Images de page


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(7) 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

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

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 interpational administration of his Empire."(1)

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.(?) 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,(0) 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 Modena.

VI. 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 concluded 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 prima 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(s) 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.

[ocr errors]


English subjects commorant or resident in Greece. It should also be added, that Greece does not appear to have formally protested against, or seriously objected to-probably on account of the undeniable inefficiency of her own internal police—the temporary introduction of these foreign troops into her territory.

With respect to the Balance of Power in the North, the Treaty between France, England, and Sweden of the 21st of November, 1855, is expressly founded on the principle of preserving it.

With respect to Naples, it appears that remonstrance having been addressed to the King of that State, upon the injustice practised towards political offenders, upon the general mal-administration of justice in that country, and upon the danger thereby accruing to the Italian peninsula especially, and generally to the peace of Europe, and such remonstrance having been rejected by the King, that England and France have withdrawn, in order to mark their condemnation of his internal policy, their ambassadors from his dominions. Such a proceeding it was certainly competent to them to take, according to the principles laid down in the second volume of this work respecting ambassadors.(t) It furnishes,

nevertheless, the strongest *example of passive intervention, so to [*ix]

speak, in the strictly internal affairs of a Foreign State which the world has yet seen. The facts, however, relating to the whole transaction, are as yet but imperfectly and inauthentically known. It is a curious illustration of the extent to which the doctrine of Religious Intervention(u) may be carried, that, according to some reports, the Persians justified their assault upon Herat on the plea that they intervened to protect their co-religionists of the Semitic Faith.(a)

The origin and causes of the War between England and Persia have not yet been fully stated on competent authority. The War between England and China has recently undergone a full and elaborate discussion in both Houses of Parliament. The House of Lords approved, the House of Commons condemned, the war. The portions of this memorable debate which will chiefly interest the International Lawyer are those which relate to the criteria by which the national character of a merchant vessel is to be ascertained, and to the distinction between Repri. sals and War.

The Annexation of the Kingdom of Oude to the British dominions depends for its justification upon the right application of the doctrines laid down in the first volume respecting the Rights of Acquisition(y) and of Intervention,(z) partly also on the Law of Treaties discussed in the second volume.(a)

*IX. The Convention (proposed 14th October, 1854, confirmed [*x] 18th of October, 1855) of Nagaski, between England and Japan,

** is not an unimportant extension of International relations to a part of the globe from which they have been hitherto practically excluded. By that Convention, certain ports are open for certain purposes to British ships, and the jurisdiction of British authorities over British subjects in Japanese ports is retained : and ships of war, in the necessary performance of their duties, have a general right to enter all the ports of Japan; but, unless compelled by necessity, they, like the merchant ships, are confined to certain ports named in the Convention.(6)

(1) Vide Vol. II. p. 148.

(u) Vide ante, Vol. I. p. 470. (x) The Times, November 8, 1856. (y) Vol. I. Part III. Ch. XII. (2) Vol. I. Part IV. Ch. I.

a) See also remarks as to the binding character of International Law between Christian and Heathen civilized States, Vol. I. pp. 22-6.

X. The CONDUCT, and still more the CONCLUSION, of the recent War must always be memorable to the historian or the expounder of International Law.

In the former Great Britain waived,(c) in the latter she abandoned, one of the most certain and highly valued Belligerent Rights, namely, the right of confiscating enemies' goods found on board neutral vessels.(d)

The mode of abandoning this right was little less remarkable than the abandonment itself. The abandonment of that Right was not formally incorporated in the provisions of a treaty, but was stated in a Declaration accompanying the Treaty, with the objects of which, however, it had no natural connection.

This anomalous Declaration, whatever may be its binding effect, was signed by most of the European States, but not by the State the most interested, and-next *to Great Britain—the best acquainted with the subject the United

States of North America. On the con- [*xi] — trary, but a few months afterwards,(e) this State formally declined—as it was perfectly competent to her to do—to sanction the general principle of abandoning Privateering,--that is, of carrying on war by the aid of the individual exertions of the Subject as well as of the Government,upless, indeed, the same Powers would agree to a Treaty securing the free navigation of the sea to all merchant vessels whatsoever.

This is not the place in which the expediency of the abandonment of this great maritime Right of the Belligerent can be fully discussed; but, it may be observed, that a defence which has been put forth, namely, that nations are defeated by fleets and armies, and not by attacks upon their commerce, does not appear either very well founded in history or well supported by reason.

It is obvious that the food and the means which procure the food of your enemy are as valuable to him, to say the least, as his weapons or his ships. It is no less obvious that wars are always shortened, and frequently ended, by the privations of the Subjects of the Belligerent. These privations of the Subjects, the inquiries which they sharpen, and the demands which they beget, are the natural correctives of the ambition and passion of Rulers.

It is, moreover, surely plain, that the Neutral who is the carrier of the commerce of the Belligerent, enables him to convert his commercial into his military marine, and greatly to increase and strengthen the latter.

Nor is it a light objection that a state of things is produced, in which

(6) Correspondence respecting the late negotiations with Japan, laid before Parliament, 1856.

(c) Vide pp. 292, 293, and Pt. IX. Ch. X. of this volume.
(d) Vide p. 294 of this volume. (e) August, 1856.

the Governments of States are at war *while their subjects are [*xii]

at peace. Lately, indeed, it has been suggested at public meetings, that the commerce of Belligerents should continue to be carried on in War as in Peace; that being the condition on which the United States of North America offer to abandon the right of Privateering. Let it, however, be remembered, that to redress a present injury, to take security against a future transgression, are the only legitimate causes of war: and that in such cases, “ toto certatum est corpore regni.” The continuance of commercial intercourse between the subjects of the offended and the offending nations is, as a matter of Public Law, utterly destructive of the first notion of allegiance on the part of subjects to their respective sovereigns: and as a matter of International Law, the proposition that the will of the subject is, so far as other States are concerned, bound up in the will of his government, is a proposition of the most vital importance to the due administration of International Law, and to the peace of the world. After all, the question is whether the tendency of these exemptions is not to prolong hostilities, to protract the horrors of war: are they not, in truth, devices for making war perpetual rather than real mitigations of its attendant calamities?

“ If we were to go to war with the United States of North America it would not much matter, we could carry on our trade all the same,' was the language of a merchant to the author when this fundamental change in the principles of Public and International Law was proposed. Such a remark bore true testimony to the fact that, by this fundamental change, one great check imposed by Providence upon the hasty beginning of this terrible scourge is removed; and the same observation applies,

with at least equal force, to its continuance. How many *wars [*xiii] have been, in fact, ended by the sufferings which their duration

* inflicted upon the subjects of the Belligerents ? or rather, who, looking back into history, can fix a probable period of termination to many wars kindled by the passions of Nations or of their Governors, if the commerce of the Belligerents had remained unaffected? or if the famous, but perhaps legendary, precedent of the two Dutch admirals—who, commanding antagonist fleets, sold powder to each other, and, most commercially, contributed to their own destruction—had been generally followed ?

XI. The important International questions of the Sound Dues levied by the Crown of Denmark, have been the subject of several State Papers, and are now under the consideration of the Governments of all civilized States. (f)

Those who are interested in the progress of International Justice, may look with satisfaction upon the general state of feeling and usage throughout the civilized world upon the much vexed question of Foreign Enlistment.(9) There is no International subject perhaps in which, during the last thirty years, so decided an improvement has taken place. The

(f) Vol. I. pp. 201, 217.

See Papers and Report of Committee laid before Parliament on this subject in 1856.

(9) See this volume, p. 209, &c., and Vol. I. pp. 397, 398, Appendix, pp. 504-14.

« PrécédentContinuer »