Introduction to the study of international law, designed as an aid in teaching, and in historical studies...

Introduction

TO THE STUDY OF

[NTERNATIONAL LAW.

DESIGNED AS

AN AID IN TEACHING, AND IN HISTORICAL STUDIES.

BY z

THEODORE D.'WOOLSEY.

FIFTH EDITION REVISED AND ENLARGED.

NEW YORK:

CHARLES SCRIBNER’S SONS,

Entered according to Act of Congress, in the year 1871, by CHARLES SCRIBNER & CO.,

In the Office of the Librarian of Congress at iVashington.

Entered according to Act of Congress, in the year 1871, by SCRIBNER, ARMSTRONG & CO.,

In the Office of the Librarian of Congress at Washington.

CoPTaiGHT, 1878,

Br CHARLES SCRIBNER’S SONS.

RIVERSIDE, CAMBRIDGE : ELECTROTTPED AND PRINTED BY H. 0. BODGHTON AND COMPANY.

To

THE MEMBEES OE THE INSTITUT DE EEOIT INTEEN ATIONAL,

THIS

FIFTH EDITION OF HIS INTRODUCTION TO THAT

STUDY IS

BY THEIR COLLEAGUE,

THE AUTHOR.

Preface To The Fourth Edition

The first edition of this work appeared in 1860, and the second, with much new matter and some changes of order, in 1864. A third in 1871, besides other additions, was enlarged by an important supplement to the second Appendix, bringing the list of treaties down as nearly as possible to the time of publication, and by a third Appendix containing notes on topics either briefly spoken of in the body of the work or newly brought into prominence during the war of the rebellion. The fourth edition now follows, in which quite a number of corrections, more or less important, are introduced into the main text ; an addition is made to the list of writem on international law, and of collectors of diplomatic documents; the treaties are brought down to the present time ; and the third Appendix is closed by a note discussing the case of the Virginim.

In regard to corrections, the reader is referred to §§ 55, 58, 122, 152, and 163 as containing the principal ones ; and he is requested also to consult the notes in the third Appendix in connection with the text to which they relate. It would have suited both writer and reader better to have had these notes inserted in the text, but stereotype plates put books into a strait-jacket Avhich it is hard to throw off.

The title-page describes this Avork so aptly that a few words only need to be used in regard to its plan and object. The author had been engaged for a number of years in teaching international law and in giving lectures on history. The forAvard movement of this law over the world, the possibility

VI

PREFACE TO THE FOURTH EDITION.

of a universal law of nations, spreading itself like the universal Gospel over mankind, was the thought of greatest interest attending on the study. Naturally the historical treatment suggested itself, so that, while positive law took the first place, with justice going by its side, to serve as standard and monitor, the history of the science, of its advances, its fixed points, its uncertainties, was never left out of sight. The list of political treaties in the second Appendix, which a student in this country could not conveniently find elsewhere, will, it is hoped, throw light on the body of the work, and make some of the historical references more intelligible.

The method pursued, of itself, points out the class of readers to Avhom the work is addressed. It is not intended principally for lawyers, but for young men of liberal culture, in preparation for any profession or employment, who need the enlai’ging influences of a study like this ; Avho, in a republic like ours, are in a degree responsible for the measui’es of the government, and therefore ought to know what is acknoAvledged justice between state and state.

In concluding this preface the author may be permitted to say that he is conscious of no bias, national or other, in his exhibition of the science. The United States, on the Avhole, have had an honorable diplomatic history, partly, perhaps, if not mainly, OAAung to their being removed from the close intercourse and mutual jealousies of the nations of the Old World. Yet Ave liaA’e done Avrong, and in this Avork there has been no hesitation to condemn such wrong where it seemed to exist. And such ought ever to be the practice of a good citizen.

New Haven, June 1, 1874.

Preface To The Fifth Edition

In this edition, which is doubtless the last that the author will live to superintend, the whole work has been carefully revised ; much neAV matter has been added ; the sections relating to private international law, in the strict sense of the term, have been suppressed ; and the notes and discussions in the third Ap}>endix of the third and fourth editions have been inserted in the text, either as parts of it or as annotations. For certain notes in which the letters T. S. appear, I am indebted to a friend, wlio has used the book in his instructions, and has kindly placed them at my disposal.

New Haven, November^ 1S78.

Contents

INTRODUCTORY CHAPTER.

DEFINITION, GKOWTH, JURAL AND MORAL GROUNDS, SOURCES OF INTERNA- ' TIONAL LAW.

§ 1, 2. A law of action, for states as for individuals, founded iu justice.

Chapter I

RIGHTS OF STATES AS INDEPENDENT SOVEREIGNTIES. RULE OF NON-INTER- FERENCE AND ITS EXCEPTIONS.

§ 36. A state, what ? Pirates no state.

§ 37. Essential attributes of a state. Sovereignty, independence, equality, all included in sovereignty. May he parted with by confederated and by jirotected states.

§ 38. Obligations not affected by change of government.

§ 39. All forms of government legitimate in the view of international law.

§ 40. It knows only governments de facto.

§ 41. Same subject continued.

§ 42. As.sistance to provinces in revolt unlawful, but aid to another state against rebellion lawful.

§ 43. Non-interference the rule, but with e.Nceplions. Interference when justified.

§ 44. Interference to jireserve the balance of power.

§ 45. Historical illustrations of such interference.

§ 46. Interference to prevent revolutions.

§ 47. Instances of such interference in the French revolution. The Holy Alliance. Congress of Troppau-Laybach. Congress of Verona.

§ 48. The Monroe doctrine.

§ 49. Results of an attemjjt to establish a law of interference in the internal affairs of states.

§ 50. Interference in the Belgic revolution of 1830.

§ 51. Interference on the score of religion and humanity.

§ 52. Equality of states. Their rank. Existing rules of rank. These distinctions fading out.

CONTENTS.

XI

CHAPTER 11.

TERRITORIAL RIGHTS OF STATES AND RIGHTS OP PROPERTT. STRICT EIGHT RENOUNCED IN THE USE OF NAVIGABLE WATERS.

§ 53. Property of states what, in international law 1

§ 54. Consent of inhabitants of transferred territoiy sometimes asked.

§ 55. Modes of acquiring territory.

§ 56. What is included in territory.

§ 57. National character of the coast-sea.

§ 58. Are vessels on the sea territory 1

§ 59. Freedom of the high seas and of fishery there. Fishery question between Great Britain and the United States, until its settlement by the treaty of 1854.

§ 60. Claim of exclusive control over certain waters. (1.) Bays. (2.) Gulfs.

§61. (3.) Straits and inland seas. The Danish straits. The Black Sea and

its entrance.

§ 62. (4.) Rights over river navigation. Rule of Congress of Vienna. The Rhine. The Scheldt. The Danube by the treaty of Paris. The Mississippi. The St. Lawrence. The La Plata system of rivers. The Amazon. Other streams.

Chapter III

RIGHTS OF INTERCOURSE. RELATIONS OF FOREIGNERS WITHIN A TERRITORY

OF THE STATE.

§ 63. Intercourse of states, how far a right. What a state may not do respecting intercourse.

§ 64. What a state may do.

§ 65. Individual aliens entitled to protection. Right of asylum, of innocent passage, of emigration.

§ 66. Relations of aliens to the laws, and their condition.

§ 67. Progress of comity and humanity towards aliens illustrated. Lh'oit d’aubaine.

§ 68. Exterritoriality, its limits as to sovereigns, ships of war, armies in transit, vessels in French harbors. Treatment of vessels driven into foreign waters out of their course.

§ 69. Exemptions to foreigners in certain Eastern countries.

§ 70. Aliens parting with the character of aliens. Naturalization. Rules of several nations as it respects naturalization.

§ 71. Domicil, what ?

§ 72 Conflict of laws as to a pariicular person.

§ 73. Private international law, what 1 Its growth. Its leading rules show tendency of nations to similar principles of law.

§ 74. Jural capacity.

§75. Effects of foreign judgments.

Xll

CONTENTS.

§ 76. Crimes committed in a foreign country.

§ 77. Criminals escaping into a foreign country. Extradition.

§ 78. Extradition continued.

§ 79. Political crimes.

§ 80. Appendix. Case of Martin Koszta.

Section I. — The Forms of Intercourse, or International Courtesy

§ 81. General comity between nations.

§ 82. Respect for the reputation of another state. The Hulsemann affair.

§ 83. Treatment of foreign sovereigns, etc. Ceremonial of courts. Diplo matic correspondence of states.

§ 84. Ceremonial of the sea. Forms of politeness there.

§ 85. Disputes in Cent. XVII., concerning ceremonies at sea.

Section II. — The Ayents in the Intercourse of Nations; or Ambassadors and Consuls

§ 86. Persons appointed to manage the intercourse between nations.

§ 87. Origin of the privilege of ambassadors.

§ 88. Temporary and resident ambassadors.

§ 89. Is there any obligation to receive ambassadors 7 § 90. Right of sending ambassadors.

§ 91. Privileges of ambassadors.

1. Their inviolability.

2. Their exterritoriality, as (1.) Immunity from criminal. (2.) From

civil jurisdiction.

§ 92. Immunity of their hotel and goods — without right of asylum for criminals.

§ 93. Freedom from imposts.

§ 94. Freedom of private worship.

§ 95. Privileges of ambassador’s family and train. His power over his suite. § 96. Limits of his immunity, — ambassador engaging in trade — committing great crimes.

§ 97. Relations of an ambassador to a third power.

§98. Rank of ambassadors, — ceremonial, — termination of their mission.

§ 99. Consuls. Origin of the con.sular office. Consuls of the Middle Ages.

§ 100. Functions of consuls. Their jurisdiction out of Christendom. Their privileges and status. Their privileges in non-Christian countries Who can serve as consuls.

CONTENTS.

xiii

Chapter V. Of The Right Of Contract, Or Of Treaties Betiveen States

§ 101. Of contract in general, especially between slates. With whom can states make contracts 1

§102. What treaties are lawful ? '

§ 103. Treaties made by a limited sovereign

§ 104. Treatic.s procured by fraud, falsehood, or force, not binding.

§ 105. Treaties to do an unlawful thing not binding.

§ 106. Kinds of treaties.

§ 107. Treaties of alliance.

§ 108. Treaties of confederation.

§109. Treaties of guaranty. Guaranti(sof treaties. Origin of guaranties to treaties.

§ 110. Other modes of confirming the faith of treaties. Hostages. Pledges. §111. When do treaties begin to be binding?

§112. Violation of treaties.

§ 113. Interpretation of treaties. Rejmguant clauses and conflicting treaties.

Chapter I

OF A nation’s RIGHT OF SELF-DEFENSE AND REDRESS OF INJURIES OR OF ■WAR, CAPTURE, AND TREATIES OF PEACE.

Section I. — Of ]Vur.

§ 114. Of w'ar in general.

§ 1 15. War and just Avar, Avhat ? Who is to judge of its justice ? Are nations bound to resort to arbitration ? Ought an ally to judge ?

§ 116. Rightfulness of Avar. For what may Avar be undertaken ?

§ 117. Defensive and offensh'e war.

§ 118. Measures for redress falling short of AAar. 1. Embargo. Hostile embargo. 2. Retorsion. 3. Reprisals. Greek and Roman, mediiEA'al and modern usage as to reprisals.

§ 119. Pacific blockade.

§ 120. Commencement of war. Declaration. Greek and Roman practice. MediiEval practice. Modern. Reasons for the modern usage.

§ 121 Declaration of Avar continued.

§ 122. What notice of a state of war ought to he given?

XIV

CONTENTS.

§ 12.3. Effects of war. Non-intercourse with the eiicnit'. License to trade.

§ 124. Enemy’s property within a belligerent country.

§ 1 25. Have all in each hostile state a right to wage war 1 § 126. Treatment of enemy’s property on laud and sea compared.

§ 127. Forces employed in war, especially on the sea. Privateers.

§ 128. Evils of ])rivatecring. Testimony to these evils. Endeavors to stop it by treaty. Declaration of Paris, i85G. Attitude of the United States.

§ 129. Kestriciions on privateering to prevent its evils.

SiccTio.v II, — Iaiws avd Usages of War, especialhj on Land.

§ 130. Laws and usages of war somewhat vague, yet improving. Causes of this amelioration.

§ 131. Fundamental rules of war.

§ 132. Petaliation.

§ 133. Special rules. (1.) As to weapons and ways of injuring an enemy’s person. (2.) Allowable weapons in war. (3.) Breach of faith. Solicitations to crime.

§ 134. (4.) Treatment of captured persons, especially of soldiers. (5 ) Treatment of irregular troops.

§ 135. (6.) Of non-combatants and their property. Usages of the Romans, of the Middle Ages, etc., of the Thirty Years' War, of the time of Louis XIV., of Frederick the Great, of the English in the American war, of Napoleon

§ 136. Summing up.

§ 137. (7.) Of public property.

§ 138. (S.) Sieges and storms of forts and towns.

§ 139. Laws of war on the sea.

§ 140. Commercia belli.

§ 142. Attempts to ameliorate the practice of war on land. The Brussels Conference.

Section III. — Of Civil irar.s. Wars with Savages, Piracg, and the Slave-trade

§ 143. Civil wars. Wars with savages.

§ 144. Pirates and their treatment.

§ 145. Arc crews of rebels’ vessels pirates'?

§ 146. Is the slave-trade piracy ?

Section IV. — Of Capture and Recapture, Occupation and Recovery of Tetritory § 147 Capture in general, especially from enemies

§ 148. Property in prizes, how and when begun ?

§ 149. Complete title given by a court.

§ 150. Ransom of captured vessels. Hostages to secure ransom.

§151. Recajiture. Rights of the original owner. Jus posiliminii.

§152. Rewards for capture and recapture. Salvage. Its amount.

§ 153. Effects of temporary conquests.

CONTENTS.

XV

Section V. — Of the Suspension and Close of War, especiall// of Truce and Peace

§ 154. Intercourse in war, (1.) For the purposes of war.

§ 15.5. (2.) Licenses and safe conducts.

§ 156. Truce or armistice.

§ 157. Time wlicu a truce licgins. End of a truce.

§ 158. Peace, what? Of treaties of peace in general Language used in treaties.

§ 159. Eestrictions on the power to make peace.

§ 1 60. Effect of treaties of peace.

§ 161. Continued.

§ 162. Time when a treaty begins to be binding.

Section I. — Of the Obligations and Rights of N&Ural States

§163. Doctrine of neutrality of modern growth. Neutrals, who ? Gradations of neutrality. Permanent neutrality. Armed neutrality.

§ 164. Obligation of neutrals to be Impartial.

§ 165. To stand aloof from both parties.

§ 166. To be humane to both.

§ 167. The neutral may admit into hi.s jiorts war vessels of both belligerents.

§ 168. Treaty obligations to do this.

§ 169. Wliat neutrals may not do.

§ 170. Case of the Alabama.

§ 171. Cases doubtful or disputed. Passage of troops.

§ 172. The neutral furnishing troops.

§ 173. What may a neutral’s subjects do ?

§ 174. Rights of neutrals. Case of the Caroline.

§ 176. iMiinieipal law.s enforcing neutrality.

§ 177. Rritish foreign enlistment act of 1870.

§ 178. Case of the British ambassador in the Crimean war.

§ 179. Relation of neutrals to the parties in an internal war.

§ 180. Recognition of belligerency.

§ 181. Right of stopping trade of neutrals with revolted territories.

Section II. — Of the Rights and Liabilities of Neutral Commerce

§ 182. Importance of questions touching rights of neutral trade.

§ 183. Who are neutrals, and what is neutral property?

§ 184. General principles as to liability of goods to capture.

§ 185. Nationality of goods and vessels, as affecting their liability to capture.

§ 186. Treatment of vessels conveying hostile goods.

S 187. Justice of the rules respecting neutral trade considered.

XVI

CONTENTS.

§ 188. Former practice in regard lo neutral trade.

§ 189. Historical illustrations.

§ 190. Declaration attached to the Peace of Paris in 1856.

§ 191. Opinions of publicists.

§ 192. Neutral property in armed enemies’ vessels.

§ 19.3. Contraband of war.

§ 194. What goods arc contraband in the usage of nations.

§ 195. Pesults as to deciding what articles are contraband. Occasional contraband.

§ 196. Is it just and sanctioned by usage. 0|)inions in respect to it.

§ 197. Preemption. English ])ractice in c.ases of |ireemption.

§ 198. Penalty for contraband at sea. Tieaty modifying the penalty.

§ 199. Neutrals carrying the enemy’s despatches. Case of the Trent.

§ 200. Trade closed in peace but open in war.

§ 201. The same subject continued.

§ 202. Blockade. What places can be blockaded 1 VVby is a breach of blockade unlawful ? Validity of a blockade. Paper or cabinet blockade unlawful.

§ 203. Evidence of a blockade What is due notice ? What is a discontinuance of a blockade 1

§ 204. French and English practice as to notification.

§ 205. Penalty for breach of blockade. Duration of liability to penalty.

§ 206. Attempts to stretch the rules of blockades. Berlin decree. Orders in Council. Milan decree. British Orders in Council of 1809.

§ 207. Continuous voyages.

§ 208. The right of search. Its narrow limits. Duty of submitting to it. Treaties often regulate tbe right.

§ 209. Is there a right of convoy 1 Historical illustrations'.

§210. Its justice considered.

§211. Neutrals under belligerent convoy.

§ 212. Search during peace lo c.xecute revenue laws.

§ 213. Search on suspicion of piracy.

§ 214. Search of vessels on the high sea suspected of hostile designs. Case of the Virginius.

§ 215. Search of foreign vessels suspected of being slaver.s, unauthorized.

§ 216. But conceded by treaties between most of the European states. Examples of such treaties.

§217. Obligations of the United States in regard to the slave-trade. Besolutions of Congress, February 28, 1823. Negotiations in England, and Convention of 1824, amended by the Senate of the United States, then rejected by England.

§ 218. Treaty of Washington in 1842. Practice under the treaty.

§219. What docs the right of search mean 1 Doctrine held by the United States. New discussion concerning the right in 1858, 1859. New arrangements with Great Britain in 1862.

§ 220. Nationality of vessels a legitimate matter for inquiry in peace.

§ 221. Right of search for her seamen, claimed by Great Britain.

CONTENTS.

XVll