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I 








i 



STUDENTS LEADING CASES 
AND STATUTES 

ON 

INTERNATIONAL LAW 



BY THE SAME A UTHOB 

THE LAW OF DOMICILE IN ITS 
RELATION TO SUCCESSION AND 
THE DOCTRINE OF RENVOI 

Beihg ths Yorke Prize Ksiat for 1910 

THE LAW OF PRIVATE PROPERTY 

IN WAR 

Bbikg the Yoeke Prize Ebsat for 190C 

Price6iim 



STUDENTS LEADING CASES 

AND STATUTES 

ON 

INTEKNATIONAL LAW 



ABBANGED AND EDITED WITH 
NOTES BY 

NORMAN BENTWICH 

OF Lmcoiiiv's Inn BABRi8TER-A.T-LAir 

▲UTBOB OF "TBS DECl^LAATION OF LONDON** **THE LAW OF 

DOMICILE AND SUCCBBBION ** 



WITH AN INTBODUCTOBY NOTE BY 

PROFESSOR L. OPPENHEIM 

WHSWSLL PB0FBB80R OF INTERNATIONAL LAW AT 
TBB UNITERSITY OF CAMBRIDGE 









• •> 



t « 






LONDON 
SWEET & MAXWELL LIMITED 

3 CHANCERY LANE W.C. 



JX <■' '^ 






\ 



• 



• 



• • • « • -• • • 



• - ' - • 



* • 



BALLAKTYNE A COMPANY LTD 
Taviptock Strskt Covbnt Gakdeii 



PREFACE 

This book is primaiily designed foi students who are starting 
on the study of international law ; and it is meant to be used 
as a companion to the principal English text-books. No 
attempt has been made to render it suiBicient in itself, or to 
link up the leading cases with such an amount of commentary 
as would render the use of a text-book unnecessary. In this 
respect the collection of cases differs from that made by Mr. 
Pitt-Cobbett, and it differs also in that it gives the ijmssima 
verba of the judges, in place of a digest or summary of their 
judgments. Many of the decisions are indeed abridged, but 
it is hoped that the mateiial parts which deal with points of 
international law have always been given. It is very desirable 
that the student should become acquainted as early as possible 
with the way in which questions of international law are dealt with 
by the Courts, and that he should study not only the results 
of the cases but the methods by which the results are reached. 
There exists already a well-known selection of international law 
cases in English, based on this principle. It is that originally 
made by Professor 'Snow and subsequently edited and enlarged 
by Professor J. B. Scott of the G^rge Washington University. 
For two reasons, however, the book is not altogether suitable 
for EngUsh students ; it is somewhat large, and the selection 
is primarily made from American decisions. Although the 
judgments of international law by the nature of their subject 
should not differ fundamentally in different national jurisdic- 
tions, there is an obvious advantage to the student in studying 
the subject as it has been expounded by the Courts of his own 
country. I have, therefore, made my selection as far as possible 
from the English cases, and I have used American cases only to 



330959 



vi PREFACE 

•appjement the English or to fiU a gap in the chain of English 
anthority. I have also thought it best to exclude statements 
and opinions on international law which have not the f onn or the 
force of judicial decisions. Such sources of the law are amply 
dealt with in the text-books, and thej have not the same edu- 
cational value as a judgment arrived at after Htigation in a 
particular case. I have included, on the other hand, citations 
from the awards in several international arbitrations to which 
England has been a party, because the decisions of international 
tribunals are in a very complete sense leading cases in inter- 
national law. Similarly I have included the material parts of 
several English statutes declaratory of international law as 
applied in England, because it is not always easy for the students 
to find these statutes, and they are too, in a full sense, binding 
authorities. The law of war has been treated less fully than 
the law of peace, because only a division of it is the subject of 
judicial decision. Moreover that division is now in large part 
codified, and many judicial decisions given before the codification 
are therefore of doubtful importance. 

I have endeavoured to classify the cases in groups of three or 
more which illustrate different aspects of the same subject, 
and in the notes I have given references to decisions which bear 
upon the same question or suggest a different view. Save in one 
or two cases, where it did not seem necessary, I have prefixed 
to the judgment a headnote and a summary statement of the 
facts. And at the head of each division of the subject I have given 
the references to the sections or pages of the principal English 
text-books on international law which are used by students. 

Lastly I desire to thank very sincerely my friend Professor 
Oppenheim, Whewell Professor of International Law at Cambridge 
University, who has had the kindness to look through this book 
in proof, to make many helpful suggestions, and to write an 
introductory note which imparts to it more authority than the 
editor could have given. 

Oaibo, Feb. 2Bth, 1913. 



INTRODUCTORY NOTE 

My friend Mr. Nonnan Bentwich, the author of this excellent 
Case Book on International Law, was anxious that a teacher 
should look through the proo& in order to ascertain whether the 
book could be used with profit by young students. Although I 
consider that Mr. Bentwich, who has enriched the literature on 
International Law by several excellent contributions, possesses 
sufficient authority to judge for himself the value of his book, I 
have complied ?ri<li his wish, and it gives me much pleasure to say 
that this Case Book is admirable from every point of view and may 
be specially recommended to be used by young students in con- 
junction with their lectures and their reading of text-books. The 
number of hours which are available in English Universities and 
Law Schools for a course of lectures on International Law are not 
sufficient to discuss cases in detail, and for this reason the study 
of cases is almost invariably left to private reading. Of course, 
the ideal is that the cases should be read in the Reports, but 
young students frequently have neither the Reports at hand nor 
sufficient time to go from Report to Report and pick out the 
cases of interest to them. Hence it is of tiie greatest importance 
that students should possess a selection of cases within a small 
compass which would enable them to read the leading cases along 
with their lectures on International Law. 

In this connection some remarks concerning the value of 
municipal cases for the study of International Law may not be 
supeifluous. International Law being a law between States, 
Municipal Courts by their decisions can neither directly call a 
rule of International Law into existence, nor take the life out of a 

recognized rule of International Law. It is the Governments of 

.. 

vu 



viii INTRODUCTORY NOTE 

the civilized States which, either ezpreBdj by a law-rnaking 
treaty or customarily in their intercourse with one another, 
create rules of International Law. Furthermore, in their ad- 
ministration of justice Municipal Courts cannot apply a rule of 
International Law unless, and in so far as, such rule has been 
adopted into their Municipal Law either by a special Act of the 
legislature, or by custom, or implicitly. If Municipal Courts find 
that a certain rule of International Law has not been so adopted, 
they cannot apply it ; and if they find that their Municipal Law 
contains a rule which is in indubitable conflict with a rule of Inter- 
national Law, they must ignore the latter and apply the former. 
But it is obvious that the several States, in order to fulfil their 
international obligations, are on the one hand compelled to adopt 
certain rules of International Law into their Municipal Law, and 
on the other hand are prevented from having such rules in their 
Municipal Law as are in conflict with the recognized rules of 
International Law. And here is the point where the importance 
of Municipal case law for students of International Law becomes 
apparent. .,. 

International Law is still to a great extent a book law, a law 
the rules of which are abstracted by the writers of treatises from 
the practice of the States in their intercourse with one another. 
Since the character of the Family of Nations as a body of sovereign 
States excludes the existence of a central poUUcal authority above 
the sovereign States which could enforce the application of the 
rules of International Law, this law naturally lacks that particular 
sanction which Municipal Law possesses, and for this reason it is 
frequently maintained that International Law is not law at all. 
Now the practice of the Courts of his country shows to a student 
that International Law is real law, and that it finds application in 
every-day life. Thus by reading British cases concerning rules 
of International Law the student's attention is continuously 
drawn to the fact that innumerable rules of International Law 
are appUed by British Courts, and the necessity^ and^value of the 
study of International Law is thereby placed beyond all doubt. 

On the other hand, the study of practical cases enlivens the 



INTRODUCTORY NOTE ix 

abstract rules which are tanght in lectures and books. The 
cases, so to say, supply the flesh for the skeleton offered by 
lectures and treatises. By reading the cases a student watches 
the Courts in their interpretation of the rules of International 
Law, in their manner of drawing consequences from these rules, 
in their endeavour to fit the abstract rules to the concrete cases. 
The student observes that the Courts apply rules of International 
Law in the same way as they apply rules of Municipal Law, and 
thereby he must become convinced that the rules of International 
Law are capable of application with the same exactitude of 
method as rules of Municipal Law. 

At the present time this conviction is of particular importance 
on account of the cleavage between what on another occasion^ 
I have caUed the legal and diplomatic schools of International 
jurists. The diplomatic school considers International Law to bCf 
and prefers it to remain, rather a body of elastic principles than 
of firm and precise rules, and opposes the establishment of 
International Courts of Justice because it considers the diplo- 
matic settlement of international disputes, and failing this 
arbitration, preferable to the international administration of 
justice by international Courts. The legal school, on the other 
hand, desires International Law to develop more or less on the 
lines of Municipal Law, aiming at the formulation, if not codifi- 
cation, of firm, decisive, and unequivocal rules of International 
Law, and working for the establishment of International Courts for 
the purpose of the administration of international justice by per- 
manently appointed independent judges trained in the law. He 
who watches the development of affairs with a critical eye, cannot 
doubt that the future belongs to the legal school of international 
jurists. The rules of International Law now require such an 
authoritative interpretation and administration as only Courts of 
Justice can supply. If we desire more harmony and lees strife, 
many a rule of International Law must be made firmer, more de- 
cisive, and more unequivocal than hitherto, and the establishment 

1 8ee my treatise on Intemational Law, toI. i. (second edition, 1912}, p. 
S2(5) 



INTRODUCTORY NOTE 



of International CooitB would greatly assist in this development. 
Municipal Courts, and British Courts in especial, have in the past 
greatly assisted in shaping many of the rules of Intemational 
Law, but there are a number of rules which, by their nature, can 
never come within the range of Municipal Courts ; it is only 
Intemational Courts which can subject such rules of Intemational 
Law to adequate treatment. 

L. Ofpevhsim 
Cambridge, February 14, 1913 



TABLE OF CONTENTS 

PART I. THE LA.W OF PEACE 

CHAP. PAGE 

L Thx Natubb OT Intbbitational Law 

Wett Band Central Odd Mining Company, Limited v. 

Begem 1 

The Queen ▼. Keyn {The J^raneoiud) 6 

The Scotia 10 

Intibkational Law and Mnir icepal Law 

Mortenaen v. Petere 12 

n. Classiuciatiok of Statbb 

The Charhieh 17 

PBOTBOrOBATBS 

The Ionian Ships 19 

Bex v. Crewe [Earl of) : Ex Parte Sehgome 21 

m. Ghakqbs in thx Conditions of Intxbnational Pbbsons 

The Sapphire 23 

Thompson v. PowUs 25 

Bboognition of States 

BepMie of Peru v. Dreit^ Brothers 27 

IV. StATB SXTOOBSSION 

West Central Gold Mining Co. v. Begem 31 

United States ▼. Percheman 38 

United Stales v. Prioleau 40 

Thx Rights of a Gonqttxbino Statb 

Campbea v. HaU 44 



xii CONTENTS 



CHAP. FA«B 

V. AoQuisinoH ow Tibbitoet 

Johnaon y. Mclniot^ 47 

The Fama 61 

VL TlBBITOSIAL WaTIBS 

The Anna 63 

Territorial Waters Jniisdiotion Act 66 

Tbbbitobial Gulfs and Bays 

The Direct United States Cable Company v. The Anf^ 

American Telegraph Cmwpany 60 

The North Atlantic Coast Fisheries AfbUroUan 62 

VII. Limits OF National JuBisDiGTiOH 

MacLeod v. Attomey-Oeneral for New South Wales 67 

Gnrdyal Singh v. Bajah of FaridhoU 69 

EZOSPTIOKAL JmUBDICfTIOK : 

I. Christian Subjects resident in Eastern Countries 

Pcipayanni v. The Eussian Steam Navigation Company 71 

n. Juiisdiotion on the High Seas^ 

Marshall v. Murgatroyd 74 

The Queen v. Keyn 76 

Regina v. Ledey 77 

m. Piracy 

United States v. iSTmitA 79 

Thr MttftrUm Pirnlirr " 82 



ym. EXTKADmON 

United States ▼. i2aiMd^r 84 

The Extradition Act, 1870 90 

NON-EXT&ADITIOK OF POUTIOAL CbIMIHALS 

/n Re CasUoni 99 

LlMiTS OF EXTBADITIOIT 

The Queen v. 6biiz 107 

FOBMALITIIS OF EXTRADITION 

The Award in the Savarhar Arbitration 109 



CONTENTS xi 



PAfll 

DC IiannnCTs ibom Natiohal JuBisDionoir 

L PtiyilegeB of Monarohw in Foreign OountriM 

HuUei y. The King cf SjhUh 111 

n. Right of a State to sue abroad 

UfiUed 8taUs v. Wagner 112 

HL Immimity of Pobfic VeeBela of a Foreign State 

The Schooner Bxchange ▼. M'FadAfm 115 

The ParUmeni Edge 123 

IV. Immimity of Ambaasadon from Suit 

Aot of 1709 127 

^^MagdaUna Steam Navigation Compemy v. Marten 190 

« Maoarineg y. QarbuU 123 

V. PtiyilegeB of Gonsols 

FftwMft y. Becker 134 

X Natiohality ahd Aubnaob 

L Bight of a State to Refuse Admission to Aliens 

Mnagrove y. Chun Teeong Toy 138 

n. The Right of Ezpatiiation 

Bex y. Lynch "' 140 

nL Resident Alien's Daty of All^gianoe ' 

De Jager y. Atkumey'Ckneiral of Nakd 142 

XL Enraci ow TsMAnm as MinraoiPAi* Law 

Waikerr.BaM ,v 145 

Foster y. NeUaon 147 

Enraci ow Wab on TBiATDur 

Sutton Y. Sntton 14$ 

Society for the PnypagaUon oi the Qoapei y. Toum oj 

^ Newhaven 140 

PART n, THE LAW OF WAR 

ynr. Tea Riohtb ow BxixiaaBjanv : Hoernia Ehbasoo 

TheBoedusLoit 151 

PBizaCk>UBT8 

The Hqiria (No. 1) (53 



Jdv CONTENTS 



PAGE 



CHAP. 

XU. — continued. 

Visit and Sbabgh 

« * The Maria I54 

DBSTBuonoN OF Pbizbs 

The Leucade I57 

pRizis Caftubbd in Nsutkal Watxbs 

The Anne I59 

Xm. Non-Intsbcoubss with thb Enekt 

• The Hoop -- 151 

New York Life Insurance Company ▼. Stathem ^ 166 

Janaon ▼. DriefimMn Conaolidated Mines, LimUed 170 

XIV. Enbmt Gharaotbb ^ 

- The Indian Chief ^ I75 

The Harmony IgO 

Tbansvsb ow ENmcT VassBLs to Nbutbai^ 

*Whe BaUica lg3 

The 8aUy 185 

XV. Effbots OF Military OoouPATiON 

United Stales y. ilice 137 

The Oerasimo Igg 

XVL Obuoationb of Nbutbality 

The Foreign EnliBtment Act, 1871 103 

The Geneva Award 201 

The IniemaUonal 208 

XVIL BaLUomuDTT BioHTB AOAZN8T NsimuLs 
L Oontraband 

The Jonge Margareiha 213 

The Doctrine of Oontinaoiu Voyage 

The Imina 217 

> The Peterhoff 218 

Contraband Trade and Municipal Law 
Chavasse, Ex Part^ goj 



CONTENTS XV 



CHAP. PAGE 

n. Blockade 

The Frederick Molke 225 

^TheBetaey 227 

The Helen 230 

DDL RdIb of the War of 1766 

The ImmamLd 234 

•^The William 237 

IV. Unneutnl Service 

The Atalania 241 

TheOrozemho 244 



TABLE OF CASES 

(Principal oaaee appear in leaded type : caaes referred to in the 
principal cases or in the notes thereto are in ordinary type.) 



A 

Adala» The, 224 
Albrecht v. Snssman, 174 

Anna^The, 53 
Anne, The, 159 

Ariel, The, 186 

Atalanta, TIm» 241 
Attomey-Qeneral «. Sillem, 212 

B 
- Battioa, The, 183 v 

^Barbmt'BC!a8e,4 
Barclay v. Riunell, 28 
Belgenland, The, 75 

Betaqr, The, 227 
^ Boediu Liiit» The, 151 



Campbell V. Ball, 44 
vCaatUiiii,IiaBe,99 
CharUAh, The, 17 
C!ia?aMe : Bz Parte, 221, 233 
Conatitation, The, 123 

Cook V. Sprigg, 35 
Cookeey v. Anderson, 71 
Corinthe v. Eoolesiastics of St. 
Snlpioe, 50 

D 

De Tager v. Attomey-Oeneral of 
Hatel,l42 



Direct United Btatea Cable Co. v. 
Aosl<HAmerioan Telegraph 
Ca.00 

Duke of Bnmswiok v. King of 
Hanover, 111, 112 

E 

Edward, The, 217 
Emanuel, The, 236 ^ 
Esposito V. Bowden, 170, 173 
Essex, The, 239 

** Bzchange '' Schooner v. MTad- v 
don, 115 



.* 



Fama, The, 51 

Fong Yue Ting v. United States, 

139 
Foster v. Neilflon, 147 \ 
franciska. The, 222 

Pranoonia, The. See Beg* v. Keyn 

Frederick MoOte, The, 225 

Q 

Gauntlet, The, 211 

Geraaimo, The, 189 > 

Gist t^. Mason, 165 

Onrdyal fimdi v. Rajah ol Farid- 
kote, 69 



XTU 



XVIU 



TABLE OF CASES 



Harmonyt The, 180 

>• Heathfield v. Clif ton« 4 

Helen, The, 230 

Hilton V. Guyot, 12 

Hoop, The, 161 

Hadson v. Questier, 160 

HuUett V. King of Spain, 111 



Imina, The, 217 
Immannel, The, 234 
Imperial Japanese €k>vemment v, 
P. & O. Company, 74 
«. Indian Chief, The, 175 
International, The, 208 
Ionian Ships, The,l 

J 

^ Janson v. Driefontein Wnet, 
Ltd., 170 

JaBsy, The, 123 
Johanna Emilie, The, 152 
Johnson v. Molntoah, 47 
Jonge Margaretha, The, 213 



Lencade, The, 157 

Le Bret v. Papillon, 173 
The Maehona, 166 

M 

Kaoartney v. Gkurbutt, 132 
Kadeod v. Attorney-General for 

New Sontti Wales, 67 
Hagdalena Steam NaYigatton Co. 

▼.Marten, 130 

Kagellan Pirates, The, 82 

Maria, Hie, 156 

Marshall v. Mnrgatroyd, 75 

Mashona, The, 165 

Mighell V. Sultan of Johore, 112 

Mortensen v. Peteie, 12 



Musgrore v. Chnn Teeong Toy, 

138 
Mnsums Bey v. Gadban, 132 

N 

Neptune, The, 224 ; 
Nereide, The, 12 

SfNew York Life Insurance Co. v. 
Statham, 166 

Nigel Gold Mining Co. v. Hoade, 
180 

O 

Oroiembo, The, 244 v 



Papayanni v. Russian Steam 

Navigation Co., 71 
Paqaette Habana, The, 5 

Parlement Beige, The, 123 
Peterhoft, The, 218 



Queen v. 



Q 

See "Reg, 

R 



Beg. V. Anderson, 77 
Beg. V. Cunningham, 61 

Beg. V. Gam, 107 
Beg. V. Keyn, 6, 6, 75 
Begina v. Lesley, 77 

Bepublio of Bolivia v. Indemnity 
Marine Insurance Co., 81 

Bepublio of Peru v. I>reyfus 
Brothers, 27 

Bez V. Crewe, Earl of : Bz Parte 

Sekgome, 21 
Bez V. Lynch, 140 
RuaseU, Earl of : Case of, 70 

S 
Sally, The, 185 

Santissima Trinidad, The, 233 ' 

Sapphire, The, 23 



TABLE OF CASES 



XIX 



Sootia, The, 10 
Sekgome : BzParte,2l 

Seton V. Low, 221 

Society for Propagation of the 
Gospel V. Newhaven, 149 

Sterfe, The, 227 

Statbam v. Statham and the 
Gaekwar of B^roda, 19, 112 

Staroasberg v. Republic of Costa 
Rica, 112 

V Snttcm V. Sutton, 148 



Thompflon v. Powles, 25 

Triqnet v. Bath, 4 

U 

*f United States v. Ambrose Light, 83 
United States v. Macrae, 44 



United States v, Moreno, 39 
United States v. Percheman, 36, 38 
United States v. Priolean, 37, 40 
United States v. Banaoher, 84 v 
United States V. Bice, 187 
United States V. Smith, 79 
United States v. Wagner, 112 



Vavaaseur v. Krupp, 112 V 
Venus, The, 180 

Viveash v* Becker, 134 

W 

Walker v. Baird, 145 

West Band Central Wning Ck>. v. 
Begem,!, 31 

Winiam, The, 237 . 

Wolff V. Ozholm, 5 



• " • • 






• « • 



INTERNATIONAL LAW CASES. 

I. THE LAW OF PEACE. 

CHAPTER I. 

THE NATURE OP INTERNATIONAL MW. 

See Oppenheim, as. 9 and 12 ; Hall, p. 16 ; Westlake, pp. 5 and 17. 

WEST RAND CENTRAL GOLD MINING 
COMPANY, LIMITED, v. THE KING. 

Law Reports (1905), 2 K.B.D. 391 ; 74 L J. K.B. 753. 

The nature of International Law and the extent to which it 
forms part of the law of England. 

Caee. — ^A petition of right alleged that before the outbreak of 
war between the late South African RepubUc and Great Britain, 
gold, the produce of a mine in the republic owned by the sup- 
phants, had been taken from the suppliants by officials acting 
on behalf of the government of the republic ; that the govern- 
ment by the laws of the republic was liable to return the gold 
or its value to the suppliants ; and that by reason of the conquest 
and annexation of the territories of the republic by her late 
Majesty, the obligation of the government of the republic toward 
the suppliant in respect of the gold was now binding upon 
His Majesty the King. 

In the course of his judgment Lord Alverstone (L.C.J.) dis- 
cussed the propositions put forward by the suppliant that inter- 
national law was part of the law of England, and that by inter- 
national law the conquering State had to discharge the liabilities 
of ihe conquered State : 



. . ? ; . Tfnr :na tvre. of interna tional la w 

Judgment. — Lord Robert Cecil ^ argaed that all contractual ob- 
ligations incurred by a conquered State, betore war actually breaks 
out, pass upon annexation to the conqueror, no matter what was 
theirnature, character, origin, or history. He could not indeed do 
otherwise, for it is clear that if any distinction is to be made it 
must be made upon grounds which, without depriving the 
original liability of its character of a legal obligation against the 
vanquished State, make it inexpedient for the conquering State 
to adopt that liability as against itself ; in other words, upon 
ethical grounds, into which enter considerations of propriety^ 
magnanimity, wisdom, public duty, in short, of policy, in the 
broadest and widest sense of the word. It is equally clear that 
these are matters with which municipal Courts have nothing 
to do. They exist for the purpose of determining and enforcing 
legal obligations, not for the purpose of dividing them into 
classes, and saying that some of them, although legally binding, 
ought not to be enforced. The broad proposition which thus 
formed the basis of Lord Robert Cecil's argument almost answers 
itself, for there must have been, in all times, contracts made 
by States before conquest such as no conqueror would ever 
think of carrying out. His main proposition was divided into 
three heads. First, that, by international law, the sovereign 
of a conquering State is liable for the obligations of the con- 
quered ; secondly, that international law forms part of the law 
of England; and, thirdly, that rights and obligations, which 
were binding upon the conquered State, must be protected 
and can be enforced by the municipal Courts of the conquering 
State. 

In support of his first proposition Lord Robert Cecil cited 
passages from various writers on international law. In regard 
to this class of authority it is important to remember certain 
necessary limitations to its vahie. There is an essential difEerence, 
as to certainty and definiteness, between municipal law and a 
system or body of rules in regard to international conduct, which, 
so far as it exists at all (and its existence is assumed by the 

^ Counsei for the suppliants. 



TBE NATURE OF INTERNATIONAL LAW 3 

phiase " intematiotiAl law ''), rests upon a confiensus of civilised 
States, not expressed in any code or pact, nor possessing, in case 
of dispute, any authorised or authoritative interpreter; and 
capable, indeed, of proof, in the absence of some express inter- 
national agreement, oiily by evidence of usage to be obtained 
from the action of nations in similar cases in the course of their 
history. It is obvious that, in respect of many questions that 
may arise, there will be room for difierence of opinion as to 
whether such a consensus could be shown to exist. Perhaps 
it is in regard to the extra-territorial privileges of ambassadors 
and in regard to the system of limits as to territorial waters, that 
it is least open to doubt or question. The views expressed by 
learned writers on international law have done in the past, and 
will do in the future, valuable service in helping to create the 
opinion by which the range of the consensus of civilised nations 
is enlarged. But in many instances their pronouncements must 
be regarded rather as the embodiments of their views as to what 
ought to be, from an ethical standpoint, the conduct of nations 
inter «e, than the enunciation of a rule or practice so universally 
approved or assented to as to be fiairly termed, even in the quali- 
fied sense in which that word can be understood in reference 
to the relations between independent political communities, 
" law.*' The reference which these writers not infrequently make 
to stipulations in patticular treaties as acceptable evidence 
of international law is as little convincing as the attempt, 
not unknown to our Courts, to establish a trade custom 
which is binding without being stated, by adducing evidence 
of express stipulations to be found in a number of particular 
contracts. 

The second proposition urged by Lord Robert Cecil, that 
international law forms part of the law of England, requires a 
word of explanation and comment. It is quite true that whatever 
has received the common consent of civilised nations must have 
received the assent of our country, and that to which we have 
assented along with other nations in general may properly be 
called international law, and as such will be acknowledged tod 



4 THE NATURE OF INTERNATIONAL LAW 

applied by oar municipal tribunak when legitimate occasion 
arises for those tribunals to decide questions to which doctrines 
of international law may be relevant. But any doctrine so 
invoked must be one really accepted as binding between nations, 
and the international law sought to be applied must, like any- 
thing else, be proved by satisfactory evidence, which must show 
either that the particular proposition put forward has been 
recognised and acted upon by our own country, or that it is of 
such a nature, and has been so widely and generally accepted, 
that it can hardly be supposed that any civilised State would 
repudiate it. The mere opinions of jurists, however eminent or 
learned, that it ought to be so recognised, are not in themselves 
8ufi5.cient. They must have have received the express sanction 
of international agreement, or gradually have grown to be part 
of international law by their frequent practical recognition in 
dealings between various nations. We adopt the language used 
by Lord Russell of Eillowen in his address at Saratoga in 1896 
on the subject of international law and arbitration : " What, 
then, is international law ? I know no better definition of it 
than that it is the sum of the rules or usages which civilised 
States have agreed shall be binding upon them in their dealings 
with one another." 

In our judgment, the second proposition for which Lord Robert 
Cecil contended in his argument before us ought to be treated 
as correct only if the term " international law " is understood 
in the sense, and subject to the limitations of application, which 
we have explained. The authorities which he cited in support 
of the proposition are entirely in accord with and, indeed, well 
illustrate our judgment upon this branch of the arguments 
advanced on behalf of the suppliants. For instance, Barbuii^e 
Case, Cas. t. Tal. 281 ; Triquet v. Bath, 3 Burr. 1478 ; and 
Heaihfield v. Chilian, 4 Burr. 2016, are cases in which the Courts 
of law have recognised and have given efiect to the privilege of 
ambassadors as established by international law. But the 
expressions used by Lord Mansfield, when dealing with the 
particular and recognised role of international law on thia 



THE NATURE OF INTERNATIONAL LAW 5 

mibject, that the law of nations f onns part of the law of England 
ought not to be construed so as to include as part of the law of 
England opinions of text-writers upon a question as to which 
there is no evidence that Great Britain has ever assented, and 
a fortiori if they are contrary to the principles of her laws as 
declared by her Courts. The cases of Wolff v. Oxholm, 6 M. & S. 
92 ; 18 B.B. 313, and Reg. v. Keyn, 2 Ex. D. 63, are only ilhis- 
trations of the same rule — ^namely, that questions of international 
law may arise, and may have to be considered in connection with 
the administration of municipal law. 

Note, — ^The doctrine here laid down as to the necessity of international 
law being definitely accepted by this country through a treaty or a statute 
or a decision of the judges before the Courts can take note of it has been 
oriticiBed. Dr. Westlake, commenting on the case, said in the Law 
Quarttrly Review (zzii January 1906): "English (}ourts must enforce 
the legal rights given by international law as well as those given by the 
law' of the land so far as they fall within their jurisdiction in respect of 
parties or place." And it is submitted that in some cases custom, as declared 
by the text writers, may be binding on the Courts in the same way as 
mercantile custom when proved is binding. 

The American Courts undoubtedly more willingly adopt general inter- 
national custom as declared by jurists. In a recent American case, 
The PaquetU Eabana (176 U.S. 677), decided by the Supreme Court in 
1899, the recognition of international law as part of the law of the land was 
very clearly enunciated. The case involved the question whether, in the 
absence of municipal law, the principle that fishing smacks belonging to 
an enemy are not subject to seizure had become so well recognised in 
international law as to warrant the Courts in declaring illegal a capture 
made by the United States naval forces. In its opinion the Courts holding 
that by international law the seizure was illegal, say : 

** International law is part of our law, and must be ascertained and 
administered by the Courts of justice of appropriate jurisdiction as often 
as questions of right depending upon it are duly presented for their deter- 
mination. For this purpose, where there is no treaty, and no controlling 
executive or legislative act or judicial decision, resort must be had to 
the customs and usages of civilised nations, and, as evidence of these, 
to the works of jurists and commentators, who by years of labour, research, 
and experience have made themselves peculiarly well acquainted with 
the subjects of v^ich they treat. Such works are resorted to by judicial 
tribunals, not for the speculations of their authors concerning what the 
law ought to be, but for trustworthy evidence of what the law really i^. 



6 THE NATURE OF INTERNATIONAL LAW 

* ... This review of the preoedeote and authorities on the subject appears 
to us abundantly to demonstrate that at the present day, by the genera.! 
consent of the civilised nations of the world, and independently of any 
express treaty or oUier public act, it is an established rule of international 
law, founded on considerations of humanity to a poor and industrious 
order of men, and of the mutual convenience of belligerent States, that 
coast fishing vessels, with their implements and supplies, cargoes and 
crews, unarmed and honestly pursuing their peaceful calling of catching 
and bringing in fresh fish, are exempt from capture as prize of war. 

The exemption, of course, does not apply to coast fishermen or their 
vessels if employed for a warlike purpose, or in such a way as to give aid 
or information to the enemy ; nor when military or naval operations create 
a necessity to idiich aU private interests must give way. 

Nor has the exemption been extended to ships or vessels employed on 
the high sea in taking whales or seals or cod or other fish whidi are not 
brought fresh to market, but are salted or otherwise cured and made a 
regular article of commerce. 

This rule of international law is one which prize Courts administering 
the law of nations are bound to take judicial notice of, and to give efEect 
to, in the absence of any treaty or other public act of their own government 
in relation to the matter." 



THE QUEEN v. KEYN (THE FRANCONIA). 
L.R. 2, Ex. D. 63 ; 46 L.J. M.C. 17. 
CoTirt of Crown Cases Reserved 1876. 

Case. — ^This was a criminal case in which the accused, who 
was the master of a Qerman steamer, was charged with man- 
slaughter of a British subject by the negligent management of 
his vessel, which led to a collision that caused the deceased's 
death. The collision took place in the Straits of Dover within 
three miles of the EngU3h coast, and it was contended for the 
Grown that therefore the ofience was committed within the 
realms of England and was triable by an English Court. 

The point was submitted to the Court of Crown Cases Reserved, 
which by seven judges to six held that the English Court had not 
jurisdiction. In the course of his judgment Cockbum, C.J., 
having considered and zejeoted the theory that the littoral sea 



THE NATURE OF INTERNATIONAL LAW 7 

beyond the low-watei mark did not onginally form part of the 
territory of the realm, turned to the proposition put forward 
on behalf of the Crown that the three-mile zone (bordering the 
coast) was by international law territorial water. He analjrsed 
the nature of international law in the following passage, which 
isj^one of the looi clasHci on the subject : 

Judgment. — " Can a portion of that which was before high sea 
have been converted into British territory without any action on 
the part of the British Government or legislature — ^by the mere 
assertion of writers on public law — or even by the assent of other 
nations ? And when in support of this position or of the theory of 
the three-mile zone in general, the statements of the writers on 
international law are relied on, the question may well be asked, 
upon what authority are these statements founded ? 

^^ When and in what manner have the nations, who are to be 
afiEected by such a rule as these writers, foUowing one another, 
have laid down, signified their assent to it ? to say nothing of 
the difficulty which might be found in saying to which of these 
conflicting opinions such assent had been given. 

*^ For, even if entire unanimity had existed in respect of the 
important particulars to which I have referred in place of so 
much discrepancy of opinion, the question would still remain, 
how far the law as stated by the pubhcists had received the 
assent of the civilised nations of the world. 

" For writers on international law, however valuable their 
labours may be in elucidating and ascertaining the principles 
and rules of law, cannot make the law. To be binding, the law 
must have received the assent of the nations who are to be 
bound by it. This assent may be express, as by treaty or the 
acknowledged concurrence of governments, or may be imphed 
from established usage — an instance of which is to be found in 
the fact that merchant vessels on the high seas are held to be 
subject only to the law of the nation under whose flag they sail, 
while in the ports of a foreign State they are subject to the local 
law as well as to that of their own country. In the absence of 
proof of assent, as derived from one or other of these sources. 



8 THE NATURE OF INTERNATIONAL LAW 

no unanimity on the part of theoretical writers would warrant 
the judicial application of the law on the sole authority of their 
views or statements. Nor» in my opinion^ would the clearest 
proof of unanimous assent on the part of other nations be suffi- 
cient to authorise the tribunals of this country to apply, without 
an Act of Parliament, what would practically amount to a new 
law. In so doing we should be unjustifiably usurping the province 
of the legislature. The assent of nations is doubtless sufficient 
to give the power of parliamentary legislation in a matter other- 
wise within the sphere of international law, but it would be 
powerless to confer without such legislation a jurisdiction beyond 
and unknown to the law, such as that now insisted on, a jurisdic- 
tion over foreigners in foreign ships on a portion of the high 
seas. 

" When I am told that all other nations have assented to such 
an absolute dominion on the part of the littoral State, over this 
portion of the sea, as that their ships may be excluded from it, 
and that, without any open legislation, or notice to them or 
their subjects, the latter may be held liable to the local law, I 
ask first what proof there is of such assent as here asserted ; 
and, secondly, to what extent has such assent been carried ; a 
question of infinite importance when, undirected by legislation, 
we are called upon to apply the law on the strength of such 
assent. It is said that we are to take the statements of the 
publicists as conclusive proof of the assent in question, and 
much has been said to impress on us the respect which is due 
to their authority, and that they are to be looked upon as wit- 
nesses of the facts to which they speak, witnesses whose state- 
ments, or the foundation on which those statements rest, we 
are scarcely at Uberty to question. I demur altogether to this 
position. I entertain a profound respect for the opinion of 
jurists when dealing with the matters of judicial principle and 
opinion, but we are here dealing with a question not of opinion 
but of bict, and I must assert my entire Uberty to examine the 
evidence and see upon what foundation these statements are 
based." 



THE NATURE OF INTERNATIONAL LAW 9 

Ii the same case Lord Coleridge (C. J.), who dissented from the 
opiiion of the majority of the Court, dealt with the binding 
character of international law. Laying down that in his opinion 
the ofience was committed in English territory and that it was 
impossible to hold that England ended with low-water mark, he 
eontinned : 

** I do not, of course, forget that it is freely admitted to be 
within the competency of Parliament to extend the realm how 
far soever it pleases to extend it by enactments, at least so as to 
bind the tribunals of the country ; and I admit equally freely 
that no statute has in plain terms, or by definite limits, so 
extended it. 

^* But, in my judgment, no Act of Parliament was required. 
The proposition contended for, as I understand, is that for any 
act of violence committed by a foreigner upon an English subject 
within a few feet of low-water mark, unless it happens on board 
a British ship, the foreigner cannot be tried, and is dispunish- 
able. . . . 

*^ By a consensus of writers, without one single authority to 
the contrary, some portion of the coast-waters of a country is 
considered for some purposes to belong to the country the coasts 
of which they wash. . . . 

" This is established as solidly as, by the very nature of the 
case, any proposition of international law can be. Strictly 
speaking, international law is an inexact expression, and it 
is apt to mislead if its inexactness is not kept in mind. Law 
implies a law-giver, and a tribunal capable of enforcing it and 
coercing its transgressors. 

** But there is no common law-giver to sovereign States and 
no tribunal has the power to bind them by decrees or coerce 
them if they transgress. The law of nations is that coUection 
of usages which civilised States have agreed to observe in their 
dealings with one another. What these usages are, whether a 
particular one has or has not been agreed to, must be matter of 
evidence. Treaties and acts of State are but evidence of the 
agreement of nations, and do not, in this country at least, per se 



10 THE NATURE OF INTERNATIONAL LAW 

bind the ttibunalB. Neither, certainly, does a consemms of junsts ; 
but it is evidence of the agreement of nations on international 
points ; and on such points, when they arise, the English Conrts 
give effect, as part of English law, to such agreement. . . . 

" We find a number of men of education, of many difEeient 
nations, most of them uninterested in maintaining any particular 
thesis as to the matter now in question, agreeing generally for 
nearly three centuries in the proposition that the territory of a 
maritime country extends beyond low-water mark. 

'^ I can hardly myself conceive stronger evidence to show 
that, as far as it depends on the agieement of nations, the teiritoiy 
of maritime countries does so extend. . . . 

*' If the matter were to be determined for the first time, I 
should not hesitate to hold that civilised nations had agreed to 
this prolongation of the territory of maritime States, upon the 
authority of the writers who have been cited in this argument 
as laying down the affirmative of this proposition. . . ." 

Note. — ^The question in this case was settled by the Territorial Waters 
Jurisdiction Aot, 1878. (See below, p. 66.) 



THE SCOTIA. 

SUPRBMB COUBT OF THB UNITED StATBS, 1871. 

14 Wallace, 170. 

General Principles of International Law of the Sea. 

Judgment (Strong, J.). — . . . '* Undoubtedly, no single 
nation can change the law of the sea. That law is of uni- 
versal obligation, and no statute of one or two nations can 
create obligations for the world. like all the laws of nations, 
it rests upon the common consent of civilised communities. 
It is of force, not because it was prescribed by any superior 
power, but because it has been geneially accepted as a role 
of conduct. Wliatever may have been its origin, whether in the 
usages of navigation or in the ordinances of maritime States, 



THE NATURE OF INTERNATIONAL LAW ii 

ox in bothy it has become the law of the sea only by the 
ooncnizent sanction of those nations who may be said to con- 
Btitnte the commeicial world. Many of the usages which prevail, 
and which have the foice of law, doubtless originated in the 
positive piescriptioDs of some single State, which were at fiist of 
limited efEect, but which when generally accepted became of 
universal obligation. The Rhodian law is supposed to have been 
the first system of marine rules. It was a code for Bhodians 
only, but it soon became of general authority because accepted 
and assented to as a wise and desirable system by other maritime 
nations. The same may be said of the Amalphitan Table, of the 
ordinances of the Hanseatic League, and of parts of the marine 
ordinances of Louis XIY. They aU became the law of the sea, 
not on account of their origin, but by reason of their acceptance 
as such. And it is evident that unless general assent is efEicacious 
to give sanction to international law, there never can be that 
growth and development of maritime rules which the constant 
changes in the instruments and necessities of navigation require. 
Changes in nautical rules have taken place. How have they 
been accomplished, if not by the concurrent assent, expressed 
or imderstood, of maritime nations ? 

*'When, therefore, we find such rules of navigation as are 
mentioned in the British Orders in Council of January 9, 1863, 
and in our Act of Congress of 1864, accepted as obligatory rules 
by more than thirty of the principal commercial States of the 
world, including almost all which have any shipping on the 
Atlantic Ocean, we are constrained to regard them as in part 
at least, and so far as relates to these vessels, the laws of the 
sea, and as having been the law at the time when the collision 
of which the libellants complain took place. 

" This is not giving to the statutes of any nation extra-terri- 
torial efiEect. It is not treating them as general maritime laws, 
but it is recognition of the historical fact that by common 
consent of mankind these rules have been acquiesced in as of 
general obligation. Of that fact we think we may take judicial 
notice. Foreign municipal laws must, indeed, be pioved as faots, 
but it 18 not so with the law of nations." 



12 THE NATURE OF INTERNATIONAL LAW 

Note, — In this case the American Oonrt applied the navigation r^gnla* 
tiona which were adopted by most of the civilised nations, to a case of 
oollision before it Amerioan Gourts have likewise often applied Britiah 
prize-law as declaring the international law. In The NerMe (9 Cr. 388) 
Marshall, 0. J., dedaied : " Till an Act [of Congress] be passed, the Court 
is bonnd by the law of nations, which is a part of the law of the land.'* 
And in HUkm v. Gyw4 (159 U.S. 113) the United States Sapreme Court 
said; 

^'International law in its widest and most comprehensive sense— including 
not only questions of right between nations, governed by wliat has been 
appropriately called the law of nations, but also questions arising under 
wliat is usually caUed private international law, or the conflict of lawB» 
and conoemiog the rights of persons within the territory and dominion 
of one nation, by reason of acts, private or public, done within the dominion 
of another nation — is part of our law, and must be ascertained and admin- 
istered by the Courts of justuce, as often as such questions are presented in 
litigation between man and man, duly submitted to their determination. 
The most certain guide, no doubts for the decisions of such questions is 
a treaty or a statute of this country. But when, as is the case here, there 
is no written law upon the subject, the duty still rests upon the judicial 
tribunals of ascertaining and declaring what the law is whenever it becomes 
necessary to do so in order to determine the rights of parties to suits 
regularly brought before them." 



International Law and Municipal Law. 

Cf. Oppenheim, chap. i. sees. 20-25 ; Lawrence, ^l^P* i- s^- 9* 

MORTENSEN v. PETERS. 

14 Scot. L.T.R. 227 ; (1906) 8 Fraser 93. 

The national Courts cannot modify the clear construction 
of a Statute by reason of doctrines of international law 
not expressly binding on them. 

C(ue, — ^The appellant, who was the master of a steam-trawler 
legisteied in Norway, was convicted of a breach of the Scotland 
Fishery Act for having used a method of trawling prohibited 
by the regulations mider that Act in a part of the Moray Firth 
more than three miles from the shore. He objected that he was 



THE NATURE OF INTERNATIONAL LAW 13 

not embject to the juiisdiotion of the Scottish Court, and, further, 
that the prohibition of the statute oould not apply to him because 
by international law the littoral State coxdd (apart from special 
conventions) only make regulations binding on foreigners to a 
distance of three miles from the shore. The statute must therefore 
be construed subject to the rules of international law. The 
Full Court of the High Court of Justiciaiy dismissed the appeal, 
holding that the absolute prohibition in a British statute against 
doing a thing in a defined area must be held by a municipal 
Court to be binding on every one within that area irrespective 
of nationality and irrespective of the limitations which inter- 
national law put upon the territorial sovereignty. 

Judgment. — ^The Lord-Justice-General, dealing with the rela- 
tions of municipal and international law, said : 

*' It is not disputed that if the appellant had been a British 
subject in a British ship he would have been rightly convicted. 
Further, in the case of Peters v. Olsen, when the person convicted, 
as here, was a foreigner in a foreign ship, the conviction was held 
good. The only difference in the facts in that case was that the 
locus there was, upon a certain view of the evidence, within 
three miles of a line measured across the mouth of a bay, where 
the bay was not more than ten miles wide, which cannot be said 
here. But the conviction proceeded on no such consideration, 
but simply on the fact that the locus was within the limit 
expressly defined by the schedxde of the sixth section of the 
Herring Fishery Act; and the three learned judges in that 
case did, I think, undoubtedly consider and decide the question, 
whether the sixth section of the Herring Fishery Act (which 
in this intention is the same as the seventh) was, or was not, 
intended to strike at foreigners as well as British subjects. 
But as this is a full bench, we are at liberty to reconsider that 
decision. 

*' My Lords, I apprehend that the question is one of construc- 
tion and of construction only. In this Court we have nothing 
to do with the question of whether the legislature has or has not 
done what foreign Powers may consider a usurpation in a ques- 



14 THE NATURE OF INTERNATIONAL LAW 

tion with them. Neither are we a tribunal sitting to decide 
whether an act of the legislature is uUra vires as in contravention 
of generally acknowledged principles of international law. For 
us an Act of ParUament duly passed by Lords and Commons 
and assented to by the Eling, is supreme, and we are bound to 
give efEect to its terms. The counsel for the appellant advanced 
the proposition that statutes creating offences must be presumed 
to apply (1) to British subjects, and (2) to foreign subjects in 
British territory ; but that, short of express enactment, their 
application should not be further extended. The appellant is 
admittedly not a British subject, which excludes (1) ; and he 
further argued that the locus delicti, being in the sea beyond the 
three-mile limit, was not within British territory ; and that 
consequently the appellant was not included in the prohibition 
of the statute. Viewed as general propositions the two presump- 
tions put forward by the appellant may be taken as correct. This, 
however, advances the matter but little, for, like aU presumptions, 
they may be redargued, and the question remains whether they 
have been redargued on this occasion. 

*^ The first thing to be noted is that the prohibitions here, a 
breach of which constitutes the offence, is not an absolute 
prohibition against doing a certain thing, but a prohibition 
against doing it in a certain place. Now, when a legislature, 
using words of admitted generality — ' It shall not be lawful,' 
A»., * Every person who,' Ac. — conditions an offence by terri- 
torial limits, it creates, I think, a very strong inference that it 
is for the purposes specified, assuming a right to legislate for that 
territory against all persons whomsoever. This inference seems 
to me still further strengthened when it is obvious that the 
remedy to the mischief sought to be obtained by the prohibition 
would be either defeated or rendered less effective if all persons 
whomsoever were not affected by the enactment. It is obvious 
that the latter consideration applied in the present case. What- 
ever may be the views of any one as to the propriety or expediency 
of stopping trawling, the enactment shows on the face of it 
that it contemplates such stopping; and it would be most 



THE NATURE OF INTERNATIONAL LAW 15 

clearly ineffective to debar trawling by the BritiBh subject while 
the subjects of other nations were allowed so to fish. 

" It is said by the appellant that all this must give way to the 
consideration that international law has firmly fixed that a locus 
such as this is beyond the limits of territorial sovereignty ; and 
that consequently it is not to be thought that in such a place the 
legislature could seek to aSect any but the king's subjects. 

** It is a trite observation that there is no such thing as a 
standard of international law, extraneous to the domestic law 
of a kingdom, to which appeal may be made. International law, 
so far as this Court is concerned, is the body of doctrine regarding 
the international rights and duties of States which has been 
adopted and made part of the law of Scotland. Now can it be 
said to be clear by the law of Scotland that the locus here is 
beyond what the legislature may assert right to effect by legis- 
lation against all whomsoever for the purpose of regulating 
methods of fishing ? 

" I do not think I need say anything about what is known 
as the three-mile limit. It may be assumed that within the 
three miles the territorial sovereignty would be sufficient to 
cover any such legislation as the present. It is enough to say 
that that is not a proof of the counter proposition that outside 
the three miles no such result could be looked for. The locus, 
although outside the three-mile limit, is within the bay known 
as the Moray Firth, and the Moray Firth, says the respondent, 
is intra fauces terrw. Now, I cannot say that there is any defini- 
tion of what fauces terrm exactly are. But there are at least 
three points which go far to show that this spot might be con- 
sidered as lying therein. 

^^ (1) The dicta of the Scottish institutional writers seem to 
show that it would be no usurpation, according to the law of 
Scotland, so to consider it. 

'' (2) The same statute puts forward claims to what are at 
least analogous places. If attention is paid to the schedule 
appended to sec. 6, many places will be found far beyond the 
three-mile limit, e.g, the Firth of Clyde near its mouth. I am not 



i6 THE NATURE OF INTERNATIONAL LAW 

ignoring that it may be said that this in one sense is proving 
idem per idem, but none the less I do not think the fact can be 
ignored. 

^^ (3) There are many instances to be found in decided cases 
where the right of a nation to legislate for waters more or less 
landlocked or land-embraced, although beyond the three-mile 
limit, has been admitted. 

*^ It seems to me, therefore, without laying down the proposi- 
tion that the Moray Firth is for every purpose within the terri- 
torial sovereignty, it can at least be clearly said that the appellant 
cannot make out his proposition that it is inconceivable that the 
British legislature should attempt for fishery regulation to 
legislate against aU and sundry in such a place." 

Note, — The Courts are bound to apply the municipal law even if confliot- 
iog with international law, thongh there ia a presumption against such 
confliot. But the Order of the Gonrt will not be enforced if the Powers 
whose subjects are affected by the conflict protest against the extension 
of national sovereignty. Thus in the case here quoted the Norwegian 
was released, and no attempt was made afterwards to enforce the law upon 
Norwegian vessels. 

For the question of the sovereignty of the littoral State over territorial 
bays to a distance beyond three miles from the shore see chapter vL, 
p.eOff. 



CHAPTER II. 
CLASSIFICATION OF STATES. 

Oppenheim, sec. 65 ; Lawrence, sees. 38 and 91 ; Westlake, 

pp. 21-26 ; Hall, pp. 27-28. 

THE '* CHARKIEH," 1873. 

L.R. 4, Admiralty and Ecclesiastical Courts, 59 ; 42 L.J. 

Adm. 17. 

The conditions of international existence as a separate State. 

Ccue. — This was an action of damage brought by the owners 
of the 8.8. Balavier against the screw s.s. Charhieh. A petition 
on protest was filed stating that the Cha/rhieh was a pubhc 
vessel belonging tq the Khedive as reigning sovereign of 
Egypt and was therefore not Uable to arrest. The Court con- 
sidered the status of Egypt and held that the Elhedive was not 
entitled to the privilege of a sovereign prince. In the course of 
his judgment Sir Robert Fhillimore said : 

Judgment, — *^ What were the relations at this epoch existing 
between the Elhedive and the Porte, and what was the nature and 
character of the authority of the former, so far as foreign States 
are connected with these considerations ? Did they entitle the 
ELhedive to the privilege of the sovereign of an independent State 7 
These are questions which must be answered, like all others 
appertaining to international jurisprudence, by a reference to 
usage, authority, and the reason of the thing. 

'^ Many accredited writers and jurists have drawn a distinc- 

tioi^^ wliich seems not to have escaped the framer of the Khedive's 

17 2 



18 CLASSIFICATION OF STATES 

petition on protest now before me, between a sovereignty abso- 
lute and pure and that less complete and perfect dominion to 
which the name of half-sovereignty {demi-souverain) has been 
given. I am incUned to think that the sovereign of a State in the 
latter category may be entitled to require from foreign States 
the consideration and privileges which are unquestionably inci- 
dent to the sovereign of a State who is in the former category. 
There are also certain acts of feudal homage, or, as jurists say, 
BervUfUes juris gemlium, which do not disentitle the State obliged 
to them to an international existence as a separate State. 

*' It may be that if such a status existed de facto, it would not 
be the province of the tribunab of a foreign State to look beyond 
the fact or to inquire minutely or at all into the history of its 
establishment. International law has no concern with the form and 
character of the powers of a State if through the medium of govern- 
ment it has such an independent existence as to render it capable 
of entertaining international relations with other States. . . .^' 

After considering the history of Egypt, the learned judge 
continued : 

'' The result, then, of the historical inquiry as to the status 
of his Highness the Khedive is as follows : That in the firmans, 
whose authority upon this point appears to be paramount, 
Egypt is invariably spoken of as one of the provinces of the 
Ottoman Empire. That the Egyptian army is regulated as part 
of the military force of the Ottoman Empire. That the taxes 
are imposed and levied in the name of the Porte. That the treaties 
of the Forte are binding upon Egypt, and that she has no separate 
jus legationis. That the flag for both the army and the navy is 
the flag of the Porte. 

'^AU these facts, according to the unanimous opinion of 
accredited writers, are inconsistent and incompatible with those 
conditions of sovereignty which are necessary to entitle a country 
to be ranked as one among the great community of States. 

*^ Against this array of negative proof is to be set the solitary 
circumstance that the office of Eliedive is hereditary. It requires 
but little consideration to see that this peculiarity cannot afiEect 
the question. Egypt remains a province of an empire, and does 



CLASSIFICATION OF STATES 19 

not become an empire becaiise her Viceroy is hereditaiy. Tlie 
Viceroy does not become a sovereign prince because his sovereign 
permits him to transmit the Viceroyalty to his descendants in 
the direct male line. The hereditary character does not confer 
on the holder, in this case, the right of making war and peace, 
of sending an ambassador, or of maintaining a separate military 
or naval force, or of governing at all, except in the name and 
nnder the authority of his sovereign. 

** The hereditary character of the Viceroyalty may make the 
Viceroy the chief subject of the Porte, but he is still a subject 
prince and not a sovereign prince or * reigning sovereign ' even 
* of a semi-sovereign State,* according to the terms of the petition 
on protest.* 

Note. — ^E^gypt has perhaps changed her inteniational status since Uiis deci- 
sion was pronounced, though ^diat exactly is her position to-day it is hard to 
say. But the decision is still notable as illustiating Uie rules: (1) Ihatthe 
Bumaioh of a s6mi-sov«reign State enjoys tiie privileges which, according 
to tbe Law of natjoas, the municipal law of the different States must grant 
to the rulers of foreign States {see hehw, p. 111 ff.) ; and (2) that a vassal 
State is considered as a mere portion of the suzerain State. In the recent case 
d SHaiham v. SkUkam and H.H. iM Ckehvar ofBaroda (L. B. 1918, Probate 
(MS) it was held however that the ruler of a vassal State does not, by placing 
himself under the protection ol a suzerain, divest himself of the right of 
government and sovereignty and does not cease to rank among the 
sovereigns who acknowledge no other law than the law of nations, so that 
he oaanot be made a co-respondent to a divorce suit in England. 



Frotbotobates. 

Oppenheim, ss. 92-94 ; Lawrence, s. 43 ; Westlake, p. 22 ; 

Hall, pp. 27-28. 

THE IONIAN SHIPS, 1857- 
** Spink's Oases, p« 193. 

The character of protected States : The subjects of a 
protected country do not necessarily become enemies 
of the enemies of the protecting State. 

Ciue. — ^Two ships flying the flag of the Ionian States were 
seised by British cruisers during the Crimean War on the ground 



20 CLASSIFICATION OF STATES 

thjBLt, beiog British subjects, they weze illegally trading with the 
enemy. The Ionian Islands had been placed by the Treaty of 
Paris, and were at the time, under the protectorate of Great 
Britain, and on the case coming before the Prize Court the 
question of the status of the inhabitants of the Ionian Islands 
was first considered. Dr. Lushington finally held that they were 
not British subjects and that their trading was not illegal. 

Judgment. — After dealing with the first article of the Treaty 
which declares the islands a free and independent State, the 
judgment continued : 

*' The second article is one of great importance, the declaration 
that the State shall be placed under the immediate and exclusive 
protection of the King of Great Britain. I am strongly inclined 
to think that the necessary and inevitable consequence of such 
a condition is that the King of Great Britain has the right of 
making war and peace : indeed such a Power is inseparable 
from protection ; for how coxdd the act of protection be fulfilled 
without such a right ? And how could the Ionian Islands be 
secured from aggression but by the exercise of that power ? But 
it is another and wholly different question whether, in conse-» 
quence of the protectorate right, the Ionian States became ipso 
facto the enemies of aU or any Power or Powers with which Great 
Britain may happen to be at war ; and it is also another and 
different question whether, if Great Britain were, on account of 
the Ionian grievances alone, to adopt measures for their protec- 
tion against any other State, the kingdom of Great Britain would 
necessarily be at war with that State.'' 

Nole. — ^I3iere is a ndioal differenoe between the statas of foreign civiliBed 
ccmntries under the tutelage of a stronger Power and that of unciTilised or 
semi-oiTiliaed countries whiohare placed under the protection of a Eoropean 
States though both are called Flroteot(Hnate& Bat oertain incidents are 
oommon to both, and among them is the fact that their inhabitants do 
notasBUmi tfaeohaiaoter ol subjeotsol the protecting State. [Sm the next 




CLASSIFICATION OF STATES 21 



REX V. CREWE (EARL OF) ; EX PARTE 

SEKGOME. 

L.E. 1910 ; 2 K.B. 576 ; 79 L J. K.B. 874. 

The inhabitants of a protectorate are not British subjects 
and do not owe allegiance to the King. 



Case. — ^The question in this case was whether a writ of habeas 
corptis could issue from the EngUsh Court to determine the 
legality of the detention of a native chieftain in a British protec- 
torate, and the point was argued whether the chieftain was a 
British subject. 
Kennedy, L. J., in giving judgment, said on this point : 
** Upon the first question, namely, whether Sekgome is or is 
not a British subject, I think that the latter view is correct. 
Sekgome was bom and has remained a member of a native 
African tribe called the Batawana tribe, dwelling in a region 
which has for some years become officially entitled '^ The Bata- 
wana Native Beserve," near Lake Ngami, within the Bechuana- 
land Protectorate. Now the features of Protectorates difiEer 
greatly, and of this a comparison of the British Protectorates 
of native principalities in India, the British Protectorate of the 
Ionian Islands between 1815 and 1864, the Protectorate of the 
Federated Malay States, and the Bechuanaland Protectorate 
as constituted by the Orders in Council and Proclamation before 
mentioned, afiEords ample illustration. Other instances of Pro- 
tectorates will be foimd in Wheaton, International Law, 4th 
ed., pp. 51-66. The one common element in Protectorates is 
the prohibition of all foreign relations except those permitted 
by the protecting State. Within a Protectorate, the degree and 
the extent of the exercise by the protecting State of those sove- 
reign powers which Six Henry Maine has described (Inter- 
national Law, p. 58) as a bundle or collection of powers which 
may be separated one from another may and in practice do vary 
considerably. In this Bechuanaland Protectorate eveiy branch 



22 CLASSIFICATION OF STATES 

of such govemment as exists — administrative, executive, and 
judicial — ^has been created and is maintained by Great Britain. 
What the idea of a Protectorate excludes and the idea of annexa- 
tion, on the other hand, would include, is that absolute owner- 
ship which was signified by the word ^ dominium ' in Roman 
law, and which, though perhaps not quite satisfactorily, is 
sometimes described as territorial sovereignty. The protected 
country remains in regard to the protecting State a foreign 
county ; and this being so, the inhabitants of a Protectorate, 
whether native bom or immigrant settlers, do not by virtue of 
the relationship between the protecting and the protected State 
become subjects of the protecting State. As Dr. Lushington 
said in regard to the inhabitants of the Ionian States, then under 
a British Protectorate, in his judgment in the Ionian Ships {see 
above, p. 19), ^allegiance in the proper sense of the term 
undoubtedly they do not owe ; because allegiance exists only 
between the sovereign and his subjects, properly so called^ 
which they are not.' A limited obedience the dwellers within a 
Protectorate do owe, as a sort of equivalent for protection ; 
and in the present case the Orders in Council relating to the 
Bechuanaland Protectorate and the proclamations of the High 
Commissioner made thereunder imply the duty of obedience on 
the part of Sekgome and other persons within the area of the 
Protectorate to a practically unlimited extent." 

Note. — ^Proteotorates hold an anomalouB position in the sooiety of nations, 
and these two cases illustrate the curious position in which their sabjects 
may be placed with reference to the protecting State. They do not become 
subjects of the protecting State, and in case of war they are not necessarily 
involved. The protected State, though it lacks many of the features ci 
sovereignty, yet retains a position ol its own within the family ol nations. 



CHAPTER III. 

CHANGES IN THE CONDITIONS OF INTER- 

NATIONAL PERSONS. 

Oppenheim, as. 76-79 ; Lawrence, s. 48 ; HaU, p. 31 ; Westlake, 

p. 58. 

THE ** SAPPHIRE/' 1870. 

U.S. Supreme Court (11 Wall 164). 

A reigning sovereign may sue in the courts of another 
country : and a suit brought by him does not abate on 
his deposition, but the Republic which succeeds him 
in the government is substituted as of right in the 
proceedings. 

Case. — An American ship, the Sapphire, collided in 1867 with 
the French transport Euryale in the harbour of San Francisco, 
and did it damage. A libel was filed in the American Courts in 
the name of Napoleon III., Emperor of the French, and a sum of 
$10,000 was awarded as damages. An appeal was taken to the 
Supreme Court, and before it was heard the Emperor had been 
deposed. It was argued before the Supreme Court : (1) That 
a reigning sovereign could not sue in a foreign country; 
(2) that even if the suit was rightly brought, it had abated by 
the deposition of the Emperor. The Court rejected both these 
pleas and upheld the award of damages. Mr. Justice Bradley, 
delivering judgment, said : 

Juiqmeint, — '' A foreign sovereign, as well as any other foreign 
person who has a demand of a civil nature against any person hexei 

23 



24 CHANGES IN THE CONDITIONS 

may prosecute it in our Courts. To deny him the privilege would 
manifest a want of civility and friendly feeUng. The Constitution 
expressly extends the judicial powers to controversies between 
a State or citizen thereof and foreign States, citizens, or subjects 
without reference to the subject-matter of controversy. . . . 
There are numerous cases in the English reports in which suits 
of foreign sovereigns have been sustained, though it has been 
held that a sovereign cannot be forced into Court by suit. 

*^ The next question is whether the suit has become abated by 
the recent deposition of the Emperor Napoleon. We think it has 
not. The reigning sovereign represents the national sovereignty, 
and that sovereignty is continuous and perpetual, residing in the 
proper successors of the sovereign for the time being. Napoleon 
was the owner of the EuryaJe, not as an individual, but as sove- 
reign of France. This is substantially averred in the libel. On 
his deposition the sovereignty does not change, but merely the 
person or persons in whom it resides. The foreign State is the 
true and real owner of its public vessels of war. The reigning 
emperor, or national assembly, or other actual person or party 
in power, is but the agent and representative of the national 
sovereignty. A change in such representative works no change 
in the national sovereignty or its rights. The next successor 
recognised by our Government is competent to carry on a suit 
already commenced and receive the fruits of it. A deed to or 
treaty with a sovereign as such inures to his successor in the 
government of the country. If a substitution of names is neces- 
sary or proper it is a formal matter, and can be made by the 
Court under its general power to preserve due symmetry in its 
forms of proceeding. No allegation has been made that any 
change in the real and substantial ownership of the Euryale has 
occurred in the recent devolution of the sovereign power. The 
vessel has always belonged and still belongs to the French 
nation." 

Note, — ^Xhe first part of this judgment dealing with the right of a aoye- 
reign to sue abould be compared with the cases of JurisdiotionoverSove- 
reignB ; ue hdow^ p. Ill, 



OF INTERNATIONAL PERSONS 25 



THOMPSON V. POWLES. 

(1828) 2 Simons 194. 

The Courts cannot recognise persons declaring themselves 
to be the Government of a foreign country till the 
Executive of the State has recognised them, and they 
will not uphold a contract made with such persons as a 
Government. 

Case. — The defendants, zepiesenting themselves to be the 
agents of the Government of the Federal Republic of Central 
America, which claimed to be a sovereign and independent 
State, publicly announced their intention of raising a loan for 
the said RepubUc on the security of bonds of the said Govern- 
ment, and the plaintiff, on the strength of their announcements, 
purchased the securities. 

The plaintiff subsequently discovered that the defendants 
were not authorised to raise the loan, and sought to recover his 
money, but the defendants then put in demurrers to the claim 
on the ground that the State of Guatemala had never been 
acknowledged by Great Britain, and therefore the transaction 
was altogether illegal and the Court could not aid the plaintiff 
to recover his money. 

In the course of his judgment dismissing the claim, Shadwell, 
V.C., said : 

Judgment. — ** But there is this further consideration ; that 
this is represented to have been a contract, by the plaintiff, to 
purchase the obUgations of persons who were stated to be the 
Government of the Federal Bepublic of Central America. 

*' I confess that, after all I have heard fall from the mouth 
of Lord Eldon, on the subject of persons representing themselves 
to be governments of foreign countries, which this country had 
not acknowledged to be governments, and which the Courts 
cannot acknowledge them to be till the Government of the 
country has recognised them to be so, it does appear to me that 



26 CHANGES IN THE CONDITIONS 



this ifi a contzaot enteied into by the plaintiS for the puipose of 
puichasiiig that which, by the law of the land, he could not 
puzchase. I think that the contract, being to purchase securities 
from these persons, who, as the plaintiff says, were the Govem- 
ment of Guatemala, cannot be considered as being a contract 
which this Court ought to sanction. The whole case being 
founded on that, I do not think that I could gi^e relief to the 
party who builds his case for relief entirely on a transaction 
originating in such a manner ; and it appears to me that, on 
that ground, I must allow this demurrer." 

Note. — ^This case is the oonrerse of Bepublic of Peru v. Dreyfus («ee 
hdow), and estabHahes that when a Qorermnent has not obtained reopg- 
nition irom a foreign Power, tiaoBaotions with it will not be upheld by 
the Courts of that Power. They are treated as nnlL The eame dootrini 
has been affirmed by the American Courts (c/. KenneU v. Chambers, 14 
Howard 38), where it was held that a contract to raise money to help 
the Tezans in war, they not being recognised by the United 'States 
Government, was void. There it was said : 

" The validity of this contract depends upon the relation in which this 
country then stood to Mexico and Texas ; and the duties which these 
relations imposed upon the Government and citizens of the United States. 
Texas had declared itself independent a few months previous to this 
agreement. But it had not been acknowledged by the United States; and 
the constituted authorities charged with our foreign relations regarded the 
treaties we had made with Mexico as still in full force, and obligatory upon 
both nations. Undoubtedly, when Texas had achieved her independence, 
no previous treaty could bind this country to regard it as a part of the 
Mexican territory. But it belonged to the Government, and not to indi- 
vidual citizens, to decide when that event had taken place. And that 
decision, according to the laws of nations, depended upon the question 
whether she had or had not a civil Government in successfal operation, 
capable of performing the duties and fulfilling the obligations of an inde- 
pendent Power. It depended upon the state of the fact, and not upon the 
right which was in contest between the parties." 



OF INTERNATIONAL PERSONS Vj 



RECOaNITION OF STATES. 

r 

Oppenheim, ss. 71-75; Lawience, 46-47; Hall, pp. 29-36; 

WestlAke, p. 67. 

REPUBLIC OF PERU ▼. DREYFUS BROTHERS, 

z888. 

L.B. 38 CD. 348 ; 67 L.J.Ch. 536. 

When the revolutionary or de facto Government of a 
country has been recognised by the Government of a 
foreign State, a subject of such foreign State may 
safely contract with that de facto Government : and 
if by subsequent revolution the previously existing 
Government of the country is restored, by international 
law the restored Government is bound to treat any 
such contract as valid. 

Cau. — ^In the year 1869 Messrs. Dieyfus and Co., who were 
French sabjects canying on business in Paris, entered into a 
contract with the then Government of Peru. Questions arose 
under this contract which were not settled when in 1879 Senor 
Nicolas di Pierola made himself Dictator of Peru and overthrew 
the existing Government. In 1880 he was recognised by England 
and France and other European States as supreme ruler of 
Peru, and he entered into negotiations with Messrs. Dreyfus fox 
the purpose of raising more money for the Government of Peru. 
Accounts were settled and the amount due to Messrs. Dreyfus 
was agreed. In the following year Senor Pierola resigned, and 
after an interval the Government of Peru was reconstituted in 
the form in which it had existed previously to the dictatorship, 
and the Congress of the Republic passed an Act declaring void 
all the internal acts of government done by the Dictator, including 
the settlement which had been arranged between him and the 
defendants. In virtue of this law the Government now sought 
to attach moneys standing to the credit of the defendants in 
England in another action. 



28 CHANGES IN THE CONDITIONS 

Eay, J., in xefusmg the application, said : 

Judgment. — ^* It is difficult to see how this (the validity of the 
azrangement with Fieiola's Govemment) can be detennined by 
the law of Pern. It is a question of international law of the 
highest importance whether or not the citizens of a foreign State 
may safely have such dealings as existed in this case with a 
Oovemment which such State has recognised. If they may not, 
of what value to the citizens of a foreign State is such recognition 
by its Oovemment ? There have been successive Governments 
in European countries — usurpations of the power of previous 
Governments overthrown — altering the Constitution essentially. 
These have in turn been recognised by this and other nations. 
When the Govemment of this country recognised the third 
Emperor of the French, if any Englishman entered into contracts 
with his Govemment, could it be maintained that the validity of 
such contracts must depend upon the law of France as settled by 
decree of the Republic which was established on his deposition ? 
Obviously it would follow that no Englishman could safely con- 
tract witii the present Govemment of France, or, indeed, with 
any existing Govemment, lest it in turn should be displaced by 
another Govemment which might treat its acts as void. 

'' There is no authority for any such proposition. I must take 
the law to be that an Englishman or Frenchman might safely 
contract with Senor Pierola's Govemment, if not before, at any 
rate after, it was recognised by the Governments of England and 
France respectively. 

" The decisions on the subject are completely in accordance 
with the law as I have stated it. I prefer to look somewhat fur- 
ther than the few cases cited at the Bar ; but all the authorities 
to which I shall refer are within the last one hundred years. There 
have been in the history of the world during that period many 
revolutions and usurpations of supreme power among civilised 
nations who recognise international law. The plaintiffs' counsel 
have been unable to cite, nor can I find, any authority whatever 
in favour of their contention. 

*' There is a case of Barclay v. RtmeU^ in 1797» after the 



OF INTERNATIONAL PERSONS 29 

acknowledgment by this country of the independence of the 
United States, which was in 1782. In that state of things Lord 
Eldon lefused to recognise the right of the United States of 
America to certain property in this country, consisting of bank 
stock which had been purchased by the Government of Maryland 
in the names of trustees in this country before the war with 
America, upon the ground that the rights of Maryland in its 
former condition existed under letters patent granted by the 
Crown of England, and had not passed to the new State of 
Maryland. That State had, before the Treaty of Peace, passed 
an Act discharging the trustees and appointing new trustees, and 
directing a transfer of the bank stock in this country, 

" Lord Eldon said : * They have no right as an independent 
State to make such an Act as that. No foreign authority of 
the Germanic body or France or Spain could do such an act. 
Nothing they could do with regard to this can be implied 
from the treaty. There might have been an express article 
in the treaty upon their claim to this subject. It might 
have been the subject of a specific article. Such a demand 
is a fit subject of treaty, to be settled as between States 
independent. I can find no general principle in any writer 
upon the law of nations, if it was proper for me to decide by 
reference to those laws ; but I have looked for my own satisfac- 
tion ; and I find no general principle carrying it farther than 
that the new-formed Government may invest itself with all the 
rights that it can command : no farther. The old Government of 
Maryland, a Government of a singular species, existing by letters 
patent, in some degree similar to a corporation, possessing 
rights in England, must sue in England, and ought to be regu- 
lated by the law of England, under which it has its existence. In 
the argument it was said the present State of Maryland has 
some species of right to stand in the place of the old Government, 
being now acknowledged to be a legitimate Government. I can 
admit that there is a semblance of equity in the claim upon the 
part of the present State of Maryland. The stock was certainly 
purchased at the expense of the people of Maryland.' And his 



90 CHANGES IN THE CONDITIONS 

Lotdship held that the specific execution of the truet having 
become impoBsible, the right to dispose of the money was 
vested in the Grown. 

" In Oditon v. Hayt, in the Supieme Court of the United States, 
the law is stated thus : ^ No doctrine is better established than 
that it belongs exclusively to Governments to recognise new 
States in the revolutions which may occur in the world ; and 
until such recognition, either by our own Gbvemment or the 
Government to which the new State belonged, Courts of Justice 
are bound to consider the ancient state of things as remaining 
unaltered.' ** 

[Finally, the Court held that the existing Peruvian (xovemment 
could not recover the proceeds of the cargoes in question unless 
the Government of Pierola could have done so, and that they were 
bound by Pierola's contract.] 

Note, — ^ThiB case establishes that when a Govermnent has been recog- 
nised by a foreign Power, it is entitled to bind the State in dealings witii the 
sabjeoto of other Powers, and it is not open to a Government whioh dis- 
places it to repudiate the obligations it has.inoonred, at least in regard 
to foreign sabjeots. A Government can do what it likes in regard to its 
native subjects, because its municipal law is sovereign in its own territory, 
but in dealing with States or persons outside it must have regard to the 
principle that recognition of a Government gives that Government legal 
and renders its obligations binding. 



CHAPTER IV. 

STATE SUCCESSION. 

Cf. Oppenheim, bs. 80-84 ; Lawrence, 49 ; Hall, pp. 99-100 ; 

Westlake, pp. 69 and 74. 

WEST RAND GOLD MINING CO. ▼. REGEM. 

L.B. 1906 ; 2 E.B. 391 ; 74 L.J. K.B. 763. (See above, p. 1.) 

The English Courts do not recognise any principle of inter- 
national law by which after annexation of conquered 
territory the conquering State becomes liable, in the 
absence of express stipulation to the contrary, to dis- 
charge financial liabilities of the conquered State 
incurred before the outbreak of war. A claim based 
on such a principle could not in any case be enforced 
against the Crown in any municipal Court. 

Case. — ^This case, which has been cited above on the question 
of the legal chaxacter of international law, arose out of a petition 
of right brought by a Transvaal mining company. The petition 
alleged that before the outbreak of war between the late South 
Afrioan Bepnblio and Great Britain a quantity of gold, the 
produce of a mine in the RepubUc owned by the suppliants, had 
been taken by officials acting on behalf of the Government of the 
Bepublb ; that that Government was liable to return the gold 
or its vahia to the suppliants ; and that, by reason of the con- 
quest and annexation of the territories by the British Grown, the 
obligation was now binding on the King. 

The Court ssjeoted the petition, holding (1) that in the ease 
of contacts at least international law does not leoognise that 

3x 



32 STATE SUCCESSION 

after annexation obligationB of the defeated Oovenunent do 
not pass to the succeflsor ; (2) tliat the dispoBitions of the 
conqueror in the conquered country are acts of State and cannot 
be questioned in the municipal Court. 
Lord Alverstone (L.C.J.)> ^ ^ judgment, stated : 
'* Before dealing with the specific passages in the writings of 
the jurists upon which the suppliants rely, we desire to consider 
the proposition that by international law the conquering country 
is bound to fulfil the obligations of the conquered, upon prin- 
ciple ; and upon principle we think it cannot be entertained. 
When making peace the conquering sovereign can make any 
conditions he thinks fit respecting the financial obligations of the 
conquered country, and it is entirely at his option to what extent 
he will adopt them. It is a case in which the only law is that of 
military force. This, indeed, was not disputed by counsel for the 
suppliants ; but it was suggested that, although the sovereign 
when making peace may limit the obligations to be taken over, 
if he does not do so, they are all taken over, and no subsequent 
limitation can be put upon them. What possible reason can be 
assigned for such a distinction ? Much inquiry may be necessary 
before it can be ascertained under what circumstances the 
liabilities were incurred, and what debts should in faro oanacieniuB 
be assumed. There must also be many contractual liabilities of 
the conquered State of the very existence of which the superior 
Power can know nothing, and as to which persons having claims 
upon the nation about to be vanquished would, if the doctrine 
contended for were correct, have every temptation to conceal- 
ment—others, again, which no man in his senses would think 
of taking over. A case was put in argument which very well 
might occur. A country has issued obligations to such an amount 
as wholly to destroy the national credit, and the war, which 
ends in annexation of the country by another Power, may have 
been brought about by the veiy state of insolvency to which 
the conquered country has been reduced by its own misconduct. 
Can any valid reason be suggested why the country which has 
made war and succeeded should take upon itself the liability to 



STATE SUCCESSION 33 

pay out of its own lesouices the debts of the insolvent State, 
and what difference can it make that in the instrument of annexa*' 
tion or cessation of hostilities matters of this kind are not pro- 
vided for T We can well understand that, if hj public proclama- 
tion or by convention the conquering country has promised 
something that is inconsistent with the repudiation of particular 
liabilities, good faith should prevent such repudiation. We can 
see no reason at all why silence should be supposed to be equiva- 
lent to a promise of universal novation of existing contracts 
with the Qovemment of the conquered State. It was suggested 
that a distinction might be drawn between obligations incurred 
for the purpose of waging war with the conquering country and 
those incurred for general State expenditure. What municipal 
tribunal could determine, according to the laws of evidence to 
be observed by that tribunal, how particular sums had been 
expended, whether borrowed before or during the war ? It was 
this and cognate difficulties which compelled Lord Robert Cecil 
ultimately to concede that he must contend that the obligation 
was absolute to take over all debts and contractual obligations 
incurred before war had been actually declared. 

*' Turning now to the text-writers, we may observe that the 
proposition we have put forward that the conqueror may impose 
what terms he thinks fit in respect of the obligations of the 
conquered territory, and that he alone must be the judge in such 
a matter, is clearly recognised by Grotius : see ^^ War and 
Peace,'' Book O., chap. viii. sec. 4, and the Notes to Barbeyrac's 
edition of 1724, vol. ii. p. 632. For the assertion that a line is 
to be drawn at the moment of annexation, and that the conquer- 
ing sovereign has no right at any later stage to say what obliga- 
tions he will or will not assume, we venture to think that there 
is no authority whatever. A doctrine was at one time urged 
by some of the older writers that to the extent of the assets taken 
over by the conqueror he ought to satisfy the debts of the con- 
quered State. It is, in our opinion, a mere expression of the 
ethical views of the writers ; but the proposition now contended 
for is a vast extension even of that doctrine. It has been urged 

3 



34 STATE SUCCESSION 

that, in numerous cases, both of peace and of cession of teiri- 
toiies, special provision has been made for the discharge of 
obligations by the country accepting the cession or getting the 
upper hand in war ; but, as we have abeady pointed out, con- 
ditions the result of express mutual consent between two nations 
afford no support to the argument that obligations not expressly 
provided for are to follow the course, by no means uniform, 
taken by such treaties. 

^' . • . We pass now to consider the third proposition upon 
which the success of the suppliants in this case must depend — 
namely, that the claims of the suppliants based upon the alleged 
principle that the conquering State is bound by the obligations 
of the conquered can be enforced by petition of right. It is the 
consideration of this part of the case which brings out in the 
strongest relief the di£Sculties which exbt in the way of the 
suppliants. It is, not denied on the suppliants' behalf that the 
conquering State can make whatever bargain it pleases with the 
vanquished ; and a further concession was made that there may 
be classes of obligations that it could not be reasonably contended 
that the conquering State would by annexation take upon itself, 
as, for instance, obligations to repay money used for the purposes 
of the war. We asked more than once during the course of the 
argument by what rule, either of law or equity, which could be 
applied in municipal Courts could those Courts decide as to the 
obligations which ought or ought not to be discharged by the 
conquering State. To refer again to the instance given in the 
commencement of this judgment, the obligation incurred by the 
conquered State by which their credit has been ruined may 
have been contracted for insu£ficient consideration or under 
circumstances which would make it perfectly right from every 
point of view for the conquering State to repudiate it in whole 
or in part. No answer was, or could be, given. Upon this part 
of the case there is a series of authorities from the year 1793 
down to the present time, holding that matters which fall properly 
to be determined by the Crown by treaty or as an act of State 
are not subject to the jurisdiction of the municipal Courts, and 



STATE SUCCESSION 35 

that lights supposed to be acqaired thereunder cannot be enforced 
by such Courts. It is quite unnecessary to refer in detail to them 
all. They extend from Nabcb of the Camatic v. East India Co,, 
1 Ves. Jr. 371 ; 2 Ves. Jr. 56, down to Cook v. Sprigg (1899), 
A.C. 572. As a great deal of argument was addressed to us 
upon the latter case, we think it right to say that, although it 
was contended that the actual decision was not in harmony with 
the views of the American Ck>urt9 upon analogous matters, no 
authority was cited, or, as far as we know, exists, which throws 
any doubt upon that part of the judgment which is in the fol- 
lowing words : ^ The taking possession by her Majesty, whether 
by cession or by any other means by which sovereignty can be 
acquired, was an act of State and treating Sigcau as an indepen- 
dent sovereign, which the appellants are compelled to do in 
deriving title from him. It is a well-established principle of law 
that the transactions of independent States between each other 
are governed by other laws than those which municipal Ck>urt8 
administer. It is no answer to say that by the ordinary principles 
of international law private property is respected by the sovereign 
which accepts the cession and assumes the duties and legal 
obligations of the former sovereign with respect to such private 
property within the ceded territory. All that can be properly 
meant by such a proposition is that, according to the well- 
understood rules of international law, a change of sovereignty 
by cession ought not to affect private property, but no municipal 
tribunal has authority to enforce such an obligation.' 

*^ We do not repeat the citations of Secretary of State for India 
V. Kamachee, 13 Moo. P.O. 22, and Doss v. Secretary of State for 
India, L.R. 19 Eq. 509, referred to in the judgment in Cook v. 
Sprigg (1899), A.C. 572. They form part of the chain of autho- 
rities to which we have referred, and we observe in passing that 
we are not to be considered as throwing any doubt upon the cor- 
rectness of the decision itself in Cook v. Sprigg (1899), A.C. 672. 

*^ It was contended by Lord Robert Cecil that the view we are 
taking was inconsistent with certain American decisions and with 
certain decisions of our own Court of Chancery, to which we 



36 STATE SUCCESSION 

think it right to refer. A careful examination of these cases 
satisfies us that, rightly understood, no such inconsistency exists. 
The American cases were a series of decisions of the Supreme 
Court of the United States respecting the rights of the owners 
to landed property in territories formerly forming part of inde- 
pendent countries which had been ceded to or annexed by the 
United States. The particular cases cited were United State$ 
V. Percheman, 7 Peters 51 ; Mitchell v. United States, 9 Peters 
711 ; Smith v. United States, 10 Peters 326 ; and Strather v. 
Lucas, 12 Peters 410. These cases arose respecting the rights of 
landed property in Florida, Louisiana, and Missouri. They were 
all cases of cession, and in all of them the treaties of cession and 
subsequent legislation of the United States protected the rights 
of owners of private property as they existed at the time of 
cession, and the sole question was wlwther, under the circum* 
stances of each individual case, private rights of property existed 
and could be enforced as against the United States. No question 
of duty of the country, to whom the territory passed, of fulfilling 
the obligations of the original country in any other respect arose ; 
and the language of Marshall, G.J., 7 Peters, at p. 86, and of 
Baldwin, J., 9 Peters, at p. 733 ; 10 Peters, at p. 329, all of 
which is to the same efiect, must be construed solely with re- 
ference to the rights of private property in individuals, such 
property being locally situated in a country annexed by another 
country. We asked Lord Robert Cecil and Mr. Hamilton whether 
they had been able to find any case in which a similar principle 
had been applied to personal contracts or obligations of a con- 
tractual character entered into between a ceding or conquered 
State and private individuals. They informed us that they had 
not been able to do so, nor do we know of any such case. It 
must not be forgotten that the obligations of conquering States 
with regard to private property of private individuals, particu- 
larly land as to which the title had already been perfected before 
the conquest or annexation, are altogether different from the 
obligations which arise in respect of personal rights by contiact. 
As is said in more cases than one, oessioa of terxitoi^ does aot 



STATE SUCCESSION 37 

zoean the confiscation of the property of individuals in tliat 
tezritoiy. If a particular piece of property has been conveyed 
to a private owner or has been pledged, or a lien has been created 
upon it, considerations arise which are different from those which 
have to be considered when the question is whether the con- 
tractual obligation of the conquered State towards individuals is 
to be undertaken by the conquering State. The English cases 
on which reliance was placed were United States v. Prioleau, 
2 H. & M. 559, in which a claim was made by the United States 
(jovemment to cotton which had been the property of the con- 
federated States ; United States v. Macraey L.R. 8 Eq. 69, which 
recognised the right of the Qovemment suppressing rebellion to 
all moneys, goods, and treasures which were public property at 
the time of the outbreak ; R&puhlic of Peru v. Peruma/n Ouano 
Co., 36 Ch.D. 489, and Republic of Peru v. Dreyfus, 38 Ch.D. 
S48. The only principle, however, which can be deduced from 
these cases is that a Qovemment claiming rights of property and 
rights under a contract cannot enforce those rights in ous Courts 
without fulfilling the terms of the contract as a whole. They have, 
in our judgment, no bearing upon the propositions which we 
have been discussing. We are of opinion, for the reason given, 
that no right on the part of the suppliants is disclosed by the 
petition which can be enforced as against his Majesty in this or 
in any mxmicipal Ck)urt ; and we therefore allow the demurrer, 
with costs." 

Note, — ^Xhe dootrine laid down by the English Court in this case as to 
the right of the suooeediug State to repudiate the obligations of its prede- 
cessor is open to question, although tiie decision that the actions of the 
Executive in the conquered country could not be reviewed in the municipal 
Courts is supported by abundant English authority and is unimpeachable. 
But that is a question purely of adjective law. The judgment of James, V.C.» 
in United States v. McBat (8 Equity 75) (see bdaw, p. 44) referred explicitly 
to cases of conquest as well as cession, and stated categorically ^t by 
pubHo international law the right of succession by one State to the public 
property of another oan only be enforced to the same extent and snbjeet 
to the same obUgationB as if the suppressed authority had not bean sup* 
pressed* and were itself seeking to enforce it. In the same way the judg- 
ment of Marshall, G. J., in the Amerioan case of Umted States y. Percheman 



38 STATE SUCCESSION 

{Me bdow), dealt obiier with oonqaeBt^ and stated ezplioitfy that the 
modem usage of natioiui would be violated if priyate rights were amraUed 
by the oonqaeror. The Lord CSiief Justice distinguished the oases in wbkib. 
these judgments were given, bu t the dicta contained in the judgments applied 
directly to the question before the Court and, it is submitted, were WOTthy 
of more consideration. It is notable also that the Italian Ck>urts have 
recognised fully the duty of the successor State to take over the obliga- 
tions of the predecessor, at least in regard to ceded territory. 

In cases arising out of the cession of Venetia by Austria to Italy, the 
Ck)urt of Oassation at Florence declared in 1878 ; ** The principles of public 
law provide that when it is a case of partial cession of territory the obliga- 
tions contracted by the State with regard to the ceded territory pass with 
that territory to the State which succeeds." 



UNITED STATES V. PERCHEMAN, 1833. 

United States Supieme Court (7 Peters 51). 

A cession of territory from one State to another does not 
affect the title to private property in the soiL 

Case. — ^Percheman claimed an estate in the territory of Florida 
by virtue of the grant of the Spanish Qovemor made in 1816. 
Florida was ceded to the United States by Spain in 1819, and 
the United States Commissioners appointed to settle claims to 
territory rejected the claim of Fercheman. The Court, however, 
held otherwise ; and Marshall, C.J., laid down the general 
principles of the international law of succession as follows : 

Judgment, — " It may not be unworthy of remark that it is very 
unusual even in cases of conquest for the conqueror to do more 
than to displace the sovereign and assume dominion over the 
country. The modem usage of nations, which has become law, 
would be violated ; that sense of justice and of right which is 
acknowledged and felt by the whole civilised world would be 
outraged if private property should be generally confiscated and 
private rights annulled. The people change their allegiance ; 
their relation to their ancient sovereign is dissolved ; but their 
relations to each other, and their rights of property, remain 
undisturbed. If this be the modem rule even in cases of conquest. 



STATE SUCCESSION 39 

who can doubt its application to tlie case of an amicable cession 
of territory? Had Florida changed its sovereign by an Act 
containing no stipolation respecting the property of individuals, 
the right of property in all those who became subjects or citizens 
of the new Government would have been unafiEected by the 
change. It would have remained the same as under the ancient 
sovereign. • . . 

^* A cession of territory is never understood to be a cession of 
the property belonging to its inhabitants. The king cedes that 
only which belonged to him. Lands he had previously granted 
were not his to cede. Neither party could so understand the 
cession. Neither party could consider itself as attempting a 
wrong to individuals, condemned by the practice of the whole 
civilised world. The cession of a territory by its name from one 
sovereign to another, conveying the compound idea of surren- 
dering at the same time the lands and the people who inhabit 
them, would be necessarily understood to pass the sovereignty 
only, and not to interfere with private property." 

Noie» — The United States Courts have frequently oonfirmed this prin- 
ciple that the ceasion of a territory is not to interfere with the private 
rights in the ceded territory. Thus, in United States v. Moreno, 1864 (1 
Wall 400), the Supreme Cbort^ referring to the cession of Oalifornia by 
Mexioo to the United States, said : 

*^ Ibat cession did not impair the rights of private property. They were 
ooDsecrated by the law of nations and protected by the treaty. The 
treaty stipulation was bat a formal recognition of the pre-existing sanc- 
tion in the law of nations. The Act of March 3, 1851, was passed to assure 
to the inhabitants of the ceded territory the benefit of the rights of property 
thus secured to them. It recogmses alike legal and equitable rights, and 
should be administered in a large and liberal spirit. A right of any validity 
before the cession was equally valid afterward." 



40 STATE SUCCESSION 



UNITED STATES OF AMERICA ▼. 
PRIOLEAU, 1866 

25 Law Journal, Chancery, N.S., 7. 

Upon the suppression of a rebellion, the title to the public 
property of the rebel Goyernment becomes immediately 
vested in the Goyernment of the victorious State, 
which however must take the property subject to the 
liabilities attached to it by its predecessor. 

C0W6.— Toward the end of the Civil War in the United States 
(1861-1865), the Confederate Government, having got possession 
of 1365 bales of cotton in Texas, had it shipped from Galveston 
to Havana, where it was consigned to an agent of Fraser and Co. 
On June 10, 1865, the cotton was shipped from Havana to 
Liverpool, consigned to the defendants, Fraser, Tienholm and Co. 
(Prioleau being the English member of the firm), and was of the 
value of £40,000. Fraser, Trenholm and Co. had made a contract 
with one McRae, general European agent of the Confederate 
Government, to build eight steamships to be emjdoyed in trans- 
porting cotton and other produce from the Confederate States. 
They were to receive all consignments of said merchandise and 
sell the same according to the instructions they should receive 
for that purpose. The company were to advance the expenses 
of transportation, and were then to recoup themselves out of 
the proceeds of the consignments. They had already expended 
£20,000 for sailing expenses, to say nothing of the cost of the 
ships. 

When this consignment of cotton arrived in Liverpool, the 
Confederate Government had been dissolved, and the Confederate 
States had submitted to the authority of the United States 
Government ; and the latter Government filed a bill praying to 
have the cotton delivered up to them, and for an injunction and 
receiver. 

Judgment (Wood, V.C). — ^^ There are one or two points which, 



STATE SUCCESSION jt 

I think, aie tolerably dear in this case. The first point is with 
refeience to the right of the United States of America, at this 
moment, to the cotton, subject to the agreement. I treat it first 
in that way. It has scarcely been disputed on the present argu- 
ment, and could hardly be disputed at any further stage of the 
inquiry, that the right is clear and distinct, because the cotton 
in question is the admitted result of funds raised by a de f<icto 
Government, exercising authority in what were called the 
Confederate States of America ; that is to say, several of those 
States which, in union, formerly constituted the United States, 
and which now, in fact, constitute them ; and that de facto 
Government, exercising its powers over a considerable number 
of States (more than one would be quite enough), raises money — 
be it by voluntary contribution, or be it by taxation, is not of 
much importance. Ihe defendant Prioleau, in cross-examination, 
admits that they exercised considerable power of taxation ; 
and with those means, and claiming to exercise that authority, 
they obtained from several of the States of America funds by 
which they purchased this cotton for the use of the de facto 
Government. That being so, and that de fado Government being 
displaced, I apprehend it is quite clear that the United States of 
America (that is to say, the Government which has been success- 
ful in displacing the de fado Government, and whose authority 
was usurped or displaced, or whatever term you may choose to 
apply to it), the authority being restored, stand, in reference to 
this cotton, in the position of those who have acquired, on behalf 
of the citizens of the United States, a public property ; because 
otherwise, as has been well said, there would be no body who 
could sue in respect of, or deal with, property that has been 
raised, not by contribution of any one sovereign State (which 
might raise a question, owing to the peculiar constitution of the 
Union, if it had been raised in Virginia or Texas, or in any given 
State), but the cotton is the product of levies, voluntary or 
otherwise, on the members of the several States which have 
united themselves into the Confederate State of America, and 
which are now under the control of the present plaintiffs, and 



42 STATE SUCCESSION 

aie lepieeented, for all purpoBes, by the piesent plainti£b. That 
being so, the right of the piesent plaintifEs to this cotton, sabject 
to this agreement is, I think, clear, because the agreement is an 
agreement purporting to be made on behalf of the then de facto 
existing Qovemment, and not of any other persons. That case of 
The King of the Two Sicilies and the case of The King of Spain, 
and other cases of the same kind, which it is not necessary to go 
through, show that whenever a Qovemment de facto has obtained 
the possession of property as a Government, and for the purposes 
of the Qovemment de facto, the Qovemment which displaces it 
(succeeds to all the rights of the former Government, and, among 
other things, succeeds to the property they have so acquired. 

" Now I come to the second head of the question, and I confess 
at this moment, as at present advised, I do not feel much doubt 
on the subject, namely, the question whether or not, taking 
this property, they must or must not take it subject to the 
agreement. It appears to me, at present, they must take it 
subject to the agreement. lb is an agreement entered into by a 
de facto Government, treating with persons who have a perfect 
right to deal with them. I apprehend if they had been American 
subjects they might do so. One of them, Prioleau, is not an 
American subject, he is a naturalised British subject ; he would 
have a perfect right to deal with a de facto Government ; and it 
cannot be compared with any one of those cases Mr. Gifford put, 
of persons taking the property of another with knowledge of the 
rights of that other. That is a species of argument that cannot 
be applied to international cases of this description, and for a 
very good reason ; if so, there would be no possibility during 
the existence of a Government de facto of any person dealing with 
that Government in any part of the world. The Courts of every 
country recognise a Government de facto to this extent, for the 
purpose of saying — you are established de facto, if you are carry- 
ing on the course of government, if you are allowed by those 
whom you affect to govern to levy taxes on them, and they pay 
those taxes, and contribution is made accordingly, or you are 
acquiring property, and are at war, having the rights oi^belli- 



STATE SUCCESSION 43 

geientSy not being tieated as meie rebels by persons who say 
they aie the authorised Gtovemment of the conntiy. Other 
nations can have nothing to do with that matter. They say we 
aie bound to protect our subjects who treat with the existing 
Government ; and we must give to those subjects, in our country, 
every right which the Government de facto can give to them, 
and must not allow the succeeding Government to assert any 
right as against the contracts which have been entered into by 
the Government de facto ; but, as expressed by Lord Cianworth 
in the case referred to, they must succeed in every respect to the 
property as they find it, and subject to all the conditions and 
liabilities to which it is subject and by which they are bound. . . . 
If the case had been this (and it is the only case I can consider 
as making any difference, but that difference would be fatal to 
the plaintiffs' case in another point of view) : if they had been a 
set of marauders, a set of robbers (as was said to be the case in 
the kingdom of Naples, truly or untruly),deva8tating the country, 
and acquiring property in that way, and then affecting to deal 
with your subjects in England, it would not be the United States, 
but the individuals who had been robbed and suffered, who 
could come as plaintiffs. The United States could only come to 
claim this because it has been raised by public contribution ; 
and although the United States, who are now the Government 
de facto and dejure, claim it as public property, yet it would not 
be pubhc property unless it was raised, as I have said, by exer- 
cising the rights of government, and not by means of mere 
robbery and violence. 

^*I confess, therefore, I have so little doubt, that this agreement 
is one that would be binding on the plaintiffs, that I cannot act 
against these gentlemen without securing to them the reasonable 
benefit of this agreement ; and I cannot put them under any 
terms which would exclude them from the reasonable benefit of 
what they are entitled to, and must be held entitled to, as I think, 
at the hearing of the cause." 

Note. — This deoiskm of the Eogliah Court ahows that hi dealing with a 
olaim of a saooesaor State to property of a conquered Government in 



44 STATE SUCCESSION 

Eagland the eqnitabb rule will be applied that the benefit of a contraot 
oaQ only be taken with the burden. The judgment in WeM Band Mining 
Co. y. Begem {see above) ia not entirely oonsiatent with this view. 

In the case of the United States of America v. McBae, 1869, L.B. 8 
Equity 69, James, V.O., likewise held " that, upon the suppression of a 
rebellion, the restored legitimate Grovemment is entitled, as of rights 
to all moneys, goods, and treasure which were public property of the 
Qoyemment at the time of the outbreak, such right being in no way 
affected by the wrongful seizure of the property by the usurping Govern- 
ment. 

" But with respect to property which has been voluntarily contributed 
to, or acquired by, the insurrectionary Government in the exercise of its 
usurped authority, and has been impressed in its hands with the character 
of public property, the legitimate Government is not, on its restoration, 
entitled by title paramount, but as successor only (and to that extent 
recognising the authority) of the displaced usurping Government ; and 
in seeking to reoovarsuoh property from an agent of the displaced Govern- 
ment can only do so to the same extent^ and subject to the same rights 
and obligations, as if that Government bad not been displaced and was 
itself proceeding against the agent" 



THE RIGHTS OP A CONQUERING STATE. 

Cf. Oppenheim, 68. 23&-240 ; Lawrence, s. 77. 
CAMPBELL V. HALL, 1744- 

Cowper*s Reports, p. 204. 

The Powers of the English Crown in cases of conquest 
considered. 

Ooie, — The action was brought by Campbell, who was a natural 
bom subject of the United Kingdom, and who in 1763 purchased 
an estate in the island of Grenada, against the defendant, Hall, 
who was a collector of a duty upon all goods exported from the 
island, to recover a payment of duty which it was alleged had 
not been imposed by lawful or sufficient authority. The island of 
Grenada was taken by the British from the French in war, and 
in the articles of capitulation it was agreed that it should continue 
to be governed by its present laws till the King's pleasure was 



STATE SUCCESSION 43 

known, and that the inhabitants should pay no other duties 
than what they had before paid to the French King. In October 

1763 a proclamation was issued announcing that by letters patent 
the Grovemor of the island was empowered to make, constitute, 
and ordain laws ; and in March 1764 the letters patent were 
issued to the Governor, who summoned an assembly. In July 

1764 the King, however, by letters patent, imposed the duty 
of 4} per cent, on all goods exported from the island. It was 
urged that these letters patent were void because (1) the King 
could not exercise legislative power over a conquered country ; 
(2) he could not do so anyhow after the proclamation of October 
1763. 

Lord Mansfield, in giving judgment for the plaintifE on the 
ground that the King by the proclamation of October 1763 had 
taken it out of his power to legislate directly for the island, 
laid down the following general propositions on the effect of 
conquests. 

Judgment. — ^A country conquered by the British Army becomes 
a dominion of the King in the right of the Crown, and therefore 
necessarily subject to the legislature, the Parliament of Great 
Britain. 

(2) The conquered inhabitants, once received under the King's 
protection, become subjects and are to be universally considered 
in that light, not as enemies or aliens. 

(3) The articles of capitulation upon which the country is 
surrendered, and the articles of peace by which it is ceded, are 
sacred and inviolable according to their true interest and meaning. 

(4) The law and legislative government of every dominion 
equally affects all persons and all property within the limits 
thereof, and is the rule of decision for all questions which arise 
there. Whoever purchases, lives, or sues there puts himself 
under the law of the place. 

(5) The laws of a conquered country continue in force until 
they are altered by the conqueror. 

(6) The King (and when I say the King I always mean the 
King without the concurrence of Parliament) has a power to 



46 STATE SUCCESSION 

alter the old and to introduce new laws in a conquered country, 
thiB legislature being subordinate {i»e. subordinate to his own 
authority in Parliament). He cannot make any new change 
contrary to fundamental principles; he cannot exempt an 
inhabitant from that particular dominion — as, for instance, 
from the laws of trade or from the powers of Parliament — or give 
him privileges exclusive of his other subjects. 



CHAPTER V. 
ACQUISITION OF TERRITORY. 

Cf. Oppenheim, ss. 291-298 ; Westlake, p. 100 ; Hall, p. 101. 

JOHNSON ▼. McINTOSH, 1828. 

Supreme Court of the United States (8 Wheaton, 533). 

Discovery gives a valid title to territory occupied by un- 
civilised peoples. 

The right of the North American Indians to the lands which 
they possessed was that of occupancy merely. 

JuigmeiA (MaTshall, C.J.). — ^**The plaintifis in this cause 
olaim the land, in their declaration mentioned, under two grants, 
purporting to be made, the first in 1773 and the last in 1775, by 
the chiefs of certain Indian tribes, constituting the Illinois and 
the Praukeshaw nations; and the question is, whether this 
title can be recognised in the Courts of the United States. 

** The facts, as stated in the case argued, show the authority 
of the chie& who executed this conveyance so far as it could be 
given by their own people ; and likewise show that the particular 
tribes for whom these chiefs acted were in rightful possession 
of the land they sold. The inquiry, therefore, is, in a great 
measure, confined to the power of Indians to give, and of private 
individuals to receive, a title which can be sustained in the 
Courts of this country. 

** As the rights of society to prescribe those rules by which 
property may be acquired and preserved is not, and cannot be, 
drawn into question ; as the title to lands, especially, is and 

47 



48 ACQUISITION OF TERRITORY 

must be ftdmitted to depend entirely upon the law of the nation 
in which they lie, it will be neceesary, in puisuing this inquiry, 
to examine, not singly, those principles of abstract justice which 
the Creator of all things has impressed on the mind of His creature 
man, and which are admitted to regulate, in a great degree, the 
rights of civilised nations, whose perfect independence is acknow- 
ledged ; but those principles also which our own Qovemment 
has adopted in the particular case, and given us as the rule for 
our decision. 

'' On the discovery of this immense continent the nations of 
Europe were eager to appropriate to themselves so much of it as 
they could respectively acquire. Its vast extent ofEered an ample 
field to the ambition and enterprise of all ; and the character 
and religion of its inhabitants afEoided an apology for considering 
them as a people over whom the superior genius of Europe might 
claim an ascendency. The potentates of the Old World found 
no difficulty in convincing themselves that they made ample 
compensation to the inhabitants of the New by bestowing on 
them civilisation and Christianity, in exchange for unlimited 
independence. But, as they were all in pursuit of nearly the 
same object, it was necessary, in order to avoid conflicting settle- 
ments, and consequent war with each other, to establish a 
principle which all should acknowledge as the law by which the 
rights of acquisition, which they all asserted, should be regulated 
as between themselves. This principle was, that discovery gave 
title to the Government by whose subjects, or by whose authority, 
it was made,, against all other European Governments, which 
title might be consummated by possession. 

'^ The exclusion of all other Europeans necessarily gave to 
the nation making the discovery the sole right of acquiring the 
soil from the natives, and establishing settlements upon it. It 
was a right with which no Europeans could interfere. It was a 
right which all asserted for themselves, and to the assertion of 
which, by others, all assented. Those relations which were to 
exist between the discoverer and the natives were to be regulated 
by themselves. The rights thus acquired being exclusive, no 



ACQUISITION OF TERRITORY 49 

othei Power oould interpoee between them. On the establish- 
ment of these lelations, the rights of the original inhabitants 
weie» in no instance, entirely disregarded, but were necessarily, 
to a considerable extent, impaired. They 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, but their rights to complete sovereignty, as 
independent nations, were necessarily diminished and their 
power to dispose of the soil at their own will, to whomsoever they 
pleased, was denied by the original fundamental principle, that 
discovery gave exclusive title to those who made it. While the 
different nations of Europe respected the right of the natives, 
as occupants, they asserted the ultimate dominion to be in 
themselves; and claimed and exercised, as a consequence of 
this ultimate dominion, a power to grant the soil, while yet in 
possession of the natives. These grants have been xmderBtood by 
all to convey a title to the grantees, subject only to the Indian 
right of occupancy. The history of America, from its discovery 
to the present day, proves, we think, the univeisal recognition 
of these principles. 

^^ Spain did not rest her title solely on the grant of the Pope. 
Her discussions respecting boundary, with France, with Great 
Britain, and with the United States, all show that she placed it 
on the rights given by discovery. Portugal sustained her claim 
to the Brazils by the same title. France, also, founded her title 
to the vast territories she claimed in America on discovery. 
However conciliatory her conduct to the natives may have been, 
she still asserted her right of dominion over a great extent of 
country not actually settled by Frenchmen, and her exclusive 
right to acquire and dispose of the soil which remained in the 
occupation of Indians. ... No one of the Powers of Europe 
gave its full assent to this principle more unequivocally than 
England. The documents upon this subject are ample and 
complete. So early as the year 1496, her monarch granted a 
commission to the Cabots to discover countries then unknown 
to Christian people, and to take possession of them in the name 

4 



50 ACQUISITION OF TERRITORY 

of the King of England. Two yean afterwards^ Cabot proceeded 
on this voyage, and discovered the continent of North America, 
along which he sailed as far south as Virginia. To this discovery 
the English trace their title. In this first effort made by the 
English Government to acquire territory on the continent, we 
perceive a complete recognition of the principle which has been 
mentioned. The right of discovery given by this commission is 
confined to coimtries ^ then unknown to all Christian people ' ; 
and of these countries Cabot was empowered to take possession 
in the name of the King of England, thus asserting a right to 
take possession notwithstanding the occupancy of the natives, 
who were heathen, and, at the same time, admitting any prior 
title of any Christian people who may have made a previous 
discovery. . . . 

"" Thusi all nations of Europe who have acquired territory on 
this continent, have asserted in themselves and have recognised 
in others, the exclusive right of the discoverer to appropriate the 
lands occupied by the Indians. . . . 

*' The power now possessed by the Government of the United 
States to grant lands, resided, while we were colonies, in the 
Crown, or its grantees. 

" The validity of the titles given by either has never been 
questioned in our Courts. It has been exercised uniformly over 
territory in possession of the Indians. The existence of this power 
must negative the existence of any right which may conflict with 
and contest it. An absolute title to lands cannot exist at the 
same time in different persons and in different Governments." 

NaU. — ^In a reo«at case determined by the English Privy Oonncil it was 

held that the efeoted chiefs of a tribe of Indiaiu residiag within the limits 

of a seigniory given in the sefventeenth oentuty by a I'reniQh long to a 

monaBtocy had no independent title to administer or control the territoiy 

C&rinihe v. EccUnaslics of St. Sulpice, 1912). 



ACQUISITION OlP TERRITORY 51 



THE -*FAMA,»' i804, 

5 C. Rob. p. 106. 

To consummate a transfer of territory there must be some 
act of possession or occupancy. 

Ciue. — ^The case arose on a claim in tbe Admiralty Court of a 
merchant resident at New Orleans, in Louisiana, for property 
taken by a British vessel in 1803 on a voyage from New Orleans 
to Havre. The question turned actually on the national character 
of Louisiana, whether at the time of the capture it was to be 
considered as a Spanish settlement or as belonging to France 
by reason of the Treaty of Idelfonso, 1796, by which it was 
ceded to that country. 

Judgment (Sir W. Scott). — ^^ The present question is a general 
one, respecting the situation in which the people of a distant 
settlement are placed by a treaty of the State to which they 
undoubtedly belong and by which they are stipulated to be 
transferred to another Power. . . . The question has been fully 
argued as to the principle of law whether the treaty did not in 
itself confer fuU sovereignty and right of dominion, and whether 
the inhabitants were not so ceded by the treaty as to become 
immediately French subjects. ... It is to be observed then 
that all corporeal property depends very much on occupancy, 
and with respect to the origin of property this is the sole founda- 
tion. Quad nuUiua est ratione naturali occwparAi canceditur. So 
with regard to transfer also, it is universally held in all systems of 
jurisprudence that to consummate the right of property, a person 
must unite the right of the thing with possession. A question 
has been raised indeed by some writers whether this necessity 
proceeds from what they call the natural law of nations or from 
what is only conventional. Orotius seems to consider it as pro- 
ceeding only from civil institutions. PufiendorfandPothiergo 
further. AU concur, however, in holding it to be a necessary 
principle of jurisprudence that to complete the right of property, 



52 ACQUISITION OF TERRITORY 

the right of the thing and the possession of the thing itself should 
be united ; or, according to a technical expression, thafc there 
should be both the jW in rem and the jim in re. This is the general 
law of property and appUes, I conceive, not less to the right of 
territory than to other rights. Even in newly discovered countries, 
where a title is meant to be established for the first time some 
act of possession is usually done and proclaimed as a notification 
of the fact. In transfer, surely, where the former rights of others 
are to be superseded and extinguished, it cannot be less necessary 
that such a change should be indicated by some pubUc acts, that 
all who are deeply interested in the event, as the inhabitants of 
such settlements, may be informed under whose dominion and 
under what law they are to hve. This I conceive to be the general 
propriety of principle on the subject, and no less appUcable to 
cases of territory than to property of every other description/* 

After dealing with the practice which confirmed the principle 
the judgment concluded : '^ In this situation of things it appears 
to me that the colony must be considered as continuing at the 
time of capture under the dominion of Spain, and consequently 
that these persons, as Spanish subjects, are entitled to restitu- 
tion." 



» 



CHAPTER VI. 

TERRITORIAL WATERS. 

CJ. Oppenheim, 8S. 185-190 ; Lawienoe, 86-87 ; Hall, pp. 

151 £E.; Westlake, pp. 118,184 ff. 

THE **ANNA/' 1805. 
5 C. Robinson, 373. 

The capture of the ship of an enemy in the territorial waters 
of a neutral is illegal ; and the ship will be restored by 
the Prize Court of the captor. 

Territorial waters extend three miles from the shore, or 
from islands near shore. 

Case. — ^Thifl was the case of a ship under American colours, 
with a cargo of logwood and about thirteen thousand dollars on 
board, bound from the Spanish Main to New Orleans, and cap- 
tured by the Minerva privateer near the mouth of the Rivez 
Mississippi. A claim was entered under the direction of the 
American Minister for the ship and cargo, as taken within the 
territory of the United States, at the distance of a mile and a 
half from the western shore of the principal entrance of the 
Mississippi, and within view of a port protected by a gun, 
and where is stationed an officer of the United States. 

Judgment (Sir W. Scott). — ** When the ship was brought into 
this country a claim was given of a grave nature, alleging a viola- 
tion of the territory of the United States of America. This great 
leading fact has very properly been made a mattex of much 
discussion, and charts have been laid before the Court to show the 

53 



54 TERRITORIAL WATERS 

place of capttue, though with difieient lepieaentations from the 
adverse parties. The capture was made, it seems, at the mouth 
of the River Mississippi, and, as it is contended in the claim, 
within the boundaries of the United States. We all know that 
the rule of law on this subject is terra dominium f^U'wty ti&i 
f^Hwr armorum vis, and since the introduction of fire-arms that 
distance has usually been recognised to be about three miles 
from the shore. But it so happens in this case that a question 
arises as to what is to be deemed the shore, since there are a 
number of little mud islands composed of earth and trees drifted 
down by the river, ^hich form a kind of portico to the main- 
land. It is contended that these are not to be considered as any 
part of the territory of America, that they are a sort of ^ no 
man's land,' not pf consistency enough to support the purposes 
of life, uninhabited, and resorted to, only, for shooting and 
taking birds' nests. It is argued that the line of territory is to 
be taken only from the Balise, which is a fort raised on made land 
by the former Spanish possessors. I am of a difierent opinion ; 
I think that the protection of territory is to be reckoned from 
these islands ; and that they are the natural appendages of the 
coast on which they border, and from which, indeed, they are 
formed. Their^elements are derived immediately from the terri- 
tory, and on the principle of alluvium and increment, on which 
so much IS to be found in the books of law. Quod vis fluminis 
de tuo prcsdio detraxerit, et vidno pradio attulerit, pdlam tuum 
remanet, even if it had been carried over to an adjoining territory. 
Consider what the consequence would be if lands of this descrip- 
tion were not considered as appendant to the mainland, and 
as comprised within the bounds of territory. 

^^ I fthey do not belong to the United States of America, any 
other Power might occupy them ; they might be embanked and 
fortified. What a thorn would this be in the side of America ! 
It is physically possible at least that they might be so occupied 
by European nations, and then the command of the river would 
be no longer in America, but in such settlements. The possibility 
of such a consequence is enough to expose the fallacy of any 



TERRITORIAL WATERS 55 



ftrgamentB that axe addxeBsed to show that theae islands axe not 
to be considexed as part of the temtoiy of America. Whether 
they are composed of earth or solid rock will not vary the right 
of dominion, for the right of dominion does not depend upon 
the teztaie of the soil. 

'^ I am of opinion that the right of territory is to be^ reckoned 
from those islands. That being established, it is not denied that 
the actual captuie took place within the distance of three miles 
from the islands, and at the very threshold of the river. But it is 
said that the act of capture is to be carried back to the commence- 
ment of the pursuit, and that if a contest begins before, it is 
lawful for a belligerent cruiser to follow, and to seize his prizea 
within the territory of a neutral State. And the authority of 
Bynkershoek is cited on this point. True it is that that great 
man does Intimate an opinion of his own to that efiect ; but 
with many qualifications, and as an opinion, which he did not 
find to have been adopted by any other writers. I confess I 
should have been inclined to have gone along with him, to this 
extent, that if a cruiser, which had before acted in a manner 
entirely unexceptionable, and free from all violation of territory, 
had summoned a vessel to submit to examination and search, 
and that vessel had fled to such places as these, entirely unin- 
habited, and that the cruiser had, without injury or annoyance 
to any person whatever, quietly taken possession of his prey, 
it would be stretching the point too hardly against the captor to 
say that on this account only it should be held an illegal capture. 
If nothing objectionable had appeared in the conduct of the 
captors before, the mere following to such a place as this is would, 
I think, not invalidate a seizure otherwise just and lawful. 

^* But that brings me to a part of the case on which I am of 
opinion that the privateer has laid herself open to great reprehen- 
sion. Captors^ must understand that they are not to station 
themselves in the mouth of a neutral river, for the purpose of 
exercising the rights of war from that river, much less in the river 
itself. It appears from the privateer's own log-book that this 
vessel has done both ; and as to any attempt to shelter this 



56 TERRITORIAL WATERS 

oondact under the example of King's shipe, which I do not believe, 
and which, if trae, would be no justification to otheis, captois 
must, I say, be admonished, that the practice is altogether 
indefensible, and that if King's ships should be guilty of such 
misconduct, they would be as much subject to censure as other 
cruisers," 

Note. — ^ThiB case deals partioularly with the question of capture by a 
belligerent within the territorial waters of a neutral (for which Me below, 
p, 159) ; but the decision contains dicta of general applicatton on the 
broad question of what are temtorial waters. 



JURISDICTION IN TERRITORIAL WATERS. 

Tbbbitobial Watbbs JuBiSDicmoN Act, 1878. 

41 & 42 Vict. chap. Izxiii. 

An Act to regulate the Law relating to the Trial of Offences 
committed on the Sea within a certain distance of the Coasts 
of Her Majesty's Dominions. 

The Statute enacts : — 

Whereas the rightful jurisdiction of Her Majesty, hei heiis 
and successors, extends and has always extended over the open 
seas adjacent to the coasts of the United Kingdom and of all 
other parts of Her Majesty's dominions to such a distance as is 
necessary for the defence and security of such dominions : 

And whereas it is expedient that all ofEences committed on 
the open sea within a certain distance of the coasts of the United 
Kingdom and of all other parts of Her Majesty's dominions, by 
whomsoever committed, should be dealt with according to law : 

Be it therefore enacted by the Queen's most Excellent Majesty, 
by and with the advice and consent of the Lords Spiritual and 
Temporal, and Commons in this present Partiament assembled, 
and by the authority of the same as follows : 

1. This Act may be cited as the Territorial Waters Jurisdiction 
Act, 1878. 

2. An ofEence committed by a person, whether he is or is not 



TERRITORIAL WATERS 57 

a sabjeot of Hei Majesty, on the open sea within the tezritorial 
waters of Hei Majesty's dominions, is an ofEence within the 
jnsisdiction of the Admiial, although it may have been committed 
on board or by means of a foreign ship, and the person who 
committed such ofience may be arrested, tried, and punished 
accordingly. 

3. Proceedings for the trial and punishment of a person who 
b not a subject of Her Majesty, and who is charged with any 
such ofiFence as is declared by this Act to be within the jurisdic- 
tion of the Admiral, shall not be instituted in any Court of the 
United Kingdom, except with the consent of one of Her Majesty's 
Principal Secretaries of State, and on his certificate that the 
institution of such proceedings is in his opinion expedient, and 
shall not be instituted in any of the dominions of Her Majesty 
out of the United Kingdom, except with the leave of the Governor 
of the part of the dominions in which such proceedings are 
proposed to be instituted, and on his certificate that it is expedient 
that such proceedings should be instituted. 

4. On the trial of any person who is not a subject of Her 
Majesty for an ofEence declared by this Act to be within the 
jurisdiction of the Admiral, it shall not be necessary to aver in 
any indictment or information on such trial that such consent 
or certificate of the Secretary of State or Qovemor as is required 
by this Act as being given, and the fact of the same having been 
given shall be presumed unless disputed by the defendant at 
the trial ; and the production of a document purporting to be 
signed by one of Her Majesty's Principal Secretaries of State 
as resped» the United Kingdom, and by the Qovemor as respects 
any other part of Her Majesty's dominion)^ and containing such 
consent and certificate shall be sufficient evidence foi all the 
purposes of this Act of the consent and certificate required by 
this Act. 

Proceedings before a justice of the peace or other magistrate 
previous to the committal of an offender for trial or to the deter- 
mination of the justice or magistrate that the offender is to be 
put upon his trial shall not be deemed proceedings for the trial 



58 TERRITORIAL WATERS 

of the offence committed by micli offender for the purpose of the 
eaid consent and certificate under this Act. 

5. Nothing in this Act contained shall be construed to be in 
derogation of any rightful jurisdiction of Her Majesty, her heirs 
or successors, under the law of nations, or to affect or prejudice 
any jurisdiction conferred by Act of ParUament or now by law 
existing in relation to foreign ships or in relation to persons 
on board such ships. 

6. This Act shall not prejudice or affect the trial in manner 
heretofore in use of any act of piracy as defined by the law of 
nations, or affect or prejudice any law relating theieto ; and 
where any act of piracy as defined by the law of nations is fldso 
any such offence as is declared by this Act to be within the juris- 
diction of the Admiral, such offence may be tried in pursuance 
of this Act, or in pursuance of any other Act of Parliament, law, 
or custom relating thereto. 

7. In this Act, unless there is something inconsistent in the 
context, the following expressions shall respectively have the 
meanings hereinafter assigned to them ; that is to say, 

" The jurisdiction of the Admiral," as used in this Act, includes 
the jurisdiction of the Admiralty of England and Ireland, or 
either of such jurisdictions as used in any Act of Parliament ; 
and for the purpose of arresting any person charged with an 
offence declared by this Act to be within the jurisdiction of the 
Admiral, the territorial waters adjacent to the United Kingdom, 
or any other part of Her Majesty's dominions, shall be deemed 
to be within the jurisdiction of any judge, magistrate, or o£5oer 
having power within such United Edngdom, or other part of 
Her Majesty's dominions, to issue warrants for arresting or to 
arrest persons chained with offences committed within the 
jurisdiction of such judge, magistrate, or officer : 

" United Kingdom " includes the Isle of Man, the Channel 
Islands, and other adjacent islands : 

^^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 



TERRITORIA L WATERS 59 

of Her Majesty's dominions, as is deemed by international law 
to be within the territorial sovereignty of Her Majesty ; and f oi 
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 : 

" Grovemor," as respects India, means the Govemor-Qeneral 
or the Qovemor of any presidency ; and where a British posses- 
sion consists of several constituent colonies, means the Qovemor- 
General of the whole possession or the Qovemor of any of the 
constituent colonies ; and as respects any other British posses- 
sion, means the ofBoer for the time being administering the 
government of such possession ; also any person acting for or 
in the capacity of Grovemor shall be included under the term 
" Governor." 

'^ Offence " as used in this Act means an act, neglect, or default 
of such a description as would, if committed within the body of 
a county in England, be punishable on indictment according to 
the law of England for the time being in force : 

" Ship " includes every description of ship, boat, or other 
floating craft. 

^* Foreign ship " means any ship which is not a British ship. 

Note. — ^This Act was passed in oonsequeuoe of the decision in The 
Queen v. Keyn {see above, p. 6), where it was held by a majority of the 
judges of the Ck>urt of Grown Oases Reserved that the English Court had 
no jorisdiotion at common law over offeooes committed by foretgners in 
territorial waters. It treats territorial waters as subject to the sovereignty 
ol the littoral State, but places no maximum limit to their extent. 



6o TERRITORIAL WATERS 

Territorial Gulfs and Bats. 

Of. Oppenheim, s. 191 ; Hall, p. 155 ; Westlake, p. 187. 

THE DIRECT UNITED STATES CABLE CO. ▼. 
THE ANGLO-AMERICAN TELEGRAPH CO. 

Peivy Council, 1877. 

Law Reports, 2 App. Cases, 394. 

Conception Bay, in Newfoundland, which is something over 
fifteen miles wide, and forty to fifty miles long, is a 
British bay, and a part of the territorial waters of 
Newfoundland. 

Case. — ^This suit was one in whicli the respondent company 
had obtained an injunction against the appellant company 
restraining them from laying a telegraph cable in Conception 
Bay, Newfoundland, and thereby infringing rights granted by 
the legislature of that island to the respondent company. The 
appellant company contended that Conception Bay (which is 
rather more than twenty miles wide at its mouth and runs inland 
between forty and fifty miles) was not British territorial waters, 
but a part of the high seas. The buoy and cables complained of 
were laid within the bay at a distance of more than three miles 
from the shore. 

Judgment. — The judgment was delivered by Lord Blackburn, 
who, after reviewing the cases under the Common Law of England 
continued : ** Passing from the common law of England to the 
general law of nations, as indicated by the text-writers on 
international jurisprudence, we find an universal agreement 
that harbours, estuaries, and bays landlocked belong to the 
territory of the nation which possesses the shores round them, 
but no agreement as to what is the rule to determine what is 
* a bay ' for this purpose. 

*' It seems generaUy agreed that where the configuration and 



TERRITORIAL WATERS 6i 

dimenaionB of the bay aie such as to show that the nation occu* 
pying the adjoining coasts abo occupies the bay, it is part of 
the temtoiy, and with this idea most of the wiiteis on the 
subject refer to defensibility from the shore as the test of occu- 
pation ; some suggesting, therefore, a width of one cannot-shot 
from shore to shore, or three miles ; some a cannon-shot from 
each shore, or six miles ; some an arbitrary distance of ten 
miles. All of these are rules which, if adopted, would exclude 
Conception Bay from the territory of Newfoundland, but also 
would have excluded from the territory of Great Britain that 
part of the British Channel which in Reg. v. Cunningham was 
decided to be in the county of Glamorgan. On the other hand, 
the diplomatists of the United States in 1793 claimed a terri- 
torial jurisdiction over much more extensive bays, and ChanceUor 
Kent, in his Conmientaries, though by no means giving the weight 
of his authority to this claim, gives some reasons for not con- 
sidering it altogether unreasonable. It does not appear to their 
Lordships that jurists and text-writers are agreed what are the 
rules as to dimensions and configuration, which, apart from other 
considerations, would lead to the conclusion that a bay is or is 
not a part of the territory of the State possessing the adjoining 
coasts ; and it has never, that they can find, been made the 
ground of any judicial determination. If it was necessary in 
this case to lay down a rule the difficulty of the task would not 
deter their Lordships from attempting to fulfil it. But in their 
opinion it is not necessary so to do. It seems to them that, in 
point of fact, the British Government has for a long period 
exercised dominion over this bay, and that their claim has 
been acquiesced in by other nations, so as to show that the bay 
has been for a long time occupied exclusively by Great Britain^ 
a circumstance which in the tribunals of any country would be 
very important. And moreover (which in a British tribunal is 
conclusive), the British Legislature has by Acts of Parliament 
declared it to be part of the British territory, and part of the 
country made subject to the LegLslature of Newfoundland.'* 



62 TERRITORIAL WATERS 



Jurisdiction over Bats. 

THE NORTH ATLANTIC COAST FISHERIES 

ARBITRATION, 1910 

Com. — The question of the extent of the jniiBcliction over bays 
was laised in the " North Atlantic Coast Fisheries Arbitiation/* 
in which the awaid was given by the Hagae Tribunal on Sep- 
tember 7, 1910. The arbitration dealt with the dispute between 
Great Britain and the United States about the fisheries off 
Newfoundland, as to which certain privileges were accorded to 
the subjects of the United States by the treaty of 1818. The 
dispute had been a constant source of friction for the better 
part of a century, and one of the chief questions at issue was as 
to the meaning of a renunciation clause in the treaty by which the 
inhabitants of the United States gave up any former right enjoyed 
or claimed of taking, drying, or curing fish ^^ in or within three 
marine miles of any of the coast bays, creeks, or harbours of 
Her Britannic Majesty's dominions in North America " not 
included in certain limits. 

The question which was submitted to the arbitrators on this 
head was thus formulated : ** From where must be measured 
the three marine miles of any of the coasts, bays, creeks, or 
Barbours referred to in the said article T " 

On the point of construction Oieat Britain contended that the 
bays, which were referred to in the treaty without qualification, 
were geographical bays, and that it was immaterial whether, 
apart from the treaty, they were territorial or not {i.e. under 
the sovereignty of Qreat Britain), though she maintained that 
they were in fact territorial. The United States, on the other 
hand, contended that the bays referred to were those under the 
sovereignty of Britain, by which was meant those that were six 
miles or lees in width inter faucsi terrWy because the three-mile 
rule as shown by the treaty was a principle of international law 
applicable to coasts, and should be strictly and systematically 
appUed to bays. 



TERRITORIAL WATERS 63 

The majority of the arbitiatozs favouied the geuexal oon- 
tentions of Britain. 

"Now consideriiig/' they say, "that the treaty U0ed the 
geneial tenn ^ bays ' without qiialifioationy the Tribunal is of 
opinion that these woids of the treaty must be interpreted in a 
general sense as applying to every bay on the coast in question 
that might be reasonably supposed to have been considered as 
a bay by the negotiators of the treaty under the general con- 
ditions then prevailing, unless the United States can adduce 
satisfactory proof that any restrictions or qualifications of the 
general use of the term were or should have been present to 
their minds." 

To discharge this onus of proof the United States advanced 
six principal arguments, based either on the nature and other 
terms of the treaty or on the application of the three-mile rule 
to bays. In the latter connection they maintained in effect 
that the limit was a rule of international law applicable to coasts 
and should be applied strictly and systematically to bays, that 
no exception should be allowed except where sanctioned by 
convention or established usage, a condition not satisfied in the 
great majority of the bays in question, which exceeded six miles 
ifderfaiuces ierroB. 

A majority of the arbitrators (Dr. Drago dissenting) rejected 
each and all of these contentions. The application of the three- 
mile limit to bays was rejected for seven reasons, two of which 
relate to international law. 

" (a) Because admittedly the geographical character of a bay 
contains conditions which concern the interests of the territorial 
sovereign to a more intimate and important extent than do those 
connected with the open coast. Thus conditions of national and 
territorial integrity, of defence, of conmierce and of industry, 
are all vitally concerned with the control of bays penetrating 
the national coast-line. This interest varies, speaking generally* 
in proportion to the penetration inland of the bay ; but as no 
principle of international law recognises any specified relation 
between the concavity of the bay and the requirements foi 



64 TERRITORIAL WATERS 

control of the territorial Bovereigntj, this Tribunal is unable to 
qualify by the application of any new principle its interpretation 
of the treaty of 1818 as excluding bays in general from the strict 
and systematic application of the three-mile rule ; nor can this 
Tribunal take cognisance in this connection of other principles 
concerning the territorial sovereignty over bays such as ten- 
mile or twelve-mile limits of exclusion based on international 
acts subsequent to the treaty of 1818, and relating to coasts 
of a different configuration and conditions of a different 
character. 

'^ (b) Because the opinion of jurists and publicists quoted in 
the proceedings conduce to the opinion that, speaking generally, 
the three-mile limit should not be strictly and systematically 
applied to bays." 

As to the connotation of the term bays, the Tribunal made the 
following declaration : 

*^ The negotiators of the treaty of 1818 did not probably trouble 
themselves with subtle theories concerning the notion of ' bays ' ; 
they most probably thought that every one knew what was a 
bay. In this popular sense the term must be interpreted in the 
treaty. The interpretation must take into account all the indi- 
vidual circumstances which for any one of the different bays 
are to be appreciated : the relation of its width to the length of 
penetration inland, the possibility and the necessity of its being 
defended by the State in whose territory it is indented, the special 
value which it has for the industry of the inhabitants of its 
shores, the distance which it is secluded from the highway of 
nations in the open sea, and other circumstances not possible 
to enumerate in general." 

** For these reasons the Tribunal decides and awards : 

** In case of bays the three marine miles are to be measured 
from a straight line drawn across the body of water at the place 
where it ceases to have the configuration and characteristics of 
a bay. At all other places the three marine miles are to be 
measured foUowing the sinuosities of the coast.'* 

But considering the Tribunal cannot overlook that this answer 



u 



TERRITORIAL WATERS 65 

to Question V., although coirect in piinciple and the only one 
possible in view of the want of a sufficient basis for a moxe 
conciete answer, is not entirely satisfactory as to its practical 
applicability, and that it leaves room for doubts and difierences 
in practice. Therefore the Tribunal considers it its duty to render 
the decision more practicable and to remove the danger of future 
differences by adjoining to it a recommendation in virtue of the 
responsibilities imposed by Article IV. of the Special Agreement. 

** Considering, moreover, that in treaties with France, with the 
North German Confederation and the German Empire, and like- 
wise in the North Sea Convention, Great Britain has adopted for 
similar cases the rule that only bays of ten miles width should be 
considered as those wherein the fishing is reserved to nationals. 
And that in the course of the negotiations between Great Britain 
and the United States a similar rule has been on various occa- 
sions proposed and adopted by Great Britain in instructions to 
the naval officers stationed on these coasts. And that, though 
these circumstances are not sufficient to constitute this a prin- 
ciple of international law, it seems reasonable to propose this 
rule with certain exceptions, all the more that this rule with such 
exceptions has abready formed the basis of an agreement between 
the two Powers. 

" Now therefore this Tribunal in pursuance of the provisions 
of Article IV. hereby recommends for the consideration and 
acceptance of the High Contracting Parties the following rules 
and method of procedure for determining the limits of the bays 
hereinbefore enumerated. 

** (1) In every bay, not hereinafter specifically provided for, the 
limits of exclusion shall be drawn three miles seaward from a 
straight line across the bay in the part nearest the entrance at 
the first point where the width does not exceed ten miles.'' 

(Other rules follow which are not material.) 

The recommendations of the Tribunal, which were in the 
nature of a compromise, adopted in part the theory that bays 
are determined by lines drawn between headlands, and in part 
the conventional extension of the three-mile limit which had been 

5 



66 TERRITORIAL WATERS 

sanctioned for ceitain European bays by mtemational conven- 
tion. 

2fofe.~In the Behring Sea Arbitration between Gteat Britain and the 
United States, wliioh traa oonoluded in 1808, similar questione aToie ai to 
the right of a State to exeroise jurisdiction on the high seas beyond the 
three-mile limit for the purpose of protecting fur seals. The United States 
ctLtter had arrested certain Oanadian ressels in the Behring Sea at distances 
Tarying from fifteen to one hundred miles from land for taking seals i but 
the tribunal found that " the United States have no right to the protection 
of or property in the seals frequoiting the islands of the United States in 
Behring Sea when the same are found outside the ordinary three-mile 
limit." Accordingly the concurrence of Great Britain was held to be 
necessary to the establishment of nsgulations for the proper proteetien and 
pt essrr a titin of fur seals resorting to Behring Sea. 



CHAPTElt Vn. 
LIMITS OF JURISDICTION. 

Cf. Oppenheim, as. 143-147; Lawience» 93-101; Westlake, 

p. 238£E. ; Hall, p. 909 fi. 

MACLEOD t. ATTORNEY-GENERAL FOR 

NEW SOUTH WALES. 

L.B. 1891 ; Appeal Cases, p. 456 ; 60 L.J. P.C. 55. 

A State has, apart from conventional rights. Jurisdiction 
only over its own subjects and persons within its 
territories. 

Case. — The appellant was, on July 13, 1872, at Darling Point, 
in the Colony of New South Wales, mairied to one Maiy Manson, 
and in hei lifetime, on May 8, 1889, he was marded, at St. Louis, 
in the State of Missouri, in the United States of America, to 
Maiy Ulisabeth Cameron. He was afterwards indicted, tried, 
and convicted, in the Colony of New South Wales, for the offence 
of bigamy, under sec. 64 of the Criminal Law Amendment Act of 
1883 (46 Vict. No. 17). 

Lord Halsbury (L.C.), in giving the judgment of the Privy 
Council, to whom an appeal against the conviction was brought, 
said : 

Judgment, — ^^ Upon the face of this record the offence is charged 

to have been committed in Missouri, in the United States of 

America, and it therefore appears to their Lordships that it is 

manifestly shown, beyond all possibility of doubt, that the 

67 



68 LIMITS OF JURISDICTION 

ofEence charged was an offence which, if committed at all, was 
committed in another countiy, beyond the juiisdiction of the 
Colony of New South Wales. 

*^ The result, as it appears to their Lordships, must be that 
there was no jurisdiction to try the alleged offender for this 
ofEence, and that this conviction should be set aside. Their Lord- 
ships think it right to add that they are of opinion that if the 
wider construction had been appUed to the statute, and it was 
supposed that it was intended thereby to comprehend cases so 
wide as those insisted on at the Bar, it would have been beyond 
the jurisdiction of the colony to enact such a law. Their juris- 
diction is confined within their own territories, and the, marim 
which has been more than once quoted, ^ Extra territorium jus 
dicenti impune non paretur,' would be applicable to such a case. 
Lord Wensleydale, when Baron Parke, advising the House of 
Lords in Jefferys v. Boosey, expresses the same proposition in 
very terse language. He says : ' The Legislature has no power 
over any persons except its own subjects — that is, persons natural- 
bom subjects, or resident, or whilst they are within the limits of 
the kingdom. The Legislature can impose no duties except on 
them ; and when legislating for the benefit of persons must, 
prima faciey be considered to mean the benefit of those who owe 
. obedience to our laws, and whose interests the Legislature is 
under a correlative obligation to protect.' All crime is local. 
The jurisdiction over the crime belongs to the country where 
the crime is committed, and, except over her own subjects, her 
Majesty and the Imperial Legislature have no power whatever. 
It appears to their Lordships that the effect of giving the wider 
interpretation to this statute necessary to sustain this indictment 
would be to comprehend a great deal more than her Majesty's 
subjects ; more than any persons who may be within the juris- 
diction of the colony by any means whatsoever; and that, 
therefore, if that construction were given to the statute, it 
would follow as a necessary result that the statute was nUra 
vires of the Colonial Legislature to pass." 



LIMITS OF JURISDICTION 69 



GURDYAL SINGH ▼. RAJAH OF FARIDKOTE. 

L.B. 1894 ; Appeal Cases, 670. 

All jurisdiction is primarily territorial : and except in 
special cases a State has no jurisdiction oyer a foreigner 
who is not within the territory and who owes no 
allegiance to the State. 

Case. — ^The appellant in the Faiidkote case had formerly been 
in the Rajah's service, but had ceased to reside in the State, 
being at the time the action was brought in Jhind. He was 
there served with processes of the Faridkote Court, which he 
disregarded ; and he never appeared or otherwise submitted 
himself to the jurisdiction. Decrees were made against him and 
it was attempted to enforce them in the Punjab Courts. The 
Judicial Committee of the Privy Council on appeal rejected the 
competence of the jurisdiction of the Faridkote Court. 

In the course of the judgment, which was delivered by Lord 
Selbome, it was said : 

Judgment. — ^^^The appellant disregarded the processes and 
never appeared to either of the suits. He was under no obligation 
to do so, by reason of the notice of the suits which he thus received 
or otherwise, unless that Court had lawful jurisdiction over him. 
Under these circumstances there was . . . nothing to take this 
case out of the general rule that the plaintiff must sue in the Court 
to which the defendant is subject at the time of suit {Actor sequUur 
forum ret), which is rightly stated by Six B. Phillimore to ' he at 
the root of all international, and of most domestic, jurisprudence 
on this matter.' All jurisdiction is properly territorial, and extra 
terriiorium jus dioennii^ impune non faretu/r. Territorial jurisdic- 
tion attaches (with special exceptions) upon all persons either 
permanently or temporarily resident within the territory while 
they are within it but it does not follow them after they have 
withdrawn from it, and when they are Uving in another indepen* 
dent country. It exists always as to land within the territoiy ; it 



70 LIMITS OF JURISDICTION 

may be ezeicised over movables within the teiritoij ; and in 
questions of status or succession governed by domicil it may 
exist as to persons domiciled, or who when living were domiciled, 
within the territory. As between different provinces under one 
sovereignty {e.g. under the Boman Empire), the legislature of the 
sovereign may distribute and regulate jurisdiction, but no terri- 
torial legi8Iatio^ can give jurisdiction which any foreign Court 
ought to recognise against foreigners, who owe no allegiance or 
obedience to the power which so legislates. In a personal action, 
to which none of these causes of jurisdiction apply, a decree 
pronounced in absentem by a foreign Court, to the jurisdiction of 
which the defendant has not in any way submitted himself, is 
by international law an absolute nullity. He is under no obliga- 
tion of any kind to obey it ; and it must be regarded as a mere 
nullity by the Courts of every nation except (when authorised 
by special local le^lation) in the country of the forum by which 
it was pronounced. These are the doctrines laid down by all the 
leading authorities on international law . . . and no exception 
is made to them, in favour of the exercise of jurisdiction against 
a defendant not otherwise subject to it, by the Courts of the 
country in which the cause of action arose, or (in oases of con- 
tract) by the Courts of the locus sohUianis. In those oases, as 
well as others, when the action is personal, the Courts of the 
country in which a defendant resides have power, and they ought 
to be resorted to, to do justice." 

Lord Selbome went on to point out certain exceptions to 
the general rule of jurisdiction as where the action relates to 
land within the territory. 

Naie.'^Thwd two cases illustmte natively the rale that a State has 
jurisdiotion over all persons and things within its territoiy bat not, with 
some exceptions, over persons and things outside it The limits of juris- 
diction are not, however, very olearly defined. The oases that follow show 
tiiat the State has jurisdiotion over its ships on the high soas, whioh by 
a fiction are regarded as a part of its territory far the purpose ; and, 
further, it may have jurisdiotion over its subjeots abroad in respect oi 
certain criminal offences conmiitted by them. 'ThuB in Earl Rwaeira Case 
[L.B. 1901, A.O. 446) an English peer was sentenced by a house of his 



LIMITS OF JURISDICTION 71 

p«ers for bigamy oommitted in Amerioa, it being held that the Thfigliwh 
Matrimonial statute, unlike the New South Wales statute, whioh waa con- 
sidered in Madeod v. AUomey-Ckneral of New South Wales, conferred i^n 
extra-territorial jurisdiction. And in Cockney v. Anderaon {1 P. J. 4b S. 
365) Lord Westbury stated a large ground on in^ioh the l^islature of 
any country is warranted in conferring on its civil tribunak an extra- 
territorial jurisdiction, vis., *' the right which it receives by inteniational 
law of summoning all persons interested ^erever residentt uiien the 
subject or suit arises or is situate within its own territory, and falls to be 
determined by its own law and the judgments of its own Courts of Civil 
Jurisdiction." This statement was held to be too sweeping in Drumnumd 
v. Jkummond (L.B. 2 Ch. 32), but the right of the l4gislature in a British 
colony to make rules for service of a writ on an absent defendant in respect 
ol a contract to be performed in the colony has been expressly upheld 
in the case of Ashbury v. EUia (L.R. 1893, A.C. 839). The decision in 
the SMdkote case is therefore limited by the rule that a State may claim 
to exercise jurisdiction over persons not withiu its territory and not its 
subjects, but it may not be able to enforce judgpaioots against 0noh persons 
through a foreign tribunal 



ExCBPnONS TO ORDINARY RULES ABOUT JURISDICTION : 

I. Christian subjects resident in Eastern Countries. 

Cf. Oppenhaim, ss. 318 and 440; Lawience, 109. 

PAPAYANNI v. THE RUSSIAN STEAM 
NAVIGATION COMPANY, x868. 

2 Moore P.O., N.S. 161. 

A8 between Oriental and Christian Statei a ceeMon of 
jurisdiction may be expressed by usage and acquies- 
cence. There is no compulsory power in an English 
Court in Turkey over any but British subjects : but a 
Russian may voluntarily submit to the jurisdiction of 
such a Court, 

Case, — ^This was an appeal from a judgment pronounced by 
the British Consular Court at Constantinople respecting damage 
by collision o£E the island of Marmora, whereby the steamer 
Oohhide was lost. The appellants were British subjects and owners 



72 LIMITS OF JURISDICTION 

of the s.s. Lacania; the lespondents were BuBfiian subjectB 
and were the owners of the s.s. Cokhide. The principal question 
was as to the juiisdiction of the Consular Court ; and on this 
point Dr. Lushington, in giving the judgment of the Privy 
Council, said : 

Judgment. — " In considering what power and what jurisdiction 
was conceded to Great Britain within certain portions of the 
Turkish dominions, it must always be borne in mind that in 
almost all transactions, whether political or mercantile, a wide 
difference subsists in the dealings between an Oriental and a 
Christian country and the intercourse between two Christian 
nations. It is true, beyond all doubt, that as a matter of right 
no State can claim jurisdiction of any kind within the territorial 
limits of another independent State. It is also true that between 
two Christian States all claims for jurisdiction of any kind or 
exemption from jurisdiction must be founded on treaty or 
engagements of similar validity. Such, indeed, were Factory 
establishments for the benefit of trade. 

** But though, according to the laws and usages of European 
nations, a cession of jurisdiction to the subjects of one State 
within the territory of another would require, generally at least, 
the sanction of a treaty, it may by no means follow that the 
same strict forms, the same precision of treaty obligations, 
would be required or found in intercourse with the Ottoman 
Porte. . . . Consent may be expressed in various ways — by 
constant usage permitted and acquiesced in by the authorities 
of the State, active assent, or silent acquiescence when there 
must be full knowledge. We entertain no doubt that, so far as 
relates to the Ottoman Government, no objection is tenable 
against the exercise of jurisdiction between l^ritish and Bussian 
subjects. Indeed the objection, if any such could be urged, should 
come from the Ottoman Government rather than a British suitor, 
who in this case is bound by the law established in his own country. 
We think that, so far as the Ottoman Government was con- 
cerned, it is sufficiently shown that they have acquiesced in 
allowing to the British Government a jurisdiction, whatever be 



LIMITS OF JURISDICTION 73 

its peculiar kiiid» between BritiBh sabjects and the subjects of 
other Chiistian States. 

'^ It appears to us that the couise was this : that at fiist, from 
the total difEeience of leligious habits and feelings, it was neces- 
sary to withdraw as far as practicable British subjects from the 
native Courts ; thus in the progress of time commerce 
increasing and various nations having the same interest in 
abstaining from resort to the tribunals of Musulmans, recourse 
was had to Consular Courts, and by degrees the system became 
general. Of all this the Government of the Ottoman Porte must 
have been cognisant, and their long acquiescence proves consent. 
The principles are fully explained in the celebrated judgment of 
Lord Stowell in the case of The Indian Chief {see hdow, p. 176). 

'^ Though the Ottoman Porte could give and has given to the 
Chiistian Powers of Europe authority to administer justice to 
their own subjects according to their own laws, it neither has 
professed to give nor could give to any one Power any jurisdic- 
tion over the subjects of another Power. But it has left those 
Powers at liberty to deal with each other as they may think fit ; 
and if the subjects of one country desire to resort to the tribunals 
of another, there can be no objection to their doing so with the 
consent of their own Sovereign and that of the Sovereign to 
whose tribunals they resort. 

'^ There is no compulsoiy power in an English Court in Turkey 
over any but British subjects, but a Russian or other foreigner 
may, if he pleases, voluntarily resort to it with the consent of 
his Sovereign and thereby submit himself to the jurisdiction." 

Noie, — ^lliifl ease shows the origin of that eztra-teEritorial jnrisdbtion 
enjoyed by European Courts in Eastern oountries, and the limitation of 
their powers. The oonsular Courts derived their ezistenoe in Turkey from 
the OapitolationB whioh the Sublime Porte entered into with several 
European Powers in the e^hteenth century. Similar Courts have been 
established in other Eastern oountries (e»g, Persia, Siam, and China) under 
treaties ; and the powers of the Crown to establish suoh jnrisdiotionB have 
been laid down in the Foreign Jurisdiction Act, 1890, which consolidates 
and supersedes a number of earlier Acts. The jurisdiction is limited by the 
terms ol the treaty under which it is granted, and it was held in The 



74 LIMITS OF JURISDICTION 

fmperialJapaneMe Qooemment v. P. dr 0. Co (1896, A.a 644) ^t it would 
be an excess of the jnrisdiotion granted to the British Conwlar Oonrts if 
it were to entertain by way of counterclaim a claim by a British defendant 
against a Japanese plaintiff, the treaty giving the territorial OourtB of 
Japan exclusive oompetenoe over olaims against Japanase subjeota. In 
Egypt Mixed Courts have been establishedy where cases between foreigners 
of different nationalities and between foreigners and native subjeota are 
tried before a Bench consisting of judges of different European countries 
and a native element. 



II. JUKISDICTION OS^ THE HiGJE SeAS. 

0/. Oppenheim, ss. 146 and 240-344 ; Lawrence, 100 ; Hall, 

p. 244 fi. ; Westlake, p. 176-180. 

MARSHALL v. MURGATROYD, 1870. 

L.R. 6 Q.B. 31 ; 40 L.J. M.C. 7. 

According to the rule that a ship on the high seas is deemed 
part of the territory of the State to which she belongs, a 
bastard child of which a woman has been delivered on 
board an English ship is to be deemed born in England, 

Ga$e, — The respondent was delivered of a bastard child on 
board the ship Palmyra^ whilst sailing from New York to Liver- 
pool; that ship belonged to the Canard line of steamers, 
and it was admitted by the appellant's attorney that the 
Oonard line was an English line. The magistrates made an 
order against the appellant for the maintenance of the child. 
It was contended on the part of the appellant that the ship, when 
respondent was delivered, was on the high seas, and at least six 
hundred miles from Liverpool, and that being so, he farther 
contended that the magistrates could not, under the bastardy 
laws, make an order upon the appellant, inasmuch as the child 
was bom " out of England." 

Judgment (Blackburn, J.). — *^ Our judgment must be for the 
respondent. It has been ai^ed that the provisions of 7 A; 8 Vict. 
0. 101, under which this order is made, extend only to England 



LIMITS OF JURISDICTION 75 

and Wales ; that the ohild ol which the lespondent was delivezedf 
JiAviiig been bom on the high seas, was bom out of England, 
and that theiefoie the order is invalid. I think that the evidence 
set out in the case is sufficient to show that the Cunard steamer 
is an English ship. It is part of the common law and of the law 
of nations that a ship on the high seas is a part of the territory 
of that State to which she belongs ; and therefore an English 
ship is deemed to be part of England. The child having been 
bom on board an English ship, the statute applies. The justices 
were therefore right in making the order." 

Note, — ^The rule that a State has civil as well as oriminal jurisdiotion 
over its sabjeots on its ships for actions which take place while they are 
on the high seas is so elementary that it has not been seriously discussed 
in any reported case of modern times ; but this decision shows how the 
rule i| applied in a particular case. The English bastardy Statutes were 
held to extend to a birth which took place on an English ship on the high 
seas. It was necessary to establish that the ship was English because the 
English jurisdiction normal^ applies only to her own vessels. Collision, 
however, is held to be a matter communis juris, and can therefore be 
adjudicated on by the Courts of any State {The Johann Frieelerieh, I Wm. 
Robinson, 35, and The Belgenland, 114 U.S. 355), where the Supreme Court 
of the United States held it had jurisdiction in a claim made in an American 
Court by the captain of a Norwegian barge against a Belgian steamer which 
in mid-ocean had run down and sunk his vessel. 



REGINA ▼. KEYN (THE PRANCONIA). 

L.B. 2, Exchequer Division, p. 63 ; 46 L.J. H.C. 17. 

(See above, p. 6.) 

The position of a foreign private ship on the high seas 
considered. 

Caee. — The facts of this case have already been set out {eee 
above, p. 6). The following passage from the judgment of 
lindley, J., is notable here, beoause it deals with the question 
of the jurisdiotion over foreign merchantmen. 

Judgment, — ** It i8» however, argued that a foreign ship in its 



76 LIMITS OF JURISDICTION 

paaaage oyer the high seas is subject, and subject only^ to the 
law of the countiy to which the sliip belongs ; that such a ship 
is part of the temtory of that country, and that the laws of no 
other country apply to it ; and it is further contended that this 
proposition is true, not only with respect to the conduct of those 
on board, inter se, but also with respect to their conduct towards 
other persons. 

'^ This contention renders it necessary to investigate the doc- 
trine that a merchant ship is part of the territory of the country 
whose flag she bears. It is obvious that she is not so in point of 
fact ; and it is easy to show that the doctrine holds good to a 
very limited extent indeed. First, it is admitted that a foreign 
merchant ship which enters the ports, harbours, or rivers of 
England becomes subject to English law ; her so-called teiti- 
toriality does not in that case exclude the operation of EngUsh 
law : CunningJum^s Case (Bell's Crown Gases, 72). Secondly, it 
is conceded that, even in time of peace, the territoriality of a 
foreign merchant ship, within three miles of the coast of any 
State, does not exempt that ship or its crew from the operation 
of those laws of that State which relate to its revenue or 
fisheries. . . . 

^^ When, indeed, a ship is out at sea in waters which are not 
the territorial waters of any State, it is right that those on board 
her should be subject to the laws of the country whose flags she 
bears, for otherwise they would be subject to no law at all. 
To this extent a ship may be said to be part of the territory of 
the country of her flag {see Manning's Law of Nations, pp. 117- 
256) ; but so to speak of her is to employ a metaphor, and this 
must never be lost sight of. 

'^ Again, for some purposes at all events, a ship may remain 
subject to the laws of her own State even when in the territorial 
waters of another State. In Reg. v. Anderson (Law Rep., 1 Grown 
Gases, 161) a foreigner was tried and convicted in England for 
a manslaughter committed by him when on board a British ship 
in the Garonne. It was held that, though he might have been 
properly tried and convicted in France, the jurisdiction of the 



LIMITS OF JURISDICTION 77 

English Courts over him was not thereby ousted. The so-called 
tenitoziality of a ship may give jurisdiction to the State whose 
flag she bears, without exempting her from the jurisdiction of 
\ the State whose waters she enters. 

V Ncie, — These remarks complement isHbat was said in Begina v. Ledey 
(6e2oi4;), and show that a foreign merohant-yessel may be liable to Fngliiih 
jnrisdiotion for a tort committed in our territorial waters. In Begina v. 
Ander&m (1 C.O.R.) it was said per Byles, J. ; "A British ship is for the 
porpoees of this question like a floating island i and when a crime is 
committed on board a British ship, it is within the jurisdiction of the 
Admiralty Gourt» and the offender is as amenable to British law as if he had 
stood in the Isle of Wight and committed the crime. . . • The only effect 
of the ship being within the ambit of French territory is that there might 
have been concurrent jurisdiction had the IVenoh claimed it. When a 
merchant-vessel is in a foreign port, matters of discipline and things done 
on board wtdoh only affect the vessel axe left by the local authorities to 
be dealt with by the authorities of the nation to which the vessel belongs ; 
but if crimes are committed on board which may disturb the peace of 
the ports the local Court has jurisdiotion " ; ef. The WUdenhua, 1886 
(120 U.S. 1), where the American Oourts exercised jurisdiction, in the 
case of a crime committed on a foreign vessel in an American port 



REGINA ▼. LESLEY (i860). 

Bell's Crown Cases, 220 ; 29 L.J. M.C. 97. 

The master of a British ship may detain Chilian outlaws on 
board his ship, against their will, while in Chilian 
waters, by agreement with the Chilian Government ; 
but he cannot lawfully transport them on the high seas 
under such agreement, because on the high seas he is 
subject to English law. 

Case, — The prosecutor and others were Chilians who were 
banished by their Qovemment from j[}hili to England. The 
Government of Chili hired the defendant to take the banished 
men to England in his vessel, then lying in the territorial waters 
of Chili. This plan was carried out, and the defendant was prose- 
cuted in England for false imprisonment. 



78 LIMITS OP JURISDICTION 

Judgment (Erlei G. J.).-^" Then, can the oonviction be sob- 
tained for that which was done within the Chilian waters } We 
answer no. 

^' We assume that in Chili the act of the Goyemment toward 
its subjects was lawful ; and although an English ship in some 
respects carries with her the laws of her country in the territorial 
waters of a foreign 9tate, yet in other respects she is subject to 
the laws of that State as to acts done to the subjects thereof. 
We assume that the Government could justify all that it did 
within its own territory, and we think it follows that the defendant 
can justify all that he did there as agent tor the Government and 
under its authority. In Debtee v. Napier, 2 Bing. N.O., 781, the 
defendant, on behalf of the Queen of Portugal, seized the plain- 
tifE's vessel for violating a blockade of a Portuguese port in time 
of war. The plaintifE brought tresjiass ; and judgment was for the 
defendant, because the Queen of Portugal, in her own territory 
had a right to seize the vessel and to employ whom she would 
to make the seizure ; and therefore the defendant, though an 
Englishman seizing an English vessel, could justify the act 
under the employment of the Queen. We think that the acts of 
the defendant in Chili became lawful on the same principle, 
and that there is therefore no ground for the conviction. 

^' The further question remains. Can the conviction be sustained 
for that which was done out of the Chilian territory 7 and we 
think it can. It is clear that an EngUsh ship on the high sea, 
out of any foreign territory, is subject to the laws of England ; 
and persons, whether foreign or English, on board such ship are 
as much amenable to English law as they would be on English soil. 

" In Regina v. SaUler, Dears. & Bell's C.C., 625, this principle 
was acted on, so as to make the prisoner, a foreigner, responsible 
for murder on board an English ship at sea. The same principle 
has been laid down by foreign writers on international law, 
among which it is enough to cite Ortolan, * Sut la Diplomatie de 
la Mer,* liv. 2, cap. 13. 

*' The Merchant Shipping Act, 17 A 18 Yict. o. 104, seo. 267, 
makes the master and seamen of a British ship responsible for all 



LIMITS OF JURISDICTION 79 

c&enceB against property 01 person committed on the sea out of 
her Majesty's dominions as if they had been committed mthia 
the jurisdiction of the Adnmalty of En^and. Buch being the 
lawi if the act of the defendant amounted to a false imprisonment, 
he was liable to be convicted. Now, as the contract of the defen- 
dant was to receive the prosecatot and the others as prisoners on 
board his ship and to take them» without their consent, over the 
sea to England, although he was justified in first receiving them 
in Chilii yet that justification ceased when he passed the line of 
Chilian jurisdiction and after that it was a wrong which was 
intentionally planned and executed in pursuance of the contract^ 
amounting in law to a false imprisonment. 

** It may be that transportation to England is lawful by the 
law of Chili, and that a Chilian ship might so lawfully transport 
Chilian subjects ; but fox an English ship the laws of Chili, out 
of that State, are powedess, and the lawfulness of the acts must 
be tried by English law. For these reasons, to the extent above 
mentioned, the conviction is a£5rmed." 

lITofe.— While a British ship Is within the territorial waters of a foreign 
oountty it is subjeot to the jurisdiotion and laws of that doantry as well 
as to Engliflh jnrisdietion, but on the high seas the English Jurisdistioa is 
ezoluaive^ and if an offence against English laW is omnmitted thecei the 
offender is liable in the English Court. 



III. PiBAOY. 

Of. Oppenheim, ss. 272-280 ; Lawrence, 102 ; Hall, p. 262 ; 

Westlake, p. 177. 

UNITED STATES ▼. SMITH, 1820. 

United States Supreme Court (6 Wheaton 168). 

What is piracy by the law of nations, 

CaM.— The prisoneri who was indicted for piracy, had mutinied, 
with other memhers of the crew of a pritate armed yessel, the 
CnaUo (oommiflsioned by the QoreiBiiioat of Buenos Ayres, % 



8o LIMITS OF JURISDICTION 

colony then at war with Spain), and confined their officers, and 
seized by violence another private armed vessel lying in the port, 
and had then plundered and robbed a Spanish vessel on the high 
seas. The Circuit Court divided on the question whether this was 
piracy as defined by the law of nations, so as to be punishable 
under the Act of Congress, of March 3, 1819, and thereupon the 
question was certified to the Supreme Court for its decision. 

Judgment. — Mr. Justice Story dehvered the opinion of the 
Court : ** The Act of Congress upon which this indictment is 
founded provides that if any person or persons whatsoever shall, 
upon the high seas, commit the crime of piracy, as defined by the 
law of nations, and such offender or offenders shall be brought 
into or found in the United States, every such offender or offenders 
shall, upon conviction thereof, Ac., be punished with death. 

..." It is next to be considered whether the crime of piracy 
is defined by the law of nations with reasonable certainty. What 
the law of nations on this subject is may be ascertained by con- 
sulting the works of jurists, writing professedly on public law, 
or by the general usage and practice of nations ; or by judicial 
decisions recognising and enforcing that law. There is scarcely a 
writer on the law of nations who does not allude to piracy as a 
crime of a settled and determinate nature ; and whatever may 
be the diversity of definitions in other respects, all writers concur 
in holding that robbery, or forcible depredations upon the sea, 
animo furandiy is piracy. The same doctiine is held by all the 
great writers on maritime law, in terms that admit of no reason- 
able doubt. 

" The common law, too, recognises and punishes piracy as an 
offence, not against its own municipal code but as an offence 
against the law of nations (which is part of the common law), as 
an offence against the universal law of society, a pirate being 
deemed an enemy of the human race. Indeed, until the statute of 
28th of Henry YIII., ch. 15, piracy was punished in England 
only in the Admiralty as a civil law offence ; and that statute, 
in changing the jurisdiction, has been universally admitted not 
to have changed the nature of the offence. Sir Charles Hedges, 



LIMITS OF JURISDICTION 8i 

in his charge at the Admiialty Sessions, in the case of Rex y. 
Dawson^ 5 State Trials, declared in emphatic terms that ^ piracy 
is only a sea term for robbery, piracy being a robbery committed 
within the jurisdiction of the Admiralty.' Sir Leoline Jenkins, 
too, on a Uke occasion, declared that ^ a robbery, when com* 
mitted upon the sea, is what we call piracy ' ; and he cited the 
civil-law writers, in proof. 

*' And it is manifest from the language of Sir William Black- 
stone, 4 Bl. Comm. 73, in his comments on piracy, that he con- 
sidered the common law definition as distinguishable in no essen- 
tial respect from that of the law of nations. So that, whether we 
advert to writers on the common law, or the maritime law, or 
the law of nations, we shall find that they universally treat of 
piracy as an ofEence against the law of nations, and that its true 
definition by that law is robbery upon the sea. And the general 
practice of all nations in punishing all persons, whether natives 
or foreigners, who have committed this o£Eence against any 
persons whatsoever, with whom they are in amity, is a conclusive 
proof that the offence is supposed to depend, not upon the par- 
ticular provisions of any municipal code, but upon the law of 
nations, both for its definition and punishment. We have, there- 
fore, no hesitation in declaring that piracy, by the law of nations, 
is robbery upon the sea, and that it is sufficiently and constitu- 
tionally defined by sec. 6 of the Act of 1819.'' 



NoU. — ^Piraoy by the law of nations has a well-reoQgnised meaniog, and 
every State has junsdiotion over pirates seized by its veflsels. Pirates, 
howevw, in a common insmanoe policy may mean only persons who 
phindsr indiaoriminately for their private gain and not persons who simply 
operate against the property of a partioalar State for a publics political 
end, the end of establishing a Government (BepMic of Bolivia v. IndemmUy 
Mniual Marine Imuranu Co., Lid. 1909, 1 K.B. 785). 



6 



82 LIMITS OF JURISDICTION 



THE MAGELLAN PIRATES, 1853. 

1 Spinks' Eccl. ft Adm. Rep. 81. 

Insurgents may become, by depredations against foreign 
powers, pirates as well as insurgents. 

Ca«e. — In 1851 tbeie was a state of insuneotion in some of the 
States of Chili ; and the prisoners and garrison of a convict 
settlement in the Straits of Magellan seised a Tcssel and then 
started to prey upon British shipping. Their vessel was captured 
by an English man-of-war and they were tried in England for 
piracy under the 13 ft 14 Vict. ch. 26 and convicted. 

Judgment (Lushington, J.). — ^'^I apprehend that in the ad- 
ministration of our criminal law, generally speaking, all persons 
are held to be pirates who are found guilty of piratical acts, and 
piratical acts are robbery and murder upon the high seas. I do 
not believe that, even where human life was at stake, our courts 
of common law ever thought it necessary to extend their inquiry 
further, if it was clearly proved against the accused that they 
had committed robbery and murder upon the high seas. In 
that case they were adjudged to be pirates, and suffered accord- 
ingly. ... It was never, so far as I am able to find, deemed 
necessary to inquire whether the parties so convicted had intended 
to rob or to murder on the high seas indiscriminately. Though 
the municipal law of different countries may and does differ in 
many respects as to its definition of piracy, j^t I apprehend that 
all nations agree in this, that acts such as those which I have 
mentioned, when committed on the high seas, are piratical acts, 
and contrary to the law of nations. ... I think it does not 
follow that, because persons who are rebels and insurgents may 
commit against the ruling powers of their own country acts of 
violence, they may not be, as well as insurgents and rebels, 
pirates also ; pirates for other acts committed towards other 
persons. It does not follow that rebels and insurgents may not 
commit piratical acts against the subjects of other States, espe* 



LIMITS OF JURISDICTION 83 

cially if sucli acts were in no degree with the insorcection or 
rebellion. Even an independent State may, in my opinion, be 
guilty of piratical acts. What weie the Barbaiy tribes of olden 
times 7 what are many of the African tribes at this moment ? 
It is, I believe, notorious that tribes now inhabiting the African 
coast of the Mediterranean will send out their boats and catch 
any ships becalmed upon their coasts ? 

*' Are they not pirates because, perhaps, their sole livelihood 
may not depend upon piratical acts 7 I am aware that it has 
been said that a State cannot be piratical, but I am not disposed 
to assent to such a dictum as a universal proposition." 

Note, — ^Normally, where insargents confine their hostile acts to the 
Oovemment they are attacking, their ships are not to he treated as pirates 
by fbreign Powers. In the American case of The United States v. The 
Ambrose Ltght/l.W6 (25*Ted: "^OS); however, where a vesfiel was bcought 
into an American Court as a prize, It was held that the ship, which was the 
lawful property of insargents of the Republic of Columbia, unrecognised 
by the United States Gk>Y6rBment, and which was taken by a United 
States gunboat, when oarrpng soldiers and arms to assist in the blockade 
of Cartagena in the possession of the Govemmeot, was lawfully seized 
as being on a piiatfeal expedition. 



CHAPTER Vm. 

EXTRADITION. 

Cf. Oppenheim, ss. 327-332 ; Lawrence, 110-111 ; Hall, p. 57 ; 

Westlake, pp. 242-262. 

UNITED STATES v. RAUSCHER. 

Supreme Court of the United States, 1886. 
119 United States Reports, 407. 

There is no certain rule of international law requiring States 
to deliver up fugitives from justice from other States. 
A person extradited under treaty can be tried for that 
offence only for which he was extradited. 

C(ue. — The prisoner was extradited from England to the 
United States on a charge of murder : he was tried in America 
for assault, and the question bef oie the Supreme Court was 
whether the change in the charge at the trial was justifiable. 

Juigmenl^. — ^''The treaty with Great Britain, under which 
the defendant was surrendered by that Government to ours upon 
a charge of murder, is that of August 9, 1842. . . . The tenth 
article of the treaty is as follows : ^ It is agreed that the United 
States and Her Britannic Majesty shall, upon mutual requisitions 
by them, or their ministers, officers, or authorities, respectively 
made, deliver up to justice all persons who, being charged with 
the crime of murder, or assault with intent to commit murder, 
or piracy, or arson, or robbery, or forgery, or the utterance of 
forged paper, committed within the jurisdiction of either, shall 

84 



EXTRADITION 85 



seek an asylum, 01 shall be found, within the temtoiies of the 
other : provided that this shall only be done upon such evidence 
of criminality as, according to the laws of the place where the 
fugitive or person so charged shall be found, would justify his 
apprehension and conmiitment for trial, if the crime or offence 
had there been committed ; and the respective judges and other 
magistrates of the two Qovemments shall have power, jurisdic- 
tion, and authority, upon complaint made under oath, to issue 
a warrant for the apprehension of the fugitive or person so chaq^d 
that he may be brought before such judges or other magistrates, 
respectively, to the end that the evidence of criminality may 
be heard and considered ; and if, on such hearing, the evidence 
be deemed sufBcient to sustain the charge, it shall be the duty 
of the examining judge or magistrate to certify the same to the 
proper executive authority, that a warrant may issue for the 
surrender of such fugitive.' 

^' Not only has the general subject of the extradition of persons, 
charged with crime in one country, who have fled to and sought 
refuge in another, been matter of much consideration of late years 
by the executive departments and statesmen of the Gbvemments 
of the civilised portion of the world, by various publicists and 
writers on international law, and by specialists on that subject, 
as well as by the courts and judicial tribunals of different coimtries, 
but the precise questions arising under this treaty, as presented 
by the certificate of the judges in this case, have recently been 
very much discussed in this country, and in Great Britain. 

*^ It is only in modem times that the nations of the earth have 
imposed upon themselves the obligation of delivering up these 
fugitives from justice to the states where their crimes were com- 
mitted, for trial and punishment. This has been done generally 
by treaties made by one independent Qovemment with another. 
Prior to these treaties, and apart from them, it may be stated 
as the general result of the writers upon international law, that 
there was no well-defined obligation on one country to deliver 
up such fugitives to another, and though such delivery was often 
made, it was upon the principle of comity, and within the discre- 



86 EXTRADITION 



tion of the Goveznment whose action was inyoked ; and it has 
never been recognised as among those obligations of one Gk)vein- 
ment towaxds anothez which zest upon established principles of 
internationat law. 

^' Whethez in the United States, in the absence of any treaty 
on the subject with a foreign nation from whose justice a fugitive 
may be found in one of the States, and in the absence of any Act 
of Congress upon the subject, a State can, through its own 
judiciary or executive, surrender him for trial to such foreign 
nation, is a question which has been under consideration by the 
Courts of this country without any very conclusive result. . . • 

" The treaty of 1842 being the supreme law of the land, which 
the Courta are bound to take judicial notice of and to enforce 
in any appropriate proceeding the rights of persons growing out 
of that treaty, we proceed to inquire, in the first place, so far as 
pertinent to the question certified by the circuit judges, into 
the true construction of the treaty. We have already seen that, 
according to the doctrine of publicists and writers on international 
law, the country receiving the ofiendez against its laws from 
another country had no right to proceed against him for any 
other ofEence than that for which he had been delivered up. This 
is a principle which commends itself as an appropriate adjunct 
to the discretionary exercise of the power of rendition because 
it can hardly be supposed that a Gbvemment which was tmder 
no treaty obligation nor any absolute obligation of public duty 
to seize a person who had found an asylum within its bosom 
and turn him over to another country for trial, would be willing 
to do this, unless a case was made of some specific ofEence, of a 
character which justified the Qovemment in depriving the party 
of his asylum. It is unreasonable that the country of the asylum 
should be expected to deliver up such person to be dealt with 
by the demanding Gk)vemment without any limitation, implied 
oz otherwise, upon its prosecution of the party. In exercising 
its discretion, it might be very willing to deliver up ofienders 
against such laws as were essential to the protection of life, 
liberty and person, while it would not be willing to do this on 



EXTRADITION 87 



aooount of minoi misdemeanouis or of a certain ckuu of political 
affences in which it would have no inteieat or sympathy. Accord- 
ingly, it has been the policy of all Qovemments to grant an 
asylmn to persons who have fled from their homes on account 
of political disturbances and who might be there amenable to 
laws framed with regard to such subjects, and to the personal 
allegiance of the party. In many of the treaties of extradition 
between the civilised nations of the world, there is an express 
exclusion of ofienders against such laws, and in none of them 
is this class of offences mentioned as being the foundation of 
extradition proceedings. Indeed, the enumeration of offences 
in most of these treaties, and especially in the treaty now under 
consideration, is so specific, and marked by such a clear line in 
regard to the magnitude and importance of those offences, that 
it is impossible to give any other interpretation to it than that 
of the exclusion of the right of extradition for any others. 

'' It is, therefore, very clear that this tieaty did not intend to 
depart in this respect from the recognised public law which had 
prevailed in the absence of treaties, and that it was not intended 
that this treaty should be used for any other purpose than to 
secure the trial of the person extradited for one of the offences 
enumerated in the treaty. This is not only apparent from the 
general principle that the specific enumeration of certain matteis 
and things implies the exclusion of all others, but the entire face 
of the tieaty, including the processes by which it is to be carried 
into effect, confirms this view of the subject. It is unreasonable 
to suppose that any demand for rendition framed upon a general 
representation to the Qovemment of the asylum (if we may use 
such an expression) that the party for whom the demand was 
made was guilty of some violation of the laws of the country 
which demanded him, without specifying any particular offence 
with which he was charged, and even without specifying an offence 
mentioned in the treaty, would receive any serious attention ; 
and yet such is the effect of the construction that the party is 
properly liable to trial for any other offence than that for which 
he was demandedi and which is described in the tieaty. There 



88 EXTRADITION 



would, under that view of the subject, seem to be no need of 
a description of a specific ofiEence in malring the demand. But, 
80 far from this being admissible the treaty not only provides 
that the party shall be charged with one of the crimes mentioned, 
to wit, murder, assault with intent to commit murder, piracy, 
arson, robbery, forgery or the utterance of forged paper, but 
that evidence shall be produced to the judge or magistrate of the 
country of which such demand is made, of the commission of 
such an ofEence, and that this evidence shall be such as according 
to the law of that country would justify the apprehension and 
commitment for trial of the person so charged. If the proceed- 
ings under which the party is arrested in a country where he is 
peaceably and quietly livings and to the protection of whose 
laws he is entitled, are to have no influence in limiting the prosecu- 
tion in the country where the offence is charged to have been 
committed, there is very little use for this particularity in charg- 
ing a specific offence, requiring that offence to be one mentioned 
in the treaty, as well as sufficient evidence of the party's guilt 
to put him upon trial for it. Nor can it be said that, in the 
exercise of such a delicate power under a treaty so well guarded 
in every particular its provisions are obligatory alone on the 
State which makes the surrender of the fugitive, and that that 
fugitive passes into the hands of the country which charges him 
with the offence, free from all the positive requirements and just 
implications of the treaty under which the transfer of his person 
takes place. A moment before he is under the protection of a 
Qovemment which has afforded him an asylum from which he 
can only be taken under a very limited form of procedure, and 
a moment after he is found in the possession of another sove- 
reignty by virtue of that proceeding, but divested of all the rights 
which he had the moment before, and of all the rights which the 
law governing that proceeding was intended to secure. 

'' If upon the face of this treaty it could be seen that its sole 
object was to secure the transfer of an individual from the jurisdic- 
tion of one sovereignty to that of another, the alignment might 
be sound ; but as this right of transfer, the right to demand it, 



EXTRADITION 89 



the obligation to giant it, the pxooeedings undei which it takes 
place, all show that it is for a limited and defined purpose that 
the tiansfei is made, it is impossible to conceive of the exercise 
of jurisdiction in such a case for any other purpose than that 
mentioned in the treaty, and ascertained by the proceedings 
under which the party is extradited, without an implication of 
fraud upon the rights of the party extradited, and of bad faith 
to the country which permitted his extradition. No such view 
of solemn public treaties between the great nations of the earth 
can be sustained by a tribunal called upon to give judicial 
construction to them. . . . 

*^ Upon a review of the decisions of the Federal and State 
Courts, to which may be added the opinions of the distinguished 
writers which we have cited in the earlier part of this opinion, 
we feel authorised to state that the weight of authority and of 
sound principle are in favour of the proposition, that a person 
who has been brought within the jurisdiction of the Court by 
virtue of proceedings under an extradition treaty, can only be 
tried for one of the offences described in that treaty, and for the 
offence with which he is charged in the proceedings for his extradi- 
tion, until a reasonable time and opportunity have been given 
him, after his release or trial upon such charge, to return to the 
country from whose asylum he had been forcibly taken under 
those proceedings." 



NoU, — ^Extradition in every oountry being regulated by treaty, each 
case of extradition depends on the particular treaty under whioh it was 
carried out. But certain general principles apply to all oases, and in this 
decision the rule was affirmed that a person can only be tried for the 
crime for which he was extradited. In 1890, however, the Governments 
of the United States and Great Britain agreed by treaty that the extraditing 
Power might oonseut to the trial of a sorrendered person for facts other 
than those for whioh he was surrendered, if such facts constituted an 
extraditable crime. 



90 EXTRADITION 



English ExrttABiTioN Legislation. 

33 and 34 Vict. oh. 52, 1870. 

An Act for amending the Law relating to the Extradition 

of Criminals. 
Whebeas it is expedient to amend the law relating to the sur- 
render to foreign States of persons accused or convicted of the 
conuniasion of certain crinies within the jurisdiction of such 
States, and to the trial of criminals surrendered by foreign States 
to this country : 

Be it enacted by the Queen's most Excellent Majesty, by and 
with the advice and consent of the Lords Spiritual and Temporal, 
and Commons, in this present Parliament assembled, and by the 
authority of the same, as follows : 

PreUminary. 

1. This Act may be cited as '' The Extradition Act, 1870.'* 

2. Where an arrangement has been made with any foreign 
State with respect to the surrender to such State of any fugitive 
criminals, Her Majesty may, by Order in Council, direct that 
this Act shall apply in the case of such foreign State. 

Her Majesty may, by the same or any subsequent order, limit 
the operation of the order, and restrict the same to fugitive 
criminals who are in or suspected of being in the part of Her 
Majesty's dominions specified in the order, and render the opera- 
tion thereof subject to such conditions, ezoeptions, and quaUfioa* 
tions as may be deemed expedient. 

Every such order shall recite or embody the terms of the 
arrangement, and shall not remain in force for any longer period 
than the arrangement. 

Every such order shall be laid before both Houses of Parliament 
within six weeks after it is made, or, if ParUament be not then 
sitting, within six weeks after the then next meeting of Parlia- 
menty and shall also be published in the London OazeUe. 



EXTRADITION 91 



3. The following lestiictions shall be observed with lespect 
to the STineiider of fugitive criminals : 

(1) A fugitive criminal shall not be suirendeied if the ofience 

in lespect of which his suiiender is demanded is one of 
a political character, ox if he prove to the satisfaction of 
the police magistrate or the Court before whom he is 
brought on habeas corpus, or to the Secretary of State, 
that the requisition for his surrender has in fact been 
made with a view to try or punish him for an ofience of 
a political character : 

(2) A fugitive criminal shall not be surrendered to a foreign 

State unless provision is made by the law of that State, 
or by airangement, that the fugitive criminal shall not, 
until he has been restored or had an opportunity of 
returning to Her Majesty's dominions, be detained 01 
tried in that foreign State for any ofEence committed 
prior to his surrender other than the extradition crime 
proved by the facts on which the surrender is grounded : 

(3) A fugitive criminal who has been accused of some offence 

within English jurisdiction not being the offence for 
which his surrender is asked, or is undergoing sentence 
tmder any conviction in the United ELingdom, shall 
not be surrendered until after he has been discharged, 
whether by acquittal or on expiration of his sentence 
or otherwise : 

(4) A fugitive criminal shall not be surrendered until the 

expiration of fifteen days from the date of his being 
committed to prison to await his surrender. 

4. An Order in Council for applying this Act in the case of any 
foreign State shall not be made unless the arrangement — 

(1) provides for the determination of it by either party to it 

after the expiration of a notice not exceeding one year ; 
and, 

(2) is in conformity with the provisions of this Act, and in 

particular with the restrictions on the surrender of 
fugitive criminals contained in this Act. 



92 EXTRADITION 



5. When an oider applying this Act in the case of any foreign 
State has been published in the London Gazette^ this Act (after 
the date specified in the order, or, if no date is specified, after the 
date of the publication), shall, so long as the order remains in 
force, but subject to the limitations, restrictions, conditions, 
exceptions, and qualifications, if any, contained in the order, 
apply in the case of such foreign State. An Order in Council 
shall be conclusive evidence that the arrangement therein referred 
to complies with the requisitions of this Act, and that this Act 
applies in the case of the foreign State mentioned in the order, 
and the validity of such order shall not be questioned in any 
legal proceedings whatever. 

6. Where this Act applies in the case of any foreign State, 
every fugitive criminal of that State who is in or susx)ected of 
being in any part of Her Majesty's dominions, or that part which 
is specified in the order appljnng this Act (as the case may be), 
shall be liable to be apprehended and surrendered in manner 
provided by this Act, whether the crime in respect of which the 
surrender is sought was committed before or after the date of 
the order, and whether there is or is not any concurrent jurisdic- 
tion in any Court of Her Majesty's dominions over that 
crime. 

7. A lequiaition for the surrender of a fugitive criminal of any 
foreign State, who is in or suspected of being in the United King- 
dom. BhaU be made to a Secretary of State by some person 
recognised by the Secretary of State as a diplomatic representa- 
tive of that foreign State. A Secretary of State may, by order 
under his hand and seal, signify to a police magistrate that such 
requisition kas been made, and require him to issue his warrant 
for the apprehension of the fugitive criminal. 

If the Secretary of State is of opinion that the oSence is one 
of a political character, he may, if he think fit, refuse to send 
any such order, and may also at any time order a fugitive criminal 
accused or convicted of such ofience to be discharged from 
custody. 

8. A warrant for the apprehension of a fugitive criminal, 



EXTRADITION 93 



whether accused 01 convicted of czime, who is in oz suspected 
of being in the United Kingdom, may be issued — 

1. by a police magistiate on the leceipt of the said oides of the 

Seczetazy of State, and on such evidence as would in 
his opinion justify the issue of the wanant if the czime 
had been committed oz the cziminal convicted in 
England; and 

2. by a police magistzate oz any justice of the peace in any pazt 

of the United Kingdom, on such inf ozmation oz com- 
plaint and such evidence oz aftez such pzoceedings as 
would in the opinion of the pezson issuing the wazzant 
justify the issue of a wazzant if the czime had been 
committed oz the cziminal convicted in that pazt of 
the United Kingdom in which he exezcises juzisdiction. 
Any pezson issuing a wazzant undez this section without an 
ozdez fzom a Seczetazy of State shall f ozthwith send a zepozt of 
the fact of such issue, togethez with the evidence and inf ozmation 
oz complaint, oz ceztified copies thezeof , to a Seczetazy of State, 
who may if he think fit ozdez the wazzant to be cancelled, and 
the peiBon who has been appzehended on the wazzant to be 
dischazged. 

A fugitive cziminal, when appzehended on a wazzant issued 
without the ozdez of a Seczetazy of State, shall be bzought before 
some pezson having powez to issue a wazzant undez this section, 
who cdiall by wazzant ozdez him to be bzought and the pzisonez 
shall accozdingly be bzought befoze a police magistzate. 

A fugitive cziminal appzehended on a wazzant issued without 
the ozdez of a Seczetazy of State shall be dischazged by the police 
magistzate, unless the police magistzate, within such reasonable 
time as, with zefezence to the circumstances of the case, he may 
fix, zeceives fzom a Seczetazy of State an ozdez signifying 
that a requisition has been made foz the suzzendez of such 
cziminal. 

9. When a fugitive cziminal is bzought before the police magis- 
tzate, the police magistzate shall hear the case in the same manner, 
and have the same juzisdiction and powezs, as neas as may be, 



94 EXTRADITION 



as if the prisoner weie brought before him charged with an 
indictable offence committed in England. 

The police magistrate shall receive any evidence which may 
be tendered to show that the crime of which the prisoner is 
accused or alleged to have been convicted is an offence of a 
political character or is not an extradition crime. 

10. In the case of a fugitive criminal accused of an extradition 
crime, if the foreign warrant anthorising the arrest of such 
criminal is duly authenticated, and such evidence is produced 
as (subject to the provisions of this Act) would, according to the 
law of England, justify the committal for trial of the prisoner 
if the crime of which he is accused had been committed in 
England, the police magistrate shall commit him to prison, but 
otherwise shall order him to be discharged. 

In the case of a fugitive criminal alleged to have been convicted 
of an extradition crime, if such evidence is produced as (subject 
to the provisions of this Act) would, according to the law of 
England, prove that the prisoner was convicted of such crime, 
the police magistrate shall conmiit him to prison, but otherwise 
shall order him to be discharged. 

U he commits such criminal to prison he shall commit him to 
the Middlesex House of Detention, or to some other prison in 
Middlesex, there to await the warrant of a Secretary of State 
for his surrender, and shall forthwith send to a Secretary of State 
a certificate of the committal, and such report upon the case as 
he may think fit. 

11. If the police magistrate commits a fugitive criminal to 
prison, he shall inform such criminal that he will not be surren- 
dered until after the expiration of fifteen days, and that he has 
a right to apply for a writ of habeas corpus. 

Upon the expiration of the said fifteen days, or, if a writ of 
habeas corpus is issued, after the decision of the Court upon the 
return to the writ, as the case may be, or after such further 
period as may be allowed in either case by a Secretary of State, 
it shall be lawful for a Secretary of State, by warrant under his 
hand and seal, to order the fugitive criminal (if not delivered 



EXTRADITION 95 



on the decifiioii of the Court) to be fiunendeied to such person 
as may in his opinion be duly authorised to leceiye the fugitive 
criminal by the foreign State from which the requisition for the 
surrender proceeded, and such fugitive criminal shall be sur- 
rendered accordingly. 

It shall be lawful for any person to whom such warrant is 
directed and for the person so authorised as aforesaid to receive, 
hold in custody, and convey within the jurisdiction of such 
foreign State the criminal mentioned in the warrant ; and if 
the criminal escapes out of any custody to which he may be 
delivered on or in pursuance of such warrant, it shall be lawful 
to retake him in the same manner as any person accused of any 
crime against the laws of that part of Her Majesty's dominions 
to which he escapes may be retaken upon an escape. 

12. If the fugitive criminal who has been conmiitted to prison 
is not surrendered and conveyed out of the United Kingdom 
within two months after such committal, or, if a writ of habeas 
corpus is issued, after the decision of the Court upon the return 
to the writ, it shall be lawful for any judge of Her Majesty's 
Superior Courts at Westminster, upon application made to him 
by or on behalf of the criminal, and upon proof that reasonable 
notice of the intention to make such application has been given 
to a Secretary of State, to order the criminal to be discharged 
out of custody, unless sufficient cause is shown to the 
contraiy. 

13. The warrant of the police magistrate issued in pursuance 
of this Act may be executed in any part of the United Kingdom 
in the same manner as if the same had been originally issued or 
subsequently indorsed by a justice of the peace having jurisdiction 
in the place where the same is executed. 

14. Depositions or statements on oath, taken in a foreign 
State, and copies of such original depositions or statements, 
and foreign certificates of or Judicial documents stating the fact 
of conviction, may, if duly authenticated, be received in evidence 
in proceedings under this Act. 

15. Foreign wazrants and depositions or statements on oath, 



96 EXTRADITION 



and copies thexeof, and certificates of or judicial documents 
stating the fact of a conviction, shall be deemed duly authenti- 
cated for the purposes of this Act if authenticated in manner 
provided for the time being by law or authenticated as follows : 

(1) If the warrant purports to be signed by a judge, magistrate, 

or officer of the foreign State where the same was issued ; 

(2) If the depositions or statements or the copies thereof 

purport to be certified under the hand of a judge, 
magistrate, or officer of the foreign State where the 
same were taken to be the original depositions or state- 
ments, Of to be true copies thereof, as the case may 
require; and 

(3) If the certificate of or judicial document stating the fact 

of conviction purports to be certified by a judge, magis- 
trate, or offiycer of the foreign State where the conviction 
took place ; and 
if in every case the warrants, depositions, statements, copies, 
certificates, and judicial documents (as the case may be) are 
authenticated by the oath of some witness or by being sealed 
with the official seal of the minister of justice, or some other 
minister of State : And all courts of justice, justices, and magis- 
trates shall take judicial notice of such official seal, and shall 
admit the documents so authenticated by it to be received in 
evidence without further proof. 

Crimes cammiUed at sea. 

16. Wheie the crime in respect of which the surrender of a 
fugitive criminal is sought was committed on board any vessel 
on the high seas which comes into any port of the United King- 
dom, the following provisions shall have efiect : 

1. This Act shall be construed as if any stipendiary magistrate 
in England or Ireland, and any sheriff or sheriff sub- 
stitute in Scotland, were substituted for the police 
magistrate throughout this Act, except the part 
relating to the execution of the warrant of the police 
magistrate : 



EXTRADITION 97 



2. The oiiminal may be committed to any prison to which 

the pezBon committing him has powei to commit peisons 
accused of the like crime : 

3. If the fugitive criminal is apprehended on a warrant issued 

without the order of a Secretary of State, he shall be 
brought before the stipendiary magistrate, sheriff, or 
sheriff substitute who issued the warrant, or who has 
jurisdiction in the port where the vessel lies, or in the 
place nearest to that port. 

Oenerat Promnons. 

19. Where, in pursuance of any arrangement with a foreign 
State, any person accused or convicted of any crime which, if 
committed in England, would be one of the crimes described in 
the first schedule to this Act is surrendered by that foreign State, 
such person shall not, until he has been restored or had an oppor- 
tunity of returning to such foreign State, be triable or tried fox 
any offence committed prior to the surrender in any part of Heir 
Majesty's dominions other than such of the said crimes as may 
be proved by the facts on which the surrender is grounded. . . . 

24. The testimony of any witness may be obtained in relation 
to any criminal matter pending in any court 01 tribunal in a 
foreign State in like manner as it may be obtained in relation 
to any civil matter under the Act of the session of the nineteenth 
and twentieth years of the reign of Her present Majesty, chapter 
one hundred and thirteen, intituled ^^An Act to provide for 
taking evidence in Her Majesty's Dominions in relation to civil 
and commeroial matters pending before foreign tribunals ; " 
and all the provisionilt of that Act shall be construed as if the 
term civil matter included a criminal matter, and the term cause 
included a proceeding against a mminal : Provided that nothing 
in this section shall apply in the case of any criminal matter of 
a political character. 

25. For the purposes of this Act, every colony, dependency, 
and constituent part of a foreign State, and every vessel of that 
State shall (except where expressly mentioned as distinct in this 

7 



98 EXTRADITION 



Act) be deemed to be within the jiiiifldiction of and to be part 
of such f oxeign State. 

Repeal of Acts. 

27. The Acts specified in the thiid schedule to this Act aie 
hereby zepealed as to the whole of Hei Majesty's dominions ; 
and this Act (with the exoeption of anything contained in it 
which is inconaiBtent with the tzeaties refened to in the Acts 
so lepealed) shall apply (as xegazds czimes committed either 
before or after the passing of this Act), in the case of the foreign 
States with which those treaties are made, in the same manner 
as if an Order in Council referring to such treaties had been made 
in pursuance of this Act, and as if such order had directed that 
eyeiy law and ordinance which is in force in any British posses- 
sion with respect to such tzeaties should have effect as part of 
this Act. 

Provided that if any proceedings for or in relation to the 
surrender of a fugitive criminal have been commenced under 
the said Acts previously to the repeal thereof, such proceedings 
may be completed, and the fugitive surrendered, in the same 
numner as if this Act had not passed. 

FmST SCHEDULE. 

List of Cbimes. 

The following list of crimes is to be eonstrued according to the 
law existing in England, or in a British possession (as the case 
may be), at the date of the alleged crime^ whether by common 
law or by statute made before or after the passing of this Act : 
Murder, and attempt and conspiracy to murder. 
Manslaughter. 
Counterfeiting and altering money and uttering counterfeit 

or altered money. 
Forgery, counterfeiting, and altering, and uttering what is 

forged or counterfeited or altered. 
Embeulement and larceny. 



EXTRADITION 99 



Obtaining money 01 goods hj false pretences. 

Grimes bj bankrapts against bankniptcy law. 

Fraud hy a bailee, banker, agent, factor, trustee, ox director, 

or member, or pabUc ofiBoer of any conipany made cziminal 

by any Act for the time being in force. 
Sape. 
Abduction. 
Child stealing. 

Buiglazy and housebreaking. 
Arson. 

Robbery with violence. 

Threats by letter or otherwise with intent to extort. 
Piiacy by law of nations. 
Sinking or destroying a vessel at sea, or attempting or 

conspiring to do so. 
Assaults on board a ship on the high seas with intent to 

destroy life or to do grievous bodily harm. 
Revolt or conspiracy to revolt by two or more persons on 

board a ship on the high seas against the authority of the 

master. 

NcU, — ^Die Act, as appears from seo. 27, has to be read together ivitli the 
treaties with partioalar countries, and it is necessary that both the Aot 
and the treaty should authorise the extradition in aqy partksular oase. 
An amending Aot was passed in 1873 (27 Vict, oh. 60) which extended 
the list of extraditable crimes. 

NoK-EXTBADmON OF POLTTIOAL CRIMINALS- 
C/. Oppenheim, ss. 333-340 ; Lawrence, 108. 

IN RE CASTIONL 

[1891], 1 Q.B. 149 ; 60 L.J. M.C. 22. 

What constitutes a political offence for the purpose of 
extradition. 

Ciwe.— This was an application for a writ of habeas oorpns 
OB behalf of Angelo Castioni, who had been axxested in England 



100 EXTRADITION 



on the requisition of the Swiss Government, and brought before 
the magistrate at the police court at Bow Street, and by him 
committed to prison for the purpose of extradition, on a 
charge of wilful murder, alleged to have been committed in 
Switzerland. 

The prisoner was charged with the murder of Luigi Rossi, 
by shooting him with a revolver on September 11, 1890, in the 
town of Bellinzona, in the canton of Ticino, in Switzerland. 
The deceased, Bossi, was a member of the State Council of the 
canton of Ticino, and was about twenty-six years of age. The 
prisoner, Gastioni, was a citizen of the same canton ; he had 
resided for seventeen years in England, and arrived at Bellinzona 
on September 10, 1890. For some time previous to this date 
much dissatisfaction had been felt and expressed by a large 
number of the inhabitants of Ticino at the mode in which the 
political party then in power were conducting the government of 
the canton. A request was presented to the Government for a 
revision of the Constitution of the canton, under art. 15 of the 
Constitution. The Government having declined to take a popular 
vote on the question of the revision of the Constitution, on 
September 11, 1890, a number of the citizens of Bellinzona, among 
whom was Castioni, seized the arsenal of the town, from which 
they took rifles and ammunition, disarmed the gendarmes, 
arrested and bound or handcufEed several persons connected 
with the Government, and forced them to march in front of the 
armed crowd to the municipal palace. Admission to the palace 
was demanded in the name of the people, and was refused by 
Bossi and another member of the Government, who were in the 
palace. The crowd then btoke open the outer gate of the palace 
and rushed in, pushing before them the Government officials 
whom they had arrested and bound ; Castioni, who was armed 
with a revolver, was among the first to enter. A second door, 
wlich was locked, was broken open, and at this time, or imme- 
diately after, Bossi, who was in the passage, was shot through 
the body with a revolver, and died very soon afterwards. Some 
other shots were fired, but no one else was injured. Two wit- 
nesses, who were present when the shot was fired, and were 



EXTRADITION ;. : • • r-' :'xW/.- 



called before the magistiate at Bow Stieet, identified Gastioui 
as the person who fiied the shot. Theie was no evidence that 
Gastioni had any previous knowledge of Bossi. The crowd then 
occupied the palace, disarmed the gendarmes who were there, 
and imprisoned several members of the Government. A provi* 
sional Oovemment was appointed, of which Bruni was a member, 
and assumed the government of the canton, which it retained 
until dispossessed by the armed intervention of the Federal 
(Government of the Republic. 

The magistrate was of opinion that the identification of 
Castioni was sufEudent, and held upon the evidence that the bar 
to extradition specified in sec. 3 of the Extradition Act, 1870 : 
** A fugitive criminal shall not be surrendered if the offence / 
in respect of which his surrender is demanded is one of a political 
character, or if he prove to the satisfaction of the police magis- 
trate, or the Court before whom he is brought on habeas corpus, 
or to the Secretary of State, that the requisition for his surrender 
has in fact been made with a view to try or punish him for an 
offence of a political character," did not exist, and committed 
Castioni to prison. By the Extradition Treaty with Switzerland, 1/ 
dated November 26, 1880, article 11 : *^ A fugitive criminal shall 
not be surrendered if the offence in respect of which his surrender 
is demanded is one of a political character, or if he prove 
that the requisition for his surrender has in fact been made 
with a view to try and punish him for an offence of a 
political character." 

Judgment (Denman, J.). — *^ I am unable to entertain a doubt 
that this is a case in which we ought to order that the prisoner 
be discharged. There has been no legal decision as yet upon the 
meaning of the words contained in the Act of 1870, upon the 
true meaning of which this case mainly depends. We have had 
many definitions suggested, and great light has been thrown upon 
the possible and probable meaning of the words by the arguments 
that have been addressed to us, applying not only the language 
of judges, but language used in text-books, language used by 
great political authorities, and in one case by a most learned 
philoeophev. I think it has been useful in such a case as this 



!««:••-=; / EXTRADITION 



that we should hear a diflotuudon as to the possible meaning of the 
words, as it has oocnned that they ought to be construed to 
people such as those whose opinions have been cited, and 
especially I may apply that observation to the case of my very 
learned brother whose assistance we have on this occasion in 
decidmg the present case. I do not think it is necessary or 
desirable that we should attempt to put into language, in the 
shape of an exhaustive definition, exactly the whole state of 
things, or every state of things which bring a particular case 
within the description of an ofEence of a political character. I 
wish, however, to express an opinion as to one matter upon which 
I entertain a very strong opinion. That is, that if the description 
given by Mr. John Stuart Mill, ^ Any ofEence conunitted in the 
course of or furthering of civil war, insurrection, or political 
commotion,' were to be construed in the sense that it really 
means any act which takes place in the course of a political 
rising without reference to the object and intention of it, and 
other circumstances connected with it, I should say that it was 
a wrong definition and one which could not be legally applied 
to the words in the Act of Parliament. Sir Charles Russell 
suggested that ^ in the course of ' was to be read with the words 
following, * or in furtherance of,' and that * in furtherance of ' 
is equivalent to ' in the course of.' I cannot quite think that this 
was the intention of the speaker, or is the natural meaning of the 
expression ; but I entirely concur with the observation of the 
Solicitor-General that in the other sense of the words, if they 
are not to be construed as merely equivalent expressions, it would 
be a wrong definition. I think that in order to bring the case 
within the words of the Act and to exclude extradition for such 
an act as murder, which is one of the extradition ofEences, it 
must at least be shown that the act is done in furtherance of, 
done with the intention of assistance, as a sort of overt act in 
the course of acting in a political matter, a political rising, or a 
dispute between two parties in the State as to which is to have 
the government in its hands, before it can be brought within 
the meaning of the words used in the Act. 



EXTRADITION 103 



^' Sir Charles Rnflsell has azgued that in eveiy oaae it is for the 
party seeking extradition to bear the onus of affirmatively 
bringing it within the meaning of those words. On the other 
hand, it has been contended that if there be an extraditable 
ofience, the onus is upon the person seeking the benefit of those 
words to show a case in which extradition can be avoided. I do 
not myself think that it is possible to decide a case such as this, 
or the true meaning of those words, by applying any such test as 
on whom is the onus. I do not think it is intended that a scrap 
of a 'prima facie case on the one side should have the effect of 
throwing upon the other side the onus of proving or disproving 
his position. I look at the words of the Act themselves and I 
think that they are against any such narrow technical mode of 
dealing with the case. The words of sec. 3, subdivision 1, are 
*' a fugitive criminal shall not be surrendered if the offence in 
respect of which his surrender is demanded is one of a political 
character.' The section itself begins : * The following restrictions 
shall be observed with respect to the surrender of fugitive 
criminals.' There is nothing said as to upon whom is the ofMis 
probandi, or that it shall be made to appear by one side or the 
other in such a case. It is a restriction upon the surrender of a 
fugitive criminal, and however it appears, if it does appear, that 
the act was, in the judgment of the Court, an offence which would 
otherwise be an offence according to the laws of this country, 
but an offence of a political character, then wholly irrespective 
of any doctrine of onus on the one side or the other, that is 
within the jurisdiction, and he cannot be surrendered. It was 
at first contended, in opposition to the application for a habeas 
corpus, that if the magistrate upon this question once made up 
his mind, the Court had no jurisdiction to deal with it. It appears 
to me that this proposition cannot be maintained on the very 
face of the Act itself, which requiib by sec. 11 that the magis- 
trate shall inform the prisoner that he may apply for a habeas 
corpus, and if he is entitled to apply for a habeas corpus, I think 
it follows that this Court must have power to go into the whole 
matter, and in some oases, certainly if there be fresh evidence, 



104 EXTRADITION 

ox perhapa upon the same evidence, might take a different view 
of the matter from that taken by the magistiate. 

** It seems to me that it is a question of mixed law and fact — 
mainly indeed of fact — as to whether the facts are such as to 
bring the case within the restriction of sec. 3, and to show that 
it was an offence of a political character. I do not think it is 
disputed, or that now it can be looked upon as in controversy, 
that there was at this time existing in Ticino a state of things 
which would certainly show that there was more than a mere 
small rising of a few people against the law of the State. I think 
it is clearly made out by the facts of this case that there was 
something of a very serious character going on — amounting, I 
should go so far as to say, in that small conmiunity, to a state 
of war. There was an armed body of men who had seized arms 
from the arsenal of the State ; they were rushing into the 
municipal council chamber in which the Qovemment of the 
State used to assemble ; they demanded admission ; admission 
was refused ; some firing took place ; the outer gate ¥ras broken 
down; and I think it also appears perfectly plain from the 
evidence in the case that Castioni was a person who had been 
taking part in that movement at a much earlier stage. He was 
an active party in the movement ; he had taken part in the 
binding of one member of the (Government. Some time before he 
arrived with his pistol in his hand at the seat of government, 
he had gone with multitudes of men, armed with arms from 
the arsenal, in order to attack the seat of government, and I 
think it must be taken that it is quite clear that from the very 
first he was an active party, one of the rebellious party who was 
acting and in the attack against the Grovemment. Now, that 
being so, it resolves itself into a small point, depending on the 
evidence which was taken before the magistrate, and anything 
that we can collect from the evidence that we have before as 
and from the whole circumstances of the case. . . . 

*^ The question really is whether, upon the facts, it is clear 
that the man was acting as one of a number of persons engaged 
in acts of violence of a political character with a political object, 



EXTRADITION 105 

and as part of the political moyement and rising in which he was 
taking part. • . • 

** I have carefully followed the discussion as to the facts of the 
case, and if it were necessary I could go through them all one 
by one, and point out, I think, tha't, looking at the way in which 
that evidence was given, and at the evidence itself, there is 
nothing in my judgment to displace the view which I take of the 
case, that at the moment at which Gastioni fired the shot the 
reasonable presumption is, not that it is a matter of absolute 
certainty (we cannot be absolutely certain about anything as 
to men's motives), but the reasonable assumption is that he, at 
the moment knowing nothing about Rossi, having no spite or 
ill-will against Rossi, as far as we know, fired that shot ; that he 
fired it thinking it would advance, and that it was an act which 
was in furtherance of, and done intending it to be in furtherance 
of, the very object which the rising had taken place in order to 
promote, and to get rid of the Oovemment, who, he might, 
until he had absolutely got into the place, have supposed were 
resisting the entrance of the people to that place. That, I think, 
is the fair and reasonable presumption to draw from the facts of 
the case. I do not know that it is necessary to give any opinion 
as to the exact moment when the shot was fired ; there is some 
conflict about it. There is evidence that there was great confu- 
sion ; there is evidence of shots fired after the shot which Gastioni 
fired ; and all I can say it that, looking at it as a question of 
fact, I have come to the conclusion that at the time at which that 
shot was fired he acted in the furtherance of the unlawful rising 
to which at that time he was a party, and an active party — a 
person who had been doing active work from a very much earlier 
period, and in which he was still actively engaged. That being so, 
I think the writ ought to issue, and that we should be acting 
contrary to the spirit of this enactment, and to the fair meaning 
of it, if we were to allow him to be detained in custody longer." 

Hawkins, J., in the course of his judgment, said : ** Now 
what is the meaning of crime of a political character ? I have 
thought over this matter very much indeed, and I have thought 



io6 EXTRADITION 



whether any definition can be given of the political chaiaotei 
ol the crime — ^I mean to Bay, in language which is satiifactoiy. 
I have found none at all, and I can imagine f oi myBclf none so 
satisfactoiy, and to my mind so complete, as that which I find 
in a work which I have now before me, and the language of 
which fox the purpose of my present judgment I entirely adopt, 
and that is the expression of my brother Stephen in his History 
of the Criminal Law of England in vol. ii., pp. 70, 71. I will 
not do more than refer to the interpretations, other than those 
with which he agrees, which have been given upon this expres- 
sion, * political character ' ;'^but I adopt his definition absolutely. 
^The third meaning which may be given to the words, and 
which I take to be the true meaning, is somewhat more compli- 
cated than either of those I have described. An act often falls 
under several different definitions. For instance, if a civil war 
were to take place, it would be high treason by levying war 
against the Queen. Every case in which a man was shot in action 
would be murder. Whenever a house was burnt for military 
purposes arson would be committed. To take cattle, &c., by 
requisition would be robbery. According to the common use of 
language, however, all such acts would be political ofEences, 
because they would be incidents in carrying on a civil war. 
I think, therefore, that the expression in the Extradition Act 
ought (unless some better interpretation of it can be suggested) 
to be interpieted to mean that fugitive criminals are not to be 
surrendered for extradition crimes, if those crimes were incidental 
to and formed a part of political disturbances. I do not wish to 
enter into details beforehand on a subject which might at any 
moment come under judicial consideration.' The question has 
come under judicial consideration, and having had the oppor- 
tunity before this case arose of carefully reading and considering 
the views of my learned brother, having heard all that can be 
said upon the subject, I adopt his language as the definition that 
I think is the most perfect to be found or capable of being given 
as to what is the meaning of the phrase which is made use of 
in the Extradition Act. . • . 
^' I cannot help thinking that everybody knows there are 



EXTRADITION 107 



many aotB of a political chaiacter done without zeason, done 
against all leaaon ; but at the same time, one cannot look too 
hardly and weigh in golden scales the acts of men hot in theit 
political excitement. We know that in heat and in heated blood 
men often do things which aie against and contiaiy to reason ; 
but none the less an act of this desciiption may be done for the 
purpose of furthering and in furtherance of a political rising, 
even though it is an act which may be deplored and lamentedy 
as even cruel and against all reason, by those who can calmly 
reflect upon it after the battle is over." 

Note. — ^In the oase of In re Meunier (1894, 2 Q.B. 415) an anarchist who 
had caused two ezplosionfl in PlariB lesalting in the death of two persons 
was ordered to be extradited ; and it was held that to constitute a political 
offence there mast be two or more parties in a State each seeldng to 
impose the Qovemment of its choice on the other. As anaichista were 
inimical to all Qovemments, the prisoner's offence was held not to be 
poiitioaL 

Lmrrs of Extradition. 

THE QUEEN ▼. GANZ, 1882. 

L.R. 9 Q.B.D. 93 ; 61 L J. Q.B. 419. 

The provisions in a treaty for the extradition of criminals 
are not confined to persons who are the subjects of the 
State requiring extradition, but apply to all persons 
who have committed any of the specified crimes within 
the jurisdiction of that State, of whatever nationality 
they may be. 

Ca$e, — This was an application for a writ of habeas corpus 
to obtain the release of Mr. Ganz, who had been arrested on an 
extradition warrant and committed with a view to his extradition 
in respect of a crime committed in Holland. He was said to be 
a oitisen of the United States. 

JudgmefU (Pollock, B.).-— " I think that this application must 
be refused. Two points are made on behalf of the prisoner which 
aie of importance as involving matter of principle afiecting the 



io8 EXTRADITION 



liberty of tlie subject. The first of them is this : it is said that 
the prisoner is not subject to the extradition law as existing 
between this country and the Netherlands, by reason of his not 
being a subject of the Netherlands. It is said that the evidence 
before the magistrate showed him to be a naturalised subject of 
the United States, and this evidence was also supplemented by 
an affidavit stating that not only has the prisoner been naturalised 
in the United States, but that also there is no reason to believe 
that he was bom in the Netherlands ; on the contrary, it says 
that he has reason to believe that he was bom in a city in 
Hungary. Therefore it is contended that the Extradition Treaty 
between this country and the Netherlands does not apply, and 
that the prisoner cannot be given up to the Grovemment of 
the Netherlands. This matter, no doubt, depends not only on 
the English statute, but also on the terms of the treaty ; but 
before alluding to the treaty I would say that the leading prin- 
ciple which underlies all questions of nationality as applied to 
crime committed within any particular country is this : what- 
ever rights, civil or otherwise, a man may have which may be 
affected by his domicile, it is and must be perfectly clear by the 
law of all nations that each person who is within the jurisdiction 
of the particular coimtry in which he commits a crime is subject 
to that jurisdiction ; otherwise the criminal law could not be 
administered according to any civilised method.^ 



99 



Note. — The deoiMon in this case turned actually on the oonBtruotion of 
the partioular extradition treaty between Great Britain and the Nether- 
lands. But the prinoiple is applied generally that extradition treaties allow 
for the detivering up to the authorities of the country idiere the crime has 
taken place of any person, whatever his nationality, who has fled to another 
country, unless the crime is of a politioal character, or unless the fugitive 
is a subject of that country. Even in the latter case some of the more 
recent extradition treaties provide for the mutual giving up of such fugi- 
tives. Cf. Bex V. Governor of Brixton Priaon (L.B. 1912, 2 K.B. 678), where 
a British subject charged with having committed a crime in France was 
ordered to be extradited to IVance. In England it is necessary that any 
case of extradition should be in conformity with the provisions both of the 
Extradition Act, 1870, which is the general statute providing for extradi- 
tion, and the partkmlar treaty with the foreign country claiming the 



EXTRADITION 109 



eztiraditioxL UflJeas it is in oonformity with both iiiBtraments it is not 
legal 

FOBMALTTIBS OF EXTBABITION. 
C/. Oppenheim, s. 332. 

AWARD OF THE HAGUE TRIBUNAL IN THE 

SAVARKAR CASE. 

American Joomal of Inteinational Law, April 1911, p. 52. 

There is no general rule of international law imposing any 
obligation on the Power which has in its custody a 
prisoner to restore him to a country to which he had 
made his escape, because of a mistake conunitted by the 
foreign agents who delivered him up to that Power. 

Case. — Savarkar was an Indian tevolutionaiy who was sent 
from England to India to be prosecuted for abetment of murder, 
the crime in connection with which he was charged baving been 
carried out in connection with a political movement. He was 
placed on board the English mail steamer Marea^ which called at 
Marseilles, and the English authorities had informed the French 
Government that the boat was to touch at the French port, and 
the French Minister of the Interior had requested the Prefect 
of the department to take measoies necessary to prevent any 
attempt to further the prisoner's escape. While the Marea was 
at Majseilles, Savarkar contrived to escape and swim to the 
shore, but the alarm was raised, and as soon as he landed he was 
arrested by a brigadier of the French maritime gendofmerie and 
taken back to the vessel. The question whether the English 
authorities were bound to restore him to France, because of 
the irregular character of the surrender, was ref ened to arbitra- 
tion at The Hague. 

JtidgmerU.—The award of the Tribunal, after reciting in detail 
the facts of the escape and arrest, concluded : 

"Whereas, having regard to what has been stated, it is 
manifest that the case is not one of recourse to fraud or force 



no EXTRADITION 



in Older to obtain poBsession of a pezson who had taken lefage 
in foreign tenitoiy, and that there was not, in the cireunstances 
of the arrest and delivery of Savarkar to the British authorities 
and of his removal to India, anything in the nature of a violation 
of the sovereignty of France, and that all those who took part 
in the matter certainly acted in good faith and had no thought 
of doing anything unlawful. 

** Whereas, in the circumstances cited above, the conduct of 
the brigadier not having been disclaimed by his chie& bef ona 
the morning of July 9, that is to say before the Morea left Mar- 
seilles, the British poUce might naturally have believed that 
the brigadier had acted in accordance with his instructions, or 
that his conduct had been approved. 

** Whereas, while admitting that an irregularity was committed 
by the arrest of Savarkar, and by his being handed over to the 
British police, there is no rule of international law imposing, in 
circumstances such as those which have been set out above, 
any obligation on the Power which has in its custody a prisoner, 
to restore him because of a mistake committed by the foreign 
agent who delivered him up to that Power. 

^* For these reasons : The arbitral Tribunal decides that the 
Government of his Britannic Majesty is not required to restore 
the said Vinayak Damodar Savarkar to the Government of the 
French Republic.'' 

Note, — ^The facts of the oase are io peouEar, and the finding Ib ao eare- 
fnlly limited by its wording, that the Judgment can hardly be taken at 
dtclasatocy of any gonecal prineipls. In an ordinary case a political 
prisoDcr esoaping to a foreign country would be immune against extradi- 
tion, and it is questionable whether it would be the dntyof the State to 
which he had escaped to oononr In the erroneous action of one of its police 
oiBcera in defivering him up to the authorities of the other country. Herei 
howeveri the arbitration tribunal felt itsell justified in taking account of 
the special circumstances which supported the position of the British 
authorities, and correspondingly weakened the French daim. The case 
seems to illustrate the character of international arbitration. Ab Vnnoe 
and England could not agree on what was to be done in the oirmuBstaaoea 
of the irregular sunender of the Indian prisoner, the whole question was 
aobmitted to the Hague IMbunal, which investigated the facts very closely* 
and finally g»ve an award inculpating nobody and designed to offend 
neither party. 



CHAPTER EC. 

IMMUNITIES FROM TBRRITORIAIi 

JURISDICTION. 

I. FSIVILSOES OF MOKABOHS IN FoBEIQK COUNTRIES. 

C/. Oppenlieim> a. 348 ; Lawrence, 105. 

HULLETT ▼. THE KING OF SPAIN, 1828. 

2 Bligh, K.S. 31 ; 88 R.B. 56. 

A Soyerdgn or a State can sue in the Courts of another 
countfy but cannot be sued. 

Ca«6.— This was an action brought by the King of Spain foi 
an account of money, deposited with an EngUsh firm. The 
defendants demurred on the ground that a foreign sovereign 
could not sue in a Court of equity since no decree could be 
enforced against him. 

JudgmefU. — The Lord Chancellor (Lord Lyndhurst) in the 
course of the argument said : 

** That a king is entitled to sue as king cannot be disputed. 
As a suitor he submits himself to the jurisdiction of the Court ; 
otherwise it might be an objection that you could not control 
him. But if he comes here as a suitor he submits himself to the 
jurisdiction. Has not the sovereign power of another country 
the common privilege of mankind ? " 

NoU* — The deoiaion has been repeatedly followed, and it is clear that a 
foreign sovereign may sue in the Oonrts. Cf. Duke of Bruiuwick v. King 
0/ Hanover (6 Beavan 1 : and 2 House of Lords Gases I.). U a foreign 

III 



112 IMMUNITIES FROM 



wovenaga mibmitB to the jturudiotioii by inT-okiog it, the Courts can enter- 
tain certain prooeedings against him. ii Where a foreign sovereign or State 
comes into the nmnioipal Courts of this country for the purpose of obtaining 
a remedy, then by way of defence to that proceeding — by way of counter- 
claim, if neoessafy, to the extent of defeating that claim — ^the person 
sued here may file a cross-claim or take any other proceeding against that 
sovereign or State for the purpose of enabling complete justice to be done 
between them " ; per James, L. J., in JStrowiberg v. BepMic of Cagia Rica 
(44 L.T. Rep. 199). " And a foreign sovereign may be named as defendant 
for the purpose of giving him notioe of the claim which a plaintiff makes 
to funds in the hands of a third person or trustee over whom the Court has 
jurisdiction " [ibid,). But an order cannot be executed against a foreign 
sovereign. Cf. Vavaaaeur v. Krupp (1878, L.B. 9 Cb-D. 361), where the 
Court refused to order the destruction of sheUs, bought by the Mikado in 
Germanyi on account of the infringement of an English patent. 

A foreign sovereign who resides here and enters into a contract here 
under an assumed name as if a private individual does not thereby submit 
himself to the jurisdiction, and he cannot be sued for breach of the contract 
{Mighdl V. SuUan ofJohoref 1894, 1 Q.B. 149). And a foreign ruling prince 
cannot be cited as a co-respondent in a divorce suit in England : Stalham 
V. Sttdkam, and ike Gaekwar of Baroda (1912, P. 92). 

If, however, a fcnreign sovereign is at the same time a subject of the 
State in whioh he va sued and is sued in his capacity of subject, he does not 
enjoy immunity. Cf. Duke of Bmnsuriek v. King of Hanover (6 Beavan 1), 
where it was held that the King of Hanover, who was also an English peer, 
was liable to be sued in English Courts in respect of any acts done by him 
as an English subject. 



n. Right of a State to Sue abroad. 

UNITED STATES OF AMERICA ▼. WAGNER, 1867. 

L.B., 2 Chanceiy Appeals, 582. 

A Republic may sue in English Courts in its own name ; and 
it need not have or create an officer to maintain a suit 
on its behalf. 

Case. — The bill in this suit was filed hj The United States of 
Amerioa against agents of the Confedexacy, doing business at 
liveipool. 



TERRITORIAL JURISDICTION 113 

The bill alleged that the defendants had lai^e quantities of 
cotton consigned to them — that in 1865 the rebellion was sup- 
pressed and that all the property held hj the Grovemment of 
the so-called Confederate States, including all moneys, goods^ 
and ships in the power of the defendants, had vested in the 
plaintiffs. The bill prayed for an account, and for an order of 
payment of the money in the hands of the defendants, and a 
deUvery of the goods and cotton in their hands. The defendants 
demurred generally, objecting that the bill should put forward 
the President of the United States or some State o£5cer, upon 
whom process might be served, and who might answer a cross- 
bill. 

JudgmerU (Lord Cairns, L.J.). — ^^ It is admitted that, upon 
the statements in the bill, it must be taken that the property 
claimed in the suit belongs to the United States of America, a 
foreign sovereign State, adopting the republican form of govern- 
ment, and recognised and treated with as such, and under that 
style, by Her Majesty; but it is contended that this foreign 
State, being a republic, cannot sue in its own name, and must 
either associate with it as plaintiff or proceed in the name of 
the President of the Republic, or some other o£S.cer of state. 

" A proposition so startling, so grave in its consequences, and 

in such apparent antagonism to the rules, that the proper plaintiff 

is to be sought in the owner of the subject-matter of the suit, 

and that a foreign State is at liberty to sue in any of our Courts, 

would seem to require some argument and authority to support 

it. It was contended then, that when a monarch sues in our 

Courts, he sues as the representative of the State of which he is 

the sovereign ; that the property claimed is looked upon as the 

property of the people or State and that he is permitted to sue, 

not as for his own property, but as the head of the executive 

Government of the State to which the property belongs ; and 

it was contended, in like manner, that when the property belongs 

to a republic, the head of the executive, or in other words the 

President, ought to sue for it. 

" This argument, in my opinion, is founded on a fallacy. The 

8 



£14 IMMUNITIES FROM 

1 overeign, in a monarchical f onn of government, may, as between 
himself and his subjects, be a trustee for the latter, more or less 
limited in his powers over the property which he seeks to recover. 
But in the Courts of Her Majesty, as in diplomatic intercourse 
with the Grovermnent of Her Majesty, it is the sovereign, and not 
the State, or the subjects of the sovereign, that is recognised. 
From him, and as representing him individually, and not his 
State or kingdom, is an ambassador received. In him individually, 
and not in a representative capacity, is the public property 
assumed by all other States, and by the Courts of other States, 
to be vested. In a republic, on the other hand, the sovereign 
power, and with it the public property, is held to remain and to 
reside in the State itself, and not in any officer of the State. 
It is from the State that an ambassador b accredited, and it is 
with the State that the diplomatic intercourse is conducted. 

*' The case of the CoJunMan Oovemment v. Bothschild, 1 Sim. 
94, however, was said to be, and the Vice-chancellor appears to 
have considered that it was, a binding authority against a suit 
in this form. I cannot so view that case. The bill was filed in 
the name of the State of Columbia, and if this bill had been 
filed in the name of the Government of the United States, the 
case would have been analogous. Dealing with the words before 
him. Sir John Leach appears to have held, and to have most 
properly held, that an unknown and undefined body, such as 
the Gtovemment of a State, could not sue by that quasi-corporate 
name, and the expressions in his judgment seem to me to intimate 
no more than that if the persons so described could sue at all 
they must come forward as individuals, and show that they 
were entitled to represent their State. 

" Nothing could be more unreasonable than to suppose that 
by observations of this kind Sir John Leach meant to decide 
for the first time that a republic could not sue in its own name, 
but must have, or muBt create, some officer to maintain a suit 
on its behalf. 

** I think the demurrer in this case must be overruled," 



TERRITORIAL JURISDICTION 115 



in. Immunity of Public Vessbls of a Forbion 

State from Burr. 

Cf. Oppenheim, s. 460 ; Lawrence, s. 107 ; Hall, pp. 161 and 

196-196; Westlake, p. 264. 

THE SCHOONER '' EXCHANGE " ▼. 

M'FADDON. 

Supieme Court of the United States, 1812 (7 Gxanch, 116). 

The public property of a foreign soyereign or a foreign State 
is immune from suits in the national Courts. 

C<ue. — The schooner Exchange, owned by John MTaddon and 
William Qreetham, sailed from Baltimore, October 27, 1809, for 
St. Sebastian, in Spain. On December 30, 1810, she was seized 
by the order of Napoleon Bonaparte ; and was then armed and 
commissioned as a public vessel of the French Government, under 
the name of Balaou. On a voyage to the West Indies, she put 
into the port of Philadelphia, in July 1811, and on August 24 
was libelled by the original owners. As no claimant appeared, 
Mr. Dallas, the attorney of the United States for the district of 
Pennsylvania, filed a suggestion that, inasmuch as there was 
peace between Fiance and the United States, the public vessels 
of the former may enter into the ports and harbours of the 
latter and depart at will without seizure ox detention in any 
way. 

Judgment (Marshall, G.J.). — ^^*This case involves the very 
delicate and important inquiry whether an American citizen 
can assert, in an American Court, a title to an armed national 
vessel, found within the waters of the United States. The ques- 
tion has been considered with an earnest solicitude, that the 
decision may conform to those principles of national and muni- 
cipal law by which it ought to be regulated. 

The jurisdiction of the nation, within its own territory, is 
necessarily exclusive and absolute ; it is susceptible of no limi- 



Ii6 IMMUNITIES FROM 

tation not impoeed by itaelf . Any lestiiction upon it, deriving 
validity from an external sonice, would imply a diminution of 
its Boveieignty to the extent of the leatriotion, and an investment 
of that sovereignty, to the same extent, in that power which 
could impose such restrictions. All exceptions, therefore, to the 
full and complete power of a nation, within its own territories, 
must be traced up to the consent of the nation itself. They can 
flow from no other legitimate source. This consent may be either 
express or implied. In the latter case it is less determinate, 
exposed more to the uncertainties of construction ; but, if 
understood, not less obligatory. 

** The world being composed of distinct sovereignties, posses- 
sing equal rights and equal independence, whose mutual benefit 
is promoted by intercourse with each other, and by an inter- 
change of those good offices which humanity dictates and its 
wants require, all sovereigns have consented to a relaxation, in 
practice, in cases under certain peculiar circumstances, of that 
absolute and complete jurisdiction within their respective 
territories which sovereignty confers. 

** This consent may, in some instances, be tested by common 
usage, and by common opinion, growing out of that usage. 

" A nation would justly be considered as violating its faith 
although that faith might not be expressly plighted, which 
should suddenly and without previous notice exercise its terri- 
torial powers in a manner not consonant to the usages and 
received obligations of the civilised world. 

" This full and absolute territorial jurisdiction being alike the 
attribute of every sovereign, and being incapable of conferring 
extra-territorial power, would not seem to contemplate foreign 
sovereigns, nor their sovereign rights, as its objects. One sove- 
reign being in no respect amenable to another and being bound 
by obligations of the highest character not to degrade the dignity 
of his nation, by placing himself or its sovereign rights within 
the jurisdiction of another, can be supposed to enter a foreign 
territory only under an express licence, or in the confidence that 
the immunities belonging to his independent sovereign station. 



TERRITORIAL JURISDICTION 117 

though not expressly stipulated, aze reserved by implication» 
and will be extended to him. 

"This perfect equality and absolute independence of sove- 
reigns, and this common interest impelling them to mutual 
intercourse, and an interchange of good offices with each other, 
have given rise to a class of cases in which every sovereign is 
understood to waive the exercise of a part of that complete 
exclusive territorial jurisdiction, which has been stated to be 
the attribute of every nation. First, one of these is admitted to 
be the exemption of the person of the sovereign from arrest 
or detention within a foreign territory. If he enters that terri- 
tory with the knowledge and licence of its sovereign, that licence, 
although containing no stipulation exempting his person from 
arrest, is universally understood to imply such stipulation. 
Why has the whole civilised world concurred in this construc- 
tion ? The answer cannot be mistaken. A foreign sovereign is 
not understood as intending to subject himself to a jurisdiction 
incompatible with his dignity, and the dignity of his nation, 
and it is to avoid this subjection that the licence has been obtained. 
The character to whom it is given and the object for which it 
is granted equally require that it should be construed to impart 
full security to the person who has obtained it. This security, 
however, need not be expressed ; it is implied from the drcum- 
stances of the case. Should one sovereign enter the territory of 
another without the consent of that other, expressed or implied, 
it would present a question which does not appear to be perfectly 
settled, a decision of which is not necessary to any conclusion 
to which the Court may come in the cause under consideration. 
If he did not thereby expose himself to the territorial jurisdic- 
tion of the sovereign whose dominions he had entered, it would 
seem to be because all sovereigns impliedly engage not to avail 
themselves of a power over their equal, which a romantic con- 
fidence in their magnanimity has placed in their hands. 

*^ (2) A second case, standing on the same principles with the 
first, is the immunity which all civilised nations allow to foreign 
ministers. Whatever may be the principle on which this immu- 



ii8 IMMUNITIES FROM 

nity i3 establislied, whether we consider him as in the place of 
the soveieign he represents, or by a political fiction suppose hJtn 
to be extra-territorial, and therefore, in point of law, not within 
the jurisdiction of the sovereign at whose Court he resides ; still 
the immunity itself is granted by the goTeming power of the 
nation to which the minister is deputed. This fiction of ertra- 
territoriality could not be erected and supported against the 
will of the soyereign of the territory ; he is supposed to assent 
to it. This consent is not expressed. It is true that in some 
countries, and in this among others, a special law is enacted for 
the case. But the law obviously proceeds on the idea of prescribing 
the punishment of an act previously unlawful, not of granting 
to a foreign minister a privilege which he would not otherwise 
possess ... 

" (3) A third case, in which a sovereign is understood to cede 
a portion of his territorial jurisdiction, is where he allows the 
troops of a foreign prince to pass through his dominions . . . 

" It is obvious that the passage of an army through a foreign 
territory will probably be at all times inconvenient and injurious, 
and would often be imminently dangerous to the sovereign 
through whose dominion it passed. Such a practice would break 
down some of the most decisive distinctions between peace and 
war, and would reduce a nation to the necessity of resisting by 
war an act not absolutely hostile in its character, or of exposing 
itself to the stratagems and frauds of a Power whose integrity 
might be doubted, and who might enter the country under 
deceitful pretexts. It is for reasons like these that the general 
licence to foreigners to enter the dominions of a friendlyl^ower 
is never understood to extend to a military force ; and an army 
marching into the dominions of another sovereign may justly be 
considered as committing an act of hostility ; and, if not opposed 
by force, acquires no privileges by its irregular and improper 
conduct. It may, however, well be questioned whether any other 
than the sovereign power of the State be capable of deciding 
that such military commander is without a licence. . 

But the rule which is applicable to armies does not appear 



CI 



TERRITORIAL JURISDICTION iig 

to be equally applicable to sliips of war entering the ports of a 
friendly Power. Tbe injury inseparable from the march of an 
army through an inhabited country, and the dangers often, 
indeed generally, attending it, do not ensue from admitting a 
ship of war, without a special licence, into a friendly port. A 
different rule, therefore, with respect to this species of military 
foice has been generally adopted. If, for reasons of State, the 
ports of a nation, generally, or any particular ports, be closed 
against vessels of war, generally, or the vessels of any particular 
nation, notice is usually given of such determination. If there 
be no prohibition, the ports of a friendly nation are considered 
as open to the public ships of all Powers with whom it is at peace, 
and they are supposed to enter such ports and to remain in 
them, while allowed to remain, tmder the protection of the 
Government of the place. 

** In almost every instance the treaties between civilised nations 
contain a stipulation to this effect, in favour of vessels driven 
in by stress of weather or other urgent necessity. In such cases 
the sovereign is bound by compact to authorise foreign vessels 
to enter his ports. The treaty bids him to allow vessels in distress 
to find refuge and asylum in his ports, and this is a licence which 
he is not at liberty to retract. It would be di£S.cult to assign a 
reason for withholding from a licence thus granted any immtmity 
from local jurisdiction which would be implied in a special 
licence. 

'^ If there be no treaty applicable to the case, and the sovereign, 
from motives deemed adequate by himself, permits his ports 
to mmain open to the public ships of foreign friendly Powers, the 
conclusion seems irresistible that they enter by his assent. And 
if they enter by his assent, necessarily implied, no just reason is 
perceived by the Court for distinguishing their case from that of 
vessels which enter by express assent. In aU the cases of exemp- 
tion which have been reviewed much has been implied, but the 
obligation of what was implied has been found equal to the obliga- 
tion of that which was expressed. Are there reasons for den3ring 
the application of this principle to ships of wat ? 



120 IMMUNITIES FROM 

** These treaties which provide for the adinission and safe 
departure of public vessels entering a port from stress of weather, 
or other urgent cause, provide in like manner for the private 
vessels of the nation ; and where public vessels enter a port, 
under the general licence which is implied merely from the 
absence of a prohibition, thej are, it may be urged, in the same 
condition with merchant vessels entering the same port for the 
purposes of trade, who cannot thereby claim any exemption 
from the jurisdiction of the country. It may be contended, 
certainly, with much plausibility, if not correctness, that the 
same rule and same principle are applicable to public and private 
ships ; and since it is admitted that private ships entering without 
special licence become subject to the local jurisdiction, it is 
demanded on what authority an exception is made in favour 
of ships of war ? 

** It is by no means conceded that a private vessel reaUy 
availing herself of an asylum provided by treaty, and not attempt- 
ing to trade, would become amenable to the local jurisdiction, 
unless she committed some act forfeiting the protection she 
claims under compact. On the contrary, motives may be assigned 
for stipulating and according immunities to vessels in cases of 
distress, which would not be demanded for, or allowed to those 
which enter voluntarily and for ordinary purposes. On this 
part of the subject, however, the Court does not mean to indicate 
any opinion. The case itself may possibly occur, and ought not 
to be prejudiced. 

** Without deciding how far such stipulations in favour of 
distressed vessels, as are usual in treaties, may exempt private 
ships from the jurisdiction of the place, it may safely be asserted 
that the whole reasoning upon which such exemption has been 
implied in other cases applies with full foree to the exemption 
of ships of war in this. 

'* Equally impossible is it to conceive, whatever may be the 
construction as to private ships, that a prince who stipulates a 
passage for his troops, or an asylum for his ships of war in distress, 
should mean to subject his army or his navy to the jurisdiction 



TERRITORIAL JURISDICTION 121 

of a ioieign sovereign. And if this cannot be presumed, the 
sovereign of the port must be considered as having conceded the 
privilege, to the extent in which it must have been undeistood 
to be asked. To the Court it appears that where, without treaty, 
the ports of a nation are open to the private and public ships of 
a fnendlj Power, whose subjects have also liberty, without 
special licence, to enter the country for business or amusement, 
a clear distinction is to be drawn between the rights accorded 
to private individuals or trading vessels and those accorded to 
public armed ships which constitute a part of the military force 
of the nation. The preceding reasoning has maintained the 
propositions that all exemptions from territorial jurisdiction 
mast be derived from the consent of the sovereign of the terri- 
tory ; that this consent may be implied or expressed ; and that, 
when implied, its extent must be regulated by the nature of the 
case and the views under which the parties requiring and con- 
ceding it must be supposed to act. 

" When private individuals of one nation spread themselves 
through another, as business or caprice may direct, mingling 
indiscriminately with the inhabitants of that other, or when 
merchant vessels enter for the purposes of trade, it would be 
obviously inconvenient and dangerous to society, and would 
subject the laws to continual infraction, and the Government to 
degradation, if such individuals or merchants did not owe 
temporary and local allegiance, and were not amenable to the 
jurisdiction of the country. Nor can the foreign sovereign have 
any motive for wishing such exemption. His subjects thus 
passing into foreign countries are not employed by him, nor are 
they engaged in national pursuits. Cionsequently, there are 
powerful motives for not exempting persons of this description 
from the jurisdiction of the country in which they are found, 
and no one motive for requiring it. The implied licence, there- 
fore, under which they enter, can never be construed to grant 
such exemption. But in all respects different is the situation of 
a public armed ship. She constitutes a part of the military force 
of her nation ; acts under the immediate and direct command of 



122 IMMUNITIES FROM 

the sovereign ; is employed by him in national objects. He has 
many and powerful motives for preventing those objects from 
being defeated by the interference of a foreign State. Such 
interference cannot take place without aiSecting his power and 
his dignity. The implied licence, therefore, under which such 
vessel enters a friendly port, may reasonably be construed and, 
it seems to the Court, ought to be construed, as containing an 
exemption from the jurisdiction of the sovereign within whose 
territory she claims the rites of hospitality. 

^* Upon these principles, by the unanimous consent of nations, 
a foreigner is amenable to the laws of the place ; but certainly, 
in practice, nations have not yet asserted their jurisdiction over 
the public armed ships of a foreign sovereign entering a port 
open for their reception . . . 

** It seems, then, to the Court, to be a principle of public law 
that national ships of war, entering the port of a friendly Power, 
open for their reception, are to be considered as exempted by the 
consent of that Power from its jurisdiction. 

"Without doubt, the sovereign of the place is capable of 
destroying this implication. He may claim and exercise juris- 
diction, either by employing force or by subjecting such vessels 
to the ordinary tribunals. But until such power be exerted in 
a manner not to be misunderstood, the sovereign cannot be 
considered as having imparted to the ordinary tribunals a juris- 
diction, which it would be a breach of faith to exercise. Those 
general statutory provisions, therefore, which are descriptive 
of the ordinary jurisdiction of the judicial tribunals, which give 
an individual whose property has been wrested from him a right 
to claim that property in the Courts of the country in which it is 
found, ought not, in the opinion of this Court, to be so construed 
as to give them jurisdiction in a case in which the sovereign power 
has implicitly consented to waive its jurisdiction. 

" The arguments in favour of this opinion, which have been 
drawn from the general inability of the judicial power to enforce 
its decisions in cases of this description, from the consideration 
that the sovereign power of the nation is alone competent to 



TERRITORIAL JURISDICTION 123 

avenge wrongs committed by a sovereign, that the questions 
to which such wrongs give birth are rather questions of policy 
than of law, that they are for diplomatic rather than legal 
discussion, are of great weight, and merit serious attention. But 
the argument has already been drawn to a length, which forbids 
a particular examination of these points. . . 

*^ If the preceding reasoning be correct, the Exchange, being a 
public armed ship, in the service of a foreign sovereign, with 
whom the Government of the United States is at peace, and 
having entered an American port, open for her reception, on tke 
terms on which ships of war are generally permitted to enter the 
ports of a friendly Power, must be considered as having come 
into the American territory, under an implied promise that, while 
necessarily within it, and demeaning herself in a friendly manner, 
she should be exempt from the jurisdiction of the country/' 

Note. — ^This celebrated judgment lays down the broad principles of im- 
nmnity from territorial jurisdiction in all its phases. In the English case of 
The ConeiiMum (1879, L.B. 4 P.D. 39), where a olaim was brought against 
an American man-of-war, it was held that foreign public ships ooald not 
be sued in English Courts for salvage. The same principle was affirmed 
more recently in the case of TJ^e Jassy (75 L. J. P.D. 14). 



THE PARLEMENT BELGE, 1878. 

L.R. 6 P.D. 197. 

The immunity from jurisdiction of a foreign Court applies to 
a public vessel of a State which carries mails and pas- 
sengers and merchandise and is run for commercial 
purposes. 

Case. — ^In this case proceedings in rem were instituted in the 
Admiralty Division on behalf of the owners of an English ship 
against the Belgian mail-packet, the ParlemetU Beige, to recover 
redress in respect of a oollision. A writ was served in the pre- 
scribed manner on boatd the vessel, but no appearance was 
entered, and the Attomey*General, in answer to a motion for 



124 IMMUNITIES FROM 

judgment, filed an infoimatdon of protest asserting that the 
Court had no jurisdiction to entertain the suit. The protest 
alleged that the Pariemewl Bdge was a mail-packet running 
between Dover and Ostend, that she was and is the property 
of the King of the Belgians and in his possession, control, and 
employ as reigning sovereign of the State, and was and is a 
public vessel of the sovereign and State, carrying His Majesty's 
royal pennon, and was navigated and employed by and in the 
possession of such Gk>veinment, and was ojflicered by ojflicers 
of the Royal Belgian navy, holding conmiissions, &c. In answer 
it was averred on affidavits, which were not contradicted, that the 
packet boat, besides carrying letters, cairied merchandise and 
passengers and their luggage for hire. . . . 

Jud^men^.— Brett, L.J., gave the judgment of the Court 
(James, Baggallay, and Brett, L.JJ.) : 

" The proposition raised by the first question seems to be as 
follows : Has the Admiralty Division jurisdiction in respect of 
a collision to proceed in rem against, and in case of non-appear- 
ance or omission to find bail, to seize and sell, a ship present in 
this country, which ship is at the time of the proceedings the 
property of a foreign sovereign, is in his possession, control, and 
employ as sovereign by means of his commissioned officers, and 
is a public vessel of his State, in the sense of its being used for 
purposes treated by such sovereign and his advisers as public 
national services, it being admitted that such ship, though 
commissioned, is not an armed ship of war or employed as a part 
of the military force of his country ? . . . 

*^ It is admitted that neither the sovereign of Great Britain 
nor any friendly sovereign can be adversely personally impleaded 
in any Court of this country. It is admitted that no armed ship 
of war of the sovereign of Great Britain, or of a foreign sovereign, 
can be seized by any process whatever, exercised for any purpose 
by any Court of this country. But it is said that this vessel, 
though it is the property of a friendly sovereign in his public 
capacity and is used for purposes treated by him as public 
national services, can be seized and sold under the process of the 



TERRITORIAL JURISDICTION 125 

Admiialty Court of this countiy, because it will, if so seized and 
sold, be so treated, not in a suit brought against the sovereign 
pezsonaily, but in a suit in rem against the vessel itself. This 
contention raises two questions ; first, supposing that an action 
in rem is an action against the property only, meaning thereby 
that it is not a legal proceeding at all against the owner of the 
property, yet can the property in question be subject to the 
juriiBdiction of the Court ? 

** Secondly, is it true to say that an action in rem is only and 
solely a legal procedure against the property, or is it not rather 
a procedure indirectly, if not directly, impleading the owner 
of the property to answer to the jud^nent of the Court to the 
extent of his interest in the property ? . . . 

** Having carefuUy considered the case of the Charhieh^^ we 
are of opinion that the proposition deduced from the earlier cases 
in an earlier part of this judgment is the correct exposition of the 
law of nations, viz., that as a consequence of the absolute inde- 
pendence of every sovereign authority and of the international 
comity which induces every sovereign State to respect the 
independence of every other sovereign State, each and every 
one declines to exercise by means of any of its Courts, any of its 
territorial jurisdiction over the person of any sovereign or 
ambassador of any other State, or over the public property of 
any State which is destined to its public use, or over the property 
of any ambassador, though such sovereign, ambassador, or 
property be within its territory, and therefore, but fox the 
common agreement, subject to its jurisdiction. 

** But it is said that the immunity is lost by reason of the 
ship having been used for trading purposes. As to this, it must 
be maintained either that the ship has been so used as to have 
been employed substantially as a mere trading ship and not 
substantially for national purposes, or that a use of her in part 
for trading purposes takes away the immunity, although she 
is in possession of the sovereign authority by the hands of 
commissioned officers, and is substantially in use for national 

^ See above, p. 17. 



126 IMMUNITIES FROM 

purposes. Both these propositiooa raise the question of how 
the ship must be considered to have been employed. 

'* As to the first, the ship has been by the sovereign of Bel£^um» 
by the usual means, declared to be in his possession as sovereign^ 
and to be a public vessel of the State. It seems very difficult to 
say that any Court can inquire by contentious testimony whether 
that declaration is or is not correct. To submit to such an inquiry 
before the Court is to submit to its jurisdiction. It has been held 
that if the ship be declared by the sovereign authority by the 
usual means to be a ship of war, that declaration cannot be 
inquired into. That was expressly decided under very trying 
circumstances in the case of the Exchange. Whether the ship is 
a public ship used for national purposes seems to come within 
the same rule. But if such an inquiry could properly be insti- 
tuted it seems clear that in the present case the ship has been 
mainly used for the purpose of carrying the mails, and only 
subserviently to that main object for the purposes of trade. 
The carrying of passengers and merchandise has been subor- 
dinated to the duty of carrying the mails. The ship is not, in 
fact, brought within the first proposition. As to the second, it 
has been frequently stated that an independent sovereign caimot 
be personally sued, although he has carried on a private trading 
adventure. It has been held that an ambassador cannot be 
personally sued, although he has traded ; and in both cases 
because such a suit would be inconsistent with the independence 
and equality of the State which he represents. If the remedy 
sought by an action in rem against public property is, as we think 
it is, an indirect mode of exercising the authority of the Court 
against the owner of the property, then the attempt to exercise 
such an authority is an attempt inconsistent with the indepen- 
dence and equality of the State which is represented by such 
owner. The property cannot, upon the hypothesis, be denied to 
be public property ; the case is within the terms of the rule ; it 
is within the spirit of the rule ; therefore, we are of opinion that 
the mere fact of the ship being used subordinately and partially 
{or trading purposes does not take away the general immunity," 



TERRITORIAL JURISDICTION 127 

Note. — ^The same principle has been applied in regard to State-owned 
railways It was held in the American case of Mason v. Intercolonial 
BaUwmf of Canada (197, Mass. R. 340) that an Amenoan Court could not 
attaoh money held by trustees in Amflrioa to the credit of the railway 
ooippany, because, as the railway was owned by the Canadian GoTemment^ 
the funds were therefore funds of the British sovereign. 

It has recentfy been decided by the Prussian Court for the Determination 
of Conflicts of Jurisdiction that a German Court could not entertain a 
suit to enforce a judgment against the property of the Russian Govwn- 
ment in Germany {Von HeUenfM v. Russian Oovemmeni ; Anhalt Case). 
Cf. American Jonrnal of Iniemational LaWp April 1911, p. 490. 



IV. Immunftt of Ambassadobs from Surr. 

Cf. Oppenheim, ss. 389-396 ; Lawrence, 106 ; Hall, p. 171 ; 

WesUake, p. 203. 

The privil^es of ambassadors in England are guaranteed by 
a Statute which gives explicit sanction to international 
custom. 

In 1708 in the reign of Queen Anne the Ambassador of the 
Czar Peter the Great was arrested and taken out of his coach 
in London for a debt which he had contracted there. He com- 
plained to the Queen, and the persons who were responsible 
for his arrest were imprisoned. But to satisfy the clamours of 
the foreign Ministers an Act of Parliament was passed which 
defines expUcitly the privileges of ambassadors and their suites. 
This Act, it is said, is only declaratory of the common law of 
England, of which the law of nations must be deemed a part 
(NoveUo V. Toagood, 1 B. & C. 662 ; 26 B.B. 60). A similar 
statute was passed in 1790 in the United States. The English 
statute (7 Anne, ch. 12) runs as follows : 

STATUTE AS TO IMMUNITIES OF AMBASSADORS. 

** 1. Whereas several turbulent and disorderly persons, having 
in a most outrageous manner insulted the person of his Excel- 
lency Andrew Artemonowitz Mattuof , Ambassador Extraordinary 



128 IMMUNITIES FROM 

of his Czariah liajesty, Emperor of Qreat Russia, Her Majesty's 
good friend and aUy. by arresting him and taking him by violence 
out of his coach in the public street and detaining him in custody 
for several hours, in contempt of the protection granted by Hei 
Majesty, contrary to the law of nations and in prejudice of the 
rights and privileges which ambassadors and other public 
ministers authorised and received as such have at all times 
been thereby possessed of, and ought to be kept sacred and 
inviolable, be it therefore declared by the Queen's most excellent 
Majesty, by and with the advice and consent of the Lords 
spiritual and temporal and Commons in Parliament assembled 
and by the authority of the same, that all actions and suits, 
writs and processes commenced, sued or prosecuted against the 
said ambassador by any person or persons whatsoever, and all 
bail bonds given by the said ambassador, or any other person 
or persons on his behalf, and all recognisances of bail given or 
acknowledged in any such action or suit, and all proceedings 
upon or by pretext or colour of such action or suit, writ or process, 
and all judgments had thereupon, are utterly null and void, and 
shall be deemed and adjudged to be utterly null and void to all 
intents, constructions, and purposes whatsoever. 

^^ 2. And be it enacted by the authority aforesaid that all 
entries, proceedings, and records against the said ambassador 
or his bail shall be vacated and cancelled. 

*^ 3. And to prevent the like insolences for the future, be it 
further declared by the authority aforesaid that all writs and 
processes'that shall at any time hereafter be sued forth or prose- 
cuted, whereby the person of an ambassador or other public 
minister of any foreign prince or State authorised and received 
as such by Her Majesty, her heirs, or successors, or the domestic, 
or domestic servant of any such ambassador or other public 
minister, may be arrested or imprisoned, or his or their goods or 
chattels may be distrained, seized or attached, shall be deemed 
and adjudged to be utterly null and void to all intents, construc- 
tions, and purposes whatsoever. 

*^ 4. And be it further enacted by the authority aforesaid, 



TERRITORIAL JURISDICTION 129 

that in case any person 01 peisons sliall piesome to show forth 
or prosecute any such writ or process, such person and persons, 
and all attorneys and solicitors prosecuting and soliciting in such 
case, and all officers executing any such writ or process being 
thereof convicted by the confession of the party, 01 by the oath 
of one or more credible witness or witnesses before the Lord 
Chancellor or Lord Keeper of the Great Seal of Great Britain, 
the Chief Justice of the Court of Queen's Bench, the Chief Justice 
of the Court of Common Pleas for the time being, or any two of 
them, shall be deemed violators of the law of nations and dis- 
turbers of the public repose, and shall suffer such paine, penalties, 
and corporal punishment as the said Lord Chancellor, Lord 
Keeper, and the said Chief Justices, or any two of them, shall 
judge fit to be imposed and inflicted. 

*^ 5. Ptovided and be it declared that no merchant or other 
trader whatsoever, within the description of any of the statutes 
against bankrupts, who hath or shaU put himself into the service 
of any such ambassador or public Minister, shaU have or take 
any manner of benefit by this Act, and that no persons shall be 
proceeded against as having arrested the servant of an ambas- 
sador or public minister by the virtue of this Act, unless the 
name of such servant be first registered in the office of one of the 
principal Secretaries of State, and by such secretary transmitted 
to the Sheriffs of London and Middlesex for the time being, or 
their under-sheriffs or deputies, who shall upon the receipt thereof 
hang up the same in some public place in their offices, whereto 
all persons may resort and take copies thereof without fee or 
reward. 

** 6. And be it further enacted by the authority aforesaid that 
this Act shaU be taken and allowed in all Courts within this 
kingdom as a public Act, and that all judges and justices shall 
take notice of it without special pleading, and all sheriffs, bailiffs, 
and other officers and ministers of justice concerned in the execu- 
tion of process are hereby required to have regard to this Act, 
as they will answer the contrary at theii peril.'' 



130 IMMUNITIES FROM 

Extent of Ambassador's Immukitt. 

MAGDALENA STEAM NAVIGATION CO. ▼. 

MARTEN, 1859. 

28 L.J. Q.B. 310 ; 2 Ellis and Ellis Reports, 94. 

The public Minister of a foreign State cannot, while he remains 
such, be sued against his will in this country in a civil 
action, although the action may arise out of commercial 
transactions by business here, and although neither his 
person nor goods be touched by the suit. 

Ctue. — ^In this case the liquidator of an English company 
made a call on the shares of the company held by the defendant, 
who was Envoy Extraordinary of the Republic of Guatemala 
at the British Court. 

Judgment (Lord Campbell, C.J.). — ^^The question raised by 
this record is, whether the public Minister of a foreign State, 
accredited to and received by Her Majesty, having no real 
property in England, and having done nothing to disentitle him 
to the privileges generally belonging to such public Minister may 
be sued, against his will, in the Courts of this country, for a debt, 
neither his person nor his goods being touched by the suit, 
while he remains such public Minister. The defendant is accredited 
to and received by Her Majesty as an Envoy Extraordinary and 
Minister Plenipotentiary for the republics of Guatemala and 
New Granada respectively ; and a writ has been sued out against 
him and served upon him, to recover an alleged debt, for the 
purpose of prosecuting this action to judgment against him had 
whilst he continues such public Minister. He sajrs, by his plea 
to the jurisdiction of the Court, that, by reason of his privilege 
as such public Minister, he ought not to be compelled to answer. 
We are of opinion that his plea is good, and that we are bound 
to give judgment in his favour. The great principle is to be found 
in Grotius de Jure Belli et Pacis, lib. 2, chap, xviii. sec. 9, ' Omnis 



TERRITORIAL JURISDICTION 131 



coactio abesse a legato debet.' He is to be left at liberty to devote 
bimself body and soul to the business of his embassy. He does 
not owe even a temporary aUegiance to the sovereign to whom he 
is accredited, and he has at least as great privileges from suits 
as the sovereign whom he represents. He is not supposed even 
to live within the territory of the sovereign to whom he is 
accredited, and if he has done nothing to forfeit or to waive his 
privilege, he is for all juridical purposes supposed still to be in 
his own country. For these reasons, the rule laid down by aU 
jurists of authority who have written upon the subject is that 
an ambassador is exempt from the jurisdiction of the Courts of 
the country in which he resides as ambassador. Whatever ex- 
ceptions there may be, they acknowledge and prove this rule. . . . 
^* Some inconveniences have been pointed out as arising Jbrom 
this doctrine, which, we think, need not be experienced. If the 
ambassador has contracted jointly with others, the objection 
that he is not joined as a defendant may be met by showing that 
he is not liable to be sued. Ab to the difficulty of removing an 
ambassador from a house of which he unlawfully keeps posses- 
sion, De Wicquefort, and other writers of authority on this 
subject, point out that in such cases there may be a specific 
remedy by injunction. Those who cannot safely trust to the 
honour of an ambassador, in supplying him with what he wants, 
may refuse to deal with him without a surety, who may be sued ; 
and the resource is always open of making a complaint to the 
Government by which the ambassador is accredited. Such 
inconveniences are trifling compared with those which might 
arise were it to be held that all public Ministers may be impleaded 
in our mimicipal Courts, and that judgment may be obtained 
against them in all actions, either ex catUractu or ex delicto. It 
certainly has not hitherto been expressly decided that a public 
Minister duly accredited to the Queen by a foreign State is 
privileged from all liability to be sued here in civil actions ; but 
we think that this follows from well-established principles, and 
we give judgment for the defendant." 
f NaU. — The immunity of an ambasaador from process extends not 



132 IMMUNITIES FROM 

merely to the time during ^ioh he is aocredited to the soyereign, but 
to suoh a reasonable period after he has presented his letters of recall 
as u necessary to enable him to wind up his official business. While 
the immunity exists, it is not competent for any person to sue out a 
writ against him (Musurus Bey v. Oddban, 1894, 2 Q.B. 302). 



MACARTNEY ▼. GARBUTT, 1890. 
L.B. 24, Q.B.D. 368. 



A British subject, accredited to Great Britain by a foreign 
Government as a member of its embassy, unless he has 
been received by the British Government upon the 
express condition that he shall be subject thereto, is exempt 
from the local jurisdiction of his own country. 

Ca^e. — ^In this case the plaintiff sought to zecover £118, which 
he had paid under protest to get rid of a distress upon the funu- 
tore in his house, levied by the defendants for parochial rates. 
The defendants contended that the distress was lawful, and that 
therefore the plaintiff was not entitled to recover. The plaintiff. 
Six Hallidaj Macartney, who was an English subject, had been 
appointed by the Chinese Government English Secretary of the 
Chinese Embassy, and had been received in that capacity by the 
British Government. His name had been submitted to the 
Foreign Office in the usual way, and his position as a member 
of the Embassy recognised without reservation or condition of 
any sort. 

Judgment. — ^In the course of his judgment for the plaintiff, 
Mathew, J., said : 

" For the defendant it was conceded that the plaintiff, if 
he had been a foreigner, might be entitled to the exemption 
which he claimed ; but it was argued that, as a British subject, 
he remained liable to the laws of his own country ; and it was 
said that he was not within the description of persons exempt 
by the local Act, for the operation of the Act was limited by the 
words ' or any person not liable by law to pay such rate.' 



TERRITORIAL JURISDICTION 133 

" In support of this contention, reliance was placed on passages 
of chap. xi. of Bynkershoek's ^De Foro Legatomm,' which, 
it was said, showed that the Minister of a foreign State accredited 
to his own country remained subject to the laws of the State 
to which he owed allegiance. But the view of the learned author 
would seem to be that the envoy would be entitled to exemption 
from the local jurisdiction in all that related to his public func- 
tions, and this would seem to be the opinion of later writers on 
the subject {see Wheaton, International Law, 2nd ed., edited 
by Lawrence, p. 189, and the authorities there referred to). If 
this be the rule, the plaintifi would be protected Jbrom the seizure 
in question, which unquestionably interfered with the perfor- 
mance of his duty as a member of the embassy. 

*' But there is another principle which appears to afford the 
plaintiff the protection which he claims. Bynkershoek, in 
chap, viii., and all the later writers on the subject, recognise 
the right of the State to impose such conditions as are thought 
proper upon the reception of a member of a foreign embassy. 
But it is said, if the envoy be received without reservation, the 
condition is to be tacitly implied that he fully enjo3r8 the jus 
Jegalionis. Bynkershoek points out that the only mode of escaping 
from the doctrine of exemption is to impose on the envoy, when 
received, a condition that he shaU be subject to the local jurisdic- 
tion. This principle is, as it would seem, with much good sense, 
extended by later writers to the case of the envoy accredited to 
his own Gfovemment. Thus Wheaton, International Law, p. 395, 
suggests that the privilege of the envoy to exemption from the 
civil jurisdiction of his own country is not lost where there has 
been no express condition to the contraiy at the time when the 
member of the embassy is received by his own Qovemment. 
In this case it appears from the correspondence which passed 
between the Home Office and the defendants that no such 
condition had been imposed upon the plaintiff. I am therefore of 
opinion that his goods were not liable to seizure, and that he is 
entitled to judgment for the amount claimed and costs." 



134 IMMUNITIES FROM 



V. PsiviLBaEs OF Consuls* 

Of. Oppenheim, as. 434, 435 ; Lawienoe, 131 ; HaU, p. 312 ; 

Westlake, p. 269. 

VIVEASH ▼. BECKER, 1814. 

3 Maude & Selwyn, 284 ; 15 R.R. 488. 

A resident merchant of London, who is appointed and acts 
as consul to a foreign Prince, is not a ' ' public Minister ' ' 
of the foreign State exempt from process by the Act of 
7 Anne, c. 12 ; nor is he, by the law of nations, entitled 
to the like privilege with an ambassador. 

C(ue. — ^The question made was whether the defendant, who 
had been arrested for a debt of £548 at the suit of the plaintifis, 
and compelled to give a bond, was entitled, as consul to the Duke 
of Sleswick Hoktein Oldenburg, to privilege from arrest. 

Judgment (Lord Ellenborough). — ^After considering the par- 
ticular office of the defendant and the conditions of his appoint- 
ment, the Court continued : 

" The question is reduced to this, whether this defendant is 
entitled to the privilege of immimity from arrest, as belonging 
to him in his mere character of consul. Every person who is 
conversant with the history of this country is not ignorant of 
the occasion which led to the passing of the statute 7 Anne, ch. 12. 
An ambassador of the Czar Peter had been arrested, and had put 
in bail ; and this matter was taken up with considerable inflam- 
mation and anger by several of the European Courts, and 
particularly by that potentate. In order to soothe the feelings 
of these powers the Act of Parliament was passed in which it 
was thought fit to declare the immunities and privileges of 
ambassadors and public Ministers from process ; and it was 
enacted (sec. 4) ' that in case any person should presume to sue 
forth or prosecute any such writ, or process, such persons, Ac., 
being thereof convicted should be deemed violators of the laws 



TERRITORIAL JURISDICTION 135 

of nations, and disturbers of the public repose, and should sufEer 
such penalties and corporal punishment as the Lord Chancellor, 
Lord Keeper, or the Chief Justice of the Queen's Bench or 
Common Pleas, or any two of them, should judge fit to be 
inflicted.' Thus was conferred a great and extraordinary power, 
which I am happy to say in no other instance belongs to those 
persons, but the Act of Parliament was passed by way of apology, 
and in order to conciliate the Powers offended. It declares also 
that * all writs and processes that shall in future be sued forth, 
whereby the person of any ambassador or other public Minister 
of any foreign prince or State may be arrested or imprisoned. Sec., 
shall be deemed to be utterly null and void.' Here then the 
question is if this defendant be an ambassador or other pubUc 
Minister of a foreign prince or State. He certainly is a person 
invested with fiome authority by a foreign prince, but is he a 
public Minister ? There is, I beUeye, not a single writer on the 
law of nations, nor even of those who have written looser tracts 
on the same subject, who has pronounced that a consul is eo 
nomine a public Minister ; and unless he be such he is not within 
the comprehension of the Act of Parliament. It has been very 
truly said that the Act is declaratory of the common law, and 
of the law of nations ; and hence it has been argued that he may 
be entitled to this privilege by the law of nations, though he be 
not expressly designated in the Act. That may be so ; although 
it is not very probable that when the Act of Parliament was 
passed for the purpose of laboriously and comprehensively exempt- 
ing, as far as possible, all persons who stood in any relation to 
breign States which would entitle them by the law of nations 
to be exempted, it should have omitted to designate any descrip- 
tion of persons whom it meant to include. Therefore, upon the 
Adr understanding of the statute, the question is whether he be 
& public Minister. If he be, he is protected by the Act, his arrest 
l)eing in prejudice of the rights and privileges of public Ministers. 
But supposing the defendant to be one of those pubUc func- 
tionaries who may be entitled to the privileges of the law of 
nations ; how does the case stand upon the usage as it exists 



136 IMMUNITIES FROM 

undei that law ? In seveial books lefened to in the courae of the 
argoment, and principaUy in Vattel, Book II., chap. ii. sec. 34, 
^ Of Consub,' IfinditlaiddownthuB : ^. . . Among the modem 
institutions fox the utility of commeioe one of the most usefcd is 
that of consuls, ox peisons residing in the large trading cities, and 
especially in foreign seaports, with a conmiission impowering 
them to attend to the rights and privileges of their nation, and 
to terminate misunderstandings and contests among its mer- 
chants. When a nation trades largely with a country, it is 
requisite to have there a person charged with such a conmiission, 
and as the State which allows of this coounerce must naturally 
favour it, so for the same reason it is likewise to admit a consul. 
But there being no absolute and perfect obligation to this, the 
nation disposed to have a consul must procure itself this right 
by the very treaty of commerce.' He goes on : ^ The consul is 
no public Minister, and cannot pretend to the privileges apper- 
taining to such character. Tet bearing his sovereign's com- 
mission, and being in this quality received by the prince in 
whose dominions he resides, he is in a certain degree entitled to 
the protection of the law of nations.' No doubt he is entitled to 
the protection of the law of nations, and so is every man who 
comes into this country from a foreign State under a safe 
conduct. . . . 

'* And I cannot help thinking that the Act of Parliament whick 
mentions only * ambassadors and public Ministers,' and whicl 
was passed at a time when it was an object studiously to com- 
prehend all kinds of public Ministers entitled to these privileget, 
must be considered as declaratory not only of what the law of 
nataoun is, but of the extent to which that law is to be carried. 
It appears to me that a different construction would lead to 
enormous inconveniences, for there is a power of creating vice- 
consuls ; and they too must have similar privileges. Thus % 
consul might appoint a vice-consul in every port to be armei 
with the same immunities, and be the means of creating an 
exemption from arrest indirectly which the Crown could not 
grant directly. The mischief of this would be enormous. . . . 



TERRITORIAL JURISDICTION 137 

** If we saw clearly that the law of nations was in favour of 
the privilege, it would be afforded to the defendant ; and it 
would be our duty rather to extend than to narrow it. But we 
are of opinion that no such privilege exists, but that this defen- 
dant is, like every other merchant, liable to arrest." 

Note, — ^A consal, though he has certain privil^es, such as freedom 
from arrest for political causes and exemption from personal tax, does 
not enjoy the condition of ex-territoriality which is attached to an 
ambasaador and his suite. He is liable to the ordinary civil jurisdiction 
of the country in which he resides, and in case of war he will be deemed 
to have enemy character if that country is England's enemy. Cf. 
The Indian Chief (helaw p. 179). 



CHAPTER X. 

NATIONALITY AND AMENAGE. 

(a) Right of a State to refuse admission to Aliens. 

Of. Oppenheim, s. 314 ; Hall, p. 66 ; Westlake, p. 288 ft. 

MUSGROVE ▼. CHUN TEEONG TOY. 
L.B. 1891, Appeal Cases 272 ; 60 L J.P.C. 28. 

An alien has not a legal right enforceable by action to enter 
British territory. 

Case. — ^Appeal from a judgment of the Supzeme Court of 
Victoria to the Privy Council. 

The question in the appeal was whether the Colonial Qoyem- 
ment, as representing Her Majesty, had power to prevent the 
respondent, a Chinese immigrant, from landing on the shores 
of the colony. The Privy Council held that the (Government 
had such power and that the rejected alien had no right to sue. 

Judgment (Lord Herschell, L.C.). — ^After dealing with the 
Victorian statutes, the Court continued : 

** Their Lordships have so far dealt with the case, having in 
view only the enactments of the legislature of Victoria, and it 
appears to them manifest that upon the true construction of 
these enactments no cause of action is disclosed on the record. 
This is su£Scient to determine the appeal against the plaintiff, 
but their Lordships would observe that the facts appearing 
on the record raise, quite apart from the statutes referred to, a 
grave question as to the plaintiff's right to maintain the action. 

138 



NATIONALITY AND ALIENAGE 139 

He can only do so if he can establish that an alien has a legal 
light, enf oiceable by action, to enter British tenitoiy. No autho- 
rity exists for the proposition that an alien has any such right. 
Giicumstances may occur in which the lefasal to pennit an alien 
to land might be such an inteifeience with international comity 
as would pioperiy give rise to diplomatic lemonstiance ftom the 
country of which he was a native, but it is quite another thing 
to assert that an alien, excluded from any part of Her Majesty's 
dominions by the executive (Government there, can maintain 
an action in a British Court, and raise such questions as were 
argued before their Lordships on the present appeal — whether 
the proper officer for giving or refusing access to the country 
has been duly authorised by his own Ciolonial Qovemment, 
whether the Colonial Government has received sufficient dele- 
gated authority from the Crown to exercise the authority which 
the Crown had a right to exercise through the Colonial Govern- 
ment if properly communicated to it, and whether the Grown 
has the right without Parliamentary authority to exclude an 
alien. Their Lordships cannot assent to the proposition that an 
alien refused permission to enter British territory can, in an 
action in a British Court, compel the decision of such matters 
as these, involving delicate and difficult constitutional questions 
affecting the respective rights of the Crown and ParUament, and 
the relations of this country to her self-governing colonies. 
When once it is admitted that there is no absolute and unqualified 
right of action on behalf of an aUen refused admission to British 
territory, their Lordships are of opinion that it would be impos- 
sible upon the facts which the demurrer admits for an alien to 
maintain an action." 

^Tote.— The English Aliens Act, 1905 (5 Edw. VIL oh. 13), pre- 
sapposes the right of the State to refuse admission to any aliens whom 
it r^ards as undesirable, and also the right of the State to expel any 
aliens from its territory after admission. The American Courts have 
given a decision to the same effect as that of the English Privy Ooonoil ; 
Fong 7ue Ting v. UnUed Statea, 1802 (149 U.S. 698). 



140 NATIONALITY AND ALIENAGE 



(h) The Right of Expatriation. 

Of. Oppenheim, s. 806 ; Lawrence, 96 ; Hall, p. 229 ; Westlake, 

p. 225. 

REX ▼. LYNCH. 
L.R. 1903, 1 K.B. 444 ; 72 L.J. K.B. 167. 

The Naturalisation Act, 1870, does not empower a British 
subject to become naturalised in an enemy State in time 
of war ; and the act of becoming naturalised imder such 
circumstances is itself an act of treason, and ineffectual 
to afford protection against an indictment for treason 
in subsequently joining the military forces of the enemy. 

Ca«e.<— This was a trial at bar for high treason of an Lishman 
bom in Australia, who during the war between Great Britain 
and the late South African BepubUc became a burgher of the 
RepubUc and took up arms against the British force. For the 
defence reliance was placed on the NaturaUsation Act. One of 
the overt acts of treason charged was the taking of an oath of 
allegiance to the enemy during the war. 

Judgment (Lord Alyeistone, L.C. J.). — ^^ The indictment charges 
the prisoner in two counts with adhering to the Goyeinment of 
the South African BepubUc, and in the others with adhering to 
the Qovemment of the Orange Free State, and it alleges alto- 
gether some fifteen overt acts ; but for the purposes of the 
argument that has been addressed to us it is important to draw 
a distinction between the two first overt acts and the subsequent 
overt acts. The two first acts, the declaration of wiUingness 
to take up arms and the taking of oath of allegiance to the South 
African Republic, although they took place on the same day 
as the grant of letters of naturalisation, in fact preceded it. The 
other overt acts were all deliberate acts of warfare or in aid of 
warfare against the forces of the Crown, and took place subse- 
quently to the giant of natuialisation. It is not disputed on behalf 



NATIONALITY AND ALIENAGE 141 

of the prisoner that, apart from the Naturalisation Act, 1870, 
the alleged naturalisation in the enemy State would afford no 
defence. But reliance is placed on sec. 6, which provides that 
any ' British subject who has at any time before or may at any 
time after the passing of this Act, when in any foreign State 
and not imder any disability, voluntarily become naturali<3ed in 
such State, shall from and after the time of his so having become 
naturalised in such foreign State, be deemed to have ceased to 
be a British subject, and be regarded as an alien.' It is con- 
tended that this provision entitles a British subject to become an 
alien and throw off his allegiance to the Crown, even in time of 
war. Even if that were so, it would afford no defence in respect 
to the two first overt acts, for by sec. 15, ^ where any British 
subject has in pursuance of this Act become an alien, he shall 
not thereby be discha^^ed from any liability in respect of any 
acts done before the date of his so becoming an alien.' 

'^ But, further, I am clearly of opinion that sec. 6 does not 
empower a British subject to become naturalised in an enemy 
country during time of war, and that consequently the question 
of the prisoner's liability with respect to the subsequent overt 
acts must also be left to the jury. In my opinion there is nothing 
in the Act of 1870 to justify the contention that an act of treason 
can give any rights to any person whatever. 

^' Whatever a declaration of war may or may not do, it at any 
rate prevents British subjects from making arrangements with 
the King's enemies, when such arrangements would constitute 
crimes against the law of the country to which they owe alle- 
giance." 

Note. — Although the rule of indefeasible allegianoe is abrogated by 
the Nataralisation Act, it is still not open to a British -born sabject, 
by profeBsiug to be naturalised in the country of the King's enemies 
after thejoutbreak of war, to justify his action, and divest himself of his 
original allegiance, though, aemblet if he were naturalised before hostilities 
were threatened, he would commit no offence. 



142 NATIONALITY AND ALIENAGE 



(c) Resident Alien's Duty of Allegiance. 
Cf. Oppenlieim, ii. s. 100. 

DE JAGER ▼. ATTORNEY-GENERAL OF 

NATAL. 

76 L.J. P.O. 62 ; [1907] A.C. 326. 

A resident alien within British territory owes allegiance to 
the Crown, and if he assists invaders during the absence 
of the British forces he is rightly convicted of high 
treason. 

Case. — ^The petitioner had been adjudged guilty of high treason 
and was sentenced to five years' imprisonment and to pay a 
fine of £6000; he was a burgher of the late South African 
Republic, who for ten years and at the date of the outbreak of 
war in 1899 was peacefully residing in Waschbank, in Natal, 
and continued to do so after the battle of Elandslaagte on 
October 21 of that year while the Boer forces occupied that part 
of Natal in which Waschbank is situated and the British forces 
had retired to Ladysmith. The Boers administered the govern- 
ment and remained in occupation till Maich 1900. The petitioner 
alleged that he was thereupon compellable to join, and did join, 
the Boer forces, and aided and assisted them both as commandant 
and as a commissioner and justice of the peace ; but that^he had 
thereby committed no ofiEence, because the British Oovemment 
had withdrawn its protection, and he owed it therefore no duty. 

The Privy Council dismissed the petition. The judgment of 
their Lordships was deUvered by Lord Lorebum, L.C. : 

Jttdgment. — " The petitioner, Lodewyk Johannes De Jager, was 
adjudged guilty of high treason by the special Court constituted 
by Act No. XIV. of 1900 of the Colony of Natal, and now seeks 
special leave to appeal to His Majesty in Council from that 
judgment and the sentence which followed. 



NATIONALITY AND ALIENAGE 143 

^* It is an old law that an alien resident within British teiritoiy 
owes allegiance to the down, and may be indicted for high 
treason, though not a subject. Some authorities affirm that this 
duty and liability arise from the fact that while in British terri- 
tory he receives the King's protection. Hence Sir R. Finlay 
argued that when the protection ceased its counterpart ceased 
also, and that as the British forces evacuated Waschbank on 
October 21, 1899, the petitioner was lawfully entitled to assist 
the invaders on and after October 24 without incurring the 
penalty of high treason. 

" Their Lordships are of opinion that there is no ground for 
this contention. The protection of a State does not cease merely 
because the State forces, for strategical or other reasons, are 
temporarily withdrawn, so that the enemy for the time exercises 
the rights of an army in occupation. On the contrary, when 
such territory reverts to the control of its rightful sovereign, 
wrongs done during the foreign occupation are cognisable by 
the ordinary Courts. The protection of the sovereign has not 
ceased. It is continuous, though the actual redress of what has 
been done amiss may be necessarily postponed until the enemy 
forces have been expelled. Their Lordships consider that the 
duty of a resident alien is so to act that the Crown shall not be 
harmed by reason of its having admitted him as a resident. He 
is not to take advantage of the hospitality extended to him 
against the sovereign who extended it. In modem times great 
numbers of aliens reside in this and in most other countries, and 
in modem usage it is regarded as a hardship if they are compelled 
to quit, as they rarely are, even in the event of war between 
their own sovereign and the country where they so reside. It 
would be intolerable, and must inevitably end in a restriction 
of the international facilities now universally granted, if, as soon 
as an enemy made good his military occupation of a particular 
district, those who had till then lived there peacefully as aliens 
could with impunity take up arms for the invaders. A small 
invading force might thus be swollen into a considerable army, 
while the risks of transport (which in the case of oversea expedi- 



144 NATIONALITY AND ALIENAGE 

ditioDS axe tlie main risks of invasion) would be entirely evaded 
by tbose who, instead of embarking from their own country, 
awaited the expedition under the protection of the country 
against whom it was directed. These considerations would not 
justify a British Cornt in deciding any case contrary to the law, 
but they ofiEer an illustration of consequences which would . 

follow if the law were as the petitioner maintains. There is no 1 

authority which compels their Lordships to arrive at so strange 
a conclusion.'' 



i 
I 



I 



CHAPTER XI. 
EFFECT OF TREATIES. 

Oppenheim, s. 620. 
WALKER ▼. BAIRD. 

1892, A.C. 691 ; 61 L.J. P.O. 92. 

Acts done by the authority of the Crown for the purpose of 
enforcing obedience to a treaty or agreement entered into 
between the Crown and foreign Powers, which affect the 
private rights of British subjects, are not acts of State and 
their legality will be considered by the Courts. 

Case. — ^This was an action of trespass brought by a British 
subject of Newfoundland against the commander of H.M.S. 
Eurtfoie for entering and taking possession of his lobster factories 
on the coast of Newfoundland. The defendant alleged that he had 
acted under the orders of the Crown for the purpose of enforcing 
a modus vivendi which had been concluded with the French 
Gk>yemment, for regulating the conduct of the lobster fisheries, 
and that his actions were acts of State and matters which could 
not be inquired into by the Courts. 

Judgment. — ^Lord Herschell (giving the judgment of the Privy 
Council dismissing the defendant's appeal against an order 
declaring that his defence disclosed no answer to the action) 
said : 

^' In their Lordships' opinion this judgment was clearly right, 

unless the defendant's acts can be justified on the ground that 

they were done by the authority of the Crown for the purpose 

145 lo 



146 EFFECT OF TREATIES 

of enf oicimg obedience to a tieaty or agreement entered into 
between Her Majesty and a foreign Power. The snggestion that 
they can be justified as acts of State, or that the Court was not 
competent to inquire into a matter involving the construction of 
treaties and other acts of State, is wholly untenable. 

*' The learned Attorney-General, who argued the case before 
their Lordships on behalf of the appellant, conceded that he 
could not maintain the proposition that the Crown could sanc- 
tion an invasion by its officers of the rights of private individuab 
whenever it was necessary in order to compel obedience to the 
provisions of a treaty. The proposition he contended for was a 
more limited one. The power of making treaties of peace is, as 
he truly said, vested by our Constitution in the Crown. He urged 
that there must of necessity also reside in the Crown the power 
of compelling its subjects to obey the provisions of a treaty 
arrived at for the purpose of putting an end to a state of war. 
He further contended that if this be so, the power must equally 
extend to the provisions of a treaty having for its object the 
preservation of peace ; that an agreement which was arrived at 
to avert a war which was imminent was akin to a treaty of 
peace, and subject to the same constitutional law. Whether the 
power contended for does exist in the case of treaties of peace, 
and whether, if so, it exists equally in the case of treaties akin 
to a treaty of peace, or whether in both or either of these cases 
interference with private rights can be authorised otherwise than 
by the legislature, are grave questions upon which their Lord- 
ships do not find it necessary to express an opinion. Their 
Lordships agree with the Court below in thinking that the 
allegations contained in the statement of defence do not bring 
the case within the limits of the proposition for which alone 
the appellant's counsel contended." 

NoU. — ^It has been seen above (p. 34 ff.) that the aotions of the executive 
oflBioers ol the Grown inoountrieB acquired by conquest and cession are re- 
garded as Acta of State, and though they affect private rights, cannot be 
questioned by the Courts. But a treaty by English municipal law does 
not become part of the law of the land, and if it is designed to alter 



EFFECT OF TREATIES 147 

private rights, it must either be embodied inan Aot of Parliament, or a 
special Aot must be passed to giro effect to its proTisioiis, so as to make 
them binding on the sabjeot. 



FOSTER ▼. NEILSON, 1829. 

United States Supreme Court. 
2 Peters, 263, at p. 314. 

Extract from judgment of Marshall, C.J. : 

'* A treaty is in its nature a contract between two nations, 
not a legislative act. It does not generally efEect, of itself, the 
object to be accomplished, especially so far as its operation is infra- 
territorial ; but is carried into execution by the sovereign power 
of the respective parties to the instrument. 

" In the United States a difEerent principle is established. Our 
Constitution declares a treaty to be the law of the land. It is 
consequently to be regarded in Courts of justice as equivalent 
to an Act of the legislature, whenever it operates of itself without 
the aid of any legislative provision. But when the terms of the 
stipulation import a contract when either of the parties engages 
to perform a particular act, the treaty addresses itself to the 
political, not the judicial department ; and the legislature must 
execute the contract before it can become a rule for the 
Court." 



Note. — This statement of the great American judge marks the 
difference between the attitude of the American and the English 
practice towards treaties. In the United States a treaty becomes 
immediately part of the law of the land, by an article of the Constitu- 
tion. Treaties, however, may be superseded in American Courts by 
subsequent Acts of Congress conflicting with them {Head Money Caaes^ 
112 U.S. 580). Thus before the American Courts an Act of Congress 
imposing special tolls on non- American vessels using the Panama O^nal 
would supersede the provisions of the Hay-Pauncefote Treaty, which 
provides for equal treatment for all vessels. 



148 EFFECT OF TREATIES 



Effect of War on Treaties. 

Cf. Oppenheim, vol. ii. s. 99 ; Hall, pp. 360, 379 ; Westlake, 

p. 284. 

SUTTON ▼. SUTTON, 1830. 

1 Buflsell and Mylne, 663. 

Political and other treaties which have been concluded for 
the purpose of setting up a permanent condition of 
things are not ipso facto annulled by the outbreak of 
war. 

C<$8e. — The question raised was whether the provisions in 
the treaty of peace between England and the United States 
made in 1794 were annulled by the outbreak of war between 
these two countries in 1813, so as to deprive British subjects 
in America of their title to lands accorded by the treaty. The 
treaty provided that the subjects of each of the two countries 
could hold land in the territory of the other, although they 
were aUens. 

Judgment, — ^The Master of the Bolls (Sir John Leach): ... "The 
relations which had subsisted between Great Britain and America 
when they formed one empire led to the introduction of the 
ninth section of the treaty of 1794, and made it highly reasonable 
that the subjects of the two parts of the divided empire should, 
notwithstanding the separation, be protected in the mutual 
enjoyment of their landed property ; and the privileges of 
natives being reciprocally given not only to the actual possessors 
of lands, but to their heirs and assigns, it is a reasonable con- 
struction that it was the intention of the treaty that the opera- 
tion of the treaty should be permanent, and not depend upon 
the continuance of a state of peace. 

" The Act of 37 George III. gives full effect to this article of 
the treaty in the strongest and clearest terms ; and if it be, as 
I consider it, the true construction of this article that it was to 



EFFECT OF TREATIES 149 

be pennanent and independent of a state of peace 01 war, then 
tlie Act of Parliament must be held, in the twenty-fourth section, 
to declare this permanency ; and when a subsequent section 
provides that the Act is to continue in force so long only as a 
state of peace shall subsist, it cannot be construed to be directly 
repugnant and opposed to the twenty-fourth section, but is to 
be understood as referring to such provisions of the Act only 
as would in their nature depend upon a state of peace. 

'^ I am of opinion, therefore, in favour of the title, and consider 
that the heirs and assigns of every American who held lands in 
Great Britain at the time mentioned in the Act of the 37 George 
in. are, as far as regards those lands, to be treated, not as aliens, 
but as native subjects." 



SOCIETY FOR THE PROPAGATION OF THE 
GOSPEL ▼. TOWN OF NEWHAVEN. 

Supreme Court of United States, 1823 (8 Wheaton, 464). 

Case. — The question was whether the plaintiffs, an English 
corporation, were entitled to hold land in an American State. 
It was urged that by the War of Independence they had become 
a foreign corporation which could not hold land ; and the war 
of 1814 had destroyed the efEect of the treaty of peace made at 
the end of the War of Independence which afforded special 
protection to EngUsh corporations. 

JuigmefU, — ^\ . . But we are not inclined to admit the doctrine 
urged at the Bar, that treaties become extinguished, ipso fade, 
by war between the two Gtovemments, imless they diould be 
revived by an express or implied renewal on the return of peace. 
Whatever may be the latitude of doctrine laid down by elemen- 
tary writers on the law of nations, dealing in general terms in 
relation to this subject, we are satisfied that the doctrine con- 
tended for is not universally true. There may be treaties of such 
a nature, as to their object and import, as that war will put 



I50 EFFECT OF TREATIES 

an end to them ; bat where treaties contem^te a permanent 
arrangement of territorial and other national rights, or which, 
in their terms, are meant to provide for the event of an inter- 
vening war, it would be against every prindide of jnst interpre- 
tation to hold them extingoished by the event of war. If such 
were the law, even the treaty of 1783, so far as it fixed onr limits, 
and acknowledged our independence, would be gone, and we 
should have had again to strug^e for both upon original revo- 
lutionary principles. Such a construction was never asserted 
and would be so monstrous as to supersede aU reasoning. 

** We think, therefore, that treaties stipulating for permanent 
rights and general arrangements, and professing to aim at 
perpetuity and to deal with the case of war as well as of peace, 
do not cease on the occurrence of war, but are at most only 
suspended while it lasts ; and unless they are waived by the 
parties, or new and repugnant stipulations are made, they 
revive in their operation at the return of peace." 

Note. — ^These two dacidons, one of an KngHwh and the other of an 
American tribunal, show that war does not put an end to the effect of 
all treaties between the belUgerent ooantries, though it may suspend 
their operation during the hostilities. It depends on the character of 
the particular provisions whether the treaty or any part <rf it is to be 
regarded as abrogated %p9o facto by the war. 



PART 11. 

CHAPTER XIL 

THE LAW OF WAR. 
Rights of Belligerents. 

Hostile Embargo. 

Cf. Oppenheim, vol. ii. s. 40 ; Lawience, 137 ; Hall, p. 362 ; 

Westlake, vol. ii. p. 10. 

THE ^'BOEDUS LUST/* 1803. 

6 C. Robinson, 246. 

A State in expectation of war with another State may detain 
the merchant vessels of that State which are lying in 
its ports : and if war breaks out those vessels may be 
confiscated. 

Case. — ^This was the case of a Dutch ship on a voyage from 
Demeiaia to Batavia, embargoed at the Cape of Gfood Hope by 
an English squadron before the actual declaration of war against 
Holland in 1803, and afterwards condemned as enemy's property. 

Judgment (Sir W. Scott, J.).— Extract : '' This was the state 
of the first seizure. It was at first equivocal ; and if the matter 
in dispute had terminated in reconciliation, the seizure would 
have been converted into a mere civil embargo. That would 
have been the retro-active efEect of that course of circumstances. 
On the contrary, if the transactions end in hostility, the retro- 
active efEect is directly the other way. It impresses the direct 

151 



152 THE LAW OF WAR 

hostile character upon the original seizure. It is declared to be 
no embargo, it is no longer an equivocal act, subject to two 
interpretations ; there is a declaration of the animus, by which 
it was done, that it was done hostUi ammo and is to be considered 
as a hostile measure cib initio. The property taken is liable to 
be used as the property of persons, trespassers ab initiOj and 
guilty of injuries, which they have refused to redeem by any 
amicable alteration of their measures. This is the necessary 
course, if no particular compact intervenes for the restitution of 
such property taken before a formal declaration of hostilities. 
No such convention is set up on either side, and the State, by 
directing proceedings against this property for condemnation, 
has signified a contrary intention. Accordingly the general mass 
of Dutch property has been condemned on this retro-active 
effect ; and this property stands upon the same footing." 

Note. — One of the Hague Cbnveiitions of 1907 (No. 6) provides that 
it is desirable that merchant vesselB found in a belligerent port at the 
beginning of war should be allowed to depart freely immediately or 
after a time of grace, and in any case they may not be confiscated bat 
only detained, under the obligation that they must be restored without 
indemnity at the end of the war. But the bare right of embargo, though 
seldom practised of recent years, still remains. In the case of the Johanna 
Emilie, 1864 (Spinks, 14), Dr. Lushington said: '*Wiih regard to an 
enemy's property coming to any part of the kingdom, or being found ihert, 
being seizable, I confess I am astonished that doubt should exist on the 
subject. I apprehend the law has been this, that it is competent for any 
persons to take possession of such property, unless it had any protection 
by licence, or by some declaration emanating by the authority of the CSrown, 
and to assist the Crown to proceed against it to adjudication. ' ' The modem 
practice of so-called pacific blockade partakes of the nature of embargo, 
being practised before war has definitely broken out between two States. 



THE LAW OF WAR 153 



Prize Courts. 

Cf. Oppenheim, ii. s. 192 ; Westlake, ii. p. 288 S. 

THE "MARIA'' (No. i), 1799. 

1 C. Rob. 340. 



The law administered by a national Prize Court should be 
international. 

Case. — Sir W. Scott, in asserting the riglit of a belligerent 
Englisli cruiser to search a Swedish neutral vessel, though under 
the convoy of a Swedish man-of-war, laid down broadly the 
function of a Prize Court : 

" In forming that judgment, I trust it has not escaped my 
anxious recollection what it is that the duty of my station calls 
for from me — ^namely, to consider myself as stationed here, not 
to deliver occasional and shifting opinions to serve present pur- 
poses and particular national interest, but to administer with 
indifEerence that justice which the law of nations holds out 
without distinction to independent States, some happening to 
be neutral and some belligerent. The seat of judicial authority 
is locally here in the belligerent country, according to the known 
law and practice of nations, but the law itself has no locality. It 
is the duty of the person who sits here to determine the question 
exactly as he would determine the same question if he were 
sitting at Stockholm ; to assert no pretensions on the part of 
Great Britain which he would not allow to Sweden in the same 
circumstances, and to impose no duties on Sweden, as a neutral 
country, which he would not admit to belong to Great Britain 
in the same character. If, therefore, I mistake the law on this 
matter, I administer that which I consider, and which I mean 
should be considered, as the universal law upon the question." 

Note. — Lord Stowell developed this conception of interna tional prize- 
law as a uniyersal law in a case where he had to determine whether 
a belligerent oould set up a Prize Court in neutral territory (The Flad 



154 THE LAW OF WAR 

Open, 1 C. Bob. 136). A French privateer had carried an English prize 
vessel into Bergen, and there procured its condemnation by the French 
Consul. In repudiating the condemnation he declares : " It is my duty 
not to admit that because one nation has thought proper to depart 
from the common usage of the world and to treat the notice of mankind 
in a new and unprecedented manner, that I am on that account under 
the necessity of acknowledging the efficacy of such a novel institution, 
merely because general theory might give it a degree of countenance 
independent of all practice from the earliest history of mankind. The 
institution must conform to the text law and likewise to the constant 
usage of the matter.*' 

Modem authorities on international law, however, emphasize the fact 
that Prize Courts are national and the law they administer municipal 
law (c/. Westlake and Oppenheim, N.S.), and for this reason they desire the 
establishment of an International Prize Court. 



Visit and Search. 
Cf. Oppenheim, ss. 414-421 ; Lawrence, 241-245 ; Hall, p. 723 ft. 

THE ''MARIA," 1799. 

A belligerent cruiser has the right of visiting and searching 
all merchant ships on the high seas. 

Case, — ^This was the same case as the last, in which one of a fleet 
of Swedish merchantmen, carrying pitch, tar, hemp, and iron 
to several ports of France and the Mediterranean, was taken, 
while sailing under convoy of a ship of war, and proceeded 
against for resistance of visitation and search by British cruisers. 

Judgment. — Sir W. Scott, after expounding the general natnre 
of prize law {see above^ p. 153), laid down the following broad 
propositions upon the right of search. 

" (1) That the right of visiting and searching merchant ships 
upon the high seas, whatever be the ships, whatever be the 
cargoes, whatever be the destinations, is an incontestable right 
of the lawfully commissioned cruisers of a beUigerent nation. 
I say, be the ships, the cargoes, and the destinations what they 
may, because, till they are visited and searched, it does not 
appear what the ships, or the cargoes, or the destinations are ; 



THE LAW OF WAR 155 

and it is for the puipoBe of ascertaining these pointi^ that the 
necessity of this right of visitation and search exists. This right 
is so clear in principle that no man can deny it who admits the 
legality of maritime capture ; because if you are not at liberty 
to ascertain by sufficient inquiry whether there is property that 
can legally be captured, it is impossible to capture. Even those 
who contend for the inadmissible rule that free ships make free 
goodsy must admit the exercise of this right at least for the pur- 
pose of ascertaining whether the ships are free ships or not. 
The right is equally clear in practice ; for practice is uniform and 
universal upon the subject. The many European treaties which 
refer to this right refer to it as pre-existing, and merely regulate 
the exercise of it. All writers upon the law of nations unanimously 
acknowledge it, without the exception even of Hubner himself, 
the great champion of neutral privileges. In short, no man in 
the least degree conversant with subjects of this kind has ever, 
that I know of, breathed a doubt upon it. The right must 
unquestionably be exercised with as little of personal harshness 
and of vexation in the mode as possible ; but soften it as much 
as you can, it is still a right of force, though of lawful force — 
something in the nature of civil process, where force is employed, 
but a lawtul force, which cannot lawfuUy be resisted. For it is 
a wild conceit that wherever force is used it may be forcibly 
resisted ; a lawful force cannot lawfully be resisted. The only 
case where it can be so in matters of this nature is in the state 
of war and conflict between two countries, where one party has 
a perfect right to attack by force, and the other has an equally 
perfect right to repel by force. But in the relative situation of 
two countries at peace with each other, no such conflicting rights 
can possibly coexist. 

" (2) That the authority of the sovereign of the neutral 
country being interposed in any manner of mere force cannot 
legally vary the rights of a lawfully commissioned belligerent 
cruiser ; I say legally ^ because what may be given, or be fit to 
be given, in the administration of this species of law, to con- 
siderations of comity or of national policy, are views of the matter 



156 THE LAW OF WAR 

which, sitting in this Court, I have no right to entertain. All 
that I assert is that legaBy it cannot be maintained that if a 
Swedish commissioned cruiser, during the wars of his own 
conntiy, has a right by the law of nations to visit and examine 
neutral ships, the King of England, being neutral to Sweden, 
is authorised by that law to obstruct the exercise of that right 
with respect to the merchant-ships of his country. I add this, 
that I cannot but think that if he obstructed it by force, it would 
very much resemble (with all due reverence be it spoken) an 
opposition of illegal violence to legal right. Two sovereigns may 
unquestionably agree, if they think fit (as in some late instances 
they have agreed), by special covenant, that the presence of one 
of their armed ships along with their merchant-ships shall be 
mutually understood to imply that nothing is to be found in 
that convoy of merchant-ships inconsistent with amity or 
neutrality ; and if they consent to accept this pledge no third 
party has a right to quarrel with it any more than with any 
other pledge which they may agree mutually to accept. But 
surely no sovereign can legally compel the acceptance of such a 
security by mere force. The only security known to the law of 
nations upon this subject, independent of all special covenant, 
is the right of personal visitation and search, to be exercised by 
those who have the interest in making it. I am not ignorant 
that amongst the loose doctrines which modem fancy, under the 
various denominations of philosophy and philanthropy, and 
I know not what, have thrown upon the world, it has been within 
these few years advanced, or rather insinuated, that it might 
possibly be well if such a security were accepted. Upon such 
unauthorised speculations it is not necessary for me to descant : 
the law and practice of nations (I include particularly the prac- 
tice of Sweden when it happens to be belligerent) give them no 
sort of countenance ; and until that law and practice are new- 
modelled in such a way as may surrender the known and ancient 
rights of some nations to the present convenience of other 
nations (which nations may perhaps rbmbmbkb to forgd them, 
when they happen to be themselves belligerent), no reverence 



THE LAW OF WAR 157 

is due to them ; they aie the elements of that system which, if 
it is consistent, has for its real purpose an entiie abolition of 
capture in war — that is, in other words, to change the nature 
of hostility, as it has ever existed amongst mankind, and to 
introduce a state of things not yet seen in the world, that of a 
military war and a commercial peace. If it were fit that such 
a state should be introduced, it is at least necessary that it 
should be introduced in an avowed and intelligible manner, and 
not in a way which, professing gravely to adhere to that system 
which has for centuries prevailed among civilised States, and 
urging at the same time a pretension utterly inconsistent with 
all its known principles, delivers over the whole matter at once 
to eternal controversy and conflict, at the expense of the constant 
hazard of the harmony of States, and of the lives and safeties 
of innocent individuals. 

** (3) That the penalty for the violent contravention of this 
right is the confiscation of the property so withheld from visitation 
and search. For the proof of this I need only refer to Vattel, one of 
the most correct and certainly not the least indulgent of modem 
professors of public law." 

Note, — The Declaration of London now provides that neutral 
merohantmen under the oonvoy of a warship of this country are nor- 
mally free from the belligerent's right of search. But the general prin- 
ciples laid down in this judgment as to the belligerent's rights are still 
valid. 

Destruction of Prizes. 

Cf. Oppenheim, s. 431 ; Lawrence, 191 ; Hall, p. 452 ; Westlake, 

vol. ii. p. 318. 

THE ** LEUCADE/' 1855. 

Spink's Prize Cases, p. 217. 

A neutral whose vessel has been destroyed before being 
brought into a Prize Court is entitled to restitution. 

C<Me. — ^In this case an Ionian vessel had been seized by an 
English captor on the ground of illegal trade with Russia. It 



158 THE LAW OF WAR 

was held, however, that the trade was legal and the vessel was 
released, and the owners made a claim for restitution and costs. 
Dr. Lushington, in giving judgment, dealt with the whole ques- 
tion of restitution by Prize Courts, and especially with the 
question of destruction of prizes. 

Judgment. — ^'^We must bear in mind the wide difference 
between the detention of a vessel under the colours of the enemy 
or under neutral flags. The destruction of a vessel under hostile 
colours is a matter of duty ; the Court may condemn on proof 
which would be inadmissible or wholly irregular in the instance of 
a neutral vessel. Indeed the bringing to adjudication at all of 
an enemy's vessel is not called for by any respect to the right 
of the enemy proprietor when there is no neutral property on 
board. But for totally different considerations, when a vessel 
under neutral colours is detained, it has the right to be brought 
to adjudication, according to the regular course of proceeding 
in the Prize Court, and it is the very first duty of the captor to 
bring it in, if it be practicable. 

^^ From the peiformance of the duty the captor can be exone- 
rated only by showing that he was a bona fide possessor and 
that it was impossible for him to discharge it. No excuse for 
him as to inconvenience or difficulty can be admitted as between 
captor and claimants. If the ship be lost, that fact alone b no 
answer ; a captor must show a valid cause for the detention as 
well as the loss. If the ship be destroyed for reasons of policy 
alone, as to maintain a blockade or otherwise, the claimant is 
entitled to costs and damages. The general rule, therefore, is 
that if a ship under neutral colours be not brought to a com- 
petent Court for adjudication, the claimants are as against the 
captor entitled to costs and damages. Indeed if the captor doubt 
his power to bring in a vessel to adjudication, it is his duty 
under ordinary circumstances to release her." 

Nate. — ^The Declaration of London oontains a section (Articles 48- 
64) dealing with the destniotion of neatral prizes ; and the rale tiiere 
adopted is that, while destniotion is permitted in exceptional cases 
to a captor when the neatral vessel woald have been liable to con- 



THE LAW OF WAR I59 

demnation in a prize Court, unless the captor subsequently proves 
that he acted under an urgent necessity and in a case where the capture 
was valid, he must pay full compensation to the parties interested. 
But an enemy prize may be destrcyed by the captor. 



Prizes Captured in Neutral Waters. 
Cf. Oppenheim, vol. ii. s. 49 ; Hall, p. 617 ft. ; Westlake, p. 202. 

THE '' ANNE/' i8i8- 
Supreme Court of the United States (3 Wheaton, 435). 

A capture made in neutral waters is, as between enemies, 
deemed to all intents and purposes a legal capture. The 
neutral sovereign can alone call its validity in question. 

If the captured enemy ship commences hostilities in neutral 
waters, she thereby forfeits neutral protection. 

Case. — This was the case of a British ship captured, during 
the war between England and the United States, while lying at 
anchor near the Spanish part of the island of St. Domingo by 
the American privateer UUor. 

Judgment (Story, J.). — ^' . . . The claim of the Spanish 
Government for the violation of its neutral territory being thus 
disposed of, it is next to be considered whether the British 
claimant can assert any title founded upon that circumstance. 

*' By the return of peace, the claimant became rehabilitated 
with the capacity to sustain a suit in the Courts of this country ; 
and the argument is that a capture made in a neutral territory is 
void ; and therefore, the title by capture being invalid, the 
British owner has a right to restitution. The difficulty of this 
argument rests in the incorrectness of the premises. A capture 
made within neutral waters is, as between enemies, deemed, to 
ail intents and purposes, rightful ; it is only by the neutral 
sovereign that its legal validity can be called in question ; and 
as to him and him only is it to be considered void. The enemy 
has no rights whatsoever, and if the neutral sovereign omits or 



i6o THE LAW OF WAR 

declines to interpose a claim, the property is condemnable, jure 
belli, to the captors. This is the clear result of the authorities ; 
and the doctrine rests on well-established principles of public 
law. 

*' There is one other point in the case which, if all other 
difficulties were removed, would be decisive against the claimant. 
It is a fact that the captured ship first commenced hostilities 
against the privateer. This is admitted on all sides ; and it is 
no excuse to assert that it was done under a mistake of the 
national character of the privateer, even if this were entirely 
made out in the evidence. While the ship was lying in neutral 
waters, she was bound to abstain from all hostilities, except in 
self-defence. The privateer had an equal title with herself to 
the neutral protection, and was in no default in approaching the 
coast without showing her national character. It was a violation 
of that neutrality which the captured ship was bound to observe, 
to commence hostilities for any purpose in these waters ; for 
no vessel coming thither was bound to submit to search, or to 
account to her for her conduct or character. When, therefore, she 
commenced hostilities, she forfeited the neutral protection, and 
the capture was no injury for which any redress could be right- 
fuUy sought from the neutral sovereign. 

'' The conclusion from all these views of the case is, that the 
ship and cargo ought to be condemned as good prize of war." 



Naie. — ^U , however, the prize captured in neutral waters comes within 
the territorial jurisdiction of the neutral State, it is the daty of that State 
to secure its restoration {Hudson v. Otiegtier, 6 Granoh, 284). 

For an English case which deals with the e£feot of capture in neutral 
waters see The Anna (above, p. 62). 



CHAPTEB XIII. 
NON-INTERCOURSE WITH THE ENEMY. • 

C/. Oppenheim, ii. 88. 100, 101 ; Lawrence, 143 ; Hall, p. 660 ; 

Westlake, vol. ii. p. 44. 

THE **HOOP/' 1799. 
1 C. Robinson, 196. 

British merchants are not at liberty to trade with the enemy 
without the King's licence ; all property taken in such 
trade is confiscable as prize to the captor. 

C(ue. — ^Thia was the case of a ship laden with flax, madder, 
and cheese, and bound from Rotterdam ostensibly to Beigen ; 
she was in tmth coming to a British port, and took a destina- 
tion to Bergen to deceive the Fiench cruisers. She was seized 
by a British vessel and brought in as a prize on the ground 
that she was engaged in trade between enemy subjects. The 
goods were to be imported on account of British merchants, being 
most of them articles of considerable use in the manufactures 
and commerce of this country, and being brought under an 
assurance from the commissioners of customs in Scotland that 
they might be lawfully imported without any licence, by virtue 
of the statute 36 Geo. HI. c. 16, sec. 180, passed during the war. 

Judgment (Sir W. Scott). — ^\ . . It is said that these circum- 
stances compose a case entitled to great indulgence ; and I do 
not deny it. But if there is a rule of law on the subject binding 
the Court, I must follow where that rule leads me ; though it 

i6i II 



i62 NON-INTERCOURSE WITH THE ENEMY 

leads to consequences which I may privately regret, when I look 
to the particular intentions of the parties. 

'' In my ojanion there exists sach a general role in the maritime 
jurisprudence of this country, by which all trading with the 
public enemy, unless with the permission of the sovereign, is 
interdicted. It is not a princii^e peculiar to the maritime law of 
this country ; it is laid down by Bynkershoek as a universal 
principle of law : *' Ex natnra belli conmiercia inter hostes cessare 
non est dubitandum. Quamvis nulla specialis sit commerciorum 
prohibitio, ipso tamen jure belli commercia esse vetata, ipssB 
indictiones bellorum satis decarant,' &c. He proceeds to observe 
that the interests of trade and the necessity of obtaining certain 
commodities have sometimes so far overpowered this rule that 
different species of traffic have been permitted, proul e re tiia, 
tubdiiorumque suorum esse censetit prindpes (Bynk., Q. J.P.B. 1, 
c. 3). But it is in all cases the act and permission of the sovereign. 
Wherever that is permitted, it is a suspension of the state of war 
quo ad hoc. It is, as he expresses it, pro pa/iie $ic heBumy fro pairte 
fax inter subditos utriusque prindpes. It appears from these 
passages to have been the law of Holland ; Valin, 1. iii., tit. 6, 
art. 3, states it to have been the law of France, whether the 
trade was attempted to be carried on in national or in neutral 
vessek ; it will appear in a case which I shall have occasion to 
mention. The Fortuna, to have been the law of Spain ; and it 
may, I think, without rashness be affirmed to have been a general 
principle of law in most of the countries of Europe. 

^^ By the law and Constitution of this country, the sovereign 
alone has the power of declaring war and peace. He alone 
therefore who has the power of entirely removing the state of 
war, has the power of removing it in part, by permitting, where 
he sees proper, that commercial intercourse which is a partial 
suspension of the war. There may be occasions on which such 
an intercourse may be highly expedient. But it is not for indi- 
viduals to determine on the expediency of such occasions on 
their own notions of commerce, and of commerce merely, and 
possibly on grounds of private advanta^ not very reconcilable 



NON'INTERCOURSE WITH THE ENEMY 163 

with the general inteiest of the State. It is for the State alone, 
on moie enlarged views of policy, and of all ciicumstances which 
may be connected with such an intercourse, to determine when 
it shall be permitted, and under what regulations. In my opinion, 
no principle ought to be held more sacred than that this inter- 
course cannot subsist on any other footing than that of the 
direct permission of the State. Who can be insensible to the 
consequences that might follow, if every person in a time of war 
had a right to carry on a commercial intercouise with the enemy, 
and under colour of that had the means of carrying on any other 
species of intercourse he might think fit ? The inconvenience to 
the public might be extreme ; and where is the inconvenience 
on the other side, that the merchant should be compelled, in 
such a situation of the two countries, to carry on his trade 
between them (if necessary) under the eye and control of the 
Qovemment, charged with the care of the public safety ? 

'' Another principle of law, of a less public nature, but equally 
general in its reception and direct in its application, forbids this 
sort of communication as fundamentally inconsistent with the 
relation at that time existing between the two countries ; and 
that is, the total inability to sustain any contract by an appeal 
to the tribunals of the one country on the part of the subjects of 
the other. In the law of almost every country, the character of 
alien enemy carries with it a disability to sue, or to sustain in the 
language of the civilians a persona ttanii injudieio. The peculiar 
law of our own country applies this principle with grear rigour. 
The same principle is received in our Courts of the law of nations ; 
they are so &r British Courts that no man can sue therein who 
is a subject of the enemy, unless under particular circumstances 
that pro hdc tnce discharge him from the character of an enemy — 
such as his coming under a flag of truce, a cartel, a pass, or some 
other act of public authority that puts him in the King's peace 
pro hdo vice. But otherwise he is totally ex Zea; ; even in the case 
of ransoms which are contracts, but contracts arising ex jure beUi, 
and tolerated as such, the enemy was not permitted to sue in his 
own proper person for the payment of the ransom bill ; but the 



i64 NON-INTERCOURSE WITH THE ENEMY 

payment was enforced by an action brought by the imprisoned 
hostage in the Courts of his own country, for the recovery of hb 
freedom. A State in which contracts cannot be enforced cannot 
be a state of legal commerce. If the parties who are to contract 
have no right to compel the performance of the contract, nor 
even to appear in a Court of justice for that purpose, can there 
be a stronger proof that the law imposes a legal inability to 
contract? To such transactions it gives no sanction ; they have 
no legal existence ; and the whole of such commerce is attempted 
without its protection and against its authority. Bynkershoek 
expresses himself with great force upon this argument in his 
first book, chapter vii., where he lajrs down that the legality of 
commerce and the mutual use of Courts of Justice are inseparable; 
he says that cases of commerce are undistinguishable from cases 
of any other species in this respect : * Si hosti semel permittas 
actiones exeroere, difficile est distinguere ex qua causa oriuntur, 
nee potui animadvertere iUam distinctionem usu fuisse servatam.' 

" Upon these and similar grounds it has been the established 
rule of law of this Court, confirmed by the judgment of the 
Supreme Court, that a trading with the enemy, except under a 
royal licence, subjects the property to confiscation ; and the 
most eminent persons of the law sitting in the Supreme Court 
have uniformly sustained such judgments. . • . 

*^ I omit many other cases of the last and the present war 
merely on this ground, that the rule is so firmly established that 
no one case exists which has been permitted to contravene it — 
for I take upon me to aver that all cases of this kind which have 
come before that tribunal have received a uniform determina- 
tion. The cases which I have produced prove that the rule has 
been rigidly enforced : where Acts of Parliament have on different 
occasions been made to relax the navigation law and other 
revenue Acts ; where the Government has authorised, under the 
sanction of an Act of Parliament, a homeward trade from the 
enemy's possession, but has not especially protected an outward 
trade to the same, though intimately connected with that home- 
ward trade, and almost necessary to its existence ; that it has 



NON-INTERCOURSE WITH THE ENEMY 165 

been enfoioed wheie strong claim, not merely of convenience, 
but ahnost of necessity, excused it, on behalf of the individual ; 
that it has been enforced where carriages have been laden 
before the war, but where the parties have not used all possible 
diligence to countermand the voyage after the first notice of 
hostilities ; and that it has been enforced not only against the 
subjects of the Crown, but likewise against those of its allies 
in the war, upon the supposition that the rule was founded on a 
strong and universal principle, which allied States in war had a 
right to notice and apply, mutually, to each other's subjects. 
Indeed it is the less necessary to produce these cases, because it 
is expressly laid down by Lord Mansfield, as I understand him, 
that such is the maritime law of England." {Gist v. Mason, 
1 T.R. 85.) 

Note. — ^Although the general rule ia that trading with enemy sabjects is 
prohibited, the belligerent State may grant either a licenoe to any subjects 
allowing them to trade generally or in some particular commodity with 
the enemy country, or a licence to any of the enemy subjects exempting 
them from the ordinary effects of war. It has been generally thought on 
the Continent that Article 23 (h) of the Hague Regulations concerning land 
warfare abolishes the old rule by which enemy subjects cannot sue in the 
Courts during war ; but this interpretation has not been accepted in* 
England. 

In the only prize-case decided during the South African War The 
Mtuhona, the Supreme Court in the Cape, condemned the British ship and 
the cargo of English merchants destined for the Transvaal, including 
goods consigned to domiciled neutrals, on the ground that it was an infringe- 
ment of the law of non-intercourse. De Villlers, C. J., in his judgment, said s 
** The law is clear that one of the immediate consequences ql the commence- 
ment of hostilities is the interdiction of all commercial intercourse between 
the subjects of the States at war without tJie licence of their respective 
governments. . • . The prohibition applies to all persons domiciled 
within the hostile State. If a war breaks out, a foreign merchant, carrying 
on trade in a belligerent country, has a reasonable time allowed him for 
transferring himself and property to another country. If he does not avail 
himself of the opportunity he is treated, for the purpose of the trade, as 
the subject of tiie Power under whose dominion he carries it on and as an 
enemy by those with whom that Power is at war." 

(Reported in Journal of Society of Comparative LegidkUionf N.S., voL ii, 
1900, pp. 326-7.) 



i66 NON'INTERCOURSE WITH THE ENEMY 



NEW YORK LIFE INSURANCE CO. ▼. 

STATHEM, 1876. 

United States Supreme Court (93 U.S. 24). 

Executory contracts between subjects of belligerent States 
where time is of the essence of the contract are annulled 
by war. Life insurance policies are of this character, 
but the assured is entitled to recover the equitable value 
of the policy at the time of the outbreak of the war. 

Case. — ^This was a suit to recover the amount of a policy of 
life assuiance granted by the appellant company in 1861 on the 
life of Dr. Stathem. The annual premiums accruing on the policy 
were regularly paid till the breaking out of the Civil War between 
the Federal Government and the Confederates ; but in conse- 
quence of that event the premium due on December 1861 was 
not paid, the party assured being resident in Mississippi, while 
the appellant was a corporation of New York. Dr. Stathem died 
in 1862 before the war was over. 

The policy contained various conditions, upon the breach 
of which it was to be null and void ; and amongst others the 
following : *^ That in case the said (assured) shall not pay the 
said premium on or before the several days hereinbefore men- 
tioned for the payment thereof, then and in every such case the 
said company shall not be liable to the pajrment of the sum 
insured, or in any part thereof, and this policy shall cease and 
determine." 

Judgment, — ^Mr. Justice Bradley, after stating the case, 
dehvered the opinion of the Court : 

" We agree with the Court below that the contract is not an 
assurance for a single year, with a privilege of renewal from year 
to year by pa}ang the annual premium, but that it is an entire 
contract of assurance for life, subject to discontinuance and 
forfeiture for non-payment of any of the stipulated premiums. 



NON-INTERCOURSE WITH THE ENEMY 167 

Such is the form of the contract, and such is its character. . . 
Each instahnent is, in fact, part consideration of the entire 
insurance for life. It is the same thing where the annual premiums 
are spread over the whole life. . . . The case, therefore, is one 
in which time is material and of the essence of the contract. Non- 
payment at the day involves absolute forfeiture, if such be the 
terms of the contract, as is the case here. Courts cannot with 
safety vary the stipulation of the parties by introducing equities 
for the relief of the insured against their own negligence. 

'* But the Court below bases its decision on the assumption 
that, when performance of the condition becomes illegal in 
consequence of the prevalence of public war, it is excused, and 
forfeiture does not ensue. It supposes the contract to have been 
suspended during the war, and to have revived with all its force 
when the war ended. 

'* Such a suspension and revival do take place in the case of 
ordinary debts. But have they ever been known to take place 
in the case of executory contracts in which time is material ? If 
a Texas merchant had contracted to furnish some Northern 
explorer a thousand cans of preserved meat by a certain day, so 
as to be ready for his departure for the North Pole, and was 
prevented from furnishing it by the Civil War, would the con- 
tract still be good at the close of the war five years afterwards, 
and after the return of the expedition ? 

'^ The truth is that the doctrine of the revival of contracts 
suspended during the war is one based on considerations of 
equity and justice, and cannot be invoked to revive a contract 
which it would be unjust or inequitable to revive. 

*^ In the case of life insurance, besides the materiality of time 
in the performance of the contract, another strong reason exists 
why the policy should not be revived. The parties do not stand 
on equal ground in reference to such a revival. 

" It would operate most unjustly against the company. The 
business of insurance is founded on the law of averages ; that of 
life insurance eminently so. The average rate of mortality is the 
basis on which it rests. By spreading their risks over a large 



i68 NON'INTERCOURSE WITH THE ENEMY 

number of casee, the companies calculate on this average with 
leasonable certainty and safety. Anything that inteif eres with 
it deranges the security of the business. If every policy lapsed 
by reason of the war should be revived, and all the back premiums 
should be paid, the companies would have the benefit of this 
average amount of risk. 

" The nature of the business, as a whole, must be looked at to 
understand the general equities of the parties. 

'^We are of opinion, therefore, that an action cannot be 
maintained for the amount assured on a policy of life insurance 
forfeited, like those in question, by non-pajonent of the premium, 
even though the payment was prevented by the existence of the 



war. 



The question then arises : Must the insured lose all the money 
which has been paid for premiums on their respective policies ? 
If they must, they wiU sustain an equal injustice to that which 
the companies would sustain by reviving the policies. At the 
very first blush, it seems manifest that justice requires that they 
should have some compensation or return for the money already 
paid, otherwise the companies would be the gainers from their 
loss ; and that from a cause for which neither party is to blame. 
The case may be illustrated thus : Suppose an inhabitant of 
Georgia had bargained for a house, situated in a northern city, 
to be paid for by instalments, and no title to be made until all 
the instalments were paid, with a condition that on the failure 
to pay any of the instalments when due the contract should be 
at an end, and the previous payments forfeited ; and suppose 
that this condition was declared by the parties to be absolute 
and the time of payment noiaterial. Now, if some of the instal- 
ments were paid before the war, and others accruing during the 
war were not paid, the contract, as an executory one, was at 
an end. If the necessities of the vendor obliged him to avail 
himself of the condition, and to resell the property to another 
party, would it be just for him to retain the money he had 
received ? Perhaps it might be just if the failure to pay had been 
voluntary, or could, by pooubility, have been avoided. 



NON-INTERCOURSE WITH THE ENE MY 169 

" But it was caused by an event beyond the control of either 
party — an event which made it unlawful to pay. In such case, 
whilst it would be unjust, after the war, to enforce the contract 
as an executory one against the vendor contrary to his will, it 
would be equally unjust in him, treating it as ended, to insist 
upon the forfeiture of the money already paid on it. An equitable 
right to some compensation or return for previous payments 
would clearly result from the circumstances of the case. The 
money paid by the purchaser, subject to the value of any posses- 
sion which he may have enjoyed, should, ex CBquo et bono, be 
returned to him. This would clearly be demanded by justice and 
right. 

" And so, in the present case, whilst the insurance company 
has a right to insist on the materiality of time in the condition 
of payment of premiums, and to hold the contract ended by 
reason of non-payment, they cannot with any fairness insist upon 
the condition, as it regards the forfeiture of the premiums already 
paid; that would be clearly unjust and inequitable. The insured 
has an equitable right to have this amount restored to him 
subject to a deduction for the value of the assurance enjoyed 
by him whikt the policy was in existence ; in other words, he is 
fairly entitled to have the equitable value of his policy. . . . 

" We are of opinion, therefore, first, that as the companies 
elected to insist upon the condition in these cases, the policies in 
question must be regarded as extinguished by the non-payment 
of the premiums, though caused by the existence of the war, 
and that an action will not lie for the amount insured thereon. 

" Secondly, that such failure being caused by a public war, 
without the fault of the assured, they are entitled ex cequo et 
hmo to recover the equitable value of the policies with interest 
from the close of the war. . . ." 

Clifford, J. (with whom concurred Hunt, J.), dissented and 
said : 

'" Where the parties to an executory money-contract live in 
different countries, and the governments of those countries 
become involved in public war with each other, the contract 



I70 NON-INTERCOURSE WITH THE ENEMY 

between such parties is suspended during the existence of the 
war, and revives when peace ensues; and that rule, in my 
judgment, is as applicable to the contract of life insurance as 
to any other executory contract." 

Naie. — ^In general all executory contncts entered into with afien enemies 
before the war are avoided by tiie war, EsposUo v. Bawdent 1^7 (7 E. ft B. 
703). But the practice of the United Stotes Conrte during the Civil 
War was to extend indulgence to those persons in the Confederate States 
who had entered into contracts with pereons or corporations in the Federal 
States before the outbreak of war. Owing to the international character 
of the modem credit system the more Uberal practice is likely to be 
followed in fatore. 



J ANSON ▼. DRIEFONTEIN CONSOLIDATED 

MINES, LTD. 

Law Reports, 1902 ; A.C. 484 ; 71 L.J. K.B. 857. 

Where a subject of a foreign Govertunent insures treasure 
with British underwriters against capture during its 
transit from the foreign State to this country, and the 
foreign Government seizes the treasure during the 
transit, and war is afterwards declared between the 
foreign and the British Governments, the insurance is 
valid, and an action may be maintained in this country 
against the underwriters after the restoration of peace, 
though the seizure is made in contemplation of war, and 
in order to use the treasure in support of the war. 

Case, — ^The respondents, a company registered under the law 
of the South African Republic, in August 1899, insured with 
the appellant and other underwriters gold against {inter alia) 
" arrests, restraints, and detainments of all kings, princes, and 
people," during its transit from the Gold Mines near Johaimes- 
burg in the Transvaal to the United Kingdom. On October 2, 
1899, the gold was during its transit seized on the frontier by 
order of the Govenunent of the South African RepubUc. On 



NON-INTERCOURSE WITH THE ENEMY 171 

October 11 at 5 p.m. a state of wai began between the British 
Government and the Government of the Republic. At the time 
of the seizure war was admitted to be imminent, and the 
appellant urged that the policy was voided. 

The respondent company had a London o£Bce» but its 
head office was at Johannesbui^. Most of its shareholders 
were resident outside the Republic and were not subjects 
thereof. 

Judgment. — ^Lord Halsbury (L.C.) in dismissing the appeal said : 

^\ . . Trading with the King's enemies is, of course, illegal. 
Undertaking by contract to indemnify the King's enemies against 
loss inflicted by the King's forces is also illegal. Such things are 
manifestly unlawful ; but the words ' King's enemies ' are a neces- 
sary feature of the last proposition. Substituting the word ' aliens/ 
who may possibly or even probably become the King's enemies — 
and in this case the loss and the policy were both before there 
were any persons who could answer to that description — it would 
be, to my mind, to introduce a new principle into our law to hold 
that the probability of a war should have the same operation as 
war itself. It is war and war alone that makes trading illegal. • . . 
I only desire to add that the authorities refened to in the argu- 
ment do not justify the proposition that expected wars render 
a contract illegal between citizens of the two nations between 
whom war is anticipated ; and to lay down such a rule would be 
to establish an entirely new case for which there is no authority 
in the law." 

Lord Macnaghten said : *^ I think the learned counsel for the 
respondent was right in saying that the law recognises a state of 
peace and a state of war but that it knows nothing of an inter- 
mediate state which is neither the one thing nor the other — 
neither peace nor war. In every community it must be for the 
supreme power, whatever it is, to determine the policy of the 
community in regard to peace and war. It is not, I think, for 
private individuals to pronounce upon the foreign relations of 
their sovereign or their country and to measure their own lespon- 
sibiUties aiising out of civil contracts with foreigners by a standard 



172 NON-INTERCOURSE WITH THE ENEMY 

of public policy which they set up for themselyeBy even though 
their views may be right in the abstract and might possibly find 
acceptance with a jury of their countr]nnen if such a questioii 
were within the competence of such a tribunal. Public policy, 
in my opinion, requires a good citizen in matters of this sort to 
conform to the rule and guidance of the State. However critical 
may be the condition of affairs, however imminent war may be, 
if and so long as the Government of the State abstains from 
declaring or making war or accepting a hostile challenge there 
is peace — ^peace with all attendant consequences — for all its 
subjects. 

" The result, therefore, in the present case is that, however 
hostile the intentions of the South African Republic may have 
been at the moment when this gold was seized, the seizure must 
be treated as a seizure in time of peace between the Republic 
and this country." 

Lord Davey in the same case said : 

'' My Lords, there are three rules which are established in our 
common law. The first is that the Eing^s subjects cannot trade 
with an alien enemy, i.e, a person owing allegiance to a Govern- 
ment at war with the King, without the King's licence. . . . 
Every contract made in violation of this principle is void, and 
goods which are the subject of such a contract are liable to 
confiscation. The second principle is a corollary from the first, 
but is also rested on distinct grounds of pubhc policy. It is 
that no action can be maintained against an insurer of an enemy's 
goods or ships against capture by the British Grovemment. One 
of the most effectual instruments of war is the crippling of the 
enemy's commerce, and to permit such an insurance would be 
to relieve enemies from the loss they incur by the action of 
British arms, and would, therefore, be detrimental to the interests 
of the insurer's own country. The principle equally applies 
where the insurance is made previously to the commencement 
of hostilities, and was, therefore, legal in its inception, and 
whether the person claiming on the policy be a neutral or even 
a British subject if the insurance be effected on behalf of an 



NON'INTERCOURSE WITH THE ENEMY 173 

alien enemy. The third role is that, ii a loss has taken place 
befoie the commencement of hostilities, the right of action on a 
policy of insurance by which the goods lost weie insured is 
suspended during the continuance of war and revives on the 
restoration of peace.'' 
Finally, Lord Lindley's remarks may be quoted : 
** War produces a state of things giving rise to well-known 
special rules. It prohibits all trading with the enemy except 
mth the Royal licence, and dissolves all contracts which involve 
such trading: see Esposito v. Boioden, 7 E. & B. 781. But 
threatened war or anticipated war or imminent war is peace, 
which may not after all result in war ; and to apply the rules 
of war to insurances against loss before war breaks out would 
paralyse commerce, and often without any real necessity. Is it 
for the interest of this country to dislocate trade because inter- 
national relations are strained and war appears probable to the 
public, who do not know and cannot know the real views and 
resolutions of the Governments concerned ? It must be remem- 
bered that contracts of insurance are not by any means the 
only contracts which have to be considered in this connection : 
what affects them affects contracts of sale and contracts of 
carriage both by land and sea, and in fact affects the whole 
external commerce of this country. 

*' My Lords, where a policy of insurance is not void ab inUio, 
and a loss from one of the perils insured against happens before 
war is declared or breaks out, what defence can be offered to an 
action upon it T I know of none except where the loss is occa- 
sioned by British capture followed by war. Of course, if war 
breaks out before the action is brought or before it is over, the 
war suspends its prosecution, for an alien enemy cannot sue in 
this country : Le Bret v. PapiUon (1804), 4 East 602. Your 
Lordships are asked to invent a new defence unheard of before, 
and to say that every policy on a foreigner's property abroad is 
subject to the implied condition that it shall not be seized by 
his own Gbvemment in order to be used against this country if 
war breaks out. Such a doctrine, I venture to think, woul() 



174 NON-INTERCOURSE WITH THE ENEMY 

paialyae legitimate tiade and be entiiely apunst the iuteiests of 
this coantry." 



Note. — ^niifl CMe iUnitnteB the tendency of the Gonrte to-day to intoquret 
the mle againit trmdiog with enemy eabjecta as narrowly as poeaible ao aa 
to uphold the validity of contractB whkh may have been made in contem- 
plation o£ war with this coantry bat o£ which the effect was completed 
before war actually broke out^ This case is alao notable for the fact that 
the reapondents, though an alien enemy corporation, were allowed to sue 
while hostilities were proceeding. U the parties are desiraas of obtaining 
a decision on the merits of the case the rule against enemy subjects sueing 
and being sued may be waived. An alien enemy may, accordiog to Jgi^Kah 
law, be sued in our Courts during the hostalitles,thoagh he cannot normally 
sue [AWreM v. Sussman^ 2 V. and B. 324). 



CHAPTER XIV. 

ENEMY CHARACTER. 

Cf, Oppenheim, vol. ii. as. 87-92 ; Lawrence, 147-169 ; HaU, 
p. 490 ff. ; Westlake, vol. ii. pp. 140-151. 

THE ''INDIAN CHIEF/' i8oz. 

3 G. Bobinson, 12. 

( x) A neutral merchant residing in a belligerent country is to be 
regarded as a belligerent trader ; but the moment he 
puts himseld in motion bona fide to return to his native 
country sine animo revertendi, he loses his belligerent 
character and resumes that of a neutral. 

(2) A neutral merchant living under British protection in 
the Orient is accounted as having a British domicile 
for war purposes. 

Case. — ^This was the case of a ship and cargo seized in the 
harbour of Cowes, on a voyage from Batavia to Hamburg, in 
which two questions arose, respecting the national character 
of the owners of the ship and cargo respectively, both American 
citizens residing in British territory, and charged with trading 
with the enemy. 

JuAgmeni (Sir W. Scott). — ^^ This is the case of a ship seized 
in the port of Cowes, where she came to receive orders respecting 
the delivery of a cargo taken in at Batavia, with a professed 
original intention of proceeding to Hamboi^ ; but on coming 
into this country for particular orders, the ship and cargo were 
seized in port. It does not appear clear to the Court that it 

175 



176 ENEMY CHARACTER 

might not be a cargo intended to be delivered in this country, 
as many such cargoes have been, under the Dutch property Act : 
I mention this to meet an observation that has been thrown out, 
*' that it is doubtful whether the ship might not be confiscable 
on the ground of being a neutral ship coming from a colony of 
the enemy, not to her own ports or the ports ;of this country/ 
I assume it as a demonstrated fact in the case that the caii^ was 
to be delivered at Hamburg. The vessel sailed in 1795, and as 
an American ship with an American pass, and all American 
documents ; but nevertheless if the owner really resided here, 
such papers could not protect his vessel ; if the owner was 
resident in England, and the voyage such as an English mer- 
chant could not engage in, an American residing here, and carry- 
ing on trade, could not protect his ship merely by putting Ameri- 
can documents on board ; his interest must stand or fall according 
to the determination which the Court shall make on the national 
character of such a person. 

^' There are two propositions which are not to be controverted : 
that Mr. Johnson is an American generally by birth, which is the 
circumstance that first impresses itself on the mind of the Court ; 
and also by the part which he took on the breaking out of the 
American War. He came hither when both countries were open 
to him ; but on the breaking out of hostilities, he made his 
election which country he would adhere to, and in consequence 
thereof went to France. As to the doubt that has been suggested, 
whether he would be deemed an American, not having been 
personally there at the time of the declaration of the independence 
of that country, I think that is sufficiently cleared up by the 
circumstances of his being adopted as such by the act of the 
American Gk>venmient, declaring him and his family to be 
American subjects, and by the official character which that 
Government has entrusted to him ; I am of opinion, therefore, 
that he has not lost the benefit of his native American character. 
He came, however, to this country in 1783, and engaged in trade, 
and has resided in this country till 1797 ; during that time he 
was undoubtedly to be considered as an English trader ; for no 



ENEMY CHARACTER 177 

position is more established than this, that if a person goes 
into another country, and engages in trade, and resides there, 
he is, hj the law of nations, to be considered as a merchant of 
that country ; I should therefore have no doubt in pronouncing 
that Mr. Johnson was to be considered as a merchant of this 
country at the time of sailing of this vessel on her outward voyage. 
That leads me to take a view of the circumstances of this case : 
the ship went out in 1795 with Mr. Hewlet on board, and Mr. 
Johnson says, * he sent out Mr. Hewlet as supercargo, and put 
the vessel under his control to take freight for America, but 
that his designs were frustrated by various circumstances ' ; 
and the ship actually went to Madeira, liadras, Tranquhar, 
and Batavia, and from thence to Cowes, where she was 
arrested. 

** Now there can be no doubt that if Mr. Johnson had continued 
where he was at the time of sailing, if he had remained resident 
in England, it must be considered as a British transaction, and 
therefore a criminal transaction, on the common principle that 
it is illegal in any person owing an allegiance, though temporary, 
to trade with the public enemy. But it is pleaded that he had 
quitted this country before the capture, and that he had done 
this in consequence of an intention he had formed of removing 
much earlier, but that he had been prevented by obstacles that 
obstructed his wish ; to this effect the letter of March 1797 is 
exhibited, which must have been preceded by private correspond- 
ence and application to some of his creditors. It does, I think, 
breathe strong expressions of intention, and of an ardent desire 
to get over the restraint that alone detained him ; and it affords 
conclusive reason to believe that if he had been a free man, 
and at liberty to go where he pleased, he would have removed 
long before ; and that he was detained here as a hostage, as he 
describes himself, to his creditors, on motives of honour creditable 
to his character. On September 9, 1797, he did actually retire ; 
of the sincerity of his quitting this country there can hardly be 
a doubt entertained ; it is almost impossible to represent stronger 
or more natural grounds for such a measure ; and I do not 

12 



178 ENEMY CHARACTER 

think the Court runB any risk of encountering a fraudulent pre- 
tension, put forward to meet the circumstances of the moment, 
without anything of an original and bona fide intention at the 
bottom of it. 

" The ship arrives a few weeks after his departure ; and taking 
it to be clear that the national character of Mr. Johnson as a 
British merchant was founded in residence only, that it was 
acquired by residence and rested on that circumstance alone, 
it must be held that from the moment he turns his back on the 
country where he has resided, on his way to his own country he 
was in the act of resuming his original character, and is to be 
considered as an American. The character that is gained by 
residence ceases by residence ; it is an adventitious character 
which no longer adheres to him from the moment that he puts 
himself in motion, bona fide, to quit the country, sine animo 
revertendi. The Courts that have to apply this principle have 
applied it both wa3rs, unfavourably in some cases and favourably 
in others. This man had actually quitted the country. Stronger 
was the case of Mr. Curtissos (The Snelie Zeylder, Lds. Ap. 25, 
1783) : he was a British-bom subject that had been resident 
in Surinam and St. Eustatius, and had left those settlements 
with an intention of returning to this country ; but he had got 
no farther than Holland, the mother country of those settlements, 
when the war broke out. It was determined by the Lords of 
Appeal that he was in itinere, that he had put himself in motion, 
and was in pursuit of his native British character ; and as such, 
he was held to be entitled to the restitution of his property. So 
heie, this gentleman was in actual pursuit of his American 
character ; and, I think, there can be no doubt that his native 
character was strongly and substantially revived, not occasionally 
not colourably, for the mere purpose of the present claim ; and 
therefore I shall restore the ship.'' 

(2) As regards the cargo on the same vessel, , a claim was 
put in by Mr. Millar, who was described as Amencan Consul at 
Calcutta. In rejectmg his claim and condemning the cargo. Lord 
fltowell laid down the general principles as to the character of 



ENEMY CHARACTER 17^ 

^>fc— .^ ■■ ^ ■■ .1 » .1 .III III l» II III W I ■ 

persons having a trade domicile in the East and as to the position 
of a consul canying on commerce : 

*^ On the part of the claimant many grounds have been taken. 
I am first reminded that he was American consul, though it is 
not distinctly avowed that his consular character is expected to 
protect him ; nor could it be with property or effects, it being 
a point fully established in these Courts [i.e. the Admiralty Court] 
that the character of consul does not protect that of merchant 
united in the same person. 

^^ . . . Another ground is that he was not resident in the 
British territory, for that the sovereign of the country is not in 
possession of Bengal with the same imperial rights as belong 
to the Mogul. It is contended on this point that the King of 
Oreat Britain does not hold the British possessions in the East 
Indies in right of sovereignty, and therefore that the character 
of British merchant does not necessarily attach to a foreigner 
locally resident there. But taking it that such a paramount 
sovereignty on the part of the Mogul princes really exists, and 
that Great Britain cannot be deemed to possess a sovereign right 
there ; still it is to be remembered that wherever even a mere 
factory is founded in the Eastern parts of the world, European 
persons trading under the shelter and protection of their estab- 
lishments are conceived to take the national character from that 
association under which they live and carry on their commerce. 
It is a rule of the law of nations applying peculiarly to theise 
countries, and it is different from what prevails ordinarily in 
Europe and the western parts of the world, in which men take 
their present national character from the general character of 
the country in which they are resident ; and this distinction 
arises from the nature and habit of the countries. In the western 
parts of the world alien merchants mix in the society of natives 
. . . and they become incorporated to almost the full extent. 
But in the East from the oldest time an immiscible character has 
been kept up : foreigners are not admitted into the general body 
and mass of the society of the natives ; they continue strangers 
and sojourners, as all their fathers were; not acquiring any 



i8o ENEMY CHARACTER 

national character under the general sovereignty of the country, 
and not trading under any recognised authority of their original 
country, they have been held to derive their present character 
from that of the association or factory under whose protection 
they live and carry on their trade/* 

Nate, — ^The law as to oommeroial domicile is not applied as striotfy 
to-day. The great American ju(]ge, Marshall, doubted its ezpedienoy in the 
Venu9 (8 Granoh 263 at p. 279), and in the case of the Niffd Odd Mining 
Company v. Hoade (1001, 2 K.B. 849) Mathew J. said: "The opinion 
would seem to be that a sabjeot of our country, surprifled by a deobzation 
of war in the country where he has a commercial domicile, ought to have 
time allowed him to free himself from his commercial engagements and 
effect a removal of his property. ' ' The plaintifh were a company registered 
in a Britiflh colony and owning a gold mine in the Transvaal When war 
was declared between England and the Transvaal some of their gold 
was seised by the Transvaal Government The gold was consigned to an 
English company and they brought an action on the policy to recover in 
respect of the seizure. It was uiged that when the war broke out the 
policy ceased to be SfiEective because the subject-matter of tiie insurance 
must be deemed to have been enemies' property. But the Court would 
not accede to this axgument nor allow that the gold became enemies* 
property merely by reason of the commercial domicile of the company when 
war was deolarod. 

THE ''HARMONY/' 1800. 

2 C. Rob. 322. 

Time is the most important ingredient in constituting trade 
domicile for the purpose of determining character. 

Case. — ^The Harmony was an American vessel in which a claim 
had been reserved for part of the cargo, in order to determine 
the national character of 0. W. Murray, partner of a house of 
trade in America, but personally resident in France. 

Mr. Murray had gone to France in 1794 as supercargo of a 
vessel, in behalf of his firm, to dispose there of the cargo ; but 
with the exception of a brief visit to America in 1795-96, he 
continued to reside in France, and to receive and dispose of 
cargoes sent out from New York, and it was urged that he had 
therefore French belligerent character. 



ENEMY CHARACTER i8i 

Judgment (Sir W. Scott). — '^ This is a question which arises 
on several parcels of property claimed on behalf of G. W. Murray ; 
and it is in all of them a question of residence or domicile, which, 
I have often had occasion to observe, is in itself a question of 
considerable difficulty, depending on a great variety of circum- 
stances, hardly capable of being defined by any general precise 
rules. The active spirit of commerce now abroad in the world 
still further increases this difficulty by increasing the variety of 
local situations, in which the same individual is to be found at 
np great distance of time ; and by that sort of extended circu- 
lation, if I may so caU it, by which the same transaction commu- 
nicates with different countries, as in the present cases, in which 
the same trading adventures have their origin (perhaps) in 
America, travel to France, from France to England, from 
England back to America again, without enabling us to assign 
accurately the exact legal effect of the local character of every 
particular portion of this divided transaction. 

'' Of the few principles that can be laid down generally, I may 
venture to hold that time is the grand ingredient in constituting 
domicile. I think that hardly enough is attributed to its effects ; 
in most cases it is unavoidably conclusive ; it is not infrequently 
said that if a person comes only for a special purpose, thai shall 
not fix a domicile. This is not to be taken in an unqualified 
latitude, and without some respect had to the time which such 
a purpose may or shall occupy ; for if the purpose be of a nature 
that may^ probMy, or does actually detain the person for a 
great length of time, I cannot but think that a general residence 
might grow upon the special purpose. 

** A special purpose may lead a man to a country where it 
shall detain him the whole of his life. A man comes here to follow 
a lawsuit, it may happen, and indeed is often used as a ground 
of vulgar and unfounded reproach (unfounded as matter of just 
reproach though the fact may be true) on the laws of this country, 
that it may last as long as himself. Some suits are famous in 
our juridical history for having even outlived generations of 
0iutoxs. I capnot but thipk that against such a long xesideiice^ 



i82 ENEMY CHARACTER 

the plea of an original special purpoee conld not be averred ; it 
mnst be inferred in such a case that other purposes forced 
themselves upon him and mixed themselves with his original 
design, and impressed upon him the character of the country 
where he resided. 

*' Suppose a man comes into a belligerent country at or before 
the beginning of a war ; it is certainly reasonable not to bind 
him too soon to an acquired character, and to allow him a fair 
time to disengage himself ; but if he continues to reside during 
a good part of the war, contributing, by payment of taxes, and 
other means, to the strength of that country, I am of opinion 
that he could not plead his special purpose with any effect 
against the rights of hostility. If he could, there would be no 
sufficient guard against the fraud and abuses of masked, pre- 
tended, original, and sole purposes of a long-continued residence. 
There is a time which mil estop such a plea ; no rule can fix the 
time a priori, but such a time there imut be. 

" In proof of the efficacy of mere time, it is not impertinent to 
remark that the same quantity of business which would not fix 
a domicile in a certain space of time would, nevertheless, have 
that effect if distributed over a large space of time. Suppose an 
American comes to Europe with six contemporary cargoes, of 
which he had the present care and management, meaning to 
return to America immediately ; they would form a different 
case from that of the same American coming to any particular 
country of Europe with one cargo, and fixing himself there, to 
receive five remaining cargoes, one in each year successively. 
I repeat that time is the great agent in this matter ; it is to be 
taken in a compound ratio, of the time and the occupation, with 
a great preponderance on the article of time : be the occupation 
what it may, it cannot happen, but with few exceptions, that 
mere length of time shaU not constitute a domicile." 

Note, — The Declaration of London has not altered the mle in England as 
to enemy oharaoter except in minor points : by Articles 57 & 58 tiie 
neutral or enemy character of a vessel is determined by the flag she is 
entitled to fly, and the character of goods bythe neutral or enemy character 
pf the owner, and this depends by Epglish law on his commercial domicile. 



ENEMY CHARACTER 183 



Tbanspbr of Enemy Vessels to Neutrals. 

C/. Oppenheim, s. 91 ; Lawrence, 156 ; Hall, p. 501 ; Westlake, 

vol. ii. p. 147. 

THE "BALTICA*' (SORENSEN ▼. THE 

QUEEN), 1857. 

11 Mooie, Privy Council Cases, 141. 

A bona fide sale by an enemy to a neutral when war is 
imminent and while the vessel is in transit is valid, if 
the vessel comes into possession of the purchaser before 
seizure. 

C€ue, — ^The BdUica was a Russian ship which in March 1854, 
shortly before the breaking out of war between Russia and Great 
Britain, was sold by Sorensen senior, a merchant domiciled in 
Russia, to his son, who was domiciled in Denmark. At the time 
of the sale the vessel was proceeding from libau to Copenhagen, 
and on her arrival at the latter port she was delivered over to 
the appeUants' agents and her Russian flag was changed for the 
Danish flag. Subsequently she was seized by an English cruiser 
and condemned as an enemy vessel. 

The Judicial Committee of the Privy Council allowed the appeal 
against the sentence and ordered her release. 

Judgment (Rt. Hon. Pemberton Leigh, afterwards Lord Eings- 
d^wn). — ^^ The general rule is open to no doubt. A neutral, while 
a war is imminent or after it has commenced, is at liberty to 
purchase either goods or ships (not being ships of war) from the 
belligerents, and the purchase is vahd, whether the subject of it 
be lying in a neutral port or an enemy's port. During a time of 
peace without prospect of war, any transfer which is su£Bcient 
to transfer the property between the vendor and vendee is also 
good against the captor, if war afterwards unexpectedly breaks 
out. But in case of war, either actual or imminent, this rule is 
subject to qualification, and it is settled in such a case that a 



i84 ENEMY CHARACTER 

mere transfer by documents, which would be sufficient to bind 
the parties, is not sufficient to change the property as against 
captors as long as the ship or goods remain in transitu. 

^' The only question of law which can be raised in this case 
is not whether a transfer of ship or goods in transitu is ineffectual 
to charge the property as long as the state of transitus lasts, but 
how long that state continues and when and by what means it is 
terminated. 

*' In order to determine the question, it is necessary to con- 
sider upon what principle the rule rests and why it is that a sale 
which would be perfectly good if made while the property was 
at a neutral port or in an enemy's port, is ineffectual if made 
while the ship is on her vojrage from one port to another. There 
seem to be but two possible grounds of distinction. The one is 
that while the ship is on the seas the title of the vendee cannot 
be completed by the actual delivery of the vessel or goods ; the 
other is that the ship and goods having incurred the risk of 
capture by putting to sea, shall not be permitted to defeat the 
inchoate right of capture by the belligerent Powers until the 
vojrage is at an end. 

^^The former, however, appears to be the true ground on 
which the rule rests. Such transactions during war or in contem- 
plation of war are so likely to be merely colourable, to be set up 
for the purpose of misleading or defrauding captors — ^the diffi- 
culty of detecting frauds, if mere paper transfers are held valid, 
is so great — ^that the Courts have laid down as a general rule 
that such transfers without actual delivery shall be insufficient — 
that, in order to defeat the captors, the possession as well as 
the property must be changed before the seizure. It is true that 
in one sense the ship and goods may be said to be in transitu 
till they have reached the original port of destination ; but their 
Lordships have found no case where the transfer was held to be 
inoperative after the actual delivery of the property to the 



owner. . . ." 



Note, — ^The Declaration of London deals likewise with this question of 
belUgecent rights against neutrals [Articlee 55 & 56) and establishes fixed 



ENEMY CHARACTER 185 

rules as to the validity or invalidity by tranafera made during or within a 
certain period from the commencement of hostilities. There is an absolute 
presumption that a transfer is void if it is made during a voyage after the 
outbreak of hostilities. And by the established English practice, if a 
belligerent subject retains a share in a vessel transferred to a neutral or 
a lien, the share or the lien may be confiscated [The Arid, 11 Moo. 119). 



THE "SALLY," 1795. 

3 C. Robinson, 300, note. 

Merchandise shipped to become the property of the enemy on 
arrival, if taken in transitu, is to be condemned as enemy's 
property. Supposing it was to become the property of 
the enemy on delivery, capture is considered as delivery. 

Case. — ^The SaUy was a case of a cargo of com shipped March 
1793 by Steward and Plunket, of Baltimore, ostensibly for the 
account and risk of Conyngham, Nesbit and Co., of Philadelphia, 
and consigned to them or their assigns. By an endorsement of the 
bill of lading, it was farther agreed that the ship should proceed 
to Havre de Grace, and there await, such time as might be neces- 
sary, the orders of the consignee of the said cargo (the Mayor of 
Havre) either to deliver the same at the port of Havre or proceed 
therewith to any one port without the Mediterranean. 

Amongst the papers was a concealed letter from Jean Temant, 
the Minister of the French RepubUc to the United States, in 
which he informs the Minister of Foreign Afiairs in France : " The 
house of Conyngham and Co., already known to the ministers 
by their former operations for France, is charged by me to procure 
without delay a consignment of 22,000 bushels of wheat, 8000 
barrels of fine flour, 900 barrels of salted beef from New England. 
... It has been agreed, considering the actual reports of war, 
that the whole shall be sent as American property to Havre and 
to Nantes, with power to our Oovemment of sending the ships 
to other ports conditional on the usual freight. As you have 
not signified to me to whom these cargoes ought to be delivered 



i86 ENEMY CHARACTER 

in our ports, I shall provide each captain with a letter to the 
mayor of the place." 

Judgment, — **^ It has always been the rule of the Prize Courts 
that property going to be delivered in the enemy's countiy, and 
under a contract to become the property of the enemy imme- 
diately on arrival, if taken in transitu, is to be considered as 
enemy's property. Where the contract is made in time of peace 
or without any contemplation of a war, no such rule exists ; 
but in a case like the present, where the form of the contract was 
framed directly for the purpose of obviating the danger appre* 
hended from approaching hostilities, it is a rule which unavoid- 
ably must take place. The bill of lading expresses account and 
risk of the American merchants; but papers alone make no 
proof, unless supported by the depositions of the master. Instead 
of supporting the contents of his papers, the master deposes 
* that on arrival the goods would become the property of the 
French Government,' and all the concealed papers strongly 
support him in tjiis testimony. The evidenlia rei is too strong 
to admit further proof. Supposing that it was to become the 
property of the enemy on delivery, capture is considered as 
delivery. The captors, by the rights of war, stand in the place 
of the enemy, and are entitled to a condemnation of goods passing 
under such a contract, as of enemy's property. On every prin- 
ciple on which Prize Courts can proceed, this cargo must be 
considered as enemy's property." 

NcfU. — ^Tbe rule that goods shipped in time of war or in contemplatioa 
thereof are held to belong to the conagneeand if the consignee is an enemy 
are confiscated was laid down in The Packet de BUboa (1799, 2 0. Rob. 133). 
The Declaration of London adopts this rale in Article 60 which provides 
that enemy goods on board an enemy vessel retain their enemy cbaraoter 
till they reach their destination, notwithstanding any tianafer. 



CHAPTER XV. 
EFFECTS OF MILITARY OCCUPATION- 

Cf. Oppenheim, ii. ss. 169-171 ; Lawrence, 178-179 ; Hall, pp. 
464 S. ; Westlake, vol. ii. pp. 43 S. 

UNITED STATES v. RICE, 1819. 

United States Supieme Court (4 Wheaton 246). 

A military occupant is entitled to exercise regular rights of 
goyernment, and his acts should be upheld by the 
territorial sovereign when he resumes possession of the 
occupied territory. 

Case, — ^Doring the war of 1812 between England and the 
United States the port of Castine, in Maine, which is near the 
Canada border, was captured by the British in 1814. They 
established a custom-house and imposed duties upon goods 
imported there. Citizens of the United States who were domiciled 
in Castine remained during this occupation, imported goods and 
paid duty upon them to the British authorities. In 1815, after 
the ratification of the Treaty of Peace, the United States resumed 
possession of the port, and the collector of that district claimed 
that duties were payable to the United States upon the goods 
which remained in the port and had not been consumed. The 
Supreme Court of the United States, however, held that trans- 
actions under the authority of the British law which took place 
and were consummated during the occupation were valid. 

Juigmewt. — ^Bfr. Justice Story thus stated the rule : 

^\ , . Under these circumstances we are of opinion that 

187 



188 EFFECTS OF MILITARY OCCUPATION 

the claim for duties cannot be Bnstained. By the conquest and 
militaiy occupation of Castine, the enemy acquired that firm 
possession which enabled him to exercise the fullest rights of 
sovereignty over that place. The sovereignty of the United 
States over the territory was, of course, suspended, and the laws 
of the United States could no longer be rightfully enforced there, 
or be obligatory upon the inhabitants who remained and sub- 
mitted to the conquerors. By the surrender the inhabitants 
passed under a temporary allegiance to the British Government, 
and were bound by such laws, and such only, as it chose to 
recognise and impose. From the nature of the case, no other 
laws could be obligatory upon them ; for where there is no 
protection or allegiance, or sovereignty, there can be no claim 
to obedience. Castine was, therefore, during this period, so far 
as respected our revenue laws, to be deemed a foreign port ; 
and goods imported into it by the inhabitants were subject to 
such duties only as the British Government chose to require. 
Such goods were, in no correct sense, imported into the United 
States. The subsequent evacuation by the enemy, and resump- 
tion of authority by the United States, did not, and could not, 
change the character of the previous transactions." 

NoU, — ^The administrative righta of a military oooupant do not however 
extend to the degree of full sovereignty. He cannot, for example, require 
the Courts to exercise their functions in the name of the occupying Power or 
compel the population of the occupied territory to take the oath of alk^iance 
to the military Power. The Hague Laws of War drawn up by the Peace 
Cronferenoe of 1000 provide (Rule IXIII) that the military occupant is to 
take all possible steps to ensure public order, while respecting, unless 
absolutely prevented, the laws in force in the country. 



EFFECTS OF MILITARY OCCUPATION 189 

THE '' GERASIMO/' 1868. 
11 Moore P.C. 88. 

A temporary occupation of a territory by an enemy's force 
does not of itself necessarily convert the territory so 
occupied into hostile territory, or its inhabitants into 
enemies. 

Case. — The Oerasimo was a vessel sailing under Wallachian 
C0I0UI8 which was seized by an English cruiser during the Crimean 
War. It was claimed that she was a good prize, because Wallachia, 
being at the time occupied by Russian troops, was hostile terri- 
tory and its inhabitants were enemies. 

The Lords of the Privy Council rejected the claim and ordered 
the release of the vessel. 

Judgment. — ^* Upon the appeal, the first question is whether 
the owners of the cargo, in regard to this claim, are to be con- 
sidered as alien enemies ; and for this purpose it will be necessary 
to examine carefully both the principles of law which are to 
govern the case and the nature of the possession which the 
Russians held of Moldavia at the time of this shipment. Upon 
the general principles of law applicable to this subject, there can 
be no dispute. The national character of a trader is to be decided, 
for the purposes of the trade, by the national character of the 
place in which it is carried on. If a war breaks out, a foreign 
merchant carrying on trade in a belligerent coimtry has a reason- 
able time for transferring himself and his property to another 
country. If he does not avail himself of the opportunity, he is 
to be treated, for the purpose of the trade, as a subject of the 
Power under whose dominion he carries it on, and, of course, as 
an enemy of those with whom that Power is at war. Nothing 
can be more just than this principle ; but the whole foundation 
of it is that the country in which the merchant trades is enemy's 
country. Now the question is, what are the circumstances neces- 
sary to convert friendly or neutral territory into enemy's terri- 



190 EFFECTS OF MILITARY OCCUPATION 

toxy 7 For this purpose, is it sufficient that the territory in 
question should be occupied by a hostile force, and subjected, 
during its occupation, to the control of the hostile Power, so 
far as such Power may think fit to exercise control ? or is it 
necessary that, either by cession or conquest or some other means 
it should, either permanently or temporarily, be incorporated 
with, and form part of, the dominions of the invader at the 
time when the question of national character arises ? It appears 
to their Lordships that the first proposition cannot be main- 
tained. With respect to the meaning of the term ^ dominions of 
the enemy,' and what is necessary to constitute dominion, Lord 
Stowell has in several cases expressed his opinion. In the case 
of the Fama (5 Bob. 115) he lays it down that, in order to com- 
plete the right of property, there must be both right to the thing 
and possession of it both jus ad rem and jus in re, ' This,' he 
observes, ' is the general law of property, and applies, I conceive, 
no less to the ^* right of territory " than to other rights. Even 
in newly discovered countries when a title is meant to be estab- 
lished for the first time, some act of possession is usually done, 
and proclaimed as a notification of the fact. In transfer, surely, 
when the former rights of others are to be superseded and extin- 
guished, it cannot be less necessary that such a change should be 
indicated by some public act, that all who are deeply interested 
in the event, as the inhabitants of such settlements, may be 
informed under whose dominion and under what law they are 
to live.' The importance of this doctrine will appear when the 
facts with respect to the occupation of the principalities come 
to be examined. That the national character of a place is not 
changed by the mere circumstance that it is in the possession 
and under the control of a hostile force is a principle held to be 
of such importance that it was acted upon by the Lords of Appeal 
in 1808, in the St. Domingo cases of the Dart and Happy Couple^ 
when the rule operated with extreme hardship. 

" On the other hand, when places in a friendly country have 
been seized by and are in possession of the enemy, the same 
doctrine has been held. While Spain was in the occupation of 



EFFECTS OF MILITARY OCCUPATION 191 

Fiance and at war with Qieat Britain the Spanish Insoiieotion 
broke out, and the British Grovemment issued a proclamation 
that all hostilities against Spain should immediately cease. 
Great part of Spain, however, was still occupied by the French 
troops, and, amongst others, the port of St. Andero. A ship called 
the Santa Anna was captured on a voyage, as it was alleged, to 
St. Andero, and Lord Stowell (1 Edw. 182) observed : ' Under 
these public declarations of the State, establishing this general 
peace and amity, I do not know that it would be in the power 
of the Court to condemn Spanish property, though belonging to 
persons resident in those parts of Spain which are at the present 
moment under French control, except under circumstances 
which would justify the confiscation of neutral property.' " 
After citing further cases the judgment continued : 
" These authorities, with the other cases cited at the Bar, seem 
to establish the proposition that the mere possession of a terri- 
tory by an enemy's force does not of itself necessarily convert 
the territory so occupied into hostile territory, or its inhabitants 
into enemies. From the nature of the possession of Moldavia 
by the Russians at the time when the shipment in question was 
made, it seems impossible to hold that, by means of an occupa- 
tion so taken, so continued, and so terminated, Moldavia ever 
became part of the dominions of Russia, and its inhabitants 
subjects of Russia, and, therefore, enemies of those with whom 
Russia was at war. The utmost to which the occupation could 
be held to amount was a temporary suspension of the 8uzerainet6 
of the Porte, and a temporary assumption of that suzeraineU by 
Russia ; but the national character of the country remained 
unaltered, and any intention to alter it was disclaimed by Russia. 
At what period, then, could foreigners dwelling there be said 
to have that notice of a change in the dominion and in the laws 
under which they were to live to which Lord Stowell refers in 
the case of the Fama f ^ At what period were they under the 
obligation of changing their domicile in it, under the penalty, 
if they omitted to do so, of being treated as enemies of Qreat 

^ See abwe^ p. 61. 



192 EFFECTS OF MILITARY OCCUPATION 

Britain? Moldavia and Wallachia weie not treated by the 
Porte as enemies, and it would be singular if these countries, 
though not held to be enemies by Turkey, should be held to be 
enemies of the allies of Turkey. That the Wallachian flag was 
recognised, both by the Russian and Turkish authorities, suffi- 
ciently appears from the documents before the Court ; and their 
Lordships have ascertained by communication with the Foreign 
Office the other facts above stated ; and, further, that no act 
was ever done by the British Gk>vemment to change the national 
character of the provinces in relation to Great Britain ; and 
without some such act the occupation by the Russians, under 
the circumstances stated, could not produce such an effect." 

NaU. — ^ThiB reasoning would probably apply to the yeasela and goods 
of the inhabitants of colonial proteotoiates of the Great Powers in time 
of war. 8te the case of the Ionian ships {above, p- 19), where it was held that 
that the subjects of a protected country do not necessarily become enemies 
of the enemies of the protecting State. 

The inhabitants of the occupied territory, though they may be subjects 
of the occupying Power, are not by Engli^ law justified in ftssiBting the 
occupant in his operations ; and they may be tried for treason if they do so 
and are captured by the former sovereign. Of. De Jager v. Attorney- 
Oeneral of Natal (above, p. 142). 



CHAPTER XVI. 
LAW OF NEUTRALITY. 

C/. Oppenheim, as. 291 and 311 ; Lawrence, 223 ; Hall, 607 ff. 

Westlake, vol. ii. pp. 181-200. 

THE FOREIGN ENLISTMENT ACT, 1870. 

Following the American Civil War and the claims made 
against Great Britain at its conclusion by the Federal Govern- 
ment on account of the alleged negligence of this country in 
regard to its neutral obligations, a very drastic Foreign Enlist- 
ment Act was passed in 1870 to reinforce the powers of the State, 
which were given by an Act of 1819, to prevent violations of its 
neutrality by its subjects. The material parts of the Act are 
here set out as they appear embodied in the proclamation which 
is regularly issued by the King at the outbreak of a war in which 
Great Britain is neutral. The proclamation chosen is that issued 
at the opening of the Turco-Balkan War in 1912, and it illustrates 
how the Foreign Enlistment Act is applied : 

By the KING. 

A PROCLAMATION. 
QEOSOE R.I. 
Whereas We are happily at Peace with all Sovereigns, Powers, 
and States : 

And whereas a State of War unhappily exists between His 
Imperial Majesty The Sultan of Turkey and His Majesty The 
of the Bulgarians ; between His Imperial Majesty Th$ 

193 13 



194 LAW OF NEUTRALITY 

Sultan of Turkey and His Majesty The King of the Hellenes ; 
between His Impeiial Majesty The Sultan of Turkey and His 
Majesty The Eang of Montenegio ; and between His Imperial 
Majesty The Sultan of Turkey and His Majesty the King of 
Servia ; and between their respective Subjects, and others 
inhabiting within their Countries, Territories, or Dominions : 

And whereas We are on Terms of Friendship and amicable 
intercourse with each of these Powers, and with their several 
Subjects, and others inhabiting within their Countries, Terri- 
tories, or Dominions : 

And whereas great Numbers of Our Loyal Subjects reside and 
carry on Commerce, and possess Property and Establishments, 
and enjoy various Bights and Privileges, within the Dominions of 
each of the aforesaid Powers, protected by the Faith of Treaties 
between Us and each of the aforesaid Powers : 

And whereas We, being desirous of preserving to Our Subjects 
the Blessings of Peace, which they now happily enjoy, are firmly 
purposed and determined to maintain a strict and impartial 
Neutrality in the said State of War unhappily existing between 
the aforesaid Powers : 

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 govern themselves accordingly, and to 
observe a strict neutrality in and during the aforesaid War, and 
to abstain from violating or contravening either the Laws and 
Statutes of the Realm in this behalf, or the Law of Nations 
in relation thereto, as they will answer to the contrary at their 
peril : 

And whereas in and by a certain Statute made and passed in 
a Session of Parliament holden in the 33rd and 34th year of the 
reign of Her late Majesty Queen Victoria, intituled '' An Act to 
regulate the conduct of Her Majesty's Subjects during the exist- 
ence of Hostilities between Foreign States with which Her 
Majesty is at Peace," it is, among other things, declared and 
enacted as follows : — 



LAW OF NEUTRALITY 195 

** This Act shall extend to all the Dominions of Hei Majesty, 
including the adjacent teiritorial Wateis. 

'' lUegal EnUstmeni. 

'* If any Peison, without the Licence of Hei Majesty, being a 
British Subject, within or without Her Majesty's Dominions, 
accepts or agrees to accept any Commission or Engagement in 
the Military or Naval Service of any Foreign State at War with 
any Foreign State at Peace with Her Majesty, and in this Act 
referred to as a friendly State, or, whether a British Subject or 
not, within Her Majesty's Dominions, induces any other Person 
to accept or agree to accept any Commission or Engagement in 
the Military or Naval Service of any such Foreign State as 
aforesaid — 



** He shall be guilty of an Offence against this Act, and shall 
be punishable by Fine and Imprisonment, or either of such 
punishments, at the discretion of the Court before which 
the Offender is convicted ; and Imprisonment, if awarded, 
may be either with or without Hard Labour. 

" If any Person, without the Licence of Her Majesty, being 
a British Subject, quits or goes on board any Ship with a view 
of quitting Her Majesty's Dominions, with intent to accept any 
Commission or En^igement in the Military or Naval Service of 
any Foreign State at War with a friendly State, or, whether a 
British Subject or not, within Her Majesty's Dominions, induces 
any other Person to quit or to go on board any Ship with a view 
of quitting Her Majesty's Dominions with the like intent — 

*' He shall be guilty of an Offence against this Act, and shall 
be punishable by Fine and Imprisonment, or either of such 
punishments, at the discretion of the Court before which 
the Offender is convicted ; and Imprisonment, if awarded, 
may be either with or without Hard Labour. 

'* If any Peison induces any other Person to quit Her Majesty's 
Dominions or to embark on any Ship within Her Majesty's 



196 LAW OF NEUTRALITY 

Dominions under a Misiepieaentation or false Bepiesentation 
of the Service in which such Person is to be engaged, with the 
intent or in order that such Person may accept or agree to accept 
any Commission or Engagement in the Military or Naval Service 
of any Foreign State at War with a friendly State — 

" He shall be guilty of an OfEence against this Act, and shall 
be punishable by Fine and Imprisonment, or either of such 
punishments, at the discretion of the Court before which 
the Offender is convicted ; and Imprisonment, if awarded, 
may be with or without Hard Labour. 

" If the Master or Owner of any Ship, without the Licence of 
Her Majesty, knowingly either takes on board, or engages to 
take on board, or has on board such Ship within Her Majesty's 
Dominions any of the following Persons in this Act referred to 
as illegally enlisted Persons, that is to say : — 

'^ (1) Any Person who, being a British Subject within or 
without the Dominions of Her Majesty, has, without the 
Licence of Her Majesty, accepted or agreed to accept any 
Commission or Engagement in the Military or Naval Service 
of any Foreign State at War with any friendly State ; 

" (2) Any Person, being a British Subject, who, without the 
Licence of Her Majesty, is about to quit Her Majesty's 
Dominions with intent to accept any Commission or Engage- 
ment in the Military or Naval Service of any Foreign State 
at War with a friendly State ; 

" (3) Any Person who has been induced to embark under a 
Misrepresentation or false Representation of the service in 
which such Person is to be engaged, with the intent or in 
order that such Person may accept or agree to accept any 
Commission or Engagement in the Military or Naval Service 
of any Foreign State at War with a friendly State ; 

" Such Master or Owner shall be guilty of an Offence against 
this Act, and the following Consequences shall ensue» that is 
to say ;— 



LAW OF NEUTRALITY 197 

" (1) The Offender shall be punishable by Fine and Imprison- 
ment, or either of such punishments, at the discretion of the 
Court before which the Offender is convicted ; and Imprison- 
ment, if awarded, may be either with or without Hard 
Labour ; and 

^^ (2) Such Ship shall be detained until the Trial and Convic- 
tion or Acquittal of the Master or Owner, and until all 
Penalties inflicted on the Master or Owner have been paid, 
or the Master or Owner has given Security for the Payment 
of such Penalties to the Satisfaction of Two Justices of the 
Peace, or other Magistrate or Magistrates having the Autho- 
rity of Two Justices of the Peace ; and 

*' (3) All illegally enlisted Persons shall immediately on the 
Discovery of the Offence be taken on Shore, and shall not be 
allowed to return to the Ship. 

" lUegal Shipbuilding and Illegal Expeditions. 

*' If any Person within Her Majesty's Dominions, without the 
Licence of Her Majesty, does any of the following acts, that is 
to say : — 

*' (1) Builds, or agrees to build, or causes to be built, any 
Ship with intent or knowledge, or having reasonable cause 
to believe that the same shall or will be employed in the 
Military or Naval Service of any Foreign State at War with 
any friendly State ; or 

" (2) Issues or delivers any Commission for any Ship with 
intent or knowledge, or having reasonable cause to believe 
that the same shall or will be employed in the Military 
or Naval Service of any Foreign State at War with any 
friendly State ; or 

** (3) Equips any Ship with intent or knowledge, or having 
reasonable cause to believe that the same shall or will be 
employed in the Military or Naval Service of any Foreign 
State at War with any biendly State ; or 

*^ (4) Despatches, 01 causes or allows to be despatched, any 



198 LAW OF NEUTRALITY 

Sliip with intent or knowledge, or having reasonable canse 
to believe that the same shall or will be employed in the 
Military or Naval Service of any Foreign State at War with 
any friendly State ; 

" Such Person shall be deemed to have committed an Offence 
against this Act, and the following Consequences shall ensne : — 

'' (1) The Offender shall be punishable by Fine and Imprison- 
ment, or either of such punishments, at the discretion of 
the Court before which the Offender b convicted ; and 
Imprisonment, if awarded, may be either with or without 
Hard Labour; 

" (2) The Ship in respect of which any such Offence is com- 
mitted and her Equipment shall be forfeited to Her Majesty ; 

** Provided that a Person building, causing to be built, or 
equipping a Ship in any of the cases aforesaid, in pursuance of a 
Contract made before the commencement of such War as afore- 
said, shall not be liable to any of the Penalties imposed by this 
Section in respect of such building or equipping if he satisfies 
the conditions following (that is to say) : — 

" (1) If forthwith, upon a Proclamation of Neutrality being 
issued by Her Majesty, he gives Notice to the Secretary 
of State that he is so building, causing to be built, or equip- 
ping such Ship, and furnishes such Particulars of the Con- 
tract and of any matters relating to, or done, or to be done 
under the Contract as may be required by the Secretary of 
State: 

*' (2) If he gives such security, and takes and permits to be 
taken such other measures, if any, as the Secretary of State 
may prescribe for ensuring that such Ship shall not be 
despatched, delivered, or removed without the Licence of 
Her Majesty until the termination of such War as aforesaid. 

" Where any ship is built by order of or on behalf of any 
Foreign State when at War with a friendly State, or is delivered 
to or to the order of such Foreign State, or any Person who 



LAW OF NEUTRALITY 199 

to the Knowledge of the Peison building is an Agent of such 
Foreign State, or is paid for by such Foreign State or such Agent, 
and is employed in the Military or Naval Service of such Foreign 
State, such Ship shall, until the contrary is proved, be deemed 
to have been built with a view to being so employed, and the 
Burden shall lie on the Builder of such Ship of proving that he 
did not know that the Ship was intended to be so employed in 
the Mihtary or Naval Service of such Foreign State. 

*' If any Person within the Dominions of Her Majesty, and 
without the Licence of Her Majesty — 

'^ By adding to the number of the Ouns, or by changing those 
on board for other Ouns, or by the addition of any Equipment 
for War, increases or augments, or procures to be increased or 
augmented, or is knowingly concerned in increasing or augment- 
ing the warlike Force of any Ship which at the time of her being 
within the Dominions of Her Majesty was a Ship in the Military 
or Naval Service of any Foreign State at War with any friendly 
State— 

'* Such Person shall be guilty of an Offence against this Act, 
and shall be punishable by Fine and Imprisonment, or 
either of such punishments, at the Discretion of the Court 
before which the Offender is convicted ; and Imprisonment, 
if awarded, may be either with or without Hard Labour. 

" If any Person within the limits of Her Majesty's Dominions, 
and without the Licence of Her Majesty — 

'* Prepares or fits out any Naval or Military Expedition to 
proceed against the Dominions of any friendly State, the following 
Consequences shall ensue : — 

" (1) Every Person engaged in such preparation or fitting 
out, or assisting therein, or employed in any capacity in 
such Expedition, shall be guilty of an Offence against this 
Act, and shall be punishable by Fine and Impiisonment, or 
either of such punishments, at the discretion of the Court 
before which the Offender is convicted ; and Imprisonment, 
if awarded, may be either with or without Hard Labour ; 



200 LAW OF NEUTRALITY 

" (2) All Ships and their Equipments, and all Arms and 
Munitions of War, used in or forming part of such Expedi- 
tion shall be forfeited to Her Majesty. 

''Any Person who aids, abets, counsels, or procures the 
Commission of any Offence against this Act shall be liable to be 
tried and punished as a principal Offender." 

And whereas by the said Act it is further provided that Ships 
built, commissioned, equipped, or despatched in contravention 
of the said Act may be condemned and forfeited by Judgment of 
the Court of Admiralty ; and that if the Secretary of State or 
Chief Executive Authority is satisfied that there is a reasonable 
and probable cause for believing that a Ship within Our Dominions 
has been or is being built, conunissioned, or equipped contrary 
to the said Act, and is about to be taken beyond the limits of 
such Dominions, or that a Ship is about to be despatched contrary 
to the Act, such Secretary of State or Chief Executive Authority 
shall have power to issue a warrant authorising the seizure and 
search of such Ship and her detention until she has been either 
condemned or released by Process of Law. And whereas certain 
powers of seizure and detention are conferred by the said Act 
on certain Local Authorities ; 

Now, in order that none of Our Subjects may unwarily render 
themselves liable to the Penalties imposed by the said Statute, 
We do hereby strictly command that no Person or Persons 
whatsoever do commit any Act, Matter, or Thing whatsoever 
contrary to the Provisions of the said Statute, upon pain of the 
several Penalties by the said Statute imposed and of Our high 
Displeasure. 

And We do hereby further warn and admonish all Our loving 
Subjects, and all Persons whatsoever entitled to Our Protection, 
to observe towards each of the aforesaid Powers, their Subjects 
and Territories, and towards all Belligerents whatsoever with 
whom We are at Peace, the Duties of Neutrality ; and to respect 
4n all and each of them the Exercise of Belligerent Bights. 

And We hereby further warn all Our loving Subjects, and all 
Persons whatsoever entitled to Our Protection, that if any of 



LAW OF NEUTRALITY 201 

them shall presume, in contempt of this Our Royal Proclamation^ 
to do any acts in derogation of their Duty as Subjects of a Neutral 
Power in a War between other Powers, or in violation or contra- 
vention of the Law of Nations in that behalf, all Persons so 
offending will rightfully incur and be justly liable to the Penalties 
denounced by such Law. 

And We do hereby give Notice that all Our Subjects and 
Persons entitled to Our Protection who may misconduct them- 
selves in the Premises will do so at theii peril, and of their own 
wrong ; and that they will in no wise obtain any Protection from 
Us against such Penalties as aforesaid. 

Note. — ^The provisions against foreign enlistment have been applied 
against persons who organised a raid for political purposes against a Power 
which was at peace with England (c/. Beg. v. Jameeot^ 1897, 1 Q.B. 1). 



GENEVA AWARD, 1872. 

Cf. Oppenheim, ii. s. 335 ; Lawrence, 234-240 ; Westlake, vol. ii. 

p. 197 ; HaU, p. 607 S. 

Case. — During the Civil War in the United States between the 
Federal Qovemment and the Confederate States a number of 
armed vesseb left EngUsh ports, and subsequently operated as 
cruisers for the Confederates and committed severe depredations 
on the commerce of the Federab. At the conclusion of the war 
the United States Grovemment made a claim against Great 
Britain for the losses its citizens had sufEered through the action 
of these vesseb, which it was said had been allowed to leave port 
in defiance of the obligations of neutrality. 

The claim was submitted to arbitration at Geneva, and 
Article VI. of the Treaty of Washington of 1871, providing, 
among other things, for this arbitration, declared : 

*' In deciding the matters submitted to the arbitrators they 
shall be governed by the following three rules, which are agreed 
upon by the high contracting parties, as rules to be taken as 
applicable to the case, and by such principles of international 



202 LAW OF NEUTRALITY 

law, not inconsistent therewith, as the arbitzatois shall detennine 
to have been applicable to the case : 

" RULES. 

'* A neutral Government is bound — 

" Eirst To nae due diligenoe to prevent the fitting out^ arming, or equ^- 
ping, within its jurisdictaon, of any veasel which it has reasonable ground to 
believe is intended to cruise or to cany on war against a Power with which it 
is at peace ; and also to uae like diligence to prevent the departure from its 
jurisdiction of any vessel intended to cruise or cany on war as above, such 
vessel having been specially adapted, in whole or in part, within such juris- 
diction, to warlike use. 

'* Secondly. Not to permit or sufEer 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 fore- 
going obligations and duties. 

''Her Britannic Majesty has commanded her high commis- 
sioners and plenipotentiaries to declare that Her Majesty's 
Government cannot assent to the foregoing rules as a statement 
of the principles of international law which were in force at the 
time when the claims mentioned in Article I. arose, but that 
Her Majesty's (Jovemment, 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 
Qovemment had undertaken to act upon the principles set forth 
in these rules. 

" And the high contracting parties agree to observe these roles 
as between themselves in future, and to bring them to the 
knowledge of other maritime Powers, and to invite them to accede 
to them." 

The arbitrators, after hearing the case, made the following 
award: 

" The tribunal haying since fully taken into their consideration 
the treaty and also the cases, counter-cases, documents, evidence, 



LAW OF NEUTRALITY 203 

and argomentB, and likewise all other commanicationB made to 
them by the two parties during the progress oi their sittings, 
and having impartially and carefally examined the same, 
'* Has arrived at the decision embodied in the present award : 
" Whereas, having regard to the sixth and seventh articles of 
the said treaty, the arbitrators are bound under the terms of 
the said sixth article, ' in deciding the matters submitted to them, 
to be governed by the three rules therein specified and by such 
principles of international law, not inconsistent therewith as 
the arbitrators shall determine to have been applicable to the 



case ; ' 



" And whereas the * due diligence,' referred to in the first and 
third of the said rules, ought to be exercised by neutral (Govern- 
ments in exact proportion to the risks to which either of the 
belligerents may be exposed, from a failure to fulfil the obliga- 
tions of neutrality on their part ; 

"And whereas the circumstances out of which the facts 
constituting the subject-matter of the present controversy arose 
were of a nature to call for the exercise on the part of Her 
Britannic Majesty's Government of all possible solicitude for 
the observance of the rights and duties involved in the proclama- 
tion of neutrality issued by Her Majesty on the 13th day of 
May, 1861 ; 

" And whereas the efEects of a violation of neutrality, com- 
mitted by means of the construction, equipment, and armament 
of a vessel is not done away with by any commission which the 
Qovemment of the belligerent Power, benefited by the violation 
of neutrality, may afterwards have granted to that vessel ; and 
the ultimate step, by which the ofEence is completed, cannot be 
admissible as a ground for the absolution of the ofEender, nor 
can the consummation of his fraud become the means of estab- 
lishing his innocence. 

" And whereas the privilege of extra-territoriality, accorded 
to vessels of war, has been admitted into the law of nations, not 
as an absolute right, but solely as a proceeding founded on the 
principle of courtesy and mutual deference between different 



204 LAW OF NEUTRALITY 

nationB, and, theiefoie, can never be appealed to for the protec- 
tion of acts done in violation of neutrality ; 

"And whereas the absence of a previous notice cannot 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 ; 

" And wheieas, in order to impart to any supplies of coal a 
character inconsistent with the second rule, prohibiting the use 
of neutral ports or waters, as a base of naval operations for a 
belligerent, it is necessary that the said supplies should be 
connected with special circumstances, of time, of persons, or of 
place, which may combine to give them such character ; 

" And whereas, with respect to the vessel called the Alabama^ 
it clearly results from all the facts relative to the construction 
of the ship, at first designated by the number ' 290,' in the port 
of Liverpool, and its equipment and armament in the vicinity of 
Teroeira, through the agency of the vessels called the Agrippina 
and the Bahama^ despatched from Great Britain to that end, 
that the British Government failed to use due diligence in the 
performance of its neutral obligations, and especially that it 
omitted, notwithstanding the warnings and official representa- 
tions made by the diplomatic agents of the United States during 
the construction of the said number ' 290,' to take in due time 
any effective measures of prevention, and that those orders which 
it did give at last, for the detention of the vessel, were issued so 
late their their execution was not practicable ; 

" And whereas, after the escape of that vessel, the measures 
taken for its pursuit and arrest were so imperfect as to lead 
to no result, and therefore cannot be considered sufficient 
to release Great Britain from the responsibility already 
incurred; 

" And whereas, in despite of the violations of the neutrality 
of Great Britain, committed by the ' 290,' this same vessel, later 
known as the Confederate cruiser Alabama^ was on several occa- 
sions freely admitted into the ports of the colonies of Great 
Britain, instead of being proceeded against as it ought to have 



LAW OF NEUTRALITY 205 

been in any and eveiy port within Biitiah juiisdiction in which 
it might have been found ; 

*'And wheieas the (Jovemment of Her Britannic Majesty 
cannot justify itself for a failure in due diligence on the plea of 
insufficiency of the legal means of action which it possessed : 

" Four of the arbitrators for the reasons above assigned, and 
the fifth for reasons separately assigned by him, are of opinion 
that Great Britain has in this case failed, by omission, to fulfil 
the duties prescribed in the first and the third of the rules, 
established by the sixth article of the treaty of Washington. 

^' And whereas, with respect to the vessel called the Shenaniocth^ 
it results from all the facts relative to the departure from London 
of the merchant vessel, the Sea King, and to the transformation 
of that ship into a Confederate cruiser under the name of the 
Shenandoah, near the island of Madeira, that the Government of 
Her Britannic Majesty is not chargeable with any failure, down 
to that date, in the use of due diligence to fulfil the duties of 
neutrality ; 

" But whereas it results from all the facts connected with the 
stay of the ShenandocA at Melbourne, and especially with the 
augmentation which the British Qovemment itself admits to have 
been clandestinely effected of her force, by the enlistment of men 
within that port, that there was negligence on the part of the 
authorities at that place ; 

'' For these reasons the tribunal is unanimously of opinion 
that Great Britain has not failed, by any act or omission, * to 
fulfil any of the duties prescribed by the three rules of Article VI. 
in the Treaty of Washington, or by the principles of international 
law not inconsistent therewith,' in respect to the vessel called 
the ShenandodA, during the period of time anterior to her entry 
into the port of Melbourne ; 

**And, by a majority of three to two voices, the tribunal 
decides that Great Britain has failed, by omission, to fulfil the 
duties prescribed by the second and third of the rules aforesaid, 
in the case of this same ves^l, from and after her entry into 
Hobson's Bay, and is, therefore, responsible fox aU acts com* 



2o6 LAW OF NEUTRALITY 

mitted by that Teasel after her depairtoie from Melboome, on 
the 18th day of Febraaiy, 1866. 

** And 8o far as relates to the vessels called the T%L9oaloosa 
(tender to the AUbama), the Clarencey the Taoony, and the Archer 
(tenders to the Floriia)^ the tribunal is onammonsly of opinion 
that sach tenders or auxiliary vessels, being properly regarded as 
accessories, must necessarily foUow the lot of their principals, 
and be submitted to the same decision which applies to them 
respectively. 

"And whereas, so far as relates to the particulars of the 
indemnity claimed by the United States, the costs of pursuit 
of the (Tonfederate cruisers are not, in the judgment of the 
tribunal, properly distinguishable from the general expenses of 
the war carried on by the United States ; 

" The tribunal is, therefore, of opinion, by a majority of three 
to two voices, that there is no ground for awarding to the United 
States any sum by way of indenmity under this head. 

" And whereas prospective earnings cannot properly be made 
the subject of compensation, inasmuch as they depend in their 
nature upon future and uncertain contingencies ; 

"The tribunal is unanimously of opinion that there is no 
ground for awarding to the United States any sum by way of 
indemnity under this head. 

" And whereas, in order to arrive at an equitable compensa- 
tion for the damages which have been sustained, it is necessary 
to set aside all double claims for the same losses, and aU claims 
for ' gross freights,' so far as they exceed ' net freights ' ; 

" And whereas it is just and reasonable to allow interest at a 
reasonable rate ; 

" And whereas, in accordance with the spirit and letter of the 
Treaty of Washington, it is preferable to adopt the form of 
adjudication of a sum in gross, rather than to refer the subject 
of compensation for further discussion and deliberation to a 
board of assessors, as provided by Article X. of the said treaty ; 

" The tribunal, making use of the authority conferred upon it 
by Article VII. of the said treaty, by a majority of four voices 



LAW OF NEUTRALITY 207 

to one, awaids to the United States a sum of S15,500,000 in 
gold, as the indemnity to be paid bj Gieat Britain to the United 
States, for the satisfaction of all the claims lefened to the 
consideration of the tribunal, conformable to the provisions 
contained in Article VII. of the aforesaid treaty. 

" And, in accordance with the terms of Article XI. of the said 
treaty, the tribunal declares that ^ all the claims referred to in 
the treaty as submitted to the tribunal are hereby fully, per- 
fectly, and finally settled.' 

" Furthermore, it declares that ' each and every one of the 
said claims, whether the same may or may not have been pre- 
sented to the notice of, or made, preferred, or laid before the 
tribtmal, shall henceforth be considered and treated as finally 
settled, barred, and inadmissible.' 

*^ In testimony whereof this present decision and award has 
been made in duplicate, and signed by the arbitrators who have 
given their assent thereto, the whole being in exact conformity 
with the provisions of Article VII. of the said Treaty of Washing- 
ton." 

Note. — ^Both the rules of (he Treaty of Washington and the deoision of 
the Geneva arbitration were much oritioised at the time, but the Britiah 
Government had shown its recognition of the need for a greater care in 
the oanying out of its neutral obligationa by passing the ForeignEnJistment 
Act 1870 before the arbitration took place. By the Hague Convention 
of 1907 respecting the Rights and Duties of Neutral Powers in naval war 
{Art. 8) a neutral government is bound to employ all means at its disposal 
to prevent the fitting out and arming of a vessel within its jurisdiction 
whkh. it has reason to believe is intended to assist or engage in hostile 
operations against a Power with which that goTernment is at peace. For 
the effect of the English Act see the cases following. 



2o8 LAW OF NEUTRALITY 

Obuqations of Neutrality. 

THE '' INTERNATIONAL/' 1871. 
L.B. 3 Admiralty and Ecclesiastical Courts, 321. 

A ship employed in the service of a foreign belligerent State 
to lay down a submarine cable, the main object of which 
iSy and is known to be, the subserving of the military 
operations of the belligerent State, is employed in the 
military or naval service of that State within the meaning 
of the Foreign Enlistment Act, 1870 ; but if the main 
object of the cable is the subserving of the commercial 
interests of the State, the ship is not so employed. 

Case. — ^At a time when there was war between Fiance and 
Germany, an EngUsh company entered into a contract with the 
French Qovemment to lay down in the sea a series of telegraph 
cables, between certain places on the French coast. The places on 
the coast between which the cables were to be laid were so 
situated that by means of short telegraph hnes carried over land 
the series of cables could be united in one line, and be made 
to afford complete telegraphic communication between Dunkerque 
and Verdon. The company having shipped the telegraph cables 
on board a steamship belonging to them, specially fitted for the 
purpose of laying submarine cables, were, during the continuance 
of the war, about to despatch the steamship from the port of 
London, to lay down the cables according to the contract, when 
the steamship was, by order of one of Her Majesty's principal 
secretaries of State, detained upon the ground that it was about 
to be despatched contrary to the Foreign Enlistment Act, 1870. 
On motion for the release of the ship it was proved to the satis- 
faction of the Court that the undertaking in which the ship was 
about to be engaged was of a commercial character, and it was 
lield that it should be released. 

Judgment (Sir Robert Fhillimore).— '* This ia an applioAtion 



LAW OF NEUTRALITY 209 

under the 23id section of the statute 33 & 34 Vict. c. 90, by 
the India-rubber, Gutta-percha, and Telegraph Works Com- 
pany, Limited, the owners of the ship IiUematumal and her 
cargo, for the release of that vessel and cargo, which have been 
and are now detained by the order of the Secretary of State 
under the provisions of the same statute. This statute, passed 
during the last session, under which the authority of this Court 
is now for the first time invoked, is, in my judgment, very 
important and very valuable — strengthening the hands of Her 
Majesty's Qovemment, and enabling it to fulfil more easily than 
heretofore that particular class of international obligations which 
may arise out of the conduct of Her Majesty's subjects towards 
belligerent foreign States with whom Her Majesty is at peace. 

" The statute provides, among other things, ' that if any person 
within Her Majesty's dominions despatches, or causes or allows 
to be despatched, any ship with intent or knowledge, or having 
reasonable cause to believe that the same shaU or will be employed 
in the military or naval service of any foreign State at war with 
any friendly State, such person shall be deemed to have com- 
mitted an ofEence against this Act.' Then certain penalties ensue 
to the person and to the ship. It is with the latter only that this 
Court is concerned. 

** The Act confers special powers on the Secretary of State 
(sec. 23), which he may exercise in two ways : he may issue a 
warrant for the detention of a suspected vessel, and then simply 
detain such vessel, taking no further proceedings, and leaving 
the owner to make his application for release to this Court, or, 
he may proceed to obtain the condemnation and forfeiture of 
the vessel to the Crown. The Secretary of State in this instance 
has taken the former and milder course, and does not, I am 
informed by the Attorney-General, think it a case in which 
further or more serious steps should hereafter be taken. Interest 
reipubliooB, it is said that this vessel should suffer a temporary 
detention, or, if released by order of this Court, that such release 
should be accompanied by a special bond, entered into by the 
owners of the vessel, giving security against any belligerent or 



210 LAW OF NEUTRALITY 

un-neatial xiae of the vessel or her cargo ; but the vessel is not 
to be proceeded against for any severe penaltj. The owners of the 
Iniemational and her cargo, however, are applicants to this 
Court both for the immediate and unconditional release of the 
vessel and cargo, and for the costs and damages occasioned 
by the official seizure." 

After dealing with the terms of the contract between the 
French Government and the company, the learned judge con- 
tinued: 

^* It has appeared from the material portions of the contract 
to which I have adverted, as well as from the ordinary functions 
of the company, that, primd facie at least, this undertaking has 
not for its object any employment ' in the military or naval 
service ' of France. It was apparently a bond fide commercial 
undertaking between the subjects of Her Majesty and a Govern- 
ment in friendly relations with her. And the Attorney-General 
was express and clear in his statement that no mala fides or 
deception of any kind was imputed to the company, but a 
violation, through ignorance, of the law. It was also admitted, as 
I fuUy expected it would be, by the Attorney-General that this 
statute in no way affects the previously existing international 
law as to contraband ; that the proceedings taken in the cause 
have no reference to an offence of this kind. I have not there- 
fore to consider whether, as suggested by the Queen's Advocate, 
this vessel might have been seized by a Prossian cruiser as being 
employed in the service of France, or as carrying contraband of 
war of a novel kind but falling under the old principle. 

"The carrier of contraband may violate the proclamation 
of the neutral State of which he is a member, and deprive himself 
of the right to protection from her, but the punishment of his 
offence is, by the general law of nations, left to the belligerent 
who has the right of capture. The offence is not cognisable by the 
municipal law of this country." 

After considering the evidence of both parties, the judgment 
concluded thus : 

" The company is formed to furnish ordinary postal telegraphy, 



LAW OF NEUTRALITY 211 

and the contract with the French Government is to famish 
telegraphy of this kind only ; no other kind is to be furnished. 
It is inapt, per se, for land telegraphy, much more for military 
telegraphy ; it is credibly sworn, I think, that the applicants 
are no parties, directly or indirectly, to any intention or project 
of adapting this, so to speak, civil telegraphy to military pur- 
poses ; no such adaptation is within the letter or spirit of their 
contract. The present circumstances of France are certainly such 
as to make the means of communication between her armies and 
her (Jovemment of the utmost value to her. It is probable that 
this telegraphic line from Dunkerque to Verdon will be partially 
used for effecting or endeavouring to effect such communication. 
But neither does this appear to be the main object of the line ; 
nor could it, without additions and adaptations, with which this 
company has no concern, be made even partially to subserve 
this end. On the other hand, there is nothing incredible in the 
statement that commercial interests are largely concerned in 
the establishment of a postal telegraphic line between Dun- 
kerque and Verdon at the mouth of the Ghronne, due regard 
being had to the great and increasing commercial importance 
of Bordeaux. It is, however, probable, as I have said, that the 
line may be occasionally used for military among other purposes ; 
but such a probability is not sufBcient to divest the line of its 
primary and paramount commercial character, and to subject 
this company to the very severe penalties imposed by the 
statute." 
Judgment for the company. 

NoU, — ^ThiB oase iUnstrates the effect of the Foreign Enlistment Aot^ 
1870, which was passed after the award had been made in the Alabama 
arbitration, in order to strengthen the hands of the BritiBh executive in 
aecnring the proper enf oroement of neutral obHgationB in this country. 
Power waa given under the Act for the Secretary of State to detain any 
vessel suspected of being about to assist one of the belligerents in his 
military and naval enterprise. And in this case a vessel had been detained 
on such suspicion, but in the end it was held that the purpose of the 
contract was innocuous and therefore the vessel was released. Similarly 
in the case of TAe Gauna€ifL.B,.ZA. kK, 381), an English vessel which had 



212 LAW OF NEUTRALITY 

been engaged by a French Teflsel to tow a French prise from the Downs to 
Dunkirk was heM not to have been empk>yed in the military or naval 
Berrioe of France, and therefore no offence had been committed Under 
the former Foreign Enlistment Act of 1815 it was held that there must 
be an intention by some person who had control of the vessel to employ her 
in the war to bring the vessel within the penalties of the Act (AUomey- 
General v. SUUrn^ 1869, 2 H. & G. 552). But in the preset stotute it is 
sufficient if the person who is concerned with the building or the despatching 
of the ship has reasonable cause to believe that it will be engaged in the 
military or naval service of any foreign State at war with a friendly State. 
And a person has been convicted under the Act for sending out guns from 
England to Venezuela with the intention that they should form part of a 
naval expedition which was being prepared against the existing Venezuelan 
Qovemment by revolutionaries {Eeg. v. SmMovaif 56 Law Times Reports 
526). 



CHAPTER XVn. 

BEMIGERENT RIGHTS AGAINST NEUTRALS. 

(A) COITTBABAND. 

Cf. Oppenheim, li. 88. 394, 395 ; Lawrence, 255 ; Hall, p. 667 ff . ; 

Westlake, vol. ii. p. 246ff. 

THE <<JONGE MARG ARETHA/' 1799. 

1 C. Rob. 189. 

Contraband of War. — ^Articles of provision are generally 
not contraband of war, but they may become so under 
circumstances arising out of the particular situation 
of the war or the condition of the parties engaged in 
it. Where articles of provision are going to a com- 
mercial port, the presumption is that they are going 
there for civil use ; contra, if they are going to a port of 
naval or military equipment, and especially if there be a 
hostile armament then preparing there. 

Case. — This was the case of a Papenberg ship, taken on a 
voyage from Amsterdam to Brest, with a cargo of cheese, April 
1797, when England was at war with France and Holland. 

JudgmefU (Sir W. Scott). — ** There is little reason to doubt 
the property in this case, and therefore, passing over the obser- 
vations which have been made on that part of the subject, I 
shall confine myself to the single question : Is this a legal trans- 
action in a neutral, being the transaction of a Papenberg ship 
carrying Dutch cheese from Amsterdam to Brest, or Morlaix (it 

ai3 



214 BELLIGERENT RIGHTS AGAINST NEUTRALS 

is said), but certainlj to Brest ; or, as it may be otherwise 
described, the tiaosaction of a neutial caziying a cargo of 
provisions, not the product and mannfacture of his own country, 
but of the enemy's ally in the war — of provisions which are a 
capital ship's store — and to the great port of naval equipment 
of the enemy. 

^' If I adverted to the state of Brest at this time, it might be 
no unfair addition to the terms of the description if I noticed, 
what was notorious to all Europe at this time, that there was 
in that port a considerable French fleet in a state of preparation 
for sallying forth on a hostile expedition ; its motions at that 
time were watched with great anxiety by a British fleet which 
lay oS the harbour for the purpose of defeating its designs. Is 
the carriage of such a supply to such a place, and on such an 
occasion, a traffic so purely neutral as to subject the neutral 
trader to no inconvenience ? 

^^ If it could be laid down as a general position, in the manner 
in which it has been argued, that cheese, being a provision, is 
universaUy contraband, the question would be readily answered ; 
but the Court lays down no such position. The catalogue of 
contraband has varied very much, and sometimes in such a 
manner as to make it very difficult to assign the reason of the 
variations, owing to particular circumstances, the history of 
which has not accompanied the history of the decisions. In 1673, 
when many unwarrantable rules were laid down by public autho- 
rity respecting contraband, it was expressly asserted by Sir B. 
Wiseman, the King's Advocate, upon a formal reference made 
to him, that by the practice of the English Admiralty, com, 
wine, and oil were liable to be deemed contraband. ' I do agree,' 
says he, reprobating the regulations that had been published, 
and observing that rules are not to be so hardly laid down as to 
press upon neutrals, * that com, wine, and oil will be deemed 
contraband.' 

^' These articles of provisions, then, were at that time con- 
fiscable, according to the judgment of a person of great knowledge 
and experience in the practice of this Court. In much later times 



BELLIGERENT RIGHTS AGAINST NEUTRALS 215 

many other sorts of proviaioDS have been condemned as contra- 
band. In 1747» in the Jonge Andreas^ butter, going to Bochelle, 
was condemned. How it happened that cheese at the same time 
was more favourably considered, according to the case cited by 
Dr. Swabey, I don't exactly know. The distinction appears nice. 
In all probability the cheeses were not of the species which is 
intended for ship's use. Salted cod and salmon were condemned 
in the Jonge Frederick, going to Bochelle, in the same year. In 
1748, in the JoafinheSy rice and salted herrings were condemned as 
contraband. These instances show that articles of human food 
have been so considered, at least where it was probable tlat 
they were intended for naval or military use. 

** I am aware of the favourable positions laid down upon this 
matter by Wolfius and Vattel, and other writers of the Continent, 
although Vattel expressly admits that provisions may, under 
certain circumstances, be treated as contraband. And I take the 
modem established rule to be this, that generally they are not 
contraband, but may become so under circumstances arising out 
of the particular situation of the war, or the condition of the 
parties engaged in it. The Court must therefore look to the 
circumstances under which this supply was sent. 

^^ Among the circumstances which tend to preserve provisions 
from being liable to be treated as contraband, one is that they are 
of the growth of the country which exports them. In the present 
case they are the product of another country, and that a hostile 
country ; and the claimant has not only gone out of his way 
for the supply of the enemy, but he has assisted the enemy's ally 
in the war by taking o£E his surplus commodities. 

*' Another circumstance to which some indulgence, by the 
practice of nations, is shown is when the articles are in their 
native and unmanufactured state. Thus, iron is treated with 
indulgence, though anchors and other instruments fabricated out 
of it are directly contraband. Hemp is more favourably con- 
sidered than cordage, and wheat is not considered as so noxious 
a commodity as any of the final preparations of it for human 
use. In the present case the article falls under this unfavourable 



ai6 BELLIGERENT RIGHTS AGAINST NEUTRALS 

GOii8ideratdon» being a mannfactuie prepared for immediate 
use. 

^' But the moat important distinction is, whether the articles 
were intended for the ordinary use of life, or even for mercantile 
ship's use ; or whether they were going with a highly probable 
destination to military use T Of the matter of fact on which the 
distinction is to be applied, the nature and quality of the port 
to which the articles were going is not an irrational test ; if the 
port is a general commercial port it shall be understood that the 
articles were going for civil use, although occasionaUy a frigate 
or other ship of war may be constructed in that port. Contra^ 
if the great predominant character of a port be that of a port of 
naval military equipment, it shall be intended that the articles 
were going for military use, although merchant ships resort to 
the same place, and althou^ it is possible that the articles might 
have been applied to civil consumption ; for it being impossible 
to ascertain the final use of an article ancipUis usus^ it is not 
an injurious rule which deduces both ways the final use from 
the immediate destination ; and the presumption of a hostile 
use, founded on its destination to a military port, is very much 
inflamed if at the time when the articles were going a considerable 
armament was notoriously preparing, to which a supply of those 
articles would be eminently useful. 

''The Court, however, was unwilling in the present case to 
conclude the claimant on the one point of destination, it being 
alleged that the cheeses were not fit for naval use, but were merely 
luxuries for the use of domestic tables. It therefore permitted 
both parties to exhibit affidavits as to their nature and quality. 
The claimant has exhibited none ; but here are authentic certi- 
ficates from persons of integrity and knowledge that they are 
exactly such cheeses as are used in British ships when foreign 
cheeses are used at all, and that they are exclusively used in 
French ships of war. 

'' Attending to all these circumstances, I think myself war- 
ranted to pronounce these cheeses to be contraband, and condenm 
them as such. 



BELLIGERENT RIGHTS AGAINST NEUTRALS 217 

^^ As sach, however, the party has acted without dissimulatioD 
in the case, and may haye been misled by an inattention to 
circumstances to which in strictness he ought to have adverted, 
as well as by something like an irregular indulgence on which 
he has relied ; I shall content myself with pronouncing the 
caigo to be contraband without enforcing the usual penalty of 
the confiscation of the ship belonging to the same proprietor." 

Note, — ^In the Bdward, 4 CL Rob., 68, it was similarly laid down that 
the mUitaiy importance of the supply affects the question of conditionai 
oontvaband. Hie rules of the Beolaration of London which now regulate 
the subject of contraband are based on the same principles as are laid down 
in this judgment. Food-8tn£b are contraband when destined for the use 
of the military and naval forces of the enemy, and certain presumptions are 
set up as to the destmation of cargoes (Article 34) ; a hostile destination 
is presumed if the goods are consigned to a fortified place or other places 
serving as a base for the enemy's armed forces. 



Continuous Voyages. 

Cf. Oppenheim, ss. 400-401 ; Lawrence, 257 ; Hall, p. 667 ; 

Westlake, p. 254. 

THE '< IMINA,'' 1800. 

3 C. Rob. 167. 

Goods are not to be condemned as contraband unless cap- 
tured when destined for a belligerent port. 

Case. — The Jmiiia, loaded with ship-timber, sailed for the 
belligerent port of Amsterdam, but when captured the master 
had changed her course to the neutral port of Embden without 
knowledge of the owners. The vessel was released. 

Juigmewt (Six William Scott). — ** . . . The rule respecting 
contraband, as I have always imdeistood it, is that the articles 
must be taken tn ieUdo^ in the actual prosecution of the voyage 
to an enemy's port. Under the present undeistanding of the 
law of nations, you cannot generally take the proceeds in the 



I 



2i8 BELLIGERENT RIGHTS AGAINST NEUTRALS 

retam voyage. From the moment of quittiiig port on a hostile 
destination, indeed, the offence is complete, and it is not neces- j 

saiy to wait till the goods are actoally endeaYOuiing to entex 
the enemy's port ; but beyond that, if the goods axe not taken 
tM deUdo, and in the actual prosecution of such a yoyage, the 
penalty is not now generally held to attach. . . . 

** The cargo is taken on a yoyage to a neutral port. To say that 
it is neyertheless exposed to condemnation, on account of the 
original destination as it stood in the mind of the owners, would 
be carrying the penalty of contraband further than it has been 
ever carried by this or the Superior Court. If the capture had 
been made a day before, that is, before the alteration of the course, 
it might have been different ; but however the variation has 
happened, I am disposed to hold that the parties are entitled to 
the benefit of it ; and that under that variation the question of 
contraband does not at all arise. I shall decree restitution.*' 

Note. — This deoision has often been quoted to sapport the view that Lord 
Stowell condemned the application of the dootrine of continuous voyage to 
the carriage of contraband of war. Bat FrcieBaot Westiake has pointed out 
that what he said about contraband being taken in the actual prosecution oi 
the voyage to the enemy port^ referred to the point that proceedings cannot 
be taken on the retam voyage. The rules of the Declaration of London 
now allows capture of absolute contraband if the caigo is destined for the 
enemy country though the vessel is bound for a neutral port ; but for 
conditional contraband the vessel must be taken in ddieio. 

For the origin of the rule as to ocmtinuoos voyage see p. 237. 



THE '* PETERHOFF/' 

Supreme Court of the United States, 1866. 

6 Wallace, 28, 58. 

Contraband goods actually destined for the use of the enemy's 
forces may be confiscated though the ship on which they 
are placed is immediately bound for a neutral port. 

Case. — ^This was the case of an EngUsh vessel seized on a 
journey to Matamoros, a Mexican port, during the American 



X 

1 



BELLIGERENT RIGHTS AGAINST NEUTRALS 219 

Civil War. Matamoros was dose to the confederate territory, 
and the cargo of the yessel consisted partly of goods useful in 
war. The Court condemned the goods and the vessel, on the 
ground that the goods were contraband. 

Judgment. — ** The classification of goods as contraband or not 
contraband has much perplexed text-writers and jurists. A 
strictly accurate and satisfactory classification is perhaps imprac- 
ticable ; but that which is best supported by American and 
EngUsh decisions may be said to divide all merchandise into 
three classes. Of these classes, the first consists of articles manu- 
factured and primarily and ordinarily used for military purposes 
in time of war ; the second, of articles which may be and are 
used for purposes of war or peace, according to circumstances ; 
and the third, of articles exclusively used for peaceful purposes. 

^^Merchandise of the first class, destined to a belligerent 
country or places occupied by the army or navy of a belligerent, 
is always contraband ; merchandise of the second class is contra- 
band only when actually destined to the military or naval use 
of a beUigerent ; while merchandise of the third class is not 
contraband at all, though liable to seizure and condemnation 
for violation of blockade or siege. 

^* A considerable portion of the cargo of the Pderhoff was of 
the third class, and need not be further referred to. 

^^ A large portion, perhaps, was of the second class, but is not 
proved, as we think, to have been actually destined to belligerent 
use, and cannot therefore be treated as contraband. Another 
portion was, in our judgment, of the first class, or, if of the second, 
destined directly to the rebel military service. This portion of 
the cargo consisted of the cases of artillery harness, and of articles 
described in the invoices as * men's army blucheis,' * artillery 
boots,' and * Government regulation grey blankets.' These 
goods come f aidy under the description of goods primarily and 
ordinarily used for military purposes in time of war. They make 
part of the necessary equipment of an army. 

'* It is true that even these goods, if really intended for sale 
in the market of Hatamoros, would be free of liability; for 



220 BELLIGERENT RIGHTS AGAINST NEUTRALS 

contraband may be transported by neutrals to a neutral port, 
if intended to make part of its general stock-in-trade. But there 
is nothing in the case which tends to convince us that such was 
their real destination, while all the circumstances indicate that 
these articles, at least, were destined for the use of the rebel forces 
then occupying Brownsville, and other places in the vicinity. 

^* And contraband merchandise is subject to a different rule 
in respect to ulterior destination than that which applies to 
merchandise not contraband. The latter is liable to capture only 
when a violation of blockade is intended ; the former when 
destined to the hostile country, or to the actual military or naval 
use of the enemy, whether blockaded or not. 

** The trade of neutrab with belligerents in articles not contra- 
band is absolutely free, unless interrupted by blockade ; the 
conveyance by neutrals to belligerents of contraband and articles 
is always unlawful, and such articles may always be seized during 
transit by sea. Hence, while articles, not contraband, might 
be sent to Matamoros and beyond to the rebel region, where the 
communications were not interrupted by blockade, articles of a 
contraband character, destined in fact to a State in rebellion, or 
for the use of the rebel military forces, were liable to capture, 
though primarily destined to Matamoros. 

" We are obliged to conclude that the portion of the cai^o 
which we have characterised as contraband must be condemned." 

Note, — Great outcry wrs raised at the time to the decision of the 
Amerioan prize-court in this and similar oases on the ground that the 
** Qaeaaes at Truth " wliich were made as to the ultimate destination of 
neutral cargoes were unwarranted by International Law. But practice 
has developed along the lines of allowing capture of absolute contraband 
when the ultimate destination is suspected to be a belligerent oountiy (aee 
noU above). 



BELLIGERENT RIGHTS AGAINST NEUTRALS 221 

Contraband Trade, 
Cf. Oppenheim, ii. s. 398 ; Lawzence, 254 ; Hall, p. 663. 

EX PARTE CHAVASSE, IN RE GRAZEBROOK, 

1865. 

34 L.J. N.S., Bankruptcy, 17. 
Trade in contraband articles by a neutral is lawful. 

Cote. — Ghavasse and Grazebrook went into partneiship in 
tbe famishing of contraband articles to tbe Confederacy. Both 
parties became bankrupt, and the assignees of Chavasse presented 
a petition to have the proceeds of these transactions apportioned, 
Chavasse never having received anything from them. This 
petition was dismissed with costs on the ground of the iUegality 
of the contract. An appeal was allowed, the Lord Chancellor 
considering that there was a valid partnership. 

Judgment, — ^Lord Westbury in his judgment said : 

^^ But this commerce, which was perfectly lawful for the neutral 
with either belligerent country before the war, is not made by 
the war unlawful and capable of being prohibited by both or 
either of the belligerents. All that international law does is to 
subject the neutral merchant who transports the contraband of 
war to the risk of having his ship and cargo captured and con* 
demned by the belligerent Power to whose country the cargo 
is destined." 

In the American case of Seton v. Low, 1799 (1 Johnson 1), 
Kent, J., declared likewise that a trade by a neutral in contra- 
band goods is a lawful trade and an insurance contract on that 
trading is valid. In the course of his judgment he said : 

^^ On the first point, I am of opinion that the contraband goods 
were lawful goods, and that whatever is not prohibited to be 
exported, by the positive law of the country, is lawful. It may 
be said that the law of nations is part of the municipal law of the 
land, and that by that law (and which, so fax as it concerns the 



222 BELLIGERENT RIGHTS AGAINST NEUTRALS 

present question, is expressly incoxpoiated into our treaty of 
commeice with Qieat Britain) contraband trade is prohibited 
to neutrab, and» consequently, unlawful. This reasoning is not 
destitute of force, but the fact is that the law of nations does not 
declare the trade to be unlawful. It only authorises the seizure 
of the contraband articles by the belligerent Powers ; and this 
it does from necessity. A neutral nation has nothing to do with 
the war, and is under no moral obligation to abandon or abridge 
its trade ; and yet, at the same time, from the law of necessity, 
as Vattel observes, the Powers at war have a right to seize and 
confiscate the contraband goods, and this they may do from the 
principle of self-defence. The right of the hostile Power to seise, 
this same very moral and correct writer continues to observe, 
does not destroy the right of the neutral to transport. They are 
rights which may, at times, reciprocally clash and injure each 
other. But this collision is the effect of inevitable necessity, and 
the neutral has no just cause to complain. A trade by a neutral in 
articles contraband of war is, therefore, a lawful trade, though a 
trade, from necessity, subject to inconvenience and loss." 

(B) Blockade. 

Cf. Oppenheim, vol. ii. pp. 368-388; Lawrence, 246-252; 

Hall, p. 629 S. ; Westlake, vol. ii. 230 S. 

THE *' FRANCISKA/' 

Spinks Priise Gases 116 and 10 Moore, P.C. 60. 

Blockade when properly notified is a Intimate interference 
with neutral trade by a belligerent, and it may be set 
up without a formal declaration to the neutral Powers 
if its existence is in fact notified to neutral vessels and 
the blockade is not more extensive than the notice. 

Ctue. — On April 6, 1854, the commander of the Baltic fleet 
blockaded, de /octo, the coast of Courland, but his notice to the 
British Ministers, including the British Minister at Copenhagen, 



BELLIGERENT RIGHTS AGAINST NEUTRALS 223 

was of vagae character, and the impiession was that all the 
Bossian ports in the Baltic were blockaded. The British 
Govemment also on that date issued an order in Council, giving 
permission up to May 15, for Bussian vessels to discharge their 
cargoes from Bussian ports in the Baltic and White Sea to their 
port of destination, even though those ports were in a state of 
blockade. A similar permission was granted by the French 
Government. And the Bussian Qovemment by a Ukase allowed 
the same indulgence to English and French ships. On May 14, 
1864, a neutral vessel, under Danish colours, sailed from Ciopen- 
hagen for Biga, and was captured o£E Biga by an English ship, 
for a breach of the blockade of that port. From Dr. Lushington's 
decree of condemnation an appeal was taken to the Privy 
Council. . . . 

Judgment. — ^^ The right of blockade is founded not on any 
general unlimited right to cripple the enemy's commerce with 
neutrals by all means effectual for that purpose, for it is admitted 
on all hands that a neutral has a right to carry on with each of 
the belligerents during war all the trade which was open to him 
in time of peace, subject to the exceptions of trade in contraband 
goods and trade with blockaded ports. Both these exceptions 
seem f oimded on the same reason, viz. that a neutral has no right 
to interfere with the military operations of a belligerent either 
by supplying his enemy with materials of war, or by holding 
intercourse with a place which he has besieged or blockaded. 

" The notice of the blockade must not be more extensive than 
the blockade itself. A beUigerent cannot be allowed to proclaim 
that he has instituted a blockade of several ports of the enemy, 
when in truth he has only blockaded one ; such a course would 
introduce all the evils of what b termed a paper blockade, and 
would be attended with the grossest injustice to the commerce of 
neutrals. Accordingly, a neutral is at liberty to disregard such 
notice, and is not liable to the penalties attending a breach of 
blockade, for afterwards attempting to enter the port which 
really is blockaded. 

"... Notice has been imputed to the claimant in the court 






224 BELLIGERENT RIGHTS AGAINST NEUTRALS 

below from the alleged notoriety of the blockade on May 14 at 
Elflinoie, where the ship touched, and at Copenhagen, where the 
owner resided. . . . The fact of knowledge is capable of much 
easier proof in the case of ingress than in the cae of egress ; but 
when once the fact is clearly proved, the consequences must be 
the same. The reasoning of the learned judge of the court below 
in this case and the language of Lord Stowell in The Adelaide 
reported in the note to The Neptunue, 2 Rob. Ill, and The Hurtig 
Hanet 3 Rob. 324, are conclusive upon this point. 

'' But while their lordships are quite prepared to hold that the 
existence and extent of a blockade may be so well and so generally ' 

known that knowledge of it in an individual may be presumed 
without distinct proof of personal knowledge^ and that know- 
ledge so acquired may supply the place of a direct communication 
from the blockading squadron, yet the fact, with notice of which 
the individual is to be fixed, must be one which admits of no 
reasonable doubt. *Any communication which brings it to 
the knowledge of the party,' to use the language of Lord Stowell 
in The RoUay 6 Rob. 367, ^ in a way which could leave no doubt 
in his mind as to the authenticity of the information.' 

" Again, the notice to be inferred from general notoriety, must 
be of such a character that if conveyed by a distinct intimation 
from a competent authority it would have been binding. The 
notice cannot be more effectual because its existence is presumed, 
than it would be if it were directly established in evidence. The 
notice to be inferred from the acts of a belligerent, which is to 
supply the place of a public notification, or of a particular 
warning, must be such as, if given in the form of a public notifica- 
tion, or of a particular warning, would have been legal and 
effectual." 

Note. — ^nie principle that definite notioe of a cfe facto blockade is 
saflSoient has recently beenaflSrmed in tbe case of The Adula (176 U.S. 361) 
where an English vessel was condenmed for breach of blockade of a Cuban 
port during the Spanish-American War, of which it had received notjoe 
from an American ship of war. For the changes made by the DedaratioQ 
of London in the Law of Blockade 9ee note p^ 220. 



BELLIGERENT RIGHTS AGAINST NEUTRALS 225 

THE ''FREDERICK MOLKE/' 1798. 

1 C. Bob. 85. 

A vessel coming out of a blockaded port with a cargo is 
primd facie liable to seizure. If the cargo was taken on 
board after the commencement of the blockade, ship and 
cargo will be liable to condenmation. 

Cwe. — ^This was the case of a Danish vessel taken coming out 
of Havre, on August 18, 1798, and bound on a voyage itom 
Havre to the coast of Africa, with a miscellaneous cargo. 

Judgment (Sir W. Scott). — '^ In this case a claim has been 
given for the ship and cargo, as the property of the same peison, 
a Danish merchant of Christiania. 

^^ Several questions have been raised respecting the property — 
the previous conduct of the vessel — the legaUty of this sort of 
trade, and the actual violation of a blockade. I shall first con- 
sider the last question, because if that is determined against the 
claimant, it will render a discussion of all other points unne- 
cessary. 

" First, then, as to the blockade, these facts appear in the 
depositions of the master : ^ That on his former voyage he cleared 
out from Lisbon to Copenhagen, but was really destined to Havre, 
if he could escape English cruisers ; that he was warned by an 
English frigate. The Diamond, ofi Havre, not to go into Havre, 
as theie were two or three ships that would stop him ; but that 
he slipped in at night and delivered his cargo.' It is therefore 
sufficiently proved that there were ships on that station to pre- 
vent ingress, and that the master knowingly evaded the blockade ; 
for that a legal blockade did exist, results necessarily from these 
facts, as nothing further is necessary to constitute blockade, 
than that there should be a force stationed to prevent communica- 
tion, and a due notice or prohibition given to the party. 

" But it is still further material that this blockade certainly 
continued till the ship came out again. It is notorious indeed that 

15 



226 BELLIGERENT RIGHTS AGAINST NEUTRALS 

Ha vie was blockaded for some time ; and although the blockade 
varied occasionally, it still continued ; for it is not an accidental 
absence of the blockading force, nor the circumstance of being 
blown o5 by wind (if the suspension, and the reason of the sus- 
pension are kno¥m), that will be sufficient in law to remove a 
blockade. 

^' It is said this was a new transaction, and that we have no I 

right to look back to the delinquency of the former voyage ; and 
a reference is made on this point to the law of contraband, where 
the penalty does not attach on the returned voyage : but is 
there that analogy between the two cases which should make the 
law of one necessarily, or in reason applicable to the other also 7 j 

I cannot think there is such an affinity between them ; there is 
this essential difference, that in contraband the ofEence is i 

deposited with the cargo ; whilst in such a case as this, it is \ 

continued and renewed in the subsequent conduct of the ship. 

" For what is the object of blockade ? Not merely to prevent 
an importation of supplies ; but to prevent export as well as ' 

import ; and to cut oS all communication of conunerce with the 
blockaded place. I must therefore consider the act of egress to , 

be as culpable as the act of ingress, and the vessel on her return j 

still liable to seizure and confiscation. ' 

^' There may indeed be cases of innocent egress, where vessels 
have gone in before the blockade ; and under such circumstances 
it could not be maintained, and they might not be at liberty to 
retire. But even then a question might arise, if it were attempted 
to carry out a cargo ; for that would, as I have before stated, 
contravene one of the chief purposes of blockade. 

'* A ship then, in all cases, coming out of a blockaded port, is 
in the first instance liable to seizure ; and to obtain release, the 
claimant will be required to give a very satisfactory proof of the 
innocency of his intention. In the present case, the ingress was 
criminal and the egress was criminal ; and I am decidedly of 
opinion that both ship and cargo, being the property of the same 
person, are subject to confiscation." 

Note, — ^n, however, a ship carries goods brou^t from a blookftded 



BELLIGERENT RIGHTS AGAINST NEUTRALS 227 

port by means of interior canal navigation to a neutral port which Is open, 
it is not liable to seizure for breach of blockade ; because a blockade cannot 
extend beyond the ports and coasts belonging to or occupied by an enemy, 
and the ship can only be captured if it comes from the blocbided region 
{The Stefi, 4 a Rob. 65). 



THE ** BETSEY/' 1798. 

1 C. Rob. 93. 

A declaration of blockade by a commander without an actual 
investment will not constitute blockade. 

C(ue. — ^This was a case of a ship and cargo taken by the 
English at the capture of Guadaloupe, April 13, 1774, and 
retaken, together with that island, by the French in June 
following. The ship was claimed for Mr. Patterson, of Balti- 
more ; and the cargo, as American property. The captors, 
being served with a monition to proceed to adjudication, appeared 
under protest ; and the cause now came on upon the question, 
whether the claimants were entitled to demand of the first 
British captors restitution in value for the property which had 
been passed from them to the French recaptors ? The first 
seizure was defended on a suggestion that the Betsey had broken 
the blockade at Guadaloupe. 

JudgmetU (Sir W. Scott). — " This is a case which it will be 
proper to consider under two heads. I shall first dispose of the 
question of blockade ; and then proceed to inquire on whom the 
loss of the recapture by the French ought to fall under all the 
cirumstances of the case. 

'^ On the question of blockade three things must be proved : 
1st, the existence of an actual blockade ; 2ndly, the knowledge of 
the party ; and 3rdly, some act of violation, either by going in 
or by coming out with a cargo laden after the commencement of 
blockade. The time of shipment would on this last point be very 
material, for although it might be hard to refuse a neutral liberty 
to retire with a cargo already laden, and by that act already be- 
come neutral property, yet after the commencement of a block- 



228 BELLIGERENT RIGHTS AGAINST NEUTRALS 

ade a neutial cannot, I conceive, be allowed to inteipoee in any 
way to assbt the exportation of the property of the enemy. 
After the commencement of the blockade a neutial is no longer at 
liberty to make any porchase in that port. 

** It is necessary, however, that the evidence of a blockade 
should be clear and decisive ; but in this case there is only an 
affidavit of one of the captors, and the account which is theie 
given is, * that on the arrival of the British forces in the West 
Indies a proclamation issued, inviting the inhabitants of Mar- 
tinique, St. Lucie, and Ouadaloupe to put themselves under 
the protection of the English : that on a refusal, hostile opera- 
tions were conmienced against them all. ' But it cannot be meant 
that they began immediately against all at once, for it is notorious 
that they were directed against them separately and in succession. 
It is further stated, ^ that in January 1794 (but without any 
more precise date), Guadaloupe was summoned, and was then 
put into a state of complete investment and blockade.' 

^* The word ^ complete ' is a word of great energy ; and we 
might expect from it to find that a number of vessels were sta- 
tioned round the entrance of the port to cut ofi all communica-* 
tion ; but from the protest I perceive that the captors enter- 
tained but a very loose notion of the true nature of a blockade ; 
for it is there stated, ^ that on January 1, after a general proclama- 
tion to the French islands, they were put into a state of complete 
blockade.' It is a term, therefore, which was applied to all those 
islands at the same time under the first proclamation. 

" The Lords of Appeal have determined that such a proclama- 
tion was not in itself sufficient to constitute a legal blockade. It 
is clear, indeed, that it could not in reason be sufficient to pro- 
duce the efiect which the captors erroneously ascribe to it ; 
but from the misapplication of these phrases in one instance I 
learn that we must not give too much weight to the use of them on 
this occasion, and from the generality of these expressions I think 
we must infer that there was not that actual blockade which the 
law is now distinctly understood to require. 

** But it is attempted to raise other inferences on this point 



BELLIGERENT RIGHTS AGAINST NEUTRALS 229 

&om the manner in which the master speaks of the difficulty and 
danger of entering, and bom the declaration of the municipality 
of Guadaloupe, which states * the island to have been in a state 
of siege.' It is evident that the American master speaks only of 
the difficulty of avoiding the English cruisers generally in those 
seas ; and as to the other phrase, it is a term of the new jargon of 
France which is sometimes applied to domestic disturbances ; 
and certainly is not so intelligible as to justify me in concluding 
that the island was in that state of investment from a foreign 
enemy which we require to constitute a blockade. I cannot, 
therefore, lay it down that a blockade did exist till the opera- 
tions of the forces were actually directed against Quadaloupe in 
April. 

" It would be necessary for me, however, to go much further, 
and to say that I am satisfied abo that the parties had knowledge 
of it ; but this is expressly denied by the master. He went in 
without obstruction. Mr. Incledon's statement of his belief of 
the notoriety of the blockade is not such evidence as will alone be 
sufficient to convince me of it. With respect to the shipment of 
the caigo, it does not appear exactly under what circumstances or 
what time it was taken in. I shall therefore dismiss this part of 
the case.'' 

Note, — Blockade is dealt with by the Declaration of London (Artioles 1-21 ) 
which in great part enact the exiBting British practice. Certain modi- 
fioations however are introduced as to the neoessify of declaration 
and notification of blockade ; and a vessel wiiich has broken blockade 
is liable to capture only so long as she is poisaed by a ship of the 
blockading force. 



230 BELLIGERENT RIGHTS AGAINST NEUTRALS 



THE *' HELEN/' 1865. 

L.R. 1, Admiralty and Ecclesiastical^ 1. 

A breach of blockade is not an offence 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. 

Case. — ^In this case, the master sued for wages upon an agree- 
ment entered into between himself and the defendants, the 
owneis of the Helen, 

The defendants alleged that "the agreement was made 
and entered into for the purpose of running the blockade of the 
Southern ports of the United States of America, or one of them, . 
and was and is contrary to law, and cannot be recognised ai/ 
enforced by this Honourable Court/' 

Judgment (Dr. Lushington). — ^'^This is a motion by the 
plaintiff to reject the fourth article of the defendant's answer. 
The parties in this cause are John Andrews Wardell, formerly 
the master of the Helen, plaintiff, and the Albion Trading Com- 
pany, the o¥mers of the ship, defendants. The master sues for 
wages (with certain premiums added), alleged to have been 
earned between July 1864 and March 1865. The answer states 
that according to the agreejpcdit as set forth by the defendants, the 
plaintiff has been paid all that was due to him. This part of the 
answer is not objected to. The fourth and last article is the one 
objected to. It alleges that the agreement was entered into for 
the purpose of breaking the blockade of the Southern States of 
America ; that such an agreement is contrary to law, and cannot 
be enforced by this Court. In the course of the argument, the 
judgment in Ex parte Chavaese re Qraizebrook, 34 L. J. (Bkr.) 17, 
was cited as governing the case ; a judgment recently delivered 
by Lord Westbury whilst he was Lord Chancellor. The law 
there laid down is briefly stated, that a contract of partnership in 
blockade-running is not contrarv to the municipal law of this 



BELLIGERENT RIGHTS AGAINST NEUTRALS 231 

conntiy ; and by the deciee the partneiship was declaied valid, 
and the accounts oideied accordingly. It was admitted that 
this decision is directly applicable to the present case, a suit to 
lecover wages according to a contract with respect to an intended 
adventure to break the blockade. 

^' It is, I conceive, admitted on all hands, that the Court must 
enforce the agreement with the master, unless it is satisfied that 
such agreement is iUegal by the municipal law of Great Britain. 
In order to prove this proposition, the defendants say that the 
agreement to break the blockade by a neutral ship is, on the part 
of all persons concerned, illegal according to the law of nations, 
and that the law of nations is a part of the municipal law of the 
land — ergo, this contract was illegal by municpial law. 

^^ Now a good deal may depend on the sense in which the word 
^ illegal ' is used. I am strongly inclined to think that the defend- 
ants attach to it a more extensive meaning than it can properly 
bear, or was intended to bear by those who used it. The true 
meaning, I think, is that all such contracts are iUegal so far, that 
if carried out, they would lead to acts which might, imder certain 
circumstances, expose the parties concerned to such penal con- 
sequences as are sanctioned by international law, for breach of 
blockade, or for the carrying of contraband. If so, the iUegality 
is one of a limited character. For instance suppose a vessel after 
breaking the blockade completes her voyage home, and is after- 
wards seized on another voyage, the original taint of illegality — 
whatever it may have been — is purged, and the ship cannot be 
condemned ; yet if the voyage was, ab iwUio, wholly and abso- 
lutely illegal, both by the law of nations and the municipal law, 
why should its successful termination purge the ofience ? Let 
me consider the relative situation of the parties. A neutral 
country has a right to trade with all other countries in time of 
peace. One of these countries becomes a belligerent, and is 
blockaded. Why should the right of the neutral be affected by 
the acts of the other belligerent ? The answer of the blockading 
power is : * Mine is a just and necessary war,' a matter which, 
in ordinary cases, the neutral cannot question, ^ I must seize 



232 BELLIGERENT RIGHTS AGAINST NEUTRALS 

contraband, I must enforce blockade, to cany on the war.' In 
this state of things there has been a long and admitted usage on 
the part of all civilised states — a concession by both parties, the 
belligerent and the neutral — a universal usage which constitutes 
the law of nations. It is only with reference to this usage that 
the belligerent can interfere with the neutral. Suppose no 
question of blockade or contraband, no belligerent could claim 
a right of seizure on the high seas of a neutral vessel going to the 
port of another belligerent, however essential to his interest it 
might be so to do. 

*' What is the usage as to blockade T There are several con- 
ditions to be observed in order to justify the seizure of a ship for 
breach of blockade. The blockade must be effectual and (save 
accidental Interruption by weather) constantly enforced. The 
neutral vessel must be taken in ddido. The blockade must be 
enforced against all nations alike, including the belligerent one. 
When all the necessary conditions are satisfied, then, by the 
usage of nations, the belligerent is allowed to capture and con- 
demn neutral vessels without remonstrance from the neutral 
State. It never has been a part of admitted common usage that 
such voyages should be deemed illegal by the neutral State, still 
less that the neutral State should be bound to prevent them ; 
the belligerent has not a shadow of right to require more than 
universal usage has given him, and has no pretence to say to the 
nuetral : ' You shall help me to enforce my belligerent right by 
curtailing you own freedom of conunerce, and making that 
illegal by your own law which was not so before.' This doctrine 
is not inconsistent with the maxim that the law of nations is part 
of the law of the land. The fact is, the law of nations has never 
declared that a neutral State is bound to impede or diminish its 
own trade by municipal restriction. Our own Foreign Enlist- 
ment Act is itself a proof that to constitute transactions between 
British subjects, when neutral and belligerents, a municipal 
offence by the law of Great Britain, a statute was necessary. If 
the acts mentioned in that statute were in themselves a violation 
of municipal law, why any statute at all T I am now speaking of 



BELLIGERENT RIGHTS AGAINST NEUTRALS 233 

fitting out ships of war, not of levying soldieis, which is altogether 
a different matter. Then how stands the case upon authority T 
I may here say, that in principle, there is no essential difference 
whether the question of breach of municipal law is raised with 
regard to contraband or breach of blockade. 

" Ifr. Duer, * Marine Insurance,' vol. i., Lect. vii., is the only 
text-writer who maintains an opinion contrary to what I have 
stated to be the law. He maintains it with much ability and 
acuteness, but he stands alone. He himself admits that an 
insurance of a contraband voyage is no offence against municipal 
law of a neutral country, according to the practice of all the 
principal States of continental Europe. In the American courts 
the question has been more than once agitated, but with the 
same result. In the case of the Santissitna Trinidad, 7 Wheat. 
34D, Ifr. Justice Story says : ' It is apparent that, though 
equipped as a vessel of war, she (the Independencia) was sent to 
Buenos Ayres on a conmiercial adventure, contraband indeed, 
but in no shape violating our laws or our national neutrality. If 
captured by a Spanish ship of war during the voyage, she would 
have been justly condemned as good prize, and for being engaged 
in a tra£Gic prohibited by the law of nations. But there is nothing 
in our law or in the law of nations that forbids our citizens from 
sending armed vessels as well as munitions of war to foreign 
parts for sale. It is a commercial adventure which no nation is 
bound to prohibit, and which only exposes the persons engaged 
in it to the penalty of confiscation.' " 

Noie. — For the oorresponding deoidon on the nature of oontraband 
trading which is referred to in the judgment see Ex parte Chavctsse above, 
p, 221. 



234 BELLIGERENT RIGHTS AGAINST NEUTRALS 



C. Rule of thb Wab of 1756. 

Cf. Oppenheim, ii. s. 289 ; Lawrence, 257 ; Hall, p. 632 fi. 

Westlake, vol. ii. p. 257. 

THE ''IMMANUEL/' 1799. 

2 G. Robinson, 186. 

Neutrals will not be permitted to engage in a trade, during a 
war, from which they were excluded in time of peace. 
This applies especially to the colonial trade. 

C(ue. — This was the case of an asserted Hamburg ship, taken 
August 14, 1799, when England was at war with France, on a 
voyage from Hamburg to St. Domingo, having in her voyage 
touched at Bordeaux, where she sold part of the goods brought 
from Hamburg, and took a quantity of iron stores and other 
articles for St. Domingo. A question was first raised as to the 
property of the ship and cargo ; and further supposing it to be 
neutral property, whether a trade from the mother country of 
France to St. Domingo, a French Colony, was not an illegal trade, 
and such as would render the property of neutrals engaged in it 
liable to be considered as the property of enemies, and subject to 
confiscation ? 

Judgment (Sir W. Scott). — . . . '* Upon the breaking out of 
war, it is the right of neutrals to carry on their accustomed trnde^ 
with an exception of the particular cases of a trade to blockaded 
places, or in contraband articles (in both which cases their 
property is liable to be condemned), and of their ships being liable 
to visitation and search ; in which case however they are entitled 
to freight and expenses. I do not mean to say that in the 
accidents of a war the property of neutrals may not be variously 
entangled and endangered ; in the nature of human connections 
it is hardly possible that inconveniences of this kind should be 
altogether avoided. Some neutrals will be unjustly engaged 
in covering the goods of the enemy, and others will be unjustly 



BELLIGERENT RIGHTS AGAINST NEUTRALS 235 

soBpected of doing it ; these inconveniences are more tlian fully 
balanced by the enlaigement of their commeice ; the trade of 
the belligerents is usually interrupted in a great degree, and falls 
in the same degree into the lap of neutrals. But without reference 
to accidents of the one kind or other, the general rule is, that the 
neutral has a right to carry on, in time of war, his accustomed 
trade to the utmost extent of which that accustomed trade is 
capable. 

" Very different is the case of a trade which the neutral has 
never possessed, which he holds by no title of use and habit in 
times of peace, and which, in fact, can obtain in war by no other 
title, than by the success of the one belligerent against the other, 
and at the expense of that very belligerent under whose success he 
sets up his title ; and such I take to be the colonial trade, generally 
speaking. 

** What is the colonial trade generally speaking T It is a trade 
generally shut up to the exclusive use of the mother country, to 
which the colony belongs, and this to a double use — that, of sup- 
plying a market for the consumption of native commodities, and 
the other of furnishing to the mother country the pecuhar com- 
modities of the colonial regions ; to these two purposes of the 
mother country, the general policy respecting colonies belonging 
to the States of Europe, has restricted them. With respect to 
other countries, generally speaking, the colony has no existence ; 
it is possible that indirectly and remotely such colonies may 
affect the conmieroe of other countries. . . . 

** Upon the interruption of a war, what are the rights of belli- 
gerents and neutrals respectively regarding such places T It is 
an indubitable right of the belligerent to possess himself of such 
places, as of any other possesson of his enemy. This is his 
conmion right, but he has the certain means of carrying such a 
right into effect, if he has a decided superiority at sea : Such 
colonies are dependent for their existence, as colonies, on foreign 
supplies ; if they cannot be supplied and defended they must fall 
to the belligerent of course — and if the belligerent chooses to 
apply his means to such an object, what right has a third party, 



236 BELLIGERENT RIGHTS AGAINST NEUTRALS 

perfectly neutral, to step in and prevent the ezecation ? No 
existing interest of his is affected by it ; he can have no rig^t 
to apply to his own use the beneficial consequences of the mere 
act of the belligerent ; and say, ' True it is, you have, by force of 
arms forced such places out of the exclusive possession of the 
enemy, but I will share the benefit of the conquest, and by aliAwng 
its benefits prevent its progress. You have in effect, and by 
lawful means, turned the enemy out of the possession which hd 
had exclusively maintained against the whole world, and with 
whom we have never presumed to interfere ; but we will inter- 
pose to prevent his absolute surrender, by the means of that very 
opening, which the prevalence of your arms alone has afiected ; 
supplies shall be sent and their products shall be exported ; you 
have lawfully destroyed his monopoly, but you shall not lie per- 
mitted to possess it yourself ; we insist to share the fruits of your 
victories, and your blood and treasure have been expended, not 
for your own interest, but for the conmion benefit of others.' 

" Upon these grounds, it cannot be contended to be a right of 
neutrals, to intrude into a commerce which had been uniformly 
shut against them, and which is now forced open merely by tl^ 
pressure of war ; for when the enemy, under an entire inability 
to supply his colonies and to export their products, affects to open 
them to neutrals, it is not his will but his necessity that changes 
his system ; that change is the direct and unavoidable conse- 
quence of the compulsion of war, it is a measure not of French 
councils, but of British force." 

Noie. — ^This principle is not a£Eeoted in any way by anything in the 
Declaration of London. The same rale applies also to neatnd voodo Ib 
engaging in the ooasting trade d a beUigerent which is usually reserved 
for national ships. Cf, the Emanud {1 C. Bob. 296). In the Busso- 
Japanese War an American steamship with an English cargo was con- 
demned by the Japanese Court for trading with certain Bossian islands 
in a district closed to foreign vessels in time of peace, — The Montana, 
TakahaM, Int. Law, 188. 






BELLIGERENT RIGHTS AGAINST NEUTRALS 237 

Cf. Oppenheim, vol. ii. s. 400 ; Hall, p. 667 ; Westlake, ii. p. 262. 

THE '* WILLIAM/' 1806. 
5 C. Robinson, 385. 

By the ** Rule of the War of 1756," neutrals were not per- 
mitted to engage in the direct trade between the enemy 
and his colonies. And the mere touching at a neutral 
port to ayoid this rule did* not make the yoyage lawful. 

C<ue. — This was a question on the continuity of a voyage in 
the colonial trade of the enemy, brought by appeal from the Vice- 
Admiialty Court at Halifax, where the ship and cargo, taken on 
a destination to Bilbao in Spain, and claimed on behalf of Messis. 
W. and N. Hooper of Marblehead in the state of Massachusetts, 
had been condemned July 17, 1800. 

Among the papers was a certificate from the collector of the 
customs, ** that this vessel had entered and landed a cargo of 
cocoa belonging to Messrs. W. and N. Hooper, and that the duties 
had been secured agreeable to law, and that the said cargo had 
been reshipped on board this bessel bound for Bilbao." 

Judgment (Sir William Qrant). — ^* The question in this case is, 
whether that part of the cargo which has been the subject of 
further proof, and which, it is admitted, was at the time of the 
capture going to Spain, is to be considered as coming directly 
from Laguira within the meaning of His Majesty's instructions. 
According to our understanding of the law, it is only from those 
instructions that neutrals derive any right of carrying on with 
the colonies of our enemies, in time of war, a trade from which 
they were excluded in time of peace. The instructions had not 
permitted the direct trade between the hostile colony and its 
mother country, but had, on the contrary ordered all vessels 
engaged in it to be brought in for lawful adjudication ; and what 
the present claimants accordingly maintain is, not that they could 
carry the produce of Laguira directly to Spain ; but that they 



238 BELLIGERENT RIGHTS AGAINST NEUTRALS 

were not bo cairying the cargo in question^ inasmuch aa the 
voyage in which it was taken was a voyage from North America, 
and not directly from a colony of Spain. 

** What then, with reference to this subject, is to be considered 
as a direct voyage from one place to another 7 Nobody has ever 
supposed that a mere deviation from the straightest and shortest 
coarse, in which the voyage could be performed, would change its 
denomination, and make it cease to be a direct one within the 
intendment of the instructions. 

^* Nothing can depend on the degree or the deviation — ^whether 
it be of more or fewer leagues, whether towards the coast of 
Africa or towards that of America. Neither will it be contended 
that the point from which the commencement of a voyage is to 
be reckoned changes as often as the ship stops in the course of 
it ; nor will it the more change, because a party may choose 
arbitrarily by the ship's papers, or otherwise, to give the name of a 
distinct voyage to each stage of a ship's progress. The act of 
shifting the cargo from the ship to the shore, and from the shore 
back again into the ship, does not necessarily amount to the 
termination of one voyage and the commencement of another. 
It may be wholly unconnected with any purpose of importation 
into the place where it is done : Supposing the landing to be 
merely for the purpose of airing or drying the goods, or of 
repairing the ship, would any man think of describing the 
vojrage as beginning at the place where it happened to become 
necessary to go through such a process ? 

" Again, let it be supposed that the party has a motive for 
desiring to make the voyage appear to b^n at some other place 
than that of the original lading, and that he therefore lands 
the cargo purely and solely for the purpose of enabling himself to 
affirm, that it was at such other place that the goods were taken on 
board, would this contrivance at all alter the truth of the fact ? 
Would not the real voyage still be from the place of the original 
shipment, notwithstanding the attempt to give it the appearance 
of having begun from a di£Eerent place ? The truth may not 
always be discernible, but when it is discovered, it is according to 



BELLIGERENT RIGHTS AGAINST NEUTRALS 239 

the truth and not according to the fiction, that we are to give to 
the transaction its character and denomination. If the voyage 
from the place of lading be not really ended, it matters not by 
what acts the party may have evinced his desire of making it 
appear to have been ended. That those acts have been attended 
with trouble and expense cannot alter their quality or their 
efEect. The trouble and expense may weigh as circumstances 
of evidence, to show the purpose for which the acts were done ; 
but if the evasive purpose be admitted or proved, we can never 
be found to accept as a substitute for the observance of the 
law, the means, however operose, which have been employed to 
cover a breach of it. Between the actual importation by which 
a voyage is really ended, and the colourable importation which 
is to give it the appearance of being ended, there must necessarily 
be a great resemblance. The acts to be done must be almost 
entirely the same ; but there is this difference between them, 
The landing of the cargo, the entry at the custom-house, and the 
payment of such duties as the law of the place requires, are 
necessary ingredients in a genuine importation ; the true purpose 
of the ownei cannot be effected without them. But in a fic- 
titious importation they are mere voluntary ceremonies, which 
have no natural connection whatever with the purpose of send- 
ing on the cargo to another market, and which, therefore, would 
never be resorted to by a person entertaining that purpose, 
except with a view of giving to the voyage which he has resolved 
to continue, the appearance of being broken by an importation, 
which he has resolved not really to make. 

'* If the continuity of the voyage remains unbroken, it is 
immaterial whether it be by the prosecution of an original pur- 
pose to continue it, as in the case of the Essex, or, as in this case, 
by the relinquishment of an original purpose to have brought it 
to a termination in America. It can never be contended that 
an intention to import once entertained is equivalent to importa- 
tion. And it would be a contradiction in terms to say that by 
acts done after the original intention has been abandoned, such 
original intention has been carried into execution. Why should 



240 BELLIGERENT RIGHTS AGAINST NEUTRALS 

a cargo, which there was to be no attempt to sell in America, 
have been entered at an American custom-house, and volun- 
tarily subjected to the payment of any, even the most trifling 
duty 7 Not because importation was, or in such a case could be 
intended, but because it was thought expedient that something 
should be done, which in a British Prize Court might pass for 
importation. Indeed, the claimants seem to have conceived that 
the inquiry to be made here was, nol whether the importation was 
real or pretended, but whether the pretence had assumed a 
particular form, and was accompanied with certain circumstances 
which by some positive rule were, in all cases, to stand for impor- 
tation, or to be conclusive evidence of it. . . . 

" But supposing that we had uniformly held that payment of 
the import duties furnished conclusive evidence of importation, 
would there have been any inconsistency or contradiction in 
holding that the mere act of giving a bond for an amount ci 
duties, of which only a very insignificant part was ever to be 
paid, could not have the same effect as the actual payment of 
such amount ? The further proof in the Essex first brought dis- 
tinctly before us the real state of the fact in this particular. It 
has been already mentioned that we had called for an account of 
the drawbacks, if any, that had been received. This prodaced 
the information that although the duties secured amounted to 
5278 dollars, yet a debenture was immediately afterwards given 
for no less than 6080 dollars ; so that on that valuable cargo no 
more than 198 dollars would be ultimately payable, which sum 
is said to be more than compensated for the advantage arising 
from the negotiability of the debenture. . . . 

^* The consequence is, that the voyage was illegal, and that the 
sentence of condemnation must be affibmed.*' 

Note, — ^The application of the role as to continuous vovage to cases 
of contraband has been considered above {see p. 218). 



\ 



BELLIGERENT RIGHTS AGAINST NEUTRALS 241 



D. Un-itbutral Service. 

Cf. Oppenheim, ii. 407-413 ; Lawrence, 260-262 ; Hall, p. 676 ; 

Westlake, ii. p. 263. 

*'THE AT AL ANT A/' 

High Court of Admiralty, 1808. 
6 G. Robinson, 440. 

Carrying despatches from the Governor of an enemy's colony 
to the Minister of Marine is a cause of confiscation of 
the ship. 

Case. — This was a case of a Bremen ship and cargo, captured 
on a voyage from Batavia to Bremen, on July 14, 1797, having 
oome last from the Isle of France, where a packet containing des- 
patches from the Grovernment of the Isle of France to the Ministei 
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, under circumstances detailed 
in the judgment. 

Judgment (Sir W. Scott). — ^* The question then is, what are 

the legal consequences attaching on such a criminal act 7 — ^foi 

that it is criminal and most noxious is scarcely denied. What 

might be the consequences of a simple transmission of despatches, 

I am not called upon by the necessities of the present case to 

decide, because I have already pronounced this to be a fraudulent 

case. That the simple carrying of despatches, between the 

colonies and the Mother Countries of the enemy, is a service 

highly injurious to the other belligerent, is most obvious. In the 

present state of the world, in the hostiUties of European Powers, 

it is an object of great importance to preserve the connection 

between the Mother Country and her colonies ; and to interrupt 

that connection, on the part of the other belligerent, is one of the 

most energetic operations of war. The importance of keeping 

10 



242 BELLIGERENT RIGHTS AGAINST NEUTRALS 

up that connection, for the concentration of tioope, and for 
various military pnrposeB, is manifest ; and I may add, for the 
supply of civil assistance, also, and support, because the inflictian 
of civil distress, for the purpose of compelling a surrender, forms 
no inconsiderable part of the operations of war. It is not to be 
argued, therefore, that the importance of these despatches might 
relate only to the civil wants of the colony, and that it is necessary 
to show a military tendency ; because the object of compelling a 
surrender being a measure of war, whatever is conducive to that 
event must also be considered in the contemplation of law, as an 
object of hostility, although not produced by operations strictly 
military. How is this intercourse with the Mother Country kept 
up in time of peace T 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 efiect the same purpose, under the privilege of an 
ostensible neutral character, does, in fact, place himself in the 
service of the enemy-State, and is justly to be considered in that 
character. Nor let it be supposed, that it is an act of light and 
casual importance. The consequence of such a service is in- 
definite, infinitely beyond the effect of any contraband that can be 
conveyed. The carrying of two or three cargoes of stores is 
necessarily an assistance of a limited nature ; but in the trans- 
mission of despatches may be conveyed the entire plan of a cam- 
paign, that may defeat all the projects of the other belligerent in 
that quarter of the world. It is true, as it has been said, that one 
baU might take off a Charlei XII, and might produce the most 
disastrous effects in a campaign ; but that is a consequence so 
remote and accidental, that in the contemplation of human 
events it is a sort of evanescent quantity of which no account is 
taken ; and the practice has been accordingly, that it is in con- 
siderable quantities only that the offence of contraband is con- 
templated. The case of despatches is very different ; it is im- 
possible to limit a letter to so small a size, as not to be capable of 
producing the most important consequences in the operations of 
the enemy. It is a service, therefore, which, in whatever degree 






I 

f- 






BELLIGERENT RIGHTS AGAINST NEUTRALS 243 

it exists, can only be considered in one character, as an act of the 
most noxious and hostile nature. 

"This country, which, however much its practice may be 
misrepresented by foreign writers, and sometimes by our own, has 
alwajrs administered the law of nations with lenity, adopts a 
more indulgent rule, inflicting on the ship only a forfeiture of 
freight in ordinary cases of contraband. But the offence of 
carrying despatches is, it has been observed, greater. To talk of 
the confiscation of the noxious article, the despatches, which con- 
stitutes the penalty in contraband, would be ridiculous. There 
would be no freight dependent on it, and therefore the same 
precise penalty cannot, in the nature of things, be applied. It 
becomes absolutely necessary, as well as just, to resort to some 
other measure of confiscation, which can be no other than that of 
the vehicle. 

" Then comes the other question, whether the penalty is not 
also to be extended further, to the cargo, being the property of 
the same proprietors — ^not merely ob continentiam ddictiy but 
likewise because the representatives of the owners of the cargo, 
are directly involved in the knowledge and conduct of this guilty 
transaction ? On the circumstances of the present case I have 
to observe, that the offence is as much the act of those who are 
the constituted agents of the cargo, as of the master, who is the 
agent of the ship. The general rule of law is, that, where a party 
has been guilty of an interposition in the war, and is taken in 
delicto, he is not entitled to the aid of the Court, to obtain the 
restitution of any part of his property involved in the same 
transaction. It is said that the term *" interposition in the war ' 
is a very general term and not to be loosely applied. I am of 
opinion that this is an aggravated case of active interposition in 
the service of the enemy, concerted and continued in fraud, and 
marked with every species of malignant conduct. In such a 
case I feel myself bound, not only by the general rule, cb con- 
tinentiam ddidif but by the direct participation of guilt in the 
agents of the cargo. Their own immediate conduct not only 
excludes all favourable distinction, but makes them pre-eminently 



244 BELLIGERENT RIGHTS AGAINST NEUTRALS 

the object of just punishment. The conclusion therefore is, 
that I must pronounce the ship and cargo subject to condemna- 
tion." 

NoU, — ^A Convention drawn up at the Hague in 1907 has secured 
immunity from capture for mail-bags carried on neutral yeBsels^ so that 
enemy despatches sent by ordinaiy poet are to-day exempt from belligere&t 
interference. But if a vessel is especially chartered to cany despatches 
to or from the enemy country for the enemy force, or if it uses its wirefesB 
telegraph installation for the purpose of giving information to the enemy, 
it will be liable to condemnation in accordance both with the old law and 
the Declaration of London (see p. 247). 



THE '^OROZEMBO/' 1807. 

6 C. Robinson, 430. 

A neutral vessel chartered by the enemy to convey military 
persons is subject to confiscation as engaged in an un- 
lawful commerce. 

Case, — ^This was a case of an American vessel that had been 
ostensibly chartered by a merchant at Lisbon " to proceed in 
ballast to Macao, and there to take a cargo to America," but 
which had been afterwards, by his directions, fitted up for the 
reception of three military ofiGlcers of distinction and two persons 
in civil departments in the Government of Batavia, who had come 
from Holland to take their passage to Batavia, under the appoint- 
ment of the Gfovemment of Holland. Gieat Britain at the time 
was at war with France and Holland. 

Judgment (Sir W. Scott). — " This is the case of an admitted 
American vessel ; but the title to restitution is impugned, on 
the ground of its having been employed, at the time of the cap- 
ture, in the service of the enemy, in transporting military persons 
first to Macao and ultimately to Batavia. That a vessel hired by 
the enemy for the conveyance of military persons is to be con- 
sidered as a transport subject to condenmation, has been in a 
recent case held by this Court, and on other occasions. 

What is the number of military persons that shall constitute 



(C 



BELLIGERENT RIGHTS AGAINST NEUTRALS 245 

such a case, it may be difficult to define. In the former case 
there were many, in the present they are much fewer in number ; 
but I accede to what has been observed in argument, that number 
alone is an insignificant circumstance in the considerations, on 
which the principle of law on this subject is built, since fewer 
persons of high quaUty and character may be of more importance, 
than a greater number of persons of lower condition. To send out 
one veteran general of France to take the command of the forces 
at Batavia, might be a much more noxious act than the con- 
veyance of a whole regiment. The consequences of such assist- 
ance are greater ; and therefore it is what the belligerent has a 
stronger right to prevent and punish. In this instance the 
military persons are three, and there are, besides, two other 
persons who were going to be employed in civil capacities in the 
Government of Batavia. Whether the principle would apply to 
them alone, I do not feel it necessary to determine. I am not 
aware of any case in which that question has been agitated ; but 
it appears to me, on principle, to be but reasonable that, when- 
ever it is of sufficient importance to the enemy that such persons 
should be sent out on the public service, at the public expense, 
it should afford equal ground of forfeiture against the vessel that 
may be let out for a purpose so intimately connected with the 
hostile operations. 

" It has been argued, that the master was ignorant of the 
character of the service on which he was engaged, and that, in 
order to support the penalty, it would be necessary that there 
should be some proof of delinquency in him, or his owner. But, I 
conceive, that is not necessary ; it will be sufficient if there is 
an injury arising to the belligerent from the employment in which 
the vessel is found. In the case of the Swedish vessel there was 
no mens tea in the owner, or in any other person acting under his 
authority. The master was an involuntary agent, acting under 
compulsion, put upon him by the officers of the French Grovern- 
ment, and, so far as intention alone is considered, perfectly inno- 
cent. In the same manner, in cases of hond /^ignorance, there 
may be no actual delinquency, but if the service is injurious, that 



246 BELLIGERENT RIGHTS AGAINST NEUTRALS 

will be BufBcient to gi^e the belligerent a tight to prevent the 
thing from being done, or at least lepeated, by enforcing the penal 
penaty of confiscation. If imposition has been practised, it 
operates as force ; and if redress in the way of indenmification is 
to be sought against any person, it must be against those who 
have, by means either of compulsion or deceit, exposed the 
property to danger. If, therefore, it was the most innocent case 
on the part of the master, if there was nothing whatever to affect 
him with privity, the whole amount of this argument would be 
that he must seek Am redress against the freighter ; otherwisesuch 
opportunities of conveyance would be constantly used, and it 
would be almost impossible, in the greater niunber of cases, to 
prove the knowledge and privity of the immediate offender. 

** It has been argued throughout, as if the ignorance of the 
master dUme would be su£Gicient to exempt the property of the 
owner from confiscation. But may there not be other persons, 
besides the master, whose knowledge and privity would carry 
with it the same consequences ? 

'* Suppose the owner himself had knowledge of the engage- 
ment, would not that produce the mens tea, if such a thing is 
necessary 7 or if those who had been employed to act for the 
owner, had thought fit to engage the ship in a service of this 
nature, keeping the master in profound ignorance, would it not 
be just as effectual, if the meM tea is necessary, that it should 
reside in those persons, as in the owner ? 

^* The observations which I shall have occasion to make on 
the remaining parts of this case will, perhaps, appear to justify 
such a supposition, either that the owner himself, or those who 
acted for him in Lisbon or in Holland, were connusant of the 
nature of the whole transaction. But I will first state iistimcHy^ 
that the principle on which I determine this case is, that the 
carrying military persons to the colony of an enemy, who are 
there to take on them the exercise of their military functions, 
will lead to condemnation, and that the Court is not to scan with 
minute arithmetic the number of persons that are so carried. If it 
has appeared to be of sufficient importance to the Government of 



BELLIGERENT RIGHTS AGAINST NEUTRALS 247 

the enemy to send them, it must be enough to put the adverse 
Gk>yeinment on the exercise of their right of prevention ; and the 
ignorance of the master can afford no ground of exculpation in 
favour of the owner, who must seek his remedy in cases of decep- 
tion, as well as of force, against those who have imposed upon 
him." 

Note, — The Declaration of London contains three artioles dealing 
with " Unneutral Service " (Art. 45-47). A vessel is rendered liable to 
condemnation if she is on a voyage specially undertaken with a view 
to the transport of individual passengers, who form part of the enemy's 
force, or if to the knowledge of the owner, or charterer, or master, 
though in the course of a regular voyage she is actually transporting a 
number of the enemy's force. If she is exclusively engaged in the 
transport of enemy troops she may be treated as an enemy vessel, and 
the cargo as well as the ship may be confiscated. 



A SHORT LIST 

OF SOME OF 

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BOOKS FOR LAW STUDENTS 



SUBJBOT INDBX. 

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Bankruptcy --------3 

Bar Examination Questions ..... 3 

Bills of Exchange 3 

Common Ljiw - - - - - - -3, 4, 5 

Companies -5 

Conflict of Laws 5 

Constitutional Law 6 

Contracts 6 

Conveyancing 6, 7 

Criminal Ljiw 7 

Easements 8 

Equity 8 

Evidence 8,9,10 

Guides to the L^gal Profession - - - - 10 

International loiw 10 

Interpretation of Deeds -11 

Legal Maxims II 

Local Government 11,12 

Mortgages 12 

Partnership 13 

Personal Property 13, 14 

Procedure 14 

Real Property 14, 15 

Roman Law 15, 16 

Torts 16 

Wills 16 

SWEET & MAXWELL, LIMITED, 

3, Chancery Lane, London. 



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for the Bar Exammations. 



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Hunter's Introduction or Kelke's Primer or Epitome, 
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Advisable also Is Sandars' Justinian. 

CONSTITUTIONAL LAW. 

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CRIMINAL LAW A PROCEDUIIE. 

Odgers' Common Law, or Wilshere's Criminal Law 
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REAL PROPERTY. 

Goodeve or Williams (with Wilshere's Analysis). For 
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COMMON LAW. 

Odgers' Common Law of England (with Wilshere's 
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EVIDENCE A PROCEDURE. 

Odgers' Common Law, Cockle on Evidence, Wilshere's 
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EQUITY. 

Snell. For revision, Kelke's Leading Cases. 

COMPANY LAW. 

Kelke's Epitome. 



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MANSON'S Short View of Bankruptcy Law. By 

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CONFLICT OF LAWS. 

WESTLAKE'S Treatise on Private International 
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CONTRACTS. 

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CRIMINAL LAW AND PROCEDURE. 

ODOERS on the Common Law. See page 3. 

W1LSHERE*S Elements of Criminal and Ma^sterial 
Law and Procedure. By A. M. Wilshere, Barris- 
ter-at-Law. Second edition. 256 pages. Price 8s. 

This book sets out concisely the essential principles of the criminal 
law and explains in detail the most important crimes, giving 
precedents of indictments ; it also gives an outline of criminaQ 
procedure and evidence. 

" An excellent little book for examination purposes. Any 
student who fairly masters the book ought to pass any ordinary 

examination in criminal law with ease." — Solicitors* Journal, 

WILSHERE'S LeadinsT Cases illustratinsr the Crimi- 
nal Law, for Students. 168 pages. Price 6s. 6d. 

A companion book to the above. 

" This book is a collection of cases pure and simple, without a 
commentary. In each case a short rubric is given, and then follow 
the material parts of the judge's opinions. The selection of cases 
has been judiciously made, and it embraces the whole field of 
criminal law. The student who has mastered this and its com- 
panion volume will be able to face his examiners in criminal law 
without trepidation," — Scots Law Times. 

[ 7 ] 



EASEMENTS. 

BLYTH*S Epitome of the Law of Easements. By 

T. T. Blyth, Barrister-at-Law. 158 pages. Price 
6s. 

"The book should prove a useful addition to the student's 
library, and as such we can confidently recommend it." — Lmw 
Quarterly Review. 

EQUITY. 

KELKE'S Epitome of Leading: Cases in Equity. 

Founded on White and Tudor*s Leading Cases in 
Equity. Third Edition. 241 pages. Price 6s. 



*• It is not an abridgement of the larger work, but is intended to 
furnish the beginner with an outline of equity law so far as it is 
settled or illustrated by a selection of cases. Each branch is dealt 
with in a separate chapter, and we have (inter alia) trusts, 
mortgages, specific performance and equitable assignments, and 
equitable implications treated with reference to the cases* on the 
subject." — Law Times. 

WILSHERE'S Outlines of Equity. By A. M. Wilshere, 
Barrister-at-Law. [In preparation. 

EVIDENCE. 

COCKLE'S LeadinsT Cases and Statutes on the Law 
of Evidence, with Notes, explanatory and connective, 
presenting a systematic view of the whole subject. 
By Ernest Cockle, Barrister-at-Law. Third 
Edition. 400 pages. Price los. 6d. net. 

This book is sufficient in itself for all ordinary examination 
purposes, and will save students the necessity of reading larger 
works on this subject. 

By an ingenious use of black type the author brings out the 
essential words of the Statutes, and enables the student to see at a 
glance the effect of each section. 

The writer's aim has been — 

(I) To select from the reports the leading case on 
each of the most important points. 

[ 8 ] 



Evidence — continued. 

(2) To extract the principle from each case and 

state it as a headnote thereto. 

(3) To state, where necessary and possible, suffi- 

cient of the facts to malce the point of evi- 
dence clear, but excluding: all other facts as 
confusing^. 

(4) To s:ive all the portions of the Judgments, in 

the Judge's own words, having reference to 
the point of evidence involved, emphasising in 
thicic type the most important passages, but 
excluding all other portions of the judgments. 

(5) To give preliminary notes introducing cases of 

a class, and a few footnotes explanatory of 
individual cases, where such appeared neces- 
sary. 

(6) To provide a specially full and systematic table 

of contents which will serve as a summary 
or analysis of the whole subject. 

BEST'S Principles of Evidence. With Elementary 
Rules for conducting the Examination and Cross- 
Exam inat ion of Witnesses. Eleventh Edition. By 
S. L. Phipson, Barrister-at-Law. 620 pages. Price 

£^ 5s. 

" The most valuable work on the law of evidence which exists 
in any country." — Late Times. 

"There is no more scholarly work among all the treatises on 
Evidence than that of Best. There is a philosophical breadth of 
treatment throughout which at once separates the work from 
those mere collections of authorities which take no account of 
the * reason why,* and which arrange two apparently contradictory 
propositions side by side without comment or explanation." — 
Law Magazine. 

MAUDE*S Justices' Handbook on the Law of 
Evidence. By W. C. Maude, Barrister-at-Law. 
no pages. Price 3s. 6d. net. 

Though written for the use of justices of the peace, bar students 
will find this book very useful as containing in a small compass a 
clear outline of the law. 

[ 9 ] 




Evidence — con tin ued. 

WROTTESLEY on the Examination of Witnesses 
in Court. Including Examination in Chief, Cross- 
Examination, and Re-Examination. With chapters 
on Preliminary Steps and some Elementary Rules 
of Evidence. By F. J. Wrottesley, of the Inner 
Temple, Barrister-at-Law. 173 pages. Price 5s. net. 

This is a practical book for the law student. It is interesting, and 
is packed full of valuable hints and information. The author 
lays down clearly and succinctly the rules which should guide the 
advocate in the examination of witnesses and in the argument of 
questions of fact and law, and has illustrated the precepts which 
he has given by showing how they have been put into actual 
practice by the greatest advocates of modern times. 

GUIDES TO THE LEGAL 
PROFESSION. 

A New Quide to the Bar. Containing the Regula- 
tions and Examination Papers, and a critical Essay 
on the Present Condition of the Bar of England. 
By LL.B., Barrister-at-Law. Fourth Edition. 204 
pages. Price 5s. 

A Quide to the Les:al Profession and London LL.B. 

Containing the latest Regulations, with a detailed 
description of all current Students' Law Books, and 
suggested courses of reading. 156 pages. Price is. 
post free. 

INTERNATIONAL LAW. 

BENTWICH*S Students* Leading Cases and Statutes 
on International Law, arranged and edited with 
notes. By Norman Bentwich, Barrister-at-Law. 
With an Introductory Note by Professor L. Oppen- 
HEiM. 247 pages. Price 12s. 6d. 

"This Case Book is admirable from every point of view, and 
may be specially recommended to be used by young students in 
conjunction with their lectures and their reading of text-books." 
— Professor Oppenheim. 

L 10 1 



1 



INTERPRETATION OF DEEDS. 

KELKE'S Epitome of Rules for the Inteipretation 
of Deeds. Founded on Elphinstone, Norton, and 
Clark's Rules. 185 pages. Price 6s. 

LEGAL MAXIMS. 

BROOM'S Selection of Le^al Maxims, Classified and 
Illustrated. Eighth Edition. By J. G. Pease and 
Herbert Chitty. 767 pages. Price £1 ids. 

The main idea of this work is to present, under the head of 
"Maxims," certain leading principles of English law, and to 
illustrate some of the ways in which those principles have been 
applied or limited, by reference to reported cases. The maxims 
are classified under the following divisions : — 

Rules founded on Public Policy. 

Rules of Legislative Policy. 

Maxims relating to the Crown. 

The Judicial Offices. 

The Mode of Administering Justice. 

Rules of Logic. 

Fundamental Legal Principles. 

Acquisition, Enjoyment, and Transfer of Property. 

Rules Relating to Marriage and Descent. 

The Interpretation of Deeds and Written Instruments. 

The Law of Contracts. 

The Law of Evidence. 

"It has been to us a pleasure to read the book, and we cannot 
help thinking that if works of this kind were more frequently 
studied by the Profession there would be fewer false points taken 
in argument in our Courts." — Justice of the Peace. 



LOCAL GOVERNMENT. 

WRIGHT & H0BH0USE*5 Outline of Local Qovern- 
ment and Local Taxation in England and Wales 

(excluding London). Fourth Edition. With Intro- 
duction and Tables of Local Taxation. By Rt. 
Hon. Henry Hobhouse. 219 pages. Price 7s. 6d. 

'* The work gives within a very moderate compass a singularly 

[ 11 ] 



Local Qoyernment— continued. 

clear and ix^niprehensive aa:ount of our present system of local 
self-government, both in urban and rural districts. We are, in- 
deed, not aware of any other work in which a similar view is 
given with equal completeness, accuracy, and lucidity." — County 
Council Times. 

" Lucid, concise, and accurate to a degree which has never been 
surpassed." — Justice of the Peace. 

MENZIES* County District and Parish Councils, 

being a concise guide to their Powers, Duties, and 
Liabilities under the Local Government Acts of 1888 
and 1894. 270 pages. Price 4s. net. Postage 4d. 

"The explanatory chapters are clearly and concisely written, 
and the book will be useful to those who require to refer readily 
to the text of the statutes." — Solicitors' Journal. 

JACOBS' Epitome of the Law relating to Public 
Health. By Bertram Jacobs, Barrister-at-Law. 
191 pages. Price 7s. 6d. 

Specially written for students. 

; " This little work has the great merit of being an accurate guide 

to the whole body of law in broad outline, with the added ad- 
vantage of bringing the general law up to date. The one feature 
will appeal to the general student or newly-fledged councillor, and 
the other to the expert who is always the better lor the perusal of 

I an elementary review." — Municipal Officer. 

MORTGAGES. 

STRAHAN'S Principles of the Oeneral Low of 
iVlorts:as:es. By J. Andrew Strahan, Barrister-at- 
Law, Reader of Equity, Inns of Court. Second 
Edition. 247 pages. Price 7s. 6d. net. 

" He has contrived to make the whole law not merely consistent, 
but simple and reasonable. . . . Mr. Strahan 's book is ample 
for the purposes of students' examinations, and may be thoroughly 
recommended." — Law Journal. 

'* It is a subject in which there is great need for a book which in 
moderate compass should set forth in clear and simple language 
the great leading principles. This Mr. Strahan's book does in a 
way that could hardly be bettered." — Law Notes. 

[ 12 ] 



i"^ 



PARTNERSHIP. 

STRAHAN & OLDHAM'S Law of Partnership. By 

J. A. Strahan, Reader of Equity, Inns of Courts 
and N. H. Oldham, Barristers-at-Law. 275 pages. 
Price IDS. 

The appendices contain all the English legislation on the subject, 
the Rules of the Supreme Court ; and also sections of certain 
Indian Acts relating to partnership. 

"It might almost be described as a collection of judicial 
statements as to the law of partnership arranged with skill, so as 
to show their exact bearing on the language used in the Partner- 
ship Act of 1890, and we venture to prophesy that the book will 
attain a considerable amount of fame." — Student's Companion, 



PERSONAL PROPERTY. 

WILLIAMS' Principles of tlie Law of Personal Pro- 
perty, intended for the use of Students in Con- 
veyancing. Seventeenth Edition. By T. Cyprian 
Williams, of Lincoln's Inn, Barrister-at-Law. 655 
pages. Price £1 is. 

" Whatever competitors there may be in the field of real pro- 
perty, and they are numerous, none exist as serious rivals to 
Williams' Personal. For every law student it is invaluable, and 
to the practitioner it is often useful." — Lxiw Times. 

WILSHERE'S Analysis of Williams on Real and 
Personal Property. By A. M. Wilshere, Barrister- 
at-Law. 205 pages. Third Edition. Price 6s. 

This book is designed as an assistance to the memory of the 
student who has read the parent works. It contains a useful 
appendix of questions. 

" It will be found a most excellent aid to the student." — Law 
Students' Journal. 

KELKE'S Epitome of Personal Property Law. Third 
Edition. 155 pages. Price 6s. 

" On the eve of his examination we consider a candidate for the 
Solicitors' Final would find this epitome most useful." — Law Notes. 

** An admirable little book ; one, indeed, which will prove of 
great service to students, and which will meet the needs of the 
busy practitioner who desires to refresh his memory or get on the 
track of the law without delay." — Irish Law Journal. 

[ i« ] 



Personal Property — continued. 

OOODEVE'S Modern Law of Personal Property. 

With an Appendix of Statutes and Forms. Fifth 
Edition. Revised and partly re-written by J. H. 
Williams and W. M. Crowdy, Barristers-at-Law. 
461 pages. Price £1. 

PROCEDURE. 

ODQERS on the Common Law. See page 3. 

WILSHERE'S Outlines of Procedure in an Action in 
the King's Bench Division. With some facsimile 
forms. For the Use of Students. By A. M. Wilshere, 
Barrister - at - Law. Second Edition. 127 pages. 
Price 7s. 6d. 

This forms a companion volume to Wilshere 's Criminal Law, ajid 
the student will find sufficient information to enable him to pass 
any examination in the subjects dealt with by the two books. 

" The author has made the book clear, interesting, and instruc- 
tive, and it should be acceptable to students." — Solicitors' Journal. 

REAL PROPERTY. 

WILLIAMS* Principles of the Law of Real Property. 

Intended as a first book for the use of Students in 
Conveyancing. 22nd Edition. By T. Cyprian 
Williams, Barrister -at -Law. 717 pages. Price 

£1 IS. 

• Its value to the student cannot well be over-estimated." — Law 
Students' Journal. 

" The modern law of real property is, as he remarks in his con- 
cluding summary, a system of great complexity, but under his 
careful suj)ervision * Williams on Real Property ' remains one of 
the most useful text-books for acquiring a knowledge of it." — 
Solicitors' Journal 

WILSHERE'S Analysis of Williams on Real and 
Personal Property. Third Edition. 205 pages. 
Price 6s. 

This book is designed as an assistance to the memory of the 
student who has read the parent works. It contains g useful 
appendix of questions. 

[ 14 ]■ 



Real Property— continued. 



"Read before, with, or after Williams, this should prove of 
much service to the student. In a short time it is made possible 
to him to grasp the outline of this difEcult branch of the law." — 
Lair Magazine. 

KELKE'S Epitome of Real Property Law, for the use 

of Students, Fourth Edition. By W. H. Hastings 
Kelke, M.A., of Lincoln's Inn, Barrister-at-Law, and 
Adam Partington, Real Property Law Prizeman, 
&c. 214 pages. Price 6s. 

"The arrangement is convenient and scientihc, and the text 
accurate. It contains just what the diligent student or ordinary 
practitioner should carry in his head, and must be very useful for 
those about to go in for a law examination." — Law Times. 

OOODEVE'S Modern Law of Real Property. Fifth 
Edition. By Sir Howard Warburton Elphinstone, 
Bart., and F. T. Maw, both of Lincoln's Inn, Barris- 
ters-at-Law. 462 pages. Price 21s. 

" No better book on the principles of the law relating to real 
property could well be placed in a student's hands after the first 
elements relating to the subject have been mastered." — Law 
Students' Journal. 

ROMAN LAW. 

KELKE'S Epitome of Roman Law. 255 pages. 
Price 6s. 

This is a highly condensed summary of all the salient facts of 
Roman Law throughout its history, taking as its centre the era of 
Gaius and the .'\ntonines. 

" One of the safest introductory manuals which can be put into 
the hands of a student who wishes to get a general knowledge of 
the subject. In embodying many of the views of Moyle, Sohm, 
and Poste, it is more up-to-date than some of the older manuals 
which are still in traditional use, and much more accurate and 
precise than some of the elementary works which have appeared 
more recently." — Laiv Quarterly Review. 

KELKE'S Primer of Roman Law. 152 pages. Price 5s. 

" In this book the author confines himself mainly to the system 
of Justinian's Institutes, and as a student's ^uide to that text-book 
it should be very useful. The summary is very well done, the 
arrangement is excellent, and there is a very useful Appendix of 
Latin words and phrases." — Law Journal. 

I 15 ] 



7/ 



Roman Law — continued. 



HUNTER'S Introduction to the Study of Roman 
Law and the Institutes of Justinian. Sixth 
Edition. With a Glossary explaining the Technical 
Terms and Phrases employed in the Institutes. 
By W. A. Hunter, M.A., LL.D., of the Middle 
Temple, Barrister-at-Law. 228 pages. Price 7s. 6d. 

SHEARWOOD'S Roman Law Examination Guide. 

By J. A. Shear WOOD, Barrister-at-Law. Second 
Edition. 192 pages. Price 7s. 6d. 

CONTENTS. 

I. Analytical Tables. 2. Historical Sketch. 

3. Concise Analysis. 4. Questions A Answers 

5. List of Chans:es by Justinian. 6. Maxims. 

This is a most useful book for the student of Roman Law. Its 
utility may be gauged by the fact that practically every question 
set at a Bar Examination since the book was issued could be 
answered by a student who had read it. 

TORTS. 

ODQERS on the Common Law. See page 3. 

WILSHERE'S Analysis of Contracts and Torts, 

being an Analysis of Books III. and IV. of Odgers on 
the Common Law. By A. M. Wilshere and Douglas 
RoBB, Barristers-at-Law. 172 pages. Price 6s. 

It is designed as an assistance to the memory of the Student who 
has read the parent work. 

PRASER'S Compendium of the L^w of Torts. 

Specially adapted for the use of Students. By H. 
Fraser, Barrister-at-Law, one of the Readers to the 
Inns of Court. Ninth Edition. 251 pages. Price 8s. 

" It is a model book for students — clear, succinct, and trustworthy, 
and showing a practical knowledge of their needs." — Law Journal. 

WILLS. 

STRAHAN'S l-aw of Wilis. By J. A. Strahan, 
Barrister-at-Law, 167 pages. Price 7s, 6d. 

*'We do not know of anything more useful in its way to a 
student, and it is a book not to he despised by the practitioner.*' 
—^Law Magazine. 

[ 16 ] 



THIS BOOK 18 DUB ON THB LAST DATE 
STAMPED BELOW 



AN INITIAL FINS OF 26 0ENT8 

WILL BE ASSIB9KD FOR FAILURE TO RETURN 
THIS BOOK ON THE DATE DUE. THE PENALTY 
WILL INCREASE TO SO CENTS ON THE FOURTH 
DAY AND TO $I.OO ON THB SEVENTH DAY 
OVERDUE. 



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