Commentaries Upon International Law

Debate in the Commons on the Definitive Treaty of Peace.-Speech of the Master of the Rolls. [Hansard's Parliamentary History (1802), vol. xxxvi. pp. 801-3.]

"With respect to the non-revival of Treaties, he was of opinion "that those gentlemen who had brought forward arguments against "this omission in the definite Treaty, had argued against themselves. They had brought forward claims on the part of France, which "they admitted were utterly destitute of foundation. They had as"sumed an injustice on the part of France, and proved that former "Treaties ought to have been revived by the very same arguments "which would render those Treaties absolutely nugatory; for, if "France disregarded Treaties for the purpose of reviving former "claims, which had been settled by those Treaties, then all Treaties. "with her would be useless. If this was the character of the French "Government, we ought to be constantly at war with her, and publicly to state the reason of it. Confidence begot confidence; "and if we entertained these opinions of France, we should be acting "in the same manner as the French Directory, who received every "declaration of ours with a declaration on their side that they doubted our sincerity. It was certainly not fair to put into the mouth of "France claims and pretensions which we ourselves reprobated and "condemned. With respect to the general ground of the revival "of former Treaties, he was not disposed to admit the propriety of "it; but he supposed that some motive which he had not been "able to discover had induced the renewal of former Treaties in "other negotiations. There were some instances, at least, in which, "as in the present case, if former Treaties were renewed, they would "be renewed without an object to refer to. France had generally "begun in former Treaties with the renewal of the Treaty of West“ phalia, and proceeded forward from thence. It was asserted, that "we had in this instance departed from the established law of "nations; but respecting the practice, it was not so uniform as it "seemed to be supposed. Treaties had been before made with "France, in which no mention was made of former Treaties; in the "Treaties of Ryswick and Utrecht, for instance, no mention was "made of former Treaties; yet Europe stood as before. There were several Treaties between this country and France, which, if now renewed, would not only have no object to refer to, but would "be absolutely contrary in their operation to the present situation "of affairs. In adverting to the renewal of former Treaties, it should "have been stated for what purpose they ought to be renewed; for "unless gentlemen could show him some benefit to be derived "from that renewal, he should see no reason for it. One effect was stated to be the consequence of this omission, which was, that all Treaties not renewed fell to the ground. There

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were some which he thought it was of little consequence whether they fell to the ground or not. For instance, if a cession was made, it became absolutely part of the dominion of the country "to which it was ceded; it was of no consequence that the Treaty 66 was not renewed in the event of a war and a subsequent peace, as "the territory ceded could not revert back to the party ceding. "Thus, with respect to the Bay of Honduras, which had been alluded Ito, it was said to be doubtful; our right to cut logwood there was "not done away by the non-renewal of former Treaties. In the first place, however, it was not very clear that we derived our title to it "from a Treaty; and in the next, we were in possession of the right "of property at the commencement of the war, which we had re"tained, and still held at the conclusion of the war. The right of property, therefore, still remained in this country, and there could "not be a clause inserted in the Treaty to give us that which we "had never lost; we merely restored what we had taken possession "of; what we had before possessed in our own right must remain "vested in the same manner, without any necessity for its being so stipulated by Treaty."

Speech of Dr. Lawrence.-Ibid. p. 806.

"He would not plead for the indiscriminate renewal of all our "political and commercial Treaties, but there were some which he thought it would have been wise to renew, and not to rely solely upon the Treaty before the House, in which nothing definitive was "to be found, and yet it was to form the basis of the future system of "Europe; the principles and practice of all former statesmen being "totally rejected. The vessel of the State was to be thrown afloat on the ocean of politics and commerce, with no rudder but the very "distinct and comprehensive Treaty on the table."

INDEX.

Abreu y Bertodano (De Felix Joseph de),
Tratado Juridico Politico sobre Presas
de Mar, &c., 412, 568, 662

(Joseph Antonio de),
Colleccion de los Tratados de Paz, Alli-
anza, Neutralidad, &c., 626, 662, 778
Abrogation of Treaties by War, 804
Adams (Mr.), Secretary of State. Letter
to Mr. Anderson (1823), 320
Admiral, Lord High, has Benefit of all
Captures made at Sea by non-commis-
sioned Vessels, 599. Vessels seized in
Ports or Harbours belong to, 687
Admiralty, Advocate, functions of, 687
Black Book of the, 545

Court, Register of, requisite

Qualifications for, 663

Droits of, 600

High Court of, Jurisdiction of,
in Matters of Booty, 221
Aix-la-Chapelle, Treaty of, between France,
and Spain, and England (1748), as to
Restoration of Prizes, 94

Alabama Claims, the, 14, 258. See Geneva
Arbitration

Albericus Gentilis. See Gentilis
Alien (Enemy and Corporation), Effect of
War upon, 134. Incapacity to sue during
War, ib.

may be Witness in Prize Suit, 724
Allegiance, Effect of Conquest upon Sub-
jects of conquered Country in respect to,

868

Allied Fleets, Joint Captures by, Rule as
to sharing, 612

Allies, Effect of War upon Subjects of, 126.
Joint Captures made with Fleet of, 612.
Rule as to restoring Property or Ships
of, recaptured from common Enemy, 637.

See Recapture. Penalty applied to, for
trading with Enemy, in War, 744.
Power of Conqueror to seize Enemy's
Debts and Property, situate in country
of, 827

Alsace. Inhabitants of, obliged to make
choice of Nationality, 872

Ambassadors, Exemption of Person and
Property of, from Seizure under Re-
prisals, 32

America (United States of), Treaty of
Washington (1871), 5. War between
Northern and Southern States (1860), 11,
366. Speech of President Jackson (1834)
on Subject of Reprisals against France,
41. Law of, as to Ransom during War,
177. Treaty with Prussia (1785), 340,
364. Conduct of, with respect to Armed
Neutralities, 345. Treaty with Franco
in 1780, ib. Treaty with England in
1795, ib. Treaty with Spain in 1795,
347. Treaty with Prussia in 1799, ib.
Treaties of, with other American and
European States between 1801 and 1854,
on Subject of Free Ships, Free Goods,
354. Statutes at Large of the, ib. Treaty
with Columbia in 1824, 355. Confisca-
tion of private property in, after civil
war, 367. Proclamation of President
as to Neutrality of (1793), 437.
Blockade enforced by, in war of (1860),
478, 494. Controversy with Great Britain
as to Claim of the latter to de-
tain Vessels for Purposes of Search,
suspected of being engaged in Slave
Trade, 525. Treaty of Washington
(1842), 527. Opinions of Prize Courts
of, on the Rights of Ships at Sea, ib.
Decision upon the Question of summon-
ing Ships to undergo Visit and Search,
and Damage to Neutral through neglect-

ing to obey, 538. Treaty with, as to
Distance from Coast within which no
Captures should be made, 565. Opinions
of Prize Courts of, as to Captures made
in Neutral Territories, 566, 567.
Treaties with France (1778 and 1800)
on the Subject of Captures, 595. Treaties
with Holland (1782) on same Subject,
ib. Treaties with England (1794 and
1806), 596. Law of, concerning Reward
payable in Cases of Recapture and Re-
storation of Prize, 634. Constitution of
Prize Tribunals in, 658. Discussion
with England as to Right of Fishery
under Treaty of, 1783, 668. Treaty
with England of 1794 as to American
Subjects holding Lands in England;
Judgment of Master of Rolls upon, 802,
803. President's Message (1847) as to
Abrogation of Treaties by War, 811.
Judgment of Justice Johnson as to the
Invalidity of Grants of Land made by
British Governors, after Declaration of
Independence, 815. Jurisdiction and
Decisions of Supreme Court of, in Mat-
ters of Dispute between different States
of the Union, 740. Conclusions adopted
by the Supreme Court, on the Subject of
Conquest, 742

America (North), Alliance of France with
revolted Colonies of Great Britain in,
without previous Declaration of War, 100
Congress of, Ordinances of 1781

relative to Blockades, 500
Amiens, Treaty of (1802), 353. Debates

in Parliament as to Abrogation or Revi-
val of pre-existing Treaties by, 804,
805

Amnesty, Grant of, on Return of Peace,
831. General Effect of, ib.
Amphictyonic Council, 833

Anchors, considered as contraband, 444.
See Contraband

André (Major), British Officer, put to
death by the Americans as a Spy (1799),

172

Angarie, Droits d', 49, 50, 53

Anjou, House of, replaced on the Throne
of Naples by Charles VIII. of France,
838

Annual Register, 37, 38, 39, 40, 41, 43, 49,
62, 63, 97, 102, 103, 104, 172, 176, 192,
205, 231, 292, 312, 320, 339, 423, 426,
428, 518, 521, 811

Arbitration, a Means of preventing War, 2.
States not bound to adopt, 3. Appoint-
ment, Authority, and Powers of Arbi-

trator, ib. Decision of Arbitrator bind-
ing upon parties or States, 5. Washing-
ton Treaty, ib. San Juan Boundary, ib.
Alabama Claims, 14, 258. States re-
fusing to abide by Decision of Arbitra-
tor, 14. Of Geneva, 73, 254–273
Armed Neutralities, the (of 1780), 335.
Interval between, 339. Conduct of the
Members in relation to, 341. Origin of
the Second Armed Neutrality, 349.
Period between Dissolution of and War
against Russia (1854), 352. Treaties of,
Provisions in, relating to Convoy, and
Visit and Search, 552
Arragonese Debts, Confiscation of, by
Charles VIII. of France, 838

Asgill (Captain), British Officer, condemned
to death by Americans, as Retaliation
against the English for the Death of an
American Officer, 171

Ashburton (Lord), Discussion with Mr.
Webster (American Secretary of State)
relative to Infringement of Neutral Ter-
ritory, 542, 569

Austria, Invasion of, by Prussia, without
Declaration of War, 98. Declaration of
Paris, signed by (1856), 359

Azuni, Droit Maritime de l'Europe, 50,
130, 147, 426, 568, 569, 592, 593, 640,
662

Libel published 1592, 155

Bail, Delivery of Cargo on, 765
Bail Bonds, Nature of, in Prize Causes, 766
Baldus (de Perusio), Consilia, 838
Barbeyrac, 107

Translation of Puffendorf, 820
Barks, considered as Contraband, 447
Battens, considered as Contraband, ib.
Beawes, Lex Mercatoria, 46
Belligerent, Effect of War upon the Pro-
perty and Persons of the Subjects of, 115.
Subject of one, resident in Country of
the other, under Safe Conduct, 128.
Permission to remain in, and Warning
to depart from hostile Country after
Hostilities commenced, 129. Right of
over Prisoner of War. 155. Waiver of
Rights of, by Great Britain and France,
in War with Russia (1851-55-56), 355-

357. Subject of one, resident and trading
in Country of the other, deemed an
Enemy, 727. See Enemy. Ships may be
bonâ fide purchased from, by Neutrals in
Ports of

Bentinck (Lord William), Proclamation of,
to the Genoese (in 1814), 205

Berlin and Milan Decrees (1806), 311, 516
Bernstorf (Count), Reply of, to declaratory
Memorial of Great Britain to Court of
Denmark respecting Neutrals, &c., 426
Bismarck (Count), 50, 51

Blackstone (Sir W.), Commentaries, 59, 72,
79, 111, 126, 131, 236, 237
Blockade, 473. For what Purpose it may
be constituted, 474. Who may constitute
it, ib. What constitutes it, 475. En-
forced by United States in 1860,
478, 494. What maintains or continues
it, 486. What vitiates it, ib. How it may
be resumed after a Discontinuance or
Abandonment, 487

Breaches of.-Generally, ib. Owing to
alleged Ignorance, 494. By the Ingress
of Ships, 496. Where and how Inquiries
should be made respecting Blockade, 498.
Decision of Lord Stowell as to what are
Roads, 499. Intention of Ship's Master,
and Destination of Ship, 500. Distinction
between Blockade de facto and Blockade
by Notification, 501. By Egress of Ships,
502. Exceptions in certain Cases, ib.
Where Ingress is alone prohibited by the
Proclamation, Egress is allowable, 504.
Penalty for Breach of, 506. To the
Ship, ib. To the Cargo, 506. Decision
of Lord Stowell on the Subject of the
Complicity of the Owner of Cargo with
the Act of Master of Ship, 508. Different
Principles applied to the Case of Captures
made by commissioned Captors on the
High Seas, and that of Captures by non-
commissioned Captors in Ports, 514.
Not an offence against Municipal Law of
Neutral Country, 515

Orders in Council, respecting.--Of
France (French Decrees), declaring Block-
ade of British Ports (dated 1806), 515-
521. Relating to Blockade of French
Ports (1807-2), 516–521

Bluntschli, Le Droit International codifié,

All Acquisitions of, belong to Sovereign,
209. Distribution of, 215. Claim not
triable in England in any Municipal
Court, 213. Distribution of; Status of the
East India Company in Matters relating
to, 217. Jurisdiction of High Court of
Admiralty in Matters of, 221. Case of
the Banda and Kirwee booty, ib,
Boucher, 318

Bouvier's (American) Law Dictionary, 514
Bowyer's Public Law, 125

Brazil, Treaty of Commerce and Navigation
(of 1827) with England, and relating to
Contraband, 469

Brougham (Lord Chancellor), Judgment of,
as to Ownership of Prize captured during
War, 209

Brown's Civil and Admiralty Law, 684
Brunleger, Dissert. de Occupatione Bellicâ,
818, 821

Buckingham (Duke of), Memoirs of the
Court and Cabinet of George III., 185
Burlamaqui, Principe de Droit de la Nat. et
des Gens, 819, 823

Burke, Letters on a Regicide Peace, 57, 83,
92. Appeal from the Old to the New
Whigs, 114. Works of, 163

Bynkershoek, Quæstiones Juris Publici, 14,
15, 18, 19, 20, 21, 31, 43, 78, 81, 83, 84,
85, 114, 126, 128, 129, 139, 141, 146,
149, 152, 209, 215, 226, 233, 235, 283,
285, 305, 307, 407, 416, 418, 435, 460,
463, 500, 523, 524, 530, 533, 562, 567,
572, 574, 578, 598, 599, 602, 614, 617,
621, 622, 627, 641, 692, 701, 702, 718,
726, 744, 746, 749, 754, 768, 827, 855.
De Foro Legatorum, 19, 20. Remarks
of, upon the Subject of Recapture, 621.
See Recapture

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Commentaries Upon International Law, Volumen 3