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Title: International Law
Author: George Grafton Wilson and George Fox Tucker
Release Date: January 2, 2013 [eBook #41759]
Language: English
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INTERNATIONAL LAW
by
GEORGE GRAFTON WILSON, Ph.D.
Professor in Brown University
and
GEORGE FOX TUCKER, Ph.D.
Lately Reporter of Decisions of the Supreme Judicial Court of
Massachusetts
[Illustration]
Silver, Burdett and Company
New York Boston Chicago
Copyright, 1901,
By Silver, Burdett and Company.
PREFACE
The authors have aimed to prepare a brief introduction to the subject of
International Law. They have freely used the substantive material as
found in cases, codes, etc., which involve the principles of
International Law. Owing to the increasing importance of international
negotiation, relatively more attention than usual has been given to
matters connected with diplomacy. The appendices contain material which
the authors have found advantageous to have easily accessible to each
student. The study of this book should in all cases be supplemented by
reference to a considerable number of the books mentioned in the
bibliography.
G. G. W.
G. F. T.
+September+, 1901.
CONTENTS
PAGE
+Bibliography+ xix
+Abbreviation of Cases Cited+ xxi
+Table of Cases Cited+ xxiii
PART I
_GENERAL AND HISTORICAL_
CHAPTER I
+Definition and General Scope+ 3
1. +Definition.+
(_a_) Philosophical: what ought to be.
(_b_) Scientific: what is.
2. +Divisions.+
(_a_) Public.
(_b_) Private.
3. Scope.
CHAPTER II
+Nature+ 6
4. +Early Terminology.+
(_a_) _Jus naturale._
(_b_) _Jus gentium._
(_c_) Other terms.
5. +Historical Bases.+
6. +Ethical Bases.+
7. +Jural Bases.+
(_a_) Roman law.
(_b_) Canon law.
(_c_) Common law.
(_d_) Equity.
(_e_) Admiralty law.
8. +International Law and Statute Law.+
9. +How far is International Law entitled to
be called Law?+
CHAPTER III
+Historical Development+ 12
10. +Early Period.+
(_a_) Greece.
(_b_) Rome.
11. +Middle Period.+
(_a_) Roman Empire.
(_b_) The Church.
(_c_) Feudalism.
(_d_) Crusades.
(_e_) Chivalry.
(_f_) Commerce and Sea Laws.
(_g_) Consulates.
(_h_) Discovery of America.
(_i_) Conclusion.
12. +Modern Period from 1648.+
(_a_) 1648-1713.
(_b_) 1713-1815.
(_c_) 1815- .
13. +Writers.+
CHAPTER IV
+Sources+ 29
14. +Practice and Usage.+
15. +Precedent and Decisions.+
(_a_) Prize and Admiralty Courts.
(_b_) Domestic Courts.
(_c_) Courts of Arbitration.
16. +Treaties and State Papers.+
17. +Text Writers.+
18. +Diplomatic Papers.+
PART II
_PERSONS IN INTERNATIONAL LAW_
CHAPTER V
+States+ 39
19. +Definition.+
(_a_) Political.
(_b_) Sovereign.
20. +Nature.+
(_a_) Moral.
(_b_) Physical.
(_c_) Communal.
(_d_) External conditions.
21. +Recognition of New States.+
(_a_) _De facto_ existence.
(_b_) Circumstances of recognition.
(1) By division.
(2) By union.
(3) By admission of old states.
(4) By admission of former barbarous communities.
(5) Individual and collective recognition.
(_c_) Act of recognition.
(_d_) Premature recognition.
(_e_) Conditions.
(_f_) Recognition irrevocable.
(_g_) Consequences.
(1) The Recognizing state.
(2) The Recognized state.
(3) The Parent state.
(4) Other States.
CHAPTER VI
+Legal Persons having Qualified Status+ 50
22. +Members of Confederations and Other Unions.+
23. +Neutralized States.+
24. +Protectorates, Suzerainties.+
25. +Corporations.+
(_a_) Private.
(_b_) Exercising political powers.
26. +Individuals.+
27. +Insurgents.+
(_a_) Definition.
(_b_) Effect of admission of insurgency.
28. +Belligerents.+
(_a_) Definition.
(_b_) Conditions prior to recognition.
(_c_) Grounds of recognition.
(_d_) Who may recognize.
(_e_) Consequences.
(1) Recognition by a foreign state.
(2) Recognition by the parent state.
29. +Communities not fully Civilized.+
PART III
_INTERNATIONAL LAW OF PEACE_
CHAPTER VII
+General Rights and Obligations of States+ 67
30. +Existence.+
31. +Independence.+
32. +Equality.+
33. +Jurisdiction.+
34. +Property.+
35. +Intercourse.+
CHAPTER VIII
+Existence+ 71
36. +Application of the Right in General.+
37. +Extension of the Right to Subjects of the
State.+
CHAPTER IX
+Independence+ 74
38. +Manner of Exercise.+
39. +Balance of Power.+
40. +Monroe Doctrine.+
41. +Non-intervention.+
42. +Practice in Regard to Intervention.+
(_a_) For self-preservation.
(_b_) To prevent illegal acts.
(_c_) By general sanction.
(_d_) Other grounds.
(1) +Treaty stipulations.+
(2) +Balance of power.+
(3) +Humanity.+
(4) +Civil war.+
(5) +Financial.+
(_e_) Conclusion.
CHAPTER X
+Equality+ 88
43. +Equality in General.+
44. +Inequalities among States.+
(_a_) Court precedence.
(_b_) Matters of ceremonial.
(_c_) Weight of influence in affairs.
CHAPTER XI
+Jurisdiction+ 94
45. +Jurisdiction in General.+
46. +Territorial Domain and Jurisdiction.+
47. +Method of Acquisition.+
(_a_) Discovery.
(_b_) Occupation.
(_c_) Conquest.
(_d_) Cession.
(1) Transfer by gift.
(2) Transfer by exchange.
(3) Transfer by sale.
(4) Cession of jurisdiction.
(_e_) Prescription.
(_f_) Accretion.
48. +Qualified Jurisdiction.+
(_a_) Protectorates.
(_b_) Sphere of influence.
49. +Maritime and Fluvial Jurisdiction.+
50. +Rivers.+
(_a_) Which traverse only one state.
(_b_) Flowing through two or more states.
(_c_) Under jurisdiction of two states.
51. +The Navigation of Rivers.+
52. +Enclosed Waters.+
(_a_) Wholly enclosed.
(_b_) Gulfs, bays, estuaries.
(_c_) Straits: Danish Sounds, Dardanelles.
(_d_) Canals: Suez, Panama, Nicaraguan, Corinth,
Kiel.
53. +The Three-mile Limit.+
54. +Fisheries.+
(_a_) Deep sea.
(_b_) Canadian.
(_c_) Bering Sea.
55. +Vessels.+
(_a_) Classes.
(1) Public.
(2) Private.
(_b_) Nationality.
(_c_) Jurisdiction.
(1) Public.
(2) Private.
(3) Semi-public.
56. +Personal, General--Nationality.+
57. +Natural-born Subjects.+
58. +Foreign-born Subjects.+
59. +Acquired Nationality.+
(_a_) By marriage.
(_b_) By naturalization.
(_c_) By annexation of territory.
(_d_) Effect of naturalization.
(_e_) Incomplete naturalization.
60. +Jurisdiction over Aliens.+
(_a_) Over subjects abroad.
(1) Emigration laws.
(2) Recall of citizens.
(3) Penal jurisdiction.
(4) Protection of subjects.
(_b_) Over aliens within territory.
(1) Exclusion.
(2) Expulsion.
(3) Conditional admission.
(4) Settlement.
(5) Taxes.
(6) Sanitary and police jurisdiction.
(7) Penal jurisdiction.
(8) Maintenance of public order.
(9) Military service.
(10) Freedom of commerce.
(11) Holding property.
(12) Freedom of speech and worship.
(_c_) Passports.
61. +Exemptions from Jurisdiction--General.+
62. +Sovereigns.+
63. +State Officers.+
(_a_) Diplomatic agents.
(_b_) Consuls.
(_c_) Army.
(_d_) Navy.
64. +Special Exemptions.+
(_a_) In Oriental countries.
(1) Penal matters.
(2) Civil matters.
(_b_) In Egypt.
65. +Extradition.+
(_a_) Persons liable.
(_b_) Limitations.
(_c_) Conditions.
(_d_) Procedure.
66. +Servitudes.+
(_a_) International.
(_b_) General.
CHAPTER XII
+Property+ 148
67. +Property in General.+
68. +State Property in International Law.+
CHAPTER XIII
+Diplomacy and International Relations in Times of
Peace+ 150
69. +General Development.+
70. +Diplomatic Agents.+
(_a_) Historical.
(_b_) Rank.
(1) Diplomatic agents of first class.
(2) Envoys extraordinary.
(3) Ministers resident.
(4) Chargés d'affaires.
71. +Suite.+
(_a_) Official.
(_b_) Non-official.
72. +Who may send Diplomatic Agents.+
73. +Who may be sent.+
74. +Credentials.+
75. +Ceremonial.+
(_a_) General.
(_b_) Reception.
(_c_) Precedence and places of honor.
(_d_) Prerogatives.
76. +Functions.+
(_a_) Internal business.
(_b_) Conduct of negotiations.
(_c_) Relation to fellow-citizens.
(_d_) Reports to home government.
77. +Termination of Mission.+
(_a_) Through death of agent.
(_b_) In ordinary manner.
(_c_) Under strained relations.
(_d_) Ceremonial of departure.
78. +Immunities and Privileges.+
(_a_) Inviolability.
(_b_) Exterritoriality and exemptions.
(1) Criminal jurisdiction.
(2) Civil jurisdiction.
(3) Family and suite.
(4) House of ambassador.
(5) Asylum.
(6) Taxation.
(7) Religious worship.
79. +Diplomatic Practice of the United States.+
80. +Consuls.+
(_a_) Historical.
(_b_) Grades.
(_c_) Nomination and reception.
(_d_) Functions.
(_e_) Special powers in Eastern states.
(_f_) Privileges and immunities.
(_g_) Termination of consular office.
CHAPTER XIV
+Treaties+ 198
81. +Definition.+
82. +Other Forms of International Agreements.+
(_a_) Protocol.
(_b_) Declarations.
(_c_) Memoranda.
(_d_) Letters, notes.
(_e_) Sponsions.
(_f_) Cartels.
83. +The Negotiation of Treaties.+
(_a_) The agreement.
(_b_) The draft.
(_c_) Signs and seals.
(_d_) Ratification.
84. +The Validity of Treaties.+
(_a_) International capacity.
(_b_) Due authorization.
(_c_) Freedom of consent.
(_d_) Conformity to law.
85. +The Classification of Treaties.+
86. +The Interpretation of Treaties.+
87. +The Termination of Treaties.+
CHAPTER XV
+Amicable Settlement of Disputes and Non-hostile
Redress+ 217
88. +The Amicable Settlement of Disputes.+
(_a_) Diplomatic negotiation.
(_b_) Good offices.
(_c_) Conferences and congresses.
(_d_) Arbitration.
89. +Non-hostile Redress.+
90. +Retorsion.+
91. +Reprisals.+
92. +Embargo.+
93. +Pacific Blockade.+
PART IV
_INTERNATIONAL LAW OF WAR_
CHAPTER XVI
+War+ 229
94. +Definition.+
95. +Commencement.+
96. +Declaration.+
97. +Object.+
98. +General Effects.+
CHAPTER XVII
+Status of Persons in War+ 235
99. +Persons affected by War.+
100. +Combatants.+
101. +Non-combatants.+
CHAPTER XVIII
+Status of Property on Land+ 239
102. +Public Property of the Enemy.+
103. +Real Property of Enemy Subjects.+
104. +Personal Property of Enemy Subjects.+
CHAPTER XIX
+Status of Property at Sea+ 245
105. +Vessels.+
(_a_) Public vessels.
(_b_) Private vessels.
106. +Goods.+
107. +Submarine Telegraphic Cables.+
CHAPTER XX
+Conduct of Hostilities+ 250
108. +Belligerent Occupation.+
109. +Forbidden Methods.+
110. +Privateers.+
111. +Volunteer and Auxiliary Navy.+
112. +Capture and Ransom.+
113. +Postliminium.+
114. +Prisoners and their Treatment.+
(_a_) Quarter and retaliation.
(_b_) Employment.
(_c_) Exchange.
(_d_) Parole.
(_e_) Sick and wounded.
115. +Non-hostile Relations of Belligerents.+
(_a_) Flag of truce.
(_b_) Cartels.
(_c_) Passports, safe-conducts, safeguards.
(_d_) License to trade.
(_e_) Suspension of hostilities, truce, armistice.
(_f_) Capitulation.
CHAPTER XXI
+Termination of War+ 270
116. +Methods of Termination.+
117. +By Conquest.+
118. +By Cessation of Hostilities.+
119. +By a Treaty of Peace.+
PART V
_INTERNATIONAL LAW OF NEUTRALITY_
CHAPTER XXII
+Definition and History+ 277
120. +Definition.+
121. +Forms of Neutrality and of Neutralization.+
122. +History.+
123. +Declaration.+
124. +Divisions.+
CHAPTER XXIII
+Relations of Neutral States and Belligerent States+ 285
125. +General Principles of the Relations between
States.+
126. +Neutral Territorial Jurisdiction.+
127. +Regulation of Neutral Relations.+
(_a_) To belligerent troops.
(_b_) Asylum for vessels.
(_c_) Ordinary entry.
(_d_) Sojourn of vessels.
128. +No Direct Assistance by Neutral.+
(_a_) Military.
(_b_) Supplies.
(_c_) Loans.
(_d_) Enlistment.
129. +Positive Obligations of a Neutral State.+
CHAPTER XXIV
+Neutral Relations between States and Individuals+ 298
130. +Ordinary Commerce.+
(_a_) Destination.
(_b_) Ownership of goods.
(_c_) Nationality of vessel.
(_d_) Declaration of Paris.
131. +Contraband.+
132. +Penalty for Carrying Contraband.+
133. +Unneutral Service.+
134. +Visit and Search.+
(_a_) Right.
(_b_) Object.
(_c_) Method.
(_d_) Ship's papers.
(_e_) Grounds of seizure.
(_f_) Seizure.
135. +Convoy.+
136. +Blockade.+
(_a_) Historical.
(_b_) Conditions of existence.
(_c_) A war measure.
(_d_) Who can declare.
(_e_) Notification.
(_f_) Must be effective.
(_g_) Cessation.
137. +Violation of Blockade.+
138. +Continuous Voyages.+
139. +Prize and Prize Courts.+
+Appendices+ 331
+Index+ 447
BIBLIOGRAPHY
This list contains the titles of books most frequently cited in the
following pages:--
+Bluntschli, J. C.+ Le droit international. (Lardy), 1886.
+Bonfils.+ Droit International Public. (Fauchille), 1898.
+Calvo, Ch.+ Droit International. 5e éd. 6 vols. 1896.
+Cobbett, Pitt.+ Leading Cases and Opinions on International Law. 2d
ed, 1892.
+Dahlgren, J. A.+ Maritime International Law. 1877.
+Davis, G. B.+ The Elements of International Law. 1901.
+Despagnet.+ Droit International Public. 2d ed. 1899.
+Field, D. D.+ Outline of an International Code. 1876.
+Glass, H.+ Marine International Law. 1884.
+Glenn, E. F.+ Hand Book of International Law. 1895.
+Grotius, H.+ De Jure Belli ac Pacis. 3 vols. Whewell. 1853.
+Hall, W. E.+ International Law. 4th ed. 1895.
+Halleck, H. W.+ Elements of International Law. 3d ed. Baker. 1893.
+Heffter, A. G.+ Droit International. 4th ed. Geffeken. 1883.
+Hertslet, E.+ Map of Europe by Treaty, 1815-1891. 4 vols. 1875-1891.
+Holls, F. W.+ The Peace Conference at the Hague. 1900.
+Hosack, J.+ Rise and Growth of the Law of Nations. 1882.
+Kent, J.+ Commentaries on American Law. 14th ed.
+Lawrence, T. J.+ Principles of International Law. 2d ed. 1901.
+Lehr, E.+ Manuel des Agents Diplomatiques et Consulaires. 1888.
+Maine, H.+ International Law. 1888.
+Moore, J. B.+ Extradition and Interstate Rendition. 2 vols. 1891.
---- International Arbitrations. 6 vols. 1898.
+Ortolan, T.+ Diplomatie de la Mer. 4th ed. 2 vols. 1864.
+Perels, F.+ Manuel de Droit Maritime International par Arendt. 1884.
+Phillimore, R.+ International Law. 3d ed.
+Pomeroy, J. N.+ International Law in Times of Peace. 1886.
+Pradier-Fodéré, P.+ Trait de Droit International Public Européen et
Americain. 7 vols. 1885-1897.
+Rivier, A.+ Principes du Droit des Gens. 2 vols. 1896.
+Snow, F.+ Cases and Opinions on International Law. 1893.
---- American Diplomacy. 1894.
---- International Law. Naval War College. Prepared by Stockton. 2d
ed. 1898.
+Takahashi, S.+ Cases on International Law, Chino-Japanese. 1896.
+Treaties and Conventions+ between the United States and Other Powers,
1776-1887. 1887.
+Treaties in Force+, Compilation of United States. 1899.
+Vattel, E.+ Law of Nations. Trans. Ingraham. 1876.
+Walker, T. A.+ Science of International Law. 1893.
---- Manual of Public International Law. 1895.
---- History of the Law of Nations, vol. 1. 1899.
+Westlake, J.+ Chapters on Principles of International Law. 1894.
+Wharton, F.+ Digest of International Law. 3 vols. 2d ed. 1887.
+Wheaton, H.+ Elements of International Law. 1836.
---- Edited by Lawrence, W. B. 1863.
---- Edited by Dana, R. H. 1865.
---- Edited by Boyd, A. C. 2d ed.
+Woolsey, T. D.+ International Law. 6th ed. 1891.
ABBREVIATIONS OF CITATIONS
The following are the important abbreviations of citations:--
Ann. Cycl. Appleton's Annual Cyclopædia.
Br. & For. St. Pap. British and Foreign State Papers.
C. Rob. Chr. Robinson's English Admiralty Reports.
Brussels Code Conference at Brussels, 1874, on Military
Warfare.
Cr. Cranch's United States Reports.
Fed. Rep. Federal Reporter.
Gould & Tucker Gould and Tucker's Notes on the United
States Statutes.
Hall Hall's International Law (4th ed.).
Hertslet Hertslet Map of Europe by Treaty.
How. Howard United States Reports.
Instr. U. S. Armies. Instructions for the Government of Armies
of the United States in the Field.
Kent's Com. Kent's Commentaries (14th ed.).
Lawrence Lawrence's Principles of International Law.
Oxford Manual Manual of the Laws of War on Land, Oxford,
1880.
Pet. Peters's United States Reports.
Schuyler Schuyler's American Diplomacy.
Takahashi Takahashi's Cases during the Chino-Japanese
War.
Treaties of U. S. Treaties and Conventions of the United
States, 1776-1887.
U. S. For. Rel. United States Foreign Relations.
U. S. Naval War Code United States Naval War Code.
U. S. United States Reports.
U. S. Rev. Sts. United States Revised Statutes.
U. S. Sts. at Large United States Statutes at Large.
Wall. Wallace, United States Reports.
Whart. Wharton's International Law Digest.
Wheaton D. Wheaton's International Law (Dana's edition).
Wheat. Wheaton's United States Reports.
TABLE OF CASES CITED
Alabama, The, 297, 435.
Alcinous _v._ Nigreu, 238, 432.
Alexandra, The, 436.
Anna, The, 102.
Anne, The, 287.
Atalanta, The, 308, 443.
Bermuda, The, 322, 444.
Bolton _v._ Gladstone, 31, 430.
Brown _v._ United States, 241, 432.
Caroline, The, 71, 289, 434.
Chesapeake, The, 145.
Commercen, The, 305, 441.
Constitution, The, 138.
Exchange _v._ M'Faddon, 138.
Florida, The, 436.
Foster _v._ Neilson, 46.
Friendship, The, 442.
Gen. Armstrong, Case of the, 287.
Georgia, The, 436.
Grotius, The, 258, 433.
Harcourt _v._ Gaillard, 42, 430.
Huascar, The, 57.
In the Matter of Metzger, 142, 431.
Jones _v._ United States, 46, 431.
Jonge Tobias, The, 306, 441.
Juffrow Maria Schroeder, 320, 443.
Koszta, The Case of, 128, 129.
Kow-Shing, 310, 442.
La Manche, The, 327, 444.
Magnus, The, 441.
Maria, The, 310, 321, 444.
Marianna Flora, The, 310.
M'Ilvaine _v._ Coxe's Lessee, 42.
Montezuma, The, 57.
Nassau, The, 326.
Orozembo, The, 309, 442.
Pampero, The, 436.
People _v._ McLeod, 434.
Peterhoff, The, 303, 440.
Prize Cases, 231, 323.
Regina _v._ Keyn, 112.
Rothschild _v._ Queen of Portugal, 136.
Santa Cruz, The, 30, 433.
Santissima Trinidad, The, 69.
Sea Lion, The, 267, 433.
Shenandoah, The, 436.
Sir William Peel, The, 327.
Sophie, The, 273, 434.
Springbok, The, 327.
Staadt Embden, The, 306.
State of Mississippi _v._ Johnson, 46, 431.
Stephen Hart, The, 322, 443.
Swineherd, Case of the, 273.
Twee Gebroeders, The, 288, 435.
Two Friends, The, 261, 433.
United States _v._ Ambrose Light, 57.
United States _v._ Baker, 254, 432.
United States _v._ Rauscher, 31, 430.
Vavasseur _v._ Krupp, 135.
Venus, The, 266, 433.
Virginius, The, 71.
Wildenhus's Case, 120, 431.
Williams _v._ Suffolk Insurance Company, 46, 431.
William, The, 321.
PART I
GENERAL AND HISTORICAL
INTERNATIONAL LAW
CHAPTER I
DEFINITION AND GENERAL SCOPE
1. +Definition.+
(_a_) Philosophical: what ought to be.
(_b_) Scientific: what is.
2. +Divisions.+
(_a_) Public.
(_b_) Private.
3. +Scope.+
§ 1. Definition
International law may be considered from two points of view, viz.:--
(_a_) =From the philosophical point of view=, as setting forth the rules
and principles which _ought to be observed_ in interstate relations.
(_b_) =From the scientific point of view=, as setting forth the rules
and principles which _are_ generally observed in interstate relations.
Wheaton, D., 23: "International law, as understood among civilized
nations, may be defined as consisting of those rules of conduct which
reason deduces, as consonant to justice, from the nature of the
society existing among independent nations; with such definitions and
modifications as may be established by general consent." See also I.
Pradier-Fodéré, pp. 8, 41.
Early writers treated especially of those principles which _ought to be_
observed in interstate action, and the wealth of quotation and testimony
introduced to establish the validity of principles now considered almost
axiomatic, is overwhelming. In the days of Ayala, Brunus, Gentilis,
Grotius, and Pufendorf, all the argument possible was needed to bring
states to submit to these principles. The conditions and relations of
states have so changed that at the present time a body of fairly
established rules and principles _are_ observed in interstate action,
and form the subject-matter of international law.[1]
§ 2. Divisions
International law is usually divided into:--
(_a_) =Public international law=, which treats of the rules and
principles which are generally observed in interstate action, and
(_b_) =Private international law=, which treats of the rules and
principles which are observed in cases of conflict of jurisdiction in
regard to private rights. These cases are not properly international,
and a better term for this branch of knowledge is that given by Judge
Story, "The Conflict of Laws."[2]
International law, in the true sense, deals only with state affairs.
§ 3. Scope
International law is generally observed by civilized states; even some
of those states not fully open to western civilization profess to
observe its rules.[3] The expansion of commerce and trade, the
introduction of new and rapid means of communication, the diffusion of
knowledge through books and travel, the establishment of permanent
embassies, the making of many treaties containing the same general
provisions, and the whole movement of modern civilization toward
unifying the interests of states, has rapidly enlarged the range of
international action and the scope of international law. Civilized
states, so far as possible, observe the rules of international law in
their dealings with uncivilized communities which have not yet attained
to statehood. International law covers all the relations into which
civilized states may come, both peaceful and hostile. In general, it
should not extend its scope so as to interfere with domestic affairs or
to limit domestic jurisdiction, though it does often limit the economic
and commercial action of a given state, and determine to some extent its
policy.
CHAPTER II
NATURE
4. +Early Terminology.+
(_a_) _Jus naturale._
(_b_) _Jus gentium._
(_c_) Other terms.
5. +Historical Bases.+
6. +Ethical Bases.+
7. +Jural Bases.+
(_a_) Roman law.
(_b_) Canon law.
(_c_) Common law.
(_d_) Equity.
(_e_) Admiralty law.
8. +International Law and Statute Law.+
9. +How far is International Law entitled to be called Law?+
§ 4. Early Terminology
The conception of those rules and principles of which international law
treats has varied greatly with periods, with conditions, and with
writers.
The early terminology indicates the vagueness of the conceptions of the
principles governing conduct of man toward his fellows.
(_a_) =Jus naturale= is defined broadly by Ulpian[4] as "the law which
nature has taught all living creatures, so as to be common to men and
beasts." Grotius also uses this term, defining it as "the dictate of
right reason, indicating that any act from its agreement or disagreement
with rational nature has in it moral turpitude or moral necessity, and
consequently such act is either forbidden or enjoined by God, the author
of nature."[5] Lieber says, "The law of nature, or natural law ... is
the law, the body of rights, which we deduce from the essential nature
of man."[6] The discussion of _jus naturale_ has been carried on from an
early period,[7] covering many portions of the field of modern
international law, and making possible the broadening and strengthening
of its foundation.
(_b_) =Jus gentium=, according to Justinian, is "that which natural
reason has established among all men, that which all peoples uniformly
regard."[8] "_Jus gentium_ is common to the whole human kind."[9] This
idea of a body of law common to all men assumed a different meaning when
states multiplied and writer after writer redefined and qualified its
meaning. _Jus gentium_ became the subject of many controversies.[10]
Among the qualifying terms were "internal," "necessary," "natural,"
"positive."
(_c_) =Other terms= were used to name the field or portions of the field
of modern international law. _Jus fetiale_ applied particularly to the
declaration of war and sanction of treaties.[11] _Jus inter gentes_ was
used by Zouch in 1650 to name the real field of international law. _Law
of nations_ was the term commonly used in England till the days of
Bentham; since that time the term _international law_, which he adopted,
has steadily grown in favor, till almost universal in the English
language.[12]
The change in terminology shows in a measure the growth in demarking the
field of international law.
§ 5. Historical Bases
International law in its beginning may have been largely determined by
abstract reasoning upon what _ought to be_ the principles and rules
governing interstate relations; but in its later development, as it has
become more and more recognized as a safe guide for the conduct of
states in their relations with other states, not abstract reasoning as
to what _ought to be_, but direct investigation of what _is_, has
determined the character of the rules and principles. What _is_ state
practice in a given case can only be determined by reference to history.
From the history of cases and practice, the general rule and principle
is derived, and modern international law thus comes to rest largely upon
historical bases.
§ 6. Ethical Bases
While international law now looks to history as one of its most
important bases, it must nevertheless accord somewhat closely with the
ethical standards of the time, and will tend to approximate to them. The
growth of the body of law upon slavery has rested on both ethical and
historical bases. International law is principally an output of
civilized nations having certain ethical standards. Such ancient
practices as the giving of hostages for the fulfillment of treaty
stipulations have disappeared, and ethical bases are generally
recognized in determining practice.[13] While these ethical bases should
be recognized, international law cannot be deduced from the subtle
reasoning upon the abstract ideas of what it _ought to be_. Modern
international law treats mainly of what _is_, but what _is_ in
international relations is always conditioned by a recognition of what
_ought to be_.
§ 7. Jural Bases
The nature of modern international law is in part due to the jural bases
upon which it rests.
(_a_) =The Roman law= was the most potent influence in determining the
early development, particularly in respect to dominion and acquisition
of territory. International law gained a certain dignity and weight from
its relation to the Roman law, the most potent legal institution in
history.
(_b_) =The canon law=, as the law of the ecclesiastics who were supposed
to recognize the broadest principles of human unity, gave an ethical
element to early international law. Gregory IX. (1227-1241), the
Justinian of the Church, reduced canon law to a code. The abstract
reasoning upon its principles among the clergy and counsellors of kings,
made it a part of the mental stock of the early text writers, while it
strongly influenced state practice. The canon law gave a
quasi-religious sanction to its observance, and in so far as
international law embodied its principles, gave the same sanction to the
observance of international equity. This may be seen in the religious
formula in treaties, even to a late date.
(_c_) =The common law=, itself international as derived from three
systems, according to tradition, by Edward the Confessor, and
subsequently modified by custom, furnished a practical element in
determining the nature of international law.
(_d_) =Equity= promoted the development of the recognition of principles
in international law. In the early days of England cases arose which
were not within the cognizance of the common law judges. The petitioner
having applied to the king in Parliament or in council for justice, his
petition was referred to the chancellor, the keeper of the king's
conscience, who, after a hearing, required that what was equitable
should be done. Thus the simpler matters came before the common law
court, the more difficult before the equity court. Even now a jury
largely deals with questions relating to the recovery of money, and
their decision is a _verdict_, which is followed by a judgment. In an
equity court, the more difficult problems of business and commerce are
considered; and the decision of the judge is a _decree_.
(_e_) =Admiralty law= may be defined as in one sense the law of the sea.
Anterior to and during the Middle Ages, the maritime relations of states
gave rise to sea laws, many of which are to-day well-recognized
principles of international law.
§ 8. International and Statute Law
Statute law proceeds from legislative enactment, and is enforced by the
power of the enacting state within its jurisdiction.
International law, on the other hand, is not formally enacted, and has
no tribunal for its enforcement. Resort may be had to war in case of
infraction of its rules, but the issue may rather depend upon the
relative powers of the two states and not upon the justice of the cause.
§ 9. How far is International Law entitled to be called Law?
If law is defined, as by Austin, "A rule laid down for the guidance of
an intelligent being by an intelligent being having power over him,"[14]
it would not be possible to include under it international law without
undue liberality in the interpretation of the language.
In form, however, law is a body of rules and principles in accord with
which phenomena take place. If these rules are not followed as
enunciated by the state in case of statute law, certain penalties are
inflicted. The nature of the penalty must to a great extent depend on
the source. International law is the body of rules and principles, in
accord with which, interstate phenomena take place. Violations of
international law do not meet the same penalties as those of statute
law, as they do not have the same source nor an established tribunal for
their enforcement. International law is, however, in form law and in
practice so regarded.[15]
CHAPTER III
HISTORICAL DEVELOPMENT
10. +Early Period.+
(_a_) Greece.
(_b_) Rome.
11. +Middle Period.+
(_a_) Roman Empire.
(_b_) The Church.
(_c_) Feudalism.
(_d_) Crusades.
(_e_) Chivalry.
(_f_) Commerce and Sea Laws.
(_g_) Consulates.
(_h_) Discovery of America.
(_i_) Conclusion.
12. +Modern Period from 1648.+
(_a_) 1648-1713.
(_b_) 1713-1815.
(_c_) 1815- .
13. +Writers.+
§ 10. Early Period
The history of the development of those rules and principles now
considered in international law naturally falls into three periods,
early, middle and modern.[16]
The =early period= dates from the time of the development of early
European civilization, and extends to the beginning of the Christian
Era. During this period the germs of the present system appear.[17]
(_a_) =Greece.= The dispersion of the Greeks in many colonies which
became practically independent communities gave rise to systems of
intercourse involving the recognition of general obligations.[18] The
maritime law of Rhodes is an instance of the general acceptance of
common principles. The main body of this law has not survived, yet the
fragment appearing in the Digest, _De Lege Rhodia de Jactu_,[19] is,
after more than two thousand years, the basis of the present doctrine of
jettison. It is reasonable to suppose that though the words of other
portions of the Rhodian law are lost, the principles may have entered
into formation of later compilations. The recognition by Greece of the
existence of other independent states, and the relations into which the
states entered, developed crude forms of international comity, as in the
sending and receiving of ambassadors[20] and the formation of
alliances.[21]
(_b_) =Rome.= Rome made many contributions to the principles of
international law in the way of the extension of her own laws to wider
spheres, and in the attempt to adapt Roman laws to conditions in remote
territories. In this early period Rome may be said to have contributed
to the field of what is now considered private international law rather
than to that of public international law. This is evident in the laws in
regard to marriage, contract, property, etc. The dominance of Rome
impressed her laws on others, and extended the influence of those
principles which, from general practice, or conformity to accepted
standards, gained the name _Jus Gentium_.[22]
§ 11. Middle Period
The varied struggles of the middle period--from the beginning of the
Christian Era to the middle of the seventeenth century--had a decided
influence upon the body and form of international law.
(_a_) =Roman Empire.= The growth of the Roman Empire, as the single
world power and sole source of political authority, left small need of
international standards. The appeal in case of disagreement was not to
such standards, but to Cæsar. The idea of one common supremacy was
deep-rooted. Political assimilation followed the expansion of political
privileges.
(_b_) =The Church.= A similar unifying influence was found in the growth
of the Christian Church which knew no distinction--bond or free, Jew or
Gentile. Christianity, called to be the state religion early in the
fourth century, modeled its organization on that of the Roman Empire;
and from the sixth century, with the decay of the Empire, the Church
became the great power. The belief in the eternity and universality of
Roman dominion was strengthened by the Church, although materially
changed in its nature.[23] Whatever the inconsistencies in Church and
State during the first ten centuries of our era, there had grown up the
idea, of great importance for international law, that there could be a
ground upon which all might meet, a belief which all might accept, both
in regard to political and religious organization. For five hundred
years before the days of Boniface VIII. (1294-1303), the holder of the
papal office had from time to time acted as an international judge.
The canon law, codified by Gregory IX. (1227-1241), was planned to rival
the Corpus Juris Civilis. The Popes, with varying degrees of success,
tried to render such international justice as the discordant elements
introduced by the growth of cities and rise of nationalities
demanded.[24] From the Council of Constance (1414-1418), which was a
recognition of the fact of nationality, and at which the emperor for the
last time appeared as the great international head, the decline of both
the Church and the Empire as direct international factors was rapid.
(_c_) =Feudalism.= By the eleventh century feudalism had enmeshed both
the temporal and spiritual authorities. This system, closely related to
the possession of land and gradation of classes, discouraged the
development of the ideas of equality of state powers necessary for the
development of international law, though it did emphasize the doctrine
of sovereignty as based on land in distinction from the personal
sovereignty of earlier days.
(_d_) =The Crusades= (1096-1270), uniting Christendom against the
Saracen for foreign intervention, awakening Europe to a new
civilization, expanding the study and practice of the Roman law which
feudal courts had checked, weakening many feudal overlords,
enfranchising towns, freeing the third estate, spreading the use of the
Latin language, enlarging and diversifying commerce, teaching the
possible unity of national interests, led to the apprehension of a
broader basis in comity which made the growth of interstate relations
more rapid.[25]
(_e_) =Chivalry.= The code of chivalry and the respect for honor which
it enjoined introduced a basis of equable dealing which on account of
the international character of the orders of chivalry reacted upon
state practice throughout Christian Europe.
(_f_) =Commerce and Sea Laws.= The expansion of commerce, especially
maritime, emphasized the duties and rights of nations. The old Rhodian
laws of commerce, which had in part been incorporated in and expanded by
the Roman code during the days before the overthrow of the Empire,
formed a basis for maritime intercourse. From the fall of the Empire to
the Crusades commerce was attended with great dangers from pirates on
the sea and from exactions in the port. The so-called _Amalfitan Tables_
seem to have been the sea law of the latter part of the eleventh
century. The much more detailed _Consolato del Mare_ of doubtful origin
between the twelfth and fourteenth centuries derived some of its
principles from the eleventh-century code. The _Consolato_ was
recognized by maritime powers as generally binding, and made possible
wide commercial intercourse. Many of its principles have stood to the
present day, though touching such questions as the mutual rights of
neutrals and belligerents on the sea in time of war.[26] As the
_Consolato_ formed the code of Southern Europe, the _Laws of Oleron_
formed the maritime code for Western Europe, and were compiled the
latter part of the twelfth century, whether by Richard I. or by his
mother Queen Eleanor is a disputed question. These laws are based in
large measure on the other existing systems. The _Laws of Wisby_, dating
from about 1288, supplemented the _Laws of Oleron_, and formed the
fundamental law of maritime courts of the Baltic nations.[27] The
Hanseatic League in 1591[28] compiled a system of marine law, _Jus
Hanseaticum Maritimum_, based on the codes of Western and Northern
Europe. The maritime law of Europe was practically unchanged for nearly
a hundred years, when systematized in 1673 under Louis XIV. Similar to
the maritime codes are the "Customs of Amsterdam," the "Laws of
Antwerp," and the "Guidon de la Mar."[29]
(_g_) =Consulates.= Closely connected with the development of maritime
law during the latter part of the middle period was the establishment of
the office of consul. The consuls, under the title of _consules
marinariorum et mercatorum_, resident in foreign countries, assisted by
advice and information the merchants of their own countries, and
endeavored to secure to their countrymen such rights and privileges as
possible. These seem to have been sent by Pisa early in the eleventh
century, and were for some time mainly sent by the Mediterranean
countries to the East.
(_h_) =The discovery of America= marked a new epoch in territorial and
mercantile expansion, and introduced new problems among those handed
down from an age of political chaos.
(_i_) =Conclusion.= The middle period, with all its inconsistencies in
theory and practice, had nevertheless taught men some lessons. The
world-empire of Rome showed a common political sovereignty by which the
acts of remote territories might be regulated; the world-religion of
the Church of the middle period added the idea of a common bond of
humanity. Both of these conceptions imbued men's minds with the
possibility of a unity, but a unity in which all other powers should be
subordinate to a single power, and not a unity of several sovereign
powers acting on established principles. The feudal system emphasized
the territorial basis of sovereignty. The Crusades gave to the Christian
peoples of Europe a knowledge and tolerance of each other which the
honor of the code of chivalry made more beneficent, while the growth of
the free cities opposed the dominance of classes feudal or religious.
The fluctuations and uncertainties in theory and practice of
international intercourse, both in peace and war, made men ready to hear
the voice of Grotius (1583-1645), whose work marks the beginning of the
modern period.
§ 12. Modern Period (1648- )
The modern period may be divided into three epochs for International
Law: (_a_) from the Peace of Westphalia, 1648, to the Peace of Utrecht,
1713; (_b_) from the Peace of Utrecht, 1713, to the Congress of Vienna,
1815; (_c_) from the Congress of Vienna, 1815, to the present time.
(_a_) =1648-1713.= It became evident at the termination of the Thirty
Years' War in 1648 that the old doctrines of world-empire, whether of
Pope or Emperor, could no longer be sustained. The provisions of the
Peace of Westphalia, while not creating a code to govern international
relations, did give legal recognition to the existence of such
conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz.:
sovereign states, equal regardless of area and power. The decree of
James I., in 1604, establishing a neutral zone by "a straight line drawn
from one point to another about the realm of England," in which neither
of the parties to the war between the United Provinces and Spain should
carry on hostilities, formed a precedent in maritime jurisdiction, even
though the decree was but imperfectly enforced. This early part of the
modern period was especially fruitful in treatises and discussions upon
the nature of international law, and upon what it _ought to be_, and
also upon the law of the sea particularly Grotius's "Mare Liberum,"
1609, Selden's "Mare Clausum," 1635, and Bynkershoek's "De Dominio
Maris," 1702.[30] During this period the public law was diligently
studied, the right of legation became generally recognized, French
gradually took the place of Latin in international intercourse,[31] with
a corresponding modern spirit in the practice, though the discussions
were usually ponderous and abstract, the idea of the balance of power
flourished and formed a subject of frequent controversy, the principle
of intervention upon political grounds was propounded and acknowledged,
and the opinions of the great publicists, such as Grotius, gained great
weight and were widely studied. The general principles of neutral trade,
including "free ships, free goods," were laid down, prize laws and
provisions as to contraband were adopted, numerous treaties of commerce
gave witness of the growth of international intercourse, and both men
and states became somewhat more tolerant.
(_b_) =1713-1815.= The Treaty of Utrecht (1713) contained recognition of
many of the principles which had become fairly well accepted during the
years since 1648. There are evidences of the growing influences of the
New World upon the policy of the Old; the American fisheries question
appears; the international regulations in regard to commerce are
multiplied, and the central subject of the preamble is the subject of
"the balance of power."[32] For many years the question of succession to
the various seats of royal and princely power formed the chief subject
of international discussion. During the eighteenth century the steady
growth of England as a maritime power and the European complications
over trans-Atlantic possessions brought new international issues. The
basis of modern territorial acquisition was found in the Roman law of
_occupatio_, and its laws of river boundaries were almost exactly
followed.[33] From the Treaty of Aix-la-Chapelle (1748), in which former
treaties were generally renewed, to 1815, the growth and observation of
the principles of international law was spasmodic. By the Peace of Paris
and by the Peace of Hubertsburg (1763), many questions of territorial
jurisdiction were settled. England, now become the dominant power in
North America, with greatly extended power in the East, impresses upon
international practice adherence to actual precedent rather than to
theoretically correct principles. At the same time in Central Europe
the conditions were ripe for that violation of international justice,
the partition of Poland in 1772, followed by the further partition in
1793 and 1795. The rights which the concert of nations was thought to
hold sacred were the ones most ruthlessly violated by the neighboring
powers. The American Revolution of 1776 and the French Revolution of
1789 introduced new principles. The "armed neutrality" of 1780,[34]
while maintaining the principle "free ships, free goods," made
impossible the converse, "enemy's ships, enemy's goods," which had been
held. Both the American and French Revolution made evident the necessity
of the development of the laws of neutrality hitherto greatly confused
and disregarded.[35] During the French Revolution it seemed that to
Great Britain alone could the states of Europe look for the practice of
the principles of international law. After the French Revolution it was
necessary to define _just intervention_ that Europe might not be again
convulsed. It became clear that the state was an entity and distinct
from the person of its king. No longer could the king of France or of
any European state say "L'état c'est moi." Even though personal
selfishness of monarchs might pervade the Congress of Vienna, the spirit
of nationality could not long be restrained. The period from 1713 to
1815 had tested the general principles propounded during the seventeenth
century, and it was found necessary to expand their interpretation,
while the growth of commerce and intercourse made necessary new laws of
neutrality and new principles of comity, such as were in part
forthcoming in the early days of the nineteenth century, as seen in the
resistance to the right of search, the declaration against African slave
trade, establishment of freedom of river navigation, improved
regulations in regard to trade in time of war, neutralization of
Switzerland, placing of protectorate over Ionian Islands, and the
determination of precedence and dignities of the various diplomatic
agents and the states which they represented. By the year 1815 the
theory of the seventeenth century had been severely tested by the
practice of the eighteenth century, and it remained for the nineteenth
century to profit by the two centuries of modern political experience.
(_c_) =1815 to date.= The Peace of Westphalia (1648), the Peace of
Utrecht (1713), and the Treaty of Vienna (1815) are the three celebrated
cases of combined action of modern European powers. The "balance of
power" idea had gradually been supplemented by "the concert of the
powers" idea, which would not merely maintain the relative _status quo_
of "the balance," but might enter upon a positive policy of concerted
action. The "Holy Alliance" of 1815, to promote "Justice, Christian
Charity, and Peace,"[36] was first broken by its originators. There was
a strong feeling that the principles of international law should be
followed, however, and this, the "Declaration of the Five Cabinets,"
Nov. 15, 1818, distinctly avowed in "their invariable resolution, never
to depart, either among themselves, or in their relations with other
states, from the strictest observation of the principles of the Rights
of Nations."[37] The attempt to extend the principle of intervention in
favor of maintaining the various sovereigns on their thrones, and in
suppression of internal revolutionary disturbances by foreign force was
made in the "Circular of the Three Powers," Dec 8, 1820.[38] Under many
forms intervention has been one of the great questions of the nineteenth
century, and the growing proximity and multiplication of relations of
states during the century has added many complications.[39] The Grecian
War of Independence (1821-1829) brought the new principle of pacific
blockade (1827), and at its conclusion the powers guaranteed the
sovereignty of Greece. The subjects of right of search, foreign
enlistment, Monroe Doctrine, freedom of commerce and navigation,
expatriation, extradition, neutralized territory, ship canals, consular
rights, neutral rights and duties, arbitration, reciprocity, mixed
courts, international postage, weights and measures, trade-marks and
copyright, rules of war, sub-marine cables, and sphere of influence,
which have come to the front during the nineteenth century, indicate in
a measure the subject-matter of international negotiation. Throughout
the period since 1815 the tendency has been rather to regard what _is_
the international practice.
§ 13. Writers
Among the writers upon subjects connected with international law before
the days of Grotius the most prominent are Victoria ( -1550?), Ayala
(1548-1584), Suarez (1548-1617), and Gentilis (1551-1611). While in
many respects their contributions to the science were valuable, the work
of Grotius stands out preëminent among all the early writers.
=Hugo Grotius= (b. Delft, Apr. 10, 1583; d. Rostock, Aug. 28, 1645).
Scholar; jurist; statesman; good family; precocious; prodigious learning
in many branches; at fifteen with special embassy to France; at twenty
historiographer to the United Provinces; at twenty-five advocate-general
of the fisc of Holland and Zealand; married next year Mary van
Riegesberg, a worthy help-meet; at thirty pensionary of city of
Rotterdam; same year one of deputation to England to settle maritime
disputes. Grotius took active part in religious disputes, on which
account in 1619 he was sentenced to imprisonment for life and
confiscation of his property. Two years later, through cleverness of his
wife, he escaped to Paris. Here days of adversity and study. In 1625 "De
Jure Belli ac Pacis" published; brought no profit but immediate and
lasting fame. Disappointed in his hope to return to permanent residence
in Holland; is appointed Swedish ambassador at French Court, 1635-1645.
Declines further service in 1645. Retires, honored in all lands;
shipwrecked; died at Rostock, Aug. 28, 1645.[40]
Grotius's "De Jure Belli ac Pacis" (1625). An attempt to bring into a
systematic treatment those principles which have since become known as
international law. Touches upon many other subjects; rich in quotations;
broad philosophical basis gives it permanent value. Conditions in Europe
at time of appearance of work gave it immediate and powerful influence
in determining course of modern political history. Upon the foundation
laid by Grotius the modern science has been largely built. Of course,
many of the principles expounded by Grotius are no longer applicable,
and many new principles, as the doctrine of neutrality, have gained
recognition.
=Zouch= (=1590-1660=), the successor of Gentilis, as professor of Roman
Law at Oxford, while a follower of Grotius in matter and method,
deserves mention for his distinction between _jus gentium_ and that law
to which he gives the name _jus inter gentes_, in the French translation
called _Droit entre les Gens_, later _Droit International_, and in the
English, Law of Nations, and since the latter part of the eighteenth
century when Bentham led the way, International Law.
=Pufendorf= (=1632-1694=) in his voluminous works in general follows
Grotius.
Toward the end of the seventeenth century a school opposing the earlier
writers arose. This school, headed by =Rachel= (=1628-1691=), assigned a
stronger authority to the principles of international law, and gave more
attention to usage, whether tacitly admitted or plainly expressed, and
to compacts.
=Bynkershoek= (=1673-1743=), limiting his work to particular subjects in
international law, gave to the eighteenth century several authoritative
treatises which are justly regarded as of the highest worth. He
especially defined the laws of maritime commerce between neutrals and
belligerents (_De Dominio Maris_, 1702), gave an outline of
ambassadorial rights and privileges (_De Foro Legatorum_, 1721), besides
contributing to a much clearer understanding of the general subject of
international law.
=Wolfe= (=1679-1754=) published in 1749 his "Jus Gentium." This bases
international law on a sort of state universal, _civitas maxima_, made
up of the states of the world in their capacity as voluntarily
recognizing a natural law.
=Vattel= (=1714-1767=), an ardent admirer of Wolf, published in 1758 his
"Law of Nations," which he based upon the work of Wolf. This work of
Vattel was clear and logical and gained an immediate and wide influence,
far surpassing that of his master.
=Moser= (=1701-1786=) brings into the science the positive method which
Rachel had hinted at in his work a hundred years before. He narrows his
view to the principles underlying the cases of his own day, and would
build the science on recent precedents. The method thus introduced has
strongly influenced succeeding writers.
=G. F. de Martens= (=1756-1801=) combines in a measure the method of
Vattel with the positive method of Moser in his "Précis du Droit des
Gens Moderne de l'Europe," 1789. This treatise has been a recognized
standard.
Many special and general works appeared in the latter years of the
eighteenth and early years of the nineteenth century.
=Wheaton= (=1785-1848=), the foremost American writer on international
law, published in 1836 his "Elements of International Law," which has
long been recognized as a standard throughout the world.
Beside the great work of Wheaton justly stands Phillimore's
"Commentaries upon International Law."
Many other works of highest merit have appeared during the latter half
of the nineteenth century, such as those of Bluntschli, Travers Twiss,
Calvo, Wharton, Pradier-Fodéré, and of the eminent authority, the late
William Edward Hall. There are also many living writers whose
contributions are of greatest worth.[41]
CHAPTER IV
SOURCES
14. +Practice and Usage.+
15. +Precedent and Decisions.+
(_a_) Prize and Admiralty courts.
(_b_) Domestic courts.
(_c_) Courts of arbitration.
16. +Treaties and State Papers.+
17. +Text Writers.+
18. +Diplomatic Papers.+
§ 14. Practice and Usage
If for a time international intercourse follows certain methods, these
methods are regarded as binding in later intercourse, and departure from
this procedure is held a violation of international right. That
collection of customs known as "The Law Merchant" is an example of a
source of this class. Of this it has been said, "Gradually, the usages
of merchants hardened into a cosmopolitan law, often at positive
variance with the principles of local law, but none the less acquiesced
in for mercantile transactions, and enforced by tribunals of commanding
eminence and world-wide reputation, such as the courts of the Hanseatic
League and the _Parloir aux Bourgeois_ at Paris."[42]
Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of
Admiralty have a law and a usage on which they proceed, from habit and
ancient practice."[43]
§ 15. Precedent and Decisions
The domestic courts of those states within the family of nations, may by
their decisions furnish precedents which become the basis of
international practice.
(_a_) =Prize and Admiralty courts= decisions form in themselves a large
body of law. Jurisdiction in admiralty and maritime causes in the United
States rests in the District Courts, the Circuit Courts, and the Supreme
Court. The District Courts have original jurisdiction in civil causes of
admiralty and concurrent jurisdiction with the Circuit and State Courts
in suit of an alien, because of violation of international law or treaty
of United States. The District Court also has full prize court powers.
Appeals from prize courts decisions go directly to the Supreme Court for
final judgment; appeals from admiralty decisions go to the Circuit Court
for final judgment.[44] The prize courts of other powers vary in
jurisdiction, nature, and procedure. British and American courts rely
more particularly upon precedents, while the Continental courts follow
more distinctly the general principles laid down in codes and text
writers, and place less reliance upon previous interpretation of these
principles as shown in court decisions.[45] Whatever the method of the
prize court, its decision, if legally rendered, stands as valid in all
states.[46]
(_b_) The decisions of =domestic courts= upon such matters as
extradition,[47] diplomatic privileges, piracy, etc., tend to become a
source of international law. In the United States the Supreme Court has
original jurisdiction "in all cases affecting ambassadors, other public
ministers, and consuls."[48]
(_c_) The decisions of =courts of arbitration= and other mixed courts
are usually upon broad principles. Some of the principles involved may
become established precedents, yet the tendency to render a decision,
which by a compromise may be measurably acceptable to both parties, may
lessen the value of the decision as a precedent. As arbitration is of
necessity voluntary, there is generally a consensus upon certain points,
even though the decision rendered may not become a precedent. The growth
of the practice of arbitration of disputes is an indication of the
general recognition of mutual confidence between states. The principles
upon which the court of arbitration bases its decision, rather than the
decision itself, furnish material valuable for international law.
§ 16. Treaties and State Papers
Treaties and state papers of whatever form[49] indicate the state of
opinion, at a given time, in regard to the matters of which they speak.
Since they are binding upon the parties to them, treaties may be
regarded as evidence of what the states, bound by their terms, accept as
law. When the same terms are generally accepted among nations, treaties
become a valuable evidence of concrete facts of practice and proper
sources of international law. The principles may be so well established
by successive treaties as to need no further treaty specification.
Treaties and state papers vary greatly in value as sources of
international law, however.
(_a_) Treaties and state papers may lay down new rules or outline the
operation of old rules. As instances of those laying down new rules may
be taken the Clayton-Bulwer Treaty of April 19, 1850, the convention for
the protection of Submarine Cables, March 14, 1884, the Geneva
Convention of 1864; of those outlining and determining the operation of
old rules, there are many instances, the most numerous in the treaties
in regard to maritime affairs and consuls.
(_b_) Treaties and state papers may enunciate established rules as
understood by the parties to the treaty. The Declaration of the
Conference of London, Jan. 17, 1871, to which the major European states
were parties, announces that the signatory powers "recognize that it is
an essential principle of the Law of Nations that no Power can liberate
itself from the engagements of a Treaty, nor modify the stipulations
thereof, unless with the consent of the Contracting Powers by means of
an amicable agreement."[50]
(_c_) Treaties and state papers may agree as to rules which shall be
held as binding upon the parties to the treaty or paper. The
Declaration of Paris, 1856, agreed as to certain principles and rules of
maritime international law, which should be held as binding the
signatory powers or those later agreeing to its provisions. This
Declaration may be held as generally binding. The United States, by
Proclamation of April 26, 1898, announced its adherence to the
principles of the Declaration, and during the same year Spain acquiesced
in its principles.
(_d_) Most treaties and state papers, however, deal with matters of
interstate politics, and are not in any sense sources of international
law. They are in most cases little more than interstate compacts.
§ 17. Text Writers
During the seventeenth and the first half of the eighteenth century, the
writings of the great publicists were regarded as the highest source of
authority upon matters now in the domain of international law. These
writings not only laid down the principles which should govern cases
similar to those which had arisen, but from the broad basis given the
law of nations, deduced the principles for such cases as might arise.
This latter method was especially common among the early writers, such
as Victoria and Suarez in the sixteenth century. The philosophical
school, from Grotius to the middle of the eighteenth century, continued
to propound the principles which should govern in supposed cases, should
they ever actually arise. Statesmen looked to these treatises as
authoritative sources. The prolific Moser, in the middle of the
eighteenth century, made the historical method more prominent by giving
less attention to the natural law, and by founding his system on usage
and treaties. Bynkershoek (1673-1763) had anticipated him in this method
in special lines, but Moser extended the system and made it most ample.
Succeeding writers mingled the two systems, inclining to the one or the
other. In the early days of the modern period, the writers upon the law
of nations, outlined the course which states should pursue in their
relations to one another. In the later days of the modern period, the
writers upon the law of nations, while sometimes discussing problems
before they arise, in general attempt to expound the rules and
principles which have entered already into interstate action. The works
of the text writers, from Grotius to the present, must be regarded as
sources of highest value.
§ 18. Diplomatic Papers
The diplomatic papers, as distinct from the state papers to which more
than one state becomes a party, are simply papers issued by a state for
the guidance of its own representatives in international intercourse.
The papers are sometimes named state papers or included among the papers
to which other states are parties,--in the United States, in the series
known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations"
since 1870; and in Great Britain in the "British and Foreign State
Papers."
These papers, showing the opinions of various states from time to time
upon certain subjects which may not come up for formal state action,
afford a valuable source of information upon the attitude of states
toward questions still formally unsettled. The simple expression to
state agents in the way of instructions or information as to the
position of the state on a given matter may, if continued and long
accepted, give to the principle involved the force of international
sanction. This was almost the case in the so-called Monroe Doctrine. In
these papers may often be found an indication of the line which the
principles of international law will subsequently follow and a general
consensus by several states in diplomatic instructions may be considered
strong evidence of what the law is on a given point.
PART II
PERSONS IN INTERNATIONAL LAW
CHAPTER V
STATES
19. +Definition.+
(_a_) Political.
(_b_) Sovereign.
20. +Nature.+
(_a_) Moral.
(_b_) Physical.
(_c_) Communal.
(_d_) External conditions.
21. +Recognition of New States.+
(_a_) _De facto_ existence.
(_b_) Circumstances of recognition.
(1) By division.
(2) By union.
(3) By admission of old states.
(4) By admission of former barbarous communities.
(5) Individual and collective recognition.
(_c_) Act of recognition.
(_d_) Premature recognition.
(_e_) Conditions.
(_f_) Recognition irrevocable.
(_g_) Consequences.
(1) The recognizing state.
(2) The recognized state.
(3) The parent state.
(4) Other states.
§ 19. Definition
A State is a sovereign political unity. It is of the relations of states
that public international law mainly treats. From the nature of its
subject-matter it is a juridical, historical, and philosophical
science.[51] These sovereign political unities may vary greatly. The
unity however
(_a_) Must be =political=, _i.e._ organized for public ends as
understood in the family of nations and not for private ends as in the
case of a commercial company, a band of pirates, or a religious
organization.
(_b_) Must possess =sovereignty=, _i.e._ supreme political power beyond
and above which there is no political power. It is not inconsistent with
sovereignty, that a state should voluntarily take upon itself
obligations to other states, even though the obligations be assumed
under stress of war, or fear of evil.
§ 20. Nature
From the nature of the state as a sovereign political unity it must be
self-sufficient, and certain conditions are therefore generally
recognized as necessary for its existence from the standpoint of
international law.[52]
(_a_) =Moral.= In order that a state may be regarded as within the
"family of nations," and within the pale of international Law, it must
recognize the rights of other states and acquiesce in its obligations
toward them. This is considered a moral condition of state existence.
(_b_) =Physical.= A state must also possess those physical resources
which enable it to exist as territory, etc.
(_c_) =Communal.= A state must possess a body of men so related as to
warrant the belief in the continued existence of the unity. Each state
may be its own judge as to the time when these relations are established
in a given body of men, and the recognition of a new state is fitting.
That such conditions are recognized as prerequisites of state existence
from the point of view of international law is not due to the essential
nature of the state, but rather to the course of development of
international law; as Hall says, "The degree to which the doctrines of
international law are based upon the possession of land must in the main
be attributed to the association of rights of sovereignty or supreme
control over human beings with that of territorial property in the minds
of jurists at the period when the foundations of international law were
being laid."[53]
(_d_) =External Conditions.= The external relationship of the state
rather than the internal nature is the subject of consideration in
international law. For local law a community may enter upon state
existence long before this existence is recognized by other nations, as
in the case of Switzerland before 1648. Until recognition by other
states of its existence becomes general, a new state cannot acquire full
status in international law; and this recognition is conditioned by the
policy of the recognizing states.
§ 21. Recognition of New States
(_a_) =State existence de facto= is not a question of international law
but depends upon the existence of a sovereign political unity with the
attributes which necessarily appertain to it. This _de facto_ existence
is not dependent upon the will of any other state or states.[54] The
entrance of the state into the international statehood, however, depends
entirely upon the recognition by those states already within this
circle. Whatever advantages membership in this circle may confer, and
whatever duties it may impose, do not fall upon the new state until its
existence is generally recognized by the states already within the
international circle. These advantages and duties, as between the
recognizing and recognized state, immediately follow recognition but do
not necessarily extend to other states than those actually party to the
recognition. The basis of this family of nations or international circle
which admits other states to membership is historical, resting on the
polity of the older European states. These states, through the relations
into which they were brought by reason of proximity and intercourse,
developed among themselves a system of action in their mutual dealings;
and international law in its beginning proposed to set forth what this
system was and should be.[55] This family of states could not permit new
accessions to its membership unless these new states were properly
constituted to assume the mutual relationships, and as to the proper
qualifications for admission in each case, the states already within the
family claim and exercise the right to judge.
(_b_) =The circumstances of recognition vary.=
(1) The most numerous instances are in consequence of _division_ which
involves the recognition of the existence of more than one state within
the limits which had formerly been under a single jurisdiction. This may
be preceded by recognition of the belligerency of a revolted community
within the jurisdiction of an existing state, or may be preceded by
division of an existing state into two or more states.[56] In the first
case recognition is a question of national policy, in the second case
recognition is usually readily accorded.
(2) In modern times a new state has frequently been formed by the
_union_ of two or more existing states.[57] The recognition in such a
case usually follows immediately.
(3) A state _after existence for a period of years_ may be formally
admitted into the family of states. Japan, for centuries a _de facto_
state, was only recently fully admitted to international statehood.[58]
Turkey, so long the dread of Europe, was formally received by the Treaty
of Paris, 1856.
(4) New states may be formed in _territory hitherto outside_ any _de
facto_ state jurisdiction, or within regions _hitherto considered
savage_. The examples of this class are mainly Africans, as in the
creation of the Congo Free State under the International Association of
the Congo. The United States recognized the Congo Free State by
acknowledging its flag, April 22, 1884. Liberia, originally established
by the American colonization Society in 1821, as a refuge for negroes
from America since 1847, has been recognized as an independent republic.
(5) From another point of view _recognition may be individual or
collective_. Recognition is individual when a state, independently of
any other, acknowledges the international statehood of a new state. This
was the method of recognition of the United States. Collective
recognition is by the concerted action of several states at the same
time. This has taken place most often in the admission of minor states
to the European family of states, as in the cases of Greece by the
powers at the Conference of London, 1880; Belgium, 1831; Montenegro,
Servia, and Roumania, at the Congress of Berlin, 1878. The Congo Free
State was acknowledged by the International Congo Conference at Berlin,
1885.
(_c_) =The act constituting recognition= of a new state may be formal,
as by a declaration, proclamation, treaty, sending and receiving
ambassadors, salute of flag, etc., or informal, by implication through
the grant of an _exequatur_ to a consul from the new state, or other act
which indicates an acknowledgment of international rights and
obligations.[59] It should be observed, however, that the appointment
by, or reception within, an existing state of agents to carry on
necessary intercourse between the existing state, and the aspirant for
recognition does not constitute recognition. It may be essential to have
relations with a community the statehood of which is not established,
because of commercial and other matters pertaining to the rights of the
citizens of the existing state whose interests, or who in person may be
within the jurisdiction of the unrecognized community.[60] The definite
act of recognition is, however, in accord with the decision of the
internal authority to which this function is by state law ascribed. As
foreign states usually take cognizance of the acts of the executive
department only, it is the common custom to consider recognition as an
executive function, or as a function residing in the head of the state.
In the United States, the President is for foreign affairs the head of
the state, and has the authority to recognize new states in any manner
other than by those acts, which by the Constitution require the advice
and consent of the Senate, as in the conclusion of treaties, and
appointment of ambassadors, other public ministers, and consuls.
President Grant, in his second annual message, Dec 5, 1870, said, "As
soon as I learned that a republic had been proclaimed at Paris, and that
the people of France had acquiesced in the change, the minister of the
United States was directed by telegraph to recognize it, and to tender
my congratulations and those of the people of the United States."[61] As
President Jackson had in his message in December, 1831, and in the
official correspondence with Buenos Ayres denied that country's
jurisdiction over the Falkland Islands, Justice McLean said, in
rendering his opinion in Williams _v._ Suffolk Insurance Company, "And
can there be any doubt that when the executive branch of the government
which is charged with our foreign relations, shall, in its
correspondence with foreign nations, assume a fact in regard to
sovereignty of any island or country, it is conclusive on the judicial
department? And in this view it is not material to inquire, nor is it
the province of the court to determine, whether the executive be right
or wrong. It is enough to know that in the exercise of his
constitutional functions he has decided the question."[62] "The
President is the executive department."[63]
(_d_) Recognition may be =premature= and the recognized community may
not be able to maintain its place in the international circle, or in
case of a struggle with another state may be defeated. The recognizing
state must assume in such case whatever consequences may come from its
misjudgment, and the parent state may justly question the right of the
recognizing state in its action, _e.g._ the recognition by France of the
United States in 1778 could justly be regarded by England as premature
and as a hostile act.
(_e_) The recognition of a new state is the recognition of the existence
of certain political =conditions=. This recognition of the state carries
with it the acknowledgment of sovereignty, independence, equality, etc.
It is an essential condition to just recognition that the new aspirant
possess these qualifications absolutely or potentially to a reasonable
extent.
(_f_) From its nature, =recognition is irrevocable= and absolute, unless
distinctly conditional. Even when conditional, if the recognition is
prior to the fulfillment of the condition by the recognized state, the
recognition cannot be withdrawn because of non-fulfillment of the
condition, but the recognizing state may resort to any other means which
would be admitted in international law as justifiable against any other
state failing to fulfill its obligations, _e.g._ suspension of
diplomatic relations, retorsion, reprisals, or even war.[64] In the case
of Belgium, the definition of its boundaries and establishing of
permanent neutralization was an act subsequent to the recognition of its
international statehood, and in case of violation of the treaty
stipulations, Belgium would not lose its position as a state, but would
be liable to such measures of reparation as the other parties to the
treaty might employ.[65] If recognition could be withdrawn, it would
work injustice to the recognized state, and to other states who, as
third parties, will not permit their rights to be subject to the will of
the recognizing state or states.
(_g_) The =consequences of recognition= immediately touch the relations
of (1) the recognizing state, (2) the recognized, (3) the parent state
if the new state is formed from an existing state, and (4) in a minor
degree other states.
(1) The _recognizing state_ is bound to treat the new state in all
respects as entitled to the rights and as under duties accepted in
international law.
(2) The _recognized state_ is, as related to the recognizing state,
entitled to the rights, and under the obligations prescribed in
international law. As it is a new person in international law, it is
entitled to full personal freedom in entering into relations with other
states. So far, however, as the territory within the new state was under
local obligations, these obligations are transferred to the new state.
The general obligations resting on the parent state, by reason of
treaties and responsibilities of all kinds which have been assumed by
the parent state in the capacity of a legal unity, are not transferred,
because the identity of the parent state remains intact.[66]
(3) The _parent state_, in cases where the new state is formed by
separation from one already existing, is, as regards the recognizing
state, on the same international footing as the new state. Both states
are entitled to equal privileges, and under like obligations. The
relations to other states are not necessarily much changed.
(4) The _relations_ of the _states other than the recognizing_,
_recognized_, and _parent states_ are changed to the extent that they
must respect the _de facto_ relations set forth in (1), (2), and (3)
above, _i.e._ while not recognizing the new state, they must accept the
fact that the recognition exists for the states who are parties to it,
and they are not entitled to pass judgment as to the justice of the
recognition.
CHAPTER VI
LEGAL PERSONS HAVING QUALIFIED STATUS
22. +Members of Confederations and other Unions.+
23. +Neutralized States.+
24. +Protectorates, Suzerainties.+
25. +Corporations.+
(_a_) Private.
(_b_) Exercising political powers.
26. +Individuals.+
27. +Insurgents.+
(_a_) Definition.
(_b_) Effect of admission of insurgency.
28. +Belligerents.+
(_a_) Definition.
(_b_) Conditions prior to recognition.
(_c_) Grounds of recognition.
(_d_) Who may recognize.
(_e_) Consequences.
(1) Recognition by a foreign state.
(2) Recognition by the parent state.
29. +Communities not fully Civilized.+
§ 22. Members of Confederations and other Unions
A state in the sense of public law is not sovereign in the sense of
international law, if there are any limitations upon its power to enter
into relations with other states. Such a state may be a member of a
confederation and exercise certain powers giving it a qualified
international status. These loose unions may, as in the German
Confederation from 1815 to 1866, leave to the local states a certain
degree of autonomy in regulating international affairs while granting to
the central government certain specified powers. This division of
international competence is usually a temporary compromise ending in new
states or in a close union. "Inasmuch as both the central and the
separate states carry on diplomatic intercourse with foreign powers,
they must each and all be regarded as Subjects of International Law; and
inasmuch as they carry on such intercourse only in a limited degree,
they cannot be regarded as fully and absolutely sovereign."[67]
In the examples of personal and real unions and the like, the nature of
the state is a matter of public law and little concerns international
law. As related to international law, the question is how far are such
states restricted in their dealings with other states. A union, such as
that existing in the case of the ruler of the United Kingdom of Great
Britain and Ireland and Empire of India, is of importance to
international law only in its united capacity, while for public law the
nature of the union is of much significance. The same might be said of
the unions of Austria-Hungary, and Sweden-Norway.
§ 23. Neutralized States
Neutralized states are sovereign only in a qualified degree. While such
states have a certain formal equality, their actual competence is
limited in regard to the exercise of sovereign powers. This limitation
as to neutrality may be externally imposed or externally enforced, as in
the case of Belgium, Switzerland, Luxemburg, Congo Free State, and till
1900, Samoa. This neutralization may take place for political or
philanthropic reasons.[68] The degree of external sovereignty possessed
by neutralized states varies. The fact that these states are not fully
sovereign in the field of international law in no way affects their
competence except in respect to matters covered by the conditions of
neutralization. Such states are deprived of the right of offensive
warfare, and have not therefore that final recourse possessed by fully
sovereign states for enforcing their demands.
§ 24. Protectorates, Suzerainties
States under protectors--_protectorates_--usually possess all powers not
specifically resigned. States fully sovereign may demand (1) that states
under protectors afford reasonable protection to the subjects and to the
property of subjects of fully sovereign states, and (2) that the
protecting state use reasonable measures to give effect to the
protection which it has assumed. Just how much responsibility the
protecting state has depends upon the degree of protection exercised and
assumed. The protectorate of Great Britain over the South African
Republic by the agreement of 1884 was of a very moderate form. The right
to veto within a certain time any treaty made with a foreign state,
other than the Orange Free State and native princes, constituted
practically the only restriction on the independence of the Republic.
Great Britain has several other protectorates in Africa over which the
degree of authority varies. In many instances protectorates easily pass
into colonies, as in the case of Madagascar, which Great Britain
recognized as under French protection in 1890, which protection the
queen of Madagascar accepted in October, 1895, and in August, 1896,
Madagascar was declared a French colony.[69]
As distinct from a state under a protectorate which possesses all
competence in international affairs which it has not specifically
resigned, a state under _suzerainty_ possesses only such competence as
has been specifically conferred upon it by the suzerain. The relations
are usually much closer than between protecting and protected states;
and in many cases only the suzerain has international status, while the
vassal is merely tributary, though having a certain degree of internal
independence which may be in some instances almost complete. By the
first article of the Treaty of Berlin, Bulgaria is made a tributary and
autonomous principality under the suzerainty of the Sultan of Turkey.
Under Russian suzerainty are such vassal states as Bokhara and Khiva.
Some of the states under the suzerainty of European states have no
status in international law, as in the case of Bokhara and Khiva. There
exist such anomalous cases as the co-suzerainty of the republic of
Andorra, the collective suzerainty of the Samoan Islands till 1900,[70]
and the absolute suzerainty of the United States over the "domestic
dependent nations" of Indians.
§ 25. Corporations
From the point of view of international law, corporations are generally
of two kinds: corporations organized for private purposes, and
corporations organized for purposes involving the exercise of delegated
sovereign powers.
(_a_) Corporations organized for =private purposes= come within the
field of international law, when in time of war their property or other
rights are impaired, when maritime law, whether of peace or war, may
have been infringed, and when their rights are involved in the domain of
private international law.
(_b_) Corporations organized for purposes involving the =exercise of
political powers= have from time to time, for several centuries, been
chartered and have often acquired a quasi-international status. While
restricted to the performance of functions intrusted to them by their
charters, the home governments have often sanctioned acts for which
their charters gave no warrant. The companies that early entered
America, India, Africa, and the later African companies, are of this
kind. The development of the late doctrine of "the sphere of influence"
has given an important position to these companies organized within
those states desirous to share in "the partition of Africa."
Among the most notable of the earlier companies was the English East
India Company,[71] which received its first charter in 1600. During more
than two hundred and fifty years this company exercised practically
sovereign powers, until by the act of Aug. 2, 1858, the government
heretofore exercised by the company was transferred to the crown, and
was henceforth to be exercised in its name.
In recent years the African companies chartered by the European states
seeking African dominions have had very elastic charters in which the
home governments have generally reserved the right to regulate the
exercise of authority as occasion might demand. These companies advance
and confirm the spheres of influence of the various states, govern under
slight restrictions great territories, and treat with native states with
full authority. The British South Africa Company, chartered in 1889, was
granted liberal powers of administration and full capacity, subject to
the approval of the Secretary of State for the Colonies, to treat with
the native states. The field of operations of this company was extended
in 1891, so that it now includes over six hundred thousand square miles
of territory. Of this company Lawrence says: "Clearly then it is no
independent authority in the eye of British law, but a subordinate body
controlled by the appropriate departments of the supreme government.
Like Janus of old, it has two faces. On that which looks towards the
native tribes all the lineaments and attributes of sovereignty are
majestically outlined. On that which is turned towards the United
Kingdom is written subordination and submission."[72] The acts of these
companies become the basis of subsequent negotiations among the various
European states, and the companies have a very important influence in
molding the character of African development.
§ 26. Individuals
Without entering into discussion of "the doctrine of the separability of
the individual from the state," it is safe to affirm that individuals
have a certain degree of competence under exceptional circumstances, and
may come under the cognizance of international law. By the
well-established dictum of international law a pirate may be captured by
any vessel, whatever its nationality. General admiralty and maritime
procedure against a person admit the legal status of an individual from
the point of view of international law. The extension of trade and
commerce has made this necessary. This is particularly true in time of
war, when individuals wholly without state authorization, or even in
contravention of state regulations, commit acts putting them within the
jurisdiction held to be covered by international law, as in the case of
persons brought before Prize Courts. The principles of private
international law cover a wide range of cases directly touching
individuals.
§ 27. Insurgents
(_a_) =Definition.= Insurgents are organized bodies of men who, for
public political purposes, are in a state of armed hostility to an
established government.
(_b_) =Effect of Admission of Insurgency.= The practice of tacitly
admitting =insurgent rights= has become common when the hostilities have
assumed such proportions as to jeopardize the sovereignty of the parent
state over the rebelling community, or seriously to interfere with
customary foreign intercourse.[73] The general effect of the admission
is shown as follows:[74]
(1) Insurgent rights cannot be claimed by those bodies seeking other
than political ends.[75]
(2) Insurgent acts are not piratical, as they imply the pursuit of
"public as contrasted with private ends."[76]
(3) The admission of insurgent rights does not carry the rights of a
belligerent, nor admit official recognition of insurgent body.[77]
(4) The admission of insurgent rights does not relieve the parent state
of its responsibilities for acts committed within its jurisdiction.[78]
(5) When insurgents act in a hostile manner toward foreign states, they
may be turned over to the parent state, or may be punished by the
foreign state.[79]
(6) A foreign state must in general refrain from interference in the
hostilities between parent state and insurgents, _i.e._ cannot extend
hospitality of its ports to insurgents, extradite insurgents, etc.[80]
(7) When insurgency exists, the armed forces of the insurgents must
observe and are entitled to the advantages of the laws of war in their
relations to the parent state.[81]
* * * * *
+Note.+ During the struggles between the parties in the United States
of Colombia in 1885, the President of Colombia decreed: (1) That
certain Carribean ports held by the opposing party should be regarded
as closed to foreign commerce, and trade with these ports would be
considered illicit and contraband, and that vessels, crews, etc.,
involved in such trade would be liable to the penalties of Colombian
laws. (2) That as the vessels of the opposing party in the port of
Cartagena were flying the Colombian flag, it was in violation of
right, and placed that party beyond the pale of international law.[82]
The United States refused to recognize the validity of the first
decree unless Colombia should support it by an effective blockading
force.[83] (For similar position on part of Great Britain, see Parl.
Deb. H. C., June 27, 1861.)
The United States also refused to recognize that the vessels of the
insurgents were beyond the pale of international law or in any sense
piratical.
The United States did not deny that closure might be a domestic
measure similar to blockade in accord with municipal law, but
emphatically maintained that effective blockade only could close a
port in time of such insurrection.
It was further maintained that "The denial by this [U.S.] Government
of the Colombian proposition did not, however, imply the admission of
a belligerent status on the part of the insurgents." Message Pres.
Cleveland, Dec. 8, 1885.[84]
The President's messages of Dec. 2, 1895, and Dec. 7, 1896, distinctly
mention a status of insurgency as existing in Cuba.
During the rebellions in Chili in 1891 and in Brazil in 1894, the
insurgents, while not recognized as belligerents by third powers, were
nevertheless given freedom of action by these powers.
§ 28. Belligerents
(_a_) =Definition.= A community attempting by armed hostility to free
itself from the jurisdiction of the parent state may, under certain
conditions, be recognized as a belligerent.
(_b_) The general =conditions prior to recognition= are: (1) that the
end which the community in revolt seeks shall be political, _i.e._ a
mere mob or a party of marauders could have no belligerent rights, (2)
the hostilities must be of the character of war and must be carried on
in accord with the laws of war, (3) the proportions of the revolt must
be such as to render the issue uncertain and to make its continuance for
a considerable time possible, (4) the hostilities and general government
of the revolting community must be in the hands of a responsible
organization.
As each state, including the parent state, must judge as to the fact
whether the conditions warranting recognition of belligerency exist,
there may be great divergency of opinion in cases of recognition,[85]
but the question of belligerency is a question of fact and never a
question of theory.
(_c_) A community carrying on, in accord with the rules of war, an armed
revolt of such proportions as to make the issue uncertain and acting
under a responsible organization may not be recognized without offense
to the parent state except upon certain =grounds=. The generally
admitted ground is, that the interests of the recognizing state be so
far affected by the hostilities "as to make recognition a reasonable
measure of self-protection."[86] "The reason which requires and can
alone justify this step [recognition of belligerency] by the government
of another country, is, that its own rights and interests are so far
affected as to require a definition of its own relations to the
parties.... A recognition by a foreign state of full belligerent rights,
if not justified by necessity, is a gratuitous demonstration of moral
support to the rebellion, and of censure upon the parent
government."[87]
(_d_) =Recognition= of belligerency is naturally =an act of the
executive authority=.[88]
The following is the proclamation of Queen Victoria of May 13, 1861:--
"Whereas we are happily at peace with all sovereign powers and states:
"And whereas hostilities have unhappily commenced between the
Government of the United States of America and certain states styling
themselves the Confederate States of America:
"And whereas we, being at peace with the Government of the United
States, have declared our royal determination to maintain a strict and
impartial neutrality in the contest between the said contending
parties:
"We, therefore, have thought fit, by [and with] the advice of our
privy council, to issue this our royal proclamation:
"And we do hereby strictly charge and command all our loving subjects
to observe a strict neutrality in and during the aforesaid
hostilities, and to abstain from violating or contravening either the
laws and statutes of the realm in this behalf or the law of nations
in relations thereto, as they will answer to the contrary at their
peril."
(_e_) =Certain consequences= follow the recognition of belligerency.
(1) _If recognition is by a foreign state._
(a) From the date of recognition, the parent state is released from
responsibility to the recognizing state for the acts of the
belligerents.
(b) So far as the recognizing state is concerned, the parent state and
the belligerent community would have the same war status, _i.e._ in the
ports of the recognizing state, the vessels of both parties would have
the same privileges, the merchant vessels of the recognizing state must
submit to the right of search as justly belonging to both parties; in
fine, so far as the prosecution of hostilities is concerned, the
recognizing state must accord the belligerent community all the
privileges of a full state.
(c) The recognizing state may hold the belligerent community, if it
subsequently becomes a state, accountable for its acts during the period
after the recognition of its belligerency. If, however, the parent state
reduces the revolting community to submission, the recognizing state can
hold no one responsible for the acts of the recognized community from
the date of recognition.
(d) This recognition does not necessarily affect other than the three
parties, the recognizing state, the belligerent community, and the
parent state.
(2) _If recognition_ of belligerency is by the _parent state_.
(a) From the date of recognition, the parent state is released from
responsibility to all states for the acts of the belligerents.
(b) So far as the prosecution of hostilities is concerned, the
community, recognized as belligerent by the parent state, is entitled to
full war status.
(c) From the date of recognition by the parent state, the belligerent
community only is responsible for acts within its jurisdiction, and if
subdued by the parent state, no one can be held responsible, _i.e._
contracts made with a belligerent, or responsibilities assumed by a
belligerent, do not fall upon the parent state, when victorious in the
contest.
(d) Recognition of belligerency by the parent state gives the revolting
community a war status as regards all states.
* * * * *
In a broad way, recognition by the parent state makes general those
conditions which may exist only for the parties directly concerned, when
recognition is by a single foreign state. In cases where several states
recognize the belligerency of a hostile community, other states that
have not recognized its belligerency may, without offense to the parent
state, treat the hostile community as a lawful belligerent, which
treatment would be constructive recognition. The general effect of
recognition is to extend to the belligerent all the rights and
obligations as to war that a state may possess, and to free the parent
state from certain obligations while giving some new rights. The parent
state may use the proper means for the enforcement of neutrality and
demand reparation for any breach of the same, may maintain blockade,
prize courts, and take other measures allowable in war.
The condition of insurgency is usually tacitly admitted for a period
prior to the recognition of belligerency, and the vessels of the
insurgents are not regarded as pirates either in practice or theory.
They have not the _animus furandi_. The admission of insurgent status or
the recognition of belligerency does not imply anything as to the
political status of the community. In the first place there is conceded
a qualified war status, and in the second full war status.
§ 29. Communities not fully Civilized
While there is no agreement as to what constitutes civilization, still
international law is considered as binding only upon states claiming a
high degree of enlightenment. Communities, whether or not politically
organized and not within the circle of states recognized by
international law, because they are not regarded as sufficiently
civilized, are not treated as without rights. It is held that these
communities not fully civilized should be treated as civilized states
would be treated so far as the time and other circumstances permit.
Unduly severe measures, whether in war or peace, should not be used by
civilized states in dealing with those not civilized. It may be
necessary that barbarians should be used as auxiliary forces in contests
with barbarians, but it is now held that such forces should be officered
and controlled by the civilized state. Extreme measures, in the way of
devastation and destruction, have been used with the idea of impressing
upon the minds of barbarians respect for the power of a state, but it is
now questioned how far this is fitting for states claiming civilization.
Many states not admitted to the circle of nations have now acquired such
a status as entitles them to the general privileges of international law
to the extent to which their action has not violated its provisions, and
it is generally so accorded, as for many years to China, Persia, and
other Asiatic states.
PART III
INTERNATIONAL LAW OF PEACE
CHAPTER VII
GENERAL RIGHTS AND OBLIGATIONS OF STATES
30. +Existence.+
31. +Independence.+
32. +Equality.+
33. +Jurisdiction.+
34. +Property.+
35. +Intercourse.+
§ 30. Existence
The most comprehensive right of a state is the _right to exist_ as a
sovereign political unity. From this comprehensive right flow the
general rights of _independence_, _equality_, _jurisdiction_,
_property_, and _intercourse_ and the obligations which the exercise of
these rights imply. There are many classifications of the general rights
of states. During the eighteenth century a classification into perfect
and imperfect rights was common. A classification based on the essential
nature of the state as a sovereign political unity, having (1) a right
to existence and (2) from the point of view of international law, having
relations to other states, has been widely followed. The rights based on
the comprehensive right to existence were variously named as essential,
fundamental, primitive, innate, absolute, permanent, etc., while the
rights derived from the practice of states in their mutual relations
were called accidental, derived, secondary, acquired, relative,
contingent, etc. The view now most generally recognized is that from the
single comprehensive right of states _to exist_, all other rights flow,
and all other rights are therefore related, if not directly, at least by
virtue of their common source.
§ 31. Independence
Independence from the point of view of international law is freedom from
external political control. While all states possessing freedom from
external political control may not be admitted to the family of states,
yet in order that a state may be admitted, it is regarded as essential
that it be independent. The recognition of a state carries with it the
recognition of independence. However, from the fact that there are
states in the world having equal rights to independence, it follows that
the field of action of each state is limited by the necessity of respect
for the right of independence belonging to other states.
The recognition of a state presupposes autonomy as an essential for the
existence of a sovereign political unity, and autonomy implies the right
to determine and pursue such lines of action as may be in accord with
its policy.
§ 32. Equality
All states, the existence of which has been recognized by the family of
states, are regarded as possessed of equal rights in political affairs,
so far as legal competence is concerned.
This does not imply an equality of territorial area, population, wealth,
rank, and influence, etc., or that a given state may not voluntarily
limit the exercise of its powers.
§ 33. Jurisdiction
The right of jurisdiction is the right to exercise state authority. The
right of jurisdiction is in general coextensive with the dominion of the
state. It may be "laid down as a general proposition that all persons
and property within the territorial jurisdiction of a sovereign are
amenable to the jurisdiction of himself or his courts; and that the
exceptions to this rule are such only as by common usage and public
policy have been allowed, in order to preserve the peace and harmony of
nations, and to regulate their intercourse in a manner best suited to
their dignity and rights."[89]
§ 34. Property
In international law, as against other states, a given state has the
right of property or domain in the territory and fixtures within its
limits. This right of property is not the right in the old feudal sense,
for in the public law of the state the title of ownership may vest in
the state only in a limited sense as over territory to which none of its
subjects have title, and over such other forms it has ownership in
corporate capacity, as public buildings, forts, arsenals, vessels,
lighthouses, libraries, museums, etc. The right of eminent domain as a
domestic right may also vest in the state. While from the point of view
of international law, a state has the right of property over all
territorial and non-territorial possessions within its limits as against
other states, yet the effect of this right is somewhat modified by the
fact of public or private ownership, particularly as regards the laws of
war, neutrality, and intercourse.
§ 35. Intercourse
In early periods of history intercourse among states was very limited
and sometimes even prohibited. At the present time the necessities of
state existence presuppose, in international law, the recognition of the
right of intercourse in order that state business may be transacted. The
principles upon which this intercourse is carried on are well
established, and form the basis of diplomatic practice.
CHAPTER VIII
EXISTENCE
36. +Application of the Right in General.+
37. +Extension of the Right to Subjects of the State.+
§ 36. Application of the Right
Besides the general rights of _independence_, _equality_,
_jurisdiction_, _property_, and _intercourse_, the right of existence in
its exercise may lead to certain acts for which the general principles
of international law do not provide rules.[90]
(_a_) In face of actual dangers immediately threatening its existence, a
state may take such measures as are necessary for self-preservation,
even though not sanctioned by international law. Such measures, however,
must be from "a necessity of self-defense, instant, overwhelming, and
leaving no choice of means and no moment for deliberation," and further
"must be limited by that necessity and kept clearly within it."[91] The
wide discussion of the case of the _Virginius_ involved the principle of
the limits of the right of self-defense.[92]
(_b_) The right to act in a manner which international law does not
sanction or denies, even though it may be strictly to preserve the
existence of the state so acting, cannot be upheld as freeing it from
responsibility for such acts, and these acts may be regarded as hostile
by states affected by them.
(_c_) As the domestic acts of a state are not within the province of
international law, a state has the right to administer its internal
affairs in such manner as it may determine fit to secure and further its
existence. It may adopt any form of government; may plan for its growth
by developing its resources, by encouraging immigration; may strengthen
defenses and forces; may regulate trade, commerce, and travel. While
acts of this character may work injury to other states, they are not in
general just grounds for war, but may properly be met by like acts on
the part of other states.
§ 37. Extension of the Right to Subjects of the State
As the subjects of a state are necessary for its existence, the right of
self-preservation has been held to justify certain acts of states to
secure to their subjects in their relations with foreign states such
rights as the foreign states would accord to their own subjects under
similar circumstances. That a local tribunal within a purely domestic
division of a state cannot secure to foreigners rights to which they are
entitled, in no way frees that state, whose sovereignty extends over
such domestic division, from responsibility for violation of the
foreigner's right. International law recognizes only the personality of
the sovereign political unity, and cannot cognize the administrative and
other subdivisions. Hall says, "States possess a right of protecting
their subjects abroad which is correlative to their responsibility in
respect of injuries inflicted upon foreigners within their
dominions."[93] "Fundamentally, however, there is no difference in
principle between wrongs inflicted by breach of a monetary agreement and
other wrongs for which the state, as itself the wrong-doer, is
immediately responsible. The difference which is made in practice is in
no sense obligatory; and it is open to governments to consider each case
by itself, and to act as seems well to them on its merits."[94]
CHAPTER IX
INDEPENDENCE
38. +Manner of Exercise.+
39. +Balance of Power.+
40. +Monroe Doctrine.+
41. +Non-intervention.+
42. +Practice in Regard to Intervention.+
(_a_) For self-preservation.
(_b_) To prevent illegal acts.
(_c_) By general sanction.
(_d_) Other grounds.
(1) Treaty stipulations.
(2) Balance of power.
(3) Humanity.
(4) Civil war.
(5) Financial.
(_e_) Conclusion.
§ 38. Manner of Exercise of the Right
Strictly, there can be no limitation or restriction of independence, for
it is a recognized principle that independence must be absolute and
inalienable. In fact, every state voluntarily accepts either formally by
treaty or tacitly by practice, many conditions which restrain it in the
exercise of its powers. The independence of the state is not thereby
violated, since the restraint is exercised by the state itself, and is
not an act of external control. The number of these restraints which
states voluntarily assume is continually increasing, owing to the closer
relations of humanity.
The exercise of the right of independence involves the privilege of
making treaties, alliances, contracts, and municipal laws, so far as
these do not violate international law or the right of independence as
possessed by other states. A state may go to war to maintain its
independence. The international rights of a state are in general closely
related to the right of independence, and derive force from this
relationship.
§ 39. Balance of Power
Undoubtedly the idea of establishing a relationship among "neighboring
states more or less connected with one another, by virtue of which no
one among them can injure the independence or essential rights of
another without meeting with effectual resistance on some side and
consequently exposing itself to danger"[95] is not a modern idea.
Ancient states united to prevent the growth of some neighboring power to
such magnitude as would threaten their independence.[96] From the
beginning of the modern period of international law, Peace of Westphalia
(1648), the idea of maintaining an equilibrium among the powers of
Europe has had great influence, and until the latter part of the
nineteenth century was regarded as one of the fundamental principles of
European international practice. Many treaties aim to preserve this
balance among the European powers, and the words "balance" and
"equilibrium" often appear.[97] The Treaty of Utrecht in its provision
between Spain and Great Britain, July 13, 1713, gives as its object _ad
firmandam stabiliendamque pacem ac tranquillitatem christiani orbis
justo potentiæ equilibro_. The idea that independence was to be
preserved by some balance of power reappears in successive treaties.
This idea of the balance of power has led to most diverse action. Unjust
rulers have made it the cloak for action entirely outside the sanction
of international law. Many times it has "served as the pretext for a
quarrel, and repeatedly made hostilities general which would otherwise
have been shut up within a comparatively small area."[98] The feeling
that the balance of power was a necessary policy for the preservation of
European states, led to the idea that states should be constrained to
certain lines of action, which would prevent, in many cases, normal
growth. Frequently the independence of a state was violated to
anticipate an action which might disturb the European equilibrium. The
partitions of Poland show a violation of the principles of international
law for the sake of giving equal compensation to the parties to it.
The doctrine of the balance of power is not a principle of international
law, but merely a maxim of European political practice pretending to
state the means of maintaining the independence of European states.[99]
§ 40. Monroe Doctrine
Another maxim of political action is that which has become known as the
"Monroe Doctrine." While enunciated by a single state, it had in view
the maintenance of the independence of the states of the American
continent. For many years after the Revolutionary War the opinion
prevailed that Europe viewed with disfavor the growth of the American
republic. The Holy Alliance, formed on the downfall of Napoleon, was
followed by several congresses of European powers, at one of which, held
at Verona in 1822, the subject of helping Spain recover her revolting
colonies in America was discussed. This led to the declaration of
President Monroe in his message of Dec. 2, 1823, that there should be,
(1) no more European colonies on these continents, (2) no extension of
the European political system to any portion of this hemisphere, (3) no
European interposition in the affairs of the Spanish-American republics.
This doctrine has been repeatedly affirmed by the United States, and in
some instances very liberally interpreted. It in no way embodies a
principle of international law, though the European and other states may
regard it as expressing the attitude of the United States upon the
points covered, and if desirous of avoiding friction, govern themselves
accordingly. If it were a principle of international law, the United
States would not be justified in changing its attitude upon the
doctrine, but probably it would not be seriously maintained that the
United States might not enunciate another policy setting aside the
Monroe Doctrine. Reddaway well says, "that it produced its desired
effect as an act of policy, but in no way modified the Law of
Nations."[100] This doctrine cannot be considered as outlining a
principle of non-intervention, as has sometimes been claimed, but it
rather announces a policy of intervention on the part of the United
States to anticipate intervention by other powers.
The doctrine has always failed of legislative indorsement, and has been
strenuously opposed by European powers. That it has been recognized,
however, to a certain extent, appears by the course of events.[101] It
was recently applied in the case of the intervention by the United
States in the dispute over the boundary between Venezuela and British
Guiana. Great Britain and the United States settled the difficulty by a
submission to arbitration.[102]
§ 41. Non-intervention
With the right of independence goes the correlative _obligation of
non-intervention_, _i.e._ of refraining from all acts that would
forcibly limit the freedom of another state. This obligation of
non-intervention does not extend to the limitation of acts involving no
display or threat of force, as in the case of mediation and arbitration.
Nor can it be claimed that the _obligation of non-intervention_ can be
urged against measures undertaken by a state to preserve its fundamental
right to existence. There is no _right_ of intervention, as has been
sometimes argued, though an act of intervention may be sometimes
justifiable in itself.[103] Intervention is the attempt of one or more
states, by means of force, to coerce another state in its purely state
action. The making of an alliance between two may influence a third
state in its action, but it cannot be considered an intervention, nor is
the tender of friendly offices in the settlement of a dispute to which a
state is a party, intervention; but when a state directly interferes
with the exercise of the authority in another state or by another state,
it constitutes intervention. Intervention may vary greatly in degree and
in character, whether it be armed or diplomatic. Each case must be
considered separately on its merits, and if in any degree a justifiable
measure, it must be on the highest grounds, and the motives of the
intervening state must be pure. While it is still necessary to discuss
the question of intervention in its various forms, yet, as Hall says:
"It is unfortunate that publicists have not laid down broadly and
unanimously that no intervention is legal, except for the purpose of
self-preservation, unless a breach of the law as between states has
taken place, or unless the whole body of civilized states have concurred
in authorizing it."[104]
§ 42. Practice in Regard to Intervention
The nineteenth century might be called the century of interventions, for
its whole political history has been closely related to the application
of measures of intervention of the most varied sort. Naturally, all
authorities do not agree as to the causes underlying the action of the
several states, nor as to the nomenclature which should be used in
describing these measures. A review of some of the cases of intervention
during the nineteenth century shows that while the doctrine of
non-intervention has been more and more widely professed, the practice
has been strongly influenced by political expediency.
Intervention for any cause may always be regarded by the state whose
independence is impinged as a hostile act, and a ground for war, thus
putting the matter outside the international law of peace.[105]
(_a_) =Intervention for Self-preservation.= As the right of existence is
the first right of a state and universally admitted, intervention may
sometimes be used as a means of maintaining this existence. In such a
case it is clearly a matter of policy as to the means which a state
shall use, and if it resorts to intervention rather than other means, it
must have ample grounds for its action in the particular case. A case of
intervention on the grounds of self-preservation which has caused much
debate is that of England in the two attacks upon Copenhagen in 1801 and
1807, on the ground that it was necessary for English supremacy of the
seas, which formed her chief defense, to prevent the union of the Danish
forces with those of the other powers. Intervention cannot be justified
by any appeal to general principles which inhere in the act itself. "The
facts of intervention are acts of the political existence of states.
Good or bad, according as the intervention is injurious or
beneficial."[106] Of intervention as a method of state action, Sir W.
Harcourt says: "It is a high and summary procedure which may sometimes
snatch a remedy beyond the reach of law. Nevertheless, it must be
admitted that in case of Intervention, as in that of Revolution, its
essence is illegality, and its justification is its success. Of all
things, at once the most injustifiable and the most impolitic is an
unsuccessful Intervention."[107] Non-intervention is the obligation
which international law enjoins. It gives no sanction to a "right of
intervention" which would be entirely inconsistent with the right of
independence. The question of intervention is one of state policy only,
and is outside the limits of the field of international law.
Intervention is a method of state action which is justifiable only in
rare cases, and less and less justifiable as the growing mutual
dependence of states makes possible other methods less open to
objection. International law at the present day undoubtedly regards
intervention when _strictly_ necessary to preserve the fundamental right
of the intervening state to its existence as a permissible act though
contravening the right of independence in another state.
(_b_) =Intervention to prevent Illegal Acts.= As international law must
rest upon the observance of certain general principles, it may in
extreme cases be necessary to intervene in order that these principles
may be respected by certain states in their dealings with other states
which, though weaker in physical force, have equal rights in
international law. How far any state will act as champion of the law of
nations is a question which it must decide for itself. Unquestionably
international law would look with favor upon measures _necessary_ for
its own preservation.
(_c_) =Intervention by General Sanction.= Some authorities have
maintained that intervention when sanctioned by a group of states is
justifiable. It is probable that a group of states would be less liable
to pursue an unjust course than a single state, and that intervention
under such sanction would be more liable to be morally justifiable. It
is, however, no more legal than the same act by a single state; and if
general consent is the only sanction, while the act may be expedient,
advantageous, and morally just, it cannot be regarded as upheld by
international law, nor can a single act of this kind establish a
principle. The several cases of such intervention under general sanction
can hardly be regarded as sufficiently similar to establish a principle
even upon the Eastern Question in Europe.[108] It may be concluded that
while general sanction of a considerable group of states may, for a
given interference, free a state from moral blame and warrant the act as
a matter of policy, yet it does not give any international law sanction
for intervention by general consent.
(_d_) =Other Grounds of Intervention.= Many reasons have been advanced
as justifying such measures as intervention.
(1) Intervention to carry out _provisions of treaties of guaranty_ was
formerly common, _e.g._ intervention by one state to preserve the same
form of government in the other or to maintain the ruling family. It is
now held that no treaty can justify interference in the internal affairs
of a state not party to the treaty.
In general, intervention, because of treaty stipulations, even when the
state subject to the intervention is a party to the treaty, is a
violation of independence unless the treaty provides for such measures,
in which case the state has become a protected state or entered into
relations by which it has not full state powers. Such treaties must be
clearly state acts and not acts of individuals "who from their position
have the opportunity of giving to their personal agreements the form of
a state act."[109] While there is still difference of opinion as to the
question of intervention under treaty sanction, the weight of opinion
seems to be decidedly to the effect that such intervention has no ground
of justification in international law.
(2) Intervention to preserve the _balance of power_, which was regarded
as a necessary means for the preservation of European peace, has been
considered as justifiable till recent times. Since the middle of the
nineteenth century the position has received less and less support,
though advanced in behalf of the preservation of the Turkish Empire and
the adjustment of the Balkan states. In 1854 Great Britain and France,
on the appeal of the Sultan for assistance against the Russian
aggressions, determined to aid him, "their said Majesties being fully
persuaded that the existence of the Ottoman Empire in its present Limits
is essential to the maintenance of the Balance of Power among the States
of Europe."[110] The attitude at the present time is stated by Lawrence.
"The independence of states is not to be violated on the ground of
possible danger to some imaginary equilibrium of political
forces."[111]
(3) Interventions upon the broad and indefinite ground of _humanity_
have been common and were generally upheld by the writers to the time of
Vattel. Since his day opposition to intervention of this kind has
gradually obtained favor. What the grounds of humanity are, and which
nation's ideas of humanity shall be accepted as standard, have been
questions difficult to settle to the general satisfaction of states. For
a state to set itself up as judge of the actions of another state and to
assume that it has the right to extend its powers to settling and
regulating affairs of morals, religion, and the relations of public
authority to the subjects in another state, on the ground of maintaining
the rights of mankind as a whole, is to take a ground which the conduct
of any modern state, even the most civilized, would hardly warrant.
While it is admitted that a state or states may sometimes interfere to
prevent one state from unduly oppressing another, as in the intervention
of the powers in Greece in 1827, yet it is generally held that to
interfere because the internal affairs of a given state are not
conducted in a manner pleasing to the foreign state is to give a
sanction to an act that would result in far more evil than good. Such
intervention has often taken place. The "Holy Alliance," in attempting
to guard Europe from "the curse of Revolution," advocated in practice a
most dangerous form of intervention.[112] Indeed, much of the European
history of the nineteenth century is but a history of successive
interventions. In spite of all this, as Walker says, "the rule regularly
progresses towards more general recognition, that non-intervention in
the internal affairs of a state is a law which admits of no exception to
foreign powers, so long as the operations of that state are confined in
their effect to the limits of the national territory."[113]
Nevertheless, the United States interfered in the affairs of Cuba on the
ground of humanity. The President, in his message of April 11, 1898,
says, after a long statement of the facts: "I have exhausted every
effort to relieve the intolerable condition of affairs which is at our
doors. Prepared to execute every obligation imposed upon me by the
Constitution and the law, I await your action."[114] By joint resolution
of Congress of April 20, 1898, demand was made upon Spain to relinquish
its authority in Cuba, and the President was authorized to use land and
naval forces to carry the resolution into effect.[115]
(4) In time of _civil war_, on invitation of both parties, a foreign
state may act as mediator, but unless the revolting party has been
recognized, this is mediation in a domestic sense rather than
intervention in the sense of international law.
Under other conditions there is a diversity of view as to the proper
course of action.[116] Some deny with Vattel, G. F. de Martens, Heffter,
Fiore, Bluntschli, Woolsey, and others maintain or permit intervention
in civil war at the request of one of the parties, though some of the
authorities do not permit intervention except on the invitation of the
parent state and not on that of the rebelling party. Bluntschli (§ 476)
and Woolsey (§ 42) admit intervention only in behalf of the party
representing the state; Vattel and some others permit intervention in
behalf of the party which the intervening state considers to have the
right of the contest, thus opening the arbitration of the contest to a
foreign state. Both of these positions are receiving less and less of
sanction. Intervention in behalf of the established state implies a
doubt as to which power within the state is the _de facto_ power, and as
Hall says: "the fact that it has been necessary to call in foreign help
is enough to show that the issue of the conflict would without it be
uncertain, and consequently that there is a doubt as to which side would
ultimately establish itself as the legal representative of the
state."[117] It is plain to see that intervention in behalf of the
rebelling party is a violation of the independence of the existing
state. It is equally clear that international law does not give a
foreign state a right to judge upon the justice or merits of domestic
questions in another state.
The principle may now be regarded as established by both theory and
practice that the invitation of neither party to a domestic strife gives
a right to a foreign state to intervene, and that no state has a right
to judge as to the merits of the contest and to interfere in behalf of
the party it thinks in the right. Indeed, intervention because of civil
war only is in no case justifiable, though the consequences of such a
disturbance may warrant intervention upon other grounds.[118]
(5) Intervention on the ground of _financial transactions_ is not now
sanctioned. A state may make any injustice done its subjects by a
foreign state a matter of diplomatic negotiations. It has sometimes
been held that contracts running between a state and the subject or
subjects of another state may, if violated, become grounds of just
intervention, and that the subjects had a right to demand action by
their sovereign. This ground is manifestly insufficient, though each
state is judge as to what measures it will take in a given case.
International law does not guarantee the payment of loans which are
merely personal transactions between the individual and the state in its
corporate capacity, nor can the public law of one state be expected to
hold in another. Interference on such grounds is a matter of expediency
and not a matter of right.
(_e_) =Conclusion.= In general, the best authorities seem to agree that
at the present time, owing to the ease with which other measures may be
taken, intervention can be admitted only on the single ground of
self-preservation. The numerous cases of intervention upon varied
grounds amply show that any other ground would be open to wide abuse, as
has often been the case. For general purposes of remedy for injury such
measures as retorsion, reprisals, embargo, and pacific blockade may be
taken when a state deems it expedient and is willing to assume the
responsibility for such measures.[119] While intervention is, for the
sake of preserving the existence of a state, a justifiable measure, it
is not a _right_, but merely a means sometimes justifiable to preserve a
right,--the right of a state to exist, which alone supersedes the
obligation of non-intervention.
CHAPTER X
EQUALITY
43. +Equality in General.+
44. +Inequalities among States.+
(_a_) Court precedence.
(_b_) Matters of ceremonial.
(_c_) Weight of influence in affairs.
§ 43. Equality in General
The equality of states was an early premise of international law. This
equality, however wide may have been its meaning, as interpreted by some
of the earlier writers, can now be held to extend only to legal status.
A state from its very being as a sovereign unity must be legally equal
to any other state. Only those states members of the international
circle are regarded as possessed of this equality from the point of view
of international law. So far as legal attributes as _states_ extend, the
states members of the international circle are equal, yet that their
weight in the world of affairs may vary by virtue of other circumstances
must be admitted. The legal status of states is the same; regardless of
the form of state organization, whether monarchy or republic; regardless
of origin, whether by division or union of former states or even if
created in a region hitherto outside the jurisdiction of any state;
regardless of area, population, wealth, influence, etc.; regardless of
relations to other states provided sovereignty is not impaired;
regardless of any change in the form of state organization, as from a
republic to a monarchy or even of a temporary lapse in the exercise of
sovereignty.
§ 44. Inequalities among States
While all states, members of the family of states, are equal in
international law so far as their legal attributes are concerned, they
may be very unequal in other respects.
(_a_) One of the oldest marks of inequality is that of =court
precedence=, which for many years was a fertile source of difficulty,
and was at last settled to the extent of ranking by title of diplomatic
representative by the Congress of Vienna in 1815.[120]
(_b_) =Inequalities in matters of ceremonial= of various kinds have not
disappeared. These may be based upon tradition or conventional grounds,
and frequently give rise to difficulties if disregarded. These
ceremonials may be (1) political as between the sovereigns in their
official personal capacity as emperors, kings, dukes, etc., (2) court
and diplomatic in interstate negotiations, (3) treaty as in _alternat_
or in the alphabetical signing of treaties, (4) maritime ceremonial in
salutes, etc.
(_c_) =Inequalities in weight of influence in affairs.=
(1) In Europe there is distinctly recognized in political practice an
inequality of the states, and they are classed as "the great powers,"
"the minor powers," and sometimes such states as those of the Balkan
peninsula are referred to as "the little powers" or "third-rate states."
These divisions are based merely upon political grounds, and states may
pass from one division to another as their wealth, area, or influence
increases or decreases.
At the present time "the great powers," generally mentioned _officially_
upon the continent in the alphabetical order of their names in French,
_i.e._ _Allemagne_, _Angleterre_, _Autriche_, etc., are Germany, Great
Britain, Austria, France, Italy, and Russia. During the sixteenth and
seventeenth centuries Spain was numbered with "the great powers." Sweden
was so ranked in the seventeenth century. Italy was counted with "the
great powers" after 1870. The union of several powers upon certain lines
of policy, since early in the nineteenth century, has been called "the
concert of Europe," "the primacy of the great powers," etc. It was not
the purpose of these great powers to establish new rules of
international law; but as enunciated by the five powers, Nov. 15, 1818,
it was "their invariable resolution never to depart, either among
themselves, or in their relations with other states, from the strictest
observation of the principles of the Rights of Nations."[121]
That the practice of the Great Powers has not been strictly in accord
with these expressed principles, a glance will show. The immediate
action of Austria, Russia, and Prussia in the Congress of Troppau, 1820,
carried the principle of interference in the internal affairs of states
so far that Great Britain found itself compelled to dissent. This
continuance of the policy of the Holy Alliance in putting down
movements in favor of popular liberty, wherever arising, led to gross
violations of international rights. Nor did Great Britain become a party
to the acts of the Congress of Verona in 1822, which led to intervention
to prevent changes in the internal organization of Spain in 1823. The
struggles of the Greeks for independence at about this time were
naturally regarded by those upholding the ideas of the Holy Alliance as
dangerous to those states desiring to prevent revolutionary movements.
But the narrow policy of the Alliance was gradually losing support. The
opposition of Great Britain and the death of Alexander of Russia in 1825
hastened its speedy fall. Meantime the idea of a collective authority in
the Great Powers had been maintained. This began to be exercised in
behalf of the Greeks in 1826, and has throughout the nineteenth century
been repeatedly exercised in the same behalf, sometimes unselfishly,
often from motives of mixed character. During the latter half of the
nineteenth century the Great Powers have continually kept a close
surveillance over Grecian affairs, and enforced their judgments in
regard to Greece by force (destruction of Turkish fleet at Navarino,
1827); by providing form of government and naming monarch (1829 and
later); by fixing and changing boundaries (1829 and often); by pacific
blockade (1827, 1850, 1886, 1897); by regulating financial affairs, and
by other means of varying degree of force.[122]
The Eastern question has particularly occupied the Concert, and the
disposition of the territory once within the Turkish jurisdiction has
offered a fertile field for varying policy.
The establishment of Belgium as a neutral state by the treaty to which
Belgium was itself a party afforded another example of the influence of
the Great Powers.
Since 1839 Egypt has also been subject to frequent control by the Great
Powers.
Since 1885 the unappropriated portion of Africa has been brought into
the range of action of the Concert by the theory of the sphere of
influence.
The Concert of the Great Powers shows then a policy which is liable to
change with expediency. The two great treaties of the Concert are those
of Paris, 1856, and Berlin, 1878. Of these Holland says, "The treaties
of Paris and of Berlin thus resemble one another, in that both alike are
a negation of the right of any one Power, and an assertion of the right
of the Powers collectively, to regulate the solution of the Eastern
question."[123] The fact that the action of the Great Powers has been
regarded as binding and tacitly accepted in Europe in certain questions
in the East, Egypt, Greece, and Belgium does not give the sanction of
international law to the action. The most that can be said is that it is
an alliance of a loose character, whose authority is in proportion to
the force behind its decisions.[124]
(2) Another feature in European politics giving rise to further
inequalities in practice was introduced by the alliance of Germany and
Austria in 1879 and Italy in 1883, which is now commonly known as the
Triple Alliance. This belt of powers separating Eastern from Western
Europe has materially affected the action of other powers.
The "friendly understanding" between France and Russia soon after the
Triple Alliance affords a measure of counter-check upon the action of
the other powers.
In spite of all these alliances and counter-alliances, the recognition
of the weight of the decisions of the congresses and conferences of the
Great Powers upon those subjects which are held to affect "the peace of
Europe" have an influence comparable to that which might be assigned to
a "Supreme Court of International Appeal."[125]
The United States upon the American continent in its enunciation of the
Monroe Doctrine, and the subsequent interpretation of it, has assumed a
position as arbiter among the American states in some respects similar
to that of the European Concert among the European states. This attitude
of the United States has weight in international practice, but cannot be
regarded as a part of international law.
CHAPTER XI
JURISDICTION
45. +Jurisdiction in General.+
46. +Territorial Domain and Jurisdiction.+
47. +Method of Acquisition.+
(_a_) Discovery.
(_b_) Occupation.
(_c_) Conquest.
(_d_) Cession.
(1) Transfer by gift.
(2) Transfer by exchange.
(3) Transfer by sale.
(4) Cession of jurisdiction.
(_e_) Prescription.
(_f_) Accretion.
48. +Qualified Jurisdiction.+
(_a_) Protectorates.
(_b_) Sphere of influence.
49. +Maritime and Fluvial Jurisdiction.+
50. +Rivers.+
(_a_) Which traverse only one state.
(_b_) Flowing through two or more states.
(_c_) Under jurisdiction of two states.
51. +The Navigation of Rivers.+
52. +Enclosed Waters.+
(_a_) Wholly enclosed.
(_b_) Gulfs, bays, estuaries.
(_c_) Straits: Danish Sounds, Dardanelles.
(_d_) Canals: Suez, Panama, Nicaraguan, Corinth, Kiel.
53. +The Three-mile Limit.+
54. +Fisheries.+
(_a_) Deep sea.
(_b_) Canadian.
(_c_) Bering Sea.
55. +Vessels.+
(_a_) Classes.
(1) Public.
(2) Private.
(_b_) Nationality.
(_c_) Jurisdiction.
(1) Public.
(2) Private.
(3) Semi-public.
56. +Personal, General--Nationality.+
57. +Natural-born Subjects.+
58. +Foreign-born Subjects.+
59. +Acquired Nationality.+
(_a_) By marriage.
(_b_) By naturalization.
(_c_) By annexation of territory.
(_d_) Effect of naturalization.
(_e_) Incomplete naturalization.
60. +Jurisdiction over Aliens.+
(_a_) Over subjects abroad.
(1) Emigration laws.
(2) Recall of citizens.
(3) Penal jurisdiction.
(4) Protection of subjects.
(_b_) Over aliens within territory.
(1) Exclusion.
(2) Expulsion.
(3) Conditional admission.
(4) Settlement.
(5) Taxes.
(6) Sanitary and police jurisdiction.
(7) Penal jurisdiction.
(8) Maintenance of public order.
(9) Military service.
(10) Freedom of commerce.
(11) Holding property.
(12) Freedom of speech and worship.
(_c_) Passports.
61. +Exemptions from Jurisdiction--General.+
62. +Sovereigns.+
63. +State Officers.+
(_a_) Diplomatic agents.
(_b_) Consuls.
(_c_) Army.
(_d_) Navy.
64. +Special Exemptions.+
(_a_) In Oriental countries.
(1) Penal matters.
(2) Civil matters.
(_b_) In Egypt.
65. +Extradition.+
(_a_) Persons liable.
(_b_) Limitations.
(_c_) Conditions.
(_d_) Procedure.
66. +Servitudes.+
(_a_) International.
(_b_) General.
§ 45. Jurisdiction in General
Jurisdiction is the right to exercise state authority, and for the
purposes of international law may be classified as, (_a_) territorial or
land jurisdiction, (_b_) fluvial and maritime, and (_c_) jurisdiction
over persons.
§ 46. Territorial Domain and Jurisdiction
The word "territory" is sometimes used as equivalent to domain or
dominion or to an expression covering the sphere of state control.
Territory is also used in the stricter sense of the land area over which
a state exercises its powers. In this stricter sense, territorial
jurisdiction refers to the exercise of state authority over the land
within its boundaries and those things which appertain to the land. The
growing international importance of railroads, telegraph, and other
modern means of communication has introduced new topics not considered
in early treatises, and these are still under discussion.
The fundamental law of territorial jurisdiction is that a state has
within its boundaries absolute and exclusive jurisdiction over all the
land and those things which appertain thereto. Certain exemptions are
specially provided in international law to which all states are
considered as giving express or tacit consent. In other respects than
those mentioned under exemptions, the state may, as sovereign, exercise
its authority at discretion within the sphere it has set for itself. The
state has, as against all other states, an exclusive title to all
property within its territorial jurisdiction. As regards its own
subjects, it has the paramount title which is recognized in the right of
eminent domain, or the right to appropriate private property when
necessary for public use. A state may also in its corporate capacity
hold absolute ownership in property, as in its forts, arsenals, ships,
etc.
The state also has the right to enforce a lien on the land and what
appertains to it in the form of taxes.
§ 47. Method of Acquisition
The method of acquisition of territorial jurisdiction is a subject which
has received much attention in international law, particularly because
of the remarkable expansion of the territorial area of states within the
modern period of international law since 1648.
The methods commonly considered are: (1) discovery, (2) occupation, (3)
conquest, (4) cession, (5) prescription, (6) accretion.
(_a_) In the early period of European expansion through =discovery=, the
doctrine that title to land hitherto unknown vested in the state whose
subject discovered the land was current. Gross abuse of this doctrine
led to the modification that discovery without occupation did not
constitute a valid title. As the field of discovery has grown less, the
importance of a definition of occupation has decreased.
(_b_) =Occupation= is held to begin at the time of effective application
of state authority, and strictly continues only during the exercise of
such authority. In fact, however, the title by occupation is held to
extend to the adjacent unoccupied territory to which the state might
potentially extend the exercise of its authority, or where it may from
time to time exercise its authority in an undisputed manner. Title by
occupation extends as a rule to that area, not under the jurisdiction of
another state, which is necessary for the safety of the occupied area or
is naturally dependent upon it, as to the territory drained by a river
of which a given state holds the mouth.
The "Hinterland Doctrine," brought forth during the latter years of the
nineteenth century, advances the idea that no such limits as above shall
bound the area which can be claimed on ground of occupation, but that
coast settlements give a _prima facie_ title to the unexplored interior.
While the uncivilized peoples living within an area to which a civilized
state claimed jurisdiction by virtue of occupancy were often unjustly
treated, they however "were admitted to be the rightful occupants of the
soil, with a legal as well as just claim to retain possession of it, and
to use it according to their own discretion, though not to dispose of
the soil of their own will, except to the government claiming the right
of preëmption.... The United States adopted the same principle, and
their exclusive right to extinguish the Indian title by purchase or
conquest, and to grant the soil, and exercise such a degree of
sovereignty as circumstances required, has never been questioned."[126]
(_c_) =Conquest= in the technical sense of the status of a territory
which has come permanently under the jurisdiction of the enemy is
distinct from military occupation, which is a simple fact supported by
force.
Military occupation may pass into conquest (1) by actual occupation for
a long period, with intention on the part of the occupier to continue
the possession for an indefinite period, provided there has not been a
continued and material effort upon the part of the former holder to
regain possession. If, after a reasonable time, this effort to regain
possession seems futile, the conquest may be regarded as complete. Each
state must judge for itself as to the reasonableness of the time and
futility of the effort. (2) Conquest may be said to be complete when by
decree, to which the inhabitants acquiesce, a subjugated territory is
incorporated under a new state. (3) A treaty of peace or act of cession
may confirm the title by conquest.[127]
(_d_) Transfer of territory by =cession= may be by gift, exchange, or
sale.
(1) The _transfer by gift_ is simple, and carries such obligations as
the parties interested may undertake. In 1850, by a treaty with Great
Britain, "Horse-shoe Reef," in Lake Erie, was ceded to the United States
for the purpose of the erection of a lighthouse, "provided the
Government of the United States will engage to erect such lighthouse,
and to maintain a light therein; and provided no fortification be
erected on said Reef."[128]
(2) _Transfer of territory by exchange_ is not common in modern times.
By the Treaty of Berlin, 1878, a portion of Bessarabia, given to
Roumania by the Treaty of Paris, 1856, was given back to Russia, and
Roumania received in exchange a portion of Turkey.[129]
(3) _Transfer of territory by sale_ has been frequent. From 1311, when
the Markgraf of Brandenburg sold three villages to the Teutonic knights,
down to the nineteenth century, instances of sale might be found, but
the nineteenth century has numerous instances which have established the
principles. Napoleon sold Louisiana to the United States in 1803, the
Prince of Monaco made a sale to France in 1851, Russia sold Alaska to
the United States in 1867, the Netherlands sold African colonies to
Great Britain in 1872, Sweden sold the island of St. Bartholomy to
France in 1877, the United States bought the Philippines in 1898. The
fact of the sale is not a matter of international law, but is purely
within the range of the public law of the countries concerned. The
change of jurisdiction of the area gives rise to certain possible
complications which may involve principles of international law, though
generally the conditions of sale settle such questions.
(4) _Cession of jurisdiction_ over a given portion of territory as
surety for the performance of a certain act, payment of an indemnity or
the like, has for some years been a method of acquiring temporary
jurisdiction which frequently becomes permanent.
(_e_) =Prescription=, or the acquisition of territory by virtue of
long-continued possession, is similar to prescription in public law as
applied to the acquisition of property by persons. The recognition of
this principle prevents many disputes over jurisdiction of territory
which originally may have been acquired in a manner open to question,
_e.g._ the holding of the territory by the states parties to the
partition of Poland may through long-continued possession be valid by
prescription if not by the original act.
In regard to prescription, it should be observed that (1) it is a title
valid only against other states. The inhabitants do not necessarily
lose rights originally possessed. (2) This method avoids perpetual
conflicts on ground of defect of original title. (3) Prescription may be
considered as effective when other states have for a considerable time
made no objection, threatening the exercise of jurisdiction by the state
in possession. While some authors deny this right, it is generally
admitted in fact, and by most of the leading authorities acknowledged in
theory.[130]
(_f_) When land areas in the neighborhood of the boundary of a state are
changed, territory may be acquired by =accretion=. (1) Land formed by
_alluvium_ or other cause near the coast of a state is held to belong to
that state. Lord Stowell, in 1805, held that mud islands formed by
_alluvium_ from the Mississippi River should for international law
purposes be held as part of the United States territory.[131] In
general, _alluvium_ becomes the property of the state to which it
attaches, following the Roman law.[132] (2) Where a river is the
boundary, the rule is well-established that islands formed on either
side of the deepest channel belong to the state upon that side of the
channel; an island formed mid-stream is divided by the old channel line.
(3) When a river's channel is suddenly changed so as to be entirely
within the territory of either state, the boundary line remains as
before in the old channel. So also the boundary line of territory is not
changed, even if the bed of a lake be changed.
§ 48. Qualified Jurisdiction
Two degrees of qualified territorial jurisdiction are exercised in the
protectorate and the sphere of influence.
(_a_) =Protectorates.= The protecting state usually acquires the
jurisdiction over all external affairs of the protected community, often
including territorial waters, and assumes the direction of its
international relations. A measure of jurisdiction of those internal
affairs which may lead to international complications is also generally
assumed by the protecting state, _e.g._ treatment of foreigners in the
protected territory, relations of protected subjects in foreign
countries, use of flag, etc. The conditions of protected states vary
greatly, hardly the same description holding for any two. It may be safe
to say that (1) the protecting state cannot be held responsible for the
establishment of any particular form of government, (2) a reasonable
degree of security and justice must be maintained. As to what
constitutes a "reasonable degree," the circumstances of each case must
determine; then the protecting state is bound to afford such justice and
security and (3) must be able to exercise within the protected area such
powers as are necessary to meet its responsibilities.
(_b_) The term "=sphere of influence=" has been used since the Berlin
Conference, 1884-1885, to indicate a sort of attenuated protectorate in
which the aim is to secure the rights without the obligations. First
applied to Africa in the partition of the unexplored interior among the
European powers,--Great Britain, Germany, France, Italy, Portugal,--it
has since been extended to other regions. This doctrine of mutual
exclusion of each from the "spheres" of all the others cannot be held to
bind any states not party to the agreement.
The method of exercise of "influence," while varying, usually consists
in making with the native chiefs treaties which convey privileges other
than the cession of sovereignty. These privileges are often commercial,
and may be with the state direct or agreements with some company to whom
the state has delegated a portion of its authority, as in the African
trade companies.
The "spheres of influence," gradually with the growth of power of the
influencing state and the necessity of protecting the "sphere," against
other states, become less vague in their relations to the influencing
state and merge into protectorates or some other more stable condition.
This "sphere of influence" idea, as well as the "Hinterland Doctrine,"
can be of only temporary importance, owing to the limited area still
open to occupation. It is maintained that within the "sphere" the
influencing state has jurisdiction to the exclusion of another state,
and that it has a right to occupy the territory later, if advisable. The
influencing state disclaims all obligations possible.[133]
§ 49. Maritime and Fluvial Jurisdiction
Wheaton states as a general principle of maritime and fluvial
jurisdiction, "Things of which the use is inexhaustible, such as the
sea and running water, cannot be so appropriated as to exclude others
from using these elements in any manner which does not occasion a loss
or inconvenience to the proprietor."[134] While the tendency of
international policy is toward unrestricted freedom of river navigation,
yet the principle as enunciated by Wheaton cannot be said to be
established in practice. The American and Continental writers have
generally favored the principle enunciated by Wheaton. English writers
have contended against this position as a right, but admit that the
principle is becoming established by numerous treaties and conventions.
As to the sea, the principle may be said to be established.
§ 50. Rivers
The jurisdiction of rivers is a question which is not identical with the
right of navigation of rivers, and may best be considered apart. The
question of jurisdiction is one of general international principle,
while the question of river navigation is one of particular provision,
in many instances.
The rivers fall under three classes:--
1. Rivers which traverse only one state.
2. Rivers which traverse two or more states.
3. Rivers upon the opposite banks of which different states have
jurisdiction.
(_a_) =Rivers which traverse only one state= are exclusively within the
jurisdiction of that state. This jurisdiction may extend even to the
forbidding of the use of a river to other states, and justifies the
state in prescribing such regulations for its use as it may deem fit.
(_b_) =Rivers flowing through two or more states= are for those parts
within the boundaries of each state under its jurisdiction for the
purposes of police, tolls, and general regulations. The right of
absolute exclusion of the co-riparian states by any one of the states
through which a river flows has been the subject of much discussion, and
authorities of great weight can be found upon either side.
(_c_) =When two states have jurisdiction= upon opposite banks of a
river, the jurisdiction of each state extends to the middle of the main
channel or _thalweg_. Before the Treaty of Luneville (Art. VI.), 1801,
it had been common to consider the limit of jurisdiction of the two
states the middle of the river, a line much more difficult to determine,
and more changeable than the channel line. The _thalweg_ has been
frequently confirmed as the accepted boundary where no conventions to
the contrary existed.[135]
§ 51. The Navigation of Rivers
The laws of jurisdiction of rivers are generally accepted. The early
idea that there was a natural _right of navigation_, and _innocent
passage_ has received less support during the nineteenth century than
formerly. The history of river navigation during the nineteenth century,
as shown in the discussions between the representatives of various
nations, and in the treaties and conventions agreed upon, as well as in
treaties and declarations voluntarily made in regard to navigation of
rivers, seem to furnish general rules.
1. That international law gives to other states no right of navigation
of rivers wholly _within_ the jurisdiction of another state.
2. That when a river forms the _boundary_ of two or more states it is
open to the navigation of each of the states.
3. That when a river passes _through_ two or more states, international
law gives no right to one of the states to pass through the part of the
river in the other state or states. There is a strong moral obligation
resting upon the states below to allow freedom of navigation through the
river to the states upon the upper course of the river. The right of
_innocent use_, _innocent passage_, _freedom of river navigation_, has
been maintained on various grounds and in various forms, by many
authorities.[136] Those who take a position opposed to this claim,
assert that the navigation of rivers is, and properly should be, to
avoid more serious complications, a matter of convention.
In fact, since the French Revolution, the subject has so frequently been
a matter of convention[137] as to establish the general principles, that
in case of no special restrictions, river navigation is free, subject to
such regulations as the state having jurisdiction may deem necessary,
and that the privilege of navigation carries with it the use of the
river banks, so far as is necessary for purpose of navigation.[138]
§ 52. Enclosed Waters
(_a_) The rule in regard to =waters wholly within= the territory of a
state such as lakes, etc., is that the jurisdiction is exclusively in
that state.
(_b_) =Gulfs, bays, and estuaries= are regarded as within the
jurisdiction of the state or states enclosing them, provided the mouth
is not more than six miles in width. A line drawn from headland to
headland on either side of the mouth is considered as the coast line of
the state, and for purposes of maritime jurisdiction the marine league
is measured from this line. Waters having wider openings into the sea
have been claimed on special grounds, as the claim of the United States
to territorial jurisdiction over the Chesapeake and Delaware bays.
France and Germany claim jurisdiction over gulfs having outlets not over
ten miles in width. Between states parties to treaties special claims
have been made and allowed. These treaty stipulations do not necessarily
bind states not parties to the treaty, _e.g._ treaty between Great
Britain and France, 1839. "It is agreed that the distance of three
miles, fixed as the general limit of the exclusive right of fishing upon
the coasts of the two countries, shall, with respect to bays, the mouths
of which do not exceed ten miles in width, be measured from a straight
line drawn from headland to headland."[139]
The present tendency is toward a restricted jurisdiction and the
acceptance of the six-mile limit of width of mouth, though there is a
reasonable claim that some ratio should be fixed for very large interior
water areas to which the entrance, though more than six miles, is yet
relatively narrow.
(_c_) =Straits= less than six miles in width are within the jurisdiction
of the shore state or states. In case two shores are territory of
different states, each state has jurisdiction to the middle of the
navigable channel.
Where a state owns both shores of a strait which does not exceed six
miles in width, the strait is within its territorial jurisdiction,
though other states have the right of navigation. This right of
navigation is in general conferred upon both merchant and war vessels of
states at peace with the territorial power. These vessels must, however,
comply with proper regulations in regard to navigation. The claim to
exclusive jurisdiction over such narrow straits has been abandoned.
The claim of the king of Denmark to jurisdiction over the Danish Sound
and the Two Belts, which entitled him to levy tolls upon vessels passing
through, was based on prescription and fortified by treaties as early as
the one with the Hanse towns in 1368. Against these tolls, as an unjust
burden upon commerce, the United States protested in 1848, at the same
time maintaining that Denmark had not the right of exclusive
jurisdiction. The European states in 1855 paid a lump sum in
capitalization of the sound dues. The United States, refusing to
recognize the right of Denmark to levy tolls, paid $393,011 in 1857 in
consideration of Denmark's agreement to keep up lighthouses, etc.
The navigation of the Bosphorus and Dardanelles has been a subject of
discussion and treaty since 1774, when Russia compelled Turkey to open
these straits to the passage of merchant vessels. War vessels were
excluded till 1856 when, by convention attached to the Treaty of Paris,
such vessels were admitted for special purposes of service to the
embassies at Constantinople and protection of improvements on the Danube
waterway. By the Treaty of 1871 the Sultan may admit other war vessels,
if necessary for carrying out terms of the Treaty of Paris. The United
States has never acknowledged that the Sultan had the right to exclude
its war vessels, though always asking permission of the Sultan to pass
the Dardanelles.
As a generally accepted principle the law may be stated as follows:
straits connecting free seas are open to the navigation of all states,
subject of course to reasonable jurisdiction of the territorial power.
(_d_) =Canals= connecting large bodies of water have been regarded as in
most respects subject to jurisdiction similar to that of straits. Yet as
these canals are constructed at a cost, they must also be given
exemptions from certain restrictions which properly apply to natural
channels.
The position of the Suez Canal as an international waterway gives some
indication of existing practice.
It is to be noted, (1) that the canal is an artificial waterway; (2)
that M. de Lesseps, a foreigner, in 1854, under authorization of the
Viceroy, undertook its construction as a business venture; (3) that it
is wholly within the territory of Egypt.
The case is then one of an artificial waterway, constructed by private
capital, wholly within the territory of a state.
The negotiations continued from 1869, when the canal was opened, to
1888, when a convention was signed by the Six Great Powers, and by the
Netherlands, Spain, and Turkey, by which the status of the canal was
defined. By Article I. of the Conventional Act, "The Suez Maritime Canal
shall always be free and open, in the time of war as in the time of
peace, to every vessel of commerce or of war, without distinction of
flag.
"Consequently, the High Contracting Parties agree not in any way to
interfere with the free use of the Canal, in time of war as in time of
peace.
"The Canal shall never be subjected to the exercise of the right of
blockade."
By Article IV., the canal is not to become the base of hostile action.
The marine league is to be respected in the action of foreign vessels.
The twenty-four hour period was to elapse between the sailing of hostile
vessels.
By Article VII., the powers might keep two war vessels in the "ports of
access of Port Said and Suez," though "this right shall not be exercised
by belligerents."
By Article X., the territorial jurisdiction for general administrative
purposes is affirmed, and likewise for sanitary measures in Article
XV.[140]
This Suez Canal of such great international importance is by this
convention within the jurisdiction of Egypt, but the powers have assumed
to provide that this jurisdiction shall not be exercised in such a way
as to prevent innocent passage.
The Panama or Nicaraguan Canal is in part provided for by the
Clayton-Bulwer Treaty, between the United States and Great Britain in
1850, but in case of actual operation new agreements would be
necessary.[141]
The canal at Corinth, shortening somewhat the route to the Black Sea and
Asia Minor, was opened in 1893. This canal does not, like the Suez,
greatly change the current of the world's intercourse, and is entirely
within the jurisdiction of Greece.
Similarly the canal at Kiel, opened in 1896, is wholly within the
jurisdiction of Germany.
§ 53. The Three-mile Limit
One of the most generally recognized rules of international law is that
the jurisdiction of a state extends upon the open sea to a distance of
three miles from the low-water mark. In the words of the Act of
Parliament passed in consequence of the case of the _Franconia_,[142]
1878 (41 and 42 Victoria, c. 73), "The territorial waters of Her
Majesty's dominions, in reference to the sea, means such part of the sea
adjacent to the coast of the United Kingdom, or the coast of some other
part of Her Majesty's dominions, as is deemed by international law to be
within the territorial sovereignty of Her Majesty; and for the purpose
of any offence declared by this Act to be within the jurisdiction of the
Admiral, any part of the open sea within one marine league of the coast
measured from low-water mark shall be deemed to be open sea within the
territorial waters of Her Majesty's dominions." The three-mile limit
became more and more generally recognized after the publication of
Bynkershoek's "De Dominio Maris," in which he enunciates the principle
that the territorial jurisdiction ends where the effective force of arms
ends, which being approximately three miles from shore at that time, has
since been usually accepted.
For special purposes a wider limit of jurisdiction is maintained and
sometimes accepted by courtesy, though it is doubtful whether any state
would attempt to hold its position against a protest from another state.
The claims are based on the jurisdiction over fisheries, the enforcement
of revenue laws, and the maintenance of neutrality. Such claims as the
former English claims to the "King's Chambers," announced in 1604 to be
bounded by a "straight line drawn from one point to another about the
realm of England," as from the Lizard to Land's End, would not now
receive serious support; and since the rejection of the claims of the
United States by the Bering Sea Tribunal, it can be safely stated that
the expansion of territorial jurisdiction upon the open sea will only
come through the consensus of states. The desirability of some new
regulations upon marine jurisdiction was well shown in the discussions
of the Institute of International Law at its meeting in Paris in
1894.[143]
Within the three-mile limit the jurisdiction extends to commercial
regulations, rules for pilotage and anchorage, sanitary and quarantine
regulations, control of fisheries, revenue, general police, and in time
of war to the enforcement of neutrality.
§ 54. Fisheries
The existence of fisheries has given rise to some special claims to
extension of maritime jurisdiction.
(_a_) As a general rule, the right of =fishing on the high sea= belongs
to all states alike, but each must respect the rights of others. In
order that these rights might be defined, it has in many cases been
necessary to resort to conventions. One of the most recent examples of
this kind is seen in the convention in regard to the North Sea
Fisheries, May 6, 1882, to which Belgium, Denmark, France, Germany,
Great Britain, and Holland are parties. The cruisers of any of these
states may present the case of the fishing vessel violating the
regulations of the convention in the country to which the vessel
belongs, but the trial and penalty belong to the country of the
vessel.[144]
(_b_) Special privileges granted by one state to another, or secured by
custom, become servitudes, as in the case of the =Canadian= fisheries,
and must depend upon the interpretation of the treaties by which they
were granted.
By the Treaty of 1783 the United States have the right of fishing on
certain parts of the coast of the British Dominion in North America.
Great Britain claimed that these rights were annulled by the Treaty of
Ghent, 1814, which put an end to the War of 1812 as that treaty was
silent upon the subject. The United States declared "they were not
annulled by the war as they were enjoyed by the colonists before the
separation from England in 1783, and so existed perpetually independent
of treaty."
This claim was adjusted by the Treaty of 1818, which gave to the United
States permission to take fish on certain parts of the coast of
Newfoundland and Labrador, to dry and cure fish in certain inlets, and
to enter other inlets for shelter, repairs, and supplies.
Disputes arising under this treaty were settled by the Treaty of 1854,
which gave to Canadian fishermen certain rights of fishing along the
eastern coast of the United States north of the thirty-sixth parallel of
latitude.
The United States took action to terminate this treaty in accord with
its terms in 1866. The conditions of the Treaty of 1818 revived.
The Treaty of Washington, 1871, practically reëstablishes the provisions
of the Treaty of 1854, specifying that the difference in value between
the rights granted by each state to the other should be determined by a
commission. This commission awarded $5,500,000 to Great Britain in
1877.[145]
In accord with the provisions of the Treaty of 1871, it was terminated
by the United States in 1886, the provisions of the Treaty of 1818 again
coming in force.
A law of March 3, 1897,[146] provides that the President may in certain
contingencies deny vessels of the British Dominions of North America
entry into the waters of the United States, and may also prohibit the
importation of fish and other goods.
(_c_) Another question which has given rise to much discussion is that
of the =seal-fishing in Bering Sea=.[147]
In 1821 Russia claimed that the Pacific north of latitude 51° was _mare
clausum_. The United States and Great Britain denied this claim. By
conventions, 1824 and 1825, Russia conceded to these nations rights of
navigation, fishing, etc. After the United States in 1867 acquired
Russian America, seal-fishing assumed importance. As the Canadian
fishermen were not restrained by the laws binding the United States
fishermen, it was feared that the seal would become extinct. In 1886
three Canadian schooners were by decree of the district court of Sitka
confiscated for the violation of the laws of the United States in regard
to seal-fishing, the judge charging the jury that the territorial waters
of Alaska embraced the area bounded by the limits named in the treaty of
cession to the United States of 1867 as those "within which the
territories and dominion conveyed are contained."[148] This act with
others of similar character led to a formal protest by Great Britain.
The questions in dispute were referred to a court of arbitration which
decided against the claims of the United States, denying that the sea
referred to as the Bering Sea was _mare clausum_, and denying that the
United States acquired jurisdiction by prescriptive right from Russia in
1867. It was also decided that the United States had no right of
property in the seals in the open sea, and that the destruction of these
animals was contrary to the laws of nature. The United States and Great
Britain, however, entered into an agreement in regard to the protection
and taking of the seals by their subjects. Other nations were also to be
asked to become parties to the agreement.[149]
It may be regarded as finally established that fishing in the open sea
is free to all, though of course states may by conventions establish
regulations which shall be binding upon their subjects.
§ 55. Vessels
At the present time every vessel must be under the jurisdiction of some
state.
(_a_) =Classes.=--Vessels are divided into two general classes.
(1) _Public vessels_, which include ships of war, government vessels
engaged in public service, and vessels employed in the service of the
state and in command of government officers.
(2) _Private vessels_, owned by individuals and under regulations
varying in different states.
(_b_) The =nationality= of a public vessel is determined by its flag. In
an extreme case the word of the commander is held to be sufficient
proof.
In case of a private vessel the flag is a common evidence, but in case
of doubt the vessel must show to proper authorities its papers which
certify its nationality.
(_c_) The general exercise of =jurisdiction over vessels= is as
follows:--
(1) Upon the high seas and _within its own waters_ the jurisdiction
of a state over its public and private vessels is exclusive for all
cases.
(2) Over _public vessels in foreign waters_, the jurisdiction of the
state to which a public vessel belongs is exclusive for all matters of
internal economy. The vessels are subject to port regulations in
matters of anchorage, public safety, etc. As Dana says in his note to
Wheaton, "It may be considered as established law, now, that the
public vessels of a foreign state coming within the jurisdiction of a
friendly state, are exempt from all forms of process in private
suits."[150] In general practice the waters of all states are open to
the vessels of war of all other states with which they are at peace.
This is a matter of courtesy and not of right, and is in fact
sometimes denied, as by the provision of the Treaty of Berlin, 1878,
"The port of Antivari and all the waters of Montenegro shall remain
closed to the ships of war of all nations."[151] Various regulations
may require, without offence, notice of arrival, probable duration of
stay, rank of commander, etc.
The boats, rafts, etc., attached to a vessel of war are regarded as a
part of the ship while engaged in the public service.
While there is some difference of opinion as to the immunities of the
persons belonging to a ship of war in a foreign harbor, a generally
admitted rule seems to be that while the persons of a ship of war are
engaged in any public service that is not prohibited by the local
authorities, such persons are exempt from local jurisdiction. The ship's
crew would not be arrested and detained by local authorities for minor
breaches of local regulations, though they might be sent on board their
vessel with statement of reasons for such action. If the action of the
crew constitutes a violation of the law of the country to which they
belong, the commander of the ship may punish them, and report his action
to the local authorities. In case of crimes of serious nature the
commander may turn the offenders over to the local authorities, but must
assure them a fair trial.
The commander of a vessel is, of course, always responsible to his home
government, and his action may become the subject of diplomatic
negotiations.
The question of _right of asylum_ on board a ship of war has been much
discussed. _First_, Most civilized states now afford asylum on board
their ships of war to those who, in the less civilized regions, flee
from slavery.[152] _Second_, In cases of revolution ships of war
sometimes afford refuge to members of the defeated party, though the
ship of war may not be used as a safe point from which further
hostilities may be undertaken. _Third_, A commander may afford asylum to
political refugees under circumstances which he thinks advisable.
_Fourth_, In cases where asylum is granted to offenders whether
political, or (in case of treaty right) criminal, if the request of the
local authorities for the release of the criminal is refused by the
commander of the ship, there is no recourse except to the diplomatic
channels through extradition.
The immunities granted to vessels of war are also generally conceded to
other vessels strictly upon public service, _e.g._ carrying an
ambassador to his post. The largest possible exemption is given to a
vessel conveying the sovereign of a state. Vessels transporting
military forces in command of regularly commissioned government officers
are usually granted immunities accorded to men-of-war.
(3) Over _private vessels in foreign waters_ the amount of
jurisdiction claimed by different states varies.
The principle which is meeting with growing favor, as shown by practice
and by treaty stipulation, is stated by Chief Justice Waite in 1886 as
follows, "Disorders which disturb only the peace of the ship, or those
on board, are to be dealt with exclusively 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."[153]
The position of France is, briefly, to assume no jurisdiction over
foreign merchantmen within her ports save in cases where the act affects
some person other than those belonging to the ship, where the local
authorities are expressly called upon to interfere, or, when the order
of the port is disturbed.[154]
The British Territorial Waters Jurisdiction Act of Aug. 28, 1878, gives
jurisdiction to the authorities over all acts committed within the
marine league, even though the ships are not anchored but merely passing
through territorial waters.[155] This is an extreme position, and not
supported by the best authorities, even in Great Britain.
The position of France, as stated above, is open to little objection
either in practice or theory, and is more and more becoming a form of
treaty agreement, and may be considered generally approved. Where these
principles are adopted the jurisdiction of breaches of order within the
ship may be referred to the home consul at the port, who has
jurisdiction, and if necessary may call upon the local officers to
assist him in enforcing his authority.
(4) In recent years special exemption from jurisdiction has been
accorded to certain _semi-public_ vessels engaged particularly in the
postal and scientific service. Vessels in the postal service have by
treaties been accorded special freedom from customs and port
regulations; and by the Convention between Great Britain and France,
Aug. 30, 1890 (Art. 9), it is agreed that in time of war such vessels
shall be free from molestation till one of the states shall give
formal notice that communication is at an end.
§ 56. Jurisdiction over Persons--Nationality
Under the discussion of jurisdiction of the state over persons comes the
question of nationality. Nationality involves the reciprocal relations
of allegiance and protection on the part of the person and state. It
corresponds to citizenship in the broad sense of that term. In general a
state may exercise jurisdiction over its own subjects or citizens as it
will, and the relations of a state to its citizens are matters of
municipal law only.
A state exercises jurisdiction over all persons within its limits except
certain officers of other states by exterritoriality entitled to
exemption from local jurisdiction. In some of the Eastern states
citizens of Western states are by treaty exempt from certain local
laws. This last exemption may properly be said to be by local law, as a
treaty becomes a part of the state law for the subjects upon which it
touches.
The jurisdiction also varies with the status of the person as regards
his relations to other states. The conflict of laws in regard to
nationality forms an important part of _private international law_.
§ 57. Jurisdiction over Natural-born Subjects
Children born within a state of which the parents are citizens are
natural-born subjects of that state. Such persons are fully under the
local jurisdiction.
Foundlings, because of the uncertainty of parentage, are considered
subjects of the state in which they are found.
Illegitimate children take the nationality of the mother, provided they
are born in the state of which the mother is subject.
The great bulk of the population of all states, except those most
recently founded, is natural-born, and therefore fully under local
jurisdiction.
§ 58. Foreign-born Subjects
It is the general principle that each state determines citizenship by
its own laws. The status of persons born abroad may become very
uncertain by virtue of the conflict of laws of the state of which one or
both the parents are citizens and the state in which the child is born.
These laws in regard to children born to parents while sojourning in
foreign countries may be classified as follows:--
(_a_) The child born in the foreign country is a subject of the state of
which his parents are citizens. That the child inherits the nationality
of his father is a common maxim known as _jus sanguinis_. The United
States law says, "All children heretofore born or hereafter born out of
the limits and jurisdiction of the United States, whose fathers were or
may be at the time of their birth citizens thereof, are declared to be
citizens of the United States; but the rights of citizenship shall not
descend to children whose fathers never resided in the United
States."[156] The _jus sanguinis_ is followed by Austria,[157]
Germany,[158] Hungary,[159] Sweden,[160] Switzerland,[161] and by some
of the smaller European states.
(_b_) Certain states follow the rule of _jus soli_, maintaining that the
place of birth determines the nationality. Great Britain, by Article 4,
of the Act of May 12, 1870, adopts this principle. By the Fourteenth
Amendment of the Constitution of the United States, "All persons born or
naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the state wherein they
reside." The laws of the United States have given rise to many
questions.[162] Portugal and most of the South American states follow
the _jus soli_.
(_c_) Other states follow sometimes the _jus sanguinis_, sometimes _jus
soli_, and sometimes modifications of these laws. The laws of Belgium
and Spain regard the child of an alien as an alien, though on attaining
majority the child may choose the citizenship of the country of his
birth. The French laws of June 26-28, 1889, and July 22, 1893, consider
as subjects the children born abroad to French citizens, also the
children of foreigners born in France, unless these children within one
year after attaining majority elect the nationality of their parents.
Most states allow the descendants born to foreigners sojourning within
their limits to elect their allegiance on attaining majority.
Switzerland, however, strongly maintains the _jus sanguinis_, without
according any choice to the descendants born to foreigners within her
limits, or to her own subjects born abroad except by formal renunciation
of citizenship. Thus the child of a citizen of Switzerland born in
France would be by French law a citizen of France, and by Swiss law a
citizen of Switzerland.
By the law of Germany, a citizen of Germany sojourning more than ten
years abroad without registration at his consulate loses his German
citizenship, without necessarily acquiring the citizenship of the
country of his sojourn, thereby becoming _heimatlos_, or a "man without
a country."
At the present time the laws in regard to descendants born to parents
sojourning in a foreign state show the widest diversity and give rise to
unfortunate complications.[163]
§ 59. Jurisdiction by Virtue of Acquired Nationality
The jurisdiction of a state extends to those who voluntarily acquire its
citizenship.
(_a_) A woman in most states =by marriage= acquires the nationality of
her husband. In some of the South American states the husband acquires
the citizenship of his wife. By the law of Belgium, Aug. 6, 1881, and
by the law of France, June 26, 1889, it was made easier for foreigners
who had married women natives of those states to acquire Belgian or
French nationality respectively. The United States law, while holding
that a woman marrying a citizen of the United States acquires his
nationality, does not hold that an American woman on marrying a
foreigner thereby becomes expatriated, unless she takes up her residence
in her husband's state.[164]
(_b_) A state may acquire jurisdiction over persons =by naturalization=,
which is an act of sovereignty by which a foreigner is admitted to
citizenship in another state. The method of naturalization is in accord
with local law and varies greatly in different states.[165] The law of
the United States prescribes that Congress has power "to establish an
uniform rule of naturalization."[166] The foreigner desiring
naturalization in the United States must declare on oath before a court
after three years of residence in this country, his intent to become a
citizen, and, after he has remained here two years longer he must take
an oath of allegiance to the United States and of renunciation of his
former country. An alien who has resided in the United States the three
years next preceding the attaining of his majority and who continues to
reside in this country at the time of his application, may, after
reaching twenty-one years of age, and after residing here five years
including the three years of minority, become a citizen by making a
declaration at the time of admission.[167]
(_c_) A state may acquire jurisdiction over persons =by annexation of
the territory= upon which they reside. The territory may be acquired by
cession, exchange, purchase, conquest, etc. The conditions of the
transfer of allegiance from the state formerly possessing the territory
is usually fixed by the treaty. This transfer is known as collective
naturalization.
Ordinarily a right to choose the allegiance to either state is left to
the inhabitants of an annexed territory. Removal from the new
jurisdiction is usually required if the inhabitant does not choose to
change his allegiance. If the inhabitant does not take any action, it is
held that he thereby tacitly transfers his allegiance unless there are
special treaty provisions.[168]
(_d_) =The effect of naturalization=, whatever the method, is to make
the person a citizen of the state into which he is admitted, and over
him that state has jurisdiction in all places outside the jurisdiction
of the state whose allegiance he has forsworn.
There is conflict of the laws determining the relations to his native
state of a person who has renounced his allegiance to one state by
naturalization in another state. The general law is, that he becomes
entitled to all the privileges of a subject of the state of his new
allegiance, except that when he is within his first state he becomes
liable for the performance of any obligation which he may have incurred
prior to his naturalization.[169]
A state may determine what conditions must be fulfilled in order to
constitute a valid severance of allegiance. Laws are diverse upon this
subject. Many states have maintained, and some still maintain, that
allegiance is inalienable.[170] England formally maintained this
principle till 1870, and her attempts to enforce the principle brought
on the War of 1812 with the United States.
In certain countries, as in the United States and Switzerland, minor
children are held to follow the allegiance of their father in case of
naturalization. The French law claims that the minor child's nationality
is that of his birthplace. The subject has been determined in some
instances by treaty stipulation, yet must be considered, like many
questions of naturalization, as unsettled.
Many states distinguish in law and more in practice between that
naturalization which carries with it protection of the state and
allegiance of the subject (_naturalisation ordinaire_) and that
naturalization which carries full political privileges (_grande
naturalisation_).
(_e_) =Incomplete naturalization.= The fact that a person has taken the
preliminary steps toward acquiring the nationality of a foreign state,
by making a declaration of his intention or otherwise, may give the
state to which the person has assumed an inchoate allegiance the right
of protection of the declarant against third states,[171] though not
necessarily against the native state of the declarant.[172] Of the
privileges to be accorded to one who has declared his intention to
become a citizen of the United States, Secretary Marcy said, "The
declaration, indeed, is _prima facie_ evidence that the person who made
it was, at its date, domiciled in the United States, and entitled
thereby, though not to all, to certain rights of a citizen, and to much
more consideration when abroad than is due to one who has never been in
our country; but the declarant, not being a citizen under our laws, even
while domiciled here, cannot enjoy all the rights of citizenship either
here or abroad;"[173] and Mr. Marcy also says of the papers proving
domicile, "And to this simple certificate ... the European authorities
are at liberty to pay such respect as they think proper."[174]
In 1853 a case arose in which the United States affirmed: "It is a maxim
of international law that domicile confers national character; ...
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."[175] This statement was made in support of the
position assumed by the United States in the case of one Martin Koszta.
Koszta, a Hungarian refugee of 1848-1849, went to Turkey, was
imprisoned, later was released on condition of leaving the country, went
to the United States, declared his intention to become a citizen, and in
1853 returned to Turkey. He went into business at Smyrna, obtained there
a traveling pass certifying that he was under protection of the United
States, was seized, thrown into the sea by persons employed by the
Austrian consulate, and was picked up by an Austrian man-of-war,
_Hussar_. The consul of the United States remonstrated, but the captain
of the _Hussar_ held Koszta. The chargé d'affaires requested the aid of
a United States man-of-war, whose captain demanded Koszta's release. To
avoid conflict in the port the mediation of the French consul was
accepted, and Koszta was intrusted, pending settlement of claims, to the
French consul. Finally Koszta was allowed to return to the United
States, though Austria maintained her right to proceed against him if he
returned to Turkey. The United States in this case undoubtedly took an
extreme position in its claim of jurisdiction.
By an act of March 3, 1863, the United States declared that those who
had taken the preliminary oath of intention to become citizens were
liable to military service. Upon protest by foreign nations against this
act of Congress, the President, by proclamation, announced that, as it
had been claimed that "such persons, under treaties or the law of
nations, retain a right to renounce that purpose, and to forego the
privileges of citizenship and residence within the United States, under
the obligations imposed by the aforesaid act of Congress,"[176] to avoid
all misapprehension, the plea of alienage would be accepted for
sixty-five days, during which time such persons as had only declared
their intention to become citizens might depart.
The position in the Koszta case, where the claim to the protection of
the United States was made when the inchoate citizen was in trouble, and
the claim of the inchoate citizens to renounce their allegiance when the
state was in difficulties, show some of the problems to which the
diverse laws and practices in regard to naturalization have given rise.
The municipal laws of some of the local states of the United States
admit to all political privileges of the local state those who have
taken the first steps toward naturalization. It is generally conceded
that such as have exercised the privileges of full citizens can properly
be held to the obligations of full citizens, as was declared in the
above proclamation.
The inconsistencies in regard to jurisdiction over those naturalized or
incompletely naturalized are gradually yielding to treaty provisions
which distinctly determine the position of such persons.
§ 60. Jurisdiction over Aliens
Citizens of one state, when sojourning in a foreign state, have a dual
relationship by which they may claim certain privileges, both from their
native state and from the foreign state.
(_a_) The native state naturally has =jurisdiction= of a qualified sort
=over= its =subjects= even when they are =in a foreign state=.
(1) The right to make _emigration laws_ may lead to restrictions
binding in a foreign state. A state may banish its subjects. No other
state is obliged to receive them, however.
(2) A state may _recall its citizens for special reasons_, as in the
case of Greece in 1897, when Greek citizens were recalled for military
service.
(3) There is much difference of opinion upon the question of _penal
jurisdiction_ of the native state over its subjects who have committed
crimes in a foreign state. In general American and English authorities
agree that penal law is territorial. Some of the continental
authorities take the view that a citizen on his return may be punished
for crimes committed in a foreign state. The English law takes this
position in certain crimes, as treason, bigamy, and premeditated
murder. Usually a crime committed upon a vessel in a foreign harbor is
held as within the jurisdiction of the state of the vessel's registry.
(4) A state may interfere to _protect its subjects_ in a foreign
state, thus extending its authority in their behalf. This has been
frequently done to protect Western sojourners in Eastern states,
_e.g._ the demands of Germany, in 1898, for concessions from China on
account of injuries to missionaries. These demands, accompanied by a
naval demonstration, resulted in the cession of Kaio-Chau.
(_b_) The =jurisdiction= of a =state over aliens within its territory=
is very extensive.
(1) The absolute right of _exclusion_ of all foreigners would hardly
be maintained by any civilized state, though it could be deduced from
the doctrine of sovereignty. Whether justly or not, Japan and China
have been compelled by force to cede certain rights to states
demanding admission for their citizens.
(2) The right of _expulsion_ is, however, generally maintained. This
right should, however, be exercised most carefully, as the fact of
admission carries with it some obligation on the part of the admitting
state.
(3) The right to _conditional admission_ is generally allowed, as
seen in laws in regard to immigration.
(4) The foreign state may impose such restrictions upon _settlement_
as it sees fit.
(5) A foreign state may _levy_ such _taxes_ upon the person and
goods of aliens as are in accord with state law.
(6) Aliens are subject to the local _sanitary and police
jurisdiction_.
(7) The foreign state has _penal jurisdiction_ over aliens for
crimes committed within territorial limits, and many states maintain,
also, for such crimes as plotting against the state, counterfeiting
state money, or crimes directly imperiling the state's well-being even
when committed outside of state limits.
(8) The state may require aliens to render service such as is
necessary to _maintain public order_, even military service, to ward
off immediate and sudden danger, _e.g._ as an attack by savages, a
mob, etc., but
(9) A state cannot compel aliens to enter its _military service_ for
the securing of _political ends_, or for the general ends of war.
(10) In nearly all states _freedom of commerce_ is now conceded, the
state giving to native and foreigner similar privileges. China still
restricts trade to certain free ports.
(11) The _holding and bequeathing of property_ of whatever sort is
subject to local law.
(12) _Freedom of speech and of worship_ are also subject to local
law.
All these laws are subject to the exemptions in favor of sovereigns,
diplomatic agents, etc.
(_c_) Ordinarily the identity of an alien is established by a
=passport=. This may also secure for him a measure of care in a foreign
state. Below is the form of passport.
Good only for two years from date.
UNITED STATES OF AMERICA
+Department of State+
_To all to whom these presents shall come, Greeting_:
I, the undersigned, Secretary of State of the United States of
America, hereby request all whom
+DESCRIPTION+ it may concern to permit
Age.... Years.....................
Stature... Feet... Inches..., Eng. .............. ...............,
Forehead.......................... a Citizen of the United States,
Eyes.............................. ........................ safely
Nose.............................. and freely to pass, and in case
Mouth............................. of need to give ... all lawful
Chin.............................. Aid and Protection.
Hair..............................
Complexion........................ Given under my hand and the
Face.............................. Seal of the Department of State,
at the City of Washington, the
(+SEAL+) ... day of ....... in the year
19..., and of the Independence of
(Signature of the Bearer) the United States the one hundred
.................................. and.................
No..... ................
§ 61. Exemptions from Jurisdiction--General
As a general principle, the sovereignty of a state within its boundaries
is complete and exclusive. For various reasons there has grown up the
custom of granting immunity from local jurisdiction to certain persons
generally representing the public authority of a friendly state. This
immunity may extend to those persons and things under their control.
This immunity has been called exterritoriality. The persons and things
thus exempt from local jurisdiction are regarded as carrying with them
the territorial status of their native state, or as being for purposes
of jurisdiction within their own state territory, and beyond that of the
state in which they are geographically. Wherever they may go they carry
with them the territory and jurisdiction of their home state. Doubtless
this doctrine of exterritoriality in the extreme form may be carried too
far, as many late writers contend, and some have desired another term,
as immunity from jurisdiction, as more exact and correct.[177] Such a
term would have the merit of directing attention to the nature of the
relation which the persons concerned sustained to the state. Hall sums
up the case by saying, "If exterritoriality is taken, not merely as a
rough way of describing the effect of certain immunities, but as a
principle of law, it becomes, or at any rate is ready to become, an
independent source of legal rule, displacing the principle of the
exclusiveness of territorial sovereignty within the range of its
possible operation in all cases in which practice is unsettled or
contested."[178] Exterritoriality should be viewed as based on the
immunities conceded to public persons, rather than as the source of
these immunities.
§ 62. Exemption of Sovereigns
Sovereigns sojourning in their official capacity in foreign countries
are exempt from local jurisdiction. This principle is based, not merely
upon courtesy, but also upon convenience and necessity. The sovereign
represents the state, and therefore cannot be subjected to the
jurisdiction of another state without waiving the sovereignty, and in so
far depriving the state of one of its essential qualities. Nor can the
visiting sovereign exercise any authority which would infringe the
sovereign powers of the state in which he is. The visiting sovereign can
only claim immunity for such action as is in accord with the necessities
of his convenient sojourn. He, his retinue, and effects, are exempt from
civil and criminal jurisdiction. He is free from taxes, duties, police
and administrative regulations. In the case of Vavasseur _v._ Krupp,
1878, it was decided that infringement of the patent law did not
constitute a ground for suit against a sovereign. In this case Vavasseur
brought action against Krupp for infringement of patent on shells in
custody of the agents of the Mikado of Japan. The action resulted in an
injunction preventing removal of the shells to the Mikado's ships, but
on application of the Mikado to remove the shells as his property, the
court held that, even if the property in question infringed a patent,
the Mikado could not be sued and his property could not be held.[179]
The principle that the sovereign is free from suit has frequently been
decided by the courts of various countries. A sovereign sojourning in a
foreign state cannot, however, set up his courts and execute judgment;
such functions belong to his territorial courts. Criminals in his
retinue must be sent home for trial. While the sovereign's _hôtel_ or
place of residence while abroad is exempt from local jurisdiction, the
sovereign is not justified in allowing the _hôtel_ to become an asylum
for others than members of his retinue. On demand he must give up such
refugees. In case the sovereign does not observe this principle or
commits acts liable to endanger the peace of the foreign state, the
authorities may invite him to depart, or if necessary expel him by
force.
The sovereign may, in his private capacity, hold property and become
party to a suit like any citizen.[180] A sovereign may travel
_incognito_, and is then entitled only to the recognition accorded to
the rank which he assumes. He can, however, assert his sovereign
capacity and obtain its immunities at any time should he deem it proper.
§ 63. Exemptions of State Officers
(_a_) =Diplomatic agents=, or those commissioned to transact the
political affairs of the state abroad, are conceded a wide immunity from
local jurisdiction. As representing the political will of their state,
diplomatic agents have immunities similar to those conceded to the
sovereign, though by virtue of the fact that the sending of diplomatic
agents has long been a common practice, their immunities are quite well
defined. These immunities will be considered more in detail under the
subject of International Intercourse, but in general a diplomatic agent
is exempt from, (1) criminal jurisdiction, (2) civil jurisdiction, (3)
local police and administrative regulations, (4) taxes and duties, (5)
jury and witness duty, (6) regulations in regard to religious and social
action, (7) all exercise of authority by the local state within his
official residence or _hôtel_, (8) and from the exercise of similar
authority over his household, official and unofficial.
(_b_) The exemptions granted to =consuls= vary in different states and
under different circumstances. In general they are entitled to such
exemptions as will enable them to perform their functions
effectively.[181]
(_c_) Any foreign =army= within the territorial limits of a given state,
by permission of the sovereign of said state, is free from the
sovereign's jurisdiction. Chief Justice Marshall, in 1812, gave as his
opinion: "In such case, without any express declaration waiving
jurisdiction 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.... The grant of a free passage,
therefore, implies a waiver of all jurisdiction over the troops during
their passage, and permits the foreign general to use that discipline,
and to inflict those punishments, which the government of his army may
require."[182] Permission, either general or special, must be obtained
in order that an army may enter a foreign state in time of peace. The
army must cause the least possible inconvenience to the state during its
sojourn.
The military attaché of an embassy is regarded as a member of the
official household of the diplomatic agent.
(_d_) =Navy.= As a vessel of war can without inconvenience to a foreign
state pass through or remain within its maritime jurisdiction, it is
customary to accord to the vessel and crew immunity from local
jurisdiction and freedom of passage unless withheld for special reason.
"Their immunity from local jurisdiction has come to be more absolute
than that of the official residence of ambassadors, and probably for the
reason that they have the efficient means of resistance which an
ambassador has not."[183]
In general the exemption from local jurisdiction which a vessel of war
enjoys in a foreign state extends: (1) to acts beginning and ending on
board the vessel;[184] (2) to all boats, etc., of the vessel of war in
charge of the crew of the vessel and upon its service; (3) to freedom
from customs and all such regulations as are not necessary for the
safety of the port (it was held in case of the United States frigate
_Constitution_, in 1879, that she was not liable to salvage
charges;[185] the vessel is therefore liable to quarantine, anchorage,
etc., rules which imply no derogation of sovereignty); (4) to all
persons on board the vessel whether members of the crew or others. This
exemption should not be taken as warranting a general exercise of the
right of asylum on board vessels of war. Asylum can be granted as an act
of hospitality to a political refugee, who cannot use the vessel as a
base for political intrigue. Asylum to common criminals cannot be
granted without offense to the foreign state. Such criminals are usually
surrendered on request of the local authorities.
A commander cannot pursue deserters on shore or exercise external
authority.
Hall sums up the general principle as follows, "The immunities of a
vessel of war belong to her as a complete instrument, made up of vessel
and crew, and intended to be used by the state for specific purposes;
the elements of which she is composed are not capable of separate use
for those purposes; they consequently are not exempted from the local
jurisdiction."[186]
In case of abuse of exemptions the state in whose waters the foreign
ship of war is, can request it to depart; and if its request is not
complied with, can use force, though the customary method is to resort
to diplomatic channels.
§ 64. Special Exemptions
(_a_) In certain =Oriental states=, the subjects of Western states are
by treaty exempt from local jurisdiction. The extent of the exemption in
each case depends upon the treaty provisions. The basis of this
exemption is found in the "incompatibility of habits of thought on all
legal and moral questions,"[187] and the consequent impossibility of
obtaining what to the Western states seemed just treatment on the part
of Oriental officials. Consular courts were established to meet the
needs of foreigners within the jurisdiction of these Eastern
states.[188] The consuls in these states were invested with special
judicial powers, though not considered by the laws of the United States
judicial officers. Each state determines the competence of its consular
courts in foreign states.
The following rules are general, though not absolute, propositions in
regard to the treatment of cases involving natives of Eastern countries
and foreigners.
(1) _Penal Matters._ If a native commits a crime against a
foreigner, he is generally tried in the local court.
If a foreigner commits a crime against a native, he is generally
tried in the consular court of his state.
If a foreigner commits a crime against a foreigner of another
nationality, he is generally tried in the consular court of the
injured foreigner.
If both parties to the crime are of the same nationality, the
offenders are tried in the court of their own state.
If the crime is a grave one, such as murder, sentence cannot be
passed without the sanction of the home government, and in some cases
the offender is sent home for trial.
(2) _Civil Matters._ In cases involving a foreigner and a native,
the trial is generally by agents of the two countries.
In cases involving subjects of the same state, their consular court
has jurisdiction.
In cases involving foreigners of different nationalities the
consular court of the defendant has jurisdiction.
In cases involving large interests, there is an appeal from the
consular to the higher courts of the state.
In the East registration of the head of the family at the consulate
is necessary to obtain consular protection. Local statutes provide for
the execution of treaty stipulations as to consular jurisdiction.[189]
(_b_) =In Egypt mixed courts= were instituted in 1875. This system,
arranged by convention, has received the assent of nearly all the
European states and of the United States.[190]
The majority of the judges in these courts are foreigners, and the
courts have competence over cases against the Egyptian government, over
civil and commercial matters between foreigners and natives, and between
foreigners of different nationalities. Jurisdiction for other matters
remains in the consuls. These courts have been the subject of much
discussion and great difference of opinion.
§ 65. Extradition
Extradition is the act by which one state delivers a person accused of
crime committed beyond its borders to another state for trial and
punishment.
Many of the Continental states maintain that extradition is a duty
binding upon all civilized states, on the ground that the prevention of
crime which would result from certainty of punishment is an object to be
sought by all for the general good. Grotius, Vattel, Kent, Fiore, and
many other authorities maintain this position. Bluntschli, Foelix,
Klüber, G. F. de Martens, Pufendorf, Phillimore, Wheaton and the
majority of authorities make the basis of extradition the conventional
agreement of treaties.[191] The large number of extradition treaties of
the last half of the nineteenth century has made the practice general.
Occasionally a state has, in the absence of treaties, voluntarily
surrendered fugitives from justice as an act of courtesy. The
extradition of Tweed by Spain in 1876 was an act of this kind.[192] Such
cases are not common, however,[193] and it is safe to derive the
principles from the general practice as seen in treaties.
(_a_) =Persons liable to extradition= vary according to treaties. It is
the general practice to surrender on demand of the state in which the
crime is committed only those who are subjects of the state making the
demand. This is the general rule of the Continental states. As Great
Britain and the United States maintain the principle of territorial
penal jurisdiction, it is customary for these states to uphold the idea
of extradition even of their own subjects.[194] The practice is not
uniform in the relations of these states to other states, as is shown in
their treaties. The South American and Continental European states hold
that their own citizens are not liable to extradition.
A large number of the modern writers are in favor of the extradition of
subjects in the same manner as aliens, and it is evident that the drift
of international practice, as shown by the treaties of the last
quarter-century, is toward the refusal to grant protection to a subject
who has sought refuge in his native state after committing a crime
abroad.
In case the accused whose extradition is demanded is a citizen of a
third state, the practice is not uniform, though the best authorities
seem to favor the granting of the extradition only after communication
with and assent of the third state, on the ground that the state to
which the subject has fled is responsible to the third state for its
treatment of him. This practice has been followed in many European
treaties.
Ordinarily, not all criminals are liable to extradition, though treaty
stipulations may cover cases usually excepted. Those accused of
political crimes have, since the early part of the nineteenth century,
been more and more generally exempt from extradition. During the last
quarter of the nineteenth century few treaties have been made which do
not make political criminals specifically non-extraditable. Political
crimes accompanied by attacks upon the person of the sovereign or of
those holding political office or position are not, however, in the
above category, but are usually extraditable.
(_b_) Even when an accused person is extradited there are =limitations=
as to the jurisdiction of the state to which he goes. The trial must be
for the offense or offenses enumerated in the treaty. For example, a
treaty between two states enumerates among extraditable crimes murder,
and does not enumerate larceny. A fugitive from one of the countries is
accused of both murder and larceny. The country surrendering the
criminal would not permit the trial of the criminal for any other crime
than murder, until the criminal should have had opportunity to return to
the state from which he was surrendered. For many years Great Britain
claimed that a person surrendered in accordance with an extradition
treaty should be tried only for the specific offense for which he was
surrendered. The United States desired to include other offenses
provided the person had been once surrendered. This position of Great
Britain was accepted by the treaty of July 12, 1889.[195]
(_c_) =The conditions necessary= for a claim for extradition are: (1)
that the crime shall have been committed within the territorial or
maritime jurisdiction of the state making the demand, (2) that there be
sufficient evidence of guilt to establish a case, and (3) that the
application be from the proper authority and in the proper form.[196]
(_d_) The =procedure= in cases of extradition is based on definite
principles. As it is an act of sovereignty, it must be performed by
agents of the sovereign person, who for this purpose, although generally
engaged in other functions, are executive officers.[197] The general
rule is that the demand for extradition shall be made through the
ordinary diplomatic channels. In colonies and under special
circumstances an officer of first rank may be the medium of the demand.
The person demanded may be placed under provisional arrest pending the
full proceedings of extradition.[198]
Reasonable evidence of the identity of the person and of the facts of
the crime must be furnished by the state making the demand.
In case a person is demanded by two states, his native state and a third
state in which he has committed a crime, it is customary to grant the
request of the state in which he has committed the crime.
When a person is demanded on the ground of separate crimes committed in
both states as above, if the crimes are equally grave, the request of
his native state is granted. Sometimes, however, when the third state
offers to surrender the fugitive to his native state after he has paid
the penalty of his crime, the request of the third state is granted.
When the crime committed in one state is more grave than that committed
in another, the request of the state maintaining the graver charge is
granted.
When states other than the native state request the extradition of a
fugitive, the state receiving the demand may take into consideration the
gravity of the offense and the probability that a given state will,
after securing justice, make it possible for other states to prosecute
their claims. In cases of equal gravity priority of demand usually
determines the course of action.[199]
If the person demanded is accused of a crime in the state of refuge, the
demand for his extradition may be refused pending his trial in the state
of refuge.
Many other questions arise which complicate the actual procedure in
cases of extradition, but these belong mainly to the realm of _private
international law_.
§ 66. Servitudes
Servitudes in international law constitute a restriction upon the
exercise of the territorial jurisdiction of a state in favor of one or
more states.
(_a_) =International servitudes= are:--
(1) _positive_, implying that a state is under obligation to permit
within its territory another state to exercise certain powers, as by
the Treaty of Berlin, 1878, Art. XXIX. "The administration of the
maritime and sanitary police, both at Antivari and along the coast of
Montenegro, shall be carried out by Austria-Hungary by means of light
coastguard vessels;"[200]
(2) _negative_, implying that a state is to refrain from certain
acts, otherwise customary, as "Montenegro shall neither have ships of
war nor flag of war."[201]
Among the _positive servitudes_ are: those obligations of a state to
allow within its own jurisdiction the exercise of political or
administrative authority by another state, as in the execution of
judicial or police regulations; those obligations to allow the exercise
of military authority, as in military occupation of a portion of the
territory or the passage of troops. Among the _negative servitudes_ are:
those obligations of a state to refrain from exercising within its own
jurisdiction certain political or administrative authority which might
be exercised, if the servitude did not exist, as in the exemption of the
citizens or corporate persons of certain states from certain acts of
jurisdiction or taxation; those obligations to refrain from military
acts, such as the limitation of the army or navy to a certain number, or
the obligation not to fortify a certain place.
(_b_) There are also servitudes which may be called =general=, because
binding alike upon every state in favor of all others, such as the
innocent use of territorial seas.[202]
CHAPTER XII
PROPERTY
67. +Property in General.+
68. +State Property in International Law.+
§ 67. Property in General
The term "property" has been used in varying senses by writers upon
international law. By virtue of the fact that a state has jurisdiction
over all its public property there has sometimes been confusion between
the two terms, but jurisdiction may, and does, extend to persons and
things of which proprietorship cannot be affirmed by the state.
In the sense commonly used in international law the property of a state
is held to be all the lands and water within its limits. Within this
territory the state has rights to the exclusion of other states, and
upon the land area may exercise the right of eminent domain.
The idea of property in this international sense is distinct from that
of private ownership, which is merely relative and depends upon the
regulations of the state; indeed, private property may be seized for the
debts of the state.
A state may hold absolute possession of such objects as are capable of
appropriation, as lands, buildings, and other material resources for
public purposes. In some cases the state owns the railroads, telegraphs,
mines, etc. In time of war such property receives treatment somewhat
different from that of private property, and in time of peace it may
receive special recognition, _e.g._ houses of ambassadors.
§ 68. State Property in International Law
Hall outlines this subject as follows: "A state may own property as a
private individual within the jurisdiction of another state; it may
possess the immediate as well as the ultimate property in movables,
land, and buildings within its own territory; and it may hold property
in its state capacity in places not belonging to its own territory,
whether within or outside the jurisdiction of other states."[203]
Property of the first class falls under the local law of the state in
which it is. Property of the second class may come within the scope of
international law in time of war. Property of the third class may come
with the scope of international law both in time of peace and of war.
CHAPTER XIII
DIPLOMACY AND INTERNATIONAL RELATIONS IN TIMES OF PEACE
69. +General Development.+
70. +Diplomatic Agents.+
(_a_) Historical.
(_b_) Rank.
(1) Diplomatic agents of first class.
(2) Envoys extraordinary.
(3) Ministers resident.
(4) Chargés d'affaires.
71. +Suite.+
(_a_) Official.
(_b_) Non-official.
72. +Who may send Diplomatic Agents.+
73. +Who may be sent.+
74. +Credentials.+
75. +Ceremonial.+
(_a_) General.
(_b_) Reception.
(_c_) Precedence and places of honor.
(_d_) Prerogatives.
76. +Functions.+
(_a_) Internal business.
(_b_) Conduct of negotiations.
(_c_) Relation to fellow-citizens.
(_d_) Reports to home government.
77. +Termination of Mission.+
(_a_) Through death of agent.
(_b_) In ordinary manner.
(_c_) Under strained relations.
(_d_) Ceremonial of departure.
78. +Immunities and Privileges.+
(_a_) Inviolability.
(_b_) Exterritoriality and exemptions.
(1) Criminal jurisdiction.
(2) Civil jurisdiction.
(3) Family and suite.
(4) House of ambassador.
(5) Asylum.
(6) Taxation.
(7) Religious worship.
79. +Diplomatic Practice of the United States.+
80. +Consuls.+
(_a_) Historical.
(_b_) Grades.
(_c_) Nomination and reception.
(_d_) Functions.
(_e_) Special powers in Eastern states.
(_f_) Privileges and immunities.
(_g_) Termination of consular office.
§ 69. General Development
Diplomacy may be broadly defined as the art and science of international
negotiation. The conditions which make possible established relations
among states are of comparatively recent origin. In the days when
stranger and enemy were not distinguished, and when "strange air made a
man unfree," there could be no extended relations among states. In very
early times, however, states had some relations with each other, and
general principles were observed in carrying on such business as might
be necessary. These growing relations have given rise to what is known
as the right of legation. Sometimes a right of intercourse between
states has been claimed on the ground that the citizens of one state
cannot be excluded from the natural advantages of another state, on the
ground that all men have an equal right to innocent use of the earth's
resources, or on more abstract grounds of moral duty variously
interpreted. As the actual practice of states never has recognized such
a right to contend for it would hardly be necessary. States put
restrictions upon commerce, even to the exclusions of goods and persons.
In some cases where the terms of the state enactment may not be
prohibitive, the conditions of admission amount to practical
prohibition.[204]
The influence of commerce in its many forms, the idea of unity of
mankind in its various manifestations, the growth of neighborhood on the
part of European states, and the necessity of respect for each other on
the part of these states, made interstate relations imperative and
convenient. While the right of intercourse might be questioned, the
necessity and convenience of interstate relations admitted of no
question.
§ 70. Diplomatic Agents
(_a_) =Historical.= In very early times special privileges were extended
to heralds, ambassadors, or other bearers of the state will. Laws[205]
and history record as a fact this practice which had long been
observed. The ambassador was often one who in his own state held some
priestly office. In the days of the Roman dominance, the office of
ambassador was commonly exercised by one holding a religious office, and
while the unity represented by the church remained prominent, its
officials were often ambassadors. Both from necessity and from the
sacred character of the person, the ambassador was usually regarded as
inviolable. The person of the ambassador was respected long before there
was any recognition of the rights and dignity of states as states. In
order that there might be any such intercourse, it was necessary that
the agents should not be placed in undue personal peril.[206]
With the preëminence of the Italian city states in the Middle Ages there
came the development of diplomacy as an art. The most distinguished men
of the times were called to this state service. Machiavelli's name is
inseparably linked to one school of diplomacy. Dante, Petrarch,
Boccaccio, and others whose names have become famous, were sent on
missions.[207]
During the thirteenth century, Venice outlined the policy which her
ambassadors should follow, and there the system of foreign
representation became well established. This system included the
granting of a commission, instructions, letter of credence, attachés,
etc. Italy may, indeed, be called the home of the diplomatic system.
For many years, in fact till comparatively recent times, ambassadors
were looked upon with suspicion, as spies whom monarchs were more
willing to give than to receive. Gradually, however, the practice of
sending and receiving ambassadors was seen to have much value. During
the fifteenth century, which marks the beginning of the modern period in
the history of diplomacy, the practice of sending permanent ambassadors
seems to have arisen. There may have been isolated cases of sending of
permanent ambassadors before this time, but from the fifteenth century
the practice became more and more common, though the different countries
did not observe any uniform regulations as to personnel, procedure, or
in other respects. From this time diplomacy became more of a career, and
one going on a mission to a foreign country received careful preparation
that he might outwit the representatives of the state to which he was
sent. Sir Henry Wotton's oft-quoted definition of an ambassador, "An
ambassador is an honest man, sent to _lie_ abroad for the good of his
country,"[208] describes the attitude taken in many countries toward the
office, when early in the seventeenth century he wrote the definition in
Christopher Flecamore's album. Gradually the rules of international
negotiation became established, and treatises upon the subject appeared.
The Peace of Westphalia in 1648, which marks the beginning of modern
international relations, showed that modern diplomacy had already
obtained a recognition, and served to give it a more definite form. This
date serves as a boundary to the first division of the modern period in
the history of diplomacy. The years from the early part of the fifteenth
century to the Peace of Westphalia are the years of beginnings. From
this time the system of permanent ministers, which so greatly changed
the character of international negotiations, became almost a necessity
through the development of the equilibrium of the states of Europe.[209]
During the years 1648 to 1815 the relations of states became more
complex, and the business of international negotiation more delicate.
Diplomatic practice, always tending to look to precedent, suffered
severe strains under the ambitious monarchs occupying the thrones of
Europe after the Peace of Westphalia. Principles and precedent were
often disregarded to obtain political ends. So great was the friction
that at length some of the more commonly disputed questions were settled
at the Congress of Vienna, 1815.
(_b_) The question of relative =rank= of state agents gave rise, in the
days before the Congress of Vienna, to many difficulties. The protocol
of that Congress of March 9, 1815, together with the eighth article
adopted at the Congress of Aix-la-Chapelle, Nov. 21, 1818, give the
basis of present practice as follows:--
"In order to prevent in future the inconveniences which have frequently
occurred, and which may still occur, from the claims of Precedence among
the different Diplomatic characters, the Plenipotentiaries of the Powers
who signed the Treaty of Paris have agreed on the following Articles,
and think it their duty to invite those of other Crowned Heads to adopt
the same regulations:--
+Division of Diplomatic Characters+
+Art.+ I. Diplomatic characters are divided into Three classes: That
of Ambassadors, Legates, or Nuncios.
That of Envoys, Ministers, or other persons accredited to Sovereigns.
That of Chargés d'Affaires accredited to Ministers for foreign
affairs.
+Representative Character+
+Art.+ II. Ambassadors, Legates, or Nuncios only shall have the
Representative character.
+Special Missions+
+Art.+ III. Diplomatic characters charged with any special Mission
shall not, on that account, assume any superiority of Rank.
+Diplomatic Precedence+
+Art.+ IV. Diplomatic characters shall rank in their respective
classes according to the date of the official notification of their
arrival.
+Representatives of the Pope+
The present Regulation shall not occasion any change respecting the
Representative of the Pope.
+Form for Reception of Diplomatic Agents+
+Art.+ V. There shall be a regular form adopted by each State for the
reception of Diplomatic Characters of every Class.
+Diplomatic Agents of Courts Allied by Family
or Other Ties+
+Art.+ VI. Ties of consanguinity or family alliance between Courts
confer no Rank on their Diplomatic Agents. The same rule also applies
to political alliances.
+Alteration of Signatures in Acts or Treaties+
+Art.+ VII. In Acts or Treaties between several Powers that admit
alternity, the order which is to be observed in the signatures of
Ministers shall be decided by ballot.[210]
+Art.+ VIII. It is agreed between the Five Courts that Ministers
Resident accredited to them shall form, with respect to their
Precedence, an intermediate class between Ministers of the Second Class
and Chargés d'Affaires."[211]
To the articles, except the last, Austria, Spain, France, Great Britain,
Portugal, Prussia, Russia, and Sweden were parties. Spain, Portugal, and
Sweden were not parties to the eighth article. Theoretically these rules
are binding only upon those states parties to the treaties, but
practically they are accepted by all civilized states.
The four grades are as follows:--
1. Ambassadors, legates, and nuncios.
2. Envoys, ministers, or other persons accredited to sovereigns.
3. Ministers resident.
4. Chargés d'affaires.
The first three grades are accredited to the sovereign. The fourth
grade, chargés d'affaires, is accredited to the minister of foreign
affairs.
The rank of the agent does not necessarily have any relation to the
importance of the business which may be intrusted to him. The titles
given to the different diplomatic agents, at the present time, are in a
general way descriptive, as follows:--
(1) _Diplomatic agents of the first class_ are held to represent the
person of the sovereign. Ambassador ordinary usually designates one
holding a permanent mission. Ambassador extraordinary designates one on
a special mission, or having power to act in exceptional circumstances.
This, however, is most often a title of somewhat superior honor giving
no other advantage. Papal legates rank, and for practical purposes, are,
ambassadors extraordinary, though representing particularly
ecclesiastical affairs and the Pope as head of the Church. Legates are
chosen from the cardinals and sent to countries recognizing the papal
supremacy. Nuncios of the Pope rank as ambassadors ordinary on a
permanent mission, and are usually intrusted with power to transact
general affairs.[212]
(2) _Envoys extraordinary, envoys ordinary, and ministers
plenipotentiary_ have in general the same functions and rank. With these
rank the papal internuncio. The general idea is that the agents of the
second class do not stand for the person of the sovereign, but for the
state.
(3) _Ministers resident_ are regarded as upon a less important mission
than the agents of the first or second class. They are frequently sent
by the greater powers to the lesser powers.
(4) _Chargés d'affaires_ ceremonially rank below the ministers resident.
They are accredited to the minister of foreign affairs, while members of
the first three classes are accredited to the sovereign. A chargé
d'affaires may perform the functions of the higher grades of agents and
has the same general privileges. When a consul is charged with a
diplomatic mission he ranks with the chargés d'affaires. Commissioners
on various missions are sometimes accorded the same rank; but, as they
do not bear the title, commissioners cannot claim the rank of the chargé
d'affaires, though in their functions there may be no difference.
There is no rule as to the grade of diplomatic agent which one state
shall send to another, though it was formerly held that only states
entitled to royal honors could send ambassadors. It is now customary for
states to agree among themselves as to the relative rank of their
diplomatic agent. Thus the United States by a recent act provided that
"whenever the President shall be advised that any foreign government is
represented or is about to be represented in the United States by an
ambassador, envoy extraordinary, minister plenipotentiary, minister
resident, or special, envoy or chargé d'affaires, he is authorized in
his discretion to direct that the representative of United States to
such government shall bear the same designation. This provision shall in
no wise affect the duties, powers, or salary of such representative."[213]
The rank of a diplomatic agent is a mark of dignity and honor
particularly of consequence in matters of etiquette and ceremonial.
Reciprocity between states is the general rule in the grade of agents.
The old theory that agents of the first rank had access to the ear of
the sovereign is no longer held, and all grades alike represent both the
sovereign and the state from which they come.
§ 71. Suite
The personnel of a mission may be distinguished as the official and the
non-official.
(_a_) The =official suite= consists of the functionaries, and varies in
number according to the dignity and importance of the mission. Formerly
the number was scrutinized with great care, owing to the fear that a
numerous suite might endanger the safety of the receiving state. The
official suite may include, (1) the counsel to the mission, (2) the
secretaries, (3) the attachés, military, naval, and others, (4) the
interpreters and dragomans, (5) the clerks and accountants, (6) the
couriers, (7) the chaplain, (8) the doctor, and in some instances other
officers necessary for the performance of the official functions.
(_b_) The =non-official suite= includes the family of the diplomatic
agent and those in his household employ. This may include, beside his
immediate family, (1) the private chaplain, (2) the private doctor, (3)
the private secretaries, (4) the domestic servants of various grades.
§ 72. Who may send Diplomatic Agents
It is the general rule that sovereign states only may send ambassadors
or other diplomatic agents. Sometimes diplomatic relations are
maintained between states when both are not fully sovereign, as in the
relations between Bavaria, a member of the German Empire, and France. In
general, where the sovereignty of a state is not complete, its right of
legation is fixed by the treaty which impairs its sovereignty. A state
which has not full sovereign powers may have a partial right of
legation, either active or passive, or a right to send diplomatic agents
with limited functions.
The sending of a diplomatic agent is essentially an act of the sovereign
person, whether he be a monarch, president, council, or have other
title. The domestic law determines who this person shall be.
International law makes no distinction.
In each state a department, usually called the department of foreign
affairs, has the business of international intercourse in charge. The
organization of this department and the general methods are matters of
domestic law. All foreign states need to know is to what extent this
department is competent to carry on negotiations.
§ 73. Who may be Sent
Before actually sending a diplomatic agent, a state usually obtains
assurance from the receiving state that the proposed agent will be an
acceptable person. If the proposed agent is a _persona non grata_, it is
held that the foreign state is not obliged to give its reasons for
refusing to receive him. To refuse a given person does not imply any
lack of courtesy to the sending state on the part of the refusing state.
A state may refuse to receive one of its own citizens as the minister of
a foreign state. Sometimes states have refused to receive those who have
in the sending state taken positions manifesting hostile disposition
toward the receiving state.
In 1885 the Italian government refused to receive Mr. Keily as United
States representative on the ground that he had denounced the overthrow
of the temporal power of the Pope. It was considered probable that one
who had taken so decided an attitude toward an action of the government
to which he was sent would hardly be acceptable. Mr. Keily had just
before been refused by Austria-Hungary on the ground that his wife was a
Jewess and his marriage only a civil one. President Cleveland showed his
attitude toward this action in his first annual message, 1885. "The
Austro-Hungarian government finally decided not to receive Mr. Keily as
the envoy of the United States, and that gentleman has since resigned
his commission, leaving the post vacant. I have made no new nomination,
and the interests of this government at Vienna are now in the care of
the secretary of legation, acting as chargé d'affaires _ad
interim_."[214]
§ 74. Credentials, Instructions, Passport
Before starting upon his mission, a diplomatic representative receives,
if of one of the first three classes, from the head of the state, if of
the fourth class (chargé d'affaires) from the minister of foreign
affairs, a letter of credence. In the United States the President signs
the letters of credence of diplomatic agents above the rank of chargé
d'affaires. In these instances the letter is addressed to the head of
the foreign state. In the case of chargé d'affaires the letter is
addressed to the minister of foreign affairs and signed by the Secretary
of State. A letter of credence gives the name, the character and general
object of the mission, and requests for the agent full faith and
credence as the state's representative. In case of representatives to
Turkey, besides the letter of credence to the Sultan, letters are also
taken to the grand vizier and to the minister of foreign affairs.
Representatives of the Pope carry in place of letters of credence papal
bulls. Sometimes a diplomatic agent receives also letters of
recommendation to persons of importance in the foreign country. These
letters have a semi-official character in many cases. While a letter of
credence may give power to open treaty negotiations, it is usual to give
a special letter conferring _full powers_ or _general full powers_ to
close and sign a treaty, or to act in behalf of the state in some manner
not covered by his instructions. These letters are commonly letters
patent.
The diplomatic agent also customarily receives instructions which may be
either for his own guidance or to be communicated to the foreign state.
If to be communicated to the foreign state, the instructions make more
fully known his special functions. In all cases the agent is bound by
his instructions, and in case of doubt as to method of action it is
easy, in these days of rapid communication, to entertain a matter _ad
referendum_.
The diplomatic agent also receives for himself, family, and suite a
special passport. The special passport "differs from the ordinary
passport in that it usually describes the official rank or occupation of
the holder, and often also the purpose of his traveling abroad, while
generally omitting the description of his person."[215] This may serve
not only the purpose of the ordinary passport, but may also give an
official introduction to the bearer.
The papers furnished to diplomatic representatives of the United States
include:--
1. A sealed letter of credence to the head of the state or minister of
foreign affairs according to rank of the representative.
2. "An open office copy of the letter of credence."
3. The special passport above mentioned.
4. "A copy of the Register of the Department of State."
5. A letter of credit upon the bankers of the United States.
6. A copy of Instructions to the Diplomatic Officers of the United
States.
7. A copy of the Consular Regulations of the United States.
(FORM OF)
LETTER OF CREDENCE
A.............. B..............,
_President of the United States of America._
To ................................
................................
................................
+Great and Good Friend+:
I have made choice of ...............................
one of our distinguished citizens, to reside near the Government of
Your ............ in the quality of ...............................
He is well informed of the relative interests of the two countries and
of our sincere desire to cultivate to the fullest extent the friendship
which has so long subsisted between the two Governments. My
knowledge of his high character and ability gives me entire confidence
that he will constantly endeavor to advance the interest and prosperity
of both Governments, and so render himself acceptable to Your ......
............
I therefore request Your ............ to receive him favorably and
to give full credence to what he shall say on the part of the United
States, and to the assurances which I have charged him to convey to
you of the best wishes of this Government for the prosperity of ......
............
May God have Your ............ in His wise keeping.
Written at Washington this ............ day of ............ in the
year ................
Your good friend,
A ............ B ............
By the President,
............................
_Secretary of State._
§ 75. Ceremonial
(_a_) =General.= In certain countries diplomatic ceremonial has been
very elaborate and complex. The tendency during the nineteenth century
has been toward simplification. Each state has the power to determine
its own ceremonial for the most part. Of course no state can disregard
established rules as to rank, precedence, and similarly generally
recognized practices. At the time when these practices originated it was
imperative that there should be some fixed mode of procedure which a
state could follow without giving offense in its treatment of a foreign
representative. Much of the ceremonial became fixed during the latter
part of the seventeenth and during the eighteenth century. In the days
of absolutism the monarch naturally demanded such recognition of his
representative in a foreign country as befitted his own estimate of the
dignity of the monarchical office. It may not be unfortunate that the
monarch placed a high estimate upon the sovereign office and devised a
ceremonial commensurate with this estimate, for what was once done out
of respect for and in response to the demand of a personal sovereign, is
now done out of respect for the dignity of the state itself. Thus in the
days of more democratic sovereignties international representatives are
clothed with a dignity which both elevates the attitude of participants
in international negotiations and gives greater weight to their
conclusions. The ceremonial also fixes a definite course of procedure
which any state may follow without giving offense to another, whether it
be weak or powerful.
(_b_) While the minor details of the ceremonial of =reception= of a
diplomatic agent are not invariable, certain customs are well
established. A diplomat officially notifies the receiving state of his
arrival by sending, (1) if he be of the first rank, a secretary of the
embassy to the minister of foreign affairs, with a copy of his letter of
credence and a request for a day and hour when he may have an audience
with the head of the state in order to present his credentials, (2) if
of the second rank, while sometimes the above procedure is allowed, he
usually makes the announcement and request in writing, (3) if of the
third rank he always observes the last-mentioned procedure, (4) if of
the fourth rank, chargé d'affaires, he notifies the minister of foreign
affairs of his arrival and requests an audience.
The audience may be for any grade more or less formal, public or
private. Usually diplomats of the first rank are received in public
audience. At the audience the diplomat presents his letter of credence,
and usually makes a brief address, of which he has earlier furnished a
copy to the minister of foreign affairs in order that a suitable reply
may be prepared. Diplomats of the second rank customarily receive a
similar solemn audience. This may or may not be granted to ministers of
the third rank. Official visits, varying somewhat in ceremonial in
different states, follow.
(_c_) From the time when permanent missions began to be common, conflict
between the representatives of different states made necessary fixed
rules of =precedence=. As Wicquefort said in the latter part of the
seventeenth century, "One of the things that most hinders Embassadors
from paying one another civilities, is the Contest they have concerning
Honours and Rank; not only on Account of the Competition of their
Masters, but sometimes also by Reason of some Pretensions they have
amongst themselves."[216] Wicquefort's citations of cases give ample
evidence of the confusion prevailing in his day. Bynkershoek, in "De
Foro Legatorum," Ch. I. and XII., shows that the confusion was scarcely
less in 1721, though the rank by title was coming to be more fully
recognized. Vattel in 1758 shows that there had arisen a more definite
ceremonial[217] and a fairly clear gradation, yet as this had never been
agreed to by any considerable number of states, and was not in
accordance with any generally recognized principle, there were contests
still. By the Congresses of Vienna (1815) and Aix-la-Chapelle (1818)
many of the disputed points in regard to precedence were adjusted.
Certain general propositions are now admitted, such as, that no diplomat
can pretend to special honors or immunities above other diplomats of the
same rank.[218] The rule of the Congress of Vienna is followed, by which
diplomats of the same class rank according to the precedence in the date
of the official notification of their arrival.
Places of honor are now quite definitely fixed. On ceremonial occasions,
where the representatives are seated at a table, as in an international
congress, it may be somewhat varied as fronting the main window,
opposite the main entrance to the room, in the place receiving the light
over the left shoulder. When the place is determined by the relation to
the head of the table or the presiding officer, the first honor, except
in Turkey, is at his right, the second at his left, the third in the
second place on the right, the fourth in the second place on the left,
and so on. In processions the place of honor is sometimes first,
sometimes last. For relatively short processions, certain more definite
rules are usually observed. When only two participate, the first place
is the place of honor; when three participate, the middle place, the
place in advance being the second honor and the place in the rear the
third; when four participate, the second place is the place of honor,
the place in advance the second, the third and fourth being in honor in
order; when five participate, the middle is the place of honor, the
second place being the second in honor, the first the fourth in honor,
the fourth the third in honor, and the fifth the fifth in honor.[219]
To avoid friction as to place of honor in signing treaties, etc., the
principle of the alternat is usually followed, by which the copy going
to a given nation has the name of its own representative first in
order.[220] Sometimes the order is determined by lot, and sometimes is
alphabetical in the order of the names of the states parties to the
treaty.
(_d_) Certain =prerogatives= are held to appertain to the office of
ambassador and to diplomats of the first rank. Among these are: (1) the
title of Excellency, (2) the right to remain covered in the presence of
the sovereign, unless the sovereign himself is uncovered, (3) the
privilege of a dais in his own home, (4) the right to use a "coach and
six" with outriders, (5) military and naval honors, (6) the use of the
coat of arms over the door, (7) invitations to all court ceremonies.
This last is usually extended to all diplomats. Those of lower rank than
the ambassador sometimes claim modified forms of the above prerogatives.
Many of the interesting phases of diplomatic ceremonial are survivals of
forms which in earlier days were most jealously and strenuously guarded.
The closer relations of states and better understanding of mutual
relations have made unnecessary the observance of many forms once vital
to harmony.
Many courtesies are regarded as due diplomatic representatives by virtue
of their rank. These are not uniform at the various courts, but
generally include, notification of accession to the throne,
notifications of births and deaths in the royal family, congratulations
and condolences as public events warrant, and many others.
Diplomats are also entitled to receive salutes, which are usually
arranged for in advance. The ambassador receives a salute of fifteen
guns; the minister, eleven; and the chargé d'affaires, nine.
§ 76. Functions
The functions of a diplomatic representative in a broad sense are, to
direct the internal business of the legation, to conduct the
negotiations with the state to which he is accredited, to protect
citizens of his state[221] and to issue passports under proper
restrictions,[222] and to make reports to his home government.
(_a_) The =internal business= of the mission may in general be
classified as concerned with (1) the custody of archives, (2) diplomatic
correspondence[223] involving at times the use of cipher, (3) record of
the work of the legation, (4) the exercise of a measure of jurisdiction
over the household. In grave cases the diplomat must send the offender
home for trial, or under certain circumstances, if a native of the
state, hand the offender over to the local authorities. Otherwise his
jurisdiction is mainly of a minor disciplinary sort. The assumption of
such authority as claimed by Sully, in 1603, when he tried and condemned
to death one of the French suite, is now absolutely denied. Indeed,
James I. pardoned the offender whom Sully had delivered to him for
execution. In 1896 Great Britain denied the right of the Chinese
ambassador to detain a Chinaman who was held in the legation under
charge of political conspiracy, and compelled his release.
(_b_) The =conduct of negotiations= with the state to which he is
accredited may involve, (1) verbal communications with the sovereign or
ministers. The purport of such communications may be preserved in
writing known as _briefs of the conversation_, or _aids to the memory_.
In cases of somewhat formal conversations the written reports may be
called _notes_ or _memoranda_. To the _procès-verbaux_, or reports of
international conferences for the discussion of treaty stipulations, the
name _protocol_ is usually given. (2) Formal communications with the
sovereign or ministers, (3) the maintenance of diplomatic privileges and
immunities, (4) such action as may be necessary to protect his state's
interests so far as possible, and particularly its treaty rights.
(_c_) The diplomat's =relations to the citizens of his own country= are
largely determined by the domestic law of his own state, and usually
involve, (1) a measure of protection to his fellow-citizens; (2) issue
and _visé_ of passports, and in some countries the issue of certificates
of nationality and travel certificates; (3) in cases of extradition of
citizens of his own state from the foreign state, the presentation of
the requisition for extradition; and in cases of extradition of citizens
of the state to which he is accredited from his own state, usually the
certification that the papers submitted as evidence are "properly and
legally authenticated."[224] In some states diplomats are authorized to
perform notarial acts.[225] (4) The exercise of a reasonable courtesy in
the treatment of his fellow-citizens.
All these functions vary with local law. The practice is not uniform, as
is evidenced in the inconsistencies in regard to regulations as to the
marriage by the diplomatic agent.[226]
(_d_) In making reports the diplomat is supposed to =keep his own
government informed= upon, (1) the views and policy of the state to
which he is accredited, and (2) such facts as to events, commerce,
discoveries, etc., as may seem desirable. These reports may be regular
at specified periods, or special.
§ 77. Termination of Mission
The mission of a diplomatic representative may terminate in various
ways.
(_a_) A mission may terminate =through the death of the diplomat=. In
such a case there may properly be a funeral befitting the rank of the
diplomat. The property and papers of the mission are inventoried and
sealed by the secretary, or in case of absence of secretaries and other
proper persons, by the diplomats of one or more friendly powers. The
inheritance and private property of the diplomat, of course, follow the
law of his country, and the property of the deceased is exempt from
local jurisdiction.
(_b_) The mission may terminate =in ordinary course= of events, by (1)
expiration of the period for which the letter of credence or full power
is granted, (2) fulfillment of the purpose of the mission if on a
special mission, (3) change of grade of diplomat, (4) the death or
dethronement of the sovereign to whom the diplomatic agent is
accredited, except in cases of republican forms of government. In the
above case new letters of credence are usually regarded as essential to
the continuance of the mission. The weight of opinion seems to indicate
that the mission of a diplomat is terminated by a change in the
government of his home country through revolution, and that new letters
of credence are necessary for the continuance of his mission.
(_c_) A mission may be interrupted or broken off through =strained
relations= between the two states or between the diplomatic agent and
the receiving state. (1) A declaration of war immediately terminates
diplomatic relations. (2) Diplomatic relations may be broken off by the
personal departure of the agent, which departure is for a stated cause,
such as the existence of conditions making the fulfillment of his
mission impossible, or the violation of the principles of international
law. (3) Diplomatic relations may be temporarily suspended, owing to
friction between the states, as in the case of the suspension of
diplomatic relations between Great Britain and Venezuela from 1887 to
1897, owing to dispute upon questions of boundary. In 1891 Italy
recalled her minister from the United States on account of alleged
tardiness of the United States authorities in making reparation for the
lynching of Italians in New Orleans on March 14, 1891.[227] (4) A
diplomatic agent is sometimes dismissed either on grounds personal to
the diplomat, or on grounds involving the relations of the two states.
When, in 1888, the demand for the recall of Lord Sackville, the British
minister at Washington, was not promptly complied with, Lord Sackville
was dismissed and his passport sent to him. Lord Sackville had, in
response to a letter purporting to be from an ex-British subject, sent a
reply which related to the impending presidential election. His recall
was demanded by telegraph Oct. 27. The British government declined to
grant it without time for investigation, and his passport was sent him
on Oct. 30. In 1871, "The conduct of Mr. Catacazy, the Russian minister
at Washington, having been for some time past such as materially to
impair his usefulness to his own Government, and to render intercourse
with him for either business or social purposes highly disagreeable," it
was the expressed opinion of the President that "the interests of both
countries would be promoted ... if the head of the Russian legation here
was to be changed." The President, however, agreed to tolerate the
minister till after the contemplated visit of the grand duke. The
communication also stated, "That minister will then be dismissed if not
recalled."[228]
(_d_) =The ceremonial of departure= is similar to that of reception. (1)
The diplomat seeks an interview according to the method outlined in the
ceremonial of reception, in order to present his letter of recall. (2)
In case of remoteness from the seat of government the agent may, if
necessary, take leave of the sovereign by letter, forwarding to the
sovereign his letter of recall. (3) It very often happens that a
diplomatic agent presents his successor at the time of his own
departure. (4) In case of change of title the diplomat follows the
ceremonial of departure in one capacity with that of arrival in his new
capacity. (5) It is understood that the agent, after the formal close of
his mission, will depart with convenient speed, and until the expiration
of such period he enjoys diplomatic immunities.
§ 78. Immunities and Privileges
Few subjects involved in international relations have been more
extensively discussed than the privileges and immunities of diplomatic
agents. Many of the earliest treatises on international affairs were
devoted to such questions. In order that any business between states
might be carried on, some principles upon which the diplomatic agent
could base his action were necessary. The treatment of the agent could
not be left to chance or to the feeling of the authorities of the
receiving state. Gradually fixed usages were recognized. These
immunities and privileges may be considered under two divisions:
personal inviolability, and exemption from local jurisdiction, otherwise
known as exterritoriality.
(_a_) =Inviolability.= The person of the agent was by ancient law
inviolable. According to the dictum of the Roman Law, _sancti habentur
legati_. In accord with this principle the physical and moral person is
inviolable. Any offense toward the person of the ambassador is in effect
an offense to the state which he represents, and to the law of nations.
The receiving state is bound to extend to the diplomatic agent such
protection as will preserve his inviolability. This may make necessary
the use of force to preserve to the diplomatic agent his privileges. The
idea of inviolability, as Calvo says, is absolute and unlimited, and
based, not on simple convenience, but upon necessity. Without it
diplomatic agents could not perform their functions, for they would be
dependent upon the sovereign to whom they might be accredited.[229] In
many states laws have been enacted during the last half of the
nineteenth century fixing severe penalties for acts which affect the
diplomatic agent unfavorably in the performance of his functions, or
reflect upon his dignity.[230]
The privilege of inviolability extends, (1) alike to agents of all
classes, (2) to the suite, official and non-official, (3) to such things
as are convenient for the performance of his functions, (4) during the
entire time of his official sojourn, _i.e._ from the time of the making
known of his official character to the expiration of a reasonable time
for departure after the completion of his mission. This also holds even
when the mission is terminated by the outbreak of war between the state
from which the agent comes and the state to which he is accredited. (5)
By courtesy the diplomatic agent is usually accorded similar privileges
when passing through a third state in going to or returning from his
post.
A diplomatic agent may place himself under the law, says Despagnet, so
far as attacks upon him are concerned: (1) when he voluntarily exposes
himself to danger, in a riot, duel, civil war; (2) when in his private
capacity he does that which is liable to criticism, _e.g._ as a writer
or artist, provided the criticism should not degenerate into an attack
upon his public character; (3) when the attacks upon him are in
legitimate personal self-defense; (4) when, by his actions, he provokes
on the part of the local government precautionary measures against
himself, _e.g._ if he should plot against the surety of the state to
which he is accredited.[231] Only in the case of extreme necessity,
however, should any force be used. It is better to ask for the recall of
the agent. In case of refusal or in case of urgent necessity the agent
may be expelled.
(_b_) =Exemption from local jurisdiction= of the state to which a
diplomatic agent is sent, or exterritoriality in a limited sense, flows
naturally from the admitted right of inviolability. The term
"exterritoriality" is a convenient one for describing the condition of
immunity which diplomatic agents enjoy in a foreign state, but it should
be observed that the custom of conceding these immunities has given rise
to the "legal fiction of exterritoriality," rather than that these
immunities are based on a right of exterritoriality. The practice of
granting immunities was common long before the idea of exterritoriality
arose.[232] The exemptions give to diplomatic agents large privileges.
(1) The diplomatic agent is exempt from the _criminal jurisdiction_ of
the state to which he is accredited. In case of violation of law the
receiving state has to decide whether the offense is serious enough to
warrant a demand for the recall of the agent, or whether it should be
passed without notice. In extreme cases a state might order the agent to
leave the country, or in case of immediate danger might place the agent
under reasonable restraint. Hall considers these "as acts done in
pursuance of a right of exercising jurisdiction upon sufficient
emergency, which has not been abandoned in conceding immunities to
diplomatic agents."[233]
(2) The diplomatic agent is exempt from _civil jurisdiction_ of the
state to which he is sent, and cannot be sued, arrested, or punished by
the law of that state.[234] This rule is sometimes held to apply only to
such proceedings as would affect the diplomat in his official character;
but unless the diplomat voluntarily assume another character, he cannot
be so proceeded against. If he become a partner in a firm, engage in
business, buy stocks, or assume financial responsibilities, it is held
in theory by some authorities that the diplomatic agent may be proceeded
against in that capacity. The diplomatic agent of the United States is
distinctly instructed that "real or personal property, aside from that
which pertains to him as a minister, ... is subject to the local
laws."[235] The practice is, however, to extend to the diplomat in his
personal capacity the fullest possible immunity, and in case of need to
resort to his home courts, or to diplomatic methods by appeal to the
home government, for the adjustment of any difficulties that may involve
its representative in foreign court proceedings. The real property of
the diplomatic agent is, of course, liable to local police and sanitary
regulations. In cases where a diplomatic agent consents to submit
himself to foreign jurisdiction, the procedure and the judgment, if
against him, cannot involve him in such manner as to seriously interfere
with the performance of his functions. He cannot be compelled to appear
as witness in a case of which he has knowledge; however, it is customary
in the interests of justice for the diplomatic agent to make a
deposition before the secretary of the legation or some proper officer.
By the Constitution of the United States, in criminal prosecutions the
accused has a right to have the evidence taken orally in his presence.
The refusal to give oral testimony of M. Dubois, the Dutch minister to
the United States in 1856, resulted in his recall.[236] The Venezuelan
minister, however, testified in open court as a courtesy to the United
States government in the trial of the assassin of President
Garfield.[237] The United States at the present time maintains that "a
diplomatic representative cannot be compelled to testify, in the country
of his sojourn, before any tribunal whatsoever." This may be considered
the generally accepted principle, though the interests of general
justice and international courtesy frequently lead to voluntary waiving
of the rule with the consent of the accrediting state.
(3) _The official and non-official family_ enjoy the immunities of their
chief as necessary for the convenient performance of his mission.
Questions in regard to the immunities of the non-official suite have
sometimes arisen. To avoid this it is customary for the diplomat to
furnish the receiving state with a list of his family. Great Britain
does not admit the full immunity of domestic servants. When Mr. Gallatin
was United States minister to Great Britain, his coachman, who had
committed an assault beyond the _hôtel_ of the minister, was held liable
to the local jurisdiction. As a diplomatic agent can voluntarily turn
over an offender to the local authorities, and as he would naturally
desire the observance of local law, there would be little danger of
friction with local authorities anywhere, provided a just cause could be
shown.
Couriers and bearers of dispatches are entitled to immunities so far as
is necessary for the free performance of the specific function.
(4) _The house and all grounds and buildings_ within the limits of the
diplomatic residence are regarded as exempt from local jurisdiction.
Great Britain claimed the right of entry to arrest Mr. Gallatin's
coachman above mentioned, though admitting that such entrance should be
made at a time to suit the convenience of the minister if he did not
care to hand him over directly. This immunity extends also to carriages
and other necessary appurtenances of the mission.
Children born to the official family in the house of the diplomatic
agent are considered as born in the state by which the agent is
accredited.
(5) _The right of asylum_ in the house of the ambassador is now
generally denied. In 1726 the celebrated case of the Duke of Ripperda,
charged with treason, gave rise to the decision by the Council of
Castile that the duke could be taken from the English legation by force
if necessary, because the legation, which had been established to
promote good relations between the states, would otherwise be used for
overthrowing the state in which it had been established.[238] It may be
regarded as a rule that, in Europe and in the United States, the house
of a diplomatic agent affords only temporary protection for a criminal,
whether political or otherwise, and that on demand of the proper
authority the criminal must be surrendered. Refusal is a just ground for
demand for recall of the diplomatic agent. The United States instructs
its agents that "The privilege of immunity from local jurisdiction does
not embrace the right of asylum for persons outside of a
representative's diplomatic or personal household."[239] This right is,
however, recognized in practice, both by the United States and European
nations, so far as pertains to the houses of the diplomats in South
American states. The United States, in 1870, tried without avail to
induce the European nations to agree to the discontinuance of the
practice. In 1891, in Chile, Minister Egan, of the United States,
afforded refuge in the legation to a large number of the political
followers of Balmaceda. Chile demanded his recall, but the United States
maintained that there must be sufficient grounds for such action. In
Eastern countries it has been the practice to afford asylum in legations
in times of political disturbance and to political offenders. In 1895
the British ambassador at Constantinople gave asylum to the deposed
grand vizier at Constantinople. It can be said, however, that the
tendency is to limit the granting of asylum to the fullest possible
extent,[240] and finally to abolish the practice altogether, as has been
the case with the ancient extension of this privilege to the
neighborhood of the legation under the name of _jus quarteriorum_.[241]
(6) In general, the diplomatic agent is _exempt from personal taxes_ and
from taxes upon his personal goods. The property owned by and devoted to
the use of the mission is usually exempt from taxation. In this respect
the principle of reciprocity is followed among some states. The taxes
for betterments, such as paving, sewerage, etc., are regarded as proper
charges upon the mission. A state has a right to make such regulations
as it deems necessary to prevent the abuse of this immunity from
taxation. It is also customary for a third state to grant to a diplomat
passing through its territory immunity from duties. Diplomatic agents
are also exempt from income, military, window, and similar taxes.
(7) It is hardly necessary now to mention the fact that the diplomatic
agent is entitled to _freedom of religious worship_ within the mission,
provided there be no attempt by bell, symbol, or otherwise to attract
the attention of the passer-by to the observance. This privilege was
formerly of importance, but now is never questioned.
§ 79. Diplomatic Practice of the United States
Some of the minor points of procedure and functions may be seen by the
study of the customs and rules of any large state, as in the United
States.
(_a_) Official communications involving international relations and
general international negotiations are within the exclusive province of
the Department of State, at the head of which stands the Secretary of
State. In other states this department is commonly called the Department
of Foreign Affairs, and its chief is the Minister or Secretary for
Foreign Affairs, and was so designated in the United States from 1781 to
1789. The Department of State of the United States, however, performs
many functions not strictly within a Department of Foreign Affairs, as
an enumeration of the Bureaus will show.
(1) Bureau of Appointments.
(2) Diplomatic Bureau.
(3) Consular Bureau.
(4) Bureau of Indexes and Archives.
(5) Bureau of Accounts.
(6) Bureau of Rolls and Library, which, besides other duties, has charge
of the publication of the laws, treaties, proclamations, and executive
orders.
(7) Bureau of Foreign Commerce (before July 1, 1897, called Bureau of
Statistics).
(_b_) The Constitution provides that, "In all cases affecting
ambassadors, other public ministers, and consuls," the Supreme Court has
original jurisdiction.[242]
(_c_) A diplomatic agent cannot, without consent of Congress, "accept of
any present, emolument, office, or title of any kind whatever from any
king, prince, or foreign state."[243] This provision does not, however,
prevent the rendering of a friendly service to a foreign power, and it
may be proper for him, having first obtained permission from the
Department of State, to accede to the request to discharge temporarily
the duties of a diplomatic agent of any other state.[244]
(_d_) In case of revolution a diplomatic agent may extend protection to
the subjects of other friendly powers left for the time without a
representative.[245] In neither this nor in the preceding case does the
United States become responsible for the acts of its diplomatic
representative in so far as he is acting as agent of the other state or
states.
(_e_) "It is forbidden to diplomatic officers to participate in any
manner in the political concerns of the country of their residence; and
they are directed especially to refrain from public expressions of
opinion upon local political or other questions arising within their
jurisdiction. It is deemed advisable to extend similar prohibition
against public addresses, unless upon exceptional festal occasions, in
the country of official residence. Even upon such occasions any
reference to political issues, pending in the United States or
elsewhere, should be carefully avoided."[246] A diplomatic agent is
forbidden to recommend any person for office under the government to
which he is accredited.[247] The diplomatic agent should not become the
agent to prosecute private claims of citizens.[248] The diplomatic agent
should not retain any copy of the archives, nor allow the publication of
any official document, without authorization of the Department of State.
The Department in general disapproves of residence of the agent
elsewhere than at the capital of the receiving state.
(_f_) Joint action with the diplomatic agents of other powers at a
foreign court is deprecated, although conferences resulting in a common
understanding in cases of emergency are considered desirable.[249]
(_g_) It is permitted that the diplomatic agent of the United States
wear the uniform and bear the title of the rank attained in the
volunteer service of the Army of the United States during the
rebellion.[250] It is prohibited by a later statute to wear "any uniform
or official costume not previously authorized by Congress."[251] This
has been interpreted as applying to dress denoting rank, but not to the
prescribed court dress of certain capitals;[252] and "diplomatic
officers are permitted to wear upon occasions of ceremony the dress
which local usage prescribes as appropriate to the hour and place."[253]
(_h_) The United States has never been liberal in compensating
diplomatic agents for their services. In 1784 the salary of the highest
grade was fixed at nine thousand dollars, and it had only been doubled
at the end of the nineteenth century. Other states of equal dignity
provide far more liberally for their representatives.
The whole matter of diplomatic agents has been the subject of numerous
statutes.[254]
§ 80. Consuls
(_a_) =Historically= the office of consul preceded that of ambassador.
The merchants of different states had dealings with each other long
before the states, as such, entered into negotiations. The Egyptians,
apparently as early as the fourteenth century B.C., intrusted the trial
of certain maritime cases to a designated priest. The Mediterranean
merchants appealed to the _judicium mercatorium et maritimum_ in the
sixth century B.C. The Greek _proxenos_ performed some consular
functions. Rome later had similar public servants. The consular system,
however, did not develop during the long period of decay of the Roman
Empire. In the days of the Crusades, the merchants settled in the coast
cities of the Mediterranean. Quarters of the cities practically came
under the jurisdiction of the foreign occupants. The consuls, probably
at first chosen by the merchants, exercised this jurisdiction, under
which the law of the state of the origin of the merchants was regarded
as binding. Their functions were somewhat similar to those exercised in
some Eastern states at the present time. As soon as conditions became
more settled, the states gradually assumed control of these consular
offices. The laws of Oleron, Amalfi, Wisby, the Consolato del Mare, and
the early Lex Rhodia show that many of the consular functions were
recognized in the Middle Ages, and the institution of consuls seems to
have been quite well established by the year 1200. The Hanseatic League
in the fourteenth century had magistrates in many cities entitled
_aldermen_, who were performing functions similar to those of the
consuls of the Mediterranean.[255] England began to send consuls in the
fifteenth century; the system rapidly spread, and the powers and
functions of consuls were wide. From this time, with the growth of the
practice of sending resident ambassadors, the extent of the consular
duties was gradually lessened. The diplomatic functions formerly in the
charge of the consuls were intrusted to the ambassadors, and other
functions of the consuls were reduced by making them the representatives
of the business interests of the subjects of the state in whose service
they were, rather than of the interests of the state as such.[256] From
the middle of the seventeenth century, when the responsibility of states
to each other became more fully recognized, and government became more
settled, the exterritorial jurisdiction of consuls was no longer
necessary. The growth of commerce among the nations has increased the
duties of the consul. The improved means of communication, telegraphic
and other, has relieved both consuls and ambassadors of the
responsibility of deciding, without advice from the home government,
many questions of serious nature.
(_b_) =The rank of consuls= is a matter of domestic law, and each state
may determine for its own officers the grade and honors attaching
thereto in the way of salutes, precedence among its domestic officials,
etc. There is no international agreement in regard to consuls similar to
that of 1815-1818 in regard to diplomatic agents.
The United States differentiates the consular service more fully than
most states, having the following: consuls-general, vice-consuls-general,
deputy consuls-general, consuls, vice-consuls, deputy consuls, commercial
agents, vice-commercial agents, consular agents, consular clerks,
interpreters, marshals, and clerks.[257] The term "consular officer,"
however, includes only consuls-general, consuls, commercial agents,
deputy consuls, vice-consuls, vice-commercial agents, and consular
agents.[258] The full officers are consuls-general, consuls, and
commercial agents. The vice consular officers are "substitute consular
officers" and the deputy consuls-general, deputy consuls, and consular
agents are "subordinate consular officers."[259]
Consuls-general ordinarily have a supervisory jurisdiction of the
consuls within the neighborhood of their consulate, though sometimes
they have no supervisory jurisdiction. This is often exercised by the
diplomatic agent accredited to the same state.
Most states have consuls-general, consuls, vice-consuls, consular
agents, sometimes also consular students.
(_c_) =The nomination of consuls= is an attribute of a sovereign state.
They may be chosen either from among its own citizens or from those of
the foreign state. Consuls chosen from the citizens of the state to
which they are accredited exercise only in part the full consular
functions, the limit of the functions being determined by the laws of
the accrediting state and by the laws of the receiving state. Some
states refuse to receive their own citizens as consuls; others do not
accredit foreigners as consuls.
The commission or patent by which a consul-general or consul is always
appointed is transmitted to the diplomatic representative of the
appointing state in the state to which the consul is sent, with the
request that he apply to the proper authority for an _exequatur_, by
which the consul is officially recognized and guaranteed such
prerogatives and immunities as are attached to his office. The
vice-consul is usually appointed by patent, though he may be nominated
by his superior, and is recognized by granting of an _exequatur_. The
_exequatur_ may be revoked for serious cause, though the more usual way
is to ask the recall of a consul who is not satisfactory to a state. The
_exequatur_ may be refused for cause. It is usually issued by the head
of the state. If the form of government in the receiving state or in the
accrediting state changes, it is customary to request a new _exequatur_.
+Note.+ The consular agents, while appointed and confirmed as are the
higher consular officers, do not in the practice of the United States
receive an _exequatur_.
(FORM OF)
FULL PRESIDENTIAL EXEQUATUR
.................................................
_President of the United States of America._
_To all to whom it may concern_:
Satisfactory evidence having been exhibited to me
that...............................................................
has been appointed.................................................
I do hereby recognize him as such, and declare him free to exercise
and enjoy such functions, powers, and privileges as are allowed to
....................................................
In Testimony whereof, I have caused these Letters
to be made Patent, and the Seal of the United States
[SEAL to be hereunto affixed.
OF THE Given under my hand at the City of Washington
UNITED the..............day of.............., A.D. 19....,
STATES] and of the Independence of the United States of
America, the............
By the President, ...........................
............................
_Secretary of State._
(_d_) =Functions.= The consul, as the officer representing particularly
the commercial and business interests of the state from which he comes,
and in a minor degree the other individual interests, has a great
variety of functions. His functions are in general such as affect only
indirectly the state in which he resides. He is not, like the diplomatic
agent, directly concerned with affairs of state; he has no
representative character, though in effect he is often the local
representative of the diplomatic agent accredited to the state.
The functions of a consul are largely matters determined by custom,
treaty stipulation, and by special provisions of his _exequatur_.
Within these limits domestic law of the accrediting state determines the
consul's functions. (1) In general the consul has many duties in
connection with the _commercial interests_ of the subjects of the state
which he serves. These duties extend both to maritime and land commerce.
The consul is to care that the provisions of commercial treaties are
observed, that proper invoices of goods are submitted, and that shipment
is in accord with the regulations of the state which he serves. He is to
furnish such reports in regard to commercial and economic conditions as
are required. These reports often involve many subjects only indirectly
related to trade and commerce. (2) The consul has many duties relating
to the _maritime service_ of the state which accredits him. This usually
includes such supervision of merchant vessels as the domestic law of his
state may grant to him, together with that accorded by custom. His
office is a place of deposit of a ship's papers while the ship remains
in port. When necessary he may supervise the shipment, wages, relief,
transportation, and discharge of seamen, the reclaiming of deserters,
the care of the effects of deceased seamen, in some states the
adjudication of disputes between masters, officers, and crews, and if
necessary he may intervene in cases of mutiny or insubordination. In
case of wrecked vessels the consul is usually left considerable latitude
in his action. The consul may also authenticate the bill of sale of a
foreign vessel to the subject of the state which accredits him. This
authentication entitles the vessel to the protection of the consul's
state. The consul may also be intrusted with other duties by treaties
and custom of given states. (3) The consul _represents_ the _interests
of the citizens_ of the state in whose service he is, in matters of
authentication of acts under seal, in administration of the property of
citizens within his district, in taking charge of effects of deceased
citizens, in arbitration of disputes voluntarily submitted to him, visé
of passports, and minor services. (4) The consul _furnishes_ to the
state which he represents _information_ upon a great variety of subjects
particularly relating to commercial, economic, and political affairs,
the conditions of navigation, and general hydrographic information.
Besides this he is expected to keep his state informed of the events of
interest transpiring within his district.
As Hall says: "In the performance of these and similar duties the action
of a consul is evidently not international. He is an officer of his
state to whom are entrusted special functions which can be carried out
in a foreign country without interfering with its jurisdiction. His
international action does not extend beyond the unofficial employment of
such influence as he may possess, through the fact of his being an
official and through his personal character, to assist compatriots who
may be in need of his help with the authorities of the country. If he
considers it necessary that formal representations shall be made to its
government as to treatment experienced by them or other matters
concerning them, the step ought in strictness to be taken through the
resident diplomatic agent of his state,--he not having himself a
recognized right to make such communications."[260] In late years there
has been in the consular conventions between different states a
tendency to extend to consuls the right of complaint to the local
authorities in case "of any infraction of the treaties or conventions
existing between the states," and "if the complaint should not be
satisfactorily redressed, the consular officer, in the absence of the
diplomatic agent of his country, may apply directly to the government of
the country where he resides."[261]
(_e_) In some of the =Eastern and non-Christian states= consuls have
special powers and functions in addition to the ordinary powers and
functions. The extent of the powers varies, and is usually determined by
treaty. With the advance of civilization these special functions are
withdrawn, as by the Treaty of the United States with Japan, Nov. 22,
1894,[262] the jurisdiction of the consular courts of the United States
in Japan came to an end July 17, 1899.
In general, in Mohammedan and non-Christian states, treaty stipulations
secure to the consuls of Western states the right of exercising
extensive criminal and civil jurisdiction in cases involving citizens of
their own and the Eastern states, or in cases involving citizens of
their own and other Western states.[263] In some of the Eastern states
the consuls have exclusive jurisdiction over all cases to which citizens
of their states are parties;[264] in others the cases involving
citizens of the Eastern and Western states are tried in the court of the
defendant in the presence of the "authorized official of the plaintiff's
nationality," who may enter protest if the proceedings are not in accord
with justice,[265] while in certain states or for certain cases mixed
courts are constituted. Certain Western states in their domestic laws
make provisions for appeal from the decision of the consular court to
specified authorities as to the diplomatic agent or to some domestic
tribunal.
This jurisdiction is exceptional, furnishes no precedents for
international law, tends to become more restricted, and will doubtless
gradually disappear.[266]
(_f_) The =privileges and immunities= vary according to the states and
from the fact that a consul may be, (1) a citizen of the state in which
he exercises his consular functions, (2) a domiciled alien, (3) an alien
engaged in business or some other occupation in the state where he
exercises his functions, or (4) a citizen of the accrediting state
engaged exclusively upon consular business.[267] It is, however,
necessary that the state which grants an _exequatur_ to, or receives as
consul a person from one of the first three classes, grant to such
person a measure of privilege and immunity consistent with the free
performance of his consular duties.
Each consul has the privilege of placing above the door of his house the
arms of the state which he serves, generally also of flying its flag.
The archives and official property are inviolable.
In the case of a consul not a citizen of the receiving state and engaged
exclusively in consular business, exemption from arrest except on a
criminal charge, when he may be punished by local laws or sent home for
trial; exemption from witness duty, though testimony may be taken in
writing; exemption from taxation; exemption from military charges and
service,--is usually conceded by custom and often by treaty. It is not,
however, conceded that the consular residence may be used as an asylum.
The consul of the third class, who, though an alien to the receiving
state, engages in business other than consular duties, is subject to all
local laws governing similarly circumstanced foreigners, except when in
the performance of his functions. His consular effects must be kept
distinct from those appertaining to his business capacity, which last
are under local law.
The domiciled alien exercising consular functions is subject to local
law as others similarly circumstanced, which, in some states, may
involve considerable obligations. The freedom from local restrictions
sufficient for the convenient performance of his consular duties is
implied in the grant of the _exequatur_.
The reception of a citizen as a consular representative of a foreign
state does not confer upon him the personal privileges and immunities of
any of the other classes, but only the immunities attaching to the
office itself, and absolutely necessary for the performance of its
duties, as the right to use the arms above the office door, the
inviolability of archives, and respect for his authority while in the
performance of his functions.
In some of the Eastern states and in some of the non-Christian and
semicivilized states consuls are entirely exempt from local
jurisdiction, enjoying exemptions similar to those of diplomatic agents.
In time of war the house of the consul is, when flying the flag of the
state which he serves, specially protected, and liable to injury only in
case of urgent military necessity. Consuls do not necessarily withdraw
because of hostilities with the accrediting state.[268]
In general, the consul, by virtue of his public office, is entitled to
more respect than a simple citizen, or, as Heffter puts it, "consuls are
entitled to that measure of inviolability which will enable them to
exercise their consular functions without personal inconvenience."[269]
(_g_) =The consular office may be vacated= by a given occupant, (1) by
death, (2) by recall, (3) by expiration of his term of service, (4) by
revocation of his _exequatur_. This last cause is the only one needing
attention. The _exequatur_ may be revoked by the state issuing it, if
the conduct of the holder be displeasing to the state. The state issuing
the _exequatur_ is sole judge. This does not necessarily imply any
discourtesy to the accrediting state, as the consul does not represent
the sovereignty of the state. It is customary, however, to give the
accrediting state an opportunity to recall its consul. _Exequaturs_
have, on several occasions, been withdrawn from consuls who have
directly or indirectly aided the enemies of the receiving state, or have
given offense by their participation in the public affairs of the
receiving state. Consequently consuls are usually officially advised to
refrain so far as possible from expressions of their opinions upon
public affairs, either of the receiving or sending state.
CHAPTER XIV
TREATIES
81. +Definition.+
82. +Other Forms of International Agreements.+
(_a_) Protocol.
(_b_) Declarations.
(_c_) Memoranda.
(_d_) Letters, notes.
(_e_) Sponsions.
(_f_) Cartels.
83. +The Negotiation of Treaties.+
(_a_) The agreement.
(_b_) The draft.
(_c_) Signs and seals.
(_d_) Ratification.
84. +The Validity of Treaties.+
(_a_) International capacity.
(_b_) Due authorization.
(_c_) Freedom of consent.
(_d_) Conformity to law.
85. +The Classification of Treaties.+
86. +The Interpretation of Treaties.+
87. +The Termination of Treaties.+
§ 81. Definition
A treaty is an agreement, generally in writing, and always in conformity
with law, between two or more states. A treaty may establish, modify, or
terminate obligations. These obligations must be such as are legally
within the capacity of the states concerned to negotiate. A treaty runs
between states only. As distinguished from other forms of international
agreement, a treaty is usually concerned with matters of high state
importance, with a considerable number of questions, or with matters
involving several states.
Separate articles are clauses attached to a treaty after ratification,
and to be interpreted with reference to the whole.
§ 82. Other Forms of International Agreements
Besides the treaty, which is the most formal international agreement,
there may be various other methods of expressing the terms of
international agreements. The importance of the matter contained in the
various documents is not necessarily in proportion to their formality.
The terms "convention" and "treaty" are very generally used
interchangeably, though strictly the scope of a convention is less
broad, and usually applies to some specific subject, as to the
regulation of commerce, navigation, consular service, postal service,
naturalization, extradition, boundaries, etc. The terms below are often
used loosely in practice.
(_a_) =A protocol=, or _procès verbal_, is usually in the form of
official minutes, giving the conclusions of an international conference
and signed at the end of each session by the negotiators. This does not
require ratification by the sovereign as in the case of treaties and
conventions, though it is equally binding upon the good faith of the
states concerned. Ordinarily the persons signing the protocol have been
duly authorized by their respective states in advance. The term
"protocol" is sometimes applied to the preliminary draft of an agreement
between two or more states as to the agreements entered into by
negotiators in preparation of a more formal document, such as a treaty
or convention.[270]
(_b_) =Declarations= are usually documents containing reciprocal
agreements of states, as in granting equal privileges in matters of
trade-marks, copyrights, etc., to the citizens of each state. The term
is used for the documents, (1) which outline the policy or course of
conduct which one or more states propose to pursue under certain
circumstances, (2) which enunciate the principles adopted, or (3) which
set forth the reasons justifying a given act.
(_c_) The terms "=memoranda=" and "=memoires=" are used to indicate the
documents in which the principles entering an international discussion
are set forth, together with the probable conclusions. These documents
may be considered by the proper authorities, _e.g._ may be sent to the
foreign secretaries of the states concerned, and _contre-memoires_ may
be submitted. These documents are generally unsigned.
(_d_) Besides the above, there may be in diplomatic negotiations
=letters= between the agents, in which the use of the first or second
person is common, and =notes=, which are more formal and usually in the
third person. These letters, if made public, may have much force, as in
the case of the collective note of the powers commonly called the
"Andrassy note," by which the Powers of Europe in 1875 held that in
Turkey "reform must be adopted to put a stop to a disastrous and bloody
contest."
(_e_) When representatives of states not properly commissioned for the
purpose, or exceeding the limits of their authority, enter into
agreements, their acts are called treaties =sub spe rati= or
=sponsions=. Such agreements require ratification by the state. This
ratification may be explicit in the usual form, or tacit, when the state
governs its action by the agreements.
(_f_) Of the nature of treaties are =cartels=, which are agreements made
between belligerents, usually mutual, regulating intercourse during war.
These may apply to exchange of prisoners, postal and telegraphic
communications, customs, and similar subjects. These documents are less
formal than conventions, usually negotiated by agents specially
authorized, and do not require ratification, though fully obligatory
upon the states parties to the agreement.[271] Here also may be named
the suspension of arms, which the chief of an army or navy may enter
into as an agreement for the regulation or cessation of hostilities
within a limited area for a short time and for military ends. When such
agreements are for the cessation of hostilities in general, or for a
considerable time, they receive the name of armistices or truces. These
are sometimes called conventions with the enemy. These last do not imply
international negotiation.
+Note.+ Agreements concluded between states and private individuals or
corporations have not an international character, and do not come
within the domain of international law. Such agreements may include:--
1. Contracts with individuals or corporations for a loan,
colonization, developing a country, etc.
2. Agreements between princes in regard to succession, etc.
3. Concordats signed by the Pope as such and not as a secular prince.
§ 83. The Negotiation of Treaties
The negotiation of treaties includes, (_a_) the international agreement
upon the terms, (_b_) the drafting of the terms, (_c_) the signing, and
(_d_) the ratification.
(_a_) The first step preparatory to =the agreement= is the submission of
proof that the parties entering into the negotiations are duly qualified
and authorized. As the sovereigns themselves do not now in person
negotiate treaties,[272] it is customary for those who are to conduct
such negotiations to be authorized by a commission generally known as
_full power_. The negotiators first present and exchange their _full
powers_. They may be somewhat limited in their action by
instructions.[273] Often it is the diplomatic representatives who
negotiate with the proper authorities of the state to which they are
accredited. The negotiations are sometimes written, sometimes verbal,
and are preserved in the _procès verbaux_. In case the negotiations are
for any reason discontinued before the drafting of the terms of the
agreement, it is customary to state the circumstances leading to this
act in a protocol signed by all the negotiators. Sometimes this takes
the name of a manifest or of a declaration.
(_b_) The =draft= of the treaty is usually, though not necessarily, of a
uniform style. Many early treaties opened with an invocation to Deity.
This is not the custom followed by the United States, however. The
general form is to specify the sovereigns of the contracting states, the
purpose of the agreement, and the names of the negotiators, with their
powers. This constitutes the preamble. Then follow in separate articles
the agreements entered into forming the body of the treaty, the
conditions of ratification, the number of copies, the place of the
negotiation, the signatures and seals of the negotiators. Sometimes
other articles or declarations[274] are annexed or added, with a view to
defining, explaining, or limiting words or clauses used in the body of
the treaty. Ordinarily the same formula is followed as in the portion of
the main treaty subsequent to the body in setting forth conditions of
ratification, etc.
The order of the states parties to the treaty, and of the agents
negotiating it, varies in the different copies. The copy transmitted to
a given state party to the treaty contains the name of that state and of
its agents in the first place, so far as possible. Each negotiator signs
in the first place the copy of the treaty to be transmitted to his own
state, and if the agents of more than one other state sign the treaty,
they sign in alphabetical order of their states, in the original
language of the convention. This is known as the principle of the
alternat.
The following is the beginning and end of the Treaty of Washington
relative to the Alabama Claims, etc., including the President's
proclamation thereof:[275]--
"BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
"+A Proclamation+
"Whereas a treaty, between the United States of America and her
Majesty the Queen of the United Kingdom of Great Britain and Ireland,
concerning the settlement of all causes of difference between the two
countries, was concluded and signed at Washington by the high
commissioners and plenipotentiaries of the respective governments on
the eighth day of May last; which treaty is word for word, as
follows:--
"'The United States of America and her Britannic Majesty, being
desirous to provide for an amicable settlement of all causes of
difference between the two countries, have for that purpose appointed
their respective plenipotentiaries, that is to say: The President of
the United States has appointed, on the part of the United States, as
Commissioners in a Joint High Commission and Plenipotentiaries [here
follow the names]; and her Britannic Majesty, on her part, has
appointed as her High Commissioners and Plenipotentiaries [here follow
the names].
"'And the said plenipotentiaries, after having exchanged their full
powers, which were found to be in due and proper form, have agreed to
and concluded the following articles:--
[Here follow 42 articles.]
"'+Article+ XLIII
"'The present treaty shall be duly ratified by the President of the
United States of America, by and with the advice and consent of the
Senate thereof, and by her Britannic Majesty; and the ratifications
shall be exchanged either at Washington or at London within six months
from the date hereof, or earlier if possible.
"'In faith whereof, we, the respective plenipotentiaries, have signed
this treaty and have hereunto affixed our seals.
"'Done in duplicate at Washington the eighth day of May, in the year
of our Lord one thousand eight hundred and seventy-one.'
[Here follow the seals and signatures.]
"And whereas the said treaty has been duly ratified on both parts, and
the respective ratifications of the same were exchanged in the city of
London, on the seventeenth day of June, 1871, by Robert C. Schenck,
Envoy Extraordinary and Minister Plenipotentiary of the United States,
and Earl Granville, her Majesty's Principal Secretary of State for
Foreign Affairs, on the part of their respective governments:
"Now, therefore, be it known that I, Ulysses S. Grant, President of
the United States of America, have caused the said treaty to be made
public, to the end that the same, and every clause and article
thereof, may be observed and fulfilled with good faith by the United
States and the citizens thereof.
"In witness whereof, I have hereunto set my hand and caused the seal
of the United States to be affixed.
"Done at the City of Washington this fourth day of July, in the year
of our Lord one thousand eight hundred and seventy-one, and of the
Independence of the United States the ninety-sixth.
"+U. S. Grant.+
"By the President:
"+Hamilton Fish+, _Secretary of State_."
There is no diplomatic language, though various languages have from time
to time been more commonly used. In early treaties and diplomatic works
Latin was very common, and it was used so late as the Treaty of Utrecht
in 1713. Spanish prevailed for some years toward the end of the
fifteenth century. From the days of Louis XIV., when the French
particularly became the court language, it has been widely used in
congresses and treaties. Frequently, when used, there have been inserted
in the treaties provisions that the use of French should not be taken as
a precedent. The French language is, however, commonly employed in
congresses in which a considerable number of different languages are
represented, and the original forms of the treaties are drawn in French.
During the nineteenth century this has been very common, as in the acts
of the Congress of Vienna, 1815; Aix-la-Chapelle, 1818; Paris, 1856;
Berlin, 1878 and 1885; Brussels, 1890. Even other states of Europe, in
making treaties with Asiatic and African states, have agreed upon French
as the authoritative text for both states. In some of the treaties of
the United States and the Ottoman Porte, the French language is used.
It is customary, when the treaty is between states having different
official languages, to arrange for versions in both languages in
parallel columns, placing at the left the version in the language of the
state to which the treaty is to be transmitted.
(_c_) In signing the treaty each representative =signs and seals= in the
first place the copy to be sent to his own state. The order of the other
signatures may be by lot or in the alphabetical order of the states
represented. The signing of the treaty indicates the completion of the
agreement between those commissioned in behalf of the states concerned.
This does not irrevocably bind the states which the signers represent,
though the fact that its representative has signed a treaty is a reason
for ratification which cannot be set aside except for most weighty
cause.
(_d_) =Ratification= is the acceptance by the state of the terms of the
treaty which has been agreed upon by its legally qualified agent. The
exchange of ratifications is usually provided for in a special clause,
_e.g._ "The present treaty shall be ratified, and the ratifications
exchanged at ... as speedily as possible." By this clause the state
reserves to itself the right to examine the conditions before entering
into the agreement. At the present time it is held that even when not
expressed, the "reserve clause" is understood.
The ratification conforms to the domestic laws of each state. Ordinarily
it is in the form of an act duly signed and sealed by the head of the
state. In the act of ratification the text of the treaty may be
reproduced entire, or merely the title, preamble, the first and last
articles of the body of the treaty, the concluding clauses following the
last article, the date, and the names of the plenipotentiaries.
In many states prior approval of the treaty by some legislative body is
necessary. In the United States the Constitution provides that the
President "shall have power by and with the advice and consent of the
Senate, to make treaties, provided two-thirds of the Senators present
concur."[276] In the United States it has frequently happened that the
Senate has not approved of treaties, and they have therefore failed of
ratification. This was the fate of the Fishery Treaty with Great Britain
in 1888.
The ratification may be refused for sufficient reason. Each state must
decide for itself what is sufficient reason. The following have been
offered at various times as valid reasons for refusal of ratification:
(1) error in points essential to the agreement, (2) the introduction of
matters of which the instructions of the plenipotentiaries do not give
them power to treat, (3) clauses contrary to the public law of either of
the states, (4) a change in the circumstances making the fulfillment of
the stipulations unreasonable, (5) the introduction of conditions
impossible of fulfillment, (6) the failure to meet the approval of the
political authority whose approval is necessary to give the treaty
effect, (7) the lack of proper credentials on the part of the
negotiators or the lack of freedom in negotiating.
The exchange of ratifications is usually a solemn, _i.e._ highly formal,
ceremony by which parties to the treaty or convention guarantee to each
other the execution of its terms. As many copies of the act of
ratification are prepared by each state as there are state parties to
the treaty. When the representatives of the states assemble for the
exchange of ratifications, they submit them to each other. These are
carefully compared, and if found in correct form, they make the exchange
and draw up a _procès verbal_ of the fact, making as many copies of the
_procès verbal_ as there are parties to the treaty. At this time also a
date for putting into operation the provisions of the treaty may be
fixed. Sometimes clauses explanatory of words, phrases, etc., in the
body of the treaty are agreed upon. Such action usually takes the form
of a special _procès verbal_ or protocol.
Unless there is a stipulation as to the time when a treaty becomes
effective, it is binding upon the signatory states from the date of
signing, provided it is subsequently ratified.
A state may assume a more or less close relation to the agreements
contained in treaties made by other states, by measures less formal than
ratification. These measures are commonly classed as acts of, (1)
_approbation_, by which a state without becoming in any way a party to
the treaty assumes a favorable attitude toward its provisions, (2)
_adhesion_, by which a state announces its intention to abide by the
principles of a given treaty without becoming party to it, and (3)
_accession_, by which a state becomes a party to a treaty which has
already been agreed upon by other states.
+Note.+ After the completion of the negotiation it is customary to
promulgate and publish the treaty or convention. Both these acts are
matters of local rather than international law. The _promulgation_ is
the announcement by the chief of the state that the treaty or
convention has been made, and the _publication_ is the official
announcement of the contents of the treaty or convention. See p. 204.
§ 84. Validity of Treaties
Four conditions are very generally recognized as essential to the
validity of a treaty.
(_a_) The parties to the treaty must have the =international capacity=
to contract, _i.e._ ordinarily they must be independent states.
(_b_) The agents acting for the state must be =duly authorized=, _i.e._
the plenipotentiaries must act within their powers.
(_c_) There must be =freedom of consent= in the agreements between the
states. This does not imply that force, as by war, reprisals, or
otherwise, may not be used in bringing about a condition of affairs
which may lead a state, without parting with its independence, to make
such sacrifices as may be necessary to put an end thereto. No constraint
can be put upon the negotiators of the treaty by threats of personal
violence, or in any way to prohibit their free action, without
invalidating their acts. There is no freedom of consent when the
agreement is reached through fraud of either party, and treaties so
obtained are not valid.
(_d_) The treaties must be in =conformity to law=, as embodied in the
generally recognized principles of international law and the established
usage of states. States could not by treaty appropriate the open sea,
protect the slave trade, partition other states unless as a measure of
self-protection, deprive subjects of essential rights of humanity, or
enter into other agreements that could not be internationally
obligatory.
§ 85. Classification of Treaties
Treaties have been variously classified, but the classifications serve
no great purpose. The most common classification is clearly set forth by
Calvo. As regards form, treaties may be, (1) transitory, or (2)
permanent or perpetual; as regards nature, (1) personal, relating to the
sovereign, or (2) real, relating to things and not dependent on the
sovereign person; as regards effects, (1) equal or (2) unequal, or
according to other effects, simple or conditional, definitive or
preliminary, principal or accessory, etc.; as regards objects, (1)
general or (2) special.[277] In a narrower sense treaties may be divided
into many classes, as political, economic, guarantee, surety,
neutrality, alliance, friendship, boundary, cession, exchange,
jurisdiction, extradition, commerce, navigation, peace, etc., and
conventions relating to property of various kinds, including literary
and artistic, to post and telegraph, etc. Most of these classes are
sufficiently described by their titles. The nature of some of the
classes is not fully indicated in the title.
A treaty of guarantee is an engagement by which a state agrees to secure
another in the possession of certain specified rights, as in the
exercise of a certain form of government, in the free exercise of
authority within its dominions, in freedom from attack, in the free
navigation of specified rivers, in the exercise of neutrality, etc. In
1831 and 1839, by the Treaties of London, the independence and
neutrality of Belgium were guaranteed, and in the Treaty of 1832 the
affairs in Greece were adjusted under guarantee. The Treaty of Paris,
1856, guarantees "the independence and the integrity of the Ottoman
Empire." When the guaranteeing state is not only bound to use its best
efforts to secure the fulfillment of the treaty stipulations, but to
make good the conditions agreed upon in the treaty provided one of the
principals fails to meet its obligations, the treaty is not merely one
of guarantee, but also a treaty of surety. This happens in case of
loans more particularly.
Agreements of states to act together for specific or general objects
constitute treaties of alliance. The nature of these treaties of
alliance varies with the terms. They may be defensive, offensive, equal,
unequal, general, special, permanent, temporary, etc., or may combine
several of these characteristics.
§ 86. Interpretation of Treaties
Sometimes clauses interpreting treaties are discussed and adopted by the
states signing a treaty. These acts may take the form of notes,
protocols, declarations, etc. The dispatch of the French ambassador at
London, Aug. 9, 1870, to the foreign secretary interprets certain
clauses of the treaty guaranteeing the neutrality of Belgium. In cases
where no preliminary agreement in regard to interpretation is made,
there are certain general principles of interpretation which are
ordinarily accepted. Many treatises follow closely the chapters of
Grotius and Vattel upon this subject.[278]
The _rules usually accepted_ are: (1) Words of the treaty are to be
taken in the ordinary and reasonable sense as when elsewhere used under
similar conditions. (2) If the words have different meanings in the
different states, the treaty should so far as possible be construed so
as to accord with the meaning of the words in the states which accepted
the conditions. (3) In default of a plain meaning, the spirit of the
treaty or a reasonable meaning should prevail. (4) Unless the
fundamental rights of states are expressly the subject of the agreement,
these rights are not involved. (5) That which is clearly granted by the
treaty carries with it what is necessary for its realization.
In the _cases of conflicting clauses_ in a single treaty or conflicting
treaties, the general rules are: (1) Special clauses prevail against
general clauses; prohibitory against permissive, unless the prohibitory
is general and the permissive special; of two prohibitory clauses, the
one more distinctly mandatory prevails; of two similar obligatory
clauses the state in whose favor the obligation runs may choose which
shall be observed. (2) In case of conflict in treaties between the same
states the later prevails; in case a later treaty with a third state
conflicts with an earlier treaty with other states, the earlier treaty
prevails.[279]
"The most favored nation" clause is now common in treaties of commercial
nature. This clause ordinarily binds the state to grant to its co-signer
all the privileges similarly granted to all other states, and such as
shall be granted under subsequent treaties. When privileges are granted
by one state in exchange for privileges granted by another, as in a
reciprocal reduction in tariff duties, a third state can lay claim to
like reduction only upon fulfillment of like conditions. Under "the most
favored nation" clause, Art. VIII., of the Treaty of 1803, between
France and the United States, France claimed that its ships were
entitled to all the privileges granted to any other nation whether so
granted in return for special concessions or not. This position the
United States refused to accept, and by Article VII. of the Treaty of
1831 France renounced the claims.[280]
§ 87. Termination of Treaties
Treaties in general come to an end under the following conditions:--
(_a_) The complete fulfillment of all the treaty stipulations terminates
a treaty.
(_b_) The expiration of the limit of time for which the treaty agreement
was made puts an end to the treaty.
(_c_) A treaty may be terminated by express agreement of the parties to
it.
(_d_) When a treaty depends upon the execution of conditions contrary to
the principles of international law or morality or impossible of
performance, it is not effective.
(_e_) A state may renounce the advantages and rights secured under a
treaty, _e.g._ England renounced the protectorate of the Ionian Islands
in 1864, which she had held since 1815.
(_f_) A declaration of war may put an end to those treaties which have
regard only to conditions of peaceful relations, as treaties of
alliance, commerce, navigation, etc., and may suspend treaties which
have regard to permanent conditions, as treaties of cession,
boundaries, etc. The treaty of peace between China and Japan, May 8,
1895, Article 6, asserts that, "All treaties between Japan and China
having come to an end in consequence of the war, China engages,
immediately upon the exchange of ratifications of this act, to appoint
plenipotentiaries to conclude, with the Japanese plenipotentiaries, a
treaty of commerce and navigation, and a convention to regulate frontier
intercourse and trade." In the war between the United States and Spain
the royal decree issued by Spain, April 23, 1898, Article I., asserts
that "The state of war existing between Spain and the United States
terminates the treaty of peace and friendship of the 27th October, 1795,
the protocol of the 12th January, 1877, and all other agreements,
compacts, and conventions that have been in force up to the present
between the two countries." The declaration of war also gives special
effect to certain treaties and conventions, as to those in regard to
care of wounded, neutral commerce, etc.
(_g_) A treaty is voidable when, (1) it is concluded in excess of powers
of contracting parties, (2) when it is concluded because of stress of
force upon negotiators or because of fraud, (3) when the conditions
threaten the self-preservation of the state or its necessary attributes.
Hall gives as the test of voidability the following: "Neither party to a
contract can make its binding effect dependent at his will upon
conditions other than those contemplated at the moment when the contract
was entered into, and on the other hand a contract ceases to be binding
so soon as anything which formed an implied condition of its obligatory
force at the time of its conclusion is essentially altered."[281] The
condition _rebus sic stantibus_ is always implied.
(_h_) A treaty may be terminated by the simple act of denunciation when
this right of denunciation is specified in the treaty itself, or when
the treaty is of such a nature as to be voidable by an act of one of the
parties.
CHAPTER XV
AMICABLE SETTLEMENT OF DISPUTES AND NON-HOSTILE REDRESS
88. +The Amicable Settlement of Disputes.+
(_a_) Diplomatic negotiation.
(_b_) Good offices.
(_c_) Conferences and congresses.
(_d_) Arbitration.
89. +None-hostile Redress.+
90. +Retorsion.+
91. +Reprisals.+
92. +Embargo.+
93. +Pacific Blockade.+
§ 88. The Amicable Settlement of Disputes
It is now generally admitted that in the settlement of international
disputes war should be regarded as a last resort. Other means of
amicable settlement should be exhausted before any measures of force are
tried. Among these amicable means the most common are diplomatic
negotiations, the good offices or friendly mediation of a third state,
conferences and congresses, and arbitration.[282]
(_a_) The settlement of disputes =by diplomatic negotiation= follows the
ordinary course of diplomatic business, whether committed to the regular
or to special agents. The larger number of disputed questions are
settled by diplomatic negotiation.
(_b_) In the case of disputes which are not easily settled by diplomatic
negotiations, a third state, friendly to the disputants, sometimes
offers its =good offices= as mediator to bring about an agreement. The
office of the mediating state is not to judge upon the merits of the
disputed question, but to devise a practicable means of settlement of
the question in view of the circumstances of the dispute. The tender of
good offices is a measure involving the least possible interference in
the dispute, and cannot be regarded as other than a friendly act. There
is no obligation to accept the tender, and either disputant may decline
it without offense. One of the disputants may request the tender of good
offices or of mediation. The distinction between good offices and
mediation is not always made in practice, though it may be said that
good offices extend only to the establishing of bases of negotiations
and the commencement of the negotiations. The more direct work of
carrying on the negotiations is of the nature of mediation. Either party
may at the beginning or at any time refuse the mediator's offices.
(_c_) The settlement of disputes or of questions liable to give rise to
disputes by =conferences and congresses= is common, and implies a
meeting of representatives of the interested parties for consideration
of the terms of agreement upon which a question may be adjudicated. In
general the conclusions of a congress are more formal and are regarded
as having more binding force than those of a conference, though this
distinction is not always made. States not directly interested may
participate in conferences or congresses, and sometimes as mediators
play a leading part.
(_d_) =Arbitration= involves an agreement between the disputants to
submit their differences to some person or persons by whose decision
they will abide. Arbitration has been common from early times. It is now
becoming common to insert in treaties clauses providing for arbitration
in cases of disagreement upon the interpretation of clauses of the
treaty, and to resort more and more to this method of settling disputed
international questions.
The parties submitting the question to arbitration usually provide for
the naming of the arbitrator or arbitrators, and for the rules and
principles in accord with which the decision shall be made.
It is generally admitted that a decision is not binding if it is not in
accord with the principles to which the disputants had agreed; if it is
flagrantly unjust; if it is equivocal and itself open to dispute; or if
the decision is obtained by fraud or force.
Of about thirty cases of arbitration during the nineteenth century, the
decision in one case was rejected by both parties to the dispute, and in
one case rejected by one of the parties. In several other instances one
party has refused to submit to arbitration questions readily lending
themselves to such settlement, even though requested by the other
party.[283]
§ 89. Non-hostile Redress
Good offices, mediation, and arbitration can only extend to
international differences of certain kinds. Such measures are not
applicable to all cases of disagreement, nor are such measures always
acceptable to both parties. Consequently certain other practices have
arisen with the view of obtaining satisfaction by measures short of war.
Formerly an individual might be commissioned by a letter of marque and
reprisal to obtain satisfaction from a state for injuries which he had
suffered. This practice is, however, discontinued,[284] and satisfaction
must be obtained through the proper state channels. The means by which
satisfaction may be claimed vary, and are usually classed as retorsions,
reprisals, of which embargo is an important variety, and pacific
blockades.
§ 90. Retorsion
Retorsion is a species of retaliation in kind.[285] Retorsion may not
consist in acts precisely identical with those which have given offense,
though it is held that the acts should be analogous. The offense in
consequence of which measures of retorsion are taken may be an act
entirely legitimate and desirable from the point of view of the
offending state. Another state may, however, consider the act as
discourteous, injurious, discriminating, or unduly severe. In recent
years commercial retorsion has become a very important means of
retaliation which, bearing heavily upon modern communities, may lead to
a speedy settlement of difficulties. The tariff wars of recent years
show the effectiveness of commercial retorsion, _e.g._ the measures in
consequence of the tariff disagreements between France and Switzerland
in 1892. These measures of retorsion should always be within the bounds
of municipal and international law.
§ 91. Reprisals
Reprisals are acts of a state performed with a view to obtaining redress
for injuries. The injuries leading to reprisals may be either to the
state or to a citizen, and the acts of reprisal may fall upon the
offending state or upon its citizens either in goods or person. The
general range of acts of reprisal may be by (1) the seizure and
confiscation of public property or private property, and (2) the
restraint of intercourse, political, commercial, or general. In extreme
cases, acts of violence upon persons belonging to one state, when in a
foreign state, have led to similar acts upon the part of the state whose
subjects are injured against the subjects of the foreign state. This
practice is looked upon with disfavor, though it might be sanctioned by
extremest necessity. Acts of retaliation for the sake of revenge are
generally discountenanced.
§ 92. Embargo
Embargo consists in the detention of ships and goods which are within
the ports of the state resorting to this means of reprisal. It may be
(1) civil or pacific embargo, the detention of its own ships, as by the
act of the United States Congress in 1807, to avoid risk on account of
the Berlin Decree of Napoleon, 1806, and the British Orders in Council,
1807; or (2) hostile, the detention of the goods and ships of another
state. It was formerly the custom to detain within the ports of a given
state the ships of the state upon which it desired to make reprisals,
and if the relations between the states led to war to confiscate such
ships. Hostile embargo may now be said to be looked upon with disfavor,
and a contrary policy is generally adopted, by which merchant vessels
may be allowed a certain time in which to load and depart even after the
outbreak of hostilities. The Naval War Code of the United States
provides that "Merchant vessels of the enemy, in ports within the
jurisdiction of the United States at the outbreak of war, shall be
allowed thirty days after war has begun to load their cargoes and
depart."[286] By the proclamation of the President of the United States
declaring that war with Spain had existed since April 21, 1898, it was
also declared that "Spanish merchant vessels, in any ports or places
within the United States, shall be allowed till May 21, 1898, inclusive,
for loading their cargoes and departing from such ports or places."[287]
Spain, by the royal decree of April 23, 1898, declared "A term of five
days from the date of the publication of the present royal decree in the
_Madrid Gazette_ is allowed to all United States ships anchored in
Spanish ports, during which they are at liberty to depart."[288]
§ 93. Pacific Blockade
Pacific blockade is a form of reprisal or constraint which consists in
the blockading by one or more states of certain ports of another state
without declaring or making war upon that state. In the conduct of such
blockades practice has varied greatly. In general, however, the vessels
of states not parties to the blockade are not subject to seizure. Such
vessels may be visited by a ship of the blockading squadron in order to
obtain proof of identity. Whether vessels under foreign flags are liable
to other inconveniences or to any penalties is not defined by practice
or opinion of text writers. "The Institute of International Law," in
1887, provided that pacific blockade should be effective against the
vessels of the blockaded party only. This position seemed to be one
which could be generally accepted. From the nature of pacific blockade
as a measure short of war, its consequences should be confined only to
the parties concerned. The pacific blockade of Greece in 1886 extended
only to vessels flying the Greek flag,[289] but the admirals of the
Great Powers in the pacific blockade of Crete in 1897 endeavored to
establish the right to control other than Greek vessels if they carried
merchandise for the Greek troops or for the interior of the island. As
no case arose to test the claim, this question cannot be regarded as
settled.
The provisions of the pacific blockade of Crete in 1897 were as
follows:--
"The blockade will be general for all ships under the Greek flag.
"Ships of the six powers or neutral may enter into the ports occupied
by the powers and land their merchandise, but only if it is not for
the Greek troops or the interior of the island. These ships may be
visited by the ships of the international fleets.
"The limits of the blockade are comprised between 23° 24' and 26° 30'
longitude east of Greenwich, and 35° 48' and 34° 45' north
latitude."[290]
The Secretary of State of the United States, in acknowledging the
receipt of the notification of the action of the powers, said, "I
confine myself to taking note of the communication, not conceding the
right to make such a blockade as that referred to in your communication,
and reserving the consideration of all international rights and of any
question which may in any way affect the commerce or interests of the
United States."[291] The weight of authority supports the position of
the United States.
The first attempt to establish a blockade without resorting to war was
in 1827, when Great Britain, France, and Russia blockaded the coasts of
Greece with a view to putting pressure upon the Sultan, its nominal
ruler. Since that time there have been pacific blockades varying in
nature: blockade of Tagus by France, 1831; New Granada by England, 1836;
Mexico by France, 1838; La Plata by France, 1838 to 1840; La Plata by
France and England, 1845 to 1848; Greece by England, 1850; Formosa by
France, 1884; Greece by Great Britain, Germany, Austria, Italy, and
Russia, 1886; Zanzibar by Portugal, 1888; and Crete by Great Britain,
Germany, Austria, France, Italy, and Russia, 1897. From these instances
it may be deduced (1) that pacific blockade is a legitimate means of
constraint short of war, (2) that those states parties to the blockade
are bound by its consequences, (3) that as a matter of policy it may be
advisable to resort to pacific blockade in order to avoid the more
serious resort to war, and (4) that states not parties to the pacific
blockade are in no way bound to observe it, though their ships cannot
complain because they are required to establish their identity in the
ordinary manner.
PART IV
INTERNATIONAL LAW OF WAR
CHAPTER XVI
WAR
94. +Definition.+
95. +Commencement.+
96. +Declaration.+
97. +Object.+
98. +General Effects.+
§ 94. Definition
Gentilis, one of the earliest writers on the laws of war, defined war in
1588 as "a properly conducted contest of armed public forces."[292] The
nature of such contests varied with circumstances, and wars were,
accordingly, classified by early writers as public, private, mixed,
etc., distinctions that now have little more than historical value.[293]
Wars are now sometimes classified as international and civil.
§ 95. Commencement
It is now assumed that peace is the normal relation of states. When
these relations become strained it is customary for one or both of the
states to indicate this condition by discontinuing some of the means of
peaceful intercommunication, or by some act short of war. The withdrawal
of a diplomatic representative, an embargo, or any similar action does
not mark the commencement of war. War commences with the first act of
hostilities, unless a declaration fixes an earlier date, and in case of
a declaration subsequent to the first act of hostilities, war dates from
the first act. A proclamation of the blockade of Cuban ports preceded
the declaration of war between Spain and the United States in 1898.[294]
Similarly, hostilities were begun before the declaration of war between
China and Japan in 1894.[295] Indeed, few of the wars of the last two
centuries have been declared before the outbreak of hostilities, and
many have not been declared formally at all. Declaration at the present
time is usually but a formal acknowledgment of a well-known fact. In the
case of the war in South Africa, early in October, 1899, the government
of the Transvaal requested the government of Great Britain to give "an
immediate and affirmative answer" not later than 5 P.M. on October 11th
to certain questions in the accompanying ultimatum as to settling
differences by arbitration, the withdrawal of British troops, etc.,
stating that if the answer was not satisfactory, it would be regarded as
"a formal declaration of war." The government of Great Britain replied
that the conditions demanded were such that the government deemed it
impossible to discuss them. Hostilities immediately followed.
Civil war naturally is not preceded by a declaration, but exists from
the time of the recognition of the belligerency by an outside state, or
from the date when the parent state engaged in some act of war against
the insurgent party.[296] In the case of the Civil War in the United
States, the proclamation of blockade of the Southern ports by President
Lincoln was held to be sufficient acknowledgment of a state of war.[297]
§ 96. Declaration
In ancient times wars between states were entered upon with great
formality. A herald whose person was inviolate brought the challenge, or
formal declaration, which received reply with due formality. At the
beginning of the eighteenth century this practice had become unusual,
and in the days of Vattel (1714-1767) the theory of the necessity of a
formal declaration was set aside. It was, however, maintained that a
proclamation or manifesto should be issued for the information of the
subjects of the states parties to the war, and for the information of
neutrals. The practice is now generally followed, and may be regarded as
obligatory.[298] Such action is reasonable in view of the changes which
a state of war brings about in the relations of the parties concerned,
and of neutrals. The proclamations usually specify the date from which
the war begins, and hence have weight in determining the nature of acts
prior to the proclamation, as the legal effects of war date from the
first act of hostilities if the proclamation does not fix an earlier
date. The constitution of a state, written or unwritten, determines in
what hands the right to declare war shall rest, _e.g._ in the United
States in Congress.
* * * * *
By act of the United States Congress of April 25, 1898,[299] it was
declared:--
"First, That war be, and the same is hereby, declared to exist, and
that war has existed since the twenty-first day of April, _Anno
Domini_ eighteen hundred and ninety eight, including said day, between
the United States of America and the Kingdom of Spain.
"Second, That the President of the United States be, and he hereby is,
directed and empowered to use the entire land and naval forces of the
United States, and to call into the actual service of the United
States the militia of the several States, to such extent as may be
necessary to carry this Act into effect."[300]
§ 97. Object
The object of war may be considered from two points of view, the
political and the military. International law cannot determine the
limits of just objects for which a state may engage in war. Politically
the objects have covered a wide range, though there is a growing
tendency to limit the number of objects for which a state may go to war.
It is generally held that self-preservation is a proper object, but as
each state must decide for itself what threatens its existence and
well-being, even this object may be very broadly interpreted. History
shows that it has not been difficult from the political point of view
to find an object of war when the inclination was present in the state.
The nominal are often not the real objects, and the changing conditions
during the progress of the war may make the final objects quite
different from the initial objects. The simple cost of carrying on
hostilities sometimes changes the conditions upon which peace can be
made. The classification of causes and objects formerly made have little
weight in determining whether a state will enter upon war. The questions
of policy and conformity to current standards are the main ones at the
present time.
The object of war in the military sense "is a renewed state of
peace,"[301] or as stated in the English manual, "to procure the
complete submission of the enemy at the earliest possible period with
the least possible expenditure of men and money." The "Institute of
International Law," Oxford session of 1880, gave as a general principle
that the only legitimate end that a state may have in war is to weaken
the military strength of the enemy.[302]
§ 98. General Effects
The general and immediate effects of war are:--
(_a_) To suspend all non-hostile intercourse between the states parties
to the war.
(_b_) To suspend the ordinary non-hostile intercourse between the
citizens of the states parties to the war.
(_c_) To introduce new principles in the intercourse of the states
parties to the war with third states. These impose new duties upon
neutrals and allies.
(_d_) To abrogate or suspend certain treaties:--
(1) To abrogate those treaties which can have force only in time of
peace, _e.g._ of amity, commerce, navigation, etc.
(2) To suspend those treaties which are permanent and naturally
revive at the end of the war, _e.g._ of boundaries, public debts, etc.
(3) To bring into operation treaties concerning the conduct of
hostilities.
The fuller consideration of the effects of war upon general relations
will be found in the succeeding chapters.
CHAPTER XVII
STATUS OF PERSONS IN WAR
99. +Persons affected by War.+
100. +Combatants.+
101. +Non-combatants.+
§ 99. Persons affected by War
(_a_) By the strict theory of war "the =subjects of enemy states= are
enemies."[303] The treatment of the subjects of enemy states is not,
however, determined by the allegiance alone, but in part by conduct and
in part by domicile of the subject.
(_b_) The =subjects of neutral states= are affected by their relations
to the hostile states as established by their own government, as
determined by their conduct, and as determined by their domicile.
(_c_) By conduct persons are divided into =combatants= and
=non-combatants=, according as they do or do not participate in the
hostilities. The status of such persons may be further modified by
domicile or by political allegiance.
§ 100. Combatants
Combatants in the full sense are the regularly authorized military and
naval forces of the states. They are liable to the risks and entitled to
the immunities of warfare, and if captured become prisoners of war.
(_a_) The =status of combatants= is also =allowed= to two classes which
engage in defensive hostilities:--
(1) The officers and crew of a merchant vessel which defends itself
by force are liable to capture as prisoners of war.
(2) With regard to _levies en masse_ much difference of opinion
exists. Article 10 of the Declaration of Brussels, 1874, was adopted
at the Hague Conference in 1899, and may be considered as representing
a generally accepted position, namely, "The population of a
non-occupied territory, who, on the approach of the enemy, of their
own accord take up arms to resist the invading troops, without having
had time to organize themselves in conformity with Article 9
[providing for responsible leader, uniform, etc.], shall be considered
as belligerents, if they respect the laws and customs of war."[304]
(_b_) The =status of combatants= is =not allowable= for those who,
without state authorization, engage in aggressive hostilities.
(1) When in the time of war the officers and crew of a merchant
vessel attack another merchant vessel, they are liable to punishment
according to the nature of their acts, and the state to which they owe
allegiance is only indirectly responsible, nor can they claim its
protection.
(2) When bands of men without state authorization and control, such
as guerrilla troops or private persons, engage in offensive
hostilities, they are liable to the same treatment as above mentioned.
(3) Spies are those who, acting secretly or under false pretenses,
collect or seek to collect information in the districts occupied by
the enemy, with the intention of communicating it to the opposing
force.[305] Such agents are not forbidden, but are liable to such
treatment as the laws of the capturing army may prescribe. This may be
death by hanging. The office of spy is not necessarily dishonorable.
§ 101. Non-combatants
Non-combatants include those who do not participate in the hostilities.
In practice this status is generally conceded to women, children,
clergy, scientists, artists, professional men, laborers, etc., who make
no resistance, whether subjects of the state or not. These are, of
course, liable to the hardships consequent upon war.
(_a_) When the armed forces of one state obtain authority over territory
previously occupied by the other state, the non-combatant population is
free from all violence or constraint other than that required by
military necessity. They are liable, however, to the burdens imposed by
civilized warfare.
(_b_) Subjects of one of the belligerent states sojourning within the
jurisdiction of the other were in early times detained as prisoners.
While Grotius (1625) allows this on the ground of weakening the forces
of the enemy,[306] and while Ayala had earlier (1597) sanctioned
it,[307] Bynkershoek, writing in 1737, mentions it as a right seldom
used. The detention of English tourists by Napoleon in 1803 was not in
accord with modern usage. During the eighteenth century, the custom was
to secure, by treaty stipulation, a fixed time after the outbreak of
hostilities during which enemy subjects might withdraw. While similar
provisions are inserted in many treaties of the nineteenth century, the
practice may be said to be so well established that, in absence of
treaty stipulations, a reasonable time would be allowed for withdrawal.
A large number of treaties of the nineteenth century have provisions to
the effect of Article XXVI. of the treaty between the United States and
Great Britain of 1795: "The merchants and others of each of the two
nations residing in the dominions of the other shall have the privilege
of remaining and continuing their trade, so long as they live peaceably
and commit no offense against the laws; and in case their conduct should
render them suspected, and their respective Governments should think
proper to order them to remove, the term of twelve months from the
publication of the order shall be allowed them for that purpose, to
remove with their families, effects, and property." This custom of
allowing enemy subjects to remain during good behavior has become
common, but can hardly be called a rule of international law. Persons
thus allowed to remain are generally treated as neutrals, though in the
case of Alcinous _v._ Nigreu[308] it was held that an enemy subject,
residing in England without a license, could not maintain an action for
breach of contract, though the contract which had been entered into
before the war was valid and might be enforced when peace was restored.
CHAPTER XVIII
STATUS OF PROPERTY ON LAND
102. +Public Property of the Enemy.+
103. +Real Property of Enemy Subjects.+
104. +Personal Property of Enemy Subjects.+
§ 102. Public Property of the Enemy
Formerly the public property of the enemy, whatever its nature, was
regarded as hostile, and liable to seizure. Practice of modern times has
gradually become less extreme, and the attitude of the powers in
restoring the works of art which Napoleon had brought to Paris shows the
sentiment early in the nineteenth century. The practice in regard to
public property of the enemy has now become fairly defined.
The public property of one belligerent state within the territory of the
other at the outbreak of war, if real property, may be administered
during the war for the benefit of the local state; if movable, it is
liable to confiscation. Works of art, scientific and educational
property, and the like are, however, exempt.[309] The Treaty of Aug. 20,
1890, between Great Britain and France, exempts public vessels employed
in the postal service.
In case one belligerent by military occupation acquires authority over
territory formerly within the jurisdiction of the other, the rules of
the Hague Conference of 1899 provide as follows:--
"+Art. 53.+ An army of occupation can only take possession of the
cash, funds, and property liable to requisition belonging strictly to
the State, depots of arms, means of transport, stores and supplies,
and generally, all movable property of the State which may be used for
military operations.
"Railway plant, land telegraphs, telephones, steamers, and other
ships, apart from cases governed by maritime law, as well as depots of
arms and, generally, all kinds of war material, even though belonging
to Companies or to private persons, are likewise material which may
serve for military operations, but they must be restored at the
conclusion of peace, and indemnities paid for them."
"+Art. 55.+ The occupying state shall only be regarded as
administrator and usufructuary of public buildings, real property,
forests, and agricultural works belonging to the hostile State, and
situated in the occupied country. It must protect the capital of these
properties, and administer it according to the rules of trusteeship.
"+Art. 56.+ The property of municipalities, that of religious,
charitable, and educational institutions, and those of arts and
science, even when State property, shall be treated as private
property.
"All seizure, destruction of, or intentional damage done to such
institutions, to historical monuments, works of art or science, is
prohibited, and should he made the subject of civil and criminal
proceedings."[310]
§ 103. Real Property of Enemy Subjects
The real property of the subject of one belligerent situated within the
territory of the other belligerent was in early times appropriated by
the state, later practice administered it during the war, for the
benefit of the state; but at present it is treated as the real property
of any non-hostile foreigner.
It is generally conceded that real property of the subjects of either
state is unaffected by hostile occupation by the forces of the other
state, except so far as the necessities of warfare may require.[311]
§ 104. Personal Property of Enemy Subjects
The _movable property_ of the subject of one of the belligerent states
in the territory of the other belligerent state was until comparatively
recent times appropriated. In the case of Brown _v._ United States,[312]
in 1814, the Supreme Court held that the "existence of war gave the
right to confiscate, yet did not of itself and without more, operate as
a confiscation of the property of an enemy," though it further held that
the court could not condemn such property unless there was a legislative
act authorizing the confiscation. Many modern treaties provide that in
case of war between the parties to the treaties subjects of each state
may remain in the other, "and shall be respected and maintained in the
full and undisturbed enjoyment of their personal liberty and property so
long as they conduct themselves peaceably and properly, and commit no
offense against the laws."[313] The most recent practice has been to
exempt personal property of the subject of one belligerent state from
all molestation, even though it was within the territory of the other at
the outbreak of war. Of course, such property is liable to the taxes,
etc., imposed upon others not enemy subjects.
In case of hostile occupation, the Hague Conference of 1899 summarized
the rules as follows:--
"+Art. 46.+ Private property cannot be confiscated.
"+Art. 47.+ Pillage is formally prohibited.
"+Art. 48.+ If, in the territory occupied, the occupant collects the
taxes, dues, and tolls imposed for the benefit of the State, he shall
do it, so far as possible, in accordance with the rules in existence
and the assessment in force....
"+Art. 49.+ If ... the occupant levies other money taxes in the
occupied territory, this can only be for military necessities or the
administration of such territory."
Articles 50, 51, 52, provide that burdens due to military occupation
shall be as equable as possible, and that payment shall be made for
contributions.[314]
The practice now is to exempt private property so far as possible from
the consequences of hostile occupation, and to take it only on the
ground of reasonable military necessity.[315]
With regard to one particular form of property, modern commercial
relations as influenced by state credit have been more powerful than
theory or country. The stock in the _public debt_ held by an enemy
subject is wholly exempt from seizure or sequestration, and practice
even demands that interest must be paid to enemy subjects during the
continuance of the war.[316]
In case of belligerent occupation, contributions, requisitions, and
other methods are sometimes resorted to in supplying military needs.
_Contributions_ are money exactions in excess of taxes.[317]
Contributions should be levied only by the general-in-chief.
_Requisitions_ consist in payment in kind of such articles as are of use
for the occupying forces, as food, clothes, horses, boats, compulsory
labor, etc. Requisitions may be levied by subordinate commanders when
there is immediate need, otherwise by superior officers. Such
requisitions should not be in excess of need or of the resources of the
region.
Receipts for the value of both contributions and requisitions should be
given, in order that subsequent impositions may not be made without due
knowledge, and in order that the sufferers may obtain due reparation
from their own state on the conclusion of peace.
In naval warfare "reasonable requisitions for provisions and supplies
essential at the time"[318] is allowed. Such requisitions may be
enforced by bombardment if necessary. Contributions, however, cannot be
exacted unless after actual and complete belligerent occupation, as by
land forces. Contributions in the form of ransom to escape bombardment
cannot be levied, as in such cases occupation is not a fact.[319]
_Foraging_ is resorted to in cases where lack of time makes it
inconvenient to obtain supplies by the usual process of requisition, and
consists in the actual taking of provisions for men and animals by the
troops themselves.
_Booty_ commonly applies to military supplies seized from the enemy. In
a more general sense it applies to all property of the enemy which is
susceptible of appropriation. Such property passes to the state of the
captor, and its disposition should be determined by that state.
CHAPTER XIX
STATUS OF PROPERTY AT SEA
105. +Vessels.+
(_a_) Public vessels.
(_b_) Private vessels.
106. +Goods.+
107. +Submarine Telegraphic Cables.+
§ 105. Vessels
Vessels may be classed as public, belonging to the state, and private,
belonging to citizens of the state.
(_a_) =Public vessels= of a belligerent are liable to capture in any
port or sea except in territorial waters of a neutral. The following
public vessels are, however, exempt from capture unless they perform
some hostile act:--
(1) Cartel ships commissioned for the exchange of prisoners.
(2) Vessels engaged exclusively in non-hostile scientific work and
in exploration.[320]
(3) Hospital ships, properly designated and engaged exclusively in
the care of the sick and wounded.
(_b_) =Private vessels= of the enemy are liable to capture in any port
or sea except in territorial waters of a neutral. The following private
vessels are, however, exempt from capture unless they perform some
hostile act:--
(1) Cartel ships.
(2) Vessels engaged in explorations and scientific work.
(3) Hospital ships.
(4) Small coast fishing vessels. This exemption is not allowed to
deep sea fishing vessels.[321]
(5) Vessels of one of the belligerents in the ports of the other at
the outbreak of hostilities are usually allowed a specified time in
which to take cargo and depart. In the war between the United States
and Spain, 1898, Spanish vessels were allowed thirty days in which to
depart and were to be exempt on homeward voyage. Vessels sailing from
Spain for the United States ports before the declaration of war were
to be allowed to continue their voyages.[322] Spain allowed vessels of
the United States five days in which to depart.[323] It did not
prohibit the capture of such ships after departure. No provision was
made for vessels sailing from the United States for Spanish ports
before the declaration of war.
In the Prize Law of Japan, 1898, the following exemptions of enemy's
vessels are made:--
"(1) Boats engaged in coast fisheries.
"(2) Ships engaged exclusively on a voyage of scientific discovery,
philanthropy, or religious mission.
"(3) Vessels actually engaged in cartel service, and this even when
they actually have prisoners on board.
"(4) Boats belonging to lighthouses."[324]
§ 106. Goods
In general all public goods found upon the seas outside of neutral
jurisdiction are liable to capture. Works of art, historical and
scientific collections are sometimes held to be exempt, and probably
would not be captured.
Private hostile property at sea and not under the flag of a neutral is
liable to capture unless such property consist of vessels, etc., exempt
under § 105, (_b_).
Contraband of war under any flag, outside of neutral territory, and
destined for the enemy, is liable to capture.
Neutral goods in the act of violating an established blockade may be
captured.
Previous to the Treaty of Paris in 1856 great diversity in the treatment
of maritime commerce prevailed. This treaty provided that:--
"The neutral flag covers enemy's goods, with the exception of contraband
of war," and
"Neutral goods, with the exception of contraband of war, are not liable
to capture under the enemy's flag."[325]
Nearly all the important states of the world acceded to these provisions
except the United States and Spain, and both of these powers formally
proclaimed that they would observe these provisions in the war of
1898.[326]
§ 107. Submarine Telegraphic Cables
The position of submarine telegraphic cables has in recent years become
of great importance. Such a cable easily becomes an instrument of value
in the carrying on the operations of war. A convention of
representatives of the important states of the world met at Paris in
1884, and agreed upon rules for the protection of submarine cables.[327]
Article XV. of this convention announces that, "It is understood that
the stipulations of this convention shall in no wise affect the liberty
of action of belligerents." The principles recognized in war seem to
accord with Article 5 of the Naval War Code of the United States, which
provides that:--
"The following rules are to be followed with regard to submarine
telegraphic cables in time of war irrespective of their ownership:--
"(_a_) Submarine telegraphic cables between points in the territory of
an enemy, or between the territory of the United States and that of an
enemy, are subject to such treatment as the necessities of war may
require.
"(_b_) Submarine telegraphic cables between the territory of an enemy
and neutral territory may be interrupted within the territorial
jurisdiction of the enemy.
"(_c_) Submarine telegraphic cables between two neutral territories
shall be held inviolable and free from interruption."[328]
There is reason to believe that a submarine cable connecting the enemy's
country with a neutral country is liable to such censorship as will
render it neutral; and if this cannot be secured, it is liable to
interruption outside of neutral jurisdiction, otherwise it might become
a most dangerous organ of unneutral service.[329]
CHAPTER XX[330]
CONDUCT OF HOSTILITIES
108. +Belligerent Occupation.+
109. +Forbidden Methods.+
110. +Privateers.+
111. +Volunteer and Auxiliary Navy.+
112. +Capture and Ransom.+
113. +Postliminium.+
114. +Prisoners and their Treatment.+
(_a_) Quarter and retaliation.
(_b_) Employment.
(_c_) Exchange.
(_d_) Parole.
(_e_) Sick and wounded.
115. +Non-hostile Relations of Belligerents.+
(_a_) Flag of truce.
(_b_) Cartels.
(_c_) Passports, safe-conducts, safeguards.
(_d_) License to trade.
(_e_) Suspension of hostilities, truce, armistice.
(_f_) Capitulation.
§ 108. Belligerent Occupation
This is defined by the "Institute of International Law," Oxford, 1880,
as follows:--
"A territory is considered to be occupied, when, as the result of its
invasion by an enemy's force, the State to which it belongs has
ceased, in fact, to exercise its ordinary authority within it, and the
invading State is alone in a position to maintain order. The extent
and duration of the occupation are determined by the limits of space
and time within which this state of things exists."[331]
The sovereignty of the occupied territory does not pass to the occupying
state, but only the right to exercise the authority necessary for safety
and operations of war. Belligerent occupation was formerly held to carry
with it the right to full disposition of whatever appertained to the
territory. During the nineteenth century it has been given a clearer
definition. Belligerent occupation is a fact impairing the usual
jurisdiction, but it does not transfer sovereignty.
In general the civil laws of the invaded state continue in force in so
far as they do not affect the hostile occupant unfavorably. The regular
judicial tribunals continue to act in cases not affecting the military
occupation. Administrative officers continue to perform their functions
in absence of orders to the contrary, though of course purely political
officers would be limited in the exercise of their functions; _e.g._
registrars of marriages, births, and deaths might act as usual, while
the authority of a governor might be suspended. There is no doubt that
the freedom of the press cannot be claimed, as this might bring grave
consequences upon the occupying force.
The belligerent occupant may destroy or appropriate public property
which may have a hostile purpose, as forts, arms, armories, etc. The
occupying force may enjoy the income from the public sources. Strictly
private property should be inviolable, except so far as the necessity of
war requires contrary action.
Means of transportation, railways, boats, etc., as of direct use in
military operations, can be appropriated for the use of the invader.
"Their destruction is forbidden, unless it be required by the
necessities of war. They are restored, at the peace, in the state in
which they then are."[332]
The invader is bound to give such measure of protection to the
inhabitants of the occupied territory as he is able.[333]
Belligerent occupation begins when an invaded territory is effectively
held by a military force.
§ 109. Forbidden Methods
In the conduct of hostilities certain methods of action and certain
instruments are generally forbidden.
Deceit involving perfidy is forbidden.[334] As there are certain
conventional agreements held to exist even between enemies, violations
of these agreements remove from the violator the protection of the laws
of war. On land it is not permitted to use the flag or uniform of the
enemy for purposes of deceit.[335] Article 7 of the Naval War Code of
the United States provides that "The use of false colors in war is
forbidden, and when summoning a vessel to lie to, or before firing a
gun in action, the national colors should be displayed by vessels of the
United States."[336] Not all authorities agree in regard to the
provision forbidding false colors, though agreeing upon the other
provisions. The use of the conventional flag of truce, a white flag, or
of the hospital flag, red cross on white ground, to cover military
operations or supplies is forbidden.[337] Stratagems, such as feigned
attacks, ambush, and deceit not involving perfidy are allowed.[338]
Assassination by treachery is forbidden.[339]
"The bombardment, by a naval force, of unfortified and undefended
towns, villages, or buildings is forbidden, except when such
bombardment is incidental to the destruction of military or naval
establishments, public depots of munitions of war, or vessels of war
in port, or unless reasonable requisitions for provisions and supplies
essential at the time to such naval vessel or vessels are forcibly
withheld, in which case due notice of bombardment shall be given. The
bombardment of unfortified and undefended towns and places for the
nonpayment of ransom is forbidden."[340]
By the declaration of the Hague Conference of 1898, "the contracting
parties agree to prohibit, for a term of five years, the launching of
projectiles and explosives from balloons or by other new methods of a
similar nature."[341]
The use of poison, of projectiles or weapons inflicting unnecessary
suffering, is prohibited.[342] The Hague Conference also declared
against the "use of projectiles, the object of which is the diffusion
of asphyxiating or deleterious gases."[343]
Retaliation, devastation, refusal of quarter, and other severe methods
once resorted to are now generally forbidden, except as punishment for
violation of the laws of war.
§ 110. Privateers
A private armed vessel owned and manned by private persons and under a
state commission called a "letter of marque,"[344] is a privateer.
This method of carrying on hostilities has gradually met with less and
less of favor.[345] From the early days of the fifteenth century
neutrals were given commissions. Toward the end of the eighteenth
century treaties and domestic laws gradually provided against this
practice, though letters of marque were offered to foreigners by Mexico
in 1845, and by the Confederate States in 1861-1865. These were not
accepted, however, as such action had then come to be regarded as piracy
by many states. Privateering of any kind, as Kent said, "under all the
restrictions which have been adopted, is very liable to abuse. The
object is not fame or chivalric warfare, but plunder and profit. The
discipline of the crews is not apt to be of the highest order, and
privateers are often guilty of enormous excesses, and become the scourge
of neutral commerce.... Under the best regulations, the business tends
to blunt the sense of private right, and to nourish a lawless and fierce
spirit of rapacity."[346] The granting of letters of marque to private
persons of either of the belligerent states was attended with grave
evils, and, by the Declaration of Paris, 1856, "Privateering is, and
remains, abolished."[347] This declaration was agreed to by the leading
states of the world, with the exception of the United States, Spain,
Mexico, Venezuela, and China. In the Spanish-American War of 1898 the
United States formally announced that it would not resort to
privateering.[348] Spain, while maintaining her right to issue letters
of marque, declared the intention to organize for the present (May 3,
1898) a service of "auxiliary cruisers of the navy." The importance of
the subject of privateering is now largely historical, as it is doubtful
whether any civilized state would resort to this method of carrying on
maritime war.
§ 111. Voluntary and Auxiliary Navy
The relations of private vessels to the state in time of war, which had
been settled by the Declaration of Paris in 1856, was again made an
issue by the act of Prussia in the Franco-German War. By a decree of
July 24, 1870, the owners of vessels were invited to equip them for war
and place them under the naval discipline. The officers and crews were
to be furnished by the owners of the vessels, to wear naval uniform, to
sail under the North-German flag, to take oath to the articles of war,
and to receive certain premiums for capture or destruction of the
enemy's ships. The French authorities complained to the British that
this was privateering in disguise and a violation of the Declaration of
Paris. The law officers of the crown declared that there was a
"substantial difference" between such a volunteer navy and a system of
privateering, and that the action of Prussia was not contrary to the
Declaration of Paris. With this position some authorities agree, while
others dissent.[349] The weight of the act as a precedent is less on
account of the fact that no ships of this navy ever put to sea.
Similarly, the plan of Greece for a volunteer navy in 1897 was never put
into operation.[350]
Russia, in view of possible hostilities with England in 1877-1878,
accepted the offer of certain citizens to incorporate into the navy
during the war vessels privately purchased and owned. Such vessels are
still numbered in the "volunteer fleet," and though privately owned and
managed are, since 1886, under the Admiralty. These vessels may easily
be converted into cruisers, and are, so far as possible, favored with
government service. There seems to be little question as to the
propriety of such a relationship between the state and the vessels which
may be used in war.
Still less open to objection is the plan adopted by Great Britain in
1887 and by the United States in 1892, by which these governments,
through agreements with certain of their great steamship lines, could
hire or purchase at a fixed price specified vessels for use in case of
war. The construction of such vessels is subject to government approval,
and certain subsidies are granted to these companies. In time of war
both officers and men must belong to the public forces. The plans of
Russia, Great Britain, and the United States have met with little
criticism.[351]
§ 112. Capture and Ransom
For more than one hundred years the capture of private property at sea
has been regarded with disfavor both on the continent of Europe and in
America.
The attitude of the United States is shown by the provision in the
Treaty with Prussia of 1785, whereby merchant vessels of either state
are to pass "free and unmolested."[352] John Quincy Adams, in 1823,
proposed to England, France, and Russia to exempt private property from
capture. This proposition was not accepted.[353] The United States
withheld its approval of the Declaration of Paris of 1856 because
private property was not exempted from capture. The resolution in the
United States House of Representatives of Mr. Gillett of Massachusetts,
of April 25, 1898, exempting merchant ships from capture, failed to
pass, the argument being advanced that Spain had shown a lack of
reciprocity. States in practice have attempted to introduce the
principle of exemption of private property from capture, as at the
inception of the Franco-German War in 1870. The voice of the publicists
seems to be strongly in favor of exemption. By international law private
property cannot be said to be exempt, though the feeling in favor of
exemption is growing.
Article 11 of the Naval War Code of the United States provides that "The
personnel of a merchant vessel of an enemy captured as a prize can be
held, at the discretion of the captor, as witnesses, or as prisoners of
war when by training or enrollment they are immediately available for
the naval service of the enemy, or they may be released from detention
or confinement."[354]
Passengers on such vessels should be treated with consideration and
landed at a convenient port.[355]
Capture is complete when the hope of recovery has ceased and surrender
has taken place. It was long held that twenty-four hours of possession
constituted valid capture. In earlier times the capture was complete
when the property seized was brought within the firm possession of the
captor, as within a camp, fortress, fleet, etc. This rule seems to be
more equable, as the effective possession is a better ground than the
lapse of time.
The evidence of intention to capture must be shown by some act, such as
the placing of a prize crew or prize master on board a captured vessel,
though the vessel has been held to be under the control of the captor,
even when by reason of the weather no one has been placed on board.[356]
The captor should bring his prize into port for adjudication by the
court. The title to the prize immediately vests in the state, and is to
be disposed of only by state authority. However, an enemy's vessel may
be destroyed when it is no longer seaworthy, when it impedes unduly the
progress of the capturing force, when its recapture is threatened by
the enemy, when the capturing force is unable to place a sufficient
prize crew on board without impairing too much its own efficiency, and
when a port of the capturing force to which the prize may be brought is
too far away.[357] The United States, in the War of 1812, directed its
officers to destroy all the enemy's vessels captured, unless very
valuable and near a port. This was necessary on account of the fewness
of its forces.
Sometimes the original owner is allowed to ransom by repurchase property
which has been captured. In such case the transaction is embodied in a
"ransom bill," by which the master agrees that the owner will pay to the
captor a certain sum of money. A duplicate copy of this bill serves as a
safe-conduct for the ransomed vessel so long as there is no departure
from its terms in regard to the course to be sailed, the ports to be
entered, the time of sailing, etc. The contract is not violated when the
ransomed vessel is driven from her course by stress of weather or by
circumstances beyond her control.
The captor takes from the captured vessel a hostage for the fulfillment
of the ransom contract. Should the captor's vessel be taken with the
hostage and ransom bill on board by a vessel of the enemy, the ransom
bill is discharged. The captor may bring suit in the courts of the
captured vessel's state usually, though in England the process is by
action of the imprisoned hostage to recover his freedom. Some of the
European states forbid the practice, others limit it, and others, like
the United States, allow ransom.
§ 113. Postliminium
The word "postliminium" is derived from the Roman Law idea that a person
who had been captured and afterwards returned within the boundaries of
his own state was restored to all his former rights, for _jus
postliminium_ supposes that the captive has never been absent.[358] The
attempt to incorporate this fiction into international law has obscured
the fact for which it stands. The fact is that the rights of an owner
are suspended by hostile occupation or capture. These rights revive when
the occupation or capture ceases to be effective. The consequences of
acts of the enemy involving the capture while in the enemy's possession
are not necessarily invalidated if these acts were within his competence
by the laws recognized by civilized states. Thus taxes paid during a
hostile occupation or penalties for crime imposed by the invader are
held to discharge the obligation as if imposed by the regular
authorities.
When the restoration of the property or territory which has been in the
captor's possession is accomplished by a party other than the owner, the
service of restoration should receive proper acknowledgment as in other
cases of service. If territory is restored through the coöperation of an
ally, the conditions of the alliance will determine the obligation of
the original possessor.
Most states have definite rules as to the restoration of ships, as well
as other property, and the granting of salvage. The United States
provides that when any vessel or other property already captured shall
be recaptured, the same not having been condemned as prize before
recapture, the court shall award salvage according to the circumstances
of the case. If the captured property belonged to the United States,
salvage and expenses shall be paid from the treasury of the United
States; if to persons under the protection of the United States, salvage
and expenses shall be paid by them on restoration; if to a foreigner,
restoration shall be made upon such terms as by the law of his country
would be required of a citizen of the United States under like
circumstances of recapture; but, if there be no law, it shall be
restored upon the payment of such salvage and expenses as the court may
order. But these rules are not to contravene any treaty.[359] When the
original crew of the vessel arise and take the vessel from their
captors, it is called a rescue and the crew is not entitled to salvage.
When an American ship, on a voyage to London in 1799, was captured by
the French and afterward rescued by her crew, the British sailors
working their passage to London in the ship were allowed salvage.[360]
While Prussia was in possession of a portion of France during the
Franco-Prussian War of 1870, Prussia contracted with certain persons for
a sale of a portion of the public forests in France. The purchasers paid
for the privilege of felling the forests, but had not completed the
cutting of the trees when the Prussian occupation ceased. The purchasers
claimed that they had the right to complete their contract, but France
maintained that her rights revived when the Prussian occupation ceased,
and this position was accepted by Prussia in an additional article to
the treaty of peace of Dec 11, 1871.
§ 114. Prisoners and their Treatment
"A prisoner of war is a public enemy armed or attached to the hostile
army for active aid, who has fallen into the hands of the captor, either
fighting or wounded, on the field, or in the hospital, by individual
surrender, or capitulation.... Citizens who accompany an army for
whatever purpose, such as sutlers, editors, or reporters of journals, or
contractors, if captured, may be made prisoners of war, and be detained
as such." "All persons who are of particular and singular use and
benefit to the hostile army or its government"[361] are liable to
capture. Levies _en masse_ are now treated as public enemies. Within
recent years persons who by reason of their trades or training may be of
special use to the enemy are included among those liable to capture; as
the personnel of captured merchantmen.[362]
It is now a fundamental principle of law that the treatment of a
prisoner of war is not to be penal, unless the penalty is imposed for
some act committed after his capture. A prisoner of war is subject to
such restraint as is necessary for his safe custody. A prisoner of war
may be killed while attempting to escape, but if recaptured no
punishment other than such confinement as is necessary for his safe
keeping is allowable.
(_a_) The refusal of =quarter= to prisoners of war is not now allowed.
Those who have violated the laws of war or the principles of humanity
are liable to =retaliation= as a measure of protective retribution only.
It "shall only be resorted to after careful inquiry into the real
occurrence, and the character of the misdeeds that may demand
retribution."[363]
(_b_) =Employment.= Prisoners may be "employed upon public works which
have no direct relation to the operations carried on in the theatre of
war."[364] Such labor must be in accord with the rank of the prisoner
and not detrimental to health. Prisoners who are allowed to engage in
private industries do so with the understanding that their pay may be
devoted to the bettering of their condition, or if expedient may be
reserved for them and be paid to them on their release. From this amount
may be deducted the expense of the maintenance while in captivity.
(_c_) The =exchange= of prisoners of war is purely a voluntary act on
the part of the states at war. This takes place under an agreement
called a "cartel." The exchange is usually rank for rank, number for
number, value for value, though it is sometimes necessary to agree upon
certain conventional values where those of the same rank are not among
the captives, as in 1862, when the United States exchanged a captain in
the army for six privates, etc.
(_d_) Prisoners of war may be released =on parole=, which is a promise
to do or to refrain from doing certain acts in consideration of the
grant of freedom in other respects. The punishment for breach of parole
is death if the person is again captured.[365]
(_e_) The =sick and wounded= taken in the field become prisoners of war.
Their treatment is now determined for nearly all the important states by
the provisions of the Geneva Convention of 1864. This convention
provides for the neutralizing of hospitals and ambulances under proper
restrictions, for the protection of those engaged in the care of the
sick and wounded, and for such distinctive marks as shall identify those
engaged in this service, particularly the Red Cross.[366]
§ 115. Non-hostile Relations of Belligerents
(_a_) In time of war it is necessary that belligerents should have
certain relations not strictly hostile. Negotiations are often opened
under a =flag of truce=. In regard to this the Brussels Code, Article
43, provides:--
"An individual authorized by one of the belligerents to confer with
the other on presenting himself with a white flag, accompanied by a
trumpeter (bugler or drummer), or also by a flag-bearer, shall be
recognized as the bearer of a flag of truce. He as well as the
trumpeter (bugler or drummer), and the flag-bearer, who accompanies
him, shall have the right of inviolability."[367]
He may be accompanied, "if necessary, by a guide and an interpreter." A
commander is not obliged to receive the bearer of a flag of truce, and
may take necessary measures to prevent injury on account of his
presence. He may be blindfolded, detained at an outpost, or be put under
other restrictions. If the bearer take advantage of his privilege to spy
upon the enemy, he is liable to treatment as a spy, though he may report
such military information as he may acquire without effort on his own
part. If a bearer present himself during active operations, firing need
not necessarily cease, and the bearer is liable to such consequences as
his act may bring upon himself.
"In operations afloat the senior officer alone is authorized to
dispatch or to admit communication by flag of truce; a vessel in
position to observe such a flag should communicate the fact promptly.
The firing of a gun by the senior officer's vessel is generally
understood as a warning not to approach nearer. The flag of truce
should be met at a suitable distance by a boat or vessel in charge of
a commissioned officer, having a white flag plainly displayed from the
time of leaving until her return."[368]
(_b_) =Cartels= are agreements made to regulate intercourse during war.
Such conventions may regulate postal and telegraphic communication, the
reception of flags of truce, the exchange of prisoners, the care and
treatment of the same and of the sick and wounded.
A cartel ship is a vessel sailing under a safe-conduct for the purpose
of carrying exchanged prisoners. When thus employed the vessel is not
subject to seizure, although this exemption does not extend to a voyage
from one port to another in her own state for the sake of taking on
prisoners. The immunity is lost if the vessel departs from the strict
line of service by engaging in ordinary commerce, transportation, or
hostile acts.[369] Such a vessel may carry one gun for the purpose of
salutes.
(_c_) =Passports, safe-conducts, and safeguards= are sometimes given in
time of war.
A passport is a written permission given by the belligerent government
or by its authorized agent to the subject of the enemy state to travel
generally in belligerent territory.
A safe-conduct is a pass given to an enemy subject or to an enemy
vessel, allowing passage between defined points. Safe-conducts are
granted either by the government or by the officer in command of the
region within which it is effective.[370]
A safeguard is a protection granted by a commanding officer either to
person or property within his command. "Sometimes they are delivered to
the parties whose persons or property are to be protected; at others
they are posted upon the property itself, as upon a church, museum,
library, public office, or private dwelling."[371] When the protection
is enforced by a detail of men, this guard must use extreme measures, if
necessary to fulfill their trust, and are themselves exempt from attack
or capture by the enemy.
(_d_) =A license to trade= is a permission given by competent authority
to the subject of that authority or to another to carry on trade even
though there is a state of war. These licenses may be general or
special. A general license grants to all the subjects of the enemy
state or to all its own subjects the right to trade in specified places
or in specified articles. A special license grants to a certain person
the right to trade in the manner specified in his license. Neutrals may
receive a license to trade in lines which otherwise would not be open to
them.
A general license is granted by the head of the state. A special license
may be granted by a subordinate, valid in the region which he commands
so far as his subordinates are concerned. His superior officers are not
necessarily bound by his act, however.[372]
It is held that a license must receive a reasonable construction. In
general, fraud vitiates a license; it is not negotiable unless expressly
made so; a fair compliance in regard to the terms as to goods is
sufficient; a deviation from the prescribed course invalidates the
license unless caused by stress of weather or by accident; and a delay
in completing a voyage within the specified time invalidates the license
unless caused by enemy or the elements.[373] When a license becomes
void, the vessel is liable to the penalties which would fall upon it if
it had committed the act without license.
(_e_) =The cessation of hostilities= for a time is sometimes brought
about by agreement between the parties to the conflict. When this
cessation is for a temporary or military end, and for a short time or
within a limited area, it is usually termed a suspension of hostilities.
When the cessation is quite general, for a considerable time, or for a
political end, it is usually termed a truce or armistice.
Acts of hostility done in ignorance of the existence of the cessation of
hostilities are not violations of the agreement unless there has been
negligence in conveying the information to the subordinates. Prisoners
and property captured after the cessation in a given region must be
restored. During the period of the truce, the commercial and personal
intercourse between the opposing parties is under the same restrictions
as during the active hostilities, unless there is provision to the
contrary in the agreement. The relative position of the parties is
supposed to be the same at the end of the truce as at the beginning.
Hall says, "The effect of truces and like agreements is therefore not
only to put a stop to all directly offensive acts, but to interdict all
acts tending to strengthen a belligerent which his enemy, apart from the
agreement, would have been in a position to hinder."[374] Acts which the
enemy would not have been in a position to hinder, even in the absence
of a truce, are not necessarily interrupted by the agreement.[375]
The provisioning of a besieged place during a truce has been the subject
of some difference of opinion. If the conditions of the truce are to be
fair to the besieged party, that party must be allowed to bring in a
supply of provisions equal to the consumption during the continuance of
the truce.[376] At the present time this matter is usually provided for
in the terms of the truce.
A truce or other form of cessation of hostilities, if for a definite
time, comes to an end by the expiration of the time limit; if for an
indefinite time, by notice from one party to the other, or is terminated
by the violation of the conditions by either of the parties. A violation
of a truce by an individual renders him liable to such punishment as his
state may prescribe.[377]
(_f_) =A capitulation= is an agreement defining the conditions of
surrender of military forces, places, or districts within the command of
an officer. Such agreements are purely military and can have no
political force. The capitulation agreed upon between Generals Sherman
and Johnston, in 1865, was not sanctioned because it involved political
provisions. By the capitulation of Santiago, July, 1898, the American
commander agreed to transport the Spanish troops to Spain. The
conditions involved in a capitulation may vary greatly, but at the
present time it is usually possible to obtain the sanction of the
political authority before entering upon an agreement, owing to the
improved methods of communication. It is therefore hardly probable that
the terms of capitulations will be set aside, as in the celebrated case
of El Arisch, in 1800.[378] Agreements made by officers not possessing
proper authority or made in excess of authority, are called _sponsions_
or _sub spe rati_, and require ratification or acceptance by the state
to render them effective.[379]
CHAPTER XXI
TERMINATION OF WAR
116. +Methods of Termination.+
117. +By Conquest.+
118. +By Cessation of Hostilities.+
119. +By a Treaty of Peace.+
§ 116. Methods of Termination
War may come to an end, (1) by the complete submission of one of the
parties to the conflict or by conquest, (2) by the cessation of
hostilities between the parties to the conflict, or (3) by a treaty of
peace duly concluded.[380]
The object of war in early times was often conquest, and the conflict
ended only with the submission of one of the parties. This end is at
present usually disavowed, and the object of war is proclaimed to be
some purpose that will meet with as little disapproval as possible.[381]
The conditions under which the war will be brought to an end will be in
some measure determined by the object for which the war was undertaken.
§ 117. By Conquest
Conquest in the complete sense, as in the case of the _debellatio_ of
the Romans, is not now common. This implies a submission of one of the
parties without condition. There have been examples of absorption of the
sovereignty of the vanquished state in recent times, as in the Prussian
Decree of Sept. 20, 1866, by which conquered Hanover, Hesse, Nassau, and
Frankfort were incorporated into the Prussian state. Similarly, some of
the Italian states were absorbed by the kingdom of Italy after the
Treaty of Villafranca, 1859, and Madagascar became a part of France in
1896.
Conquest is held to be complete when the fact is evident from actual,
continued, and recognized possession. All of these evidences may not be
present in a given case, but if the intention and the fact of the
conquest and the submission are fully shown, it is sufficient to
constitute validity.[382]
§ 118. By Cessation of Hostilities
Certain wars have terminated by the simple cessation of hostilities.
Cases of such termination are rare. Such a method leaves in doubt the
relations of the parties to the conflict, and occasions inconvenience to
all states which may have intercourse with the contestants. The war
between Sweden and Poland in 1716, and also the war between France and
Spain in 1720, came to an end in this way. The war between Spain and her
American colonies ceased in 1825, but no diplomatic relations were
established with them till 1840, and the independence of Venezuela was
not recognized till 1850. After the hostilities between France and
Mexico, 1862-1867, no diplomatic relations were entered into till 1881.
It is only fair to neutrals that a declaration of the conclusion of
hostilities should be made.
§ 119. By Treaty of Peace
War is most often terminated by a treaty of peace, which is usually a
diplomatic agreement upon the manner of cessation of hostilities and
upon the conditions of the reëstablishment of friendly relations. In
recent years such treaties have often been preceded by preliminary
agreements. These are sometimes preceded by an armistice in order that
the terms may not be changed from day to day by the current fortunes of
war, as was the case in the discussions pending the Treaty of Westphalia
in 1648. In the war between China and Japan, in 1894-1895, an agreement
for the suspension of hostilities was made on March 30, 1895, but the
treaty of peace was not signed till April 17th. These preliminary
agreements may sometimes be made through the friendly offices of a third
power, as in the protocol of Aug. 12, 1898, in regard to the suspension
of hostilities between Spain and the United States. The ambassador of
France acted for Spain.[383] These preliminary agreements can be
concluded only by those persons delegated for the purpose, and they are
as binding as any international agreement in the matters upon which they
touch.
A treaty of peace usually covers, (1) the cessation of hostilities, (2)
the subjects which have led to war,[384] (3) agreements for immunity
for acts done during the war without sufficient authority or in excess
of authority. Such acts might otherwise become bases for civil or
criminal process. Acts not consequent upon the existence of war, but
such as are actionable under the ordinary laws of the state, as for
violation of private contract, ordinary debts, etc., are not included
unless there is a direct stipulation to that effect. This immunity is
commonly called amnesty. (4) Provision for the release of the prisoners
of war is often included. (5) The renewal of former treaties is provided
for in many peace agreements. (6) Special provision may be made for
cession of territory, indemnity, boundaries, or other contingent
points.[385]
A treaty of peace is usually held to be effective from the date of
signature, or from the date set in the treaty. Provisions fixing the
time at which hostilities shall cease at different points are common.
Acts of war committed after the conclusion of peace or after the
official notice of the termination of hostilities, are void.[386] The
Treaty of Frankfort, 1871, provides that maritime captures not condemned
at the conclusion of the war are not good prize.
"The general effect of a treaty of peace is to replace the belligerent
countries in their normal relation to each other."[387] In case of no
stipulations to the contrary, the doctrine of _uti possidetis_ applies,
by which the property and territory in the actual possession of either
of the belligerents at the conclusion of the war vests in the one having
possession.
Private rights suspended during the war revive on the conclusion of
peace. Though it was once held that debts could be confiscated during
war, this is now nowhere maintained.[388] In such cases the obligation
revives on the conclusion of peace, and by the Statute of Limitations
the period of the war is not reckoned in the time specified as the
period at which debts become outlawed.[389]
PART V
INTERNATIONAL LAW OF NEUTRALITY
CHAPTER XXII
DEFINITION AND HISTORY
120. +Definition.+
121. +Forms of Neutrality and of Neutralization.+
122. +History.+
123. +Declaration.+
124. +Divisions.+
§ 120. Definition
Neutrality is the relation which exists between states which take no
part in the war and the belligerents. Impartial treatment of the
belligerents is not necessarily neutrality. The modern idea of
neutrality demands an entire absence of participation, direct or
indirect, however impartial it may be.
§ 121. Forms of Neutrality and of Neutralization
The first form of neutrality is what was formerly known as perfect
neutrality, in distinction from imperfect neutrality, which allowed a
state to give to one of the belligerents such aid as it might have
promised by treaty entered into before and without reference to the war.
At the present time the only neutrality that is recognized is perfect,
_i.e._ an entire absence of participation in the war. A second form of
neutrality is commonly known as armed neutrality. This implies the
existence of an understanding, on the part of some of the states not
parties to the contest, in accordance with which they will resist by
force certain acts which a belligerent may claim the right to perform.
The armed neutralities of Feb. 28, 1780, and of Dec. 16, 1800, defended
the principle of "free ships, free goods."[390]
Neutralization is an act by which, through a conventional agreement, the
subject of the act is deprived of belligerent capacity to a specified
extent. Neutralization may apply in various ways.
(1) _Neutralized states are bound to refrain from offensive
hostilities_, and in consequence cannot make agreements which may demand
such action. Thus it was recognized that Belgium itself, a neutralized
state, could not guarantee the neutrality of Luxemburg in the Treaty of
London, in 1867. Belgium is, however, a party to the Treaty of Berlin of
1885, agreeing to respect the neutrality of the Congo State. This
agreement "to respect" does not carry with it the obligation to defend
the neutrality of the Congo State.
The important instances of neutralization are those agreed upon by
European powers. By the declaration signed at Vienna, March 20, 1815,
the powers (Austria, France, Great Britain, Prussia, and Russia)
"acknowledged that the general interest demands that the Helvetic States
should enjoy the benefits of perpetual neutrality," and declared "that
as soon as the Helvetic Diet should accede to the stipulations"
prescribed, her neutrality should be guaranteed.[391] The Swiss
Confederation acceded on the 27th of May, 1815, and the guaranteeing
powers gave their acknowledgment on the 20th of November, 1815.[392] The
powers also guaranteed the neutrality of a part of Savoy at the same
time. The neutralization of Belgium is provided for by Article VII. of
the Treaty of London, of Nov. 15, 1831, "Belgium, within the limits
specified in Articles I., II., and IV., shall form an independent and
perpetually Neutral State. It shall be bound to observe such Neutrality
towards all other States."[393]
(2) _A portion of a state may be the subject of an act of
neutralization_, as in the case of the islands of Corfu and Paxo by the
Treaty of London, of March 29, 1864. By Article II., "The Courts of
Great Britain, France, and Russia, in their character of Guaranteeing
Powers of Greece declare, with the assent of the Courts of Austria and
Prussia, that the Islands of Corfu and Paxo, as well as their
Dependencies, shall, after their Union to the Hellenic Kingdom, enjoy
the advantages of perpetual Neutrality. His Majesty the King of the
Hellenes engages, on his part, to maintain such Neutrality."[394]
(3) _The neutralization of certain routes of commerce_ has often been
the subject of convention. The United States guaranteed the "perfect
neutrality"[395] of the means of trans-isthmian transit when the State
of New Granada controlled the Isthmus of Panama in 1846. By the Treaty
of 1867 with Nicaragua the United States guarantees "the neutrality and
innocent use" of routes of communication across the state of
Nicaragua.[396] The Nine Powers by the Convention of Constantinople, of
Oct. 29, 1888, Great Britain making certain reservations, agree, by a
conventional act upon "a definite system destined to guarantee at all
times, and for all the powers, the free use of the Suez Maritime
Canal."[397] Full provisions for the maintenance of the neutrality of
the canal were adopted at this time also.
(4) _The Geneva Convention of 1864 neutralized persons and things_
employed in the amelioration of the condition of the sick and wounded in
the time of war.[398] At the present time hospital ships properly
certified and designated by flags and by bands of color on the outside
are neutralized by general practice.[399]
§ 122. History
Neutrality as now understood is of recent growth. In early times, and in
general throughout the Middle Ages, the fear of retaliation alone
deterred states from hostile action against belligerent states with
which they were formally at peace. A belligerent in the prosecution of
war might disregard the territorial, personal, or property rights in a
neutral state without violation of the principles of public law then
accepted.
A gradual formulation of principles which gave the basis of a more
equable practice came through the custom of making treaty provisions in
regard to the conduct of one of the parties when the other was at war
with a third state. Thus it was usually provided that no aid should be
given to the third state. By the end of the seventeenth century that
which had formerly been a matter of treaty stipulation became quite
generally accepted as a rule of action. Grotius, in 1625, gives only
about a fourth of a short chapter to the consideration of the duties of
the neutral toward the belligerents and the balance of the same chapter
to the duties of belligerents toward those not parties to the war.
Grotius maintains that "it is the duty of those who have no part in the
war to do nothing which may favor the party having an unjust cause, or
which may hinder the action of the one waging a just war, ... and in a
case of doubt to treat both belligerents alike, in permitting transit,
in furnishing provisions to the troops, in refraining from assisting the
besieged."[400] In Barbeyrac's note to Pufendorf, 1706, the discussion
shows that the idea of neutrality is clearer, but still confused by the
attempt to admit a variety of qualified forms by which a state may be
neutral in some respects and not in others.[401] Bynkershoek in 1737
said, "I call those _non hostes_ who are of neither party."[402] This
statement of Bynkershoek furnishes a convenient starting-point for his
successors. Vattel, in 1758, accepting this definition, also says that a
state may give such aid as has been promised in a treaty of alliance
previously made with one of the states, and still preserve exact
neutrality toward the other state.[403]
By Article XVII. of the Treaty of Amity and Commerce between the United
States and France, in 1778, "It shall be lawful for the ships of war of
either party, and privateers, freely to carry whithersoever they please
the ships and goods taken from their enemies; ... on the contrary, no
shelter or refuge shall be given in their ports to such as shall have
made prize of the subjects, people or property of either of the
parties," except when driven in by stress of weather. By Article XXII.
of the same treaty, foreign privateers were not allowed to be fitted out
or to sell their prizes in the ports of either party. In 1793 M. Genêt,
the French minister, began to fit out privateers, to give commissions to
citizens of the United States to cruise in the service of France against
the British, and to set up prize courts in the French consulates. He
justified himself under the provisions of the Treaty of 1778. His action
threatened to bring the United States into war with Great Britain and
led to the enunciation of the principles by the United States
authorities, of which Canning in 1823 said, "If I wished for a guide in
a system of neutrality, I should take that laid down by America in the
days of the presidency of Washington and the secretaryship of
Jefferson."[404] The President's Proclamation of Dec. 3, 1793, declares
that, in the war of France and the European powers, "the duty and
interest of the United States require that they should with sincerity
and good faith adopt and pursue a conduct friendly and impartial toward
the belligerent powers."[405] While the Proclamation does not mention
"neutrality," the orders and instructions issued in accordance with it
use the word. By the Act of Congress of June 5, 1794, and by subsequent
acts codified in 1818,[406] the United States assumed a position which
marks an epoch in the history of neutrality. The principles then
enunciated are the generally accepted rules of the present day. Great
Britain passed similar enactments in 1819, and made these more definite
and stringent by the Foreign Enlistment Act of 1870.[407]
§ 123. Declaration
In recent years it has become customary to issue proclamations of
neutrality, or to make known the attitude of the state by some public
announcement. This method publishes to other states and to the subjects
of the state issuing the announcement the position which the state will
take during the hostilities. Ordinarily some specifications as to what
may be done during the war accompany the proclamation.
In the war between the United States and Spain in 1898, practically all
the leading states of the world made known their neutrality. Germany,
according to the custom in that state for twenty years preceding, made
no public proclamation, but the neutrality of the Empire was announced
less formally by the Emperor in a speech before the Reichstag. The
British proclamation of April 23, 1898, is, however, a very full
statement of the principles which are to be observed during the
hostilities.[408]
A clause from the Russian Declaration of April 18, 1898, is an example
of the announcement of the general fact of neutrality: "It is with keen
regret that the Imperial Government witnesses an armed conflict between
two states to which it is united by old friendship and deep sympathy. It
is firmly resolved to observe with regard to these two belligerents a
perfect and impartial neutrality."[409]
§ 124. Divisions
The relations between neutrals and belligerents naturally fall into two
divisions:--
1. The relations between neutral states and belligerent states as
states. These relations are determined by the respect for sovereignty,
by international usage, and by treaties.
2. Relations between the states and individuals. These relations
involve:--
(1) Ordinary commerce.
(2) Contraband.
(3) Unneutral service.
(4) Visit and search.
(5) Convoy.
(6) Blockade.
(7) Continuous voyage.
(8) Prize and prize courts.
CHAPTER XXIII
RELATIONS OF NEUTRAL STATES AND BELLIGERENT STATES
125. +General Principles of the Relations between States.+
126. +Neutral Territorial Jurisdiction.+
127. +Regulation of Neutral Relations.+
(_a_) To belligerent troops.
(_b_) Asylum for vessels.
(_c_) Ordinary entry.
(_d_) Sojourn of vessels.
128. +No Direct Assistance by Neutral.+
(_a_) Military.
(_b_) Supplies.
(_c_) Loans.
(_d_) Enlistment.
129. +Positive Obligations of a Neutral State.+
§ 125. General Principles of the Relations between States
Of the general principle Wheaton says, "The right of every independent
state to remain at peace whilst other states are engaged in war is an
incontestable attribute of sovereignty."[410] Equally incontestable is
the right of a belligerent state to demand that a state not a party to
the war shall refrain from all participation in the contest, whether it
be direct or indirect.
The modern tendency is to remove from the neutral all possible
inconveniences which might result from war between states with which the
neutral is at peace. The normal relations between neutral and neutral
are unimpaired. As the neutral is at peace with the belligerents, the
relations between the neutral and the belligerents are affected only so
far as the necessities of belligerent operations demand. "Every
restriction, however, upon the rights of a neutral or belligerent must
have a clear and undoubted rule and reason. The burden of proof lies
upon the restraining government."[411]
§ 126. Neutral Territorial Jurisdiction
One of the earliest principles to receive the sanction of theory and
practice was that of the inviolability of territorial jurisdiction of
neutrals. This principle has been liberally interpreted in recent times,
and the tendency has been to make increasingly severe the penalties for
its violation.
(_a_) The troops of a belligerent may not engage in hostilities in the
land of a neutral.
(_b_) Belligerent persons who enter neutral land for warlike purposes,
whether actually committing hostilities or merely organized for such
purpose, should be interned "at points as far removed as possible from
the theater of war." Those entering for asylum to escape death or
captivity should be similarly treated.
Formerly it was held that the right of passage might be granted by a
neutral to both belligerents on the same terms, or to one of the
belligerents if in accord with an agreement entered into before the war.
There are many examples of this practice before the nineteenth century,
but at the present time it is the rule that a belligerent body of troops
may not pass through neutral territory. In the Franco-German War of 1870
the application of Germany to transport its wounded by railway across
Belgium was denied. It was claimed that the grant of this privilege
would enable Germany to use its own lines of railway for strictly
hostile purposes in the way of the transportation of troops, war
supplies, etc., thus relieving Germany of a part of the burdens of war.
(_c_) The rules applicable to the maritime jurisdiction of a neutral are
somewhat different from those of the land. The neutral does not control
with the same absolute authority the waters washing its shores and the
land within its boundaries. That portion of the sea which is within the
three-mile limit is for the purposes of peaceful navigation a part of
the open sea. The simple passage of ships of war through these waters is
permitted. All belligerent acts within the maritime jurisdiction of a
neutral are forbidden.[412]
The waters which appertain more strictly to the exclusive jurisdiction
of the neutral, such as harbors, ports, enclosed bays, and the like, are
subject to the municipal laws of the neutral.[413] Asylum in case of
imminent danger is, however, not to be denied; otherwise these waters
are open to belligerent ships of war only on condition that they observe
the regulations prescribed by the neutral. Such regulations must of
course be impartial. These regulations are now often announced in the
proclamations of neutrality, as was the case in the war of the United
States and Spain in 1898.
(_d_) Neutral territory may not be used as the base of military
operations or for the organization or fitting out of warlike
expeditions.
Sir W. Scott said in the case of the _Twee Gebroeders_ that, "no
proximate acts of war are in any manner to be allowed to originate on
neutral grounds."[414] This would without doubt apply to filibustering
expeditions. Many acts are of such nature as to make it impossible to
determine whether this principle is violated until the actor is beyond
the jurisdiction of the neutral. In such cases the neutral sovereignty
is "violated constructively."[415] A second act of this kind might
constitute the neutral territory a base of military operations.
It is difficult to distinguish in some cases between those expeditions
which have a warlike character and those which cannot at the time of
departure be so classed.
In 1828, during the revolution in Portugal, certain troops took refuge
in England. In 1829 these men, unarmed but under military command, set
out from Plymouth in unarmed vessels, ostensibly for Brazil. Arms for
their use had been shipped elsewhere as merchandise. Off the island of
Terceira, belonging to Portugal, they were stopped by English vessels
within Portuguese waters, and taken back to a point a few hundred miles
from the English Channel. The Portuguese then put into a French port.
Most authorities are agreed that the expedition was warlike, but that
the British ministers should have prevented the departure of the
expedition from British waters where they had jurisdiction, instead of
coercing it in Portuguese waters.[416]
During the Franco-German War of 1870 a large body of Frenchmen left New
York in French vessels bound for France. These vessels also carried
large quantities of rifles and cartridges. The Frenchmen were not
organized, the arms were proper articles of commerce, and the two were
not so related as to render them immediately effective for war. The
American Secretary held that this was not a warlike expedition. In
discussing this case Hall says, "The uncombined elements of an
expedition may leave a neutral state in company with one another,
provided they are incapable of proximate combination into an organized
whole."[417]
In order, therefore, that an expedition may be warlike there must be an
organized body of men, under military or naval direction, and intending
to engage in war in the near future.
§ 127. Regulation of Neutral Relations
The relations between the belligerent and the neutral may in some
respects be regulated by the neutral. Such regulations find expression
in neutrality laws, in proclamations of neutrality, and in special
regulations issued under exceptional circumstances or by joint agreement
of several states.
(_a_) While it is admitted that the =belligerent troops= may not use the
land of a neutral, yet the neutral is under obligation to offer asylum
to those seeking refuge to escape death or captivity. It is the duty of
a neutral state, within whose territory commands, or individuals, have
taken refuge, to intern them at points as far removed as possible from
the theater of war. Interned troops may be guarded in camps, or
fortified places. The expenses occasioned by the internment are
reimbursed to the neutral state by the belligerent state to whom the
interned troops belong.[418]
(_b_) In general a belligerent vessel has the =right of asylum= in a
neutral port. It may enter to escape the perils of the sea or to
purchase provisions, and to make repairs indispensable to the
continuance of the voyage. A vessel entering a neutral port after defeat
by the enemy is not disarmed, as would be the case with land forces
under similar conditions, though the neutral may prescribe the
conditions of its sojourn and departure.[419]
(_c_) =Ordinary entry= depends upon the will of the neutral, and is
subject to conditions imposed upon all belligerents alike.[420] These
conditions usually allow a vessel to take on necessary provisions and
supplies to enable her to reach the nearest home port. A regulation of
the Netherlands as to the vessels of the Spanish-American War of 1898
prescribes that "Coal shall not be supplied them so long as they are in
possession of prizes," otherwise a supply sufficient to bring the vessel
to a home port or to the port of an ally was allowed.
(_d_) =The time of sojourn= is usually limited to twenty-four hours,
unless a longer time is necessary for taking on supplies, completing
necessary repairs, or from stress of weather. Regulations as to the time
of departure of hostile vessels from a neutral port were quite fully
outlined in President Grant's proclamations of Aug. 22 and of Oct. 8,
1870, during the Franco-Prussian War.[421] He declared that no vessel of
war of either belligerent should leave the
"waters subject to the jurisdiction of the United States from which a
vessel of the other belligerent ... shall have previously departed,
until after the expiration of at least twenty-four hours from the
departure of such last-mentioned vessel beyond the jurisdiction of the
United States. If any ship of war or privateer of either belligerent
shall, after the time this notification takes effect, enter any ...
waters of the United States, such vessel shall be required ... to put
to sea within twenty-four hours after her entrance into such ...
waters, except in case of stress of weather or of her requiring
provisions or things necessary for the subsistence of her crew, or for
repairs; in either of which cases the authorities ... shall require
her to put to sea as soon as possible after the expiration of such
period of twenty-four hours, without permitting her to take in
supplies beyond what may be necessary for her immediate use; and no
such vessel ... shall continue within such ... waters ... for a longer
period than twenty-four hours after her necessary repairs shall have
been completed, unless within such twenty-four hours a vessel ... of
the other belligerent, shall have departed therefrom, in which case
the time limited for the departure ... shall be extended so far as may
be necessary to secure an interval not less than twenty-four hours
between such departure and that of any ... ship of the other
belligerent which may have previously quit the same ... waters. No
ship of war ... of either belligerent shall be detained in any ...
waters of the United States more than twenty-four hours, by reason of
the successive departures from such ... waters of more than one vessel
of the other belligerent. But if there be several vessels of each or
either of the two belligerents in the same ... waters, the order of
their departure therefrom shall be so arranged as to afford the
opportunity of leaving alternately to the vessels of the respective
belligerents, and to cause the least detention consistent with the
objects of this proclamation. No ship of war ... of either belligerent
shall be permitted, while in any ... waters within the jurisdiction of
the United States, to take in any supplies except provisions and such
other things as may be requisite for the subsistence of her crew, and
except so much coal only as may be sufficient to carry such vessel, if
without sail power, to the nearest European port of her own country;
or in case the vessel is rigged to go under sail, and may also be
propelled by steam power, then with half the quantity of coal which
she would be entitled to receive if dependent upon steam alone; and no
coal shall be again supplied to any such ship of war ... in the same
or in any other ... waters of the United States, without special
permission, until after the expiration of three months from the time
when such coal may have been last supplied to her within the waters of
the United States, unless such ship of war ... shall, since last
supplied, have entered a European port of the government to which she
belongs."[422]
The tendency at the present time is to make regulations which shall
guard most effectively against any possible use of neutral maritime
jurisdiction for hostile purposes. In the Spanish-American War of 1898,
Brazil provided that in case of two belligerent vessels:--"If the vessel
leaving, as well as that left behind, be a steamer, or both be sailing
vessels, there shall remain the interval of twenty-four hours between
the sailing of one and the other. If the one leaving be a sailing vessel
and that remaining a steamer, the latter may only leave seventy-two
hours thereafter."[423] Many states have adopted the practice of
absolutely refusing entrance within their waters to belligerent vessels
with prizes, except in case of distress. Some states prescribe that, in
such cases, the prizes should be liberated. There are examples of this
refusal in the neutrality proclamations of 1898. All forms of sale or
disposal of prize in neutral jurisdiction is of course generally
forbidden.
§ 128. No Direct Assistance by the Neutral
The neutral state may not furnish to a belligerent any assistance in
military forces, supplies of war, loans of money, or in any similar
manner.
(_a_) Formerly =military assistance= was often furnished to one of the
belligerents by a state claiming to be neutral on the ground that such
action was justified by a treaty obligation entered into before the war
could be foreseen. This position was supported by some of the ablest of
the authorities of the nineteenth century,[424] but is denied by the
latest writers.
(_b_) It is generally held that a neutral state may not furnish to one
or both of the belligerents =supplies of war=. As Hall says, "The
general principle that a mercantile act is not a violation of a state of
neutrality, is pressed too far when it is made to cover the sale of
munitions or vessels of war by a state."[425]
A case that aroused discussion was occasioned by the action of the
authorities of the United States conformably to a joint resolution of
Congress of July 20, 1868, by which the Secretary of War was to cause
"to be sold, after offer at public sale on thirty days' notice, ... the
old cannon, arms, and other ordnance stores ... damaged or otherwise
unsuitable for the United States military service, etc."[426] Complaint
was made that sales made under this act during the time of the
Franco-German War were in violation of neutrality. A committee appointed
by the United States Senate to investigate these charges reported that
sales "were not made under such circumstances as to violate the
obligations of our government as a neutral power; and this, to
recapitulate, for three reasons: (1) The Remingtons [the alleged
purchasing agents of the French government] were not, in fact, agents of
France during the time when sales were made to them; (2) if they were
such agents, such fact was neither known nor suspected by our government
at the time the sales were made; and (3) if they had been such agents,
and that fact had been known to our government, or if, instead of
sending agents, Louis Napoleon or Frederick William had personally
appeared at the War Department to purchase arms, it would have been
lawful for us to sell to either of them, in pursuance of a national
policy adopted by us prior to the commencement of hostilities."[427]
This last statement does not accord with the best opinion and doubtless
would not be maintained at the present time. The first and second claims
might justify the sale, though it would be in better accord with a
strict neutrality for a state to refrain from all sale of supplies of
war during the period of war between two states, toward which states it
professes to maintain a neutral attitude. This, of course, does not
affect the rights of commerce in arms on the part of the citizens of a
neutral state.
(_c_) The authorities are practically agreed that =loans of money= to a
belligerent state may not be made or guaranteed by a neutral state. This
does not, however, affect the commerce in money which may be carried on
by the citizens of a neutral state.
(_d_) A neutral may not permit the =enlistment of troops= for
belligerent service within its jurisdiction. This applies to such action
as might assume the proportions of recruiting. The citizens or subjects
of a neutral state may enter the service of one of the belligerents in a
private manner.
§ 129. Positive Obligations of a Neutral State
Not only must a neutral state refrain from direct assistance of either
belligerent, but it must also put forth positive efforts to prevent
acts which would assist a belligerent. If a state has neutrality laws,
it is under obligations to enforce these laws, and is also under
obligation to see that the principles generally recognized by
international law are observed. Most states make provision for the
enforcement of neutrality. In the United States the President is
authorized to employ the land and naval forces or militia to execute the
law.[428] Jefferson said that, "If the United States have a right to
refuse the permission to arm vessels and raise men within their ports
and territories, they are bound by the laws of neutrality to exercise
that right, and to prohibit such armaments and enlistments."[429] There
can be no difference of opinion upon the proposition that a neutral
state is bound to restrain within its jurisdiction all overt acts of a
character hostile to either belligerent.
There are, however, many acts which in themselves have no necessarily
warlike character. Whether such acts are in violation of neutrality must
be determined by inference as to their purpose. By such acts, as Hall
says, "the neutral sovereignty is only violated constructively."[430]
These acts vary so much in character and are of so wide a range that the
determination of their true nature often imposes severe burdens upon the
neutral attempting to prevent them. The destination of a vessel that is
in the course of construction may determine its character so far as the
laws of neutrality are concerned. If it is for a friendly state which is
at peace with all the world, no objection to its construction and sale
can be raised. If a subject of a neutral state builds a vessel for one
of the belligerents, such an act has sometimes been regarded as a
legitimate business transaction, at other times as an act in violation
of neutrality. As a business transaction, the vessel after leaving
neutral territory is liable to the risk of seizure as contraband. As an
act in violation of neutrality, the neutral state is bound to prevent
the departure of the vessel by a reasonable amount of care. The line of
demarcation which determines what acts a neutral state is under
obligation to prevent, and what acts it may allow its subjects to
perform at their own risk, is not yet clearly drawn. It is certain that
a state is bound to use "due diligence" to prevent the violation of its
neutrality. In the case of the _Alabama_,[431] this phrase was given
different meanings by the representatives of the United States and Great
Britain. The arbitrators declared that "due diligence" should be "in
exact proportion to the risks to which either of the belligerents may be
exposed from a failure to fulfill the obligations of neutrality on their
part."[432] This definition is not satisfactory, and the measure of care
required still depends upon the circumstances of each individual case,
and is therefore a matter of doubt.
CHAPTER XXIV
NEUTRAL RELATIONS BETWEEN STATES AND INDIVIDUALS
130. +Ordinary Commerce.+
(_a_) Destination.
(_b_) Ownership of goods.
(_c_) Nationality of vessel.
(_d_) Declaration of Paris.
131. +Contraband.+
132. +Penalty for Carrying Contraband.+
133. +Unneutral Service.+
134. +Visit and Search.+
(_a_) Right.
(_b_) Object.
(_c_) Method.
(_d_) Ship's papers.
(_e_) Grounds of seizure.
(_f_) Seizure.
135. +Convoy.+
136. +Blockade.+
(_a_) Historical.
(_b_) Conditions of existence.
(_c_) A war measure.
(_d_) Who can declare.
(_e_) Notification.
(_f_) Must be effective.
(_g_) Cessation.
137. +Violation of Blockade.+
138. +Continuous Voyages.+
139. +Prize and Prize Courts.+
§ 130. Ordinary Commerce
As a general principle, subjects of a neutral state may carry on
commerce in the time of war as in the time of peace. At the same time,
owing to the fact of war, a belligerent has the right to take measures
to reduce his opponent to subjection. The general right of the neutral
and the special right of the belligerent come into opposition. The
problem becomes one of "taking into consideration the respective rights
of the belligerents and of the neutrals; rights of the belligerents to
place their opponent beyond the power of resistance, but respecting the
liberty and independence of the neutral in doing this; rights of the
neutrals to maintain with each of the belligerents free commercial
relations, without injury to the opponent of either."[433]
In regard to commerce in the time of war, the matters of destination,
ownership of goods, and the nationality of the vessel have been the
facts ordinarily determining the treatment by the belligerent. If there
is nothing hostile in the destination of the commercial undertaking, in
the nature of the goods, or in the means of transport, the commerce is
free from interruption by the belligerent.
(_a_) The questions arising in regard to =destination= will naturally be
treated under the subjects of blockade and continuous voyage.
(_b_) =The ownership of goods= has usually been a fact determining their
liability to capture.
The rules of the _Consolato del Mare_, compiled in the thirteenth or
fourteenth century, looked to the protection of the neutral vessel and
the neutral goods on the one hand, and to the seizure of the enemy
vessel and of the enemy goods on the other hand. The goods of an enemy
could be seized under a neutral flag, and the goods of a neutral were
free even though under an enemy flag. This doctrine considered mainly
the character of the goods. These rules were held in favor till the
sixteenth century, from which time the practice varied greatly,
sometimes being regulated by treaty. In the sixteenth century France
advanced the doctrine of _hostile contagion_, maintaining the principle
of "enemy ships, enemy goods," and "enemy goods, enemy ships."[434] The
practice of states was far from uniform in the various wars.
(_c_) =The nationality of the vessel= has been sometimes regarded as the
sole fact determining liability of goods to capture, and at other times
affecting only the vessel itself.
Under the rules of the _Consolato_, the flag determined the liability of
the vessel only. Under the French ordinances, the flag contaminated the
goods. From 1778, the doctrine that the neutral flag covered enemy goods
became more commonly accepted. This was especially emphasized by the
armed neutrality of 1780.
Some of the agreements of the United States will show the variety of
practice even in recent times. By Art. XXIII. of the Treaty of 1778 with
France it is provided, "that free ships shall also give a freedom to
goods, and that everything shall be deemed to be free and exempt which
shall be found on board the ships belonging to the subjects of either
of the confederates, although the whole lading or any part thereof
should appertain to the enemies of either, contraband goods being always
excepted." In the Treaty of 1785 with Prussia occurs the following:
"free vessels making free goods, insomuch that all things shall be
adjudged free which shall be on board any vessel belonging to the
neutral party, although such things belong to an enemy of the other." In
the Treaty of 1795 with Spain is a similar provision, excepting,
however, contraband of war. It is asserted in the Treaty of 1799 with
Prussia that as the doctrine of "free ships make free goods" has not
been respected "during the two last wars," and in the one "which still
continues," the contracting parties propose "after the return of a
general peace" to confer with other nations and meantime to observe "the
principles and rules of the law of nations generally acknowledged." The
Treaty of 1819 with Spain interprets the clause of the Treaty of 1795,
in which it is stipulated that the flag shall cover the property, by
saying, "that this shall be so understood with respect to those Powers
who recognize this principle; but if either of the two contracting
parties shall be at war with a third party, and the other neutral, the
flag of the neutral shall cover the property of enemies whose Government
acknowledges this principle, and not of others." The Treaty of 1794 with
Great Britain expressly provides that property of an enemy on a neutral
vessel shall be good prize. In 1887 it was agreed in the treaty with
Peru "that the stipulation in this article declaring that the flag shall
cover the property shall be understood as applying to those nations only
who recognize this principle; but if either of the contracting parties
shall be at war with a third, and the other shall remain neutral, the
flag of the neutral shall cover the property of enemies whose
Governments acknowledge this principle, and not that of others."[435] In
spite of these variations, the practice of the United States has been
much more uniform than that of the states in which the foreign relations
have exercised a more direct influence.
(_d_) Since 1856 the principles enunciated in the =Declaration of Paris=
have generally prevailed. The provisions in regard to the flag and goods
are:--
"2. The neutral flag covers enemy's goods, with the exception of
contraband of war.
"3. Neutral goods, with the exception of contraband of war, are not
liable to capture under the enemy's flag."[436]
This agreement bound only those states which signed it. A few states,
including the United States, Spain, Mexico, Venezuela, and China, did
not accede to these provisions. The United States declined because the
government desired a provision exempting all private property at sea
from capture.[437] In the War of 1898, the United States announced that
the rules of the Declaration of Paris would be observed, and Spain made
a similar announcement except as to the clause in regard to
privateering.[438] Spain did not, however, make use of privateers. The
goods of a neutral embarked in a belligerent carrying vessel are liable
to the damages or destruction which may be the consequence of necessary
acts of war. Destruction not the result of such necessary acts would be
in violation of the spirit of the Declaration of Paris, and the neutral
might justly demand reparation.
The rules of the Declaration of Paris have been so generally accepted in
practice that there is little possibility that they will be disregarded
by the civilized states of the world.
§ 131. Contraband
Contraband is the term applied to those articles which from their
usefulness in war a neutral cannot transport without risk of seizure.
While a state is under obligation to prevent the fitting out of hostile
expeditions and to refrain from furnishing belligerent ships warlike
material, a state is not bound to prevent the traffic of its citizens or
subjects in contraband of war. Such articles as are contraband may be
seized on the high seas,[439] and by the Declaration of Paris are not
protected by the neutral flag.[440]
Of the articles of commerce themselves, Grotius makes three general
classes:--
"1. Those which have their sole use in war, such as arms."
"2. Those which have no use in war, as articles of luxury."
"3. Those which have use both in war and out of war, as money,
provisions, ships, and those things appertaining to ships."[441]
Grotius regards articles of the first class as hostile, of the second as
not a matter of complaint, and of the third as of ambiguous use (_usus
ancipitis_), of which the treatment is to be determined by their
relation to the war.
While the general principle may be clear, the application of the
principle is not simple. Those articles whose sole use is in war are,
without question, contraband. Articles exclusively for peaceful use are
not contraband. Between these two classes are many articles in regard to
which both practice and theory have varied most widely.[442] The
theorists have usually endeavored to give the neutral the largest
possible liberty in commerce, on the ground that those who were not
parties to the war should not bear its burdens. This has been the
opinion most approved by the jurists of Continental Europe. Great
Britain and the United States have been inclined to extend the range of
articles which might on occasion be classed as contraband.
The attitude of the United States may be seen from the following
enumeration of articles, which is practically the same as was declared
contraband in the Spanish War of 1898:--
"+Absolutely Contraband.+--Ordnance; machine guns and their appliances
and the parts thereof; armor plate and whatever pertains to the
offensive and defensive armament of naval vessels; arms and
instruments of iron, steel, brass, or copper, or of any other
material, such arms and instruments being specially adapted for use in
war by land or sea; torpedoes and their appurtenances; cases for
mines, of whatever material; engineering and transport materials, such
as gun carriages, caissons, cartridge boxes, campaigning forges,
canteens, pontoons; ordnance stores; portable range finders; signal
flags destined for naval use; ammunition and explosives of all kinds
and their component parts; machinery for the manufacture of arms and
munitions of war; saltpeter; military accouterments and equipments of
all sorts; horses and mules."
"+Conditionally Contraband.+--Coal, when destined for a naval station,
a port of call, or a ship or ships of the enemy; materials for the
construction of railways or telegraphs; and money; when such materials
or money are destined for the enemy's forces; provisions, when
actually destined for the enemy's military or naval forces."[443]
The range of articles classed as contraband will naturally vary from
time to time as changes in the method of carrying on war occur. Horses
have usually been regarded as contraband by France, England, and the
United States, except in their dealings with Russia, which state has
always opposed this inclusion. The increasing importance of coal during
the latter half of the nineteenth century has led to the policy of
determination of its character by its destination. Provisions are in
practically the same position as coal.[444] In the war with Spain in
1898, the United States included as absolute contraband, horses, and as
conditionally contraband, coal, money, and provisions, which Spain did
not mention. Spain mentioned by name sulphur, which the United States
did not specify, though it might be included in some of the general
classes. "As the supply of sulphur is chiefly obtained from Sicily, the
Spanish government would have had a rare opportunity to seize and
confiscate it as it passed through the Straits of Gibraltar. But upon
the request of the Italian government it ... refrained from treating
sulphur as contraband."[445]
§ 132. Penalty for Carrying Contraband
No penalty attaches to the simple act of transportation of contraband.
It is the hostile destination of the goods that renders them liable to
penalty and the vessel liable to delay or other consequences according
to circumstances.
The general rules are as follows:--
1. When the ship and the contraband cargo belong to the same owner, both
are liable to be condemned.
2. When the ship and the contraband cargo belong to different owners,
the cargo only is liable to be condemned.
3. When the owner of the cargo is also part owner of the ship, it has
been held that his part of the ship is also liable to be condemned.[446]
4. When non-contraband goods on the ship belong to the same owner with
the contraband goods, it has been held that these goods are also liable
to be condemned. "To escape from the contagion of contraband, the
innocent articles must be the property of a different owner."[447]
5. A vessel which would otherwise be free when carrying contraband may
become liable to condemnation on account of fraud. Such fraud may
consist in bearing false papers or claiming a false destination.
6. In certain instances, vessels have been held liable to condemnation
because carrying articles which by treaty between the state of the
captor and the state of the carrier are specially forbidden.
As Perels maintains, it is difficult to see how the fourth rule can be
enforced consistently with the Declaration of Paris, by which they would
be exempt even if belonging to the enemy.[448]
The neutral carrier loses freight on the contraband goods and suffers
such inconvenience and delay as the bringing in of the contraband and
its adjudication in a proper court may entail.
Under special circumstances goods have been treated as liable to
preëmption instead of absolute seizure. Of this Hall says, "In
strictness every article which is either necessarily contraband, or
which has become so from the special circumstances of war, is liable to
confiscation; but it is usual for those nations who vary their list of
contraband to subject the latter class to preëmption only, which by the
English practice means purchase of the merchandise at its mercantile
value, together with a reasonable profit, usually calculated at ten per
cent on the amount."[449] This practice is not viewed with favor upon
the Continent as indicating a departure from the generally accepted
practice.[450]
§ 133. Unneutral Service
Unneutral service differs from the carriage of contraband, particularly
in being hostile in its nature and involving a participation in the
contest. Such service involves assistance in the performance of warlike
acts. While the destination is a question of vital importance in the
case of contraband, the intent of the act is a matter of highest
importance in cases of unneutral service.
The acts generally regarded as in the category of unneutral service
are:--
1. The carriage of enemy dispatches.
2. The carriage of certain belligerent persons.
3. Aid by auxiliary coal, repair, supply, or transport ships.
4. Knowing coöperation in the transmission of certain messages and
information to the belligerent.
(1) Of the _carriage of dispatches_, in the case of the _Atalanta_, Lord
Stowell said:--
"How is the intercourse between the mother country and the colonies
kept up in the time of peace? By ships of war or by packets in the
service of the state. If a war intervenes, and the other belligerent
prevails to interrupt that communication, any person stepping in to
lend himself to effect the same purpose, under the privilege of an
ostensible neutral character, does in fact place himself in the
service of the enemy state."[451]
"A neutral vessel carrying hostile dispatches, when sailing as a
dispatch vessel practically in the service of the enemy, is liable to
seizure. Mail steamers under neutral flags carrying dispatches in the
regular and customary manner, either as a part of their mail in their
mail bags, or separately as a matter of accommodation and without
special arrangement or remuneration, are not liable to seizure and
should not be detained, except upon clear grounds of suspicion of a
violation of the laws of war with respect to contraband, blockade, or
unneutral service, in which case the mail bags must be forwarded with
seals unbroken."[452]
Regular diplomatic and consular correspondence is not regarded as
hostile unless there is some special reason for such belief.
(2) The limitation in regard to the _carriage of certain belligerent
persons_ applies to those who travel in such manner as to make it
evident that they travel in the military or naval service of the
belligerent state. If the carriage of the person or persons is paid by
the state, or is done under state contract, it is regarded as sufficient
evidence of unneutral service.[453] The neutral carrier engaged in
ordinary service is not obliged to investigate the character of persons
who take passage in the usual way. The case of the _Trent_ had no
particular bearing upon this subject, as it merely emphasized an already
settled principle "that a public ship, though of a nation at war, cannot
take persons out of a neutral vessel at sea, whatever may be the claim
of her government on those persons."[454]
(3) _Auxiliary coal, repair, supply, or transport ships_, as, directly
in the service of the belligerent, have an undoubted hostile
character.[455]
(4) Knowing coöperation in the _transmission of certain messages_ for
the belligerent renders the ship liable to penalty. Such an act as the
repetition of signals would fall in this class. Submarine telegraphic
cables between a belligerent and a neutral state may become liable to
censorship or to interruption beyond neutral jurisdiction if used for
hostile purposes. A neutral vessel engaged in the laying, cutting, or
repair of war telegraph cables is held to be performing unneutral
service.
The general penalty for the performance of unneutral service is the
forfeiture of the vessel so engaged.
§ 134. Visit and Search
(_a_) "The right of visiting and searching merchant ships upon the
seas--whatever be the ships, whatever be the cargoes, whatever be the
destinations--is an incontestable right of the lawfully commissioned
cruisers of a belligerent nation,"[456] is the statement of the general
principle laid down in the case of the _Maria_. Judge Story says that
the right is "allowed by the general consent of nations in the time of
war and limited to those occasions."[457] There is, however, a qualified
right of search in the time of peace in case of vessels suspected of
piracy or of slave trade. Under these circumstances the right must be
exercised with the greatest care, otherwise the searching party is
liable to damages.[458]
(_b_) =The Object.= In the time of war the right is exercised in order
to secure from the neutral the observance of the laws of neutrality, or
specifically, according to the regulations of the United States:--
1. To determine the nationality of a vessel.
+Note.+ The right of approach to ascertain the nationality of a vessel
is generally allowed in time of peace. "International Law," Naval War
College, p. 165.
2. To ascertain whether contraband of war is on board.
3. To ascertain whether a breach of blockade is intended or has been
committed.
4. To ascertain whether the vessel is engaged in any capacity in the
service of the enemy.[459]
(_c_) =The Method.= The vessel is usually brought to by firing a gun
with a blank charge, or if this is not sufficient, a shot across the
bows or even by the use of necessary force. The cruiser should then send
a small boat with an officer to conduct the search. Arms may be carried
in the boat but not upon the persons of the men. The officer should not
be accompanied on board the vessel by more than two men. He should
examine the papers of the vessel. "If the papers show contraband, an
offense in respect to blockade, or enemy service, the vessel should be
seized; otherwise she should be released, unless suspicious
circumstances justify a further search. If the vessel be released, an
entry in the log book to that effect should be made by the boarding
officer."[460]
(_d_) =Ship's Papers.= The papers expected to be on board as evidence of
the character of the vessel are:--
1. The register.
2. The crew and passenger list.
3. The log book.
4. A bill of health.
5. The manifest of cargo.
6. A charter party, if the vessel is chartered.
7. Invoices and bills of lading.[461]
(_e_) =Grounds of Seizure.= It is generally held that a vessel may be
seized in case of:--
1. Resistance to visit and search.
2. Clear evidence of attempt to avoid visit and search by escape.
3. Clear evidence of illegal acts on the part of the neutral vessel.
4. Absence of or defect in the necessary papers.
(_a_) Fraudulent papers.
(_b_) Destruction, defacement, or concealment of papers.
(_c_) Simple failure to produce regular papers.
(_f_) =Seizure.= In case of seizure it is held that the neutral vessel
and property vests in the neutral till properly condemned by a duly
authorized court. The captor is therefore under obligation:--
1. To conduct the seizure with due regard to the person and property
of the neutral.
2. To exercise reasonable diligence to bring the capture quickly to
a port for its adjudication.
3. To guard the capture from injury so far as within his power.
Failure to fulfill these obligations renders the belligerent liable to
damages.[462]
In the Chino-Japanese War of 1894, the Japanese war vessels visited
eighty-one neutral vessels but only one was brought to the prize
court.[463]
§ 135. Convoy
A neutral merchant vessel is sometimes placed under the protection of a
ship of war of its own state, and is then said to be under convoy.
It has been claimed by many authorities, particularly those of
Continental Europe, that such a merchant vessel is exempt from
visitation and search upon the declaration of the commander of the
neutral ship of war that the merchantman is violating no neutral
obligation. England has uniformly denied the validity of this claim.
Practice has been very divergent in most states. From the middle of the
seventeenth century the right of convoy has been asserted. From the end
of the eighteenth century the claim has gained in importance.[464] The
United States has made many treaties directly recognizing the practice,
and instructs naval officers that, "Convoys of neutral merchant vessels,
under escort of vessels of war of their own State, are exempt from the
right of search, upon proper assurances, based on thorough examination,
from the commander of the convoy."[465]
In the war of 1894,--
"Japan ordered naval officers to give credence to the declaration of a
convoying officer. The idea was simply that, as generosity was the
chief object of Japan, she did not wish to search and make actual
inspection in order to verify the character of escorted merchantmen
and goods, trusting to the honor of neutral officers. This was the
main idea of the Japanese in adopting the Continental principle
regarding convoy; but she was not, in actual cases, so lax as to admit
exorbitant claims of the right of convoy, such as an English admiral
made for all British ships in the China Sea."[466]
The present tendencies seem to indicate an inclination to admit the
right of convoy within reasonable limits and under reasonable
regulations.[467]
§ 136. Blockade
Blockade is the obstruction of communication with a place in the
possession of one of the belligerents by the armed forces of the other
belligerent. The form which blockade takes in most cases is that of
obstruction of communication by water.
(_a_) =Historical.= In 1584 Holland declared the ports of Flanders
blockaded. Holland did not, however, maintain this declaration by ships
of war; indeed, in the early days there were no such ships as would
make the maintenance of a blockade possible. Such paper blockades were
common in the following centuries, and all the ports of a state were
frequently proclaimed blockaded, even though there might be no force in
the neighborhood to insure that the blockade would not be violated.
Treaties of the eighteenth century show an inclination in the states to
lessen the evils of blockade by proclamation. The growth of neutral
trade led to the adoption of rules for its greater protection. The armed
neutrality of 1780 asserted in its proclaimed principles that a valid
blockade should involve such a disposition of the vessels of the
belligerent proclaiming the blockade as to make the attempt to enter
manifestly dangerous.[468] The armed neutrality of 1800 asserted that a
notice from the commander of the blockading vessels must be given to the
approaching neutral vessel. During the Napoleonic wars there was a
return to the practice of issuing proclamations with the view to
limiting neutral commerce. The English Orders in Council of 1806 and
1807, and the Berlin Decree of 1806, and the Milan Decree of 1807, by
which Napoleon attempted to meet the English Orders, were the expression
of the extremest belligerent claims in regard to the obstruction of
neutral commerce. The treaties of 1815 said nothing in regard to
blockade. The practice and theory varied till, by the Declaration of
Paris in 1856, a fixed basis was announced in the provision that
"Blockades, in order to be binding, must be effective."[469]
(_b_) =Conditions of Existence.= A blockade presupposes,--
1. A state of war.
2. Declaration by the proper authority.
3. Notification of neutral states and their subjects.
4. Effective maintenance.
(_c_) =Blockade a War Measure.= The so-called pacific blockade differs
in its purpose and method to such an extent as to cause many to deny it
any standing in international law. Only a belligerent can institute a
blockade which other states are bound to respect, as, without war, there
are no neutrals. The blockade may continue even until the conclusion of
peace. The agreement to a truce or an armistice does not put an end to
the blockade.
(_d_) =Declaration.= Blockade can be declared only by the proper
authority.
As war is a state act, only the person or authority designated by the
constitution or law of the state can declare a blockade. Such a
declaration must, in general, come from the chief of the state. In
certain cases a blockade declared by an officer in command of forces
remote from the central government is held to be valid from the time of
its proclamation, if the act of the commander receives subsequent
ratification from the central authority.
(_e_) =Notification.= Neutrals must be notified of the existence of a
blockade. This notification may be:--
1. By official proclamation announcing the place to be blockaded,
and the time when the proclamation becomes effective.
2. By notification to vessels when they come near the place
blockaded.
3. The use of both the above methods.
The theory of the American and English authorities has been to assume a
knowledge of the blockade on the part of subjects if the political
authority of their state had been informed of the existence of the
blockade before the neutral vessel left port. In practice both powers
have in recent years given a neutral vessel warning of the existence of
blockade of a port before seizure.[470]
The French rule is to give in every instance an approaching neutral
vessel warning of the existence of a blockade, and to consider the
notification to the neutral state authorities as merely a diplomatic
courtesy.
Sometimes local notification is made to port and consular authorities of
the place blockaded.
In recent years the time allowed a vessel to discharge, reload, and to
leave port has been specified.
In case of special notification by the officer in command of a
blockading ship, the fact with particulars should be entered in the log
of the neutral vessel over the officer's signature.
(_f_) =A Blockade must be Effective.= This principle applies both to the
place and to the manner of enforcement.
1. It must apply to a place which may be blockaded, _i.e._ to
seaports, rivers, gulfs, bays, roadsteads, etc. A river which forms
the boundary between one of the belligerent states and a neutral state
may not be blockaded. Rivers flowing for a part of their course
through belligerent territory but discharging through neutral
territory may not be blockaded. Certain waters are not liable to
blockade because exempt by agreement; as in the case of the Congo
River by the Act of 1885.
2. "Blockades, in order to be binding, must be effective, that is to
say, maintained by a force sufficient really to prevent access to the
coast of the enemy."[471] This is interpreted in the United States
Naval Code as a "force sufficient to render hazardous the ingress to
or egress from a port."[472] The subject of the degree of
effectiveness which is necessary has been much discussed, and can only
be determined by the circumstances in a given case.[473] The English
interpretation in the main agrees with that of the United States. The
Continental states are inclined to give a more literal interpretation
to the rule.
(_g_) =Cessation.= A blockade comes to an end:--
1. By the cessation of any attempt to render it effective.
2. By the repulse by force of the vessels attempting to maintain the
blockade.
3. For a given neutral vessel when there is no evidence of a
blockade, after due care to respect its existence. This may happen
when the blockading force is absent in pursuit of an offending vessel,
or for similar reason.
In this last case the Continental authorities hold that the neutral is
free to enter without question, as it is the duty of the belligerent to
render the blockade at all times evident and effective. The English and
American authorities generally consider such a case merely an
interruption, and hold that it does not require that the blockade be
proclaimed again. There is a general agreement that in the other cases
it must be formally instituted again as it was in the beginning.
§ 137. Violation of Blockade
"A breach of blockade is not an offense against the laws of the country
of the neutral owner or master. The only penalty for engaging in such
trade is the liability to capture and condemnation by the
belligerent."[474] The American and English practice is to regard as the
breach of blockade the act of passing into or out of a blockaded place,
unless by special privilege, or a manifestation of an intent to thus
pass. The French courts impose a penalty only upon those who actually
attempt to run the blockade. The American practice would make the vessel
liable to penalty from the time of its departure from neutral
jurisdiction with intent to enter the blockaded port until its return,
unless the blockade is raised meantime.
Under proper regulations, certain vessels are usually allowed to pass a
blockade without penalty:--
1. Neutral vessels in actual distress.
2. Neutral vessels of war.
3. Neutral vessels in the port at the time of the establishment of the
blockade, provided they depart within a reasonable time. In the War of
1898, the United States allowed thirty days after the establishment of
the blockade to neutral vessels to load and to depart.
The penalty for the violation of blockade is forfeiture of vessel and
cargo, although when vessel and cargo belong to different owners, and
the owner of the cargo is an innocent shipper, it has been held that the
cargo may be released. This may happen if a vessel deviates from her
original destination to a blockaded port. Even though a vessel pass a
blockade, she is liable to capture while at sea before the termination
of the voyage, provided the blockade continues.[475] The crews of
neutral vessels violating a blockade are not prisoners of war, but may
be held as witnesses before a prize court.
§ 138. Continuous Voyages
The Rule of War of 1756 declared that during war neutrals were not
permitted to engage with the colonies of a belligerent in a trade which
was not permitted to foreigners in time of peace.[476] Ordinarily in the
time of peace, trade between the mother country and the colony was
restricted to domestic ships. This rule was adopted in order that a
neutral might not, by undertaking trade denied him in time of peace,
relieve one of the belligerents of a part of the burdens of war which
the interruption of domestic commerce by the other belligerent had
imposed. Trade with neutral ports was allowed in time of peace.
Therefore, to avoid technical violation of the rule, neutral vessels
sailing from a port within belligerent jurisdiction, touched at a port
within neutral jurisdiction, and in some cases landed and reshipped
their cargoes. Lord Stowell decided that it was a settled principle
"that the mere touching at any port without importing the cargo into the
common stock of the country will not alter the nature of the voyage,
which continues the same in all respects, and must be considered as a
voyage to the country to which the vessel is actually going for the
purpose of delivering her cargo at the ultimate port."[477] In the case
of the _William_ in 1806, Sir William Grant declared that "the truth may
not always be discernible, but when it is discovered, it is according to
the truth and not according to the fiction that we are to give to the
transaction its character and denomination. If the voyage from the place
of lading be not really ended, it matters not by what acts the party may
have evinced his desire of making it appear to have ended. That those
acts have been attended with trouble and expense cannot alter their
quality or their effect."[478] The English authorities held that the
visit to a neutral port did not constitute the trip two voyages, but
that the voyage was continuous and the property liable to confiscation,
though Hall says the "cargo was confiscated only when captured on its
voyage from the port of colorable importation to the enemy
country."[479] British cruisers, however, seized three German vessels,
the _Herzog_, the _Bundesrath_, and the _General_, during the South
African War of 1899-1900, while on a voyage to the Portuguese port of
Lorenço Marques, which was the natural port of entry for Pretoria, the
capital of the South African Republic. Germany protested. The vessels
were released and the English authorities promised that in the future
they would refrain from searching vessels until the vessels had passed
beyond Aden, or any other place at the same distance from Delagoa Bay.
The American doctrine of continuous voyages is a considerable extension
of the English doctrine and has met with severe criticism. In the case
of the _Bermuda_, captured during the Civil War of 1861-1864, it was
held that:--
"Destination alone justifies seizure and condemnation of ship and
cargo in voyage to ports under blockade; and such destination
justifies equally seizure of contraband in voyage to ports not under
blockade; but in the last case the ship, and cargo, not contraband,
are free from seizure, except in cases of fraud or bad faith."[480]
In the case of the _Stephen Hart_, a British schooner, bound from London
to Cuba with a cargo of war supplies, captured in 1862 off the coast of
Florida, Judge Betts condemned both vessel and cargo. He maintained
that:--
"The commerce is in the destination and intended use of the property
laden on board of the vessel, and not in the incidental, ancillary,
and temporary voyage of the vessel, which may be but one of many
carriers through which the property is to reach its true and original
destination.... If the guilty intention, that the contraband goods
should reach a port of the enemy, existed when such goods left their
English port, that guilty intention cannot be obliterated by the
innocent intention of stopping at a neutral port on the way.... This
court holds that, in all such cases, the transportation or voyage of
the contraband goods is to be considered as a unit, from the port of
lading to the port of delivery in the enemy's country; that if any
part of such voyage or transportation be unlawful, it is unlawful
throughout; and that the vessel and her cargo are subject to capture;
as well before arriving at the first neutral port at which she touches
after her departure from England, as on the voyage or transportation
by sea from such neutral port to the port of the enemy."[481]
This position of the United States, which has been so criticised, is
liable to be abused to the disadvantage of neutral commerce. The absence
of some such rule would open the door to acts which, though neutral in
form, would be hostile in fact. The present tendency seems to be to
allow the exercise of a certain amount of supervision over commerce of
neutrals when it is destined to neutral ports having convenient
communication with the enemy. This may extend to the seizure of neutral
vessels bound for that port only in form, provided there is no doubt as
to the true destination, but such seizure must be made with the greatest
care not to violate the proper rights of neutrals. There is less reason
for the general exercise of this supervision over vessels sailing to a
neutral port which is separated from the belligerent territory by a
considerable expanse of water, than for its exercise over vessels
sailing to a port which is separated only by a narrow expanse of water.
In cases where the neutral port is upon the same land area with the
belligerent territory and has easy communication by rail or otherwise,
so that it may become a natural port of entry for goods bound for one of
the belligerents, the other belligerent may properly exercise a greater
degree of authority in the supervision of commerce than would ordinarily
be allowable. It was on this ground that England could justify her
action in the seizure of vessels bound for Delagoa Bay during the war in
South Africa, in 1899-1900; and similarly Italy justified her seizure of
the Dutch vessel, _Doelwyk_, in August, 1896, during the Abyssinian war.
This vessel was bound for a friendly port, but a port from which its
cargo of war supplies would pass overland to the enemy without
difficulty.
§ 139. Prize and Prize Courts
_Prize_ is the general term applied to captures made at sea. The ships
and goods of an enemy liable to capture by the laws of war, and the
ships and goods of a neutral when involved in acts forbidden by the laws
of war, may be brought into port for adjudication and disposition.
Enemy's goods, except contraband of war, are not liable to capture on
neutral ships.[482] Certain ships engaged in charitable or scientific
pursuits, and coast fishing vessels, are exempt from capture,[483] as
are also certain specially exempted by treaty. In general other goods
and vessels of the enemy are liable to capture. Contraband goods of a
neutral, vessels attempting to violate blockade, vessels performing
unneutral service, or goods or vessels otherwise involved in a way
contrary to the laws of war are liable to capture.
A _prize court_ is the tribunal which determines the rights of the
parties concerned in the capture and the disposition of the goods or
vessel. All captures belong to the state in whose name they are made. An
inchoate title to the prize is acquired by possession, but complete
title is acquired only after condemnation by a properly constituted
prize court.
A prize court may be established by the belligerent in its own state, in
the territory where the belligerent has military jurisdiction or in the
territory of an ally.[484] The establishment of a court in neutral
jurisdiction is not permitted. When Genêt, the minister of France,
tried, in 1793, to set up consular prize courts in the United States,
Washington protested and Genêt was recalled. Takahashi says, "It is
clear that if we admit the prevailing principle concerning the
establishment of a prize court in a belligerent's own dominions or its
ally's, or in occupied territory, we may infer that a court can be held
on the deck of a man-of-war--a floating portion of a territorial
sovereignty--lying in the above-mentioned waters, provided the processes
of procedure are followed."[485] He maintains, however, that a court
might not be established on the high seas, as proper procedure for the
interested parties would not be possible.
The tribunals which have jurisdiction of prize cases differ in the
different countries. In the United States, the District Courts possess
the powers of a prize court, and an appeal lies to the Supreme
Court.[486]
The methods of procedure of prize courts are similar in different
countries. The practice in the United States is as follows:--
Dana calls the prize tribunal _an inquest by the state_, and regards it
as the means by which the sovereign "desires and is required to inform
himself, by recognized modes, of the lawfulness of the capture." The
commanding officer of the capturing vessel, after securing the cargo and
documents of the captured vessel, makes an inventory of the last named,
seals them and sends them, together with the master, one or more of the
other officers, the supercargo, purser, or agent of the prize, and also
any one on board supposed to have information, under charge of a prize
master and a prize crew, into port to be placed in the custody of the
court. The prize master delivers the documents and the inventory to
prize commissioners, who are appointed by the court, and reports to the
district attorney, who files a libel against the prize property and sees
"that the proper preparatory evidence is taken by the prize
commissioners, and that the prize commissioners also take the
depositions _de bene esse_ of the prize crew, and of other transient
persons cognizant of any facts bearing on condemnation or
distribution."[487] The libel should "properly contain only a
description of the prize, with dates, etc., for identification, and the
fact that it was taken as prize of war by the cruiser, and brought to
the court for adjudication, that is, of facts enough to show that it is
a maritime cause of prize jurisdiction and not a case of municipal
penalty or forfeiture."[488] Notice is then published that citizens or
neutrals, but not enemies, interested in the prize property shall appear
and enter their claims. As there are no allegations in the libel, the
answer of the claimant is only a general denial under oath. The prize
commissioners then examine the witnesses privately; and this evidence,
which is kept in secret until complete, is called _in preparatorio_.[489]
If the court is in doubt it will order "further proof," that is besides
the ship, cargo, documents, and witnesses. The burden is on the claimant
to prove title.[490] If the claimant's right is not sufficiently
established, the property is condemned. The captors are, however, liable
to damages if there is found no probable cause for the capture.[491]
It has been the general practice to distribute the proceeds, or a part
of the proceeds, of a capture among the captors. This distribution is a
matter of municipal law. In England the sum realized from the sale of
the goods and vessel is distributed among the captors, though the crown
reserves the right to decide what interest the captors shall have, if
any.[492] By a royal decree of June 20, 1864, Prussia provided in detail
what each of those participating in the capture should receive.[493] By
the act of March 3, 1899, the United States provided that "all
provisions of law authorizing the distribution among captors of the
whole, or any portion, of the proceeds of vessels, or any property
hereafter captured, condemned as prize, or providing for the payment of
bounty for the sinking or destruction of vessels of the enemy hereafter
occurring in time of war, are hereby repealed."[494]
"If there are controlling reasons why vessels that are properly
captured may not be sent in for adjudication--such as unseaworthiness,
the existence of infectious disease, or the lack of a prize crew--they
may be appraised and sold, and if this cannot be done, they may be
destroyed. The imminent danger of recapture would justify destruction,
if there should be no doubt that the vessel was a proper prize. But in
all such cases all of the papers and other testimony should be sent to
the prize court, in order that a decree may be duly entered."[495]
APPENDICES
APPENDIX I
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE
FIELD
+General Orders+, } WAR DEPARTMENT,
No. 100. } +Adjutant General's Office+,
_Washington, April 24, 1863_.
The following "Instructions for the Government of Armies of the United
States in the Field," prepared by +Francis Lieber+, LL.D., and revised
by a Board of Officers, of which Major General +E. A. Hitchcock+ is
president, having been approved by the President of the United States,
he commands that they be published for the information of all
concerned.
+By Order of the Secretary of War+:
E. D. TOWNSEND,
_Assistant Adjutant General_.
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE
FIELD
SECTION I
+Martial Law--Military Jurisdiction--Military Necessity--Retaliation+
1
A place, district, or country occupied by an enemy stands, in
consequence of the occupation, under the Martial Law of the invading or
occupying army, whether any proclamation declaring Martial Law, or any
public warning to the inhabitants, has been issued or not. Martial Law
is the immediate and direct effect and consequence of occupation or
conquest.
The presence of a hostile army proclaims its Martial Law.
2
Martial Law does not cease during the hostile occupation, except by
special proclamation, ordered by the commander in chief; or by special
mention in the treaty of peace concluding the war, when the occupation
of a place or territory continues beyond the conclusion of peace as one
of the conditions of the same.
3
Martial Law in a hostile country consists in the suspension, by the
occupying military authority, of the criminal and civil law, and of the
domestic administration and government in the occupied place or
territory, and in the substitution of military rule and force for the
same, as well as in the dictation of general laws, as far as military
necessity requires this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration of all
civil and penal law shall continue either wholly or in part, as in times
of peace, unless otherwise ordered by the military authority.
4
Martial Law is simply military authority exercised in accordance with
the laws and usages of war. Military oppression is not Martial Law; it
is the abuse of the power which that law confers. As Martial Law is
executed by military force, it is incumbent upon those who administer it
to be strictly guided by the principles of justice, honor, and
humanity--virtues adorning a soldier even more than other men, for the
very reason that he possesses the power of his arms against the
unarmed.
5
Martial Law should be less stringent in places and countries fully
occupied and fairly conquered. Much greater severity may be exercised in
places or regions where actual hostilities exist, or are expected and
must be prepared for. Its most complete sway is allowed--even in the
commander's own country--when face to face with the enemy, because of
the absolute necessities of the case, and of the paramount duty to
defend the country against invasion.
To save the country is paramount to all other considerations.
6
All civil and penal law shall continue to take its usual course
in the enemy's places and territories under Martial Law, unless
interrupted or stopped by order of the occupying military power; but
all the functions of the hostile government--legislative, executive, or
administrative--whether of a general, provincial, or local character,
cease under Martial Law, or continue only with the sanction, or, if
deemed necessary, the participation of the occupier or invader.
7
Martial law extends to property, and to persons, whether they are
subjects of the enemy or aliens to that government.
8
Consuls, among American and European nations, are not diplomatic agents.
Nevertheless, their offices and persons will be subjected to Martial Law
in cases of urgent necessity only: their property and business are not
exempted. Any delinquency they commit against the established military
rule may be punished as in the case of any other inhabitant, and such
punishment furnishes no reasonable ground for international complaint.
9
The functions of Ambassadors, Ministers, or other diplomatic agents,
accredited by neutral powers to the hostile government, cease, so far as
regards the displaced government; but the conquering or occupying power
usually recognizes them as temporarily accredited to itself.
10
Martial Law affects chiefly the police and collection of public revenue
and taxes, whether imposed by the expelled government or by the invader,
and refers mainly to the support and efficiency of the army, its safety,
and the safety of its operations.
11
The law of war does not only disclaim all cruelty and bad faith
concerning engagements concluded with the enemy during the war, but also
the breaking of stipulations solemnly contracted by the belligerents in
time of peace, and avowedly intended to remain in force in case of war
between the contracting powers.
It disclaims all extortions and other transactions for individual gain;
all acts of private revenge, or connivance at such acts.
Offenses to the contrary shall be severely punished, and especially so
if committed by officers.
12
Whenever feasible, Martial Law is carried out in cases of individual
offenders by Military Courts; but sentences of death shall be executed
only with the approval of the chief executive, provided the urgency of
the case does not require a speedier execution, and then only with the
approval of the chief commander.
13
Military jurisdiction is of two kinds: First, that which is conferred
and defined by statute; second, that which is derived from the common
law of war. Military offenses under the statute law must be tried in the
manner therein directed; but military offenses which do not come within
the statute must be tried and punished under the common law of war. The
character of the courts which exercise these jurisdictions depends upon
the local laws of each particular country.
In the armies of the United States the first is exercised by
courts-martial, while cases which do not come within the "Rules and
Articles of War," or the jurisdiction conferred by statute on
courts-martial, are tried by military commissions.
14
Military necessity, as understood by modern civilized nations, consists
in the necessity of those measures which are indispensable for securing
the ends of the war, and which are lawful according to the modern law
and usages of war.
15
Military necessity admits of all direct destruction of life or limb of
_armed_ enemies, and of other persons whose destruction is incidentally
_unavoidable_ in the armed contests of the war; it allows of the
capturing of every armed enemy, and every enemy of importance to the
hostile government, or of peculiar danger to the captor; it allows of
all destruction of property, and obstruction of the ways and channels of
traffic, travel, or communication, and of all withholding of sustenance
or means of life from the enemy; of the appropriation of whatever an
enemy's country affords necessary for the subsistence and safety of the
army, and of such deception as does not involve the breaking of good
faith either positively pledged, regarding agreements entered into
during the war, or supposed by the modern law of war to exist. Men who
take up arms against one another in public war do not cease on this
account to be moral beings, responsible to one another and to God.
16
Military necessity does not admit of cruelty--that is, the infliction of
suffering for the sake of suffering or for revenge, nor of maiming or
wounding except in fight, nor of torture to extort confessions. It does
not admit of the use of poison in any way, nor of the wanton devastation
of a district. It admits of deception, but disclaims acts of perfidy;
and, in general, military necessity does not include any act of
hostility which makes the return to peace unnecessarily difficult.
17
War is not carried on by arms alone. It is lawful to starve the hostile
belligerent, armed or unarmed, so that it leads to the speedier
subjection of the enemy.
18
When a commander of a besieged place expels the noncombatants, in order
to lessen the number of those who consume his stock of provisions, it is
lawful, though an extreme measure, to drive them back, so as to hasten
on the surrender.
19
Commanders, whenever admissible, inform the enemy of their intention to
bombard a place, so that the noncombatants, and especially the women and
children, may be removed before the bombardment commences. But it is no
infraction of the common law of war to omit thus to inform the enemy.
Surprise may be a necessity.
20
Public war is a state of armed hostility between sovereign nations or
governments. It is a law and requisite of civilized existence that men
live in political, continuous societies, forming organized units, called
states or nations, whose constituents bear, enjoy, and suffer, advance
and retrograde together, in peace and in war.
21
The citizen or native of a hostile country is thus an enemy, as one of
the constituents of the hostile state or nation, and as such is
subjected to the hardships of the war.
22
Nevertheless, as civilization has advanced during the last centuries, so
has likewise steadily advanced, especially in war on land, the
distinction between the private individual belonging to a hostile
country and the hostile country itself, with its men in arms. The
principle has been more and more acknowledged that the unarmed citizen
is to be spared in person, property, and honor as much as the exigencies
of war will admit.
23
Private citizens are no longer murdered, enslaved, or carried off to
distant parts, and the inoffensive individual is as little disturbed in
his private relations as the commander of the hostile troops can afford
to grant in the overruling demands of a vigorous war.
24
The almost universal rule in remote times was, and continues to be with
barbarous armies, that the private individual of the hostile country is
destined to suffer every privation of liberty and protection, and every
disruption of family ties. Protection was, and still is with uncivilized
people, the exception.
25
In modern regular wars of the Europeans, and their descendants in other
portions of the globe, protection of the inoffensive citizen of the
hostile country is the rule; privation and disturbance of private
relations are the exceptions.
26
Commanding generals may cause the magistrates and civil officers of the
hostile country to take the oath of temporary allegiance or an oath of
fidelity to their own victorious government or rulers, and they may
expel every one who declines to do so. But whether they do so or not,
the people and their civil officers owe strict obedience to them as long
as they hold sway over the district or country, at the peril of their
lives.
27
The law of war can no more wholly dispense with retaliation than can the
law of nations, of which it is a branch. Yet civilized nations
acknowledge retaliation as the sternest feature of war. A reckless enemy
often leaves to his opponent no other means of securing himself against
the repetition of barbarous outrage.
28
Retaliation will, therefore, never be resorted to as a measure of mere
revenge, but only as a means of protective retribution, and moreover,
cautiously and unavoidably; that is to say, retaliation shall only be
resorted to after careful inquiry into the real occurrence, and the
character of the misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents farther and
farther from the mitigating rules of regular war, and by rapid steps
leads them nearer to the internecine wars of savages.
29
Modern times are distinguished from earlier ages by the existence, at
one and the same time, of many nations and great governments related to
one another in close intercourse.
Peace is their normal condition; war is the exception. The ultimate
object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for humanity.
Sharp wars are brief.
30
Ever since the formation and coexistence of modern nations, and ever
since wars have become great national wars, war has come to be
acknowledged not to be its own end, but the means to obtain great ends
of state, or to consist in defense against wrong; and no conventional
restriction of the modes adopted to injure the enemy is any longer
admitted; but the law of war imposes many limitations and restrictions
on principles of justice, faith, and honor.
SECTION II
+Public and Private Property of the Enemy--Protection of Persons, and
especially of Women; of Religion, the Arts and Sciences--Punishment
of Crimes against the Inhabitants of Hostile Countries+
31
A victorious army appropriates all public money, seizes all public
movable property until further direction by its government, and
sequesters for its own benefit or of that of its government all the
revenues of real property belonging to the hostile government or nation.
The title to such real property remains in abeyance during military
occupation, and until the conquest is made complete.
32
A victorious army, by the martial power inherent in the same, may
suspend, change, or abolish, as far as the martial power extends, the
relations which arise from the services due, according to the existing
laws of the invaded country, from one citizen, subject, or native of the
same to another.
The commander of the army must leave it to the ultimate treaty of peace
to settle the permanency of this change.
33
It is no longer considered lawful--on the contrary, it is held to be a
serious breach of the law of war--to force the subjects of the enemy
into the service of the victorious government, except the latter should
proclaim, after a fair and complete conquest of the hostile country or
district, that it is resolved to keep the country, district, or place
permanently as its own and make it a portion of its own country.
34
As a general rule, the property belonging to churches, to hospitals, or
other establishments of an exclusively charitable character, to
establishments of education, or foundations for the promotion of
knowledge, whether public schools, universities, academies of learning
or observatories, museums of the fine arts, or of a scientific
character--such property is not to be considered public property in the
sense of paragraph 31; but it may be taxed or used when the public
service may require it.
35
Classical works of art, libraries, scientific collections, or precious
instruments, such as astronomical telescopes, as well as hospitals, must
be secured against all avoidable injury, even when they are contained in
fortified places whilst besieged or bombarded.
36
If such works of art, libraries, collections, or instruments belonging
to a hostile nation or government, can be removed without injury, the
ruler of the conquering state or nation may order them to be seized and
removed for the benefit of the said nation. The ultimate ownership is to
be settled by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the armies
of the United States, nor shall they ever be privately appropriated, or
wantonly destroyed or injured.
37
The United States acknowledge and protect, in hostile countries occupied
by them, religion and morality; strictly private property; the persons
of the inhabitants, especially those of women; and the sacredness of
domestic relations. Offenses to the contrary shall be rigorously
punished.
This rule does not interfere with the right of the victorious invader to
tax the people or their property, to levy forced loans, to billet
soldiers, or to appropriate property, especially houses, lands, boats or
ships, and churches, for temporary and military uses.
38
Private property, unless forfeited by crimes or by offenses of the
owner, can be seized only by way of military necessity, for the support
or other benefit of the army or of the United States.
If the owner has not fled, the commanding officer will cause receipts to
be given, which may serve the spoliated owner to obtain indemnity.
39
The salaries of civil officers of the hostile government who remain in
the invaded territory, and continue the work of their office, and can
continue it according to the circumstances arising out of the war--such
as judges, administrative or police officers, officers of city or
communal governments--are paid from the public revenue of the invaded
territory, until the military government has reason wholly or partially
to discontinue it. Salaries or incomes connected with purely honorary
titles are always stopped.
40
There exists no law or body of authoritative rules of action between
hostile armies, except that branch of the law of nature and nations
which is called the law and usages of war on land.
41
All municipal law of the ground on which the armies stand, or of the
countries to which they belong, is silent and of no effect between
armies in the field.
42
Slavery, complicating and confounding the ideas of property (that is of
a _thing_), and of personality (that is of _humanity_), exists according
to municipal or local law only. The law of nature and nations has never
acknowledged it. The digest of the Roman law enacts the early dictum of
the pagan jurist, that "so far as the law of nature is concerned, all
men are equal." Fugitives escaping from a country in which they were
slaves, villains, or serfs, into another country, have, for centuries
past, been held free and acknowledged free by judicial decisions of
European countries, even though the municipal law of the country in
which the slave had taken refuge acknowledged slavery within its own
dominions.
43
Therefore, in a war between the United States and a belligerent which
admits of slavery, if a person held in bondage by that belligerent be
captured by or come as a fugitive under the protection of the military
forces of the United States, such person is immediately entitled to the
rights and privileges of a freeman. To return such person into slavery
would amount to enslaving a free person, and neither the United States
nor any officer under their authority can enslave any human being.
Moreover, a person so made free by the law of war is under the shield of
the law of nations, and the former owner or State can have, by the law
of postliminy, no belligerent lien or claim of service.
44
All wanton violence committed against persons in the invaded country,
all destruction of property not commanded by the authorized officer, all
robbery, all pillage or sacking, even after taking a place by main
force, all rape, wounding, maiming, or killing of such inhabitants, are
prohibited under the penalty of death, or such other severe punishment
as may seem adequate for the gravity of the offense.
A soldier, officer or private, in the act of committing such violence,
and disobeying a superior ordering him to abstain from it, may be
lawfully killed on the spot by such superior.
45
All captures and booty belong, according to the modern law of war,
primarily to the government of the captor.
Prize money, whether on sea or land, can now only be claimed under local
law.
46
Neither officers nor soldiers are allowed to make use of their position
or power in the hostile country for private gain, not even for
commercial transactions otherwise legitimate. Offenses to the contrary
committed by commissioned officers will be punished with cashiering or
such other punishment as the nature of the offense may require; if by
soldiers, they shall be punished according to the nature of the offense.
47
Crimes punishable by all penal codes, such as arson, murder, maiming,
assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if
committed by an American soldier in a hostile country against its
inhabitants, are not only punishable as at home, but in all cases in
which death is not inflicted, the severer punishment shall be
preferred.
SECTION III
+Deserters--Prisoners of War--Hostages--Booty on the Battlefield+
48
Deserters from the American Army, having entered the service of the
enemy, suffer death if they fall again into the hands of the United
States, whether by capture, or being delivered up to the American Army;
and if a deserter from the enemy, having taken service in the Army of
the United States is captured by the enemy, and punished by them with
death or otherwise, it is not a breach against the law and usages of
war, requiring redress or retaliation.
49
A prisoner of war is a public enemy armed or attached to the hostile
army for active aid, who has fallen into the hands of the captor, either
fighting or wounded, on the field or in the hospital, by individual
surrender, or by capitulation.
All soldiers, of whatever species of arms; all men who belong to the
rising _en masse_ of the hostile country; all those who are attached to
the army for its efficiency and promote directly the object of the war,
except such as are hereinafter provided for; all disabled men or
officers on the field or elsewhere, if captured; all enemies who have
thrown away their arms and ask for quarter, are prisoners of war, and as
such exposed to the inconveniences as well as entitled to the privileges
of a prisoner of war.
50
Moreover, citizens who accompany an army for whatever purpose, such as
sutlers, editors, or reporters of journals, or contractors, if captured,
may be made prisoners of war, and be detained as such.
The monarch and members of the reigning hostile family, male or female,
the chief, and chief officers of the hostile government, its diplomatic
agents, and all persons who are of particular and singular use and
benefit to the hostile army or its government, are, if captured, on
belligerent ground, and if unprovided with a safe conduct granted by the
captor's government, prisoners of war.
51
If the people of that portion of an invaded country which is not yet
occupied by the enemy, or of the whole country, at the approach of a
hostile army, rise, under a duly authorized levy, _en masse_ to resist
the invader, they are now treated as public enemies, and, if captured,
are prisoners of war.
52
No belligerent has the right to declare that he will treat every
captured man in arms of a levy _en masse_ as a brigand or bandit.
If, however, the people of a country, or any portion of the same,
already occupied by an army, rise against it, they are violators of the
laws of war, and are not entitled to their protection.
53
The enemy's chaplains, officers of the medical staff, apothecaries,
hospital nurses and servants, if they fall into the hands of the
American Army, are not prisoners of war, unless the commander has
reasons to retain them. In this latter case, or if, at their own desire,
they are allowed to remain with their captured companions, they are
treated as prisoners of war, and may be exchanged if the commander sees
fit.
54
A hostage is a person accepted as a pledge for the fulfillment of an
agreement concluded between belligerents during the war, or in
consequence of a war. Hostages are rare in the present age.
55
If a hostage is accepted, he is treated like a prisoner of war,
according to rank and condition, as circumstances may admit.
56
A prisoner of war is subject to no punishment for being a public enemy,
nor is any revenge wreaked upon him by the intentional infliction of any
suffering, or disgrace, by cruel imprisonment, want of food, by
mutilation, death, or any other barbarity.
57
So soon as a man is armed by a sovereign government and takes the
soldier's oath of fidelity, he is a belligerent; his killing, wounding,
or other warlike acts are not individual crimes or offenses. No
belligerent has a right to declare that enemies of a certain class,
color, or condition, when properly organized as soldiers, will not be
treated by him as public enemies.
58
The law of nations knows of no distinction of color, and if an enemy of
the United States should enslave and sell any captured persons of their
army, it would be a case for the severest retaliation, if not redressed
upon complaint.
The United States can not retaliate by enslavement; therefore death must
be the retaliation for this crime against the law of nations.
59
A prisoner of war remains answerable for his crimes committed against
the captor's army or people, committed before he was captured, and for
which he has not been punished by his own authorities.
All prisoners of war are liable to the infliction of retaliatory
measures.
60
It is against the usage of modern war to resolve, in hatred and revenge,
to give no quarter. No body of troops has the right to declare that it
will not give, and therefore will not expect, quarter; but a commander
is permitted to direct his troops to give no quarter, in great straits,
when his own salvation makes it _impossible_ to cumber himself with
prisoners.
61
Troops that give no quarter have no right to kill enemies already
disabled on the ground, or prisoners captured by other troops.
62
All troops of the enemy known or discovered to give no quarter in
general, or to any portion of the army, receive none.
63
Troops who fight in the uniform of their enemies, without any plain,
striking, and uniform mark of distinction of their own, can expect no
quarter.
64
If American troops capture a train containing uniforms of the enemy, and
the commander considers it advisable to distribute them for use among
his men, some striking mark or sign must be adopted to distinguish the
American soldier from the enemy.
65
The use of the enemy's national standard, flag, or other emblem of
nationality, for the purpose of deceiving the enemy in battle, is an act
of perfidy by which they lose all claim to the protection of the laws of
war.
66
Quarter having been given to an enemy by American troops, under a
misapprehension of his true character, he may, nevertheless, be ordered
to suffer death if, within three days after the battle, it be discovered
that he belongs to a corps which gives no quarter.
67
The law of nations allows every sovereign government to make war upon
another sovereign state, and, therefore, admits of no rules or laws
different from those of regular warfare, regarding the treatment of
prisoners of war, although they may belong to the army of a government
which the captor may consider as a wanton and unjust assailant.
68
Modern wars are not internecine wars, in which the killing of the enemy
is the object. The destruction of the enemy in modern war, and, indeed,
modern war itself, are means to obtain that object of the belligerent
which lies beyond the war.
Unnecessary or revengeful destruction of life is not lawful.
69
Outposts, sentinels, or pickets are not to be fired upon, except to
drive them in, or when a positive order, special or general, has been
issued to that effect.
70
The use of poison in any manner, be it to poison wells, or food, or
arms, is wholly excluded from modern warfare. He that uses it puts
himself out of the pale of the law and usages of war.
71
Whoever intentionally inflicts additional wounds on an enemy already
wholly disabled, or kills such an enemy, or who orders or encourages
soldiers to do so, shall suffer death, if duly convicted, whether he
belongs to the Army of the United States, or is an enemy captured after
having committed his misdeed.
72
Money and other valuables on the person of a prisoner, such as watches
or jewelry, as well as extra clothing, are regarded by the American Army
as the private property of the prisoner, and the appropriation of such
valuables or money is considered dishonorable, and is prohibited.
Nevertheless, if _large_ sums are found upon the persons of prisoners,
or in their possession, they shall be taken from them, and the surplus,
after providing for their own support, appropriated for the use of the
army, under the direction of the commander, unless otherwise ordered by
the government. Nor can prisoners claim, as private property, large sums
found and captured in their train, although they have been placed in the
private luggage of the prisoners.
73
All officers, when captured, must surrender their side arms to the
captor. They may be restored to the prisoner in marked cases, by the
commander, to signalize admiration of his distinguished bravery or
approbation of his humane treatment of prisoners before his capture. The
captured officer to whom they may be restored can not wear them during
captivity.
74
A prisoner of war, being a public enemy, is the prisoner of the
government, and not of the captor. No ransom can be paid by a prisoner
of war to his individual captor or to any officer in command. The
government alone releases captives, according to rules prescribed by
itself.
75
Prisoners of war are subject to confinement or imprisonment such as may
be deemed necessary on account of safety, but they are to be subjected
to no other intentional suffering or indignity. The confinement and
mode of treating a prisoner may be varied during his captivity according
to the demands of safety.
76
Prisoners of war shall be fed upon plain and wholesome food, whenever
practicable, and treated with humanity.
They may be required to work for the benefit of the captor's government,
according to their rank and condition.
77
A prisoner of war who escapes may be shot or otherwise killed in his
flight; but neither death nor any other punishment shall be inflicted
upon him simply for his attempt to escape, which the law of war does not
consider a crime. Stricter means of security shall be used after an
unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a
united or general escape, the conspirators may be rigorously punished,
even with death; and capital punishment may also be inflicted upon
prisoners of war discovered to have plotted rebellion against the
authorities of the captors, whether in union with fellow prisoners or
other persons.
78
If prisoners of war, having given no pledge nor made any promise on
their honor, forcibly or otherwise escape, and are captured again in
battle after having rejoined their own army, they shall not be punished
for their escape, but shall be treated as simple prisoners of war,
although they will be subjected to stricter confinement.
79
Every captured wounded enemy shall be medically treated, according to
the ability of the medical staff.
80
Honorable men, when captured, will abstain from giving to the enemy
information concerning their own army, and the modern law of war permits
no longer the use of any violence against prisoners in order to extort
the desired information or to punish them for having given false
information.
SECTION IV
+Partisans--Armed Enemies not belonging to the Hostile
Army--Scouts--Armed Prowlers--War-rebels+
81
Partisans are soldiers armed and wearing the uniform of their army, but
belonging to a corps which acts detached from the main body for the
purpose of making inroads into the territory occupied by the enemy. If
captured, they are entitled to all the privileges of the prisoner of
war.
82
Men, or squads of men, who commit hostilities, whether by fighting, or
inroads for destruction or plunder, or by raids of any kind, without
commission, without being part and portion of the organized hostile
army, and without sharing continuously in the war, but who do so with
intermitting returns to their homes and avocations, or with the
occasional assumption of the semblance of peaceful pursuits, divesting
themselves of the character or appearance of soldiers--such men, or
squads of men, are not public enemies, and, therefore, if captured, are
not entitled to the privileges of prisoners of war, but shall be treated
summarily as highway robbers or pirates.
83
Scouts, or single soldiers, if disguised in the dress of the country or
in the uniform of the army hostile to their own, employed in obtaining
information, if found within or lurking about the lines of the captor,
are treated as spies, and suffer death.
84
Armed prowlers, by whatever names they may be called, or persons of the
enemy's territory, who steal within the lines of the hostile army for
the purpose of robbing, killing, or of destroying bridges, roads, or
canals, or of robbing or destroying the mail, or of cutting the
telegraph wires, are not entitled to the privileges of the prisoner of
war.
85
War-rebels are persons within an occupied territory who rise in arms
against the occupying or conquering army, or against the authorities
established by the same. If captured, they may suffer death, whether
they rise singly, in small or large bands, and whether called upon to do
so by their own, but expelled, government or not. They are not prisoners
of war; nor are they if discovered and secured before their conspiracy
has matured to an actual rising or armed violence.
SECTION V
+Safe-conduct--Spies--War-traitors--Captured Messengers--Abuse of the
Flag of Truce+
86
All intercourse between the territories occupied by belligerent armies,
whether by traffic, by letter, by travel, or in any other way, ceases.
This is the general rule, to be observed without special proclamation.
Exceptions to this rule, whether by safe-conduct, or permission to trade
on a small or large scale, or by exchanging mails, or by travel from one
territory into the other, can take place only according to agreement
approved by the government, or by the highest military authority.
Contraventions of this rule are highly punishable.
87
Ambassadors, and all other diplomatic agents of neutral powers,
accredited to the enemy, may receive safe-conducts through the
territories occupied by the belligerents, unless there are military
reasons to the contrary, and unless they may reach the place of their
destination conveniently by another route. It implies no international
affront if the safe-conduct is declined. Such passes are usually given
by the supreme authority of the State and not by subordinate officers.
88
A spy is a person who secretly, in disguise or under false pretense,
seeks information with the intention of communicating it to the enemy.
The spy is punishable with death by hanging by the neck, whether or not
he succeed in obtaining the information or in conveying it to the enemy.
89
If a citizen of the United States obtains information in a legitimate
manner, and betrays it to the enemy, be he a military or civil officer,
or a private citizen, he shall suffer death.
90
A traitor under the law of war, or a war-traitor, is a person in a place
or district under martial law who, unauthorized by the military
commander, gives information of any kind to the enemy, or holds
intercourse with him.
91
The war-traitor is always severely punished. If his offense consists in
betraying to the enemy anything concerning the condition, safety,
operations, or plans of the troops holding or occupying the place or
district, his punishment is death.
92
If the citizen or subject of a country or place invaded or conquered
gives information to his own government, from which he is separated by
the hostile army, or to the army of his government, he is a war-traitor,
and death is the penalty of his offense.
93
All armies in the field stand in need of guides, and impress them if
they can not obtain them otherwise.
94
No person having been forced by the enemy to serve as guide is
punishable for having done so.
95
If a citizen of a hostile and invaded district voluntarily serves as a
guide to the enemy, or offers to do so, he is deemed a war-traitor, and
shall suffer death.
96
A citizen serving voluntarily as a guide against his own country commits
treason, and will be dealt with according to the law of his country.
97
Guides, when it is clearly proved that they have misled intentionally,
may be put to death.
98
All unauthorized or secret communication with the enemy is considered
treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign
visitors in the same, can claim no immunity from this law. They may
communicate with foreign parts, or with the inhabitants of the hostile
country, so far as the military authority permits, but no further.
Instant expulsion from the occupied territory would be the very least
punishment for the infraction of this rule.
99
A messenger carrying written dispatches or verbal messages from one
portion of the army, or from a besieged place, to another portion of the
same army, or its government, if armed, and in the uniform of his army,
and if captured, while doing so, in the territory occupied by the enemy,
is treated by the captor as a prisoner of war. If not in uniform, nor a
soldier, the circumstances connected with his capture must determine the
disposition that shall be made of him.
100
A messenger or agent who attempts to steal through the territory
occupied by the enemy, to further, in any manner, the interests of the
enemy, if captured, is not entitled to the privileges of the prisoner of
war, and may be dealt with according to the circumstances of the case.
101
While deception in war is admitted as a just and necessary means of
hostility, and is consistent with honorable warfare, the common law of
war allows even capital punishment for clandestine or treacherous
attempts to injure an enemy, because they are so dangerous, and it is so
difficult to guard against them.
102
The law of war, like the criminal law regarding other offenses, makes no
difference on account of the difference of sexes, concerning the spy,
the war-traitor, or the war-rebel.
103
Spies, war-traitors, and war-rebels are not exchanged according to the
common law of war. The exchange of such persons would require a special
cartel, authorized by the government, or, at a great distance from it,
by the chief commander of the army in the field.
104
A successful spy or war-traitor, safely returned to his own army, and
afterwards captured as an enemy, is not subject to punishment for his
acts as a spy or war-traitor, but he may be held in closer custody as a
person individually dangerous.
SECTION VI
+Exchange of Prisoners--Flags of Truce--Flags of Protection+
105
Exchanges of prisoners take place--number for number--rank for
rank--wounded for wounded--with added condition for added
condition--such, for instance, as not to serve for a certain period.
106
In exchanging prisoners of war, such numbers of persons of inferior rank
may be substituted as an equivalent for one of superior rank as may be
agreed upon by cartel, which requires the sanction of the government, or
of the commander of the army in the field.
107
A prisoner of war is in honor bound truly to state to the captor his
rank; and he is not to assume a lower rank than belongs to him, in order
to cause a more advantageous exchange, nor a higher rank, for the
purpose of obtaining better treatment.
Offenses to the contrary have been justly punished by the commanders of
released prisoners, and may be good cause for refusing to release such
prisoners.
108
The surplus number of prisoners of war remaining after an exchange has
taken place is sometimes released either for the payment of a stipulated
sum of money, or, in urgent cases, of provision, clothing, or other
necessaries.
Such arrangement, however, requires the sanction of the highest
authority.
109
The exchange of prisoners of war is an act of convenience to both
belligerents. If no general cartel has been concluded, it can not be
demanded by either of them. No belligerent is obliged to exchange
prisoners of war.
A cartel is voidable as soon as either party has violated it.
110
No exchange of prisoners shall be made except after complete capture,
and after an accurate account of them, and a list of the captured
officers, has been taken.
111
The bearer of a flag of truce can not insist upon being admitted. He
must always be admitted with great caution. Unnecessary frequency is
carefully to be avoided.
112
If the bearer of a flag of truce offer himself during an engagement, he
can be admitted as a very rare exception only. It is no breach of good
faith to retain such flag of truce, if admitted during the engagement.
Firing is not required to cease on the appearance of a flag of truce in
battle.
113
If the bearer of a flag of truce, presenting himself during an
engagement, is killed or wounded, it furnishes no ground of complaint
whatever.
114
If it be discovered, and fairly proved, that a flag of truce has been
abused for surreptitiously obtaining military knowledge, the bearer of
the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its
sacredness, that while its abuse is an especially heinous offense, great
caution is requisite, on the other hand, in convicting the bearer of a
flag of truce as a spy.
115
It is customary to designate by certain flags (usually yellow) the
hospitals in places which are shelled, so that the besieging enemy may
avoid firing on them. The same has been done in battles, when hospitals
are situated within the field of the engagement.
116
Honorable belligerents often request that the hospitals within the
territory of the enemy may be designated, so that they may be spared.
An honorable belligerent allows himself to be guided by flags or signals
of protection as much as the contingencies and the necessities of the
fight will permit.
117
It is justly considered an act of bad faith, of infamy or fiendishness,
to deceive the enemy by flags of protection. Such act of bad faith may
be good cause for refusing to respect such flags.
118
The besieging belligerent has sometimes requested the besieged to
designate the buildings containing collections of works of art,
scientific museums, astronomical observatories, or precious libraries,
so that their destruction may be avoided as much as possible.
SECTION VII
+The Parole+
119
Prisoners of war may be released from captivity by exchange, and, under
certain circumstances, also by parole.
120
The term "Parole" designates the pledge of individual good faith and
honor to do, or to omit doing, certain acts after he who gives his
parole shall have been dismissed, wholly or partially, from the power of
the captor.
121
The pledge of the parole is always an individual, but not a private act.
122
The parole applies chiefly to prisoners of war whom the captor allows to
return to their country, or to live in greater freedom within the
captor's country or territory, on conditions stated in the parole.
123
Release of prisoners of war by exchange is the general rule; release by
parole is the exception.
124
Breaking the parole is punished with death when the person breaking the
parole is captured again.
Accurate lists, therefore, of the paroled persons must be kept by the
belligerents.
125
When paroles are given and received there must be an exchange of two
written documents, in which the name and rank of the paroled individuals
are accurately and truthfully stated.
126
Commissioned officers only are allowed to give their parole, and they
can give it only with the permission of their superior, as long as a
superior in rank is within reach.
127
No noncommissioned officer or private can give his parole except through
an officer. Individual paroles not given through an officer are not only
void, but subject the individuals giving them to the punishment of death
as deserters. The only admissible exception is where individuals,
properly separated from their commands, have suffered long confinement
without the possibility of being paroled through an officer.
128
No paroling on the battlefield; no paroling of entire bodies of troops
after a battle; and no dismissal of large numbers of prisoners, with a
general declaration that they are paroled, is permitted, or of any
value.
129
In capitulations for the surrender of strong places or fortified camps
the commanding officer, in cases of urgent necessity, may agree that the
troops under his command shall not fight again during the war, unless
exchanged.
130
The usual pledge given in the parole is not to serve during the existing
war, unless exchanged.
This pledge refers only to the active service in the field, against the
paroling belligerent or his allies actively engaged in the same war.
These cases of breaking the parole are patent acts, and can be visited
with the punishment of death; but the pledge does not refer to internal
service, such as recruiting or drilling the recruits, fortifying places
not besieged, quelling civil commotions, fighting against belligerents
unconnected with the paroling belligerents, or to civil or diplomatic
service for which the paroled officer may be employed.
131
If the government does not approve of the parole, the paroled officer
must return into captivity, and should the enemy refuse to receive him,
he is free of his parole.
132
A belligerent government may declare, by a general order, whether it
will allow paroling, and on what conditions it will allow it. Such order
is communicated to the enemy.
133
No prisoner of war can be forced by the hostile government to parole
himself, and no government is obliged to parole prisoners of war, or to
parole all captured officers, if it paroles any. As the pledging of the
parole is an individual act, so is paroling, on the other hand, an act
of choice on the part of the belligerent.
134
The commander of an occupying army may require of the civil officers of
the enemy, and of its citizens, any pledge he may consider necessary for
the safety or security of his army, and upon their failure to give it he
may arrest, confine, or detain them.
SECTION VIII
+Armistice--Capitulation+
135
An armistice is the cessation of active hostilities for a period agreed
between belligerents. It must be agreed upon in writing, and duly
ratified by the highest authorities of the contending parties.
136
If an armistice be declared, without conditions, it extends no further
than to require a total cessation of hostilities along the front of both
belligerents.
If conditions be agreed upon, they should be clearly expressed, and must
be rigidly adhered to by both parties. If either party violates any
express condition, the armistice may be declared null and void by the
other.
137
An armistice may be general, and valid for all points and lines of the
belligerents; or special, that is, referring to certain troops or
certain localities only.
An armistice may be concluded for a definite time; or for an indefinite
time, during which either belligerent may resume hostilities on giving
the notice agreed upon to the other.
138
The motives which induce the one or the other belligerent to conclude an
armistice, whether it be expected to be preliminary to a treaty of
peace, or to prepare during the armistice for a more vigorous
prosecution of the war, does in no way affect the character of the
armistice itself.
139
An armistice is binding upon the belligerents from the day of the agreed
commencement; but the officers of the armies are responsible from the
day only when they receive official information of its existence.
140
Commanding officers have the right to conclude armistices binding on the
district over which their command extends, but such armistice is subject
to the ratification of the superior authority, and ceases so soon as it
is made known to the enemy that the armistice is not ratified, even if a
certain time for the elapsing between giving notice of cessation and the
resumption of hostilities should have been stipulated for.
141
It is incumbent upon the contracting parties of an armistice to
stipulate what intercourse of persons or traffic between the inhabitants
of the territories occupied by the hostile armies shall be allowed, if
any.
If nothing is stipulated the intercourse remains suspended, as during
actual hostilities.
142
An armistice is not a partial or a temporary peace; it is only the
suspension of military operations to the extent agreed upon by the
parties.
143
When an armistice is concluded between a fortified place and the army
besieging it, it is agreed by all the authorities on this subject that
the besieger must cease all extension, perfection, or advance of his
attacking works as much so as from attacks by main force.
But as there is a difference of opinion among martial jurists, whether
the besieged have the right to repair breaches or to erect new works of
defense within the place during an armistice, this point should be
determined by express agreement between the parties.
144
So soon as a capitulation is signed, the capitulator has no right to
demolish, destroy, or injure the works, arms, stores, or ammunition, in
his possession, during the time which elapses between the signing and
the execution of the capitulation, unless otherwise stipulated in the
same.
145
When an armistice is clearly broken by one of the parties, the other
party is released from all obligation to observe it.
146
Prisoners taken in the act of breaking an armistice must be treated as
prisoners of war, the officer alone being responsible who gives the
order for such a violation of an armistice. The highest authority of the
belligerent aggrieved may demand redress for the infraction of an
armistice.
147
Belligerents sometimes conclude an armistice while their
plenipotentiaries are met to discuss the conditions of a treaty of
peace; but plenipotentiaries may meet without a preliminary armistice;
in the latter case, the war is carried on without any abatement.
SECTION IX
+Assassination+
148
The law of war does not allow proclaiming either an individual belonging
to the hostile army, or a citizen, or a subject of the hostile
government, an outlaw, who may be slain without trial by any captor, any
more than the modern law of peace allows such intentional outlawry; on
the contrary, it abhors such outrage. The sternest retaliation should
follow the murder committed in consequence of such proclamation, made
by whatever authority. Civilized nations look with horror upon offers of
rewards for the assassination of enemies as relapses into barbarism.
SECTION X
+Insurrection--Civil War--Rebellion+
149
Insurrection is the rising of people in arms against their government,
or a portion of it, or against one or more of its laws, or against an
officer or officers of the government. It may be confined to mere armed
resistance, or it may have greater ends in view.
150
Civil war is war between two or more portions of a country or state,
each contending for the mastery of the whole, and each claiming to be
the legitimate government. The term is also sometimes applied to war of
rebellion, when the rebellious provinces or portion of the state are
contiguous to those containing the seat of government.
151
The term "rebellion" is applied to an insurrection of large extent, and
is usually a war between the legitimate government of a country and
portions of provinces of the same who seek to throw off their allegiance
to it and set up a government of their own.
152
When humanity induces the adoption of the rules of regular war toward
rebels, whether the adoption is partial or entire, it does in no way
whatever imply a partial or complete acknowledgment of their government,
if they have set up one, or of them, as an independent and sovereign
power. Neutrals have no right to make the adoption of the rules of war
by the assailed government toward rebels the ground of their own
acknowledgment of the revolted people as an independent power.
153
Treating captured rebels as prisoners of war, exchanging them,
concluding of cartels, capitulations, or other warlike agreements with
them; addressing officers of a rebel army by the rank they may have in
the same; accepting flags of truce; or, on the other hand, proclaiming
martial law in their territory, or levying war-taxes or forced loans, or
doing any other act sanctioned or demanded by the law and usages of
public war between sovereign belligerents, neither proves nor
establishes an acknowledgment of the rebellious people, or of the
government which they may have erected, as a public or sovereign power.
Nor does the adoption of the rules of war toward rebels imply an
engagement with them extending beyond the limits of these rules. It is
victory in the field that ends the strife and settles the future
relations between the contending parties.
154
Treating, in the field, the rebellious enemy according to the law and
usages of war has never prevented the legitimate government from trying
the leaders of the rebellion or chief rebels for high treason, and from
treating them accordingly, unless they are included in a general
amnesty.
155
All enemies in regular war are divided into two general classes--that is
to say, into combatants and noncombatants, or unarmed citizens of the
hostile government.
The military commander of the legitimate government, in a war of
rebellion, distinguishes between the loyal citizen in the revolted
portion of the country and the disloyal citizen. The disloyal citizens
may further be classified into those citizens known to sympathize with
the rebellion without positively aiding it, and those who, without
taking up arms, give positive aid and comfort to the rebellious enemy
without being bodily forced thereto.
156
Common justice and plain expediency require that the military commander
protect the manifestly loyal citizens, in revolted territories, against
the hardships of the war as much as the common misfortune of all war
admits.
The commander will throw the burden of the war, as much as lies within
his power, on the disloyal citizens, of the revolted portion or
province, subjecting them to a stricter police than the noncombatant
enemies have to suffer in regular war; and if he deems it appropriate,
or if his government demands of him that every citizen shall, by an oath
of allegiance, or by some other manifest act, declare his fidelity to
the legitimate government, he may expel, transfer, imprison, or fine the
revolted citizens who refuse to pledge themselves anew as citizens
obedient to the law and loyal to the government.
Whether it is expedient to do so, and whether reliance can be placed
upon such oaths, the commander or his government has the right to
decide.
157
Armed or unarmed resistance by citizens of the United States against the
lawful movements of their troops is levying war against the United
States, and is therefore treason.
APPENDIX II
MANUAL OF THE LAWS OF WAR ON LAND
PREPARED BY THE INSTITUTE OF INTERNATIONAL LAW, AND UNANIMOUSLY ADOPTED
AT ITS MEETING AT OXFORD ON SEPTEMBER 9, 1880[496]
PART I. GENERAL PRINCIPLES
1. The state of war admits of the performance of acts of violence on the
part only of the armed forces of the belligerent states.
Persons not forming part of a belligerent armed force must abstain from
the performance of such acts.
A distinction being implied in the above rule between the
individuals of whom the armed force of a state is composed and other
subjects of a State, it becomes necessary to define an "armed
force."
2. The armed force of a state comprehends--
§ 1. The army properly so called, including militia.
§ 2. National Guards Landsturm, and all corps which satisfy the
following requirements:
(_a_) That of being under the direction of a responsible leader.
(_b_) That of wearing a uniform or a distinctive mark, which
latter must be fixed, and capable of being recognized at a
distance.
(_c_) That of bearing arms openly.
§ 3. Crews of vessels of war, and other members of the naval forces of
the country.
§ 4. Inhabitants of a territory not militarily occupied by the enemy,
who, on the approach of his army, take up arms spontaneously and
openly for the purpose of combating it. Such persons form part of
the armed force of the State, even though, owing to want of time,
they have not organized themselves militarily.
3. Every belligerent armed force is bound to conform to the laws of war.
The sole object during war to which states can legitimately direct
their hostilities being the enfeeblement of the military strength of
the enemy. (Declaration of St. Petersburg of the 4/16th November,
1868.)
4. The laws of war do not allow belligerents an unlimited freedom of
adopting whatever means they may choose for injuring their enemy.
Especially they must abstain from all useless severity, and from
disloyal, unjust, or tyrannical acts.
5. Military conventions made between belligerents during war--such as
armistices and capitulations--must be scrupulously observed and
respected.
6. No invaded territory is considered to be conquered until war is
ended. Until then the occupying state only exercises a _de facto_
control of an essentially provisional nature.
PART II. APPLICATION OF THE GENERAL PRINCIPLES
I. +Of Hostilities+
A. +RULES OF CONDUCT WITH RESPECT TO PERSONS+
(_a_) _Of the inoffensive population_
Acts of violence being permissible only between armed forces (Art. 1),
7. It is forbidden to maltreat the inoffensive portion of the
population.
(_b_) _Of means of injuring the enemy_
Loyalty of conduct being enjoined (Art. 4),
8. It is forbidden:--
(_a_) To employ poison in any form.
(_b_) To endeavor to take the life of an enemy in a traitorous
manner,--_e.g._ by employing assassins, or by simulating
surrender.
(_c_) To attack the enemy while concealing the distinctive marks of an
armed force.
(_d_) To make improper use of the national flag, of signs of military
ranks, or of the uniform of the enemy, of a flag of truce, or of
the protective marks prescribed by the Convention of Geneva. (See
Arts. 17 and 40.)
It being obligatory to abstain from useless severities (Art. 4),
9. It is forbidden:--
(_a_) To use arms, projectiles, or substances calculated to inflict
superfluous suffering, or to aggravate wounds, particularly
projectiles which, being explosible, or charged with fulminating
or inflammable substances, weigh less than four hundred grams.
(Declaration of St. Petersburg.)[497]
(_b_) To mutilate or kill an enemy who has surrendered at discretion,
or is disabled, and to declare that quarter will not be given,
even if the force making such declaration does not claim quarter
for itself.
(_c_) _Of wounded, sick, and the hospital staff_
The wounded, the sick, and the hospital staff are exempted from
unnecessary severities, which might otherwise touch them, by the
following rules (Arts. 10 to 18), drawn from the Convention of
Geneva.
10. Wounded and sick soldiers must be brought in and cared for, to
whatever nation they belong.
11. When circumstances permit, officers commanding in chief, immediately
after a combat, may send in enemy soldiers wounded during it to the
advanced posts of the enemy, with the consent of the latter.
12. The operation of moving sick and wounded is a neutral act, and the
staff engaged in it is neutral.
13. The staff of the hospitals and ambulances--namely, surgeons, clerks,
hospital orderlies, and other persons employed in the sanitary,
administrative, and transport departments, as well as chaplains, and
members and agents of societies duly authorized to assist the official
hospital staff--is considered to be neutral while exercising its
functions, and so long as there are wounded to remove or succor.
14. The staff specified in the preceding Article must continue after
occupation by an enemy has taken place to give its attention to the sick
and wounded, to such extent as may be needful, in the ambulance or
hospital which it serves.
15. When such staff applies for leave to retire, it falls to the officer
commanding the occupying troops to fix the date of departure. After
request, however, has been made, the departure of the staff can only be
postponed for a short time, and for reasons of military necessity.
16. Measures must, if possible, be taken to secure to the neutralized
staff fitting maintenance and allowance when it falls into the hands of
the enemy.
17. The neutralized hospital staff must wear a white armlet with a red
cross on it. The armlet can be issued only by the military authorities.
18. It is the duty of the generals of the belligerent Powers to appeal
to the humanity of the inhabitants of the country in which they are
operating, for the purpose of inducing them to succor the wounded,
pointing out to them at the same time the advantages which result to
themselves therefrom (Arts. 36 and 59). Those who respond to any such
appeal are entitled to special protection.
(_d_) _Of the dead_
19. It is forbidden to strip and mutilate the dead lying on the field of
battle.
20. The dead must never be buried before such indications of their
identity (especially "livrets, numeros," etc.) as they may have upon
them have been collected. The indications thus gathered upon enemy dead
are communicated to their army or government.
(_e_) _Who can be made prisoners of war_
21. Persons forming part of the armed force of belligerents, on falling
into the power of the enemy, must be treated as prisoners of war,
conformably to Article 61, and those following it.
This rule applies to messengers openly carrying official dispatches, and
to civil aëronauts employed to observe the enemy or to keep up
communication between different parts of the army or territory.
22. Persons who follow an army without forming part of it, such as
correspondents of newspapers, sutlers, contractors, etc., on falling
into the power of the enemy, can only be detained for so long a time as
may be required by military necessity.
(_f_) _Of spies_
23. Persons captured as spies cannot demand to be treated as prisoners
of war.
_But_
24. Persons belonging to a belligerent armed force are not to be
considered spies on entering, without the cover of a disguise, within
the area of the actual operations of the enemy. Messengers, also, who
openly carry official dispatches, and aëronauts (Art. 21) are not to be
considered spies.
To guard against the abuses to which accusations of acting as a spy
give rise in time of war, it must clearly be understood that
25. No person accused of being a spy can be punished without trial.
It is moreover admitted that
26. A spy who succeeds in quitting a territory occupied by the enemy,
cannot be held responsible for acts done before so leaving, if he
afterwards falls into the enemy's hands.
(_g_) _Of flags of truce_
27. A person who is authorized by one of the belligerents to enter
communication with the other belligerent, and presents himself to the
latter with a white flag, is inviolable.
28. He may be accompanied by a trumpeter or drummer, by a flag-bearer,
and, if necessary by a guide, and an interpreter, all of whom are also
inviolable.
The necessity of this privilege is evident, especially as its
exercise is frequently required in the simple interests of humanity.
It must not, however, be so used as to be prejudicial to the
opposite party.
Hence,
29. The commander to whom a flag of truce is sent is not obliged to
receive its bearer under all circumstances.
Besides,
30. The commander who receives a flag of truce has the right to take all
necessary measures to prevent the presence of an enemy within his lines
from being prejudicial to him.
The bearer of a flag of truce, and those who accompany him, are
bound to act with good faith toward the enemy who receives them
(Art. 4).
31. If the bearer of a flag of truce abuse the confidence which is
accorded to him, he may be temporarily detained; and if it be proved
that he has made use of his privileges to suborn to traitorous
practices, he loses his right of inviolability.
B. +RULES OF CONDUCT WITH REGARD TO THINGS+
(_a_) _Of the means of exercising violence. Of bombardment_
Mitigations of the extreme rights of violence are necessarily
consequent upon the rule that useless severity shall not be indulged
in (Art. 4). It is thus that
32. It is forbidden
(_a_) To pillage, even in the case of towns taken by assault.
(_b_) To destroy public or private property, unless its destruction be
required by an imperative necessity of war.
(_c_) To attack and bombard undefended places.
The right of belligerents to have recourse to bombardment against
fortresses and other places in which the enemy is intrenched is not
contestable, but humanity requires that this form of violence shall
be so restrained as to limit as much as possible its effects to the
armed forces of the enemy and to their defenses.
Hence,
33. The commander of an attacking force must do everything in his power
to intimate to the local authorities his intention of bombarding, before
the bombardment commences, except when bombardment is coupled with
assault.
34. In cases of bombardment, all necessary measures ought to be taken to
spare, so far as possible, buildings devoted to religion, the arts,
sciences, and charity, hospitals, and places in which sick and wounded
are kept; provided always that such buildings are not at the same time
utilized, directly or indirectly, for defense.
It is the duty of the besieged to indicate these buildings by visible
signs, notified to the besieger beforehand.
(_b_) _Of the sanitary matériel_
The rules (Arts. 10 and those following) for the protection of the
wounded would be insufficient if special protection were not also
given to hospitals. Consequently, in accordance with the Convention
of Geneva,
35. The ambulances and hospitals used by armies are recognized as being
neutral, and must be protected and respected as such by the
belligerents, so long as there are sick and wounded in them.
36. A like rule applies to private buildings, or parts of private
buildings, in which sick and wounded are collected and cared for.
Nevertheless,
37. The neutrality of ambulances and hospitals ceases to exist if they
are guarded by a military force, a police post being alone permissible.
38. The _matériel_ of military hospitals remains subject to the laws of
war; persons attached to the hospitals can only, therefore, carry away
their private property on leaving. Ambulances, on the other hand,
preserve their _matériel_.
39. Under the circumstances contemplated in the foregoing paragraph, the
term "ambulance" is applicable to field hospitals and other temporary
establishments which follow the troops to the field of battle for the
purpose of receiving sick and wounded.
40. A distinctive flag and uniform, bearing a red cross upon a white
ground, is adopted for hospitals, ambulances, and things and persons
connected with the movement of sick and wounded. It must always be
accompanied by the national flag.
II. +Of Occupied Territory+
A. +DEFINITION+
41. A territory is considered to be occupied when, as the result of its
invasion by an enemy's force, the State to which it belongs has ceased,
in fact, to exercise its ordinary authority within it, and the invading
State is alone in a position to maintain order. The extent and duration
of the occupation are determined by the limits of space and time within
which this state of things exists.
B. +RULES OF CONDUCT WITH REGARD TO PERSONS+
Since new relations arise from the provisional change of government,
42. It is the duty of the occupying military authority to inform the
inhabitants of the occupied territory as soon as possible of the powers
which it exercises, as well as of the local extent of the occupation.
43. The occupier must take all measures in his power to reëstablish and
to preserve public order.
With this object
44. The occupier must, so far as possible, retain the laws which were in
vigor in the country in time of peace, modifying, suspending, or
replacing them only in case of necessity.
45. The civil functionaries of every kind who consent to continue the
exercise of their functions are under the protection of the occupier.
They may be dismissed, and they may resign at any moment. For failing to
fulfill the obligations freely accepted by them, they can only be
subjected to disciplinary punishment. For betraying their trust, they
may be punished in such manner as the case may demand.
46. In emergencies the occupier may require the inhabitants of an
occupied district to give their assistance in carrying on the local
administration.
As occupation does not entail a change of nationality on the part of
the inhabitants,
47. The population of an occupied country cannot be compelled to take an
oath of fidelity or obedience to the enemy's power. Persons doing acts
of hostility directed against the occupier are, however, punishable
(Art. 1).
48. Inhabitants of an occupied territory who do not conform to the
orders of the occupier can be compelled to do so.
The occupier cannot, however, compel the inhabitants to assist him in
his works of attack or defense, nor to take part in military operations
against their own country (Art. 4).
Moreover,
49. Human life, female honor, religious beliefs, and forms of worship
must be respected. Interference with family life is to be avoided (Art.
4).
C. +RULES OF CONDUCT WITH RESPECT TO THINGS+
(_a_) _Public property_
Although an occupier, for the purpose of governing the occupied
territory, takes the place, in a certain sense, of the legitimate
government, he does not possess unrestricted powers. So long as the
ultimate fate of the territory is undecided--that is to say, until
the conclusion of peace--the occupier is not at liberty to dispose
freely of such property of his enemy as is not immediately
serviceable for the operations of war.
Hence,
50. The occupier can appropriate only money and debts (including
negotiable instruments) belonging to the State, arms, stores, and, in
general, such movable property of the State as can be used for the
purposes of military operations.
51. Means of transport (State railways and their rolling stock, State
vessels, etc.), as well as land telegraphs and landing cables, can only
be sequestrated for the use of the occupier. Their destruction is
forbidden, unless it be required by the necessities of war. They are
restored at the peace in the state in which they then are.
52. The occupier can only enjoy the use of, and do administrative acts
with respect to immovable property, such as buildings, forests, and
agricultural lands belonging to the enemy State (Art. 6).
Such property cannot be alienated, and must be maintained in good
condition.
53. The property of municipal and like bodies, that of religious,
charitable, and educational foundations, and that appropriated to the
arts and sciences, are exempt from seizure.
All destruction or intentional damage of buildings devoted to the above
purposes, of historical monuments, of archives, and of works of art or
science, is forbidden, unless it be imperatively demanded by the
necessities of war.
(_b_) _Private property_
If the powers of an occupier are limited with respect to the
property of the enemy state, _a fortiori_ they are limited with
respect to the property of private persons.
54. Private property, whether held by individuals or by corporations,
companies, or other bodies, must be respected, and cannot be confiscated
except to the extent specified in the following Articles.
55. Means of transport (railways and their rolling stock, vessels,
etc.), telegraphs, stores of arms and munitions of war, may be seized by
the occupier, notwithstanding that they belong to individuals or
companies; but they must be restored if possible at the conclusion of
peace, and compensation for the loss inflicted on their owners must be
provided.
56. Supplies in kind (requisitions) demanded from districts or
individuals must correspond to the generally recognized necessities of
war, and must be proportioned to the resources of the country.
Requisitions can only be made by express authorization of the officer
commanding in the occupied locality.
57. The occupier can only levy such taxes and duties as are already
established in the occupied State. He uses them to satisfy the expenses
of administration to the extent that they have been so used by the
legitimate government.
58. The occupier can only levy contributions in money as the equivalent
of unpaid fines, or unpaid taxes, or of supplies in kind, which have not
been duly made.
Contributions in money can only be imposed by the order, and on the
responsibility, of the general in chief or of the supreme civil
authority established in the occupied territory; and their incidence
must as far as possible correspond to that of the taxes already in
existence.
59. In apportioning the burdens arising from the billeting of troops and
contributions of war, zeal shown by individuals in caring for the
wounded is to be taken into consideration.
60. Receipts are to be given for the amount of contributions of war, and
for articles requisitioned when payment for them is not made. Measures
must be taken to secure that these receipts shall be given always, and
in proper form.
III. +Of Prisoners of War+
A. THE STATE OF CAPTIVITY
Captivity is neither a punishment inflicted on prisoners of war
(Art. 21) nor an act of vengeance; it is merely a temporary
detention which is devoid of all penal character. In the following
Articles, regard is had both to the consideration due to prisoners
of war and to the necessity of keeping them in safe custody.
61. Prisoners of war are at the disposal of the enemy government, not of
the individuals or corps which have captured them.
62. They are subjected to the laws and rules in force in the enemy army.
63. They must be treated with humanity.
64. All that belongs to them personally, except arms, remains their
property.
65. Prisoners are bound to state, if asked, their true name and rank. If
they do not do so, they can be deprived of all or any of the mitigations
of imprisonment enjoyed by other prisoners circumstanced like
themselves.
66. Prisoners can be subjected to internment in a town, fortress, camp,
or any other place, definite bounds being assigned which they are not
allowed to pass; but they can only be confined in a building when such
confinement is indispensable for their safe detention.
67. Insubordination justifies whatever measures of severity may be
necessary for its repression.
68. Arms may be used against a fugitive prisoner after summons to
surrender.
If he is retaken before he has rejoined his army, or has escaped from
the territory under the control of his captor, he may be punished, but
solely in a disciplinary manner, or he may be subjected to more severe
surveillance than that to which prisoners are commonly subjected. But if
he be captured afresh, after having accomplished his escape, he is not
punishable unless he has given his parole not to escape, in which case
he may be deprived of his rights as prisoner of war.
69. The government detaining prisoners is charged with their
maintenance.
In default of agreement between the belligerents on this point,
prisoners are given such clothing and rations as the troops of the
capturing State receive in time of peace.
70. Prisoners cannot be compelled to take part in any manner in the
operations of the war, nor to give information as to their country or
army.
71. They may be employed upon public works which have no direct relation
to the operations carried on in the theater of war, provided that labor
be not exhausting in kind or degree, and provided that the employment
given to them is neither degrading with reference to their military
rank, if they belong to the army, nor to their official or social
position, if they do not so belong.
72. When permission is given to them to work for private employers,
their wages may be received by the detaining government, which must
either use it in procuring comforts for them, or must pay it over to
them on their liberation, the cost of their maintenance being if
necessary first deducted.
B. +TERMINATION OF CAPTIVITY+
The reasons which justify the detention of a captured enemy last
only during the continuance of war.
Consequently,
73. The captivity of prisoners of war ceases as of course on the
conclusion of peace; but the time and mode of their actual liberation is
a matter for agreement between the governments concerned.
In virtue of the Convention of Geneva,
74. Captivity ceases as of course, before the date fixed upon for
general liberation, in the case of wounded or sick prisoners who, after
being cured, are found to be incapable of further service.
The captor must send these back to their country so soon as their
incapacity is established.
During the war
75. Prisoners can be released by means of a cartel of exchange
negotiated between the belligerent parties.
Even without exchange
76. Prisoners can be set at liberty on parole, if the laws of their
country do not forbid it. The conditions of their parole must be clearly
stated. If so set at liberty, they are bound, on their honor, to fulfill
scrupulously the engagements which they have freely entered into. Their
government, on its part, must neither require nor accept from them any
service inconsistent with their pledged word.
77. A prisoner cannot be compelled to accept his liberty on parole. In
the same way the enemy government is not obliged to accede to a request
made by a prisoner to be released on parole.
78. Prisoners liberated on parole and retaken in arms against the
government to which they are pledged, can be deprived of the rights of
prisoners of war, unless they have been included among prisoners
exchanged unconditionally under a cartel of exchange negotiated
subsequently to their liberation.
IV. +Persons Interned in Neutral Territory+
It is universally admitted that a neutral State cannot lend
assistance to belligerents, and especially cannot allow them to make
use of its territory without compromising its neutrality. Humanity,
on the other hand, demands that a neutral State shall not be obliged
to repel persons who beg refuge from death or captivity. The
following rules are intended to reconcile these conflicting
requirements:
79. The neutral State within the territory of which bodies of troops or
individuals belonging to the armed force of the belligerents take
refuge, must intern them at a place as distant as possible from the
theater of war. It must do the same with persons using its territory as
a means of carrying on military operations.
80. Interned persons may be kept in camps, or may be shut up in
fortresses or other places of safety. The neutral State decides whether
officers may be left free on parole on an engagement being entered into
by them not to leave the neutral territory without authorization.
81. In default of special convention regulating the maintenance of
interned persons, the neutral State supplies them with rations and
clothes, and bestows care upon them in other ways to such extent as is
required by humanity.
It also takes care of the _matériel_ of war which the interned persons
may have had with them on entering the neutral territory.
On the conclusion of peace, or sooner if possible, the expenses
occasioned by the internment are repaid to the neutral State by the
belligerent State to which the interned persons belong.
82. The provisions of the Convention of Geneva of the 22d August, 1864
(see above, Articles 10 to 18, 35 to 40, and 74) are applicable to the
hospital staff, as well as to the sick and wounded who have taken refuge
in, or been carried into, neutral territory.
Especially,
83. Sick and wounded who are not prisoners may be moved across neutral
territory, provided that the persons accompanying them belong solely to
the hospital staff, and that any _matériel_ carried with them is such
only as is required for the use of sick and wounded. The neutral State,
across the territory of which sick and wounded are moved, is bound to
take whatever measures of control are required to secure the strict
observance of the above conditions.
PART III. PENAL SANCTION
When infractions of the foregoing rules take place, the guilty
persons should be punished, after trial, by the belligerent within
whose power they are.
84. Persons violating the laws of war are punishable in such way as the
penal law of the country may prescribe.
But this mode of repressing acts contrary to the laws of war being
only applicable when the guilty person can be reached, the injured
party has no resource other than the use of reprisals when the
guilty person cannot be reached, if the acts committed are
sufficiently serious to render it urgently necessary to impress
respect for the law upon the enemy. Reprisals, the occasional
necessity of which is to be deplored, are an exceptional practice,
at variance with the general principles that the innocent must not
suffer for the guilty, and that every belligerent ought to conform
to the laws of war, even without reciprocity on the part of the
enemy. The right to use reprisals is tempered by the following
restrictions:--
85. Reprisals are forbidden whenever the wrong which has afforded ground
of complaint has been repaired.
86. In the grave cases in which reprisals become an imperative
necessity, their nature and scope must never exceed the measure of the
infraction of the laws of war committed by the enemy.
They can only be made with the authorization of the commander in chief.
They must, in all cases, be consistent with the rules of humanity and
morality.
APPENDIX III
CONFERENCE AT BRUSSELS, 1874, ON THE RULES OF MILITARY WARFARE[498]
SECTION I
+Of the Rights of Belligerents One toward the Other+
+Chapter I.+ _Of Military Authority over the Hostile State_
+Article 1.+ A territory is considered as occupied when it is actually
placed under the authority of the hostile army.
The occupation only extends to those territories where this authority is
established and can be exercised.
+Art. 2.+ The authority of the legal power being suspended, and having
actually passed into the hands of the occupier, he shall take every step
in his power to reëstablish and secure, as far as possible, public
safety and social order.
+Art. 3.+ With this object he will maintain the laws which were in force
in the country in time of peace, and will only modify, suspend, or
replace them by others if necessity obliges him to do so.
+Art. 4.+ The functionaries and officials of every class who, at the
instance of the occupier, consent to continue to perform their duties,
shall be under his protection. They shall not be dismissed or be liable
to summary punishment unless they fail in fulfilling the obligations
they have undertaken, and shall be handed over to justice only if they
violate those obligations by unfaithfulness.
+Art. 5.+ The army of occupation shall only levy such taxes, dues,
duties, and tolls as are already established for the benefit of the
State, or their equivalent if it be impossible to collect them, and this
shall be done as far as possible in the form of and according to
existing practice. It shall devote them to defraying the expenses of the
administration of the country to the same extent as was obligatory on
the legal Government.
+Art. 6.+ The army occupying a territory shall take possession only of
the specie, the funds, and bills, etc., which are the actual property of
the state; the depots of arms, means of transport, magazines, and
supplies, and, in general, all the personal property of the State, which
may be of service in carrying on the war.
Railway plant, land telegraphs, steam and other vessels, not included in
cases regulated by maritime law, as well as depots of arms, and
generally every kind of munitions of war, although belonging to
companies or to private individuals, are to be considered equally as
means of aid in carrying on a war, which cannot be left at the disposal
of the enemy. Railway plant, land telegraphs, as well as the steam and
other vessels above mentioned, shall be restored, and indemnities be
regulated on the conclusion of peace.
+Art. 7.+ The occupying state shall only consider itself in the light of
an administrator and usufructuary of the public buildings, real
property, forests, and agricultural works belonging to the hostile
state, and situated in the occupied territory. It is bound to protect
these properties, and to administer them according to the laws of
usufruct.
+Art. 8.+ The property of parishes, of establishments devoted to
religion, charity, education, arts, and sciences, although belonging to
the State, shall be treated as private property.
Every seizure, destruction of, or willful damage to such establishments,
historical monuments, or works of art, or of science, should be
prosecuted by the competent authorities.
+Chapter II.+ _Of those who are to be recognized as Belligerents; of
Combatants and Non-combatants_
+Art. 9.+ The laws, rights, and duties of war are applicable not only to
the army, but likewise to militia and corps of volunteers complying with
the following conditions:
1. That they have at their head a person responsible for his
subordinates;
2. That they wear some settled, distinctive badge, recognizable at a
distance;
3. That they carry arms openly; and
4. That, in their operations, they conform to the laws and customs of
war.
In those countries where the militia form the whole or part of the army,
they shall be included under the denomination of "army."
+Art. 10.+ The population of a non-occupied territory, who, on the
approach of the enemy, of their own accord take up arms to resist the
invading troops, without having had time to organize themselves in
conformity with Article 9, shall be considered as belligerents, if they
respect the laws and customs of war.
+Art. 11.+ The armed forces of the belligerents may be composed of
combatants and non-combatants. In the event of being captured by the
enemy, both one and the other shall enjoy the rights of prisoners of
war.
+Chapter III.+ _Of the Means of injuring the Enemy; of those which are
permitted or should be forbidden_
+Art. 12.+ The laws of war do not allow to belligerents an unlimited
power as to the choice of means of injuring the enemy.
+Art. 13.+ According to this principle are strictly forbidden:
(_a_) The use of poison or poisoned weapons.
(_b_) Murder by treachery of individuals belonging to the hostile
nation or army.
(_c_) Murder of an antagonist who, having laid down his arms, or
having no longer the means of defending himself, has surrendered at
discretion.
(_d_) The declaration that no quarter will be given.
(_e_) The use of arms, projectiles, or substances which may cause
unnecessary suffering, as well as the use of the projectiles
prohibited by the declaration of St. Petersburg in 1868.[499]
(_f_) Abuse of the flag of truce, the national flag, or the military
insignia or uniform of the enemy, as well as the distinctive badges
of the Geneva Convention.
(_g_) All destruction or seizure of the property of the enemy which is
not imperatively required by the necessity of war.
+Art. 14.+ Stratagems and the employment of means necessary to procure
intelligence respecting the enemy or the country (subject to the
provisions of Art. 36), are considered as lawful means.
+Chapter IV.+ _Of Sieges and Bombardments_
+Art. 15.+ Fortified places are alone liable to be besieged. Towns,
agglomerations of houses or villages, which are open and undefended,
cannot be attacked or bombarded.
+Art. 16.+ But if a town or fortress, agglomeration of houses, or
village be defended, the commander of the attacking forces should,
before commencing a bombardment, and except in the case of surprise, do
all in his power to warn the authorities.
+Art. 17.+ In the like case all necessary steps should be taken to
spare, as far as possible, buildings devoted to religion, arts,
sciences, and charity, hospitals and places where sick and wounded are
collected, on condition that they are not used at the same time for
military purposes.
It is the duty of the besieged to indicate these buildings by special
visible signs to be notified beforehand by the besieged.
+Art. 18.+ A town taken by storm should not be given up to the
victorious troops to plunder.
+Chapter V.+ _Of Spies_
+Art. 19.+ No one shall be considered as a spy but those who, acting
secretly or under false pretenses, collect, or try to collect
information in districts occupied by the enemy with the intention of
communicating it to the opposing force.
+Art. 20.+ A spy, if taken in the act, shall be tried and treated
according to the laws in force in the army which captures him.
+Art. 21.+ If a spy, who rejoins the army to which he belongs, is
subsequently captured by the enemy, he is to be treated as a prisoner of
war, and incurs no responsibility for his previous acts.
+Art. 22.+ Military men who have penetrated within the zone of
operations of the enemy's army, with the intention of collecting
information, are not considered as spies if it has been possible to
recognize their military character.
In like manner military men (and also non-military persons carrying out
their mission openly), charged with the transmission of dispatches
either to their own army or to that of the enemy, shall not be
considered as spies if captured by the enemy.
To this class belong also, if captured, individuals sent in balloons to
carry dispatches, and generally to keep up communications between the
different parts of an army, or of a territory.
+Chapter VI.+ _Of Prisoners of War_
+Art. 23.+ Prisoners of war are lawful and disarmed enemies. They are in
the power of the enemy's Government but not of the individuals or of the
corps who made them prisoners.
They should be treated with humanity.
Every act of insubordination authorizes the necessary measures of
severity to be taken with regard to them.
All their personal effects, except their arms, are considered to be
their own property.
+Art. 24.+ Prisoners of war are liable to internment in a town,
fortress, camp, or in any locality whatever, under an obligation not to
go beyond certain fixed limits; but they may not be placed in
confinement unless absolutely necessary as a measure of security.
+Art. 25.+ Prisoners of war may be employed on certain public works
which have no immediate connection with the operations on the theater of
war, provided the employment be not excessive nor humiliating to their
military rank, if they belong to the army, or to their official or
social position if they do not belong to it.
They may also, subject to such regulations as may be drawn up by the
military authorities, undertake private work.
The pay they receive will go towards ameliorating their position, or
will be put to their credit at the time of their release. In this case
the cost of their maintenance may be deducted from their pay.
+Art. 26.+ Prisoners of war cannot be compelled in any way to take any
part whatever in carrying on the operations of the war.
+Art. 27.+ The Government in whose power are the prisoners of war,
undertakes to provide for their maintenance.
The conditions of such maintenance may be settled by a mutual
understanding between the belligerents.
In default of such an understanding, and as a general principle,
prisoners of war shall be treated, as regards food and clothing, on the
same footing as the troops of the Government who made them prisoners.
+Art. 28.+ Prisoners of war are subject to the laws and regulations in
force in the army in whose power they are.
Arms may be used, after summoning, against a prisoner attempting to
escape. If retaken, he is subject to summary punishment or to a stricter
surveillance.
If after having escaped he is again made prisoner, he is not liable to
any punishment for his previous escape.
+Art. 29.+ Every prisoner is bound to declare, if interrogated on the
point, his true names and rank; and in the case of his infringing this
rule, he will incur a restriction of the advantages granted to the
prisoners of the class to which he belongs.
+Art. 30.+ The exchange of prisoners of war is regulated by mutual
agreement between the belligerents.
+Art. 31.+ Prisoners of war may be released on parole if the laws of
their country allow of it; and in such a case they are bound on their
personal honor to fulfill scrupulously, as regards their own Government,
as well as that which made them prisoners, the engagements they have
undertaken.
In the same case their own Government should neither demand nor accept
from them any service contrary to their parole.
+Art. 32.+ A prisoner of war cannot be forced to accept release on
parole, nor is the enemy's Government obliged to comply with the request
of a prisoner claiming to be released on parole.
+Art. 33.+ Every prisoner of war liberated on parole, and retaken
carrying arms against the Government to which he had pledged his honor,
may be deprived of the rights accorded to prisoners of war, and may be
brought before the tribunals.
+Art. 34.+ Persons in the vicinity of armies, but who do not directly
form part of them, such as correspondents, newspaper reporters,
_vivandiers_, contractors, etc., may also be made prisoners of war.
These persons should, however, be furnished with a permit, issued by a
competent authority, as well as with a certificate of identity.
+Chapter VII.+ _Of Non-combatants and Wounded_
+Art. 35.+ The duties of belligerents, with regard to the treatment of
sick and wounded, are regulated by the Convention of Geneva of the 22d
August, 1864, subject to the modifications which may be introduced into
that Convention.
SECTION II
+Of the Rights of Belligerents with Reference to Private Individuals+
+Chapter I.+ _Of the Military Power with respect to Private Individuals_
+Art. 36.+ The population of an occupied territory cannot be compelled
to take part in military operations against their own country.
+Art. 37.+ The population of occupied territories cannot be compelled to
swear allegiance to the enemy's power.
+Art. 38.+ The honor and rights of the family, the life and property of
individuals, as well as their religious convictions and the exercise of
their religion, should be respected.
+Art. 39.+ Pillage is expressly forbidden.
+Chapter II.+ _Of Requisitions and Contributions_
+Art. 40.+ As private property should be respected, the enemy will
demand from parishes or the inhabitants, only such payments and services
as are connected with the necessities of war generally acknowledged in
proportion to the resources of the country, and which do not imply, with
regard to the inhabitants, the obligation of taking part in the
operations of war against their own country.
+Art. 41.+ The enemy, in levying contributions, whether as equivalent
for taxes (see Art. 5), or for payments which should be made in kind, or
as fines, will proceed, as far as possible, according to the rules of
the distribution and assessment of the taxes in force in the occupied
territory.
The civil authorities of the legal Government will afford their
assistance, if they have remained in office.
Contributions can be imposed only on the order and on the responsibility
of the General in chief, or of the superior civil authority established
by the enemy in the occupied territory.
For every contribution a receipt shall be given to the person furnishing
it.
+Art. 42.+ Requisitions shall be made only by the authority of the
commandant of the locality occupied.
For every requisition an indemnity shall be granted, or a receipt given.
SECTION III
+Of Relations between Belligerents+
+Chapter I.+ _Of Modes of Communication and Envoys_
+Art. 43.+ An individual authorized by one of the belligerents to confer
with the other, on presenting himself with a white flag, accompanied by
a trumpeter (bugler or drummer), or also by a flag-bearer, shall be
recognized as the bearer of a flag of truce. He, as well as the
trumpeter (bugler or drummer), and the flag-bearer, who accompanies him,
shall have the right of inviolability.
+Art. 44.+ The commander, to whom a bearer of a flag of truce is
dispatched, is not obliged to receive him under all circumstances and
conditions.
It is lawful for him to take all measures necessary for preventing the
bearer of the flag of truce taking advantage of his stay within the
radius of the enemy's position, to the prejudice of the latter; and if
the bearer of the flag of truce is found guilty of such a breach of
confidence, he has the right to detain him temporarily.
He may equally declare beforehand that he will not receive bearers of
flags of truce during a certain period. Envoys presenting themselves
after such a notification from the side to which it has been given,
forfeit their right of inviolability.
+Art. 45.+ The bearer of a flag of truce forfeits his right of
inviolability, if it be proved in a positive and irrefutable manner that
he has taken advantage of his privileged position to incite to, or
commit an act of treachery.
+Chapter II.+ _Of Capitulations_
+Art. 46.+ The conditions of capitulations shall be settled by the
contracting parties.
These conditions should not be contrary to military honor.
When once settled by a convention they should be scrupulously observed
by both sides.
+Chapter III.+ _Of Armistices_
+Art. 47.+ An armistice suspends warlike operations by a mutual
agreement between the belligerents. Should the duration thereof not be
fixed, the belligerents may resume operations at any moment, provided,
however, that proper warning be given to the enemy, in accordance with
the conditions of the armistice.
+Art. 48.+ An armistice may be general or local. The former suspends all
warlike operations between the belligerents; the latter only those
between certain portions of the belligerent armies, and within a fixed
radius.
+Art. 49.+ An armistice should be notified officially and without delay
to the competent authorities, and to the troops. Hostilities are
suspended immediately after the notification.
+Art. 50.+ It rests with the contracting parties to define in the
clauses of the armistice the relations which shall exist between the
populations.
+Art. 51.+ The violation of the armistice by either of the parties gives
to the other the right of terminating it.
+Art. 52.+ The violation of the clauses of an armistice by private
individuals, on their own personal initiative, only affords the right of
demanding the punishment of the guilty persons, and, if there is
occasion for it, an indemnity for losses sustained.
+Chapter IV.+ _Of Belligerents interned, and of Wounded treated, in
Neutral Territory_
+Art. 53.+ The neutral State receiving in its territory troops belonging
to the belligerent armies, will intern them, so far as it may be
possible, away from the theater of war.
They may be kept in camps, or even confined in fortresses, or in places
appropriated to this purpose.
It will decide whether the officers may be released on giving their
parole not to quit the neutral territory without authority.
+Art. 54.+ In default of a special agreement, the neutral State which
receives the belligerent troops will furnish the interned with
provisions, clothing, and such aid as humanity demands.
The expenses incurred by the internment will be made good at the
conclusion of peace.
+Art. 55.+ The neutral State may authorize the transport across its
territory of the wounded and sick belonging to the belligerent armies,
provided that the trains which convey them do not carry either the
_personnel_ or _matériel_ of war.
In this case the neutral State is bound to take the measures necessary
for the safety and control of the operation.
+Art. 56.+ The Convention of Geneva is applicable to the sick and
wounded interned on neutral territory.
APPENDIX IV
AMELIORATION OF THE CONDITION OF THE WOUNDED IN WAR
+Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field between Switzerland, Baden, Belgium, Denmark,
Spain, France, Hesse, Italy, Netherlands, Portugal, Prussia,
Würtemburg, and acceded to by Sweden and Norway, Greece, Great
Britain, Mecklenburg-Schwerin, Turkey, Bavaria, Austria, Russia,
Roumania, Persia, Salvador, Montenegro, Servia, Bolivia, Chili,
Argentine Republic, Peru, and Japan.+
_Concluded August 22, 1864; ratifications exchanged at Geneva, June 22,
1865; acceded to by the United States, March 1, 1882; accession of
United States accepted by Switzerland, on behalf of the Powers, June 9,
1882; proclaimed as to the original convention, but with reserve as to
the additional articles, July 26, 1882._
After reciting the desire of the different governments "to soften, as
much as depends on them, the evils of warfare, to suppress its useless
hardships and improve the fate of wounded soldiers on the field of
battle," the Convention names the negotiators,
Who, after having exchanged their powers and found them in good and due
form, agree to the following articles:
+Article 1.+ Ambulances and military hospitals shall be acknowledged to
be neuter, and as such, shall be protected and respected by belligerents
so long as any sick or wounded may be therein.
Such neutrality shall cease if the ambulances or hospitals should be
held by a military force.
+Art. 2.+ Persons employed in hospitals and ambulances, comprising the
staff for superintendence, medical service, administration, transport of
wounded, as well as chaplains, shall participate in the benefit of
neutrality, whilst so employed, and so long as there remain any wounded
to bring in or to succor.
+Art. 3.+ The persons designated in the preceding article may, even
after occupation by the enemy, continue to fulfill their duties in the
hospital or ambulance which they serve, or may withdraw in order to
rejoin the corps to which they belong.
Under such circumstances, when these persons shall cease from their
functions, they shall be delivered by the occupying army to the outposts
of the enemy.
+Art. 4.+ As the equipment of military hospitals remains subject to the
laws of war, persons attached to such hospitals cannot, in withdrawing,
carry away any articles but such as are their private property.
Under the same circumstances an ambulance shall, on the contrary, retain
its equipment.
+Art. 5.+ Inhabitants of the country who may bring help to the wounded,
shall be respected and shall remain free. The generals of the
belligerent Powers shall make it their care to inform the inhabitants of
the appeal addressed to their humanity, and of the neutrality which will
be the consequence of it.
Any wounded man entertained and taken care of in a house shall be
considered as a protection thereto. Any inhabitant who shall have
entertained wounded men in his house shall be exempted from the
quartering of troops, as well as from a part of the contributions of war
which may be imposed.
+Art. 6.+ Wounded or sick soldiers shall be entertained and taken care
of, to whatever nation they may belong.
Commanders in chief shall have the power to deliver immediately to the
outposts of the enemy soldiers who have been wounded in an engagement,
when circumstances permit this to be done, and with the consent of both
parties.
Those who are recognized, after their wounds are healed, as incapable of
serving, shall be sent back to their country. The others may also be
sent back, on condition of not again bearing arms during the continuance
of the war.
Evacuations, together with the persons under whose directions they take
place, shall be protected by an absolute neutrality.
+Art. 7.+ A distinctive and uniform flag shall be adopted for hospitals,
ambulances, and evacuations. It must, on every occasion, be accompanied
by the national flag. An arm badge (brassard) shall also be allowed for
individuals neutralized, but the delivery thereof shall be left to
military authority.
The flag and the arm badge shall bear a red cross on a white ground.
+Art. 8.+ The details of execution of the present convention shall be
regulated by the commanders in chief of belligerent armies, according to
the instructions of their respective governments, and in conformity with
the general principles laid down in this convention.
+Art. 9.+ The high contracting Powers have agreed to communicate the
present convention to those Governments which have not found it
convenient to send plenipotentiaries to the International Conference at
Geneva, with an invitation to accede thereto; the protocol is for that
purpose left open.
+Art. 10.+ The present convention shall be ratified, and the
ratifications shall be exchanged at Berne in four months, or sooner if
possible.
[Additional articles, extending to naval forces the advantages of the
above convention, were concluded Oct. 20, 1868, by most of the powers of
Europe, and later acceded to by the United States; but they have never
been ratified. See U. S. Treaties, p. 1153.][500]
APPENDIX V
DECLARATION OF PARIS
The Plenipotentiaries who signed the Treaty of Paris of the thirtieth of
March, one thousand eight hundred and fifty-six, assembled in
conference,
Considering:
That maritime law in time of war has long been the subject of deplorable
disputes;
That the uncertainty of the law and of the duties in such a matter give
rise to differences of opinion between neutrals and belligerents which
may occasion serious difficulties, and even conflicts; that it is
consequently advantageous to establish a uniform doctrine on so
important a point;
That the Plenipotentiaries assembled in Congress at Paris cannot better
respond to the intentions by which their Governments are animated, than
by seeking to introduce into international relations fixed principles,
in this respect.
The above-mentioned Plenipotentiaries, being duly authorized, resolved
to concert among themselves as to the means of attaining this object;
and having come to an agreement, have adopted the following solemn
declaration:
1. Privateering is and remains abolished;
2. The neutral flag covers enemy's goods, with the exception of
contraband of war;
3. Neutral goods, with the exception of contraband of war, are not
liable to capture under enemy's flag;
4. Blockades, in order to be binding, must be effective--that is to say,
maintained by a force sufficient really to prevent access to the coast
of the enemy.
The Governments of the undersigned Plenipotentiaries engage to bring the
present Declaration to the knowledge of the States which have not taken
part in the Congress of Paris, and to invite them to accede to it.
Convinced that the maxims which they now proclaim cannot but be received
with gratitude by the whole world, the undersigned Plenipotentiaries
doubt not that the efforts of their Governments to obtain the general
adoption thereof will be crowned with full success.
The present declaration is not and shall not be binding, except between
those Powers who have acceded, or shall accede, to it.
Done at Paris, the sixteenth of April, one thousand eight hundred and
fifty-six.
APPENDIX VI
THE LAWS AND USAGES OF WAR AT SEA
A NAVAL WAR CODE
+General Orders+, } NAVY DEPARTMENT,
No. 551. } _Washington, June 27, 1900_.
The following code of naval warfare, prepared for the guidance and use
of the naval service by Capt. Charles H. Stockton, United States Navy,
under the direction of the Secretary of the Navy, having been approved
by the President of the United States, is published for the use of the
Navy and for the information of all concerned.
JOHN D. LONG,
_Secretary_.
THE LAWS AND USAGES OF WAR AT SEA
SECTION I
+Hostilities+
+Article 1.+ The general object of war is to procure the complete
submission of the enemy at the earliest possible period, with the least
expenditure of life and property.
The special objects of maritime war are: The capture or destruction of
the military and naval forces of the enemy; of his fortifications,
arsenals, dry docks, and dockyards; of his various military and naval
establishments, and of his maritime commerce; to prevent his procuring
war material from neutral sources; to aid and assist military operations
on land, and to protect and defend the national territory, property, and
sea-borne commerce.
+Art. 2.+ The area of maritime warfare comprises the high seas or other
waters that are under no jurisdiction, and the territorial waters of
belligerents. Neither hostilities nor any belligerent right, such as
that of visitation and search, shall be exercised in the territorial
waters of neutral States.
The territorial waters of a State extend seaward to the distance of a
marine league from the low-water mark of its coast line. They also
include, to a reasonable extent, which is in many cases determined by
usage, adjacent parts of the sea, such as bays, gulfs, and estuaries
inclosed within headlands; and where the territory by which they are
inclosed belongs to two or more States, the marine limits of such States
are usually defined by conventional lines.
+Art. 3.+ Military necessity permits measures that are indispensable for
securing the ends of the war and that are in accordance with modern laws
and usages of war.
It does not permit wanton devastation, the use of poison, or the doing
of any hostile act that would make the return of peace unnecessarily
difficult.
Noncombatants are to be spared in person and property during
hostilities, as much as the necessities of war and the conduct of such
noncombatants will permit.
The launching of projectiles and explosives from balloons, or by other
new methods of a similar nature, is prohibited for a term of five years
by the Declaration of the Hague, to which the United States became a
party. This rule does not apply when at war with a noncontracting power.
+Art. 4.+ The bombardment, by a naval force, of unfortified and
undefended towns, villages, or buildings is forbidden, except when such
bombardment is incidental to the destruction of military or naval
establishments, public depots of munitions of war, or vessels of war in
port, or unless reasonable requisitions for provisions and supplies
essential, at the time, to such naval vessel or vessels are forcibly
withheld, in which case due notice of bombardment shall be given.
The bombardment of unfortified and undefended towns and places for the
nonpayment of ransom is forbidden.
+Art. 5.+ The following rules are to be followed with regard to
submarine telegraphic cables in time of war, irrespective of their
ownership:
(_a_) Submarine telegraphic cables between points in the territory of an
enemy, or between the territory of the United States and that of an
enemy, are subject to such treatment as the necessities of war may
require.
(_b_) Submarine telegraphic cables between the territory of an enemy and
neutral territory may be interrupted within the territorial jurisdiction
of the enemy.
(_c_) Submarine telegraphic cables between two neutral territories shall
be held inviolable and free from interruption.
+Art. 6.+ If military necessity should require it, neutral vessels found
within the limits of belligerent authority may be seized and destroyed
or otherwise utilized for military purposes, but in such cases the
owners of neutral vessels must be fully recompensed. The amount of the
indemnity should, if practicable, be agreed on in advance with the owner
or master of the vessel. Due regard must be had to treaty stipulations
upon these matters.
+Art. 7.+ The use of false colors in war is forbidden, and when
summoning a vessel to lie to, or before firing a gun in action, the
national colors should be displayed by vessels of the United States.
+Art. 8.+ In the event of an enemy failing to observe the laws and
usages of war, if the offender is beyond reach, resort may be had to
reprisals, if such action should be considered a necessity; but due
regard must always be had to the duties of humanity. Reprisals should
not exceed in severity the offense committed, and must not be resorted
to when the injury complained of has been repaired.
If the offender is within the power of the United States he can be
punished, after due trial, by a properly constituted military or naval
tribunal. Such offenders are liable to the punishments specified by the
criminal law.
SECTION II
+Belligerents+
+Art. 9.+ In addition to the armed forces duly constituted for land
warfare, the following are recognized as armed forces of the State.
(1) The officers and men of the Navy, Naval Reserve, Naval Militia, and
their auxiliaries.
(2) The officers and men of all other armed vessels cruising under
lawful authority.
+Art. 10.+ In case of capture, the personnel of the armed forces or
armed vessels of the enemy, whether combatants or noncombatants, are
entitled to receive the humane treatment due to prisoners of war.
The personnel of all public unarmed vessels of the enemy, either owned
or in his service as auxiliaries, are liable, upon capture, to detention
as prisoners of war.
The personnel of merchant vessels of an enemy who, in self-defense and
in protection of the vessel placed in their charge, resist an attack,
are entitled, if captured, to the status of prisoners of war.
+Art. 11.+ The personnel of a merchant vessel of an enemy captured as a
prize can be held, at the discretion of the captor, as witnesses, or as
prisoners of war when by training or enrollment they are immediately
available for the naval service of the enemy, or they may be released
from detention or confinement. They are entitled to their personal
effects and to such individual property, not contraband of war, as is
not held as part of the vessel, its equipment, or as money, plate, or
cargo contained therein.
All passengers not in the service of the enemy, and all women and
children on board such vessels should be released and landed at a
convenient port, at the first opportunity.
Any person in the naval service of the United States who pillages or
maltreats, in any manner, any person found on board a merchant vessel
captured as a prize, shall be severely punished.
+Art. 12.+ The United States of America acknowledge and protect, in
hostile countries occupied by their forces, religion and morality; the
persons of the inhabitants, especially those of women; and the
sacredness of domestic relations. Offenses to the contrary shall be
rigorously punished.
SECTION III
+Belligerent and Neutral Vessels+
+Art. 13.+ All public vessels of the enemy are subject to capture,
except those engaged in purely charitable or scientific pursuits, in
voyages of discovery, or as hospital ships under the regulations
hereinafter mentioned.
Cartel and other vessels of the enemy, furnished with a proper
safe-conduct, are exempt from capture, unless engaged in trade or
belligerent operations.
+Art. 14.+ All merchant vessels of the enemy, except coast fishing
vessels innocently employed, are subject to capture, unless exempt by
treaty stipulations.
In case of military or other necessity, merchant vessels of an enemy may
be destroyed, or they may be retained for the service of the government.
Whenever captured vessels, arms, munitions of war, or other material are
destroyed or taken for the use of the United States before coming into
the custody of a prize court, they shall be surveyed, appraised, and
inventoried by persons as competent and impartial as can be obtained;
and the survey, appraisement, and inventory shall be sent to the prize
court where proceedings are to be held.
+Art. 15.+ Merchant vessels of the enemy that have sailed from a port
within the jurisdiction of the United States, prior to the declaration
of war, shall be allowed to proceed to their destination, unless they
are engaged in carrying contraband of war or are in the military service
of the enemy.
Merchant vessels of the enemy, in ports within the jurisdiction of the
United States at the outbreak of war, shall be allowed thirty days after
war has begun to load their cargoes and depart, and shall thereafter be
permitted to proceed to their destination, unless they are engaged in
carrying contraband of war or are in the military service of the enemy.
Merchant vessels of the enemy, which shall have sailed from any foreign
port for any port within the jurisdiction of the United States before
the declaration of war, shall be permitted to enter and discharge their
cargo and thereafter to proceed to any port not blockaded.
+Art. 16.+ Neutral vessels in the military or naval service of the
enemy, or under the control of the enemy for military or naval purposes,
are subject to capture or destruction.
+Art. 17.+ Vessels of war of the United States may take shelter during
war in a neutral port subject to the limitations that the authorities of
the port may prescribe as to the number of belligerent vessels to be
admitted into the port at any one time. This shelter, which is allowed
by comity of nations, may be availed of for the purpose of evading an
enemy, from stress of weather, or to obtain supplies or repairs that the
vessel needs to enable her to continue her voyage in safety and to reach
the nearest port of her own country.
+Art. 18.+ Such vessel or vessels must conform to the regulations
prescribed by the authorities of the neutral port with respect to the
place of anchorage, the limitation of the stay of the vessel in port,
and the time to elapse before sailing in pursuit or after the departure
of a vessel of the enemy.
No increase in the armament, military stores, or in the number of the
crew of a vessel of war of the United States shall be attempted during
the stay of such vessel in a neutral port.
+Art. 19.+ A neutral vessel carrying the goods of an enemy is, with her
cargo, exempt from capture, except when carrying contraband of war or
endeavoring to evade a blockade.
+Art. 20.+ A neutral vessel carrying hostile dispatches, when sailing as
a dispatch vessel practically in the service of the enemy, is liable to
seizure. Mail steamers under neutral flags carrying such dispatches in
the regular and customary manner, either as a part of their mail in
their mail bags, or separately as a matter of accommodation and without
special arrangement or remuneration, are not liable to seizure and
should not be detained, except upon clear grounds of suspicion of a
violation of the laws of war with respect to contraband, blockade, or
unneutral service, in which case the mail bags must be forwarded with
seals unbroken.
SECTION IV
+Hospital Ships--The Shipwrecked, Sick, and Wounded+
+Art. 21.+ Military hospital ships--that is to say, vessels constructed
or fitted out by the belligerent States for the special and sole purpose
of assisting the wounded, sick, or shipwrecked, and whose names have
been communicated to the respective Powers at the opening or in the
course of hostilities, and in any case before they are so employed,
shall be respected, and are not liable to capture during the period of
hostilities.
Such ships shall not be classed with warships, with respect to the
matter of sojourn in a neutral port.
+Art. 22.+ Hospital ships fitted out, in whole or in part, at the
expense of private individuals, or of officially recognized relief
societies, shall likewise be respected and exempt from capture, provided
the belligerent Power to whom they are subject has given them an
official commission and has notified the hostile Power of the names of
such ships at the beginning or in the course of hostilities, and in any
case before they are employed.
These ships should be furnished with a certificate, issued by the proper
authorities, setting forth that they were under the control of such
authorities during their equipment and at the time of their final
departure.
+Art. 23.+ The vessels mentioned in Articles 21 and 22 shall afford
relief and assistance to the wounded, sick, and shipwrecked of the
belligerents without distinction of nationality.
It is strictly forbidden to use these vessels for any military purpose.
These vessels must not in any way hamper the movements of the
combatants.
During and immediately after engagements they act at their own risk and
peril.
The belligerents have the right to control and visit such vessels; they
may decline their coöperation, require them to withdraw, prescribe for
them a fixed course, and place a commissioner on board; they may even
detain them, if required by military necessity.
When practicable, the belligerents shall enter upon the log of hospital
ships such orders as they may give them.
+Art. 24.+ Military hospital ships shall be distinguished by being
painted white outside, with a horizontal band of green about 1-1/2
meters wide.
The ships designated in Article 22 shall be distinguished by being
painted white outside, with a horizontal band of red about 1-1/2 meters
wide.
The boats of hospital ships, as well as small craft that may be devoted
to hospital service, shall be distinguished by being painted in the same
colors.
Hospital ships shall, in general, make themselves known by hoisting,
with their national flag, the white flag with a red cross prescribed by
the Geneva Convention.
+Art. 25.+ Merchant vessels, yachts, or neutral vessels that happen to
be in the vicinity of active maritime hostilities, may gather up the
wounded, sick, or shipwrecked of the belligerents. Such vessels, after
this service has been performed, shall report to the belligerent
commander controlling the waters thereabouts, for future directions,
and while accompanying a belligerent will be, in all cases, under his
orders; and if a neutral, be designated by the national flag of that
belligerent carried at the foremasthead, with the red cross flag flying
immediately under it.
These vessels are subject to capture for any violation of neutrality
that they may commit. Any attempt to carry off such wounded, sick, and
shipwrecked, without permission, is a violation of neutrality. They are
also subject, in general, to the provisions of Article 23.
+Art. 26.+ The religious, medical, and hospital personnel of any vessel
captured during hostilities shall be inviolable and not subject to be
made prisoners of war. They shall be permitted, upon leaving the ship,
to carry with them those articles and instruments of surgery which are
their private property.
Such personnel shall continue to exercise their functions as long as may
be necessary, whereupon they may withdraw when the commander in chief
deems it possible to do so.
The belligerents shall insure to such personnel, when falling into their
hands, the free exercise of their functions, the receipt of salaries,
and entire freedom of movement, unless a military necessity prevents.
+Art. 27.+ Sailors and soldiers, embarked when sick or wounded, shall be
protected and cared for by the captors, no matter to what nation they
may belong.
+Art. 28.+ The shipwrecked, wounded, or sick of the enemy, who are
captured, are considered prisoners of war. The captor must decide,
according to circumstances, whether it is expedient to keep them or send
them to a port of his own country, to a neutral port, or even to a port
of the enemy. In the last case, the prisoners thus returned to their
country can not serve again during the period of the war.
+Art. 29.+ The shipwrecked, wounded, or sick, who are landed at a
neutral port with the consent of the local authorities, shall, unless
there exist an agreement to the contrary between the neutral State and
the belligerent States, agree that they will not again take part in the
operations of war.
The expenses of hospital care and of internment shall be borne by the
State to which such shipwrecked, wounded, or sick belong.
SECTION V
+The Exercise of the Right of Search+
+Art. 30.+ The exercise of the right of search during war shall be
confined to properly commissioned and authorized vessels of war. Convoys
of neutral merchant vessels, under escort of vessels of war of their own
State, are exempt from the right of search, upon proper assurances,
based on thorough examination, from the commander of the convoy.
+Art. 31.+ The object of the visit or search of a vessel is:
(1) To determine its nationality.
(2) To ascertain whether contraband of war is on board.
(3) To ascertain whether a breach of blockade is intended or has been
committed.
(4) To ascertain whether the vessel is engaged in any capacity in the
service of the enemy.
The right of search must he exercised in strict conformity with treaty
provisions existing between the United States and other States and with
proper consideration for the vessel boarded.
+Art. 32.+ The following mode of procedure, subject to any special
treaty stipulations, is to be followed by the boarding vessel, whose
colors must be displayed at the time:
The vessel is brought to by firing a gun with blank charge. If this is
not sufficient to cause her to lie to, a shot is fired across the bows,
and in case of flight or resistance force can be used to compel the
vessel to surrender.
The boarding vessel should then send one of its smaller boats alongside,
with an officer in charge wearing side arms, to conduct the search.
Arms may be carried in the boat, but not upon the persons of the men.
When the officer goes on board of the vessel he may be accompanied by
not more than two men, unarmed, and he should at first examine the
vessel's papers to ascertain her nationality, the nature of the cargo,
and the ports of departure and destination. If the papers show
contraband, an offense in respect of blockade, or enemy service, the
vessel should be seized; otherwise she should be released, unless
suspicious circumstances justify a further search. If the vessel be
released, an entry in the log book to that effect should be made by the
boarding officer.
+Art. 33.+ Irrespective of the character of her cargo, or her purported
destination, a neutral vessel should be seized if she:
(1) Attempts to avoid search by escape; but this must be clearly
evident.
(2) Resists search with violence.
(3) Presents fraudulent papers.
(4) Is not supplied with the necessary papers to establish the objects
of search.
(5) Destroys, defaces, or conceals papers.
The papers generally expected to be on board of a vessel are:
(1) The register.
(2) The crew and passenger list.
(3) The log book.
(4) A bill of health.
(5) The manifest of cargo.
(6) A charter party, if the vessel is chartered.
(7) Invoices and bills of lading.
SECTION VI
+Contraband of War+
+Art. 34.+ The term "contraband of war" includes only articles having a
belligerent destination and purpose. Such articles are classed under two
general heads:
(1) Articles that are primarily and ordinarily used for military
purposes in time of war, such as arms and munitions of war, military
material, vessels of war, or instruments made for the immediate
manufacture of munitions of war.
(2) Articles that may be and are used for purposes of war or peace,
according to circumstances.
Articles of the first class, destined for ports of the enemy or places
occupied by his forces, are always contraband of war.
Articles of the second class, when actually and especially destined for
the military or naval forces of the enemy, are contraband of war.
In case of war, the articles that are conditionally and unconditionally
contraband, when not specifically mentioned in treaties previously made
and in force, will be duly announced in a public manner.
+Art. 35.+ Vessels, whether neutral or otherwise, carrying contraband of
war destined for the enemy, are liable to seizure and detention, unless
treaty stipulations otherwise provide.
+Art. 36.+ Until otherwise announced, the following articles are to be
treated as contraband of war:
_Absolutely contraband._--Ordnance; machine guns and their appliances
and the parts thereof; armor plate and whatever pertains to the
offensive and defensive armament of naval vessels; arms and instruments
of iron, steel, brass, or copper, or of any other material, such arms
and instruments being specially adapted for use in war by land or sea;
torpedoes and their appurtenances; cases for mines, of whatever
material; engineering and transport materials, such as gun carriages,
caissons, cartridge boxes, campaigning forges, canteens, pontoons;
ordnance stores; portable range finders; signal flags destined for naval
use; ammunition and explosives of all kinds and their component parts;
machinery for the manufacture of arms and munitions of war; saltpeter;
military accouterments and equipments of all sorts; horses and mules.
_Conditionally contraband._--Coal, when destined for a naval station, a
port of call, or a ship or ships of the enemy; materials for the
construction of railways or telegraphs; and money, when such materials
or money are destined for the enemy's forces; provisions, when actually
destined for the enemy's military or naval forces.
SECTION VII
+Blockade+
+Art. 37.+ Blockades, in order to be binding, must be effective; that
is, they must be maintained by a force sufficient to render hazardous
the ingress to or egress from a port.
If the blockading force be driven away by stress of weather and return
without delay to its station, the continuity of the blockade is not
thereby broken. If the blockading force leave its station voluntarily,
except for purposes of the blockade, or is driven away by the enemy, the
blockade is abandoned or broken. The abandonment or forced suspension of
a blockade requires a new notification of blockade.
+Art. 38.+ Neutral vessels of war must obtain permission to pass the
blockade, either from the government of the State whose forces are
blockading the port, or from the officer in general or local charge of
the blockade. If necessary, these vessels should establish their
identity to the satisfaction of the commander of the local blockading
force. If military operations or other reasons should so require,
permission to enter a blockaded port can be restricted or denied.
+Art. 39.+ The notification of a blockade must be made before neutral
vessels can be seized for its violation. This notification may be
general, by proclamation, and communicated to the neutral States through
diplomatic channels; or it may be local, and announced to the
authorities of the blockaded port and the neutral consular officials
thereof. A special notification may be made to individual vessels, which
is duly indorsed upon their papers as a warning. A notification to a
neutral State is a sufficient notice to the citizens or subjects of such
State. If it be established that a neutral vessel has knowledge or
notification of the blockade from any source, she is subject to seizure
upon a violation or attempted violation of the blockade.
The notification of blockade should declare, not only the limits of the
blockade, but the exact time of its commencement and the duration of
time allowed a vessel to discharge, reload cargo, and leave port.
+Art. 40.+ Vessels appearing before a blockaded port, having sailed
before notification, are entitled to special notification by a
blockading vessel. They should be boarded by an officer, who should
enter upon the ship's log or upon its papers, over his official
signature, the name of the notifying vessel, a notice of the fact and
extent of the blockade, and of the date and place of the visit. After
this notice, an attempt on the part of the vessel to violate the
blockade makes her liable to capture.
+Art. 41.+ Should it appear, from the papers of a vessel or otherwise,
that the vessel had sailed for the blockaded port after the fact of the
blockade had been communicated to the country of her port of departure,
or after it had been commonly known at that port, she is liable to
capture and detention as a prize. Due regard must be had in this matter
to any treaties stipulating otherwise.
+Art. 42.+ A neutral vessel may sail in good faith for a blockaded port,
with an alternative destination to be decided upon by information as to
the continuance of the blockade obtained at an intermediate port. In
such case, she is not allowed to continue her voyage to the blockaded
port in alleged quest of information as to the status of the blockade,
but must obtain it and decide upon her course before she arrives in
suspicious vicinity; and if the blockade has been formally established
with due notification, sufficient doubt as to the good faith of the
proceeding will subject her to capture.
+Art. 43.+ Neutral vessels found in port at the time of the
establishment of a blockade, unless otherwise specially ordered, will be
allowed thirty days from the establishment of the blockade, to load
their cargoes and depart from such port.
+Art. 44.+ The liability of a vessel purposing to evade a blockade, to
capture and condemnation, begins with her departure from the home port
and lasts until her return, unless in the meantime the blockade of the
port is raised.
+Art. 45.+ The crews of neutral vessels violating or attempting to
violate a blockade are not to be treated as prisoners of war, but any of
the officers or crew whose testimony may be desired before the prize
court should be detained as witnesses.
SECTION VIII
+The Sending in of Prizes+
+Art. 46.+ Prizes should be sent in for adjudication, unless otherwise
directed, to the nearest suitable port, within the territorial
jurisdiction of the United States, in which a prize court may take
action.
+Art. 47.+ The prize should be delivered to the court as nearly as
possible in the condition in which she was at the time of seizure, and
to this end her papers should be carefully sealed at the time of seizure
and kept in the custody of the prize master.
+Art. 48.+ All witnesses whose testimony is necessary to the
adjudication of the prize should be detained and sent in with her, and
if circumstances permit, it is preferable that the officer making the
search should act as prize master.
The laws of the United States in force concerning prizes and prize cases
must be closely followed by officers and men of the United States Navy.
+Art. 49.+ The title to property seized as prize changes only by the
decision rendered by the prize court. But if the vessel or its cargo is
needed for immediate public use, it may be converted to such use, a
careful inventory and appraisal being made by impartial persons and
certified to the prize court.
+Art. 50.+ If there are controlling reasons why vessels that are
properly captured may not be sent in for adjudication--such as
unseaworthiness, the existence of infectious disease, or the lack of a
prize crew--they may be appraised and sold, and if this can not be done,
they may be destroyed. The imminent danger of recapture would justify
destruction, if there should be no doubt that the vessel was a proper
prize. But in all such cases all of the papers and other testimony
should be sent to the prize court, in order that a decree may be duly
entered.
SECTION IX
+Armistice, Truce, and Capitulations, and Violations of Laws of War+
+Art. 51.+ A truce or capitulation may be concluded, without special
authority, by the commander of a naval force of the United States with
the commander of the forces of the enemy, to be limited, however, to
their respective commands.
A general armistice requires an agreement between the respective
belligerent governments.
+Art. 52.+ After agreeing upon or signing a capitulation the capitulator
must neither injure nor destroy the vessels, property, or stores in his
possession that he is to deliver up, unless the right to do so is
expressly reserved to him in the agreement or capitulation.
+Art. 53.+ The notice of the termination of hostilities, before being
acted upon, must be officially received by a commander of a naval force.
Except where otherwise provided, acts of war done after the receipt of
the official notice of the conclusion of a treaty of peace or of an
armistice, are null and void.
+Art. 54.+ When not in conflict with the foregoing the regulations
respecting the laws of war on land, in force with the armies of the
United States, will govern the Navy of the United States when
circumstances render them applicable.
+Art. 55.+ The foregoing regulations are issued with the approval of the
President of the United States, for the government of all persons
attached to the naval service, subject to all laws and treaties of the
United States that are now in force or may hereafter be established.
APPENDIX VII
UNITED STATES NEUTRALITY LAWS
+Sec. 5281.+ Every citizen of the United States, who within the
territory or jurisdiction thereof, accepts and exercises a commission to
serve a foreign prince, state, colony, district, or people, in war, by
land or by sea, against any prince, state, colony, district, or people,
with whom the United States are at peace, shall be deemed guilty of a
high misdemeanor, and shall be fined not more than two thousand dollars,
and imprisoned not more than three years.
+Sec. 5282.+ Every person, who, within the territory or jurisdiction of
the United States, enlists or enters himself, or hires or retains
another person to enlist or enter himself, or to go beyond the limits or
jurisdiction of the United States with intent to be enlisted or entered
in the service of any foreign prince, state, colony, district, or
people, as a soldier, or as a marine or seaman, on board of any vessel
of war, letter of marque, or privateer, shall be deemed guilty of high
misdemeanor, and shall be fined not more than one thousand dollars, and
imprisoned not more than three years.
+Sec. 5283.+ Every person, who, within the limits of the United States,
fits out and arms, or attempts to fit out and arm, or procures to be
fitted out and armed, or knowingly is concerned in the furnishing,
fitting out, or arming, of any vessel, with intent that such vessel
shall be employed in the service of any foreign prince or state, or of
any colony, district, or people, to cruise or commit hostilities against
the subjects, citizens, or property of any foreign prince or state, or
of any colony, district, or people, with whom the United States are at
peace, or who issues or delivers a commission within the territory or
jurisdiction of the United States, for any vessel, to the intent that
she may be so employed, shall be deemed guilty of a high misdemeanor,
and shall be fined not more than ten thousand dollars, and imprisoned
not more than three years. And every such vessel, her tackle, apparel,
and furniture, together with all materials, arms, ammunition, and
stores, which may have been procured for the building and equipment
thereof, shall be forfeited; one half to the use of the informer, and
the other half to the use of the United States.
+Sec. 5284.+ Every citizen of the United States who, without the limits
thereof, fits out and arms, or attempts to fit out and arm, or procures
to be fitted out and armed, or knowingly aids or is concerned in
furnishing, fitting out, or arming any private vessel of war, or
privateer, with intent that such vessel shall be employed to cruise, or
commit hostilities, upon the citizens of the United States, or their
property, or who takes the command of, or enters on board of any such
vessel, for such intent, or who purchases any interest in any such
vessel, with a view to share in the profits thereof, shall be deemed
guilty of a high misdemeanor, and fined not more than ten thousand
dollars, and imprisoned not more than ten years. And the trial for such
offense, if committed without the limits of the United States, shall be
in the district in which the offender shall be apprehended or first
brought.
+Sec. 5285.+ Every person who, within the territory or jurisdiction of
the United States, increases or augments, or procures to be increased or
augmented, or knowingly is concerned in increasing or augmenting, the
force of any ship of war, cruiser, or other armed vessel, which, at the
time of her arrival within the United States, was a ship of war or
cruiser or armed vessel, in the service of any foreign prince or state
or of any colony, district, or people, or belonging to the subjects or
citizens of any such prince or state, colony, district, or people, the
same being at war with any foreign prince or state or of any colony,
district, or people, with whom the United States are at peace, by
adding to the number of the guns of such vessel or by changing those on
board of her for guns of a larger caliber or by adding thereto any
equipment solely applicable to war, shall be deemed guilty of a high
misdemeanor, and shall be fined not more than one thousand dollars and
be imprisoned not more than one year.
+Sec. 5286.+ Every person, who, within the territory or jurisdiction of
the United States, begins or sets on foot, or provides, or prepares the
means for, any military expedition or enterprise, to be carried on from
thence against the territory or dominions of any foreign prince or
state, or of any colony, district, or people, with whom the United
States are at peace, shall be deemed guilty of a high misdemeanor and
shall be fined not exceeding three thousand dollars and imprisoned not
more than three years.
+Sec. 5287.+ The district courts shall take cognizance of all
complaints, by whomsoever instituted, in cases of captures made within
the waters of the United States or within a marine league of the coasts
or shores thereof. [18 St. 320.]
In every case in which a vessel is fitted out and armed, or attempted to
be fitted out and armed, or in which the force of any vessel of war,
cruiser, or other armed vessel is increased or augmented, or in which
any military expedition or enterprise is begun or set on foot, contrary
to the provisions and prohibitions of this Title; and in every case of
the capture of a vessel within the jurisdiction or protection of the
United States as before defined; and in every case in which any process
issuing out of any court of the United States is disobeyed or resisted
by any person having the custody of any vessel of war, cruiser, or other
armed vessel of any foreign prince or state, or of any colony, district,
or people, or of any subjects or citizens of any foreign prince or
state, or of any colony, district, or people, it shall be lawful for the
President, or such other person as he shall have empowered for that
purpose, to employ such part of the land or naval forces of the United
States or of the militia thereof, for the purpose of taking possession
of and detaining any such vessel, with her prizes, if any, in order to
the execution of the prohibitions and penalties of this Title, and to
the restoring of such prizes in the cases in which restoration shall be
adjudged; and also for the purpose of preventing the carrying on of any
such expedition or enterprise from the territories or jurisdiction of
the United States against the territories or dominions of any foreign
princes or state, or of any colony, district, or people with whom the
United States are at peace.
+Sec. 5288.+ It shall be lawful for the President or such person as he
shall empower for that purpose to employ such part of the land or naval
forces of the United States or of the militia thereof, as shall be
necessary to compel any foreign vessel to depart the United States in
all cases in which, by the laws of nations or the treaties of the United
States, she ought not to remain within the United States.
+Sec. 5289.+ The owners or consignees of every armed vessel sailing out
of the ports of the United States, belonging wholly or in part to
citizens thereof, shall, before clearing out the same, give bond not to
commit hostilities against any country with whom the United States are
at peace.
+Sec. 5290.+ Collectors of customs are to detain vessels built for
warlike purposes and about to depart the United States until the
decision of the President, or until the owner gives bond.
+Sec. 5291.+ This applies to the construction of the Title.[501]
APPENDIX VIII
PROCEDURE IN PRIZE COURT
DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA
_The United States v. Str. X_
+Prize+
LIBEL
To the Honorable A. B., Judge of said Court.
The libel of C. D., Attorney of the United States, for the Southern
District of Florida, who libels for the United States and for all
parties in interest against the steam vessel X, in a cause of prize,
alleges:--
That pursuant to instructions for that purpose from the President of the
United States, W. M. of the United States Navy, in and with the United
States Commissioned ship of war, the N., her officers and crew, did on
the 22d day of April, in the year of our Lord One thousand eight hundred
and ninety-eight, subdue, seize, and capture on the high seas, as prize
of war, the said steam vessel X, and the said vessel and her cargo have
been brought into the port and harbor of Key West, in the state of
Florida, where the same now are, within the jurisdiction of this
Honorable Court, and that the same are lawful prize of war and subject
to condemnation and forfeiture as such.
+Wherefore+ the said Attorney prays that the usual process of attachment
of Prize causes may issue against the said vessel her tackle, apparel,
furniture, and cargo, that Monition may issue citing all persons, having
or claiming to have any interest or property in said vessel and cargo
to appear and claim the same; that the nature, amount, and value may be
determined; that due and proper proofs may be taken and heard; and that
all due proceedings being had, the said vessel X, together with her
tackle, apparel, furniture, and cargo may, on the final hearing of this
cause, by the definitive sentence of this Court, be condemned,
forfeited, and sold, and the proceeds distributed according to law.
C. D.
_U. S. Attorney, So. Dist. of Florida_.
Key West, Fla. April 23d, 1898.
Let attachment and monition issue as prayed returnable on Monday the 9th
day of May, 1898.
Entered as of course.
E. F., _Clerk_,
by G. H., _Dy. Clerk_.
+Endorsed+:
Libel for Prize.--Filed Apr. 23d, 1898. E. F., _Clerk_.
CLAIMANTS' PETITION
To the Honorable A. B., Judge of the District Court of the United States
in and for the Southern District of Florida, in admiralty.
_The United States v. The S. S. X and cargo_
+Prize+
And now comes into Court, I. J., and says that he is a citizen of
Mobile, Ala., and agent in the United States for the firm of P. & P. of
London, England, and that about 400,000 feet of pine lumber, being about
one half of the cargo, is the sole and exclusive property of the said
firm of P. & P., of London, England, and of no other person or persons,
and that no person or persons whomsoever, enemies of the United States,
have any right, title, or interest whatever in and to said cargo or any
part thereof.
That the said firm consists solely of [names] who are subjects of Great
Britain, residing at London, England.
And he further denies that the said cargo is lawful prize of war as
alleged and set forth in the captor's libel exhibited and filed in this
cause.
Now therefore, the said I. J., comes into Court and claims the right to
the possession of the said portion of the said cargo for the said firm
of P. & P., and prays that upon a hearing of this cause the Court will
award to them restitution thereof free from charges for costs and
expenses, and of such other and further relief in the premises as is
right and just, and he will ever pray, etc.
I. J. _Agent for P. & P._
I. J., being duly sworn, deposes and says that he is the authorized
agent in the United States of said P. & P. of London, where all the
members of the firm are and reside; that he knows the contents of the
foregoing claim; that the matters and allegations therein contained are
true as therein set forth; and that his knowledge of said matters is
absolute and acquired by means of his agency in the United States for
the said P. & P. and by reason of his connection with the shipment of
the said cargo.
I. J.
Sworn to and subscribed before me this 2nd day of May, 1898.
[SEAL] K. L., Clerk of the United States District Court for the Southern
District of Alabama.
M. N.
_Proctor for Claimant_.
+Endorsed+:
Claim for one half Cargo.--Filed May 6th, 1898,
E. O., _Clerk_.
(Another claim for the other half was filed by another claimant.)
At a stated term of the District Court of the United States, for the
Southern District of Florida, held in the United States Court Rooms at
Key West, on the day of May, 1898.
Present:--
Honorable A. B., District Judge.
+Petition of Bailee of Owners of Vessel+
_The United States v. The Steamship X and her cargo_
And now O. P., intervening as bailee for the interest of [names] in the
said Steamship X, her engines, boilers, tackle, apparel, furniture and
equipment, appears before this Honorable Court and makes claim to the
said steamship etc., as the same are attached by the Marshal, under
process of this Court, at the instance of the United States of America,
under a libel against said steamship, her cargo etc., as a prize of war,
and the said O. P. avers that before and at the time of the alleged
capture of said steamship, her cargo etc., the above named [names],
residing in England, and [names] residing in Spain, all of whom are
Spanish subjects, were true and _bona fide_ owners of the said vessel,
her engines, boilers, tackle, apparel and furniture; that no other
person was the owner thereof, that he was in possession thereof for the
said owners, and that the vessel, if restored, will belong to the said
owners, and he denies that she was lawful prize.
Wherefore the said O. P., for and in behalf of the said owners, for whom
he is duly authorized to make this claim, prays to be admitted to defend
accordingly, and to show cause pursuant to the terms of the monition
issued herein and served upon the said steamship, and upon the master
thereof, as bailee, why the said steamship, her engines, etc., were not
liable to be treated enemy's property at the time and place, and under
the circumstances of the alleged capture, and why she should not be
condemned as lawful prize of war, but should be restored with damages
and costs.
O. P.
Sworn to before me this 18th day of May, 1898.
[SEAL] G. H., _Dy. Clerk_.
Q. R.
_Proctor for Claimant_.
+Endorsed+:
Claim to X by O. P. Q. R., _Proctor for Claimant_.--Filed May 18th,
1898. E. F., _Clerk_.
U.S. DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA
_The United States v. The Steamship X and her cargo_
+Test Affidavit+
+Southern District of Florida+, S.S.
O. P. being duly sworn, deposes and says:--
1. I am the claimant herein and have verified the claim on knowledge
derived from my position as master of the vessel about three and a half
years and from my official communications with the ship owners and their
representatives; the names and residences of the part owners I have
learned since my examination _in preparatorio_, from cables to my
counsel to the said owners.
2. The X is a Spanish merchant vessel, and since I have been in command
of her as aforesaid has traded between ports in England and Spain and
the United States and West Indies; the vessel carries no passengers or
mails, but is exclusively a cargo carrier.
3. In the ordinary course of her said business as a common carrier, the
vessel, in the month of April, 1898, loaded a full cargo of lumber, at
Ship Island, Miss., and on the 14th of April, 1898, the vessel and
cargo were cleared at the Custom House in Scranton, Miss. The cargo was
destined for Rotterdam, in the Kingdom of Holland, but the vessel was
cleared coastwise from Scranton for Norfolk, in the State of Virginia,
to which port the steamer was bound for coals. In the ordinary course of
such a voyage the foreign clearance of a vessel for Rotterdam would have
been obtained and issued from the Custom House in Norfolk.
The vessel was laden at the loading port under the agency of W. S. K. &
Co., an American firm as I am informed and believe, and conformed there
in all things to the laws and regulations of the United States and of
said port. She was detained at Ship Island by the low water on the bar
until April 19th, 1898, between 8 and 9 o'clock A.M., when she sailed
from said place and proceeded on her voyage toward Norfolk, Va., as
aforesaid.
But for her capture and detentions as heretofore set forth, she would
have reached Norfolk, and would have coaled and sailed from said port
prior to May 21st, 1898.
4. It appeared from the ship's papers delivered to the captors, and was
a fact, that her cargo was all taken on board prior to May 21st, 1898.
And as I am informed and believe, the vessel was not otherwise excluded
from the benefits and privileges of the President's Proclamation of
April 26th, 1898.
5. At all times before the ship's seizure on April 22d, 1898, I and all
my officers were ignorant that war existed between Spain and the United
States, and the vessel was bound and following the ordinary course of
her voyage.
6. While on the said voyage and in due prosecution thereof, at about 7
or 7.30 of the clock in the morning of April 22d, 1898, said steamship X
being then about eight or nine miles from Sand Key Light, was seized and
wrongfully captured by the United States ship of war N., under the
command of a line officer of the United States Navy, and by means of a
prize crew then and there placed on board, was forcibly brought into
this port of Key West. On being stopped by said United States ship of
war, N., and being informed of the existence of war, the master and
officers of the X submitted without resistance to seizure and to the
placing of a prize crew on board of said vessel, proceeding therewith,
under her own steam, into port.
7. Deponent is informed and believes that by the existing policy of the
Government of the United States, as evidenced by the repeated
declarations of its Executive, and by the Proclamation of the President
of the United States, issued and published April 26th, 1898, as well as
upon principles in harmony with the present views of nations and
sanctioned by recent practice, in accordance with which the President
has directed that the war should be conducted, the steamship X, at the
time and place, and in the circumstances under which she was seized, was
not liable to be treated as enemy's property, but on the contrary,
having sailed from a port of the United States prior to the 21st of
April, 1898, and being bound to another port of the United States, which
in the ordinary course of her voyage she would have reached and left,
with her coals, long prior to May 21st, 1898, was exempt from capture as
prize of war.
O. P.
Sworn to before me this 18th day of May, 1898.
[SEAL] G. H., _Dy. Clerk_.
+Endorsed+:
Test affidavit for X.--Filed May 16th, 1898, E. F., _Clerk_.
IN THE DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA
_United States v. Spanish Steamer X and Cargo_
+Prize. Decree+
This cause having come on to be heard upon the allegations of the libel,
the claims of the master, and testimony taken _in preparatorio_, and the
same having been fully heard and considered, and it appearing to the
Court that the said steamer X was enemy's property, and was upon the
high seas and not in any port or place of the United States upon the
outbreak of the war, and was liable to condemnation and seizure, it is
ordered that the same be condemned and forfeited to the United States as
lawful prize of war; but it appearing that the cargo of said steamer was
the property of neutrals, and not contraband or subject to condemnation
and forfeiture, it is ordered that said cargo be released and restored
to the claimants for the benefit of the true and lawful owners thereof.
It is further ordered that the Marshal proceed to advertise and sell
said vessel, and make deposit of the proceeds in accordance with law. A.
B., _Judge_.
Key West, Florida, May 27th, 1898.
+Endorsed+:
Decree.--Filed May 27th, 1898. E. F., _Clerk_.
FORM OF DECREE OF DISTRIBUTION.
DISTRICT COURT OF THE UNITED STATES, SOUTHERN DISTRICT OF FLORIDA.
_The United States_ +Prize+
v. Captured,__________ 1898.
_________________
_________________
A Final Decree of Condemnation of Vessel and Cargo having been
pronounced in this Case, and no Appeal being taken, and it Appearing to
the Court that the Gross Proceeds of the Sales are as follows,--to-wit,--
Vessel,
Cargo,
Total,
And the Costs, Expenses and Charges as taxed and allowed are as
follows,--
Marshal's Fees and Charges including all expenses of Sales, Advertising,
and Auctioneer's Commissions,
District Attorney's Fees,
Prize Commissioner's Fees and Expenses,
Clerk's Fees,
Leaving a Net Residue of ____________________($______)
And it appearing to the Court upon the Report of the Prize Commissioner,
that the U. S. S. _________________________________________________
Commanding, was the sole Capturing Vessel, and entitled to share in the
Prize, and was of Superior Force to the Captured Vessel, and it
appearing that the Marshal has paid and satisfied the Bills of Costs and
Charges as herein taxed, and allowed, it is +Ordered+ that the same be
paid to him out of the money on Deposit with the Assistant Treasurer of
the United States subject to the Court in this case, and it is +Further
Ordered+ that the said Residue of the Gross Proceeds deposited with the
Assistant Treasurer in this Case be paid into the Treasury of the United
States, for Distribution, one half to the officers and crew of said----
and one half to the United States.[502]
_____________________
_Judge of the District Court of the United States,
for the Southern District of Florida._
APPENDIX IX
DIGEST OF IMPORTANT CASES ARRANGED UNDER TITLES
15. +Precedent and Decisions+
_Bolton_ v. _Gladstone_, 5 East, 155
In an action on a policy of insurance in 1804 on a Danish ship and cargo
warranted neutral and captured by a French ship of war (Denmark being at
peace with France), it appeared that the court in which the Danish ship
was libelled declared her good and lawful prize. Held by Ellenborough C.
J., "that all sentences of foreign courts of competent jurisdiction to
decide questions of prize" were to be received "as conclusive evidence
in actions upon policies of assurance, upon every subject immediately
and properly within the jurisdiction of such foreign courts, and upon
which they have professed to decide judicially."
_United States_ v. _Rauscher_, 119 U. S. 407
The defendant was extradited from England on the charge of murder
committed on an American vessel on the high seas. He was indicted in the
United States Circuit Court, not for murder, but for a minor offense not
included in the treaty of extradition. It was held that he could not be
tried for any other offense than murder until he had had an opportunity
to return to the country from which he was taken for the purpose alone
of trial for the offense specified in the demand for his surrender.
21. +Recognition of New States+
_Harcourt_ v. _Gaillard_, 12 Wheat. 523
This case is fully stated in the text, p. 42.
_Williams_ v. _The Suffolk Insurance Company_, 13 Pet. 415
This case held that when the executive branch of the government, which
is charged with the foreign relations of the United States shall, in its
correspondence with a foreign nation, assume a fact in regard to the
sovereignty of any island or country, it is conclusive on the judicial
department.
_State of Mississippi_ v. _Johnson_, 4 Wall. 475, 501
This case held that "a bill praying an injunction against the execution
of an act of Congress by the incumbent of the presidential office cannot
be received, whether it describes him as President or as a citizen of a
state."
_Jones_ v. _United States_, 137 U.S. 202
This case held that the determination of the President, under U.S. Rev.
Sts., § 5570, that a guano island shall be considered as appertaining to
the United States, may be declared through the Department of State,
whose acts in this regard are in legal contemplation the acts of the
President.
55. +Vessels+
_Wildenhus's Case_, 120 U.S. 1
This case held that the Circuit Court of the United States has
jurisdiction to issue a writ of _habeas corpus_ to determine whether one
of the crew of a foreign vessel in a port of the United States, who is
in the custody of the state authorities, charged with the commission of
a crime, within the port, against the laws of the state, is exempt from
local jurisdiction under the provisions of a treaty between the United
States and the foreign nation to which the vessel belongs. The
Convention of March 9, 1880, between Belgium and the United States was
considered.
64. +Extradition+
_In the Matter of Metzger_, 5 How. 176, 188
This case held that the Treaty with France of 1843 provides for the
mutual surrender of fugitives from justice and that where a district
judge decided that there was sufficient cause for the surrender of a
person claimed by the French Government, and committed him to custody to
await the order of the President of the United States, the Supreme Court
had no jurisdiction to issue a _habeas corpus_ for the purpose of
reviewing that decision.
101. +Non-Combatants+
_Alcinous_ v. _Nigreu_, 4 Ellis and Blackburn, 217
This was an action for work and labor brought by a Russian against an
Englishman during the Crimean war. Lord Campbell said: "The contract
having been entered into before the commencement of hostilities is
valid; and, when peace is restored, the plaintiff may enforce it in our
Courts. But, by the law of England, so long as hostilities prevail he
cannot sue here."
104. +Personal Property of Enemy Subjects+
_Brown_ v. _United States_, 8 Cr. 110
It was held that British property within the territory of the United
States at the beginning of hostilities with Great Britain could not be
condemned without a legislative act, and that the act of Congress
declaring war was not such an act. The property in question was the
cargo of an American ship and was seized as enemy's property in 1813,
nearly a year after it had been discharged from the ship.
110. +Privateers+
_United States_ v. _Baker_, 5 Blatchford, 6
This was an indictment in 1861 against Baker, the master of a private
armed schooner, and a part of the officers and crew for piracy. They
claimed to have acted under a commission from Jefferson Davis, President
of the Confederate States of America. Nelson J. charged the jury at
length; but they failed to agree on a verdict.
112. +Capture and Ransom+
_The Grotius_, 9 Cr. 368
The question in this case, which was heard in 1815, was whether the
capture was valid. The master, the mate, and two of the seamen swore
that they did not consider the ship to have been seized as prize, and
that the young man who was put on board by the captain of the privateer
was received and considered as a passenger during the residue of the
voyage. It was held that the validity of the capture of the vessel as a
prize of war was sufficiently established by the evidence.
113. +Postliminium+
_The Two Friends_, 1 C. Rob. 271
An American ship was taken by the French in 1799 when the relations
between France and America were strained. She was recaptured by the
crew, some of whom were British seamen. They were awarded salvage.
_The Santa Cruz_, 1 C. Rob. 49
A Portuguese vessel was taken by the French in 1796 and retaken by
English cruisers a few days later. It was held that the law of England,
on recapture of property of allies, is the law of reciprocity; it adopts
the rule of the country to which the claimant belongs.
115. +Non-hostile Relations of Belligerents+
_The Venus_, 4 C. Rob. 355
A British vessel went to Marseilles, under cartel, for the exchange of
prisoners, and there took on board a cargo and was stranded and captured
on a voyage to Port Mahon. Held that the penalty was confiscation.
_The Sea Lion_, 5 Wall. 630
This case held that a license from a "Special Agent of the Treasury
Department and Acting Collector of Customs" in 1863 to bring cotton
"from beyond the United States military lines" had no warrant from the
Treasury Regulations prescribed by the President conformably to the act
of 13th July, 1861.
119. +Termination of War by Treaty of Peace+
_The Schooner Sophie_, 6 C. Rob. 138
A British ship, having been captured by the French, was condemned in
1799 by a French Consular Court in Norway. Other proceedings were
afterwards had, on former evidence in the case, in the regular Court of
Prize in Paris and the sentence of the Consular Court was affirmed. Sir
William Scott said, "I am of opinion, therefore, that the intervention
of peace has put a total end to the claim of the British proprietor, and
that it is no longer competent to him to look back to the enemy's title,
either in his own possession, or in the hands of neutral purchasers."
126. +Neutral Territorial Jurisdiction+
_The Caroline_
_People v. McLeod_, 25 Wendell, 483
During the Canadian rebellion of 1837-1838, a force was sent in the
night by the British commander to capture the steamer _Caroline_, owned
by an American. The steamer was engaged in transporting war material and
men to Navy Island, in the Niagara River, through which runs the line
separating the British from the American possessions. The vessel not
being in her usual place in Canadian waters, the force went into
American jurisdiction and seized and destroyed her. One Durfee, an
American, was killed. To the American assertion that the proceeding was
an outrage, the British Government replied that the insurgents had used
American ground as the starting-point of their expeditions and as their
base of supplies. The controversy was renewed by the arrest, in 1841, in
the state of New York, of one McLeod, and his indictment for the murder
of Durfee. Great Britain demanded the release of McLeod, stating that
as he was an agent of the British Government engaged at the time in a
public duty, he could not be held amenable to the laws of any foreign
jurisdiction. Mr. Webster, then Secretary of State, admitted the
correctness of the British contention, but seemed powerless to obtain
the release of McLeod, on account of the inherent weakness of the
Federal system.[503] The Supreme Court of the state of New York held in
_People_ v. _McLeod_, that McLeod could be proceeded against
individually on an indictment for arson and murder, though his acts had
been subsequently averred by the British Government. This view was
generally condemned by jurists;[504] but the difficulty soon ended by
the acquittal of McLeod. The British Government's contention was that
the seizure of the _Caroline_ was excusable on the ground stated by Mr.
Webster himself as "a necessity of self-defense, instant, overwhelming,
leaving no choice of means and no moment for deliberation."
_The Twee Gebroeders_, 3 C. Rob. 162
This case holds that a ship within three miles of neutral territory can
not send boats beyond the line of division for the purpose of capturing
enemy vessels.
129. +Positive Obligations of a Neutral State+
_The Alabama Cases_
Up to the period of the American civil war the opinion obtained among
many that a vessel of war might be sent to sea from a neutral port with
the sole liability to capture as legitimate contraband, with the
exception that, if she was ready to go in condition for immediate
warlike use, it was the duty of the neutral to prevent her departure. In
1863 during the American civil war this view was practically taken by
the British court in the case of the _Alexandra_;[505] but the vessel
after her release was taken on a new complaint at Nassau and held until
after the end of the war. Lawrence says that the attitude of the British
Government in regard to this vessel, its purchase in 1863 of two
iron-clad rams of the Messrs. Laird for the navy, the construction,
destination, and intended departure of which occasioned the now famous
correspondence between Lord Russell and Mr. Adams, the detention of the
_Pampero_, which was seized in the Clyde, until the end of the American
civil war, and the preventing the sale of "Anglo-Chinese gunboats
against the advice of its own law officers," indicated that that
government "had uneasy doubts as to the validity of the doctrine laid
down in their law-courts and maintained in their dispatches."[506] This
doctrine would admit of a ship of war going to sea from a neutral port
without arms, which she might receive on the high seas from another
vessel which had sailed from the same port. For example, the _Alabama_
left Liverpool in 1862 ready for warlike use, but without warlike
equipment. This and her crew were received on the high seas from other
vessels which had cleared from Liverpool; and her career as a
Confederate cruiser then began. The cases of the _Florida_, the
_Georgia_, and the _Shenandoah_ were almost identical. The spoliations
committed by these vessels led to the _Alabama_ claims, the British
maintaining that the American contention that it was the duty of a
neutral to prevent the departure of all vessels that could reasonably be
expected as about to be used for warlike purposes was unsound.[507]
The _Alabama_ case and kindred cases have produced much speculation as
to the establishment of a true and correct rule. After the enactment of
the American neutrality statutes in 1818, there were numerous decisions
of the United States courts to the effect that the intent was to govern,
that is, if the purpose was to send articles of contraband, with the
risk of capture, to a belligerent's country for sale, the neutral
government had nothing to say, but if the purpose was to send out a
vessel to prey on the commerce of a friendly power, then the neutral
government should prevent her departure. It must be admitted that the
rule is hardly satisfactory.[508]
Hall contends that the true test should be "the character of the ship
itself." If built for warlike use, the vessel should be detained; if for
commercial purposes, she should be allowed to depart. This rule has at
least one element of fairness and sense. It is not always possible to
get at intent, but the character of the vessel is likely to reward
observation and scrutiny.[509]
Regret has been expressed by many writers that the award of the
arbitrators appointed under the Treaty of Washington of 1871, upon the
_Alabama_ claims, has proved of so little value as a precedent upon the
liability of a neutral power for the departure from its ports of vessels
fitted out and equipped for the destruction of belligerent commerce.
Article VI. of the Treaty provided that the Arbitrators should be
"governed by the following three rules, which are agreed upon by the
high contracting parties as rules to be taken as applicable to the case,
and by such principles of international law not inconsistent therewith
as the Arbitrators shall determine to have been applicable to the case.
"A neutral Government is bound--
"First to use due diligence to prevent the fitting out, arming, or
equipping, within its jurisdiction, of any vessel which it has
reasonable ground to believe is intended to cruise or to carry on war
against a Power with which it is at peace; and also to use like
diligence to prevent the departure from its jurisdiction of any vessel
intended to cruise or carry on war as above, such vessel having been
specially adapted, in whole or in part, within such jurisdiction, to
warlike use.
"Secondly, not to permit or suffer either belligerent to make use of its
ports or waters as the base of naval operations against the other, or
for the purpose of the renewal or augmentation of military supplies or
arms, or the recruitment of men.
"Thirdly, to exercise due diligence in its own ports and waters, and, as
to all persons within its jurisdiction, to prevent any violation of the
foregoing obligations and duties."
The British government declared that it "cannot assent to the foregoing
rules as a statement of principles of international law which were in
force at the time when the claims mentioned" arose but "in order to
evince its desire of strengthening the friendly relations between the
two countries and of making satisfactory provision for the future,
agrees that in deciding the questions between the two countries arising
out of those claims, the Arbitrators should assume that her Majesty's
government had undertaken to act upon the principles set forth in these
rules.
"And the high contracting parties agree to observe these rules as
between themselves in the future, and to bring them to the knowledge of
other maritime Powers, and to invite them to accede to them."[510]
The phrases "due diligence" and "base of naval operations" gave rise to
a difference of opinion, as also the last part of paragraph "First"
relative to preventing the departure of vessels intended to carry on war
and adapted for warlike use.
The contentions and the decision relative to the last point were as
follows:
1. +The British Contention+
This was that the only duty of Great Britain applied to the departure of
the vessel originally, and that, if she escaped, and afterwards as a
duly commissioned war-ship entered a British port, there was no
obligation to detain her.[511] The case of the _Schooner Exchange_ v.
_M'Faddon_[512] was cited, in which a libel was filed in 1811 against
that vessel, then in American waters, as an American vessel unlawfully
in the custody of a Frenchman, the libellants contending that in
December 1810, while pursuing her voyage she had been forcibly taken by
a French vessel at sea. The Attorney General suggested that she was a
public armed vessel of France, visiting our waters as a matter of
necessity. Chief Justice Marshall decided that as a public vessel of war
coming into our ports and demeaning herself in a friendly manner she was
exempt from the jurisdiction of the country.
2. +The American Contention+
This was that if a Confederate cruiser, which had originally escaped,
afterwards came into a British port, her commission was no protection,
as it was given by a government whose belligerency only, not
sovereignty, had been acknowledged.[513]
3. +The Award of the Tribunal+
This award exceeded the claim of the United States in deciding that "the
effects of a violation of neutrality committed by means of the
construction, equipment and armament of a vessel are not done away with
by any commission which the Government of the belligerent power,
benefited by the violation of neutrality, may afterwards have granted to
that vessel; and the ultimate step, by which the offense is completed,
cannot be admissible as a ground for the absolution of the offender, nor
can the consummation of his fraud become the means of establishing his
innocence," that "the privilege of extra-territoriality accorded to
vessels of war has been admitted into the law of nations, not as an
absolute right, but solely as a proceeding founded on the principles of
courtesy and mutual deference between different nations, and therefore
can never be appealed to for the protection of acts done in violation of
neutrality," and that "the absence of a previous notice can not be
regarded as a failure in any consideration required by the law of
nations, in those cases in which a vessel carries with it its own
condemnation."[514]
That the decision of the Tribunal has not become a precedent is quite
generally conceded. Lawrence asserts that the award seems "to have been
dictated more by a regard for equitable considerations than by reference
to principles hitherto accepted among nations;" that other nations have
refused to accede to the "three rules" and "that it has been doubted
whether they bind the two powers which originally contracted to observe
them."[515]
It is to be observed, however, that at the present time a cruiser is of
such peculiar construction and depends for her efficiency on such a
large outlay of money that an honest neutral is likely to have abundant
proof of her character and hence the best reasons for detaining her.
131. +Contraband+
_The Peterhoff_, 5 Wall. 28, 62
The _Peterhoff_, a British steamer, bound from London to Matamoras in
Mexico, was seized in 1863 by a United States vessel. It was held that
the mouth of the Rio Grande was not included in the blockade of the
ports of the Confederate states; that neutral commerce with Matamoras,
a neutral town on the Mexican side of the river, except in contraband
destined to the enemy, was entirely free; and that trade between London
and Matamoras, even with intent to supply, from Matamoras, goods to
Texas, then an enemy of the United States, was not unlawful on the
ground of such violation. Questions of contraband were also considered,
and Chief Justice Chase concluded, "Considering ... the almost certain
destination of the ship to a neutral port, with a cargo, for the most
part, neutral in character and destination, we shall not extend the
effect of this conduct of the captain to condemnation, but we shall
decree payment of costs and expenses by the ship as a condition of
restitution."
_The Commercen_, 1 Wheat. 382
In 1814, during the war between the United States and Great Britain, a
Swedish vessel bound from Limerick, Ireland, to Bilboa, Spain, with
cargo of barley and oats, the property of British subjects, was seized
and brought into an American port. The cargo was shipped for the sole
use of the British forces in Spain. The cargo was condemned.
132. +Penalty for Carrying Contraband+
_The Jonge Tobias_, 1 C. Rob. 329
This was a case of a ship taken on a voyage from Bremen to Rochelle,
laden with tar. The ship was claimed by one Schraeder and others.
Schraeder, who was owner of the cargo, withheld his claim, knowing it
would affect the ship. The cargo and his share of the vessel were
condemned in 1799, and an attestation was required of the other part
owners of the vessel that they had no knowledge of the contraband goods.
_The Magnus_, 1 C. Rob. 31
A ship laden with coffee and sugars was taken on a voyage from Havre to
Genoa. The claimant of the cargo was a Swiss merchant. Held, that while
interior countries are allowed to export and import through an enemy's
ports, strict proof of property is required. The cargo was condemned.
133. +Unneutral Service+
_The Kow-Shing Affair_, Takahashi, 24-51
On July 25, 1894, a Japanese war-ship stopped the _Kow-Shing_, a British
transport engaged in carrying Chinese troops. After fruitless parleying,
the _Kow-Shing_ refusing to surrender as her British captain was
overawed by the Chinese he was carrying, the _Kow-Shing_ was sunk by the
Japanese war ship. The affair produced great excitement in England, and
there was a demand of satisfaction from Japan on the ground that war had
not been declared between that country and China. The facts appearing
that a declaration of war is not necessary, and that the British captain
of the transport was under compulsion, the affair was referred to Mr.
Choate, the American Ambassador to Great Britain, as referee.
_The Friendship_, 6 C. Rob. 420, 429
This was the case of an American ship bound on a voyage from Baltimore
to Bordeaux, with a light cargo and ninety French mariners as
passengers, shipped by direction of the French minister in America. In
condemning the ship and cargo in 1807, Sir William Scott said, "It is
the case of a vessel letting herself out in a distinct manner, under a
contract with the enemy's government, to convey a number of persons,
described as being in the service of the enemy, with their military
character traveling with them, and to restore them to their own country
in that character."
_The Orozembo_, 6 C. Rob. 430
An American vessel, having been ostensibly chartered by a merchant at
Lisbon "to proceed in ballast to Macao, and there to take a cargo to
America," was afterwards, by his directions, fitted up for three
military officers and two persons in civil departments in the government
of Batavia, who had come from Holland to take their passage to Batavia,
under the appointment of the Government of Holland. The vessel was
condemned in 1807 as a transport, let out in the service of the
government of Holland.
_The Atalanta_, 6 C. Rob. 440
A Bremen ship and cargo were captured on a voyage from Batavia to
Bremen, in July, 1807, having come last from the Isle of France, where a
packet, containing dispatches from the government of the Isle of France
to the Minister of Marine at Paris, was taken on board by the master and
one of the supercargoes, and was afterwards found concealed in the
possession of the second supercargo. Both ship and cargo were condemned.
137. +Violation of Blockade+
_The Juffrow Maria Schroeder_, 3 C. Rob. 147
"Where a ship has contracted the guilt by sailing with an intention of
entering a blockaded port, or by sailing out, the offense is not purged
away till the end of the voyage; till that period is completed, it is
competent to any cruisers to seize and proceed against her for that
offense." In this case the plea of remissness in the blockading force in
permitting vessels to go in or out, was held to avail, and the ship,
which was a Prussian one taken on a voyage from Rouen to Altona and
proceeded against for a breach of the blockade of Havre, was restored.
138. +Continuous Voyages+
_The Hart_, 3 Wall. 559, 560
"Neutrals who place their vessels under belligerent control and engage
them in belligerent trade; or permit them to be sent with contraband
cargoes under cover of false destination to neutral ports, while the
real destination is to belligerent ports, impress upon them the
character of the belligerent in whose service they are employed, and
cannot complain if they are seized and condemned as enemy property." See
the preceding case, _The Bermuda_, 3 Wall. 514.
_The Maria_, 5 C. Rob. 365
This was a case of a continuous voyage in the colonial trade of the
enemy. The Court reviewed former cases and asked for further proof on
the facts. On such further proof the court decreed restitution. See _The
William_, 5 C. Rob. 385.
139. +Prize and Prize Courts+
_The Ship La Manche_, 2 Sprague, 207
This case held that captors are not liable for damages where the vessel
captured presents probable cause for the capture, even though she was
led into the predicament, involuntarily, and by the mistakes of the
revenue officers of the captor's own government.
INDEX
Abrogation of treaties, 234.
Absolutely contraband, what articles are, 304.
Accretion, acquisition of territory by, 102.
Acquisition of territorial jurisdiction, 98.
Admiralty law, a basis of international law, 10.
Africa, partition of, 92, 103, 104.
_See_ Spheres of Influence.
Agreements. _See_ Treaties.
Aids to the memory, what they are, 171
Aix-la-Chapelle, treaty of, 21, 155, 167, 206.
Alabama case. _See_ Geneva Arbitration.
Alaska, sale of, to the United States, 101;
territorial waters of, 116.
Aliens, rights of, as to naturalization, 125, 126;
jurisdiction over, 130-133.
_Alternat_, use of, in signing treaties, 89, 169.
Amalfitan tables. _See_ Sea Laws.
Ambassadors, sending of, 13;
jurisdiction of Supreme Court as to, 31;
immunities of vessels carrying, 119;
office of, in early days, 153, 154;
rules as to, 154-159;
suite of, 160;
who may send, 160;
who may be sent as, 161, 162;
credentials, etc., of, 162 _et seq._;
ceremonial as to, 165-170;
functions of, 170-172;
termination of mission of, 172-175;
immunities and privileges of, 175-182.
Amnesty, treaty of peace as to, 273.
Angary, 307 _n._
Appeal from prize courts, 30, 325.
Arbitration as a means of settling disputes, 219.
_See_ Geneva Arbitration, Venezuela.
Armed neutralities of 1780 and 1800, 22, 278, 300, 315.
Armies, instructions for United States, 331-367.
Armistices. _See_ Flags of Truce.
Army, within the jurisdiction of another state, 137, 138.
Assassination, when forbidden, 253.
Asylum. _See_ Right of Asylum.
Austria, one of the Great Powers, 90;
attitude of, at the Congress of Troppau, 90;
relations of, to the Triple Alliance, 92;
convention of, as to the Suez Canal, 111;
jurisdiction of, over foreign-born subjects, 123.
Balance of power in Europe, 75, 76;
intervention to preserve, 83.
Balloons, launching of projectiles, etc., from, 253.
Base of operations, neutral territory as, 288.
Bays, as affecting jurisdiction, 108;
as affecting neutrality, 287.
Belgium, recognition of, 44, 47;
neutralization of, 52, 92, 211, 212, 278;
attitude of Great Powers as to, 92;
jurisdiction of, as to foreign-born subjects, 124;
marriage, 125.
Belligerency, recognition of, 59-63.
Belligerents, non-hostile relations of, 264-269;
carriage of, 309.
Bering Sea, controversy as to, 113, 116, 117.
Berlin Conference, attitude of, as to spheres of influence, 103;
Berlin Decree of Napoleon, 315.
Berlin, treaty of, 206.
Bessarabia, cession of a portion of, 100.
Blockade, in case of United States of Colombia, 58;
Pacific, 223-225;
visit and search in case of, 311;
history of, 314, 315;
conditions of existence of, 315, 316;
a war measure, 316;
declaration of, 316;
notification of, 316;
must be effective, 317, 318;
cessation of, 318, 319;
violation of, 319, 320;
continuous voyages in case of, 320-324.
Bombardment, 253.
Booty, 244.
Brazil, belligerency in case of, 58;
neutrality of, 293.
Briefs of the conversation, 171.
British Guiana, boundary line of, 78.
British Orders in Council of 1807, 222.
British South Africa Company, history of, 55.
Brussels conference, language used in, 206; provisions of, 384-394.
Canada, fisheries of, 114-116.
Canals, Suez, 110-112;
Panama, 112;
Nicaraguan, 112;
Kiel, 112;
neutralization of, 279, 280.
Canning, George, on the neutrality of the United States, 282.
Canon law, 9, 15.
Capitulation, what it is, 269;
in excess of authority, 269.
Capture of hostile private property, 247, 257-259;
goods as determined by ownership, 299.
Cartel ship, exemption of, from capture, 245, 246;
defined, 265.
Cartels, what they are, 201, 263, 265.
Ceremonials, inequalities in, 89;
maritime, 89.
Cessation of hostilities, 267, 271.
Cession, as a means of acquiring territory, 100;
of jurisdiction, 101.
Chargés d'Affaires, rules as to, 156 _et seq._
Charitable institutions, 240.
Chile, belligerency in case of, 58;
right of asylum in, 181.
China, international law as applied to, 5, 64;
jurisdiction of, over aliens, 131, 132;
termination of treaty of, with Japan, 215;
treaty of peace of, with Japan, 272.
Churches. _See_ Religion.
Citizenship, as affected by naturalization, 125-130.
Civil law. _See_ Roman Law.
Civil war, intervention in case of, 85;
when it begins, 230, 231.
Classification of treaties, 210-212.
Clayton-Bulwer Treaty, as laying down new rules, 32;
as to the Panama or Nicaraguan Canal, 112.
Cleveland, President, attitude of, as to United States of Colombia, 58;
neutrality proclamation of, 284 _n._
Coal, when not to be supplied to belligerents, 291;
as contraband of war, 305;
auxiliary ships carrying, 310.
Combatants, who are, 235-237.
Commencement of war, 229-231.
Common law, a basis of international law, 10.
Condemnation for carrying contraband, 306.
Conditionally contraband, what articles are, 305.
Conference of London of 1871, 32.
Conferences and congresses as a means of settling disputes, 218.
Confiscation of property in war, 241, 242.
Congo Free State, recognition of, 44;
neutralization of, 52.
Conquest, acquisition of title by, 99;
termination of war by, 270, 271.
Consolato del Mare. _See_ Sea Laws.
Constitution of the United States as to ambassadors, etc., 31, 183, 184;
citizens of the United States, 123;
naturalization, 125;
criminal prosecutions, 179;
treaties, 207.
Consulates, development of, 18.
Consuls, jurisdiction of Supreme Court as to, 31;
exemptions of, 137;
courts of, 140, 141;
historically considered, 186;
rank of, 188;
nomination of, 189;
functions of, 190;
powers of, in Eastern and non-Christian states, 193, 194;
privileges and immunities of, 194-196;
vacating the office of, 196, 197.
Continuous voyages, rule as to, 320-324.
Contraband of war, capture of, 247, 297;
what is, 303-306;
penalty for carrying, 306, 307;
difference between, and unneutral service, 308-310;
visit and search for, 310-313;
rule of, in case of, 313, 314;
relations of, to blockade, 314-319;
violation of blockade, 319, 320;
continuous voyages, 320-324;
prize and prize courts, 324-328;
visit and search for, 311.
Contributions, what they are, 242, 243.
Convention, difference between, and treaty, 199. _See_ Treaties.
Convoy, vessels under, 313, 314.
Corporations, status of, 54.
Correspondence, diplomatic and consular, 309.
Courts of admiralty, 30;
prize, 30, 324-328;
arbitration, 31;
domestic matters, 31.
Crete, Pacific blockade of, 223, 224.
Crew of merchant vessels, status of, 236.
Crimes, jurisdiction of consular courts as to, 139-141;
extradition for, 142-146.
Crusades, influence of, 16, 19.
Cuba, intervention in case of, 85.
Custom, practice and usage, 29, 30.
Customs of Amsterdam. _See_ Sea Laws.
Death of diplomatic agent, proceedings in case of, 172.
Debts, law as to, in time of war, 274.
Deceit involving perfidy, 252, 253.
Declaration of Paris, agreed to by the United States, 33;
provisions of, 247, 255, 302, 303, 315, 317;
form of, 247, 398.
Declaration of war, 231, 232;
blockade, 316.
Declarations, defined, 200, 212.
Definition of international law, 3;
a state, 39, 40;
of neutralized states, 51;
of corporations, 54;
insurgents, 56;
belligerents, 59;
jurisdiction, 96;
territorial domain, etc., 97;
prescription, 101;
nationality, 121;
diplomacy, 151;
treaties, 198;
non-hostile redress, 220;
retorsion, 220;
reprisals, 221;
embargo, 221;
Pacific blockade, 223;
war, 229;
contributions, 243;
requisitions, 243;
booty, 244;
belligerent occupation, 251;
prisoners of war, 262;
cartel, 265;
cartel ship, 265;
license to trade, 266;
capitulation, 269;
neutrality, 277;
neutralization, 278;
contraband of war, 303;
unneutral service, 308;
convoy, 313;
blockade, 314;
prize, 324.
Denmark, intervention in affairs of, 80;
jurisdiction of, over Danish Sound and Two Belts, 109.
Denunciation of treaties, 216.
Devastation forbidden in war, 254.
Diplomatic agents, exemptions of, 137;
laws as to, 152-197.
Diplomatic negotiation as a means of settling disputes, 218.
Diplomatic papers. _See_ State Papers.
Diplomatic relations, breaking off of, 173, 174.
Discovery of America, 18;
a method of acquiring territory, 98.
Dispatches, carriage of, 308.
Disputes, amicable settlement of, 217-225.
Domicile, papers proving, 128.
Draft of treaties, 203.
"Due diligence," in the Alabama case, 297.
Eastern and non-Christian states, powers of consuls in, 193-196.
East India Company, powers of, 54, 55.
Educational institutions, exemption of, 239, 240.
Egypt, relations of, to Great Powers, 92;
mixed courts of, 141.
Embargo, defined, 221, 222.
"Enemy's Ships, enemy's goods," doctrine of, 22, 300.
Enemy subjects, status of, 238.
English orders in council of 1806 and 1807, 315.
Enlistment of troops for belligerent service, 295.
Envoys. _See_ Ambassadors, Diplomatic Agents.
Equality of states, 68, 88-93.
Equity, a basis of international law, 10.
Estuaries, as affecting jurisdiction, 108.
Exchange, as a means of acquiring territory, 100;
of prisoners of war, 263, 265.
Exequatur, form of, 190;
what it relates to, 190, 191, 194, 195.
Exploration, exemption of vessels engaged in, 245, 246.
Exterritoriality, what it is, 134 _et seq._, 177.
Extradition, law as to, 141-146.
False colors, use of, 252.
"Favored nation." _See_ Most Favored Nation.
Feudalism, influence of, 16, 19.
Financial transactions, intervention on the ground of, 86, 87.
Fisheries, on the high seas, 114;
Canadian, 114-116;
Bering Sea, 116.
Fishing vessels, exemption of, from capture, 246.
Flags of truce, use of, 253, 264, 265, 267-269, 272.
Foraging, when may be resorted to, 243.
Forbidden methods in war, 252-254.
Foreign-born subjects, jurisdiction over, 122.
Foreign Enlistment Act of Great Britain, 283.
France, recognition of republic of, 45-47;
relation of, to balance of power, 83;
one of the Great Powers, 90;
friendship of, with Russia, 93;
sale of territory to, by Monaco, 101;
by Sweden, 101;
partition of Africa by, 103;
jurisdiction of, over certain gulfs, 108;
treaty of, with England as to enclosed waters, 108;
convention of, as to the Suez Canal, 111;
jurisdiction over foreign merchantmen within her ports, 120, 121;
as to foreign-born subjects, 122-124;
marriage, 125;
naturalization, 127;
sale of forests of, by Prussians, 261;
termination of wars of, 271;
relations of, to neutrality and neutralization, 278, 279;
citizens of, on expedition during Franco-German War, 289;
views of, as to horses as contraband, 305.
"Free ships, free goods," doctrine of, 247, 278, 300-303.
Gallatin, Minister, liability of servant of, to local jurisdiction, 180.
Garfield, President, testimony of foreign minister at trial of
assassin of, 179.
Genêt, M., action of, as to privateers
in the United States, 282;
consular prize courts of, 325.
Geneva Arbitration, treaty as to, 204;
the Alabama case at the, 297.
Geneva Convention, as laying down new rules, 32;
sick and wounded under, 264, 280;
provisions of, 395-399.
Germany, recognition of, 44;
one of the Great Powers, 90;
a party to the Triple Alliance, 92;
partition of Africa by, 103;
convention of, as to the Suez Canal, 111;
jurisdiction of, over foreign-born subjects, 123, 124;
citizens of, in China, 131;
volunteer navy of, 255;
sale of French forests by, 261;
application of, to transport wounded across Belgium, 287;
law of, as to prize money, 327.
Gift, as a means of acquiring territory, 100.
Good offices, settlement of disputes by resorting to, 218.
Government of armies of United States, 331-365.
Grant, President, recognition of France by, 45;
proclamation of, as to belligerent vessels leaving United States
ports, 291, 292.
Great Britain, diplomatic papers of, 34;
protectorates of, 52, 53;
power of, over various companies, 54, 55;
recognition of belligerency by, 60;
relations of, to treaty of Utrecht, 76;
difference of, with Venezuela, 78;
intervention of, in affairs of Denmark, 80;
relation of, to balance of power, 83;
one of the Great Powers, 90;
attitude of, at the congress of Troppau, 90;
Verona, 91;
cession of Horse-shoe Reef by, to United States, 100;
sale of territory to, by Netherlands, 101;
partition of Africa by, 103;
treaty of, with France as to enclosed waters, 108;
convention of, as to the Suez Canal, 111;
attitude of, as to the three-mile limit, 112-114;
treaties of, as to Canadian fisheries, 114-116;
Bering Sea, 116, 117;
territorial waters jurisdiction act of, 120;
jurisdiction of, over foreign-born subjects, 123;
attitude of, as to naturalization, 127;
jurisdiction of, over aliens, 131;
immunities of diplomatic agents of, 180 _et seq._;
protectorate of, over Ionian Islands, 214;
war of, with the Transvaal, 230;
volunteer navy of, 256;
guaranty of, as to Suez Canal, 280;
neutrality laws of, 283;
attitude of, as to, Terceira affair, 288;
Alabama case, 297;
contraband, 307;
convoy, 313;
blockade, 319, 320;
continuous voyages, 320-324;
law of, as to prize money, 327.
Great Powers, enumeration of, 90;
policy of, 90-93.
Greece, in early international law, 13;
recognition of, 44;
intervention in affairs of, 84, 211;
attitude of Great Powers as to, 91, 92, 279;
recall of citizens by, 130;
pacific blockade of, 223;
volunteer navy of, 256.
Guaranty, treaties of, 211;
as to canals, 279, 280.
Guerrilla troops, status of, 236.
Guidon de la Mar. _See_ Sea Laws.
Gulfs, as affecting jurisdiction, 108.
Hanseatic League, treaty of, as to tolls, 109. _See_ Sea Laws.
Harbors, neutrality of, 287.
"Hinterland Doctrine," explained, 99, 104.
Historical collections, exemption of, 247.
Holy Alliance, relations of, to Monroe Doctrine, 77;
to intervention, 84;
opposition of, to popular liberty, 91.
Horses, as contraband of war, 305.
Hospital flag, use of, 253.
Hospital ships, exemption of, 245, 246;
neutralization of, 280.
Hostages, when last given, 9 _n._;
in case of ransom, 259.
Hostile vessels, departure of, from neutral port, 291.
Hostilities, commencement of, 230.
Humanity, intervention on the ground of, 84, 85.
Hungary, jurisdiction of, over foreign-born subjects, 123.
Immunities and privileges of diplomatic agents, 175-182;
consuls, 194-197.
Independence of states, 68, 74-87.
Indians, extinguishment of title of, 99.
Individuals under international law, 56.
Inequalities among states, court precedence, 89;
matters of ceremonial, 89;
weight of influence, 89-93.
Institute of international law, as to marine jurisdiction, 113;
pacific blockade, 223.
Instructions to diplomatic agents, 163, 202;
for United States armies, 331-365.
Insurgents, who are, 56-58.
Intercourse of states, 70.
International law, definition and general scope of, 3-5;
nature of, 6-11;
historical development of, in early period, 12-14;
in middle period, 14-19;
in modern period, 19-24;
writers, 24-28;
sources of, practice and usage, 29, 30;
precedent and decisions, 30, 31;
treaties and state papers, 31-33;
text writers, 33, 34;
diplomatic papers, 34, 35;
states, definition, 39, 40;
nature, 40, 41;
recognition of new, 41-49;
legal persons having qualified status, members of confederations,
etc., 50, 51;
neutralized states, 51, 52;
protectorates, suzerainties, etc., 51-53;
corporations, 54, 55;
individuals, 56;
insurgents, 56-58;
belligerents, 59-63;
communities not fully civilized, 63, 64;
general rights and obligations of states, existence, 67, 68;
independence, 68;
equality, 68, 69;
jurisdiction, 69;
property, 69, 70;
intercourse, 70;
existence, application of the right, 71, 72;
extension of the right to subjects, 72, 73;
independence, manner of exercise, 74, 75;
balance of power, 75, 76;
Monroe Doctrine, 77, 78;
non-intervention, 78, 79;
practice as to intervention, 79-87;
equality in general, 88, 89;
inequalities, 89-93;
jurisdiction, in general, 96;
domain, 97, 98;
method of acquisition, 98-102;
qualified, 103, 104;
maritime and fluvial, 104, 105;
rivers, 105, 106;
navigation of rivers, 106-108;
enclosed waters, 108-112;
the three-mile limit, 112-114;
fisheries, 114-117;
vessels, 117-121;
personal, general--nationality, 121, 122;
natural-born subjects, 122;
foreign-born subjects, 122-124;
acquired nationality, 125-130;
jurisdiction over aliens, 130-133;
exemptions from jurisdiction, 134, 135;
sovereigns, 135, 136;
state officers and property, 136-139;
special exemptions, 139-141;
extradition, 142-146;
servitudes, 146, 147;
property, in general, 148, 149;
of the state, 149;
diplomacy and international relations in time of peace, general
development, 151, 152;
diplomatic agents, 152-159;
suite, 160;
who may send diplomatic agents, 160, 161;
who may be sent, 161, 162;
credentials, instructions, passport, 162-165;
ceremonial, 165-170;
functions, 170-172;
termination of mission, 172-175;
immunities and privileges, 175-182;
diplomatic practice of the United States, 183-186;
consuls, 186-197;
treaties, definition, 198, 199;
other forms of international agreements, 199-202;
negotiation of, 202-209;
validity of, 209-210;
classification of, 210-212;
interpretation of, 212-214;
termination of, 214-216;
amicable settlement of disputes, 217-219;
non-hostile redress, 220;
retorsion, 220, 221;
reprisals, 221;
embargo, 221, 222;
Pacific blockade, 223-225;
war, definition, 229;
commencement, 229, 230;
declaration, 231, 232;
object, 232, 233;
general effects, 233, 234;
status of persons in war, persons affected by war, 235;
combatants, 235-237;
non-combatants, 237, 238;
status of property on land, public property of the enemy, 239, 240;
real property of enemy subjects, 240, 241;
personal property of enemy subjects, 241-244;
status of property at sea, vessels, 245, 246;
goods, 247;
submarine telegraphic cables, 248;
conduct of hostilities, belligerent occupation, 250-252;
forbidden methods, 252-254;
privateers, 254, 255;
volunteer and auxiliary navy, 255-257;
capture and ransom, 257-259;
postliminium, 260-262;
prisoners and their treatment, 262-264;
non-hostile relations of belligerents, 264-269;
termination of war, methods of, 270;
by conquest, 270, 271;
by cessation of hostilities, 271, 272;
treaty of peace, 272-274;
definition of neutrality, 277;
forms of neutrality and of neutralization, 277-280;
history, 280-283;
declaration, 283, 284;
divisions, 284;
relations of neutral states and belligerent states, general
principles of the relations between states, 285, 286;
neutral territorial jurisdiction, 286-289;
regulations of neutral relations, 289-293;
no direct assistance by neutral, 293-295;
positive obligations of a neutral state, 295-297;
neutral relations between states and individuals: ordinary commerce,
299-303;
contraband, 303-306;
penalty for carrying contraband, 306, 307;
unneutral service, 308-310;
visit and search, 310-313;
convoy, 313, 314;
blockade, 314-319;
violation of blockade, 319, 320;
continuous voyages, 320-324;
prize and prize courts, 324-328.
Internment of belligerent troops, 286, 290.
Interpretation of treaties, 212-214.
Intervention in affairs of other nations, 77-87.
Ionian Islands, protectorate of, 23, 214.
Islands, title to, when formed in rivers, 102.
Italy, one of the Great Powers, 90;
relation of, to the Triple Alliance, 92;
partition of Africa by, 103;
convention of, as to the Suez Canal, 111.
Jackson, President, attitude of, as to the Falkland Islands, 46.
Japan, recognition of, 43, 44;
jurisdiction of, over aliens, 131, 132;
freedom of Emperor of, from suit, 136;
treaty of United States with, as to consular functions, 193;
termination of treaty of, with China, 215;
prize law of, 246, 313;
treaty of peace of, with China, 272;
attitude of, as to convoy, 314.
Jettison of cargo, 13.
Jurisdiction of states, 69, 94 _et seq._;
of diplomatic agents, 175-182;
consuls, 193-196;
over non-combatants, 237;
neutral territorial, 286-289;
in case of blockade, 314-324;
as to prize courts, 325. _See_ International Law.
_Jus belli_, early international law, 13.
_Jus fetiale_, defined, 7, 13.
_Jus gentium_, defined, 7, 14.
_Jus inter gentes_, defined, 7, 14.
_Jus naturale_, defined, 6.
Koszta, case of, 129, 130.
Lakes, change in, as affecting territory, 102.
Language used in treaties, 205, 206;
in diplomacy, 170 _n._ 3.
Law of nations, term long used, 8.
Laws of Antwerp. _See_ Sea Laws.
Laws of Oleron. _See_ Sea Laws.
Laws of the Rhodians, fragment of, 13.
_See_ Sea Laws.
Legates, rules as to, 156, _et seq._
_See_ Ambassadors, Diplomatic Agents.
Letter of credence, form of, 164.
Letters, in diplomatic relations, 200, 201.
Letters of marque. _See_ Privateering.
Levies _en masse_, as combatants, 236, 262.
Liberia, recognition of, 44.
Licenses to trade, 266, 267.
Lien, right of state to enforce, 98.
Lincoln, President, proclamation of, as to blockade, 231, 317 _n._
Loans of money, by neutral to belligerent state, 295;
by citizens of a neutral state, 295.
Luxemburg, neutralization of, 52, 278.
Madagascar, protectorate of, 53.
Mails and mail steamers, under neutral flag, 309.
Marcy, Secretary, as to naturalization, 128.
_Mare Clausum_, rule of, as to Bering Sea, 116.
Marine League. _See_ Three-mile limit.
Maritime ceremonials, in salutes, 89.
Maritime war. _See_ Neutrality.
Marriage, as affecting nationality, 125;
performed by diplomatic agent, 172.
McKinley, President, message of, as to Cuba, 85;
proclamation of as to blockade, 317 _n._
Mediation. _See_ Good Offices.
Memoranda, what they are, 171, 200.
Messages, transmission of, 310.
Milan decree of Napoleon, 315.
Military assistance not to be furnished by neutral to belligerent, 293.
Ministers, jurisdiction of Supreme Court as to, 31.
_See_ Ambassadors, Diplomatic Agents.
Money, as contraband of war, 305.
Monroe Doctrine, history of 77;
position of United States as to, 93.
Monroe, President, author of Monroe Doctrine, 77.
Montenegro, recognition of, 44.
"Most favored nation," what it means in treaties, 213, 214.
Munitions of war, sales of, by neutral, 294.
_See_ Supplies of war.
Napoleon Bonaparte, relation of, to Monroe Doctrine, 77;
sale of Louisiana by, 101;
Berlin decrees of, 222, 315;
Milan decrees of, 315.
Natural-born subjects, jurisdiction over, 122.
Naturalization, law as to, 125-130.
Naval war code of the United States, 222, 400-416.
Navigation of rivers, 106-108.
Navy, exemption of, from local jurisdiction, 138.
Netherlands, sale of territory by, to Great Britain, 101;
convention of, as to Suez Canal, 111.
Neutral goods, capture of, 247, 299 _et seq._
Neutrality, proclamation of, 60;
of goods, 247;
submarine telegraphic cables, 248;
definition and history of, 275-284;
laws of United States as to, 283, 296;
of nations during war between Spain and the United States, 283;
as to departure of hostile vessels from neutral ports, 291;
British regulations as to, 291 _n._;
as to direct assistance, 293-295;
obligations of state, 295-297;
ordinary commerce in case of, 299-303;
contraband in ease of, 303-307;
unneutral service in case of, 308-310;
visit and search in case of, 310-313;
convoy in care of, 313, 314;
blockade, 314-319;
violation of blockade, 319, 320;
continuous voyages, 320-324;
prize and prize courts, 324-328.
Neutrality statutes of United States, 283, 417-420.
Neutralization of states, 51, 52;
forms of, 277-280.
Non-combatants, who are, 237, 238.
Non-hostile redress, what is, 220.
North Sea fisheries, convention as to, 114.
Notes, what they are, 171, 200, 212.
Notification of blockade, 316, 317.
Nuncios, rules as to, 156 _et seq._
_See_ Ambassadors, Diplomatic Agents.
Occupation, a method of acquiring territory, 98, 99;
belligerent, 250, 252.
Officers of merchant vessels, status of, 236.
Oleron, laws of. _See_ Sea Laws.
Oriental states, exemption of subjects of Western states in, 139-141.
Oxford Manual, provisions of, 368, 381.
Pacific Blockade, what it is, 223-225.
Paris, treaty of, 206.
Parole, release on, 263.
Passengers, capture of, 258.
Passport, form of, 133;
of diplomatic agent, 163, 171;
given in time of war, 266.
Peace of Westphalia, relation of, to the balance of power, 75;
recognition of diplomacy by, 154, 155;
preceded by armistice, 272.
Perfidy. _See_ Deceit.
Personal property, status of, in war, 241-244.
Persons, jurisdiction over, 121;
status of, in war, 235, _et seq._
Philippines, sale of, to the United States, 101.
Pillage, prohibition of, 142.
Poison, use of, forbidden in war, 253.
Poland, partition of, 22, 76, 101.
Political refugees. _See_ Right of Asylum.
Ports, neutrality of, 287.
Portugal, partition of Africa by, 103;
jurisdiction of, as to foreign-born subjects, 123;
relations of, to Terceira affair, 288.
Postal communication, cartels as to, 265.
Postliminium, what it is, 260.
Prescription, acquisition of territory by, 101, 102.
Prestation. _See_ Angary.
Prisoners of war, treatment of, 262-264;
exchange of, 265;
when must be restored, 268;
treaties as to, 273.
Privateering, history of, 254;
action of, M. Gênet as to, 282.
Private international law, of what it treats, 4, 122, 146.
Private property of enemy, capture of, at sea, 247, 300 _et seq._;
inviolability of, on land, 252.
Private vessels, liability of, to capture, 245;
exemption of, 246.
Prize, courts of, 30;
disposition of, 258, 259;
salvage in case of, 260, 261;
taking of, into neutral waters, 293;
attitude of Japan as to, 313, 314;
law of, 324-328;
procedure as to, in court, 421-429.
Prize courts. _See_ Prize.
Prize law of Japan, 246.
_Procès-verbaux._ _See_ Protocol.
Proclamation of the United States as to the Declaration of Paris, 33;
of Queen Victoria as to belligerency, 60;
of treaties, 209;
of the United States as to war with Spain, 222;
of blockade, 230, 231.
President, as to neutrality, 282;
of nations during war between Spain and the United States, 283, 288;
as to departure of belligerents on vessels from port, 291.
Projectiles, inflicting unnecessary suffering, 253;
from balloons, 253.
Promulgation of treaty, 209.
Property, in general, 148, 149;
of the state, 149;
of the enemy, status of, 239-244;
at sea, status of, 245-249.
Protectorates, states under, 52, 53;
jurisdiction in case of, 103;
spheres of influence, 103, 104.
Protocol, what it is, 171, 199, 200, 202, 208, 209, 212, 272.
Provisions, when may be supplied to belligerents, 290;
as contraband of war, 305.
Prussia, attitude of, at the Congress of Troppau, 90.
_See_ Germany.
Public buildings, protection of, in war, 240.
Public debt, stock held by enemy in, 242.
Public international law, of what it treats, 4.
Public vessels, liability of, to capture, 245.
Quarter, refusal of, 263.
Railway plant, status of, in war, 240, 252.
Ransom. _See_ Capture.
Ratification of treaties, 207-209.
Real property, status of, in war, 240, 241.
Rebellion, intervention in case of, 85, 86.
Recognition, of new states, 41-49;
of belligerency, 59-63.
Religion, protection of, 182, 240.
Repair, hostile character of ships of, 310.
Reprisals, defined, 221.
Requisitions, what they are, 240, 241, 243.
Retaliation, liability to, 263;
when forbidden, 254.
Retorsion, defined, 220, 221.
Right of asylum, on ship of war, 119, 288, 290;
as to sovereign's hotel, 137;
in house of diplomatic agent, 180-182.
_See_ Internment.
Rivers, in determining territory, 102;
as affecting jurisdiction, 105-108.
Roman law, a basis of international law, 9, 14, 15;
as to alluvium, 102.
Roumania, recognition of, 44;
cession of Bessarabia and a part of Turkey to, 100.
Russia, suzerainty of, 53;
relation of, to the balance of power, 83;
one of the Great Powers, 90;
attitude of, at the Congress of Troppau, 90;
friendship of, with France, 93;
sale of Alaska by, 101;
treaty of, with Turkey as to Bosphorus, etc., 110;
convention of, as to the Suez Canal, 111;
claim of, as to Pacific Ocean, 116;
volunteer navy of, 256.
Safe conduct, what it is, 266.
Safeguard, what it is, 266.
Sale, transfer of territory by, 100.
Salvage, granting of, 260-262.
Samoa, neutralization of, 52;
suzerainty of, 53.
Scientific works, exemption of, 239;
vessels engaged in, 245, 246.
Sea laws, amalfitan tables, 17, 186;
_Consolato del Mare_, 17, 186, 300;
laws of Oleron, 17, 186;
laws of Wisby, 17, 186;
Hanseatic League, 18, 29, 187;
customs of Amsterdam, 18;
laws of Antwerp, 18;
Guidon de la Mar, 18;
Lex Rhodia, 17, 187.
Search. _See_ Visit and Search.
Self-preservation, intervention for, 80.
Servia, recognition of, 44.
Servitudes, in case of Canadian fisheries, 114;
different kinds of, 146, 147.
Ship's papers, deposit of, in consul's office, 191;
what required, 312.
Sick and wounded, treatment of, 264, 280;
exchange of, 265.
Sound dues, history of, 109.
South African Republic, protectorate of, 52;
war in, 230, 324.
South American states, husbands in, acquiring citizenship of wife, 125;
views of, as to extradition, 143.
Sovereign, exemptions and privileges of, in foreign countries, 135, 136.
Spain, relations of, to Treaty of Utrecht, 76;
interference in affairs of, 85;
relations of, to Great Powers, 90;
attitude of Congress of Verona as to, 91;
convention of, as to the Suez Canal, 111;
jurisdiction of, as to foreign-born subjects, 123;
termination of treaty of, with United States, 215;
vessels of, during war with the United States, 222, 246;
attitude of, as to Declaration of Paris, 247, 255, 302.
Spheres of influence, theory of, 92, 103, 104.
Spies, status of, 236, 237, 265.
Sponsions, defined, 201, 269.
State officers, exemptions of, 136-139.
State papers, as a source of international law, 31-35.
Statute of limitations, law of, as to debts in time of war, 274.
Steamers, status of, in war, 240.
Stock, held by enemy in public debt, 242.
Straits, jurisdiction of, 109.
Stratagems, use of, 253.
Submarine cables, convention for the protection of, 32, 248;
censorship of, 310.
Suez Canal. _See_ Canals.
Sulphur, as contraband of war, 305, 306.
Supplies of war, not to be furnished by neutral to belligerent, 294;
ships carrying, 310.
_See_ Munitions of War.
Supreme Court of the United States, 30, 31.
Suspension of treaties, 234.
Suzerainty, instances of, 53.
Sweden, relations of, to Great Powers, 90;
sale of territory by, to France, 101;
jurisdiction of, over foreign-born subjects, 123.
Switzerland, neutralization of, 23, 52, 278;
state existence of, before recognition, 41;
jurisdiction of, over foreign-born subjects, 123, 124.
Taxes, lien of state for, 98;
upon property of diplomatic agent, 182;
of enemy subjects, 242;
collection of, by an occupying state, 242, 260.
Telegraph, status of, in war, 240, 248;
cables, 310.
Telephone, status of, in war, 240.
Terceira expedition, what it was, 288.
Termination of treaties, 214;
war, 270-274.
Territorial waters. _See_ Three-mile Limit.
Territory, acquisition of, 98-102;
cession of, jurisdiction over, 101;
formed by alluvium, 102;
as determined by rivers and lakes, etc. 102;
annexation of, 126.
Three-mile limit, jurisdiction as to, 112-114, 120, 287.
Transfer of territory, 100, 101;
allegiance, 126.
Transport, ships of, 310.
Transvaal, war of, with Great Britain, 230.
Treaties, as a source of international law, 31-33;
intervention, because of, 82;
of United States as to Canadian fisheries, 114-116;
of extradition, 142;
definition of, 198;
other forms, 199-202;
negotiation of, 202-209;
validity of, 209, 210;
classification of, 210-212;
of London, 1831, 1839, 211;
interpretation of, 212-214;
termination of, 214, 216;
denunciation of, 216;
abrogation or suspension of, 234;
of peace, 272-274;
as to canals, 279, 280;
as to free vessels making free goods, 300 _et seq._
Treaty of Berlin, suzerainties established by, 53;
relations of, to Great Powers, 92;
provision of, as to a portion of Bessarabia, 100;
closing ports, 118;
servitudes, 146;
Congo, 278.
Treaty of Paris, relations of, to Great Powers, 92;
provision of, as to Bessarabia, 100;
provision of, as to Bosphorus, etc., 110;
relations of, to Ottoman Empire, 211;
provisions of, as to privateering, neutral goods, enemy's goods, and
blockade, 247, 254, 398.
Trent, case of, 309.
Tribunal, none, of international law, 11.
Triple Alliance, nations parties to, 92.
Troops, internment of belligerent, 286, 290;
enlistment of, for belligerent service, 295.
Troppau, Congress of, 90.
Truce. _See_ Flags of Truce.
Turkey, recognition of, 44;
suzerainty of, 53;
application of balance of power to, 83;
policy as to territory of, 91, 92;
portion of, ceded to Roumania, 100;
treaty of, with Russia as to Bosphorus, etc., 110;
convention of, as to Suez Canal, 111;
letters of minister to, 163.
Uniform of enemy, use of, 252.
United States, agrees to the Treaty of Paris, 33;
diplomatic papers of, 34;
recognition of other countries by, 44-49;
suzerainty of, over Indians, 53;
intervention of, in case of Venezuela, 78;
Cuba, 85;
attitude of, as to the Monroe Doctrine, 93;
extinguishment of Indian title by, 99;
cession of "Horse-shoe Reef" to, by Great Britain, 100;
sale of Alaska, Louisiana, and the Philippines to, 101;
territory of, formed by alluvium, 102;
claim of, to jurisdiction over Chesapeake and Delaware bays, 108;
attitude of, as to sound dues, 109;
Dardanelles, 110;
Bering Sea, 113, 116, 117;
jurisdiction of, over foreign-born subjects, 122-124;
as to marriage, 125;
laws of, as to naturalization, 125-130;
attitude of, as to Koszta, 129, 130;
jurisdiction of, over aliens, 131;
courts of consuls of, 140, 141;
attitude of, as to diplomatic agents, 178 _et seq._;
diplomatic practice of, 183-186;
French language used in treaties of, 206;
making and ratification of treaties of, 207-209;
termination of treaty of, with Spain, 215;
attitude of, as to embargo of 1807, 222;
naval war code of, 222, 400;
vessels of, during war with Spain, 222;
attitude of, as to, blockade of Crete, 223, 224;
Spanish vessels during war with Spain, 246;
Declaration of Paris during war with Spain, 247, 255, 302;
volunteer navy of, 256;
destruction of vessels by, in War of 1812, 259;
attitude of, as to ransom, 259;
salvage, 260, 261;
practice of, as to exchange of prisoners, 263;
guaranty by, of neutrality of trans-isthmian canal, 279;
neutrality laws of, 283, 296, 417;
attitude of, as to Alabama case, 297;
treaties of, as to free ships making free goods, 300 _et seq._;
articles enumerated by, as contraband of war, 304 _et seq._;
attitude of, as to convoy, 313;
blockade, 319, 320;
continuous voyages, 322;
practice of, as to prize courts, 325 _et seq._;
repeal by, of law as to prize money, 327.
Unneutral service, what it is, 308-310.
_Uti possidetis_, Doctrine of, 273, 274.
Utrecht, Peace of, as an epoch in international law, 21 _et seq._, 77,
206.
Venezuela, boundary line of, 78.
Verona, Congress of, 77, 91.
Vessels, classes of, 117;
nationality of, how determined, 117;
jurisdiction over, 117-121;
status of, at sea, 245 _et seq._;
in port at outbreak of hostilities, 246;
voluntary and auxiliary navy, 255-257;
capture and ransom of, 257-258;
postliminium, 260-262;
cartel, 265;
in case of neutral relations between states and individuals, 298-328;
visit and search of, 310-343.
_See_ Privateering, Right of Asylum.
Vienna, Congress of, settling of court precedence by, 89;
determination of rank of state agents by, 155 _et seq._;
language used in, 206;
as to neutralization, 278, 279.
Visit and search, right of, 310, 311;
object of, 311;
method of, 311, 312;
seizure in case of, 312, 313.
Volunteer and auxiliary navy of, Prussia, 255, 256;
Greece, 256;
Russia, 256;
Great Britain, 256;
United States, 256.
War, definition of, 229;
commencement of, 229, 230;
declaration of, 231, 232;
object of, 232, 233;
general effects of, 233, 234;
persons affected by, 235;
combatants in, 235-237;
non-combatants in, 237, 238;
public property of the enemy in, 239, 240;
real property of enemy subjects in, 240, 244;
personal property of enemy subjects in, 241-244;
vessels, 245, 246;
goods, 247;
submarine telegraphic cables, 248, 249;
belligerent occupation during, 250-252;
forbidden methods in, 252-254;
privateers in, 254, 255;
voluntary and auxiliary navy in, 255, 257;
capture and ransom in, 257-259;
postliminium in, 260-262;
prisoners and their treatment in, 262-264;
non-hostile relations of belligerents in, 264-269;
methods of termination of, 270-274.
Warlike expedition, what is a, 289.
Washington, President, attitude of, as to neutrality, 282.
Waters, as affecting jurisdiction, 102 _et seq._
Webster, Daniel, views of, in case of the "Caroline," 435.
Westphalia, Peace of, as an epoch in international law, 19.
Wisby, laws of. _See_ Sea Laws.
Women, nationality of, 125.
Works of art, exemption of, 239, 247.
Writers, upon international law, 24-28, 33, 34.
FOOTNOTES:
[1] Hall, Introductory chapter.
[2] Dicey, "Conflict of Laws," English, with notes of American
cases, by J. B. Moore.
[3] Wheaton's "International Law," translated and made a textbook
for Chinese officials in 1864.
[4] "Inst.," I., 1, 1.
[5] "De Jure Belli," Bk. I., Ch. I., § 10.
[6] I. "Political Ethics," 2d ed., p. 68.
[7] Maine, "Ancient Law," Ch. IV.
[8] "Inst.," I., 2, 1.
[9] "Inst.," I., 2, 2.
[10] Heffter, "Völkerrecht," § 2.]
[11] Cicero, "De Republica," 2. 17.
[12] _Droit international_ is the French term, subsequently adopted.
[13] Last hostages given in Europe 1748, by England to France.
[14] "Lectures on Jurisprudence," I.
[15] Walker, "Science of International Law," Chs. I. and II., fully
discusses Austin's definition.
[16] Bluntschli, "Völkerrecht," Introduction; Lawrence, § 20.
[17] Walker, "Science of International Law," Ch. III., p. 58. "But
when, beside the vague and fleeting World Law, the law of all
humanity, was recognized a law special to certain peoples, when the
distinction was drawn between the progressive and the stationary,
between civilization and barbarity, when the Greek noted [Greek] ta
nomima tôn Hellênôn, and the Roman felt the ties of a particular
_Jus Fetiale_ and a particular _Jus Belli_, International Law cast
off its swaddling bands, and began its walk on earth."
[18] Cicero, "Pro Lege Manilia," Ch. XIII.
[19] Justinian Digest, 14. 2, "If goods are thrown overboard to
lighten the ship, as this is done for the sake of all, the loss
shall be made good by a contribution of all."
[20] Bluntschli, "Völkerrecht," Introduction; Thucydides,
"Peloponnesian War," II., 12, 22, 29.
[21] The Amphyetionic League recognized some principles of
interstate right and comity, as well as preserved Grecian
institutions and religious traditions. This is shown in the oath of
the members, "We will not destroy any Amphyctionic town nor cut it
off from running water, in war or peace; if any one shall do this,
we will march against him and destroy his city. If any one shall
plunder the property of the god, or shall be cognizant thereof, or
shall take treacherous counsel against the things in his temple at
Delphi, we will punish him with foot and hand and voice, and by
every means in our power." They also agreed to make and observe
humane rules of warfare. See also Bluntschli, "Völkerrecht,"
Introduction.
[22] Maine, "Ancient Law," Ch. III. The idea as to what _jus
gentium_ was, of course varied with times. Under the Empire it lost
its old meaning. See Cicero, "De Officiis," III., 17; Livy, VI., 17;
IX., 11; I., 14; V., 36; Sallust, "Bell. Jug.," XXII.; Tacitus,
"Ann.," 1, 42; "Quintus Curtius," IV., 11, 17.
[23] Bryce, "Holy Roman Empire," Ch. VII.
[24] Bryce, "Holy Roman Empire," Chs. VII, and XV. The "Truce of
God" introduced by the clergy (1034) left only about eighty days in
a year for fighting and settling feuds.
[25] On effects of Crusades, see Milman, "Latin Christianity," VII.,
6; Hallam, "Middle Ages," Ch. III., Pt. I.; Bryce, "Holy Roman
Empire," Chs. XI., XIII.
[26] Hall, § 268, p. 740.
[27] Laws of Wisby contain early reference to marine insurance, §
66.
[28] Expanded in 1614.
[29] De Valroger, "Droit Maritime," I., § 1.
[30] The Marine Ordinance of Louis XIV, 1681, became the basis of
sea law.
[31] With the decline of the influence of the "Holy Roman Empire,"
the use of Latin in diplomacy became less general.
[32] Abbé Saint-Pierre, in three volumes, 1729, "Abrégé du Projet de
Paix perpétuelle," outlines a plan for peace by fixed system of
balance of power.
[33] "Institutes," II., 1, 21, 22.
[34] Declaration of Russia, Feb. 28, 1780.
[35] The works of Moser (1701-1786) and his immediate followers
attempt to make practical the principles of International Law.
[36] I. Hertslet, 317.
[37] I. Hertslet, 573.
[38] _Ibid._, 658.
[39] Hall, § 88, p. 297.
[40] Walker, "Hist. Law of Nations," pp. 283, 336.
[41] See p. xix for list of authors and works.
[42] Jenks, "Law and Politics in the Middle Ages," p. 30.
[43] The Santa Cruz, 1 C. Rob., 49, 61.
[44] Act of Congress, March 3, 1891. 26 U. S. Sts. at Large, 826.
[45] Lawrence, § 64.
[46] Bolton _v._ Gladstone, 5 East, 155, 160.
[47] United States _v._ Rauscher, 1886, 119 U. S., 407.
[48] United States Constitution, Art. III., § 2. For English view,
see Walker, p. 46, who quotes 3 Burr, 1480.
[49] Declarations, protocols, conventions, proclamations, notes,
etc.
[50] III. Hertslet, 1904.
[51] Holtzendorff, "Introduction droit public," 44.
[52] Hall, § 1 p. 18; I., Rivier, § 3, 9, I.
[53] Hall, § 1, p. 20.
[54] The internal acts of a _de facto_ state are valid, whatever the
attitude of the international circle. As an example, in 1777, during
the Revolutionary War, the British governor of Florida made a grant
of land in what is now the southern part of the United States. Fifty
years later a descendant of the grantee laid claim to the land, but
the Supreme Court of the United States declared, "It has never been
admitted by the United States that they acquired anything by way of
cession from Great Britain by that treaty [of Peace, 1783]. It has
been viewed only as a recognition of preëxisting rights, and on that
principle the soil and the sovereignty, within their acknowledged
limits, were as much theirs at the Declaration of Independence as at
this hour. By reference to the treaty, it will be found that it
amounts to a simple recognition of the independence and limits of
the United States, without any language purporting a cession or
relinquishment of the right, on the part of Great Britain ... grants
of soil made _flagrante bello_ by the party that fails, can only
derive validity from treaty stipulations." Harcourt _v._ Gaillard,
12 Wheat., 523, 527. See also M'Ilvaine _v._ Coxe's Lessee, 4 Cr.,
209, 212.
[55] Suarez, "De Legibus," 6.
[56] Wheat., D., 41 n.
[57] United States of Central America, Nov. 1, 1898, from Republics
of Nicaragua, Salvador, and Honduras.
[58] Japan has been generally recognized since 1894, and her foreign
relations have been in course of readjustment.
[59] 1 Whart., § 70.
[60] I. Rivier, §§ 44, 125.
[61] See on this subject 1 Whart., § 70.
[62] 13 Pet., 415. See also Jones _v._ United States, 137 U. S. 202;
Foster _v._ Neilson, 2 Pet., 253.
[63] State of Mississippi _v._ Johnson, President, 4 Wall., 475,
500. For late review of the question, see 32 Amer. Law Rev., 390, W.
L. Penfield.
[64] I. Rivier, _Droit des gens_, §§ 3, 11.
[65] Hall, § 26*, note 1, p. 93.
[66] Hall, § 27, p. 100.
[67] Lawrence, § 51, p. 75.
[68] "Political Annuals," since 1887 rich in discussion of
neutralization.
[69] Statesman's Year Book 1901, p. 591.
[70] _Ibid._, pp. 657, 1237.
[71] 6 American Cycl., 376.
[72] Lawrence, p. 82, § 54.
[73] Wheat., D., note 15, p. 37.
[74] For full discussion see Wilson, "Insurgency" lectures U. S.
Naval College, 1900.
[75] Hall, § 5, p. 31, ff.
[76] 3 Whart., § 381; United States _v._ "Ambrose Light," 25 Fed.
Rep. 408. Snow, 206, "Montezuma."
[77] President Cleveland's Message, Dec. 2, 1885. U. S. For. Rel.
1885, pp. 254, 273.
[78] Parl. Papers, 1887, 1 Peru, 18.
[79] 3 Whart., § 381, "Huascar."
[80] 33 Albany Law Jour., 125.
[81] Lawrence, § 162.
[82] 1885, For. Rel. U. S. 252, 264.
[83] 1885, For. Rel. U. S. 254, 273.
[84] See 3 Whart., § 381; Bluntschli, § 512; Hall, § 5, p. 34; U. S.
For. Rel. (1885), 252, 254, 264, 273.
[85] See numerous references in 51 Br. and Fr. St. Papers; also
Hall, § 5, p. 39.
[86] Hall, § 5, p. 35.
[87] Wheat., D., note 15, p. 34.
[88] 1 Whart., §§ 69, 71.
[89] Story, "Santissima Trinidad," 7 Wheat. 354.
[90] Hall, § 83, p. 281.
[91] "Caroline," 1 Whart., § 50 c; 2 _ibid._, § 224. See Appendix,
p. 434.
[92] 3 Whart., § 327, p. 147. Snow's Cases, § 179.
[93] § 87, p. 291.
[94] Hall, § 87, p. 294.
[95] Von Gentz, "Fragments upon the Balance of Power in Europe,"
1806.
[96] Hume, "Essays," VII.
[97] Nys, "Origines," pp. 165 ff.
[98] Bernard Lectures on "Diplomacy," 98.
[99] Tucker, "Monroe Doctrine," 4.
[100] "The Monroe Doctrine," VI.
[101] See Tucker, "Monroe Doctrine."
[102] Ann. Cycl. (1895), p. 741; (1896), p. 804; (1899), p. 845,
also U. S. For. Rel. 1896.
[103] Bonfils, No. 295; Pradier-Fodéré, No. 355.
[104] § 92, p. 304.
[105] Hall, § 88, p. 297.
[106] Bonfils, 295.
[107] "Letters to Historicus," p. 41.
[108] See Rolin-Jaequemyns, R. D. I., XVIII., 591.
[109] Hall, § 91, p. 301.
[110] Hertslet, 1181, 1193.
[111] § 85, p. 129. See also 1 Halleck, 507.
[112] 1 Hertslet, 317. _Ibid._, 658.
[113] Walker, p. 151.
[114] Ann. Cycl. 1898, p. 159; U. S. For. Rel., 1898, p. 760.
[115] 30 U. S. Sts. at Large, 738.
[116] Bluntschli, § 477.
[117] § 94, p. 307.
[118] 1 Hertslet, 664 ff.
[119] See ch. XV.
[120] See § 70 (_b_).
[121] 1 Hertslet, 574.
[122] For detailed summary, 1826-1881, see Holland, "European
Concert in the Eastern Question," Ch. II.
[123] "European Concert in the Eastern Question," p. 221.
[124] Lawrence, "Disputed Questions," V.
[125] Lawrence, "Disputed Questions," V., end.
[126] 3 Kent Com., 379, 380; 1 Gould and Tucker, 484.
[127] In case of the United States, while the President may after
declaration of war conquer and hold foreign territory, the joint
action of the President and Senate is necessary to make the title
complete by treaty.
[128] Treaties of U. S., 444.
[129] Woolsey, 496.
[130] See discussion in Hall, § 36, note 1, p. 124.
[131] The "Anna," 5 C. Rob., 373.
[132] "Institutes," II., 1, 20.
[133] See Lawrence, 153, 161, 164-167; Reinsch, "World Politics,"
pp. 60, 113, 184.
[134] Wheat., D., § 193, p. 274.
[135] Ed. Engelhardt, "Du régime conventionnel des fleuves
internationaux," Ch. II.
[136] Grotius, II., ii., 12-14; Pufendorf, III., 3, 4; Vattel, §§
104, 126-130, 132-134; Bluntschli, § 314; Calvo, §§ 259, 290-291;
Fiore, §§ 758, 768; Carnazza-Amari, "Traite," § 2, Ch. VII., 17;
Heffter, § 77; Wheat., D., § 193.
[137] Wheat., D., §§ 197-204; Whart., § 30; Pradier-Fodéré,
"Traite," §§ 727-755.
[138] Justinian, "Inst.," 2, t. 1, §§ 1-5.
[139] 3 Whart., § 305 _a_.
[140] Parl. Papers, 1889, Commercial, No. 2; Holland, "Studies in
International Law," p. 270.
[141] See Tucker, "Monroe Doctrine," pp. 43-76; Lawrence, "Disputed
Questions," 72-146.
[142] See Regina _v._ Keyn, 2 L. R. (Exch. Div.), 63.
[143] Ann. Cycl. (1894), 292.
[144] Lawrence, pp. 138, 182.
[145] See Cushing's "Treaty of Washington."
[146] 24 U. S. Sts. at Large, 475.
[147] See Whart., §§ 301-308.
[148] Treaties of U. S., 940.
[149] Proceedings Fur Seal Arbitration, 1893; also 27 U. S. Sts. at
Large, 947.
[150] Note 63, § 105.
[151] IV. Hertslet, 2783.
[152] Art. 28, Gen. Act Brussels Conference, July 2, 1890.
[153] Wildenhus's Case, 120 U. S. 1, 18.
[154] Bonfils, "De la compétence des tribunaux français," § 326.
[155] Statutes, 41 and 42, Vict., p. 579.
[156] U. S. Rev. Sts., § 1993; 1 Gould and Tucker, 478; 2 _ibid._,
178, 203.
[157] Civil Code, Art. 28.
[158] Law of June 1, 1870.
[159] Dec. 24, 1879.
[160] Feb. 27, 1858.
[161] July 3, 1876.
[162] Whart., § 183 ff.
[163] 3 Pradier-Fodéré, 1648-1653.
[164] U. S. Rev. Sts., § 1994; 1 Gould and Tucker, 479; 2 _ibid._,
178.
[165] 3 Pradier-Fodéré, 1656 ff.
[166] Constitution of U. S., Art. I., § 8.
[167] U. S. Rev. Sts., §§ 2165-2174; 1 Gould and Tucker, 513; 2
_ibid._, 202.
[168] 2 Pradier-Fodéré, 863; 3 _ibid._, 1671 ff.
[169] Treaties of U. S., 1262; 2 Whart., § 181.
[170] Hall, § 71, p. 240 ff.
[171] 2 Whart., § 175, Frelinghuysen to Wallace, March 25, 1887.
[172] 2 Whart., § 175, Bayard to Williams, Oct. 29, 1885.
[173] 2 Whart., § 193, Marcy to Seibels, May 27, 1854.
[174] 2 Whart., § 193, Marcy to Fay, May 27, 1854.
[175] 2 Whart., § 198, Marcy to Hüselmann, Sept. 26, 1853.
[176] 6 Messages and Papers of President, 168.
[177] Bonfils, 337.
[178] § 48, p. 173.
[179] Snow's "Cases," 72 ff., for this and other cases.
[180] Snow's "Cases," 82, Rothschild _v._ Queen of Portugal;
Bynkershoek, "De Foro Legatorum," C. XVI.
[181] See § 80 (_f_) for full discussion.
[182] Exchange _v._ M'Faddon, 7 Cr., 116, 139.
[183] "International Law," Naval War Col., 2d ed., p. 23.
[184] Hall, § 55.
[185] Snow's "Cases," p. 114.
[186] § 55, p. 205.
[187] 1 Whart., § 125.
[188] By treaties with Japan, going into effect 1899, such courts
were abolished in that empire. 29 U. S. Sts. at Large, 848.
[189] 1 U. S. Rev. Sts., §§ 4083-4130; 1 Gould and Tucker, 770-772;
2 _ibid._, 503; Treaties of U. S., 1279, 1288; 1 Whart., § 125.
[190] Proclamation of March 27, 1876; 19 U. S. Sts. at Large, 662.
[191] "The surrender of fugitives from justice is a matter of
conventional arrangement between states, as no such obligation is
imposed by the law of nations." In the Matter of Metzger, 5 How.
176, 188.
[192] 2 Whart., § 268.
[193] Snow's "Cases," 151 ff.; Treaties of U. S., 1289-1293.
[194] I. Moore, "Extradition," 156.
[195] 26 U. S. Sts. at Large, 1508; Snow's "Cases," 151 _et seq._; 2
Whart., § 270; 1 Moore, "Extradition," 196 ff.; Treaties of U. S.,
1289 _et seq._; 1 Gould and Tucker, 987.
[196] Treaties of U. S., 437 and 1289-1293; 26 U. S. Sts. at Large,
1510; U. S. Rev. Sts., §§ 5270-5280; 1 Gould and Tucker, 979-989; 2
Whart., §§ 274-280.
[197] In case of Chesapeake, 1863, the consul acted as agent.
Wheat., D., § 428, note 207; 3 Pradier-Fodéré, 1876.
[198] 3 Pradier-Fodéré, 1877.
[199] "Annuaire de l'Institut de droit international," 1881-1882, p.
128.
[200] IV. Hertslet, 2783.
[201] _Ibid._
[202] For the general question, see 2 Pradier-Fodéré, 834, 845.
[203] § 43, p. 167.
[204] U. S. Chinese Exclusion Act, 1882, 1 Gould and Tucker, 502 _et
seq._; 2 _ibid._, 193 _et seq._
[205] Digest, LVII., 17.
[206] 3 Pradier-Fodéré, 1233.
[207] Nys, "Les Origines du Droit International," 297.
[208] Walton, "Life of Wotton," 155.
[209] Calvo, § 1311 ff.
[210] I. Hertslet, 62, 63.
[211] I. Hertslet, 575. These rules have been adopted by the U. S.
Department of State.
[212] Calvo, § 1328 ff.
[213] March 1, 1893, 27 U. S. Sts. at Large, c. 182.
[214] 1 Whart., §§ 82, 82 _a_, 83.
[215] "The American Passport," U. S. Dept. State, 1898, p. 7.
[216] Wicquefort, "The Embassador and his Functions," Digby's
translation, Ch. XXII., p. 201.
[217] "Droit des gens," Liv. IV., Ch. VI.
[218] Calvo, § 1328 ff.
[219] Lehr, "Manuel des Agents Diplomatiques," § 367 ff.
[220] The Department of State instructs the representatives of the
United States to follow this practice.
[221] U.S. Rev. Sts., § 2000.
[222] U.S. Rev. Sts., § 4075.
[223] Till the reign of Louis XIV., Latin was the language of
diplomacy; from that time, French became more and more used. Since
the Congress of Vienna, 1815, any language may be used without
offense, Art. 120.
[224] 22 U. S. Sts. at Large, 216, § 5.
[225] U. S. Rev. Sts., § 1750; 1 Gould and Tucker, 446; 2 _ibid._,
158.
[226] Hall, § 53, n. 1., p. 192.
[227] 16 Ann. Cycl., 833.
[228] 1 Whart., § 84.
[229] "Droit Int.," § 1481, ff.
[230] Lehr, "Manuel," §§ 988-998.
[231] Despagnet, "Droit international public," 2d ed., § 235;
Heffter, § 204.
[232] Grotius, "De Jure Belli," II., 18.
[233] § 50.
[234] U. S. Rev. Sts., §§ 4063, 4064; Wheat., D., 308-310.
[235] Instructions to Diplomatic Officers, § 47.
[236] 1 Whart., § 98.
[237] _Ibid._
[238] De Martens, "Causes Cél.," I., 174.
[239] Instructions to Diplomatic Officers, 1897, § 50.
[240] Hall, § 52, p. 189.
[241] See the "Right of Asylum in the Legations of the United States
in Central and South America," by Barry Gilbert, in _Harvard Law
Review_ for June, 1901, p. 118.
[242] U. S. Constitution, Art. III., § 2, 2.
[243] U. S. Constitution, Art. I., § 9, 8.
[244] 1 Whart., § 100.
[245] 1 Whart., § 105.
[246] Instructions to Diplomatic Officers, U. S., 1897, §§ 68, 69.
[247] U. S. Rev. Sts., § 1751.
[248] 1 Whart., § 99.
[249] 1 Whart., § 102.
[250] U. S. Rev. Sts., § 1226.
[251] _Ibid._, § 1688.
[252] Schuyler, "Amer. Dip.," 144.
[253] Instructions to Diplomatic Officers, U. S., § 67.
[254] U. S. Rev. Sts., §§ 1674-1752; 1 Gould and Tucker, 439-447; 2
_ibid._ 155-158.
[255] Nys, "Les origines du droit international," "Le Commerce," p.
286.
[256] Lawrence, "Commentaire sur Wheaton," IV., p. 6.
[257] Consular Regulations, 1896, 1.
[258] U. S. Rev. Sts., § 1674.
[259] U. S. Rev. Sts., § 1674.
[260] § 105, p. 331.
[261] See Treaties: United States and Colombia (New Granada), 1850;
United States and France, 1853; United States and Austria, 1870;
United States and Germany, 1871; Austria and Portugal, 1873; Germany
and Russia, 1874; France and Russia, 1874; United States and Italy,
1878; Portugal and Belgium, 1880; United States and Roumania, 1881;
United States and Congo Free State, 1891, and others.
[262] 29 U. S. Sts. at Large, 848.
[263] See § 64 for extent of jurisdiction.
[264] U. S. Treaty with Borneo, June 23, 1850, Art. IX., Treaties of
U. S., 102.
[265] U. S. Treaty with China, Nov. 17, 1880, Art. IV., Treaties in
Force, 120.
[266] Hall, § 105 note, p. 338.
[267] Lehr, § 1236 ff.
[268] "De Clercq et de Vallat," I., pp. 106, 107.
[269] § 244.
[270] For various protocols, see Treaties of U. S., 824, 1148; 30 U.
S. Sts. at Large, 1593; _ibid._, 1596. For the recent protocol
between the United States and Spain as to terms of peace, see 30 U.
S. Sts. at Large, 1742.
[271] Wheat., D., §§ 254, 344.
[272] The Holy Alliance of 1815 was signed by three sovereigns.
[273] See p. 163.
[274] The Declaration of Paris, 1856.
[275] 17 U. S. Sts. at Large, 863; Treaties of U. S., 478.
[276] Art. II., § 2, 2.
[277] Calvo, §§ 643-668.
[278] Grotius, II., 16; Vattel, II., 17. The rules of Vattel are
briefly and well stated by Baker, "First Steps in International
Law," 1899, p. 105.
[279] For the subject of interpretation, see Hall, §§ 111, 112, p.
350 ff.; 2 Phillimore, Pt. V., Ch. VIII.; Calvo, §§ 1649-1650;
Pradier-Fodéré, §§ 1171-1188.
[280] For discussion of the "most favored nation" clause, see 2
Whart., § 134, also Appendix to Vol. III., p. 888.
[281] § 116, p. 367.
[282] See Holls's "Hague Peace Conference," 176 _et seq._
[283] See, on this entire subject, Moore's "International
Arbitration"; Holls's "Hague Peace Conference," 176-305; Cushing's
"Treaty of Washington."
[284] 3 Phillimore, 21, 22.
[285] Pradier-Fodéré, 2634-2636.
[286] Art. 15, U. S. Naval War Code; Proclamations and Decrees, p.
77. See Appendix, p. 405.
[287] 30 U. S. Sts. at Large, 1770.
[288] Proclamations and Decrees, p. 93.
[289] Parl. Papers, Greece, No. 4, 1886.
[290] _The London Gazette_, March 19, 1897.
[291] U. S. For. Rel., 1897, p. 255.
[292] "De Jure Belli," I., II., "Bellum est publicorum armorum justa
contentio;" Instr. U. S. Armies, § 20.
[293] Halleck, Ch. XIV.; Calvo, § 1866 ff.
[294] 30 U. S. Sts. at Large, 1769, 1776.
[295] Takahashi, 42 _et seq._
[296] Prize Cases, 2 Black, U. S. 635.
[297] Takahashi, 38 _et seq._
[298] Calvo, § 1910.
[299] 30 U. S. Sts. at Large, 364.
[300] The French declaration of war against Prussia in 1870 is given
in 2 Lorrimer, 443.
[301] Inst. U. S. Armies, § 29; Appendix p. 338.
[302] Appendix, p. 369.
[303] Hall, § 126, p. 405; Instr. U. S. Armies, §§ 20, 21, 22;
Appendix, pp. 336, 337.
[304] See Appendix, p. 386.
[305] Appendix, pp. 353, 372, 388.
[306] "De Jure Belli," III., ix., 4.
[307] "De Jure et Officiis Bellicis," l., v., 25.
[308] 4 Ellis and Blackburn's Reports, 217.
[309] Appendix, pp. 340, 385.
[310] Holls, "Hague Peace Conference," 451.
[311] Appendix, pp. 339, 385.
[312] 8 Cr., 110.
[313] See Index U. S. Treaties, "Reciprocal Privileges of Citizens."
[314] Holls, "Hague Peace Conference," 447.
[315] Appendix, pp. 339, 377.
[316] Lawrence, § 198.
[317] 3 Whart., § 339.
[318] U. S. Naval War Code, Art. 4. See Appendix, p. 401.
[319] Appendix, p. 401.
[320] Appendix, p. 404.
[321] Appendix, p. 404.
[322] Proclamation of April 26, 1898.
[323] Decree of April 23, 1898.
[324] Takahashi, p. 178.
[325] Appendix, p. 398.
[326] U. S. Proclamation, April 26, 1898; Spain, Decree of April 23,
1898.
[327] Treaties U. S., p. 1176 ff.
[328] U. S. Naval War Code, Art. 5. Appendix, p. 402.
[329] Captain C. H. Stockton, "Submarine Telegraph Cables in Time of
War," Proceed. U. S. Naval Inst., Vol. XXIV., p. 451.
[330] For the discussion of the laws and customs of war, at The
Hague Peace Conference, see Holls, 134 _et seq._
[331] See Appendix, p. 375.
[332] Oxford Manual, 51; Appendix, p. 377.
[333] Appendix, pp. 341, 369, 391.
[334] Appendix, p. 370.
[335] Appendix, pp. 370, 387.
[336] Appendix, p. 402.
[337] Appendix, pp. 370, 387.
[338] Appendix, p. 387.
[339] Appendix, p. 364.
[340] U. S. Naval War Code, Art. 4; Appendix, p. 401.
[341] Holls, "Hague Peace Conference," 93 _et seq._, 455.
[342] Appendix, pp. 348, 370, 386, 387, 401.
[343] See Holls, "Hague Peace Conference," 93 _et seq._, 461.
[344] For form, see United States _v._ Baker, 5 Blatchford, 6; 2
Halleck, 110.
[345] See article of Dr. Stark on "Privateering," in Columbia
University Publications (1897), Vol. VIII., No. 3.
[346] 1 Kent Com., 97.
[347] Appendix, p. 398.
[348] Proclamation and Decrees (April 25, 1898), p. 77.
[349] Hall, p. 547, § 181.
[350] R. D. I., IV., 695.
[351] See Act of May 10, 1892; 27 U. S. Sts. at Large, 27.
[352] Treaties of U. S., pp. 905, 906.
[353] 3 Whart., § 342.
[354] Appendix, 403.
[355] _Ibid._
[356] The "Grotius," 9 Cr., 368, 370.
[357] See rules of the "Inst. of Int. Law," 1882; "Annuaire," 1883,
p. 221.
[358] Justinian, I., xii., 5.
[359] U. S. Rev. Sts., § 4652.
[360] The "Two Friends," 1 C. Rob., 271.
[361] Instr. U. S. Armies, 50; Appendix, p. 344, 345.
[362] U. S. Naval War Code, Art. 11. See Appendix, p. 403.
[363] Instr. U. S. Armies, 28. See Appendix, p. 338.
[364] Oxford Manual, 71. See Appendix, p. 380.
[365] Instr. U. S. Armies, 124. See, as to prisoners of war,
Appendix, pp. 359, 381, 390.
[366] For details, see Geneva Convention, Appendix, p. 395; Holls,
"Hague Peace Conference," 120 _et seq._; U. S. Naval War Code,
Appendix, p. 406.
[367] Appendix, p. 392.
[368] "International Law," Naval War College, 2d ed., p. 93.
[369] The "Venus," 4 C. Rob., 355.
[370] Appendix, p. 352.
[371] Halleck (3d ed.), 325.
[372] The "Sea Lion," 5 Wall., 630.
[373] Hall, § 196, pp. 575-578.
[374] § 192, p. 565.
[375] 2 Halleck (3d ed.), 314 _et seq._
[376] Calvo, "Droit Int.," §§ 2440-2446.
[377] 2 Halleck (3d ed.), 310 _et seq._
[378] Lawrence, p. 453.
[379] See 1 Halleck (3d ed.), 277.
[380] Heffter-Geffcken, "Droit Int.," II., §§ 176-190.
[381] See above, § 97.
[382] Case of Hesse Cassel, Hall, § 204, p. 588.
[383] 30 U. S. Sts. at Large, 1742.
[384] The Treaty of Ghent, Dec. 24, 1814, between U. S. and Great
Britain is a marked exception. See Treaties of U. S., 399; Wheaton,
"Hist. Int. Law," 585; Schurz, "Henry Clay," I., pp. 105 _et seq._
[385] Treaty between Spain and U. S., Dec. 10, 1898; 30 U. S. Sts.
at Large, 1754.
[386] Case of Swineherd, 1801, 1 Kent Com., 173, note (_b_);
"Sophie," 1 Kent Com., 174; 6 C. Rob., 138.
[387] Hall, § 198, p. 579.
[388] Treaties of U. S., 386.
[389] Lawrence, § 239.
[390] Lawrence, p. 566.
[391] 1 Hertslet, 64.
[392] _Ibid._, 370; see also "La Neutralité de Suisse," S. Bury, R.
D. I., II., 636.
[393] 2 Hertslet, 863.
[394] 3 _ibid._, 1592.
[395] Art. XXXV., Treaty of Dec. 12, 1846; Treaties of U. S., 204.
[396] Art. XV., Treaty of Jan. 21, 1867; Treaties of U. S., 1784.
[397] Parl. Papers, 1889, Commercial, No. 2. See also Holland,
"Studies in Int. Law," p. 216.
[398] Articles I. and II.; Appendix, pp. 395, 396.
[399] U. S. Naval War Code, § IV.; Appendix, p. 370.
[400] "De Jure Belli ac Pacis," Lib. III., C. XVI., iii., 1.
[401] "Le Droit de la Nature et des Gens," Liv. VIII., C. VI., vii.,
n. 2.
[402] "Quaestiones Juris Publici," I., ix.
[403] "Droit des Gens," III., viii.
[404] 5 Speeches, 50.
[405] 1 Messages and Papers of the Presidents, 156.
[406] U. S. Rev. Sts., §§ 5281-5291, see Appendix, p. 417. For
cases, see 1 Gould and Tucker, 990, and 2 _ibid._, 627.
[407] 33 and 34 Vict., c. 90, p. 560. See also 2 Lorimer, 490.
[408] Proc. and Decrees during the war with Spain, p. 31.
[409] Proc. and Decrees during the war with Spain, p. 63. President
Cleveland's neutrality proclamations as to the late war in Cuba are
given in 29 U. S. Sts. at Large, 870, 881.
[410] Wheat., D., p. 509.
[411] "Internat. Law," Naval War College, p. 118.
[412] Case of the "Gen. Armstrong," 2 Whart., § 227; the "Anne," 3
Wheat., 435; 3 Whart., § 399.
[413] Perels, "Droit Maritime," § 39.
[414] 3 C. Rob., 164.
[415] Hall, § 221, p. 627.
[416] 3 Phillimore, 287-299.
[417] Hall, § 222, p. 631. For the case of the "Caroline," see
Appendix, p. 434.
[418] Oxford Manual, §§ 79, 80, 81. See Appendix, pp. 357.
[419] Perels, "Droit Maritime," § 39, p. 244. The Netherlands
Proclamation of Neutrality prescribed, in 1898, that "If ships of
war, pursued by the enemy, seek refuge within our territory, they
shall liberate their prizes."
[420] 7 Attorney-generals' Opinions, 122.
[421] As to the British Neutrality Regulations, see 2 Ferguson,
Appendix F, p. 77; 2 Lorimer, 446.
[422] 3 Whart., § 402; U. S. For. Rel., 1870.
[423] Proc. and Decrees of the war with Spain, Brazil, XVI, p. 15.
[424] Wheat, D., § 425; Dana, _contra_, note 203; 1 Kent Com., pp.
49, 116; Bluntschli, § 759; Woolsey, § 165.
[425] Hall, § 217, p. 621.
[426] 15 U. S. Sts. at Large, 259.
[427] 3 Whart., § 391.
[428] U. S. Rev. Sts., § 5288.
[429] 1 Amer. State Papers, 116.
[430] p. 627, § 221.
[431] See Appendix, p. 435.
[432] 3 Whart., § 402 _a_, p. 632.
[433] Bonfils, "Droit Int. Public," § 1494 ff.; Despagnet, "Droit
Int. Public," § 682 ff.
[434] Walker, "Science of Int. Law," p. 296.
[435] See Treaties of U. S. under respective dates.
[436] See Appendix, p. 398.
[437] For the discussion of "the immunity of private property on the
high seas," at the Hague Peace Conference, see Holls, 306 _et seq._
[438] Proclamations and Decrees during the war with Spain, pp. 77,
93.
[439] 3 Whart., § 391.
[440] Appendix, p. 365.
[441] "De Jure Belli," Bk. III., Ch. i., 5; The "Petershoff," 5
Wall., 28, 58.
[442] Woolsey, "Int. Law," § 194.
[443] U. S. Naval War Code, Arts. 34, 36; Appendix, p. 412; see
Propositions Institute Int. Law, Cambridge, 1895, §§ 3 and 4.
[444] The "Commercen," 1 Wheat., 382.
[445] See article of John Bassett Moore in _Review of Reviews_, May,
1899.
[446] The "Jonge Tobias," 1 C. Rob. 329.
[447] The "Staadt Embden," 1 C. Rob. 26; Takahashi, p. 94.
[448] Perels, "Manuel Droit Maritime," § 46, p. 283.
[449] p. 690, § 247.
[450] In some cases, belligerents exercise the so-called right of
using or destroying belligerent property on the plea of necessity,
giving compensation. This practice is called "angary" or
"prestation," and is by most jurists either condemned or regarded
with disfavor. An illustration is the sinking, during the
Franco-Prussian War of 1870, by the Germans, of several British
merchant ships in the Seine to prevent French gunboats from going up
the river. During the same war, the Germans seized in Alsace, for
military purposes, certain railway carriages of the Central Swiss
Railway and certain Austrian rolling stock, all of which remained in
the possession of the Germans for some time. See Lawrence, § 252;
Hall, p. 765, § 278. See Appendix, p. 402.
[451] 6 C. Rob. 440, 454.
[452] U. S. Naval War Code, Art. 20; Appendix, p. 406.
[453] The "Orozembo," 6 C. Rob. 430.
[454] Wheat., D., p. 648.
[455] The "Kow-Shing," Takahashi, 24-51.
[456] 1 C. Rob. 340, 359.
[457] The "Marianna Flora," 11 Wheat., 1.
[458] "International Law," Naval War College, p. 164; Lawrence, §§
124, 210.
[459] U. S. Naval War Code, Art. 31; Appendix, p. 409.
[460] U. S. Naval War Code, Art. 32; Appendix, p. 410.
[461] U. S. Naval War Code, Art. 33; Appendix, p. 410. Most of the
forms are given in Glass's "Marine International Law."
[462] Hall, p. 644, § 277.
[463] Takahashi, 16-23.
[464] Gessner, "Le droit des neutres sur mer," Ch. IV.; Perels,
"Manuel Droit Maritime," § 56.
[465] U. S. Naval War Code, Art. 30.
[466] Takahashi, p. 13.
[467] Lawrence, § 268; Appendix, p. 409.
[468] Walker, "Science of Int. Law," p. 304.
[469] Appendix, p. 398.
[470] President McKinley's Proclamation of Blockade, during the war
with Spain, is given in Proclamations and Decrees, p. 75, and
President Lincoln's, during the war with the South, in 12 U. S. Sts.
at Large. Appendix, ii, iii.
[471] Declaration of Paris, Appendix, p. 398.
[472] Art. 37; see Appendix, 412.
[473] Calvo, § 2841.
[474] "International Law," Naval War College, p. 155.
[475] "Juffrow Maria Schroeder," 3 C. Rob., 147, 153, 154.
[476] See 3 Phillimore, Chap. XI.
[477] The "Maria," 5 C. Rob., 365, 368.
[478] 5 C. Rob., 385, 396.
[479] p. 695 n, § 247.
[480] 3 Wall., 514.
[481] Blatchford's Prize Cases, 387, 405, 407; Snow's "Cases," p.
509.
[482] Appendix, p. 398.
[483] U. S. Naval War Code, Arts. 13, 14, 21.
[484] Lawrence, § 212.
[485] Takahashi, p. 105.
[486] U. S. Rev. Sts., § 563, cl. 8; 18 St., 316, c. 80.
[487] U. S. Rev. Sts., § 4618, also 1624, par. 16-17; 4615, 4617,
4621; The "Nassau," 4 Wall., 634.
[488] Wheat., D., n. 186, III.; U. S. Rev. Sts. § 4622.
[489] Wheat., D., n. 186, III.; The "Springbok" 5 Wall., 1; The "Sir
William Peel," _ibid._, 517.
[490] Wheat., D., n, 186, III.
[491] The "La Manche," 2 Sprague, 207. The method of procedure in a
prize court, in case of enemy property, is given in Appendix, p. 421
_et seq._ With a few changes, the same forms may be used in the case
of neutral property. See further on the method of procedure in a
prize court, Takahashi, pp. 11 _et seq._, 73-107, 172-191.
[492] Lawrence, § 212.
[493] Perels, "Manuel Droit Maritime Int.," p. 457.
[494] 30 U. S. Sts. at Large, 1007.
[495] U. S. Naval War Code, Art. 50; Appendix, p. 415; U. S. Rev.
Sts. §§ 4615, 4627, 4628.
[496] This translation is by W. E. Hall, member of the Institute.
[497] See Holls, "Hague Peace Conference," 457.
[498] The modified text alone is given. The entire report of the
proceedings by Sir A. Horsford will be found in 2 Lorimer, 337 _et
seq._
[499] See Glenn, 373; Holls, "Hague Peace Conference," 457.
[500] See Holls, "Hague Peace Conference," 121 _et seq._
[501] The British Foreign Enlistment Acts of 1819 and 1870 may be
found in 2 Lorimer, 476 _et seq._
[502] See late U. S. statute cited on p. 327.
[503] See 1 Whart., § 67.
[504] See _ibid._, §§ 21, 50 c., 3 _ibid._, § 350.
[505] Attorney Gen'l _v._ Sillem _et als_, 2 Hurlstone _v._ Coltman,
Exchequer Reports, 431.
[506] Page 544. For the cases of the "Pampero" and the two iron-clad
rams, see Wheat., D., note p. 572 _et seq._
[507] The American view may be found in Cushing's "Treaty of
Washington," and the British in Bernard's "Historical Account of the
Neutrality of Great Britain during the American Civil War."
[508] See Wheat., D., note p. 553 _et seq._
[509] Hall, § 225.
[510] U. S. Treaties, 481.
[511] Argument of Sir R. Palmer in the "Argument at Geneva,"
published by the United States at p. 426 _et seq._
[512] 7 Cranch, 116.
[513] Argument of Mr. Evarts in "Argument at Geneva," p. 448 _et
seq._
[514] Decision and Award of the Tribunal of Arbitration in 3
Wharton, § 402 a.
[515] pp. 553, 554.
* * * * *
Transcriber's note:
Obvious errors of punctuation have been corrected. A list of the
other changes follows.
In " +Calvo, Ch.+ Droit International. 5e éd. 6 vols. 1896." "ed."
changed to "éd." (for French édition)
In "Nearly all the important states of the world acceded" "acceeded"
changed to "acceded"
In "from a failure to fulfill the obligations of neutrality" "fulfil"
changed to "fulfill"
In 455 "Kow-shing" changed to "Kow-Shing"
In index entry "Guerrilla troops" "Guerilla" changed to "Guerrilla"
to match spelling on referenced page
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