of: 322-25. 
 
 Force: display of, 107; use of, 119; Calvo 
 accuses Great Britain of abuse of, in 
 case of Falklands, 217. 
 
 Force majcure: pleaded as exception by 
 Turkey, 61 ; not considered by tribunal 
 in Russia . Turkey, 6j; plea of, by 
 Delagoa Bay Railway Company, jj8, 
 
 343- 
 
 Forces, armed: and warships, 230-42. 
 Foreign judgments: 436-39. 
 Foreign laws: must be proved as (acts, 
 
 435- 
 
 Foreign Office: announces to press 
 action has been taken, 99.
 
 472 
 
 INDEX 
 
 Foreign vessels: see Vessels. 
 
 Forgery: English law punishing, of money 
 of foreign states, 427. 
 
 Forte: case of the, 38-43. 
 
 Formation: of treaties, 126-27; of new 
 rules of international law, 153. 
 
 Forsyth, V J>. Secretary of State: 122. 
 
 Fortune Bay incident: 185. 
 
 Foster, John W., U3. Minister at Ma- 
 drid: 364, 365. 
 
 Fournier, Admiral: French representa- 
 tive on Commission of Inquiry, Dogger 
 Bank incident, 102. 
 
 France: instructions of Great Britain 
 to seize fishing vessels of, xxxiv; prize 
 courts of, restore captured fishing 
 vessels, xxxiv-xxxv; government of, 
 detains U.S. Minister to Spain at 
 Calais, 9; expels secretary of nuncia- 
 ture at Paris (1906), 17; removes 
 British Consul from Tahiti, 24; courts 
 of, dismiss action against British Con- 
 sul at Dieppe, 26; consul of, at San 
 Francisco, brought into U.S. court, 
 31; government of, protests, 32; viola- 
 tion of archives of French Consulate 
 at Florence, 34; American naval com- 
 mander summoned before tribunal of, 
 43; citizens of Venezuela in, protected 
 by U.S., 51; Koszta placed in cus- 
 tody of consul-general of, at Smyrna, 
 51; warship of, makes display against 
 Venezuela, 107; party to case of Per- 
 petual Leases in Japan, 127; party to 
 Treaty of Paris (1856), 134; signs 
 Treaty of London (1871), 136 n.; 
 recognition of French Republic by 
 U.S. Minister at Paris (1848), 166; 
 Napoleon III brings suit in courts of 
 United States, 168; nationality of 
 French residents in Alsace-Lorraine, 
 172; French fishing rights in New- 
 foundland, 178; joint regulation of 
 fishery by Great Britain and, 191; 
 ten-mile rule applied to bays in treaties 
 between Great Britain and, 200; col- 
 lective note of Germany, Russia, and, 
 203; lease of Kwang-chau to, 206; 
 first to form settlement hi Falk- 
 land Islands (1764), 214; evacuates 
 islands (1766), 214; strained relations 
 between Germany and, over Schnae- 
 be!6 incident, 225; armed vessel of, 
 not subject to jurisdiction of U.S., 
 230-42; jurisdiction over merchant 
 ships in ports of, 246-48, 256, 258; re- 
 fusal of U.S. to admit citizen of, on 
 return to U.S., 276-80; prohibition 
 of importation of American pork into, 
 
 292; Koszta placed in temporary cus- 
 tody of French Consul-General, 300; 
 liability of U.S. citizens to military 
 service in, 311-14, 322-25; law of, on 
 citizenship, 323 n.; agreement with 
 Great Britain to arbitrate case of 
 Dhows of Muscat, 350; engagement of, 
 to respect independence of Muscat, 
 350, 351; most-favored-nation treaty 
 with Muscat, 351; refuses to admit 
 right of visit and search of French 
 vessels in case of slave trade, 351; 
 grant by, of ships' papers and flags to 
 owners of dhows, 352; contentions of, 
 in support of " francisation," 353-55; 
 conditions of French prot6g6ship in 
 Muscat stated in award, 358-59; re- 
 fusal of, to extradite nationals for 
 crimes committed abroad, 373; con- 
 vention with Great Britain on Anglo- 
 French marriages, 375; Casablanca 
 arbitration between Germany and, 
 377-85; deserters from Foreign Legion 
 protected by German Consulate, 378; 
 agreement with Germany on com- 
 promis of arbitration, 378; contention 
 of, that authority of military occupant 
 is paramount to consular jurisdiction, 
 379-82; anarchist delivered up by 
 Great Britain to, 412-13; no obliga- 
 tion on Great Britain to restore pris- 
 oner to, because of error of French 
 official, 416-22; no inalienable right 
 of asylum in, 418; jurisdiction taken 
 by Great Britain over merchant vessel 
 of, on charge of piracy, 424-25; assists 
 hi blockade of Zanzibar for suppres- 
 sion of slave trade, 430; marine or- 
 dinances of Louis XIV, 435; rule of 
 reciprocity applied by U.S. to judg- 
 ment of French court, 436-39. 
 
 "Francisation," process of: 353, 354. 
 
 Franck, Jacob, case of: 402-03. 
 
 Fraud: hi proceeding of commission, 
 ground for annulling awards, 69-74. 
 
 Fraudulent claim: 75-76. 
 
 Frelinghuysen, U. Secretary of State: 
 72, 78, 82, 364, 402. 
 
 French: official language of Postal Union, 
 
 453- 
 
 Fromageot, Henri, President, American- 
 British Claims Arbitration Tribunal: 
 renders decision hi Cadenhead case, 
 262-64. 
 
 Frontier: reciprocity of practice regard- 
 ing crossing of, 401. 
 
 Fry, Sir Edward: arbitrator hi Pious 
 Fund case, 66; arbitrator in Casa- 
 blanca incident, 379.
 
 INDEX 
 
 473 
 
 Fuca, Strait of: line of jurisdiction in, 
 beyond three miles, 109. 
 
 Full powers: to negotiate treaties, 126. 
 
 Fuller, Chief Justice: opinion of, in 
 Underbill . Hernandez, 157; arbi- 
 trator in case of Dhows of Muscat, 
 353; dissenting opinion of, in Hilton 
 v. Guyot, 438-39- 
 
 Fundy, Bay of: American fishing vessel 
 seized in, 183; all questions as to, 
 omitted in Fisheries Arbitration, 187; 
 jurisdiction over, 199. 
 
 Fur Seal Arbitration: 218-35. 
 
 Fusinato: arbitrator in the Canevaro 
 claim, 317; arbitrator in the Casa- 
 blanca incident, 379. 
 
 Gallatin's Coachman, case of: 7-8. 
 
 Gamble, Captain, case of: 43-44. 
 
 Gardella, case of Vittorio: 324 j. 
 
 Geneva Convention (Red Cross): ex- 
 tension of provisions of, to naval war- 
 fare, at Peace Conference (1809), 53. 
 
 George V: amiable compositcur in Alsop 
 case, 329; award of, 334. 
 
 German language (see Language): 6. 
 
 Germany: action of, in restoring order 
 in Samoa, 45; claim of, to sovereignty 
 over Caroline Islands, 49; minister of, 
 murdered at Peking, 113; party to 
 case of Perpetual Leases in Japan, 127; 
 action of, to terminate treaty with 
 Switzerland because of Wohlgemuth 
 affair, 137; warns Switzerland against 
 danger to Swiss neutrality, 139; view 
 of, on nationality of French residents 
 in Alsace-Lorraine (1871), 172; col- 
 lective note of Russia, France, and, 
 203; demands of, upon China for mur- 
 der of missionaries, 203; lease of Kiao- 
 chau to, 203-05; China to consent to 
 all arrangements between Japan and, 
 208; strained relations of, with France 
 over Schnaebele incident, 225; in- 
 come tax on American citizen re- 
 funded, 273-74; prohibition of im- 
 portation of American pork into, 
 292-95; Casablanca arbitration be- 
 tween France and, 377-85; consulate 
 of, protects deserters from French 
 Foreign Legion, 378; provision of 
 military penal code of, with respect to 
 occupied territory, 380; contention of, 
 that consular jurisdiction is not 
 affected by military occupation in 
 Morocco, 382-84; enjoys most-fa- 
 vored-nation rights In Morocco under 
 Convention of Madrid and Act of 
 Algcciras, 382; admits extraterritorial- 
 
 ity in Samoa, 383; refusal by, of re- 
 sponsibility for deserting German sea- 
 men in U.S., 402-03; objection by, to 
 taking of testimony in Germany by 
 U.S. commissioners, 422-23; "requi- 
 sitions" in, analogous to letters 
 rogatory, 423; blockade of Zanzibar 
 by, for prevention of slave trade, 430. 
 
 Ghent, Treaty of: status of fisheries not 
 denned by, 1 79. 
 
 Gift: Russian Ambassador departs with- 
 out accepting the customary, 3; nature 
 of indemnity as, pleaded by Turkey 
 as exception, 61. 
 
 Good offices: and mediation, 40-52; 
 extended by U.S. for protection of 
 Venezuelan citizens in France, 51; of 
 French Consul -General in Koszta 
 case, 51; American archives and in- 
 terests in Venezuela confided to Brazil, 
 n i ; French Consul takes charge of 
 Koszta, 301 ; of Emperor of Austria in 
 Casablanca incident, 378; U.S. Min- 
 ister interposes in favor of Jews in 
 Persia, 445. 
 
 Gordon, Lord George: convicted for 
 libel on Queen of France, 429. 
 
 Gortchakoff, Prince, Russian Minister for 
 Foreign Affairs: note of, announcing 
 Russia no longer bound by Treaty of 
 Paris, 134. 
 
 Government: effect of change of, upon 
 property of chief of state, 169; brings 
 suit in sovereign capacity, 425. 
 
 Governments: new, 166; suits by, in 
 foreign courts, 169; relation of, to 
 claims of nationals, 341; reciprocity as 
 a basis of treatment between, 394-401. 
 
 Grace, act of: tribunal suggests an 
 (Cadenhead), 263-64. 
 
 Grain cargoes: British regulation of 
 foreign vessels with, 445. 
 
 Gram, Gregers: arbitrator in case of 
 Perpetual Leases in Japan, 130; ar- 
 bitrator in Fur Seal case, 221; arbi- 
 trator in Savarkar case, 418. 
 
 Grant: Japan's view in regard to, by 
 treaty, 130-31; power to regulate a, 
 by treaty, 189. 
 
 Granville, Lord, British Foreign Stcrt- 
 tary: denies freedom of Russia to 
 abrogate Treaty of Paris, 135. 
 
 Gray. George. Judge: arbitrator in North 
 Atlantic Fisheries case, 187. 
 
 Gray, Justice, US. Supreme Court: 
 opinion of, in PamuU llabana, xxxil- 
 zxxvi; judgment of, in Hilton t. Guyot, 
 
 - 
 Great Britain: instructions of, to teUe
 
 474 
 
 INDEX 
 
 French and Dutch fishing vessels, 
 xxxiv; apologizes to Russia for arrest 
 of ambassador, 9; first gives title of 
 Emperor to Tsar, 6 n. ; arrest of Galla- 
 tin's coachman on premises of Ameri- 
 can Legation, 7; Lord Sackville West, 
 minister of, at Washington, dismissed, 
 10; minister of, at Madrid, dismissed 
 by Spain (1848), 12; Duke of Rip- 
 perda at embassy of, at Madrid, 16; 
 denies diplomatic immunities to Prus- 
 sian agent of commerce, 19; consul of, 
 at Tahiti, hauls down flag on annexa- 
 tion of island by France, 23; action 
 against vice-consul of, at Dieppe, in 
 French tribunal, 26; naval officers of, 
 arrested at Rio de Janeiro, 38; re- 
 prisals by, against Brazil, 40; coop- 
 erates in restoration of order in Samoa, 
 45; Queen of Portugal not summoned 
 before tribunals of, 46; northeastern 
 boundary award, 81; Dogger Bank in- 
 cident, 98; legislative retorsion by 
 U.S. against vessels of, 107; pleads 
 necessity of self-defense in Caroline 
 affair, 122; requests release of McLeod 
 in Caroline affair, 123; party to case 
 of Perpetual Leases in Japan, 127; 
 party to Treaty of Paris (1856), 134; 
 denies power of Russia to annul Treaty 
 of Paris, 135; submits North Atlantic 
 Fisheries dispute to arbitration at The 
 Hague, 177; Convention with U.S. 
 (1818), 180-82; regulates fisheries by 
 Act of 1819, 182; Reciprocity Treaty 
 with U.S. (1854), 183; Treaty of 
 Washington with U.S. (1871), 184; 
 joint regulation of fisheries by France 
 and, 191; right to regulate fisheries 
 inherent in sovereign of, 194; conten- 
 tion of, as to territorial waters, 199; 
 ten-mile rule applied to bays in treaties 
 between France and, 200; lease of Wei- 
 hai-wei to (1898), 206; of Kowloon 
 to, 207; protest of, against occupation 
 of Falkland Islands by Argentine Re- 
 public, 210; occupation of Falkland 
 Islands by (1833), 212; takes formal 
 possession of Falkland Islands (1765), 
 214; dispossessed by Spain (1770), 
 214; restoration of Falklands to (1771), 
 214; withdrawal of, from Falklands 
 (1774), 214; protest of, against Rus- 
 sian ukase, 218; treaty with U.S. on 
 Fur Seal Arbitration (1892), 220; 
 denies U.S. claim to property right hi 
 fur seal, 222; legation of, at Santiago, 
 denies asylum to refugees, 244 .; 
 mixed commission under Treaty of 
 
 1853 with U.S., 248; contention of, 
 that slaves become free in British 
 jurisdiction, 249; claim of, for death 
 of subjects in U.S., 262-64; may not 
 deport criminals to U.S., 280-83; ex- 
 pulsion of British subject from Bel- 
 gium, 284-90; claim of, to perpetual 
 allegiance, 320-22; asks Portugal for 
 extension of time-limit in case of 
 Delagoa Bay Railway Company, 338 
 39; diplomatic intervention of, in 
 interests of British investors, 339; 
 agrees to arbitrate Delagoa Bay Rail- 
 way case, 341; award in favor of, 348- 
 49; agreement with France to arbi- 
 trate case of Dhows of Muscat, 350; 
 engagement of, to respect independence 
 of Muscat, 350, 351; treaties with 
 Muscat, 351; contentions of, against 
 francisation of dhows, 355-57; im- 
 pressment of American seamen by, 
 368; subjects of, executed by Spanish 
 authorities, 369; receives indemnity 
 from Spain, 370; award in favor of, in 
 Costa Rica Packet case, 372; status of 
 British women married to Greek sub- 
 jects, 375; convention with France on 
 Anglo-French marriages, 375; agree- 
 ment of, with U.S. re British subjects 
 in American Navy, 381; extraterri- 
 torial jurisdiction of, in Samoa, 383; 
 laws of, not applicable to acts of 
 British vessel hi Chilean waters, 390- 
 91; British ship on high seas subject 
 to laws of, 391-92; rule of reciprocity 
 applied by, in case of recapture of 
 Portuguese vessel, 304-401; anarchists 
 not considered political offenders by, 
 412-13; controversy with U.S. over 
 interpretation of extradition treaty, 
 413-14, 416 .; not required to re- 
 store prisoner to France because of 
 error of French official, 416-22; no 
 right of asylum hi, 418; takes jurisdic- 
 tion over French merchantmen on 
 charge of piracy, 424-25; restraint of 
 persons from manufacturing Austrian 
 paper money in, 425-29; law of nations 
 part of the common law, 427; blockade 
 of Zanzibar by, for prevention of slave 
 trade, 430; condemnation by, of 
 American vessel in slave trade, 430- 
 31; collision of British steamer with 
 American sailing vessel on high seas, 
 432-35; statutes of, do not create law 
 of sea, 434; jurisdiction of, over foreign 
 shipping, 430-45; exemption of Swedish 
 vessels from British provisions relative 
 to overloading, 445.
 
 INDEX 
 
 475 
 
 Greece: claim of, to property of Zappa 
 in Roumania, 155; abuse of American 
 flag in, 163; protest of, against de- 
 portation of subject from U.S., 275; 
 status of American women married to 
 subjects of, 374-75; status of British 
 women married to subjects of, 375. 
 
 Grevy, President of France: votes against 
 ultimatum to Germany, 226. 
 
 Greytown: bombardment of, by U.S. 
 warship, 119. 
 
 Grotius: xxxii. 
 
 Guatemala: right of, to regulate its im- 
 portations, 291. 
 
 Guizot, French Minister for Foreign 
 Affairs: makes statement on right of 
 French authorities to remove consul 
 from Tahiti, 24, 25. 
 
 Habeas corpus: a writ commanding a 
 person having another in custody to 
 produce the body of the person de- 
 tained with the day and cause of his 
 caption and detention. (Standard.) 
 The arguments which ensue bring out 
 the facts and the law and allow the 
 court to render a judicial decision. 
 
 Habeas corpus: taken to secure revision 
 of administrative ruling for deporta- 
 tion (Charalambis), 275. 
 
 Hague, The: see The Hague. 
 
 Halifax Commission: award of (1877), 
 185. 
 
 Hall: opinion of, on case of the Virginius, 
 
 370-7I. 
 
 Hamburg: arrest of seamen on American 
 vessels by authorities of, protested by 
 U.S., 3SoHii. 
 
 Hammarskjold, von: arbitrator in Casa- 
 blanca incident, 379. 
 
 Hannen, Lord: arbitrator in Fur Seal 
 case, 221. 
 
 Hanseatic League: ordinances of, 434-35- 
 
 Hardinge, 5i> Charles, British Am- 
 bassador to Russia: asks for explana- 
 tion of conduct of Baltic Fleet, 99; 
 signs agreement for Commission of 
 Inquiry, 101. 
 
 Harlan, Justice : arbitrator in Fur Seal 
 case, 221; dissent of, 224. 
 
 Harrison, President: message of, on dip- 
 lomatic situation with Italy (1891), 
 270. 
 
 Hay, John, US. Secretary of State: note 
 of, on La Abra claim, 79; transmits 
 balance of Weil award to Mexico, 81; 
 negotiates treaty on fisheries (1902), 
 1 86. 
 
 Hayti: Pellctier award against, not en- 
 
 forced by U.S., 82; Lazare claim 
 against, not pressed by U.S., 96. 
 
 Head of state: see Sovereigns. 
 
 Headland theory: extent of maritime 
 jurisdiction, 183. 
 
 Help, self: 121-26. 
 
 Herante Abro Bey: arbitrator in case of 
 Russia . Turkey, 58. 
 
 He ussier: arbitrator in Delagoa Bay 
 Railway case, 341-48. 
 
 High seas: protection of British trawlers 
 (Dogger Bank), 99; jurisdiction and 
 protection of property distinguished, 
 221; protection of Ceylon seal fish- 
 eries, 222; exercise of protection on, 
 against violation of revenue laws, 
 222-23; vessel entering harbor in dis- 
 tress loses none of her rights on, 248; 
 local authorities decide to detain par- 
 ties implicated in case of murder on 
 (Creole), 250; protection of property 
 and person of nationals on, and else- 
 where outside the frontiers of any 
 state, 368-72; attempt to enforce law 
 of allegiance on, 368; capture of vessel 
 flying American nag on, 369; right of 
 self-defense on, 370; right of visit and 
 search on, in time of peace, 370; seizure 
 of derelict on, 371; jurisdiction over 
 national vessels on, 300 ff.; where 
 pirates may be tried for offenses on, 
 425; law governing collisions on, 
 
 432 ff- 
 
 Hilton r. Guyot: 436-39. 
 
 Holy Roman Empire: development of 
 servitudes in, 193. 
 
 Holy See: secretary of nunciature of, at 
 Paris, expelled (1006), 17; Leo XIII 
 mediates in Caroline Islands dispute, 
 49- 
 
 Honey, Mrs., case of: 273-74. 
 
 Hastes kumani generis : enemies of man- 
 kind. 
 
 Hostile act: seizure of Brazilian coffee 
 would be, 162. 
 
 House tax: see case of Perpetual Leases 
 in Japan, 127 ff. 
 
 Humanity: considerations of, exempt 
 coastal fishing vessels from capture 
 as prize, xxxv; regulation of foreign 
 vessels in interest of, must be accepted, 
 442; U.S. Minister interposes unof- 
 ficially in favor of Jews in Russia, 445. 
 
 Hungary: ste Austria-Hungary. 
 
 Hurst, C. J.: commissioner in Alsop 
 claim, 329. 
 
 Idem per dnersa : uniformity of principle 
 through diversity of practice.
 
 476 
 
 INDEX 
 
 Identic notes: asking Switzerland to ap- 
 point arbitrators, 341. 
 
 Immigration: nature of provisions ap- 
 plied to foreign vessels in relation to, 
 440. 
 
 Immigration and sojourn: regulation of, 
 
 275-84- 
 
 Immunity: from legal process claimed 
 by French Consul, 31; of foreign sov- 
 ereign from suit, 46. 
 
 Immunitie% : see Diplomatic representa- 
 tives; Consuls. 
 
 Immunities of agents of international 
 intercourse: 225-28. 
 
 Imports and tariff: regulation of, 291-95. 
 
 Impressment: dispute between Great 
 Britain and U.S. over, 368. 
 
 Imprisonment: justifiable to effect ex- 
 pulsion, 286; President authorized to 
 use reprisals to secure release of 
 Americans, 322. 
 
 Income tax: diplomatic and consular 
 authorities secure remission of, 274. 
 
 Indemnitaires, Russian: moratory in- 
 terest claimed by, from Turkey, 59. 
 
 Indemnity: deferred payments of in- 
 terest on, by Turkey, 58; not con- 
 sidered a gift, in Russia v. Turkey, 63; 
 indemnity returned to China by U.S., 
 117 ff.; China pays, to Japan, 203; 
 U.S. pays, to Italy for New Orleans 
 lynching, 270; payment of, to be made 
 to claimants' governments, 341; ex- 
 emplary and penal, claimed by U.S., 
 341; not granted against Portugal, 
 347 ; simple interest usually allowed in 
 awards of, 348; paid by Spain to Great 
 Britain and U.S. in Virginius case, 370. 
 
 Independence: 155; see also Extraterri- 
 toriality, under case of the Exchange, 
 230 ff. 
 
 Indian treaties: not international law, 
 vii. 
 
 Indirect damages: excluded by commis- 
 sion in Paquet's case, 290. 
 
 Individuals: place of, in international 
 law, xxxi; nationality of, 311-20. 
 
 Inequality: basis for assessment of ex- 
 penses of Postal Union, 454. 
 
 Informal intercourse: of diplomatic rep- 
 resentatives, many questions settled 
 by, 47- 
 
 Infra prasidia: a term used of prizes 
 brought within the complete power of 
 the state of the captor. 
 
 Infra prasidia : bringing, might operate 
 to vest property, 395. 
 
 Inhabitants: meaning of, in Treaty of 
 1818, 195 ff. 
 
 Inquiry, International Commission of: 
 in Dogger Bank incident, 101-06. 
 
 Insanity: refusal to repatriate nationals, 
 403- 
 
 Insoumission : expatriated Frenchmen 
 returning to France punished for, 
 
 323-24- 
 Inspection of American pork exports: 
 
 29.2-95- 
 
 Institut de Droit International: helps to 
 elucidate principles of international 
 law, xxix. 
 
 Insurrection: recognition of belligerency 
 not necessary to judicially establish 
 fact of existence of, 157. 
 
 Insurrectionists: acts of, along Canadian 
 frontier, 121. 
 
 Intercourse: international, rights and 
 immunities of agents of, 3-46; in- 
 formal, of diplomatic representatives, 
 many questions settled by, 47, 225-28. 
 
 Interest: moratory, claimed by Russia 
 from Turkey, 58; moratory, distin- 
 guished from compensatory, 61; reser- 
 vation for payment of, omitted by 
 Russia, 61; failure to make reservation 
 for, pleaded as exception by Turkey, 
 61; and considered by tribunal as 
 well taken, 63, 64; rate of, allowed on 
 Canevaro claim, 319; moratory, al- 
 lowed in Delagoa Bay Railway award, 
 347-48; simple, usual method of 
 calculation in awards of indemnity, 
 
 349- 
 
 Interest-damages: question of, in Russia 
 v. Turkey, 58-64; always compensa- 
 tory, 62. 
 
 Internal affairs: interference of diplo- 
 matic representatives in, ground for 
 dismissal, 13; powers require China 
 to prohibit anti-foreign societies, 115. 
 
 International Bureau at The Hague: ap- 
 portionment of expenses of, 454. 
 
 International Bureau of the Postal 
 Union: 453. 
 
 International 'claims: agreement of gov- 
 ernments as bar to, 55; proscription 
 as bar to, 55-57; laches as bar to, 55. 
 
 International Commission of Inquiry: in 
 Dogger Bank incident, 101-06. 
 
 International commissions for the regula- 
 tion of rivers: 450-51. 
 
 International differences: methods of 
 procedure for the settlement of, 47- 
 126; three classes of, 47; convention 
 for the peaceful settlement of, 54. 
 
 International Hague Conferences: 52- 
 
 54- 
 International intercourse: agents of,
 
 INDEX 
 
 477 
 
 rights and immunities of, 3-46, 225- 
 28. 
 
 International law: cases distinguished 
 from certain municipal decisions, vii; 
 no technical language of, z; resolution 
 in regard to the teaching of, viii-ix .; 
 nature of, xxx-xxxi; Act of 7 Anne, cap. 
 12, declaratory of, 5; is part of law of 
 land in England, 21 .; territorial 
 jurisdiction over crime a rule of, 87; 
 formation of new rules of, 153; physical 
 limits within which a state is recog- 
 nized as sovereign and responsible for 
 the enforcement of, 218-25; U.S. con- 
 tends, to be "international standard 
 of justice and advanced by analogy," 
 221; Great Britain's views as to nature 
 and extent of, 222; municipal admin- 
 istration of, in case of Charalambis, 
 275; a true rule of, calls for observance 
 by the nations, 395; obligation to 
 observe a rule of, comes from recipro- 
 city of practice, 395; when substantial 
 justice is rule of, 396; nature and 
 origin of rules of, 454. 
 
 International obligations: Germany com- 
 plains that Swiss legislation is inade- 
 quate to maintain, 143; U.S. amended 
 law to discharge, 389. 
 
 International police: Germany claims 
 that French in Morocco are acting as, 
 382; Germany distinguishes immuni- 
 ties of forces acting as, and those of 
 military occupant, 382. 
 
 International rivers: navigation of the 
 Mississippi, 296 #; use of, 450. 
 
 International unions: 451-54. 
 
 Intemuncio: copy of Koszta passport 
 placed in hands of Austrian, 300. 
 
 Interposition (see also Protection): de- 
 termination of interest justifying gov- 
 ernmental, 55. 
 
 Interpretation of treaties: 127-34; diffi- 
 culty in regard to (Perpetual Leases), 
 referred to arbitration, 127 ff.\ his- 
 tory of negotiations as aid to discover 
 will of parties, 145; by collection of 
 interpretation given to same terms by 
 other governments, 145; indications 
 for, in spirit and purpose of, 146. 
 
 Intervention: collective, 112; diplomatic, 
 of U.S. invoked by Alsops, 328; diplo- 
 matic, to protect interests of nationals 
 in foreign corporations, 334-48. 
 
 Investigation: Germany refuses to make 
 further, in regard to Wonlgemuth. 140. 
 
 Inviolability: Dhows of Muscat, flying 
 French flag, entitled to, in waters of 
 Muscat, 359. 
 
 Invitation: of Nicholas II to peace con- 
 ference, accepted by all invited states, 
 53; from the Netherlands to powers to 
 meet at The Hague, 53. 
 
 Iradl: a written Turkish decree. 
 
 Irregularity: in appointment of umpire 
 ground for annulling award, 60-74. 
 
 Italian earthquakes: 446-49. 
 
 Italy: violation of archives of French 
 Consulate at Florence, 34; demands 
 of, upon U.S. re lynching of Italians 
 at New Orleans, 264-70; minister of, 
 leaves Washington, 267; accepts in- 
 demnity from U.S., 270; arbitration 
 of the Canevaro claim against Peru, 
 316-20; liability of former subjects 
 of, to military service in, 324 .; re- 
 fusal of, to extradite nationals for 
 crimes committed abroad, 373, 400- 
 n ; extradition by U.S. of American 
 citizen to, 408-11; assists in blockade 
 of Zanzibar for suppression of slave 
 trade, 430; American relief for victims 
 of earthquakes in, 446-49. 
 
 Jackson, President : favors acceptance of 
 award on northeastern boundary, 82. 
 
 Jally, case of: French Council of State 
 (1859) declares local authorities com- 
 petent to exercise jurisdiction over 
 crew in case of homicide on foreign 
 vessel, 258-59. 
 
 Japan: chancellor of legation of, mur- 
 dered at Peking, 1 13; case of Perpetual 
 Leases in, at The Hague, 127; Treaty 
 of Shimonoseki between China and 
 (1895), 203; cession of Liao-tung to, 
 203; retrocession of Liao-tung to 
 China by, 203; Treaty of Portsmouth 
 between Russia and, transferring lease 
 of Port Arthur to, 207; demands of, 
 upon China (1915), 208; extension of 
 lease of Port Arthur, 208. 
 
 Jefferson, President: asserts rights of U.S. 
 to free navigation of Mississippi, 296; 
 on status of seamen on American ves- 
 sels, 361. 
 
 Jenkins, Sir Leoline: relates the trial of 
 privateers for piracy, 424-25. 
 
 Jews: protection of, in Persia, 445. 
 
 John and Sarah : release of English fish- 
 ing vessel, by French prize court, xxv. 
 
 Joint action: of powers in China, iiiff. 
 
 Jortin case: 26-30. 
 
 Judgments (see also Rts jnditata): foreign, 
 
 4J&-J9- 
 
 Judifaia, res : 64. 
 Jurisdiction (set also Extraterritoriality: 
 
 Extraterritorial crime): incompetence
 
 478 INDEX 
 
 of local authorities in case of official 
 acts of consul, 27 ff.\ of Hayti to punish 
 offenses in her own waters, 86-87; 
 territorial, over crime a rule of inter- 
 national law, 87; legal fiction of extra- 
 territoriality of ambassadors cannot 
 be extended to individuals not related 
 to them, 230; exercise of national, sud- 
 denly, without notice, a violation of 
 faith, 232; exclusive nature of national, 
 232; cannot be extended to sovereigns, 
 232-33; limits of, of consuls over 
 vessels and crews, 246 ff.; vessel en- 
 tering harbor in distress loses none of 
 her rights on high seas, 248; entry of 
 Creole into British jurisdiction result 
 of crime, 249; slaves become free on 
 entering British, 249; local authori- 
 ties detain parties implicated in mur- 
 der on high seas (Creole), 250; extent 
 of, over crew, left to consuls as meas- 
 ure of comity, 255; local authorities 
 competent to exercise, over crew in 
 case of homicide on vessel, 258-59; 
 enforcement of law of allegiance within 
 territorial, differs from attempt to en- 
 force it on high seas, 368; over vessels 
 dependent on ownership, not on regis- 
 try, 371; exercise of, over repatriated 
 nationals for acts done abroad, 373- 
 74; exercise of, over nationals resident 
 abroad, 373-77; consular or extra- 
 territorial, 377-85; exercise of, over 
 aliens for acts done within another 
 state, 386-89; for acts done abroad as 
 agent of foreign state, 390-91; over 
 pirates, 425; maritime, 432-35. 
 
 Jurists, international: Greece and Rou- 
 mania consult, in regard to Zappa 
 affair, 155. 
 
 Jury de medietate lingua: a British 
 method of selecting a jury for the trial 
 of aliens, consisting half of aliens and 
 half of nationals. 
 
 Jury de medietate lingua: Warren and 
 Costello claim right of trial by, 321. 
 
 Jus gentium : generally and inaccurately 
 employed to mean international law. 
 Formerly employed in another inac- 
 curate sense to designate diplomatic 
 immunities. 
 
 Jus gentium : see International Law. 
 
 Jus sanguinis: right by descent; applied 
 to nationality as determined by 
 nationality of parents. 
 
 Jus sanguinis and jus soli in Chile: 
 315-16. 
 
 Jusserand, French Ambassador at Washing- 
 ton : notes of, in case of Roussel, 2 76-78. 
 
 Jus soli: right of the soil or territorial 
 sovereign. In reference to nationality 
 it denotes the acquisition of the nation- 
 ality of the local sovereign by birth 
 within its jurisdiction. 
 
 Kaznakoff, Admiral: designated Rus- 
 sian commissioner, Commission of 
 Inquiry, Dogger Bank incident, 102; 
 unable to act, 102. 
 
 Kent, Chancellor : on national character, 
 306, 308. 
 
 Ketteler, Baron von, German Minister to 
 China: murdered at Peking (1900), 
 
 "3- 
 Kiao-chau: lease of, to Germany (1898), 
 
 203-05; expulsion of Germany from 
 
 (1914), 207. 
 King of the Netherlands: award of, on 
 
 northeastern boundary of the U.S., 
 
 81. 
 
 Knox, U.S. Secretary of State: 311, 314. 
 Koszta case: 51-52, 298-311. 
 Kowloon: lease of, to Great Britain 
 
 (1898), 207. 
 Kriege: arbitrator in Casablanca incident, 
 
 379- 
 Kriiger, Paul: negotiates convention 
 
 with Portugal, 335, 336. 
 Kwang-chau: lease of, to France (1898), 
 
 206. 
 
 La Abra: see Weil and La Abra cases, 
 75-8i. 
 
 Labrador: liberty to fish on coast of, 181; 
 liberty to dry fish on coast of, 181. 
 
 Laches: as bar to international claims, 
 55; Turkey pleads Russia guilty of, 
 61. 
 
 Lamirande case: action of France in, 
 cited as precedent (Savarkar case), 
 420-21. 
 
 Lammasch, Professor : arbitrator in North 
 Atlantic Fisheries case, 187; arbitrator 
 in case of Dhows of Muscat, 353. 
 
 Lamsdorff, Count, Russian Foreign Min- 
 ister : signs agreement for Commission 
 of Inquiry on Dogger Bank incident, 
 101. 
 
 Language: English Ambassador's apology 
 translated into Russian and German, 
 6; China erects expiatory monument 
 inscribed in Latin, German, Chinese, 
 114; French text of joint note to be 
 authoritative, 117; meaning of wiihlen, 
 137 n.\ meaning of CM/ erfordern in 
 treaty, 144; Postal Union publishes 
 journal in French, English, and Ger- 
 man, 453.
 
 INDEX 
 
 479 
 
 Lansdowne, Lord, British Foreign Secre- 
 tary: statement of, on Dogger Bank 
 incident, 100; concludes agreement 
 with France, re Dhows of Muscat, 
 35. 
 
 Lapse of time: extinguishment of obliga- 
 tions by, 52. 
 
 Lardy: arbitrator in case of Russia v. 
 Turkey, 58. 
 
 Law of nations (see also International 
 law): part of law of England, xxxii; 
 piracy under, distinguished from piracy 
 by municipal statute, 86; definition 
 of, by Congress, re expatriation, 321; 
 part of common law of England, 427. 
 
 Lawrence, case of the Brig: 430-31. 
 
 Lawrence extradition case: referred to, 
 416 n. 
 
 Lazare claim (see Pelletier claim, 82- 
 89): 06-98. 
 
 Leases and servitudes: 177-208. 
 
 Leases: Perpetual, in Japan, 127-33; of 
 territory in China, 203-08. 
 
 Legation: asylum in (Ripperda's case), 
 16; closing of, at Caracas by U.S., 
 100-12; American, in Venezuela placed 
 in charge of Brazilian Minister, 112; 
 extraterritoriality of, is subject to 
 local jurisdiction (Nikitchenkoff), 228- 
 29; U.S. Minister at Santiago offers 
 asylum in, 243; of U.S. at Santiago 
 placed under surveillance because of 
 harbored refugees, 245; surveillance of, 
 in case of asylum not contrary to 
 law, 245. 
 
 Legations: 228-30. 
 
 Legations: rights of powers to defend, 
 in China, 115. 
 
 Legislation: effect of national, on prop- 
 erty of foreign government, 159; 
 France withdraws proposed, objec- 
 tionable to Great Britain, 389. 
 
 Legislative recognition: of rights of foreign 
 states, 427. 
 
 Legislative retorsion: against shipping, 
 107; U.S. Secretary of Agriculture 
 proposes, against German wines, 294. 
 
 Leo XIII, Pope: "Proposition" of, in 
 controversy over Caroline and Pelew 
 Islands, 49. 
 
 Leopold, King of the Belgians: award of, 
 in case of the Forte, 41. 
 
 Letter of credence: President Buchanan 
 transmits, to Rush upon change of 
 government in France, 166. 
 
 Letters of recall: Russian Ambassador 
 departs without, 3; arrangements that 
 Russian \\ mlMMiVn should ask for, 7. 
 
 Letters rogatory: 
 
 Lewis, Samuel: member of U.S.-Panama 
 Joint Commission (1913), 174. 
 
 Lex loci: application of, to offenses a rule 
 of international law, 87. 
 
 Lex loci jori : the local or territorial law 
 of the country to which a court, 
 wherein an action is brought or other 
 legal proceedings are taken, belongs. 
 (Dicey: Conflict of Laws [ad ed.l, 
 p. 78.) 
 
 Lex loci fort: obligations enforced ac- 
 cording to, 56. 
 
 Liability: assumption of Bolivian, by 
 Chile, 328; of conqueror for local 
 obligations, 330-33; of Chile for diplo- 
 matic undertakings, 330-33. 
 
 Liao-tung: cession of, to Japan (1895), 
 203; retrocession of, to China, 203. 
 
 Libel: conviction of Peltier for, of Napo- 
 leon, 429; Lord George Gordon con- 
 victed for, of Queen of France, 429. 
 
 Liberty: difference between "right" 
 and, in regard to fisheries, 178; and 
 life of nationals of other states, pro- 
 tection of, 430-45. 
 
 Liberum veto: possession of the veto by 
 each member of the Polish Diet so 
 that unanimity was necessary to 
 transact business. 
 
 Liberum veto: inconvenience of, at The 
 Hague, etc., 452. 
 
 License: sovereigns enter foreign terri- 
 tory under implied, of immunity, 233. 
 
 Lieber, Francis: work of, followed by 
 Conference of Brussels, 54. 
 
 Life and liberty: protection of, of na- 
 tionals of other states, 430-45. 
 
 Limitation: effect of, to bar claim, 55. 
 
 Limits, physical, within which a state is 
 recognized as sovereign and rrnpnnri 
 ble for the enforcement of interna- 
 tional law: 218-25. 
 
 Little, John, U S .-V enesiiflan Commis- 
 sion of 1885 : award of, in claim of John 
 H. Williams, 55. 
 
 Livingston, US. Secretary of State: note 
 of, re Falkland Islands, an. 
 
 Loadline, British: made to apply to 
 foreign vessels, 444. 
 
 Loans: Brazil raises, on coffee, 159. 
 
 Lohman: see Savorin IxJinum. 
 
 London: Treaty of (1871), 137. 
 
 Lord Stowcll: srt Sir William Scott. 
 
 Lorimer: on custom as a source of in- 
 ternational law, xxvii n. 
 
 Lourenco Marques: provision for rail- 
 way from, to Transvaal. 334-35. 
 
 Lucrttm ctstans: element of, in fixing 
 compensation, 347.
 
 480 
 
 INDEX 
 
 Lumb, Alfred, case of: 280-83. 
 
 Lutz: see Wohlgemuth affair, 137-49. 
 
 Machado, Juan N., Jr.: fraudulent ap- 
 pointment of, as umpire for U.S.- 
 Venezuela Claims Commission (1866), 
 
 7i- 
 
 Mackintosh, Sir James: on mitigation 
 in practice of war, xxxiv. 
 
 Madison, President: message of, on im- 
 pressment, 368. 
 
 Madrid: Convention of, grants to Ger- 
 many most-favored-nation rights in 
 Morocco, 382. 
 
 Magdalen Islands: liberty to fish on 
 shores of, 181, 201. 
 
 Mails: see Universal Postal Union, 
 
 45 1 ff. 
 
 Majority: vote of, in decision of Postal 
 Union, 453. 
 
 Malouines: see Falkland Islands. 
 
 Malvinas: see Falkland Islands. 
 
 Manchester, Lord, English Ambassador 
 to Venice: Venetian customs officials 
 punished for offense against, 5. 
 
 Mandamus: a writ or order to any per- 
 son or inferior court to perform some 
 specific duty. 
 
 Mandamus: writ of, to compel distribu- 
 tion on awards, 78, 79. 
 
 Mandelstam: arbitrator in case of Rus- 
 sia v. Turkey, 58. 
 
 Manu militari: official use of force. 
 
 Marcy, U. Secretary of State: opinion 
 of, on refusal of exequatur to consul, 
 18; discusses consular privileges in 
 letter to minister at Paris (1854), 32; 
 also in note to Portuguese Charge^ 
 ( J 85S), 33 ; agrees to salute French 
 national flag, 33; note of, on claims 
 arising from bombardment of Grey- 
 town, 120; note of, in Koszta case, 
 298-311; on rights of American seamen 
 in foreign port, 350-61. 
 
 Mare clausum: consideration of, re 
 Behring Sea is, 219 ff. 
 
 Marginal seas: exercise of protection on, 
 against violation of revenue laws, 
 222-23; extent of, 372. 
 
 Marine Ordinance of Louis XTV: 435. 
 
 Maritime Frontier Arbitration: omitted, 
 vi . 
 
 Maritime jurisdiction (see also Jurisdic- 
 tion) : extent of, according to headland 
 theory, 183; difficulties in definition 
 of bays, 183; in case of Fuca Strait, 
 199; Russia recognizes limit of cannon 
 shot, 219, 432-35- 
 
 Marriage: conflict between laws of 
 
 Greece and U.S., 374; of American 
 women to subjects of Greece, 374-75. 
 
 Marshall, Chief-Justice: on equality of 
 nations, 153; opinion of, in the Ex- 
 change case, 231. 
 
 Martens, F. de: arbitrator in Pious Fund 
 case, 66; on Nikitchenkoff case, 229 .; 
 award of, in Costa Rica Packet case, 
 372. 
 
 Masonic, case of the: 361-67. 
 
 Mattueof, Ambassador of Peter the Great, 
 case of: 3-7. 
 
 Matzen, Professor: arbitrator in Pious 
 Fund case, 66. 
 
 McLeod case: 121-23; 389. 
 
 Measure of damages: 58-64, 366-67. 
 
 Mediation: of Leo XIII, in Caroline 
 Islands dispute, 49; King of the Nether- 
 lands as arbitrator suggests com- 
 promise boundary, 81-82; arbitral 
 tribunal suggests act of grace, 263. 
 
 Mediation and good offices: 49-52. 
 
 Merchant Shipping Act: 439-45. 
 
 Merchant vessels: 246-59. 
 
 Mexican border, cattle on: 401. 
 
 Mexico: claim of U.S. against, in Pious 
 Fund case, 64; fraudulent claims 
 against (Weil and La Abra cases), 75; 
 assumption of jurisdiction by, over 
 offenses committed abroad, 386-89; 
 rule of reciprocity applied by U.S. 
 and, with respect to cattle on border, 
 401. 
 
 Mikitschenkoff: see Nikitchenkoff, 228. 
 
 Military necessity: as justification for ac- 
 tion of Russian Baltic fleet, 104, 106. 
 
 Military occupation: French rights of, 
 in Casablanca, 380; Germany dis- 
 tinguishes between rights of, and 
 forces acting as police, 382. 
 
 Military service: test of whether alien 
 can be enrolled for, 271; obligation of 
 resident aliens to perform, 271 ff.; 
 may be required of those domiciled, 
 307; U.S. asks whether France will 
 hold to, minor naturalized in U.S. by 
 father, 312; Italian law in regard to, 
 and expatriation, 324 .; liability to, 
 cause of arrest of seaman on U.S. 
 vessel, 359-60. 
 
 Ministerial: pertaining to an act or duty 
 performed in accordance with legal 
 authority rather than with regard to 
 propriety, judgment, etc.; mandatory, 
 as opposed to judicial or discretionary. 
 (Standard.) 
 
 Ministers (see also Diplomatic repre- 
 sentatives): basis for the immunities 
 of, from jurisdiction, 234.
 
 Minors: effect of naturalization of father, 
 
 Missionaries: protection of , 
 
 Mississippi: early rlaim of U.S. to free 
 navigation of, 296. 
 
 Mixed commission: under Treaty of 1866 
 between U.S. and Mexico, 65; under 
 Convention of 1866 between U.S. and 
 Venezuela, 69; between U.S. and Vene- 
 zuela (1003), 89. 
 
 Mob violence: responsibility of govern- 
 ment in case of, 268 ff. 
 
 Mobilization: of British fleets after 
 Dogger Bank incident, 99. 
 
 Modus vivendi : in diplomacy, a temporary 
 arrangement between two sovereign- 
 ties providing for the conduct of cer- 
 tain affairs pending negotiations for 
 a treaty on the same subject-matter. 
 (Standard.) 
 
 Modus vivendi: between Great Britain 
 and U.S. relative to fishing, 186. 
 
 Money: prerogative of states as to, pro- 
 tected by law of nations, 427. 
 
 Moore, John Basse tt: on difficulty with 
 arbitration, vi n.; criticized opinion 
 in Hilton r. Guyot, 438 n. 
 
 Moratory interest: interest accruing by 
 reason of delay in the payment of 
 sums due. 
 
 Moratory interest: claimed for Russian 
 indcmnitaircs, 58; distinguished from 
 compensatory, 61; obligation for, in 
 international law denied by Turkey, 
 61; obligation to pay, admitted by 
 tribunal, 63, 64; allowed in Delagoa 
 Bay Railway case, 347. 
 
 Morgan, Senator: arbitrator in Fur Seal 
 case, 221; dissent of, 224. 
 
 Morocco: effect of military occupation 
 upon consular jurisdiction in, 382-84; 
 most-favored-nation rights in, 382; 
 jurisdiction of U.S. over Confederate 
 sailors in, 411-12. 
 
 Most-favored-nation clause: in treaties 
 stipulates that "all favors which 
 either contracting party has granted in 
 the past or will grant in the future to 
 any third state must be granted to 
 the other party." (Oppenheim.) 
 
 Most-favored-nation treaty: between 
 France and Muscat, 351; privileges 
 of, enjoyed by Germany in Morocco, 
 
 382. 
 Motono, Japanese Ambassador at Paris: 
 
 arbitrator in case of Perpetual Leases 
 
 in Japan, 130. 
 Mouravieff, Count, Russian Minister for 
 
 Foreign Affairs: communicates to 
 
 INDEX 481 
 
 diplomatic corps rescript from Tsar 
 suggesting international conference to 
 restrict armaments, 52. 
 
 Municipal law: decision in, distinguished 
 from international law, vii; cannot be 
 criterion to settle international dis- 
 pute in third state, 301; Peru submits 
 interpretation of her, to arbitration, 
 316. 
 
 Murder: on high seas, local authorities 
 decide to detain parties implicated 
 (Creole), 230. 
 
 Muscat: engagement of France and Great 
 Britain to respect independence of 
 Sultan of, 350; authorization of sub- 
 jects of, to fly French flag, 350-52; 
 privileges of extraterritoriality in, 
 351; most-favored-nation treaty be- 
 tween France and, 351; treaties be- 
 tween Great Britain and, 351; protest 
 of, against francisation, 352; upheld 
 by Great Britain, 352; status of 
 French protg6s in, defined by ml, 
 358, 359- 
 
 Myers and Tunstall, case of: 411-12. 
 
 Nalbandian, extradition of, case of: 403- 
 08. 
 
 Napoleon III, Emperor of the French: 
 libel filed in name of, against the 
 Sapphire, 168; suit not abated by de- 
 position of, 169. 
 
 Napoleon: seizure of the Exchange under 
 decrees of, 230; Peltier convicted for 
 libel of, 429. 
 
 Nassau: liberation of American slaves 
 at, 248. 
 
 National character: Marcy discusses 
 domicile in relation to, 305. 
 
 National courts: recourse to, open to 
 aliens, 109-10; Greece objects to sub- 
 mission of its rights in Zappa estate 
 to Roumanian, 155; jurisdiction of, 
 to apply Sherman Act in re Brazilian 
 coffee. 161. 
 
 National legislation: expulsion in viola- 
 tion of, considered abusive, *oi; 
 irregularity of rendition according to, 
 not material in international law 
 (Savarkar). 423. 
 
 National treatment: aliens entitled to, 
 only in case of mob violence, 269. 
 
 Nationality (see also Basis of protec- 
 tion, 298 ff.): effect of conquest on 
 transfer of, 172; of individuals, jn- 
 ao; Spanish law regarding children of 
 Spaniards, 315; criterion adopted by 
 Permanent Court to determine, of 
 Canevaro, 318; exercise of dli*enship
 
 482 
 
 INDEX 
 
 determines, 318; status of Alsop Com- 
 pany in dispute, 326-34; right of U.S. 
 to protect property of American 
 citizens, 329; claim of subjects to be 
 removed from jurisdiction of sover- 
 eign, 352; domicile not equivalent in 
 effect to, 356; seaman considered to 
 have nationality of vessel, 361; Ger- 
 many considered native of Alsace- 
 Lorraine naturalized in France as 
 German, 379. 
 
 Nationality and protection of corpora- 
 tions: 325-50. 
 
 Nationality and protection of vessels: 
 350-68. 
 
 Nationals: diplomatic intervention to 
 protect interests of, in foreign corpora- 
 tion, 334-48; relation of governments 
 to claims of, 341; protection of prop- 
 erty and person of, on the high seas 
 and elsewhere outside the frontiers 
 of any state, 368-72; France and Italy 
 refuse to extradite, 373; exercise of 
 jurisdiction over repatriated, for crimes 
 and acts done abroad, 373-74; exer- 
 cise of jurisdiction over resident, 
 abroad, 374-77; refusal to extradite, 
 411 n.\ protection of life and liberty 
 of, belonging to other states ( , 439-45. 
 
 Naturalization: little naturalization ob- 
 tained in Roumania, 155; of Dubuc, a 
 minor, through naturalization of father, 
 312. 
 
 Nature, law of: Jefferson bases naviga- 
 tion of Mississippi on, 296; situation 
 of Koszta under, 304. 
 
 Navigation of European rivers: 450. 
 
 Necessity: all private interests give way 
 to, of war, xxxv; military, as justifica- 
 tion for action of Russian Baltic fleet, 
 104, 106; Lord Ashburton expresses 
 , regret for violation of U.S. territory 
 on plea of, 122; as test of enrollment 
 of aliens for military service, 271. 
 
 Negotiation: of treaties, 126; by German 
 Government to secure concessions in 
 return for admission of pork, 293-94. 
 
 Negotiations: history of, as aid to dis- 
 cover will of the parties, 145. 
 
 Netherlands: instructions of Great 
 Britain to seize Dutch fishing vessels, 
 xxxiv; government of, invites powers 
 to meet at The Hague, 53; award of 
 king of, on northeastern boundary, 81; 
 right of, to compel U.S. citizen to 
 render military service, 270; award 
 against, in Costa Rica Packet case, 
 372; cooperation of, in blockade of 
 Zanzibar, 430. 
 
 Netherlands, King of the: arbitrator on 
 northeastern boundary of U.S., 81-82. 
 
 Neutrality: cases not selected as exam- 
 ples of international law of peace, x; 
 judicial decisions of national courts 
 not themselves precedents, viii n.\ 
 violation of laws of, ground for revoca- 
 tion of exequatur, 31; Russia, Ger- 
 many, and Austria warn Switzerland 
 that she is abusing her, 139; moment 
 for recognition of revolutionary gov- 
 ernment without departing from obliga- 
 tions of, 165. 
 
 Neutralization of the Black Sea: 134-37. 
 
 New evidence: 96; ground for annulment 
 of award, 95-98. 
 
 New governments: 166. 
 
 New Orleans: asylum on Spanish war- 
 ships at, refused, 242; lynching of 
 Italians at, 264-70. 
 
 New Orleans lynching, the: 264-70. 
 
 New rules: formation of, of international 
 law, 153; equitable compromise basis 
 of all, 154. 
 
 New states: 164. 
 
 Newfoundland: liberty to fish on speci- 
 fied coasts of, 181, 201; liberty to cure 
 fish on southern part of coast of, 181; 
 remains outside of Confederation, 
 184; responsibility of Great Britain 
 for legislation of, 184; attack on 
 American fishermen at Fortune Bay, 
 185; regulation of fisheries by, 185, 
 186; institution of permanent mixed 
 fishing commission for, 195. 
 
 Newton, the: 246-48. 
 
 Nicaragua: refuses exequatur to U.S. 
 Consul, 18; controversy of, with Grey- 
 town authorities, 118. 
 
 Nicholas II, Tsar of Rtissia: expresses 
 regret for Dogger Bank incident, 100. 
 
 Nikitchenkoff case, the: 228-30. 
 
 Non-intervention: policy of U.S., 167. 
 
 Non-observance: right of termination 
 of the German-Swiss treaty for, con- 
 tested by Switzerland, 146. 
 
 North Atlantic Fisheries Arbitration, 
 the: 177-202. 
 
 North Sea Convention: ten-mile rule 
 applied to bays by, 200. 
 
 North. Sea incident: see Dogger Bank. 
 
 Northeastern Boundary of the United 
 States Arbitration: 81-82. 
 
 Norway and Sweden: note of, re applica- 
 tion of British deckload provision to 
 foreign vessels, 441-42. 
 
 Notes: exchange of, as record of diplo- 
 matic agreement, 48; agreement 
 effected by exchange of, 416.
 
 Notice: U.S. contends established right 
 in fisheries not to be withdrawn with- 
 out, 21 1 ; Great Britain gives, of inten- 
 tion to hoist flag over Falklands, 212; 
 exercise of national jurisdiction with- 
 out, constitutes violation of faith, 232. 
 
 Nova Scotia: enactment of Hovering 
 Act by legislature of, 183; interpreta- 
 tion of term "bays" by authorities 
 of, 183; "headland theory" advanced 
 by, 183. 
 
 Nunciature: secretary of, expelled from 
 France (1006), 17. 
 
 Obiter dictum : remarks not directly per- 
 tinent to the decision of the case. 
 An opinion by a judge on a point not 
 essential to the decision on the main 
 question. (Standard.) 
 
 Obligations: enforcement of, according 
 to the lex loci fort, 56; to foreign gov- 
 ernment not to be urged against rights 
 held under grant, 342. 
 
 Obligations and things: 168. 
 
 Occupation: effective, as title to sov- 
 ereignty, 49; continuation of, by powers 
 in China, 115; rights derived from 
 (Falkland Islands), 208 /.; Great 
 Britain contends that seals are res 
 ntillitis, 223; military, of coast of Bolivia, 
 by Chile, 327; levy of duties by Chile 
 during, 327. 
 
 Officer: naval, of U.S., summoned before 
 French tribunal, 43; declines to re- 
 ceive citation, 43; commander of St. 
 Louis examines Koszta claim to pro- 
 tection, 300; demands Koszta's re- 
 lease, 300; obligation of, to resist 
 wrong committed against Koszta 
 under law of nature, 305. 
 
 Officers: office of consul at an end when 
 consular flag hauled down, 23 n.; 
 rights and immunities of, when acting 
 as agents of international intercourse, 
 38-46; arrest and imprisonment of 
 British naval, in Brazil, 38; Admiral 
 Kimberly sent to protect American 
 interests in Samoa, 45; naval, do not 
 possess representative character, 45; 
 German, temporarily protect French- 
 men in Venezuela, 107-08; French 
 naval commander demands release of 
 nationals, 108; Captain Hollins with- 
 out specific instructions destroyed 
 Greytown as redress for insult to U 
 representative, 120; Captain Haddock 
 dismissed, disavowed by U.S., 154; 
 necessity of, to act sometimes without 
 instructions, 167; British naval cort- 
 
 INDEX 483 
 
 mander takes possession of Falklands, 
 212; France claims delivery of Savarkar 
 without authority, 418; ignorance of 
 French official as to Savarkar's iden- 
 tity urged as ground for nullity of sur- 
 render, 421; warships sent to aid, at 
 Messina, 447. 
 
 Official: Italian, punished for violation 
 of consular archives, 38; not responsi- 
 ble for acts of government, before 
 courts of another state, 156. 
 
 Official act: of consul, local authorities 
 incompetent in case of, 274; Consul 
 Tortin's letter to the Times considered, 
 by French tribunal, 29. 
 
 Olney, US. Secretary of State: report of, 
 on American citizens in Turkey, 124. 
 
 Olof Wyk : see Tcherniak affair, 392-93. 
 
 Oman: see Muscat. 
 
 "On leave": Italian Minister withdraws 
 from Washington "on leave" (New 
 Orleans lynching), 267. 
 
 Opinion: law should be in harmony with. 
 154; common, consent may be tested 
 by, growing out of usage, 232. 
 
 Orinoco Steamship Company, case of: 
 80-06. 
 
 Overloading: of vessels (see Merchant 
 Shipping Act), 439 ff. 
 
 Overthrow of Balmaceda, the: 243-46. 
 
 Oyer and Terminer: a court empowered 
 by the Crown "to hear and deter- 
 mine" criminal cases. 
 
 Pacific blockade: effects of, differ from 
 war blockade, 383. (See Blockade of 
 Zanzibar, 430.) 
 
 Pacific Ocean: restrictions on sealing in 
 northern, 224. 
 
 Pact of Indefinite Truce: between Chfle 
 and Bolivia (1884), 327. 
 
 Pafta servenda swU: treaties ought to be 
 observed. 
 
 Panama: treaty of, with U.S. dates from 
 exchange of ratification, 127; rights of 
 Canal Zone squatters, 174. 
 
 Paris: International Commission of In- 
 quiry at, on Dogger Bank incident, 
 loa; Congress of (1856), 134; Treaty 
 of (1763), French fishing rights under, 
 178. 
 
 Palmereton, Lord, British Foreign Sett*- 
 tary: opinion of. on dismissal of Sir 
 Henry Bulwer from Madrid (1848), 
 12; does not present claims for bom- 
 bardment of Greytown, iar, justifies 
 destruction of the Carolim on ground 
 of self-defense, taa; on occupation of 
 the Falkland Island*, aia, aij. ais.
 
 4 8 4 
 
 INDEX 
 
 Paquete Habana : xxxii. 
 
 Paquet's case: 290-91. 
 
 Parliament: act of, declaratory of law of 
 nations, xxxii; cannot make rules for 
 foreign vessels on high seas, 433. 
 
 Passport: see Safe-conduct. 
 
 Passports: Russian Ambassador receives 
 his, 3; return of, to Papal Nuncio, 17; 
 application for, by diplomatic repre- 
 sentative, 109; refusal of, to Under- 
 bill to leave Venezuela, 156. 
 
 Paul, Dr. Jos6 de J.: delivers award of 
 American-Venezuelan Claims Com- 
 mission (1903), 259-61. 
 
 Payments on awards, suspension of: 77. 
 
 Peace, international law of: neutrality 
 cases not selected as examples, x. 
 
 Peace protocol: signed by China and the 
 powers, 117. 
 
 Peaceful Settlement of International 
 Differences, Convention for: 54. 
 
 Pelagic sealing: U.S. claims extermina- 
 tion of seals on high seas is contra 
 bonos mores, 220. 
 
 Pelew Islands: see Caroline Islands, 49- 
 
 5. 
 
 Pelletier claim: 82-89. 
 
 Peltier, case of: cited, 429. 
 
 Permanent Court of Arbitration at The 
 Hague (see also The Hague): estab- 
 lished 1899, 54- 
 
 Pernoctation: rule of, sometimes applied 
 to recaptures, 395. 
 
 Perpetual allegiance and expatriation: 
 320-25. 
 
 Persia: Minister of U.S. protects Jews 
 in, 445. 
 
 Person: meaning of term, in treaty with 
 Italy, 410. 
 
 Person and property of nationals on the 
 high seas, and elsewhere outside the 
 frontiers of any state, protection of: 
 368-72. 
 
 Persona non grata: sufficient reason for 
 dismissal of diplomatic representative, 
 14. 
 
 Peru: wrongful arrest of U.S. Consul in, 
 22; arbitration of Canevaro claim 
 against, 316-20; Bolivian customs col- 
 lected at port of, 327; war between 
 Chile and, 327. 
 
 Peruvian Commissioner: opinion of, on 
 Consul Weile's claim, 22. 
 
 Peter the Great: receives apology from 
 English Ambassador, 6; content with 
 satisfaction offered by Great Brit- 
 ain, 7. 
 
 Peter the Great's Ambassador, case of: 
 3-7 
 
 Physical limits within which a state is 
 recognized as sovereign and responsi- 
 ble for the enforcement of international 
 law: 218-25. 
 
 Pierce, President: on settlement of case 
 of Sould, 10; declines to deliver Koszta 
 to Austria, 311. 
 
 Pious Fund of the Calif ornias, case of: 
 64-69. 
 
 Piracy: master and crew of the William 
 tried for, 83; by law of nations dis- 
 tinguished from, by municipal statute, 
 86; slave trade defined as, 87; Justice 
 Strong makes erroneous award be- 
 cause Pelletier had not committed, 
 under international law, 87; charge of, 
 against the Virginius, 369, 370; 
 presence of animus furandi in, 370; 
 trial of privateers for, 424-25. 
 
 Placuitne gentibus? : Has it met with in- 
 ternational approval ? 
 
 Plimsoll: amendments proposed by, re 
 Merchant Shipping Act, 441-42. 
 
 Police action by collective intervention: 
 
 43- 
 Police, international: U.S. willing to 
 
 cooperate with Germany and Great 
 
 Britain to restore order in Samoa, 
 
 45-46. 
 Police regulations: international rivers 
 
 subject only to, 451. 
 Policy: difference between, and law, 153; 
 
 inconvenience of confusing, with law, 
 
 154; of U.S. in regard to recognition 
 
 of existing governments, 167. 
 Political differences: settlement of, based 
 
 on compromise and mediation, 48. 
 Political offenders: special treatment of, 
 
 in prison, 287. 
 
 Political offense: defined, 412. 
 Political police: modification of Swiss, 
 
 142. 
 Political refugees: General Butler asks 
 
 to search warships for criminals other 
 
 than rebels, 242; Austria presses for 
 
 extradition of Hungarian, 298 ff.; 
 
 Seward distinguishes case of Koszta 
 
 from that of Myers and Tunstall, 
 
 411-12. 
 Politics, necessity to distinguish between, 
 
 and law: xxx. 
 Polk, President: approves recognition of 
 
 French Republic by Mr. Rush, 167; 
 
 states policy of U.S. with respect to 
 
 other countries, 167. 
 Pope Leo XIII: see Caroline Islands, 
 
 40-50. 
 
 Pork, export of American: 292-95. 
 Port Arthur: lease of, to Russia (1898),
 
 INDEX 485 
 
 205; transfer of lease of, to Japan 
 (1905), 207; extension of lease of, ob- 
 tained by Japan, 208. 
 Portugal: fishing vessel of, released by 
 French prize court, xxxii; Queen of, 
 not cited before British tribunal, 46; 
 party to Delagoa Bay Railway Arbitra- 
 tion, 334-49; treaty between Trans- 
 vaal and, 334; grants tramway con- 
 cession to Transvaal, 336; cancels 
 railway concession, 339; protests of 
 Great Britain and U.S. against action 
 f> 339~4 agrees to arbitration, 341; 
 award against, 348-49; Queen of, 
 authorizes Englishman to seize Eng- 
 lish vessels for violation of blockade, 
 391; law of recapture as applied by, 
 394-401; takes part in blockade of 
 Zanzibar for suppression of slave 
 trade, 430. 
 
 Possession: British naval commander 
 takes, of Falklands, 212; immediate, 
 property might vest upon, 395. 
 Postal communications: see Universal 
 
 Postal Union, 451 ff. 
 Powers: extraordinary and plenipoten- 
 tiary, given English Ambassador to 
 make apology, 6. 
 Powers, intervention of, in China: 
 
 112-19. 
 
 Practice: law of nations to be collected 
 from, xxxii; international law observed 
 by governments in, 151. 
 Precedent: value of a case as, changes 
 with advance in science, x; value 
 of, to furnish rule of conduct, xxvii; 
 refusal by Turkey to extradite political 
 refugees, cited by Marcy, 302; Ger- 
 many's, cited against her action at 
 Casablanca, 380; of France in with- 
 drawing objectionable legislation, cited 
 to Mexico, 389. 
 
 Preponderating power: effect of, ir 
 formation of new rules of international 
 law, 154, 
 
 Prescription: as bar to international 
 claims, 55-57; Argentina appeals to 
 (Falkland Islands), 217. 
 Pribiloff Islands: set aside as reservation 
 
 for seals, 219. 
 
 Priest, Consul, case of: 18-^19. 
 Prima facie evidence: claim to arbitra- 
 tion submitted on, 87. 
 Pritchard affair: 22-26. 
 Private international law: see Foreign 
 
 judgments; Nationality. 
 
 Private law: rule of, in regard to pavflMO 
 
 of interest applied by arbitral tribunal 
 
 63- 
 
 'rivateers: Jenkins condemns Scotch, 
 
 424. 
 
 *rize courts: take judicial notice of usage, 
 in absence of treaties and other public 
 acts, xxxv. 
 
 rocedure: methods of, for the settle- 
 ment of international differences, 47- 
 126; arbitral, arbitration and the pres- 
 entation of claims, 54-58; arbitral, 
 governed by the compromis, 54; of 
 Dogger Bank Commission of Inquiry 
 embodied in Hague Convention of 
 1007, 102; of U.S. in cases of deporta- 
 tion of immigrants, 275; discussion of 
 reasonable measures to effect expul- 
 sion, 286; issuance of transit certifi- 
 cates, 206; of French and Italian au- 
 thorities to punish expatriation, 326; 
 arbitral tribunal empowered to fix its 
 own, 341. 
 
 Property: private, seizure of Brazilian, 
 by British by way of reprisal, 40; right 
 of, arbitrators (Behring) decide tf.S. 
 has no, in seals, 224; private, immunity 
 of, of sovereign not same as for public 
 property, 240; public, of Bolivia 
 passes to Chile on conquest, 318: 
 captured, rules of evidence in regard 
 to restoration of, discordant, 395; 
 captured, vesting of, suggested rules 
 to govern, 395; seized before the out- 
 break of war, rule of reciprocity ap- 
 plied to, 398. 
 Property and person of nationals on the 
 high seas, and elsewhere outside the 
 frontiers of any state, protection of: 
 368-73. 
 "Proposition": of Leo XIII in Caroline 
 
 Islands dispute, 49. 
 
 Protection: of Venezuelan citizens in 
 France through good offices of U.S., 
 51; of British trawlers on the high 
 seas, 99; German officers look after, 
 of Frenchmen, 107-08; jurisdiction 
 and, distinguished, in case of property 
 on high seas, 221; of Ceylon pearl 
 fisheries on high seas, 222; of nationals: 
 U.S. Consul at La Guaira obtains re- 
 lease of Tortry. 260; of nationals: 
 Italian Consul asks governor to send 
 troops to protect prisoners (New Or- 
 leans lynching), 265: of nationals: ex- 
 ample of verbal informal friendly 
 negotiation for ( Council's case), >7O/.; 
 U .5. representatives secure remission 
 of taxes, 274; French representatives 
 interpose in case of deportation. 276 ff\ 
 U.S. protests against d^lOrtaHon of 
 criminals to America, 281; U.S. rep-
 
 486 
 
 INDEX 
 
 resentative interposes to secure re- 
 lease of Koszta, 300; Marcy maintains 
 right to, conferred by domicile, 307; 
 French, granted to Omanis instead of 
 citizenship, 354; right to the exercise 
 of, in extraterritorial countries (Casa- 
 blanca case), 385; individuals cannot 
 claim, for acts contrary to law of 
 nations, 431. 
 
 Protection and nationality: of corpora- 
 tions, 325-50; of vessels, 350-68. 
 
 Protection, basis of: 298-3 n. 
 
 Protection of property and person of 
 nationals on the high seas, and else- 
 where outside the frontiers of any 
 state: 368-72. 
 
 Protection of the life and liberty of 
 nationals of other states: 430-45. 
 
 Protection of sovereign interests: 425-29. 
 
 Protective tariff: French official admits 
 trichinae regulations are for, 292. 
 
 Prot6ges: status of, in Turkey, 308; 
 status of French, in Muscat defined 
 by arbitral tribunal, 358-59. 
 
 Protest: Pritchard hauls down his con- 
 sular flag as, 23 .; of French Consul 
 at San Francisco against summons, 
 31; of French Government against 
 violation of consulate at Florence, 36; 
 of consular corps at Florence against 
 violation of French Consulate, com- 
 municated to their governments 
 through diplomatic representatives at 
 Rome, 36; Brazil pays claim under, 
 40; by U.S. against subjugation of 
 Samoa by Germany, 46; of Venezuela 
 against awards of Mixed Commission 
 of 1866, 69; against award of King of 
 Netherlands, 82; by Hayti against 
 execution of award, 83; of U.S. against 
 award of Dr. Barge, 92; customary to 
 lodge, against violation of rights, 106; 
 of Venezuelan commander against 
 threat of force by French warship, 
 108; of U.S. to Great Britain against 
 seizure of Washington and Argus, 183; 
 vigorous, of U.S. consuls at release of 
 slaves from U.S. vessels, 248. 
 
 Protests and apologies: 106-07. 
 
 Protocol: provision by, for renewal of 
 relations between England and Russia, 
 7; departure of arbitrator from powers 
 under, 82; mistake of arbitrator as to 
 powers under, 82-89, 96; departure 
 from terms of, ground for annulment 
 of award, 95. 
 
 Provisional Government: U.S. Minister 
 Rush recognizes the French, without 
 instructions, 166. 
 
 Prussia: agent of commerce of, in Great 
 Britain, not conceded diplomatic im- 
 munities, 19; party to Treaty of Paris 
 (1856), 134. 
 
 Public charge: U.S. orders deportation 
 of Roussel on account of, 276. 
 
 Public opinion: dangerously stirred by 
 Pritchard affair, 25; English, inflamed 
 by Dogger Bank incident, 99; in Italy 
 compels government to stiffen atti- 
 tude (New Orleans lynching), 266. 
 
 Public policy: application of doctrine of 
 res judicata a matter of, 438. 
 
 Public vessels: Erie refuses to answer 
 summons of local court, 43; immunity 
 of, from national jurisdiction in foreign 
 ports, 230 jf. 
 
 Punishment of aliens: conditions which 
 international law imposes re, 387. 
 
 Queen Anne: see Anne. 
 
 Queen of France: Lord George Gordon 
 
 convicted for libel on, 429. 
 Queen of Portugal: see Portugal. 
 
 Ratification: by government of acts of 
 individual, 122-23; of treaties, 126-27. 
 
 Re : in relation to. 
 
 Readmission: French Ambassador urges 
 right of, to U.S., 277; of resident 
 aliens: U.S. considers same conditions 
 apply to, as in case of immigrants, 
 279-80. 
 
 Reason: value of, to discover rule of 
 conduct, xxviii; for expulsion should 
 be given other government, if re- 
 quested, 291. 
 
 Reasonable regulation: what is, 188 jf. 
 
 Recapture: no rule as to, 300. 
 
 Reciprocity: Chilean Minister considers 
 has right to look for, in withdrawal of 
 exequatur, 31; Russia agrees to exer- 
 cise of French police jurisdiction over 
 legation under reserve of, 229 n.; U.S. 
 willing to enter into agreement for, 
 293; as a basis of treatment between 
 governments, 394-40 r; obligation to 
 observe international law arises from, 
 of practice, 395; Germany refuses 
 repatriation, citing American prece- 
 dent, 403; Bulgaria grants extradition 
 without promise of, 405; rule of, ap- 
 plied by courts to execution of foreign 
 judgments, 436 ff. 
 
 Recognition: 164-68; of Crespo Govern- 
 ment as legitimate (Venezuela) by 
 U.S., 156; of revolutionary govern- 
 ments takes effect from beginning of 
 its existence, 157; of existing govern-
 
 ments, policy of U.S. in regard to, 
 167. 
 
 Red Cross: American National, issues 
 appeal for Italian earthquake sufferers, 
 446. 
 
 Redress: for insult to ambassador, 6; 
 British demands for, upon Brazil, 40; 
 for grievances, 157; to be sought by 
 retaliation, 396. 
 
 Refuge (see also Asylum): vessels hi dis- 
 tress have a right to, hi foreign ports, 
 236. 
 
 Refugees: Germany contends German 
 Socialists should not enjoy asylum hi 
 Switzerland, 149. 
 
 Regina r. Lesley: 300. 
 
 Registry: flag of vessel usually deter- 
 mined by, 368-71; fraudulent, hi case 
 of the Virginius, 369. 
 
 Regulation: right to make, re fisheries, 
 183 ff.; authority of the Behring Sea 
 arbitrators to make necessary, 220; 
 arbitrators determine, for pelagic 
 sealing, 224-25; of immigration and 
 sojourn, 275-84; of tariff and imports, 
 291-95; right of, inherent in sover- 
 eignty* 344> navigable international 
 rivers subject only to police, 451; of 
 foreign vessels ought to be tolerated 
 when in interest of humanity, 442. 
 
 Relativity: of rights of extraterritoriality 
 and military occupation, 380-81; of 
 right of inviolability of public minister 
 and self-defense, 381. 
 
 Release: President authorized to use re- 
 prisals to secure, of Americans, 322. 
 
 Renault, Professor: arbitrator hi case of 
 Perpetual Leases in Japan, 130; ar- 
 bitrator in the Canevaro claim, 317; 
 arbitrator in Casablanca incident, 379; 
 arbitrator in Savarkar case, 418. 
 
 Reparation: demand of U.S. for, hi case 
 of the Virginius, 369. 
 
 Repatriation: Germany refuses to un- 
 dertake, 403. 
 
 Representations: urgent, addressed to 
 Russian Government re Dogger Bank 
 incident, 99; made to British Minister 
 because of Caroline incident, 122. 
 
 Representatives (see also Diplomatic 
 representatives): naval officers do not 
 poaem character of, 45; diplomatic, 
 withdrawal of, 108-12. 
 
 Reprisals (see also Retaliation; Retor- 
 sion): 107. 
 
 Reprisals: Prit chard seized hi, 24; seizure 
 of Brazilian private property by 
 British by way of, 40; proposal in 
 Congress to authorize President to 
 
 INDEX 487 
 
 use, if Venezuela refused payment of 
 claims, 69 ff.; responsibility of local 
 government for loss resulting from 
 (Grey town), 120-21; Congress au- 
 thorizes President to have recourse to, 
 to secure release of Americans, 322; 
 state of, between America and France 
 (1798) called "state of hostility," 398. 
 
 Republican government: enthusiasm in 
 U.S. at setting up of, in France, 167. 
 
 Res judicata: an issue or point of law that 
 has been previously decided by a court 
 of authoritative or competent juris- 
 diction, and which when pleaded is 
 conclusive of the matter in contro- 
 versy by way of estoppel. (Standard.) 
 
 Res judicata: 64; rule of, applied to in- 
 ternational claims, 55; pleaded by 
 Turkey as exception, 61; not admitted 
 by tribunal in Russia v. Turkey, 63; 
 principle of, considered in Pious Fund 
 case, 64-69; held applicable to the 
 award of Sir Edward Thornton, 68; 
 not applied to mode of payment of 
 award, 68; see case of Orinoco Steam- 
 ship Co., 93 ff.; claim in McLeod's 
 case considered, 123; Chief Justice 
 Fuller thinks, should be rule for exe- 
 cution of foreign judgments, 438. 
 
 Res nullius: Great Britain contends seals 
 are, 223. 
 
 Rescission: right of, inherent hi sover- 
 eignty, 343- 
 
 Rescript: of Nicholas II suggesting peace 
 conference, 52. 
 
 Resident aliens (see also Domicile): 
 obligation of, to perform military serv- 
 ice, 271 ff.; French Ambassador 
 claims right of, to readmission to U.S., 
 277. 
 
 Respect: damages awarded to indicate, 
 due office of consul, 22; due to friendly 
 power, 23 .; for decision of French 
 tribunal against U.S. warship shown 
 by U.S. Government, 44; Ingraham's 
 use of force, not lacking in, for Austria, 
 310; Peltier convicted for libel of 
 Napoleon, 429. 
 
 Respect for the state: 163. 
 
 Responsibility: of states, for non-ful- 
 fillment of obligations, Russia v. 
 Turkey, 58-64; of Great Britain, for 
 McLeod's act (Caroline), 123; officials 
 free from, for acts of government, 
 before courts of another state, 156; 
 U.S. not under, for death resulting 
 from shot fired at escaping prisoner 
 (Cadenhead), 263-64; President ad- 
 mits, of U.S. when local authority
 
 INDEX 
 
 fails to punish violation of treaty 
 (New Orleans lynching), 270. 
 
 Retaliation: German threats of, because 
 of expulsion of Wohlgemuth, 139; 
 U.S. contemplates suspending Cana- 
 dian bonding privileges as, for fish- 
 eries seizures, 184; Newfoundland 
 regulation as, for failure to ratify 
 treaty, 186; Act of 1887 passed by 
 U.S. as, 1 86; U.S. Secretary of Agri- 
 culture proposes retorsion against 
 Germany, 294; redress to be sought 
 by, 396; judicial, by applying rule of 
 reciprocity to execution of foreign 
 judgment, 437; regulation of foreign 
 vessels, likely to lead to, 440; exorbi- 
 tant transit charges for mail would 
 lead to, 452. 
 
 Retorsion (see also Reprisals): retalia- 
 tion in kind, as a measure short of 
 war; more correctly reserved for re- 
 taliatory action legal in form, in dis- 
 tinction from reprisals which pur- 
 posely disregard legal rights; legisla- 
 tive, 107; German threats of, by en- 
 forcing inconvenient border inspec- 
 tions, 139; legislative, proposed against 
 German wines, 294; not for courts to 
 apply, 439- 
 
 Revision of arbitral awards: 64-98; chief 
 reasons for, 93, 94. 
 
 Revolution: recognition of belligerency 
 not necessary to judicially establish 
 fact of existence of, 157. 
 
 Revolutionary government, payment of 
 customs to, 108. 
 
 Revolutionists: anarchists and, not al- 
 lowed to settle in Switzerland, 148. 
 
 Rhine: navigation of, regulated by 
 treaties, 450-51. 
 
 Rhodian Law: 434. 
 
 Ribot, French Minister for Foreign 
 Affairs: statement of, on litres de 
 navigation, 352. 
 
 Right: difference between, and "liberty" 
 in regard to fisheries, 78; international, 
 implies means necessary to enforce, 
 285. 
 
 Rights, property, of individuals: 174-76. 
 
 Rights of aliens: 259-74; no greater than 
 those of nationals, 263. 
 
 Ripperda, Duke of, case of: 16-17. 
 
 Ritchie v. McMullen: foreign judgment 
 in case of, sustained, 438 n. 
 
 Rivers (see also International rivers): 
 international commissions for the 
 regulation of, 450-51. 
 
 Robson, Lord: commissioner in Alsop 
 claim, 329. 
 
 Rogatory letters: 422-23. 
 
 Rogers, Consul, case of: 30-31. 
 
 Roman Law: necessity to comprehend, 
 x; theory of responsibilities analyzed, 
 61; origin of doctrine of international 
 servitudes in, 190; Great Britain con- 
 tends that seals are ferce natures and 
 res nullius, 222-23; provisions of, re- 
 garding the navigation of rivers, 297. 
 
 Roosevelt, President: message of sym- 
 pathy from, to King of Italy, 446. 
 
 Root, Elihu, U.S. Secretary of State : ad- 
 dresses note to Chinese Minister at 
 Washington cancelling Chinese in- 
 demnity, 118; signs special agreement 
 submitting North Atlantic Fisheries 
 dispute to arbitration (1909), 177; 
 counsel in North Atlantic Fisheries 
 case, 187; states question at issue, 189; 
 argument of, on servitudes, 190. 
 
 Roumania: property of Zappa in, claimed 
 by Greece, 155; refusal of, to allow 
 transit of extradited person, 407-08. 
 
 Roussel, case of: 276-80. 
 
 Rowe, Professor L. S.: member of U.S.- 
 Panama Joint Commission (1913), 
 174. 
 
 Rozhdestvensky, Admiral (see also Dog- 
 ger Bank incident) : 98-106. 
 
 Rudini, Italian Minister of Foreign 
 Affairs : demands of, re New Orleans 
 lynching, 265-67; affirms right to have 
 treaty enforced, 269. 
 
 Rules and procedure : % Hague Tribunal 
 (Fisheries) authorized to make, for 
 fisheries commissions, 187. 
 
 Rush, U.S. Minister at Paris : recognizes 
 French Republic (1848), 166; opinion 
 of, as to American fishing rights under 
 Convention of 1818, 198. 
 
 Russell, Lord, British Foreign Secretary: 
 instructions of, to British Minister at 
 Rio de Janeiro in case of the Forte, 
 40; leaves question of reprisals to dis- 
 cretion of Admiral Warren, 40. 
 
 Russia: demands reparation from Eng- 
 land for arrest of ambassador (1708), 
 9; rescript of Nicholas II on holding 
 of peace conference, 52; claim of, 
 against Turkey for moratory interest, 
 58; Dogger Bank incident, 98; party 
 to Treaty of Paris (1856), 134; Black 
 Sea closed to vessels of war of, Treaty 
 of Paris (1856), 134; regards Treaty 
 of Paris no longer binding on, 134; 
 warns Switzerland against danger to 
 Swiss neutrality, 139; collective note 
 of Germany, France, and, to Japan, 
 203; lease of Port Arthur and Talien
 
 INDEX 
 
 489 
 
 to, 205-06; transfers lease of Port 
 Arthur to Japan (Treaty of Ports- 
 mouth), 207; sells Alaska to U.S., 218; 
 ukase of, re Behring Sea (1821), 218; 
 treaty with U.S. (1824), 218; with 
 Great Britain (1825), 218; never as- 
 serted exclusive jurisdiction in Behring 
 Sea, 224; extent of diplomatic im- 
 munity of embassy at Paris, 228. 
 
 Russia v. Turkey, 58-64. 
 
 Russian language: apology read by Eng- 
 lish Ambassador, translated into, 6. 
 
 Sackville West incident: 10-16. 
 
 Safe-conduct: American representative 
 asks, of Venezuela, ioo-|-io; refused as 
 unnecessary, in; crossing of frontier 
 by officials on basis of understanding 
 constitutes, 227; action of U.S. Min- 
 ister conducting political refugees to 
 warship, criticized, 246; consul fur- 
 nishes Koszta with tezkereh, 299. 
 
 Sailors: see Crew. 
 
 Salisbury, Lord, British Secretary for 
 Foreign Affairs: unable to assent to 
 view laid down by U.S. Government, 
 in case of Lord Sackville, 12; instruc- 
 tions of, on lease of Wei-hai-wei, 206; 
 diplomatic intervention of, in Delagoa 
 Bay Railway case, 339. 
 
 Sally, the case of the: 246-48. 
 
 Salute: to French flag at San Francisco, 
 by U.S. authorities, 33; promise of 
 Spain to U.S. to give, 369; not re- 
 quired of Spain, 369. 
 
 Salvage: English rule for restoration of 
 recaptures, 398. 
 
 Samoa, restoration of order in: 45-46; 
 extraterritorial jurisdiction in, 383. 
 
 San logo: Sir William Scott cites case of, 
 398. 
 
 Santa Cruz, case of the: 394-401. 
 
 Sapphire, case of the: 168-70. 
 
 Sardinia: party to Treaty of Paris 
 (1856), 134. 
 
 Satisfaction: protocol relative to, by 
 China for Boxer outrages, 113 ff.; 
 U.S. refuses Austria's request for, in 
 Koszta incident, 311. 
 
 Savarkar case: 416-22. 
 
 Savorin Lohman, Jonkheer A. F. de: 
 arbitrator in Pious Fund case, 66; 
 arbitrator in North Atlantic Fisheries 
 case, 187; arbitrator in case of Dhows 
 of Muscat, 353; arbitrator in Savarkar 
 
 / case, 418. 
 
 Scheldt: navigation of, regulated by 
 treaty, 451. 
 
 Schnaebcll incident, the: 225-28. 
 
 Schooner Exchange, the: 230-42. 
 
 Scotia, case of the: 432-35. 
 
 Scott, Sir William (Lord Stowell) : bases 
 exemption of fishing vessels from cap- 
 ture on comity, xxxiii; judgment of, 
 in Santa Cruz case, 394-401. 
 
 Seals: U.S. has no property right in, 224. 
 
 Seamen (see also Crew) : impressment of, 
 368; relief of destitute American, by 
 consuls, 402. 
 
 Search: General Butler claims right to 
 search Spanish warships, 242. 
 
 Secretary of Agriculture (U.S.): pro- 
 poses retaliatory regulations against 
 German wines, 294. 
 
 Secretary of Treasury (U.S.): decides 
 upon deportation of immigrant, 275. 
 
 Self-defense (see also Self-help): bellig- 
 erent and limited nature of, 223; right 
 of, on high seas, 370; right of, not ar- 
 rested by absolute inviolability of 
 public ministers, 381; U.S. seizes Con- 
 federates in Morocco, 411-12. 
 
 Self-help: 121-26. 
 
 Separation of powers: in Winslow case 
 executive refuses to pledge action of 
 judiciary, 416 n. 
 
 Servia: transit of person extradited al- 
 lowed by, 408. 
 
 Servitudes: China agrees to raze Taku 
 forts, 114; nature of international, 
 190. 
 
 Servitudes and leases: 177-208. 
 
 Settlement: German-Swiss treaty re- 
 garding, 144 jf. 
 
 Severability: of award, principle of, 
 followed in Orinoco Steamship Co. 
 case, 95. 
 
 Seward, U.S. Secretary of State: action 
 of, on revocation of exequatur, 30; 
 letter of, disavowing arrest of American 
 deserter on Canadian territory, 154; 
 on right of asylum on warships, 242, 
 243; on conflict in naturalization laws, 
 320; on right of asylum in Morocco, 
 412. 
 
 Sherman Anti-Trust Act: 159. 
 
 Shipping: legislative retorsion against, 
 107. 
 
 Ships' papers: issuance of, by France to 
 Dhows of Muscat, 350-59. 
 
 Silcsian loan: cited in Alsop claim, 330- 
 32. 
 
 Slave trade: 430-31; denned as piracy, 
 87; Brussels Act in suppression of, 
 
 351- 
 Slavery: Bates holds, not contrary to 
 
 international law (Creole), 252. 
 Slaves: Great Britain claims, become
 
 490 
 
 INDEX 
 
 
 free on entering British jurisdiction, 
 249; on the Creole forcibly liberated 
 by local authorities, 251. 
 
 Socialists: Germany thinks German, 
 should not enjoy asylum in Switzer- 
 land, 149. 
 
 Sojourn: diplomat not entitled to, in 
 third state, 9; German-Swiss treaty 
 regarding, 144. 
 
 Sojourn and immigration, regulation 
 of: 275-84. 
 
 Sojourners: Marcy uses term of those 
 not acquiring national character 
 through domicile, 308. 
 
 Soldan: arbitrator in Delagoa Bay Rail- 
 way case, 341, 348. 
 
 Sotomayor, Duke of: opinion of, on 
 recall of diplomatic officers, 12. 
 
 Soul6's case: 9-10. 
 
 Sources: list of the most important, for 
 students, xv; Marshall on method of 
 finding the law, 231. 
 
 Sovereigns: 46; right of foreign, to sue 
 in courts of U.S., 169; foreign, im- 
 munity of, from suit, 45, 169; act as 
 agents or representatives of state, 
 170; territorial jurisdiction cannot be 
 extended to, 232-33; enter foreign ter- 
 ritory under implied promise of extra- 
 territoriality, 233 ; immunity of private 
 property of, not same as for public 
 property, 240; determining right to fly 
 flag, 357; rights of, may be limited by 
 treaties, 357; suit brought by Austria 
 in British court, 425; conviction of 
 Peltier for libel against Napoleon, 429. 
 
 Sovereign interests: protection of, 425- 
 29. 
 
 Sovereignty: 153-64; effective, to be 
 guaranteed by Spanish Government 
 in Caroline Islands, 50; Switzerland 
 will not abandon exercise of certain 
 rights of, 147, 154; relaxation of rights 
 of, by states for certain ends, 232; 
 Turkey claims seizure of Koszta is 
 violation of, 303; U.S. denies right of 
 Austria to protest at violation of 
 Turkish, 310; seizure of Confederate 
 agents in Tangier, 411-12; France 
 claims seizure of Savarkar was viola- 
 tion of, 418. 
 
 Spain: U.S. Minister to, stopped at 
 Calais by French Government, 9; 
 dismisses Sir Henry Bulwer, British 
 Minister at Madrid (1848), 12; gov- 
 ernment of, seizes Duke of Ripperda 
 at British Embassy at Madrid, 16; 
 claim of, to sovereignty over Caroline 
 Islands, 49; claims of, to Falkland 
 
 Islands, 213-16; Treaty of San Lorenzo 
 between Great Britain and (1790), 214; 
 warships of, seized for debt, released, 
 240; asylum on warships of, refused 
 by U.S. at New Orleans, 242; policing 
 of legation of, at Santiago, 244; claim 
 of, to exclusive navigation of Missis- 
 sippi, 296; law of nationality of, 315; 
 seizure of the Masonic at Manila, 361; 
 execution of British and Americans 
 by Spanish authorities, in Cuba, 369; 
 agreement with U.S. re Virginius 
 affair, 369; not required to salute 
 American flag, 369; pays indemnity 
 to U.S. and Great Britain, 370; justi- 
 fication of, for seizure of the Virginius, 
 370-71; summary executions by, not 
 justified, 370-71. 
 Spanish warships at New Orleans, 242- 
 
 43- 
 
 Spaun, Admiral: chosen fifth member of 
 Commission of Inquiry, Dogger Bank 
 incident, 102. 
 
 Special mission: Sir Edward Thornton 
 sent on, to express regret to Brazilian 
 Government, and to propose renewal 
 of diplomatic relations, 42. 
 
 Standardization: of postal conditions, 
 
 453- 
 
 State Department: archives of, show ex- 
 istence of civil war in Venezuela, 157. 
 
 State succession: 168-77; to private 
 funds (see Pious Fund), 64 ff.; principles 
 of, in Alsop claim, 326-34. 
 
 States: responsible for delay in payment 
 of debts, 62; debtor, entitled to privi- 
 lege of demand for interest, 63; new, 
 164. 
 
 States of Union: suits between, do not 
 relate to international law, vii. 
 
 Status, personal: absence of, in case of 
 Arab traders, 353. 
 
 Statute of 7 Anne, chap. 12: declaratory 
 of law of nations, 7-8. 
 
 Strait: right of passage through, of 
 Canso, 183-87. 
 
 Strong, William, Justice: arbitrator on 
 Pelletier and Lazare claims, 82-96; 
 letter of, on "newly discovered" evi- 
 dence after award on Lazare claim, 
 97; oral statement of, on Lazare award, 
 97; judgment of in case of the Scotia, 
 
 432-35- 
 
 Study: methods of, and of using case- 
 book, xi-xv. 
 
 Substantial justice: when held to be 
 true rule of law, 396. 
 
 Substantive law of nations: 151 ff. 
 
 Succession: of revolted colonies to terri-
 
 INDEX 
 
 491 
 
 tory (Falklands), 208 ff.; rights of, in 
 aliens, 319; effect of, upon neutrality 
 of corporation when portion of shares 
 in hands of aliens, 326. 
 
 Succession, state: 168-77; to private 
 funds (see Pious Fund), 64 ff.; principles 
 of, hi Alsop claim, 326-34. 
 
 Succor: 446-49. 
 
 Sucket, case of the: 107-08. 
 
 Sugiyama, Chancellor of Japanese Lega- 
 tion: murdered by Chinese soldiers at 
 Peking, 113. 
 
 Sultan of Muscat: see Muscat. 
 
 Summary executions: not excusable hi 
 case of the Virginius, 371. 
 
 Superficies: in Roman law, a perpetual 
 lease of building land subject to the 
 payment of an annual rent (Sohm), 
 132. 
 
 Suspension of distribution of awards by 
 U.S.: 70. 
 
 Sweden: detention of merchant vessel 
 of, at Antwerp, 392, 393; consul of, in- 
 vestigates complaint, 392, 393; exemp- 
 tion of Swedish vessels from British 
 provisions relative to overloading, 445. 
 
 Switzerland: expels German official Wohl- 
 gemuth, 137; action of, re U.S. 
 emigration law, 401-02; International 
 Bureau of Postal Union established at 
 Beme, 453. 
 
 Tahiti: see Pritchard affair, 22-25. 
 Talbot, Lord Chancellor: opinion of, in 
 
 Barbuit's case cited, xxxii; decision of, 
 
 in Barbuit's case, 18. 
 Talien: lease of, to Russia (1898), 205. 
 Tariff and the regulation of imports: 
 
 29I-95- 
 
 Taube, Baron von: arbitrator in case of 
 Russia v. Turkey, 58. 
 
 Taxation: treatment of Americans in 
 Colombia, in regard to, 162; case of 
 Mrs. Honey, 273; foreign representa- 
 tives secure remission of income tax, 
 274; of absentees through relatives, 
 
 375 ff- 
 
 Tcherniak affair: 392-93. 
 
 Termination: of consular office on hauling 
 down consular flag, 23 n.; right of, of 
 German-Swiss treaty, for non-ob- 
 servance, denied by Switzerland, 146. 
 
 Termination of treaties: 134-49. (See 
 Charlton case, 410-11.) 
 
 Territory, title to: 208-17; violation of, 
 U.S. complains of (Caroline), 122. 
 
 Testimony: exemption from giving, not 
 extended to consuls unless by treaty, 
 32; views of U.S. in regard to giving, 
 
 by consuls, 33; taking of, by consuls 
 under letters rogatory, 422-23. 
 
 The Hague: First Peace Conference at, 
 52-54; Special Arbitral Tribunal at, 
 Russia v. Turkey (1912), 58-64; Per- 
 manent Court of Arbitration at, case 
 of Pious Fund (1902), 64-69; Orinoco 
 Steamship Co. case (1910), 89-96; 
 Perpetual Leases in Japan (1905), 127- 
 33; North Atlantic Fisheries Arbitra- 
 tion (1910), 177-202; Canevaro claim 
 (1912), 316-20; Dhows of Muscat 
 (1905), 350-59; Casablanca arbitra- 
 tion (1909), 377-85; Savarkar case 
 (1911), 416-22; International Bureau 
 at, apportionment of expenses of, 454. 
 
 Thiers: declaration of, re nationality of 
 French residents of Alsace-Lorraine, 
 172. 
 
 Third states (see also Good offices): care 
 of the interests of, 107-08. 
 
 Thompson, Sir John: arbitrator in Fur 
 Seal case, 221. 
 
 Thornton, Sir Edward: expresses to 
 Brazil regret of British Government; 
 proposes renewal of diplomatic rela- 
 tions (1863), 42; umpire under U.S.- 
 Venezuela Mixed Commission of 1869, 
 65; decision of, in Pious Fund claim, 
 held to have force of res judicata, 68; 
 awards of, in Weil and La Abra claims, 
 76; calls attention to clauses in Mer- 
 chant Shipping Act re foreign shipping, 
 
 443- 
 
 Threats: French officer makes, to hold 
 British Consul responsible for blood- 
 shed, 24; Italy threatens recall of 
 diplomatic representatives from U.S., 
 266; commander of St. Louis makes, 
 of recourse to force if Koszta not re- 
 leased, 300. 
 
 Threats and the display of force: 107. 
 (See also case of Leased Territory in 
 China, 203 ff.) 
 
 Tillett, Ben, case of: 284-00 
 
 Time, lapse of: effect of, to extinguish 
 obligations, 57. 
 
 Timor arbitration: reasons why omitted, 
 vi . 
 
 Title to territory: 208-17. 
 
 Titres de navigation : see Ships' papers. 
 
 Torrey case: 259-61. 
 
 Tort-feasor: one who has committed an 
 act giving rise to a civil, not a criminal, 
 action at law; may not claim com- 
 pensation for consequences of his 
 tort, 88. 
 
 Transeuntfs: persons in transit. 
 
 Transfer: of sovereignty does not divest
 
 492 
 
 INDEX 
 
 property rights in Canal Zone not 
 recognized by American jurisprudence, 
 176; of property: see Property. 
 
 Transit: 295-98; right of minister to, o~ 
 10; through Strait of Canso, 183; 
 Roumania refuses, for extradition in 
 absence of treaty, 408; question of, 
 in regard to prisoners in harbors, 418- 
 19; action of powers at Congress of 
 Vienna in regard to use of interna- 
 tional rivers, 450; of mail through 
 United States, 451. 
 
 Transvaal: treaty between Portugal 
 and, 334; delegation from, gets tram- 
 ways concession from Portugal, 336. 
 
 Treason: a French official guilty of, 
 against Germany, 226. 
 
 Treaties (see also Notes, exchange of): 
 Indian, not international law, vii; 
 correct method of referring to, xii; 
 based upon compromise, xxvi; general, 
 danger of, xxvi .; security of, basic 
 principle of international law, xxx; 
 of U.S. subject to limitations of Con- 
 stitution, 32; used to form record 
 of diplomatic agreement, 48; Presi- 
 dent to ask Congress for authority to 
 remit Chinese indemnity, 118-19; 
 termination of, justified by change in 
 conditions, 134 ff.; meaning of miissen, 
 141; necessarily limit exercise of sov- 
 ereign rights, 141; good-will neces- 
 sary to fulfillment of certain, 142; 
 German Government accuses Switzer- 
 land of violating a treaty, 142; void 
 when violated by one party, 142; 
 Germany gives Switzerland notice of 
 intention to terminate Treaty of 1876, 
 142; meaning of auf erfordern, 144; 
 interpretation of, will of parties at 
 time of conclusion, rule of, 144; mis- 
 taken views of German Government 
 as to interpretation of, 144; history of 
 negotiations as aid hi interpretation 
 of will of the parties, 145; interpreta- 
 tion of, by comparing interpretation 
 of same terms by other governments, 
 145; interpretation of, indication for, 
 in spirit and purpose of, 146; right to 
 terminate German-Swiss treaty for 
 non-observance denied by Switzer- 
 land, 146; survival of, in case of change 
 of sovereign, 170; difference of opinion 
 between France and Germany as to 
 interpretation of Treaty of Frankfort, 
 173; intention of negotiators of Treaty 
 of 1818 regarding "bays," 199 ff.; 
 Belgian Consul claims jurisdiction 
 over crew under treaty (Wildenhus), 
 
 253; interpretation of "tranquillity 
 and public order" in Belgian Treaty 
 (Wildenhus), 254; France cites to 
 support its view U.S. treaties with 
 other powers, 325; Great Britain- 
 Muscat, 351; most-favored-nation 
 treaty between France and Muscat, 
 351; may limit rights of sovereign, 
 357; interpretation of Italian (Charl- 
 ton case), 410; absence of mutuality 
 renders, voidable, 410; interpretation 
 of Webster-Ashburton, in regard to 
 extradition, 413-14. 
 
 Treaties, effect of war on: 149. 
 
 Treaties, formation of: 126-27. 
 
 Treaties, interpretation and application 
 of: 127-34. 
 
 Treaties, termination of: 134-49. 
 
 Treaty: of 1868, between U.S. and Mexico, 
 mixed commission under, 65; of Paris 
 (1856) (see Neutralization of the Black 
 Sea), 134; of peace with Spain (1898), 
 negotiations in regard to the Cuban 
 debt, 171; of Frankfort (1870), 173; 
 of Utrecht (1713), French fishing 
 rights under, 178; of 1783, difference 
 of opinion in regard to effects of War 
 of 1812 upon, 179; of Shimonoseki 
 (1895), between Japan and China, 
 203; of Portsmouth (1905), between 
 Russia and Japan, 207; of San Lorenzo, 
 between Spain and Great Britain 
 (1790), 214; Portugal-Transvaal 
 (1875), 334; Webster-Ashburton, 
 (1842), 413-16. 
 
 Treaty obligations: Italy considers U.S. 
 remiss in enforcing respect for (New 
 Orleans lynching), 269; Harrison rec- 
 ommends legislation making violation 
 of, cognizable in federal courts, 270. 
 
 Tribunal, corruption of: 69. 
 
 Tribunals, national: recourse to, open 
 to aliens, 109-10. 
 
 Trichinae: German regulations to protect 
 against imports infected with, 292 ff. 
 
 Triquet v. Bath: xxxi. 
 
 Truce, Pact of Indefinite: between 
 Chile and Bolivia (1884), 327. 
 
 Turkey: protection of Americans in, 
 44-45; seizure of Koszta at Smyrna 
 by Austrian authorities, 51; claim of 
 Russia against, for moratory interest, 
 58; American naval officers sent to aid 
 missionaries in, 124; party to Treaty 
 of Paris (1856), 134; Black Sea closed 
 to vessels of war of, 134; refusal of, to 
 extradite Koszta to Austria, 298; 
 status of protege's in, 358; imposition 
 by, of personal tax on naturalized
 
 INDEX 
 
 493 
 
 American citizen domiciled in U.S., 
 375~77J system in, of bonding absen- 
 tees, 377. 
 
 Turpitude: refusal to press claim on 
 ground of, 88. 
 
 Twenty-four hours: possession for, con- 
 stituting valid capture, 395. 
 
 Ultimatum: of Germany demanding 
 
 evacuation of Kiao-chau, 203; close 
 
 vote in French Cabinet against, to 
 
 Germany (1887), 225-26. 
 Ultra vires: beyond legal powers, or 
 
 without the necessary legal consent; 
 
 in excess of authority. 
 Ultra vires: refusal to accept award on 
 
 ground of, 82-88. 
 Unanimity: when required in Postal 
 
 Union, 453. 
 
 Underbill t>. Hernandez: 156-59. 
 Uniformity: needs of, in postal relations, 
 
 45 1 JP. 
 
 Unions, international: 451-54 
 
 United States: embassy of, arrest of 
 Gallatin's coachman on premises of, 
 7; minister of, to Spain, stopped at 
 Calais by French Government, 9; 
 dismissed Lord Sackville West, 10; 
 consul of, refused exequatur by Nica- 
 ragua, 18; consul of, arrested in Peru, 
 22; exequatur of Chilean Consul at 
 New York revoked, 30; French Consul 
 at San Francisco brought before court 
 of, 31; naval commander of, sum- 
 moned before French tribunal, 43; 
 naval officers of, instructed to protect 
 citizens of, in Turkey, 44; helps to re- 
 store order in Samoa, 45; protects 
 Venezuelan citizens in France, 51; 
 demand of naval commander of, for 
 release of Koszta, 51; accepts invita- 
 tion to Peace Conference, 52; presents 
 claim of John H. Williams against 
 Venezuela, 55; claim of, against 
 Mexico in Pious Fund case, 64; cor- 
 ruption of tribunal in case of claims 
 of, against Venezuela (1866-90), 69; 
 returns money paid by Mexico on 
 fraudulent claims, 75; northeastern 
 boundary of, award of King of Nether- 
 lands on, 81; refuses to enforce pay- 
 ment of I'elletier award against Hayti, 
 82; party to case of Orinoco Steam- 
 ship Co. against Venezuela, 89; re- 
 fuses to press Lazare claim against 
 Hayti, 96; legislative retorsion by, 
 against British vessels, 107; with- 
 drawal of diplomatic representatives 
 of, from Venezuela, iSo; return by, 
 
 of Chinese indemnity, 117; warship of, 
 bombards Greytown, 119; refuses to 
 admit necessity in Caroline affair, 122; 
 accepts British contention in McLeod 
 case, 123; naval officers of, sent to aid 
 missionaries in Turkey, 124; treaty 
 of, with Panama dates from exchange 
 of ratifications, 127; abides by decision 
 in case of Perpetual Leases in Japan, 
 127; disavows arrest of American de- 
 serter in Canada, 154; courts of, do 
 not adjudicate upon acts of de facto 
 government in Venezuela, 156; at- 
 tempt of, to seize Brazilian coffee in 
 New York, 159; protest of, against 
 discrimination in Colombia, 162; abuse 
 of flag of, in Greece, 163; policy of, in 
 recognition of new states, 164; rec- 
 ognition of French Republic by, 166; 
 French Emperor brings suit in courts 
 of, 168; declines to assume Cuban debt, 
 170; view of, as to right of Canal Zone 
 squatters, 175; submits North At- 
 lantic Fisheries dispute to arbitration 
 at The Hague, 177; separation of, from 
 Great Britain considered by Adams a 
 "division of empire," 177; convention 
 with Great Britain (1818), 180-82; 
 Reciprocity Treaty with Great Britain 
 (1854), 183; extends bonding privi- 
 lege to Canada, 184; Treaty of Wash- 
 ington (1871) with Great Britain, 
 184; fishing liberty of, subject to rea- 
 sonable regulation by Great Britain, 
 194; right of inhabitants of, to employ 
 foreigners on fishing vessels, 196; ex- 
 ercise of fishing liberties of, not subject 
 to commercial formalities, 197; con- 
 tention of, as to territorial waters, 
 198; fishing vessels of, entitled to com- 
 mercial privileges on treaty coasts, 
 202; questions Argentine title to the 
 Falklands, 211; purchases Alaska 
 from Russia, 218; protest of, against 
 ukase of Russia, 218; legislation of, 
 on protection of fur seal, 219; treaty 
 with Great Britain on fur seal arbitra- 
 tion (1892), 220; claims property right 
 in fur seal, 221; decision of tribunal 
 against claim of, in Behring Sea arbi- 
 tration, 224; armed vessel of foreign 
 power not subject to jurisdiction of, 
 230-42; refuses to grant asylum on 
 Spanish warships, 242; minister of, to 
 Chile grants asylum to Congression- 
 alists at Santiago, 243; policing of 
 legation of, at Santiago, 244; Chilean 
 refugees on board warships of, 245: 
 mixed commission under Treaty of
 
 494 
 
 INDEX 
 
 1853 with Great Britain, 248; vessel 
 of, in foreign port by necessity not 
 subject to local law, 249-53; jurisdic- 
 tion of, over foreign merchant vessels 
 in U.S. waters, 253-59; jurisdiction 
 of Belgian Consuls in, 253; presents 
 claims against Venezuela for unjust 
 arrest of citizens, 259-61; claim for 
 death of British subject in, 262-64; 
 responsibility of, for lynching of Italian 
 subjects at New Orleans, 264-70; 
 pays indemnity to Italy for New 
 Orleans lynching, 270; liability of 
 citizen of, to military service in Bata- 
 via, 270; discussion with Germany 
 over income tax on citizen of, 273-74; 
 application of contract-labor law of, 
 to Greek subject, 275; admission into, 
 may be denied to domiciled alien on 
 return to, 276-80; exclusion of crimi- 
 nals from, 280-83; rule f reciprocity 
 applied by, to citizens of Guatemala, 
 291; restrictions by France and Ger- 
 many on pork exports from, 292-95; 
 transit of Chinese laborers across, 
 295; early claims of, to navigation of 
 Mississippi, 296; declaration by Koszta 
 of intention to become citizen of, 299; 
 protection extended to Koszta by 
 consuls of, in Turkey, 299; demand of 
 U.S. commander for release of Koszta, 
 300; position taken by, in Koszta case, 
 301-11; liability of naturalized citizen 
 of, to military service in France, 311- 
 14, 322-25; claim of, to right of ex- 
 patriation, 320-22; right of citizens 
 of, to a jury de medietate lingiuz, 321; 
 naturalization convention with North 
 German Confederation, 321-25; Alsop 
 claim against Chile pressed by, 326- 
 34; asks Portugal for extension of 
 time-limit in case of Delagoa Bay 
 Railway Company, 339; diplomatic 
 intervention of, in interests of Ameri- 
 can shareholders, 339; agrees to arbi- 
 tration, 341; award in favor of, 348- 
 49; protection by, of seamen on board 
 American vessels, 350-61; action of, 
 in case of seizure of the Masonic at 
 Manila, 361-67; contention of, re 
 impressment, 368; citizens of, exe- 
 cuted by Spanish authorities, 369; 
 demand of, on Spain for reparation 
 for Virginius affair, 369; receives in- 
 demnity from Spain, 370; status of 
 American women married to Greek 
 subjects, 374-75; protest of, against 
 personal taxation in Turkey of natural- 
 ized citizen resident in U.S., 375-77; 
 
 agreement of, with Great Britain re 
 British subjects in American Navy, 
 381; extraterritorial jurisdiction of, 
 in Samoa, 383; denies claim of Mexico 
 to jurisdiction over offenses com- 
 mitted abroad, 386-89; rule of reci- 
 procity applied by Mexico and, with 
 respect to cattle on border, 401; ob- 
 jection of, to emigration to U.S. of 
 Swiss offenders, 401-02; status of 
 deserting German seamen in, 402-03; 
 extradition of criminal to, by Bulgaria 
 as act of grace in absence of treaty, 
 403-08; refusal of Roumania to allow 
 transit of person extradited from Bul- 
 garia to, 407-08; extradition of citizen 
 to Italy, 408-11; extradition treaty 
 with Italy, 409; jurisdiction of, over 
 Confederate sailors in Morocco, 411- 
 12; controversy with Great Britain 
 over interpretation of extradition 
 treaty, 413-14, 416 n.\ tries only for 
 offense for which extradition is granted, 
 413-16; refusal of Germany to allow 
 commissioners of, to take testimony, 
 422-23; vessel of, condemned by 
 British court for engagement in slave 
 trade, 430-31; collision of American 
 sailing vessel with British steamer on 
 high seas, 432-35; statutes of, do not 
 create law of sea, 434; rule of recipro- 
 city applied by courts of, with respect 
 to foreign judgments, 436-39; Cana- 
 dian judgment sustained by tribunal 
 of, 438 .; protects Jews in Persia, 
 445; views of government of, on British 
 jurisdiction over foreign shipping, 
 443-44; sends relief to victims of 
 Italian earthquake, 446-49. 
 
 United States v. Rauscher: 413-16. 
 
 Universal Postal Union: 451-54. 
 
 University of Berlin: faculty of law 
 of, gives opinion on Zappa affair, 
 
 155- 
 
 Usage: exemption of fishing vessels from 
 capture, a matter of, xxxii-xxxiii; be- 
 comes part of international law, xxxiv; 
 consent may be tested by common 
 opinion, growing out of, 232. 
 
 Use of force: see case of Leased Terri- 
 tory in China, 203 ff.; Great Britain 
 takes possession of Falk lands, 212; 
 Marcy sets forth right of Ingraham 
 to make, to protect Koszta, 309; 
 Marcy shows Ingraham did not first 
 make, 310; Casablanca tribunal con- 
 demns, by France, 385. 
 
 Utrecht, Treaty of: French fishing rights 
 under, 178.
 
 INDEX 
 
 495 
 
 Valorization scheme: of Brazil, 159. 
 
 Vattel: on extraterritoriality of diplo- 
 matic officers, 238; definition of domi- 
 cile by, 306; on voidability of treaties, 
 411. 
 
 Venezuela: U.S. protects citizens of, in 
 France, 51; award in John H. Williams 
 claim against, 55 ; corruption of tribunal 
 in case of claims of the U.S. against 
 (1866-90), 69; case of Orinoco Steam- 
 ship Co. against, 89; threat of force 
 by French cruiser against, 107; with- 
 drawal of diplomatic representative 
 of U.S. from, 108; acts of de facto gov- 
 ernment in, not to be questioned in 
 U.S. courts, 156; claims against, for 
 unjust arrest, 250-61; responsibility 
 of, for expulsion of Belgian subject, 
 290-91; jurisdiction over Belgian 
 claims against, 325. 
 
 Venezuelan citizens in France, protec- 
 tion of: 51. 
 
 Venice: punishes customs officials for 
 offense against English Ambassador, 5. 
 
 Venosta, Marquis: arbitrator in Fur Seal 
 case, 221; on liability of Italians for 
 military service, 324 n. 
 
 Vessel: fishing, exemption of, from cap- 
 ture, xxxii-xxxvi; exceptions to rule, 
 xxxv; French Council of State (1859), 
 declares local authorities competent 
 to exercise jurisdiction over crew in 
 case of homicide on, 258-39; seizure 
 of American, by Spanish authorities, 
 361-67; nationality of, extends to 
 seamen, 361; crew, protected by flag 
 of, 361; stress of weather not to sub- 
 ject American, to Spanish customs 
 law, 363; registry of, as determining 
 right to fly flag, 368-71; jurisdiction 
 over, dependent on ownership not on 
 registry, 371. 
 
 Vessels: seizure of Brazilian merchant, 
 by British as reprisals, 40; rights of 
 fishing, to engage "non-inhabitants" 
 under Treaty of 1818, 196; public, 
 immunity of, from national jurisdic- 
 tion in foreign ports, 230 ff.; in dis- 
 tress, have a right to refuge in foreign 
 ports, 236; decision in case of the Sally 
 denning limits of jurisdiction of con- 
 suls over crews and, 246 ff.; jurisdic- 
 tion over, in foreign harbors, 392; 
 right to retain political prisoners on, 
 in foreign harbors, 418; foreign applica- 
 tion of national legislation to, 440; 
 foreign regulation against overloading, 
 439, 440; foreign, regulation of, ought 
 to be tolerated when in interest of 
 
 humanity, 442; extraordinary nature 
 of British jurisdiction over foreign, 
 commented upon by U.S., 443; U.S. 
 yields tacit acquiescence, 444; foreign, 
 British regulation of leadline of, 444. 
 
 Vessels, merchant: 246-59. 
 
 Vessels, nationality and protection of: 
 350-68. 
 
 Vessels flying the national flag, control 
 over: 300-93. 
 
 Vignaud, U3. Minister at Paris: report 
 of, on French law of citizenship, 
 323-24 n. 
 
 "Vindictive damages": U.S. informs 
 Torrey will not ask, for his arrest, 260. 
 
 Violation of territory: investigation 
 shows there was no, in Schnaebele's 
 arrest, 227. 
 
 Violation of treaties: see Treaties. 
 
 Virginius, case of the: 368-71. 
 
 Visit and search: historic attitude of 
 U.S. regarding, as applied to sealing 
 controversy, 223; refusal of France to 
 admit right of, with respect to French 
 vessels in slave trade, 351; right of, on 
 high seas in time of peace, 370. 
 
 Waite, Chief Justice: delivers opinion 
 in Wildenhus case, 254-59. 
 
 Wai-wu Pu: instructs Chinese Minister 
 to thank President for return of in- 
 demnity, 119. 
 
 War: effect of, on treaties, 149; differ- 
 ence in regard to effects of War of 
 1812 upon Treaty of 1783, 179; effect 
 of, on postal relations, 454. 
 
 War-making power: Marcy agrees with 
 view of, expressed in Austrian note, 
 310. 
 
 War on land: laws and customs of, con- 
 vention concerning (1899), 54. 
 
 Warren and Costello cases: 320-22. 
 
 Warships: extraterritoriality of (Ex- 
 change), 230 ff.; Spanish, at New Or- 
 leans, U.S. does not recognize asylum 
 on, 242; U.S. Minister accompanies 
 refugees on board the Yorktoum, 245. 
 
 Warships and armed forces: 230-42. 
 
 Webster, U.S. Secretary of State: an- 
 nounces closing of Caroline incident 
 (1842), 122; admits British conten- 
 tion in McLcod case, 123; negotiations 
 of, with Lord Ashburton, 249; on 
 status of merchant vessels on high 
 seas, 368. 
 
 Webstcr-Ashburton Treaty: 413-16. 
 
 Wei-hai-wei: lease of, to Great Britain 
 (1898), 206. 
 
 Weil and La Abra cases: 75-81.
 
 496 INDEX 
 
 West, Sackville, incident: see Sackville 
 West, 10-16. 
 
 Westlake: on custom as a source of in- 
 ternational law, xxvii n.; on reason, 
 xxviii n.; on Roman law, xxix n.j on 
 development of new rules in inter- 
 national law, 153. 
 
 Wheaton: on national character, 309. 
 
 White, Andrew D., American Minister 
 at Berlin: representations of, on pork 
 exports, 294. 
 
 Whitworth, Lord, English Ambassador 
 at Moscow: special instructions dis- 
 patched to, on occasion of outrage on 
 Mattueof, 5; apologizes to Peter the 
 Great in Queen Anne's name, 6. 
 
 Wicquefort: xxxii; opinion of, on con- 
 sular privileges, 21. 
 
 Wildenhus case: 253-59 
 
 Will of the parties: at time of signing, 
 rule for interpretation of treaties, 144; 
 history of negotiations as aid to dis- 
 cover, 145. 
 
 Williams, John H., claim: 55-57. 
 
 Wilson, George G.: course on Hague 
 Arbitrations, xvi n. 
 
 Wines: U.S. Secretary of Agriculture 
 proposes retaliatory regulations against 
 foreign, 294. 
 
 Winslow case: referred to, 416 . 
 
 Withdrawal of diplomatic representa- 
 tives, 108-12; between France and 
 Holy See (1904), 17; ceremony of re- 
 newal of relations between England 
 and Brazil, 42; Greece recalls repre- 
 sentative from Bukharest, 155; Italian 
 Minister withdraws from Washington 
 "on leave" (New Orleans lynching), 
 267. 
 
 Witnesses: diplomatic representatives 
 not compelled to appear as, 32. 
 
 Wohlgemuth affair: 137-49. 
 
 Woolsey: opinion of, in case of the Vir- 
 ginius, 371. 
 
 Words and phrases: meaning of, in 
 treaties, indicated by purpose of 
 negotiators, 146; interpretation of the 
 word originaire in Treaty of Frank- 
 fort, 173; "right" and "liberty" as 
 used in Peace Treaty of 1783, 178 ff. 
 
 Young, Jacob and Johanna, case of: 
 Lord Stowell's judgment in, cited in 
 Paquete Habana, xxxiii. 
 
 Zanzibar: becomes protectorate of Great 
 Britain, 350; subsidy paid by Great 
 Britain to, 355; blockade of, by Eu- 
 ropean powers for prevention of slave 
 traffic, 430. 
 
 Zappa incident: 155.
 
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