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ROBERT PHILLIMORE,
ADVOCATE TO HER MAJESTY IN PER OFFICE OF ADMIRALTY,

JUDGE OF THE CINQUE, PORTS.

“Wars are no massacres or confusions, but the highest trials of Right."

Bacon, Certain Observations upon a Libel, &c., 1592.
“Lex est .. Communis Reipublicæ Sponsio.”—Dig. 1. i. t. iii. & 1.

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PHILADELPHIA:

T. & J. W. JOHNSON & CO.,
LAW BOOKSELLERS AND PUBLISHERS,

NO. 535 CHESTNUT STREET.

1857.

Rec. Apr. 1862

Robb, Pile & M'Elroy, Pr's.

Lodge Street

PREFACE.

This volume completes the system of Public International Law, and fills up

the outline sketched out in the first volume of this work.(a) I. Since the publication of the last (the second) volume, great events have happened in the history of the Community of States. Some of these are noticed in the following pages; others belong to the subjects which have been already treated of in the preceding volumes. It is proposed to draw the attention of the Reader to these events in the following imperfect sketch :

II. Turkey has been formally, and in a manner to place the question beyond all doubt, admitted, by the Treaty of Paris,() into the family of States(c) which are bound, not only, as all States are, by the principles of PUBLIC INTERNATIONAL LAW, but by those usages and customs which constitute what may be considered the Positive Law of Christian Communities. The object of the new Treaty of Paris is to secure, “through effectual and *reciprocal guarantees, the independence and integrity of the Ottoman Empire."(d) This result is the subject of a

[*iv] common Guarantee.(e) The Plenipotentiaries declare that “the Sublime Porte is admitted to participate in the advantages of the Public Law and system (concert) of Europe. (f) This proposition must receive, as to PRIVATE INTERNATIONAL LAW, some obvious limitation from the very nature of Mohammedanism : though it be true that this religion is professed by a comparatively small number of the subjects of European Turkey; but the proposition holds good as to PUBLIC INTERNATIONAL Law; and the fact which it affirms marks an important epoch in the History of the Progress of International Jurisprudence. For if Turkey has acquired the Rights, she has also subjected herself to the Duties of a civilized Community. How long this new condition of thing, so utterly

(a) The reader is referred upon this point to the concluding pages of the present volume.

(b) This Treaty is printed in the Appendix to this volume.

(C) Vide ante, Vol. I. pp. 113-17, as to the effect of the Treaty of Adrianople in 1829, and of usage upon this point. (d) Preamble.

(e) Article vii. () Art. vii. of the Treaty of Paris, 30 March, 1856.

at variance with the former traditions and habits of Christendom, may endure, is a speculation without the province of this work. It is to be remarked, however, even in this place, that this condition is the more complicated because the same Treaty which recognizes this quasi-Christian status(9) of the Turkish Empire, contains the following most singular provision, which might almost seem intended at once to recognize and to prohibit the Right of INTERVENTION by the Powers of Christendom on behalf of their co-religionists :

“ His Imperial Majesty the Sultan having, in his constant solicitude [*v]

for the welfare of his subjects, issued a *firman which, while ame

liorating their condition without distinction of religion or of race, records his generous intentions towards the Christian population of his empire, and wishing to give a further proof of his sentiments in that respect, has resolved to communicate to the Contracting Parties the said firman, emanating spontaneously from his Sovereign Will.

“The Contracting Powers recognize the high value of this communication. It is clearly understood that it cannot, in any case, give to the said Powers the right to interfere, either collectively or separately, in the relations of His Majesty the Sultan with his subjects, nor in the international administration of his Empire.”(h)

The Principalities of Moldavia and Wallachia are placed under the Suzeraineté of the Porte, and the Guarantee of the Protecting powers, but without any separate right of interfering in their internal affairs."

III. Another event of great International importance, which has happened since the publication of the former parts of this work, is the recent CONCORDAT entered into between the Austrian Empire and the Pope.

It will be seen, from a comparison of this Ecclesiastical Treaty with former instruments ejusdem generis entered into between these two Powers, and mentioned in the last part of the preceding volume, how wide and grave a departure Austria has sanctioned, both from the traditions of her own previous policy, and from the International usages of other States. The recent Spanish CONCORDAT preserves in express lan[*vi]

guage the ancient rights.of the Crown.

*IV. The Black Sea(k) is neutralized : its waters and its ports, thrown open to the mercantile marine of every nation, are formally and in perpetuity interdicted to the flag of war, either of the Powers possessing its coasts, or of any other Power.(1) Russia and Turkey are allowed to keep light vessels for the service of the coasts, and each of the Contracting Powers have the right to station at all times two light vessels at the mouths of the Danube.(m)

V. The opening of the great River St. Lawrence justifies the opinion expressed in the first volume of this work(n) respecting the expediency

(9) The Sultan has even received from the Queen of England the essentially Christian Order of the Garter. (h) Article ix.

(k) Vol. I. p. 216. (l) Article xi. of the Treaty of Paris, 1856. (m) Articles xiv., xix.

(n) Vol. I. pp. 181, 182.

of allowing to the whole world the benefit of this great channel of traffic. The free navigation of the Danube, secured by the recent Treaty of Paris,(o) places this magnificent stream under the same Public Law of Europe to which other European rivers, flowing through the territories of different States, have been subjected by the Treaty of Vienna.(P) Certain provisions also with respect to the freer navigation of the Po have been the subject of Treaty(9) between Austria, Parma, and Medena.

VL The recent Treaty with Honduras will, it may be hoped, cover any defects which were alleged to have existed in the Clayton-Bulwer Treaty with respect to a free passage over the Inter-oceanic Isthmus of America, the beneficial consequences of which to the future intercourse of States are yet to be developed by the marvels *of Electricity and Steam. A Treaty coneluded at London (December 23rd,

[ *vii ] 1856,) between England and the United States, of North America, appears to settle the much vexed question relating to the territory of the Mosquito Indians, the Republics of Nicaragua and Costa Rica, and the condition of the Porte of Greytown or San Juan. By this Treaty, England and the United States of North America agree to propose certain arrangements to the Republics of Nicaragua and Costa Rica, which there can be no reasonable doubt will be accepted.

VII. The decision of the Judge of the High Court of Admiralty and Prize upon the International status of the Ionian Islands furnishes the first recorded instance of a formal adjudication by an English Court of International Law upon a subject of this character. Indeed, the peculiarity both of the Public and of the International status of this Septinsular Republic(r) presented a case primæ impressionis. The judgment was not appealed from. It rests, therefore, upon the authority of the Court which delivered it.

VIII. The doctrines of GUARANTEE and INTERVENTION(8) have received additional recognition and confirmation from the practice of the European States.

With respect to GUARANTEE, the case of Turkey has been already mentioned. Moreover, the liberties of that important member of the Scandinavian Society of States, Sweden, were formally guaranteed by England and France during the recent war with Russia.

The succession to the throne of Denmark has also become the subject of European guarantee.

*With respect to INTERVENTION, Greece has afforded an instance in which this exceptional right, the offspring of necessity,

[*viii] has been exercised both by France and England, as it should seem (but the case is not quite clear) upon two grounds : (1.) That the sending of foreign troops to Greece was necessitated by the unneutral conduct of the Government of that country towards Russia, the enemy of France and England ; (2.) and also that this course was justified by the open, notorious, and admitted insecurity of life and property to French and

(0) Articles xv., xix.
(p) Vol. I. Part III. Ch. V. (2) De Cussy and De M. Tr. t. vi. p. 293.
(T) Vide ante, Vol. I. p. 94.

(8) Vide Vol. I. Pt. IV. Ch. I.

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