3 De Martens, Causes Celebres, IV. 125.
4 40 State Papers 640 ; ib. 39.
36 PENETRATION [chap, ii
second-hand imitator of their sublime impertinence.
Such flagrant instances of indefensible interference with
the course of justice in a foreign country, we dismiss
as throwing nothing but darkness on the matter. The
United States have frequently made warm representations
against the imprisonment of American Fenians ; and
their government is said to have interested itself in the case
of non-political prisoners — but in every instance without
result. British subjects have been condemned as spies
by Japan, as poachers by Germany, and as revolutionists
by Russia ; but (except in comic opera) no diplomatic
ironclad has released the prisoners. Yet it is impossible
to deny that some limit to the powers of the territorial
sovereign exists. Where can it be placed ?
Take as strongly contrasted instances three from the
history of Austro-British diplomacy : the Harwood case
of 1852, the Walker case of 1851, and the Cunninghame
case of 1853.
In the former, 1 the Vienna correspondent of the London
Morning Chronicle was (in Dec. 1852) arrested, searched
and detained for nineteen hours in prison : Vienna
being then in a state of siege. The Austrian Minister
declined to admit that this was in any way unjustifiable,
although there was, in fact, no charge preferred against
the correspondent. For the fact that he was not treated
with due consideration in the matter of food and quarters,
an apology was made and the police agent was repri-
manded and sentenced to ten days' incarceration.
Contrast with this the case of Captain Walker, 2 which
happened at Florence in the previous year (Aug. 1851).
He was imprisoned for twenty-one hours on a charge
of proselytism which was then withdrawn. No apology
whatever appears to have been made. The reason is
clear. The only reason why an apology was tendered
in the Harwood case was that the state's own regulations
regarding the treatment of arrested persons had not
1 44 S.P. 236. 2 lb. 600.
chap, ii] CLARENDON 37
been complied with. So in the Cunninghamc case of
1853, the person accused of proselytism declared to the
British agent ' that " she should hardly fancy herself
in prison " and " had not a word of complaint to utter,"
being treated " with all the attention and civility she
could wish." The arrest was effected on 12 Sept. and
the release on 11 Oct.
No apology was made, and so far the case was exactly
like that of Walker, except that the proceedings were
more prolonged and formal. But Lord Clarendon took
occasion to lay down a principle which appears to go far
beyond what was called for. Miss Cunninghame, a tran-
sient visitor to Tuscany, had distributed evangelical
tracts, and was alleged to have thereby rendered herself
liable to at least five years' penal servitude. The trial
was expected to take place in about three months, but
at the expiration of the first month, Lord Clarendon a
addressed a note to the British Charge d' Affaires at
Florence, observing that the government had hitherto
trusted to the right feeling of the Grand Duke to perform
' an act of justice and clemency " in releasing Miss Cun-
ninghame ; but that if the application for her release were
now to be refused, he was to inform the Minister for
Foreign Affairs that a continuance of her imprisonment
was not to be endured, and to insist upon her being
permitted to leave the country. It was added that
the friendly relations of the two countries depended
Unfortunately for science, the Grand Duke had,
before the despatch of this message, seen fit to discon-
tinue the prosecution. How Lord Clarendon's language
is to be reconciled with his prior despatch of 26 Sept., 3
in which he committed H.B.M. Government to the
broad doctrine that " British subjects are bound not
1 44 S.P. 549, Fenton to Scarlett, 25 Sept. 1853.
2 lb- 559. Clarendon to Scarlett, 12 Oct. 1853 ; p. 563, Same
to Same, 14 Oct. 3 lb. 541.
38 PENETRATION [chap, ii
to disobey the laws of the country in which of their
own free will they may choose to reside," it is not very
easy to see. If they are bound to obey the law, they
are bound to undergo its penal provisions. Some reliance
was placed on the fact that Miss Cunninghame (who was
thirty years old) was in partial ignorance of the Tuscan
law, 1 which had recently been made more stringent ;
and we have already suggested that a law which is not
well known and in constant operation cannot rightly
be applied, if of great severity, against transient
Sig. Baldesseroni, the Tuscan Minister, in fact, applied
formally to the British Charge d' Affaires, that the latter
should specially bring to the notice of British subjects
the state of the Tuscan law on the subject — which delicate
office Mr. Campbell Scarlett politely declined. 8 According
to a letter addressed to Lord Clarendon by Mr. Stuart
(a relative of Miss Cunninghame), ' She was aware of
the stringent nature of the law, but in common with
most people, considered that no attempt could be made
to enforce it. . . . The character of the law seemed
monstrous, the punishment it awarded so dispropor-
tionate to the act against which it was aimed, and . . .
so contrary to the tenor of the gospel and the spirit
of the age, that she felt it never could be put into
And it is probably on these circumstances combined —
the fact that the accused had only been spending the
summer in Tuscany, and was on the point of embarking
when the tracts were distributed, the recency of the
law 4 imposing a minimum penalty of live years upon
proselytizers, and the highly specialized character of the
1 .).) S.l\ 5G2, Scarlett to Baldesseroni, 5 Oct. 1853.
2 lb. 5(17, l5;il(less(Toni to Sc. tried, roOct. 1853 ; 309, Scarlett
to Clarendon, jj < >< 1. 1853.
3 lb. 577, C. Esme Stuart to Clarendon, 25 Oct. 1853.
4 Promulgated 1 Sept. 1853 ; loc. tit. p. 581.
chap, ii] MODERN VAGUENESS 39
offence — that Lord Clarendon relied. It is conceived,
however, that whilst they made the leniency of the Grand
Duke commendable, they did not justify Great Britain
in interfering with the course of justice in his dominions,
unless we are prepared to admit a universal right of
It is not without importance to note that opinion in
Florence was much divided — " a very large portion of
society, both Tuscan and English and natives of other
countries, were not slow to declare her interference with
Roman Catholics to be an act of unwarrantable pre-
sumption, and one deserving the penalty of a risk which
she must have been well aware she was running," —
though it was unanimously considered that ten years'
hard labour was a good deal too much for distributing
As Phillimore (I. § 220) puts it : " It is a received
maxim of International Law, that the government of a
state may prohibit the entrance of strangers into the
country, and may therefore regulate the conditions under
which they shall be allowed to remain in it, or may
require and compel their departure from it." There is
nothing to prevent a nation from having pcriceci.
What limits are to be laid down to this principle ?
Modern writers carefully confine themselves to genera-
lities. Calvo (Droit international, § 700) says that aliens
must enjoy the protection of the law and custom of
the land for their persons, property and family rela-
tions. This is to go only a little way : the very question
may be, What is to be recognized in their peculiar
case as their property or their family ? How far is
the state to be obliged to protect them in rights which
it would not create ? And the adoption of the national
law as the standard of the protection which must
be accorded to their persons is certainly mistaken.
Aliens may be subjected to special legislation, throwing
1 44 S.P. 592, Scarlett to Clarendon, 1 Nov. 1853.
40 PENETRATION [chap, ii
great personal inconvenience upon them, as the price of
their residence. Phillimore (International Law, III. § 2),
equally vaguely with Calvo, asserts that they have " a
strict right to be secured from injury " — leaving it
unexplained what injury is. (He adds that the violent,
sudden and unnotified withdrawal of a right which
foreigners have been accustomed to enjoy is an interna-
tional offence.) Nor is he much more explicit, in stating
that l " foreigners whom a state has once admitted
unconditionally to its territories are entitled not only to
freedom from injury, but to the execution of justice in
respect to their transactions with the subjects of that
state " ; and that 2 " the state to which the foreigner
belongs may interfere for his protection when he has
received positive maltreatment, or when he has been
denied ordinary justice, in the foreign country." What
is " maltreatment " ? Broken bones — or heavy tolls ?
What is meant by " ordinary " justice ? Unbribed judges,
— or commonly current law ?
It will be seen that the position was, and is, as un-
satisfactory as it well can be. So long as foreigners
were few and their complaints obstructed by difficulties
of communication, not much inconvenience appears to
have been felt. But with the coming of the nineteenth
century — with the great extension of trade and travel —
with the universal post-box placed at every aggrieved
individual's door — it became imperative to settle the
matter. Since the jurists gave out no certain voice, nor,
indeed, much articulate guidance at all, it was necessary
to make things plain by treaty. And, since commerce
was the grand factor in producing the movement of
populations of which the stirrings were now perceptible,
like the awakening from slumber of a giant, the needful
provisions took the form of clauses in Commercial Treaties.
This is not a history of Commercial Treaties. It is suffi-
cient to observe the appearance in them of the provision
1 hoc. tit, II. § 2. 2 lb. § 3.
chap, n] COMMERCIAL TREATIES 41
guaranteeing the safety of merchants, and to note its
gradual development and extension.
Liberty to trade at all was one of the first things aimed
at in such instruments. It involved, almost as of course,
liberty to reside in, and to travel to a certain extent in,
the foreign country whose rulers granted the concession.
It involved, less necessarily, but still imperatively, the
guarantee of a certain protection of person and goods.
Unfortunately, states rested content with a vague
assumption that some distinct right to personal security
and undisturbed possession existed, apart from the laws
of any particular country, and recognized all the world
over. The error has been productive of a dangerous
situation. It need not be denied that some such mini-
mum right to property and security may exist jure
gentium. The mistake was to assume that it was a
definite and easily ascertainable right, instead of a misty
outline. Some sort of abstraction from all known
municipal laws — some sort of minimum essence of right
— some greatest common measure of varying legislations
— might conceivably be elaborated and held to provide
a standard interpretation for such treaty provisions.
But it never has been elaborated, and it is highly prob-
able that it never will be. Yet the treaties presuppose
that the abstract right of a human being to security and
property is an ascertainable and definite thing. Natur-
ally they do not lay down any such theoretic doctrine.
They are business documents. But they involve its
assumption. That is their initial weakness. A second
serious defect is that in promising freedom of entrance,
residence and travel, they either say too much or too
little. In terms, their language might be supposed to
confer an absolute liberty on foreigners to go where they
liked, when they liked and as they liked. This would
be an absurd construction. It is well understood that
the foreigner has no right to force his way on to private
property. Does the sovereign, then, promise to give him
42 PENETRATION [chap, h
the same liberty as the native ? The standard clause does
not say so : and the native's liberty to trade and travel
may be very restricted, or might be so restricted any day
by domestic legislation. Such a precarious concession is
not what the trader expects. Again, does the sovereign
promise to abstain even from non-coercive measures,
directed to depriving the legal freedom of the foreigner
to reside or trade of all practical effect ? It may refrain
from expelling or penalizing the foreigner ; but what
if it exerts all the arts of official persuasion and influence,
to persuade the people not to deal with him or to let him
apartments and warehouses ? The question becomes acute
when the necessaries of life are in the hands of a public
body. Has the government performed its duty when it
refrains from actively preventing the foreign trader
from residing in its territory ? Or must it coerce the
public body into providing him with what it supplies
to the native population ? And if a public body, why
not private persons ? The franchise of a municipality,
or of a province, is (or may be) as much its private
affair as the property of an individual is his private
affair. The Duke of Hamilton, say, can exclude
foreigners from Arran. Might not the Bailies exclude
them from Glasgow ? The gardens and the bakehouses
of a city may be as much and as little under the
dictation of the central government as the gardens and
the ovens of a single citizen. Certainly in Anglican
jurisprudence they are so. Legally, the central govern-
ment may have the power to legislate for both. It is
not a question of state rights. But morally, it is, or may
be, as little the province of the central government to
barter away the powers of municipalities, as to barter
away the powers of individuals. It may do so ; but it is
not expected to do so.
Suppose, then, that the local government, acting
within its powers, sets itself to nullify the privileges
granted by the central authority : just as a particular
chap, ii] PROVINCIAL AND MUNICIPAL RIGHTS 43
person or association might, as every one admits, set
himself or themselves to nullify them by declining to
deal with a foreigner, or to let a house to a foreigner.
Is the government to bow politely and say to the
indignant pioneer of foreign enterprise : — " True, we
promised that you might open a bank here : so you
can ! Only you cannot expect us to eject somebody
else, in order to provide you with a building ; nor
to refrain from advising our subjects to deal with
native firms ; nor to withdraw the patent by which
Messrs. X. have a monopoly of banking in our Eastern
province ; nor to revoke the charter by which the council
of our Northern province has a faculty of regulating the
banking business there — of which it has availed itself
to decree your exclusion. Suppose a settlor has in-
structed his trustees only to bank with native firms —
you could not argue that we should legislate so as to
contradict his wishes. Why should we coerce the
Northern province in the exercise of its equally un-
doubted privileges ?
" Mr. V., the apothecary over the way, contracts that
his ex-apprentice William may carry on business in the
same town, in spite of his covenant not to do so. But
Mr. V. never supposes that this debars him from doing
all he can to prevent William from getting any custom.
Why should we think differently ?"
These questions may not be without an answer ; but
it is not upon the surface. That they are the very re-
verse of academic will be apparent when we come to look
into the question of the Japonico-American treaty, and
its operation in California.
An early instance of such treaties is the Swedo-Russian
of 1617. 1 It provided in succinct terms for entire liberty
of commerce, with establishments of merchants in certain
towns, and due provision for payment of debts. But,
apart from such occasional neighbourly concessions —
1 Hauterive et Cussy, VIII. 466.
44 PENETRATION [chap, ii
England and Castile had long traditions of commercial
friendliness, and so no doubt had several Imperial states
— it was not until nearly the middle of the seventeenth
century that commercial treaties of the modern kind
became frequent, under the impulse of the growing
power of the commercial Dutch, and, ultimately, in re-
sponse to the growing sense of statesmen that politics
had become commercialized.
By the Dano-Spanish treaty of 1641, freedom of com-
merce (subject to Crown pre-emption) being granted, it
was added that " les naturels des deux etats, de merae que
ceux qui s'y trouvent naturalises, jouiront reciproquement
chez l'allie dans tous les actes, quel qu'ait ete V usage
contraire, . . . de la consideration positive des sujets de la
couronne a laquelle ils appartiennent." l Taxation was
limited to that payable by the native. By Art. 18 — " pour
defendre solennellement en justice les sujets des deux
etats ... on est convenue reciproquement d'admettre les
consuls." By Art. 24 — " Sa M. danoise ayant prie S. M.
Catholique de faire depecher et juger au plus tot par les
tribunaux, 1 ; les causes ou les proces de ses sujets encore
en instance," that sovereign offered to expedite them :
and for the future both parties agreed to press upon
their judges the importance of despatch in commercial
Practically this formula is a standard one to the
present day. Another, and a wider, formula was however
developed concurrently with it, and was at first adopted
by close allies only.
In 1642 3 a treaty, signed by Britain with Portugal,
granted, with the particularity appropriate to easements,
1 Art. 3 : Hauterive ct Cussy, IV. 414.
2 29 J;m. (Loud.) Dumont, Traitcs, VI. (1) 238 (French) ;
Hertslet, Treaties,!!. 1 (English from Latin). The versions vary
somewhat, but the French version is intelligible throughout, which
the English is not. It makes the parties contract to allow the
import of merchandise " to buyjor sell."
chap, n] EARLY TREATIES 45
reciprocal liberty of commerce — (Art. 2) " . . . (whether
by sea, land, or fresh water) to go, enter and sail in and
to the kingdom and dominions aforesaid, and the cities,
towns, havens, shores, sea-roads and territories of the
same : and with carriages, horses, burdens, ships, loaden
or to be loaden, to bring in merchandises and cargoes
there ; to buy or sell as much victuals as they will, and
upon just prices to make provision of things necessary
for their sustenance and voyages ; and to repair their
shipping and carriages, whether their own or such as
they have borrowed or hired ; and from thence also with
the same freedom to depart, with their merchandises,
goods and other things whatsoever (after payment only
of the accustomed tolls and duties on the scale established
by regulations of each locality), and return to their own
country, or proceed anywhere else they please, whensoever
they choose, without let or hindrance."
Art. 3 provides that in respect of prices, and otherwise
with regard to sales, the treaty power's subjects shall be
as well treated as natives. This would be an extraordinary
concession, and one impossible to carry out, were it not
that it refers to a state of things when prices were nor-
mally regulated (or attempted to be regulated) by govern-
mental action. It evidently means that the foreigner
shall not be worse dealt with than the native by the high
contracting power (i.e. the King).
Art. 4 provides against the British being burdened
with higher customs or taxes than the Portuguese.
Arts. 5 and 10 prevent their ships from being forced to
load particular goods, or impressed for the Portuguese
service. Art. 9 abolishes the droit d'aubaine.
Art. 13 deals with the Portuguese Colonial trade, which
is maintained on the footing of the status quo, in cases
where British subjects were accustomed to exercise it :
subject to customs not exceeding those imposed on
natives. The most favoured nation treatment is ex-
tended to the British in respect of religion and arrest.
46 PENETRATION [chap, ii
In 1654, l a good many additions were introduced. The
important saving (which no doubt was implied before)
was made to Art. 2 — " saving nevertheless all the laws
and statutes of each place." Art. 3 was remodelled,
and conferred liberty on the British to buy practically
without governmental restrictions at all — e.g. from
wholesale dealers ; at a market price ; in defiance of
monopolies. 2 A new Art. 13 prohibited the arrest of
British subjects, except criminals taken in flagrante delicto.
It also conferred on them the right " to sue every man to
justice, whatever be his protection or passport." By
Art. 14 the King of Portugal undertook that the British
should be molested by no person, court or tribunal for
the use of English Bibles, etc., or the observance of their
own religion in private houses and on board ship. If,
therefore, a Portuguese had dismissed an English servant
because he discovered him to be a Protestant, would a
cause of complaint have arisen ? We must almost
certainly take it that only such molestation is meant as
would have been illegal by the law of Portugal, if no
question of religion had arisen.
By Art. 21, the British are exempt from performance
of personal public duties and from the necessity to wear
and furnish arms. By Art. 22, perhaps the most import-
ant addition of all was made — " Uti mercatores partis
alterutrius praedictrc, eorumque institores, famuli, familioe,
negotiatores, aliique ministri, nautse, naviumque magistri
et classiarii, in ditionibus, territoriis et regionibus prae-
dictae reipublicae et regis, necnon in eorum portubus et
littoribus tuto ac libere versari possint : populusque et
subditi unius, in ullis alterius ditionibus sedes proprias
in quibtis habitent, habere et possidcre, necnon repositoria
in quibus bona, mercesque suas recondant, quamdiu
conduxerint, absque ulla a quopiam molestia. Item
gladiis se cingere, armaque secum portare tarn offensiva
1 10 July. Dumont, Traitis, VI. (2) 82 ; Hertslet, Treaties, II. 8.
u See also Art. 10 as to sales to Portuguese.
chap, ii] EARLY TREATIES 47
quam defensiva, secundum morem ct consuctudinem
loci, quo se ipsos bonaque sua melius tutari possint."
We have italicized the two vital words which make
it clear that Portugal and Britain guaranteed no right
to houses apart from the consent of their respective
subjects, owners of the same.
And so, in 1660,' the close Brito-Danish treaty — (which
incidentally engaged the two crowns to prevent traffic
by their subjects in contraband) — agreed (Art. 6) :
' Utriusque regis subditis liberum erit alterius regna,
provincias, emporia, portas et flumina cum mercibus
suis tarn terra quam mari adire, ibique versari et
negotiari, dummodo consueta vectigalia solvant : salva
tamen utriusque regis superioritate jure in regnis [etc.]
suis." By Arts. 7 and 8 certain ports were interdicted
and the right of wreck (with a saving not very explicit) '
Then, what does not appear in the Brito-Portuguese
treaty, the stipulation is made that :
' Si alterutrius regis subditi in alterius territorio
kedantur, vel injuria sive detrimento 3 afhciantur, turn
rex illius loci ubi injuria illata est, curabit, ut secundum
jura et consuetas regionis leges prompte justitia ad-
ministretur, iisque, qui delictum vel injuriam commiserint,
debita poena cum reparatione damnum passis facienda
Art. 10 abolishes reprisals : — " neque per repressalias,
aut alios hujusmodi odiosos processus alter id luet in quo
alter deliquit, nisi justitia denegabitur aut plus justo
deferetur ; in quo casu, regi illi, cujus subditus damnum
et 4 injuriam passus est, licitum erit, juxta juris gentium
leges et praescripta, omni modo procedere, donee facta
fuerit laeso reparatio."
1 Dumont, Trails, VI. (2) 346; Hertslet, Treaties, I. 179
2 " Salvo jure utriusque loci."
3 Sine injuria ? 4 See last note.
48 PENETRATION [chap, ii
These important provisions do not pretend to define
what injuria is : obviously it may differ in different
countries ; whence come difficulties.
But by Art. 16 (neither is this in the Portuguese treaty),
" Utraque pars subditis ac populo alterius jus et
aequum secundum uniuscujusque regionis leges ac statuta,
celeriter et absque prolixio et non necessariis ambagibus
ac impensis administrari faciet, in omnibus causis et
litibus. . . ."
By Art 13, most favoured nation rates of customs
and immunities are conceded :