Miguelite cause, yet the Portuguese, finding him in
1 30 S. P. 216, 217. 2 lb. 223. 3 lb. 231.
chap, iv] SPAIN, 1835 99
possession of that monarch's despatches, " were perfectly
justified in considering him still in the public employment
of [the Queen's] enemy, and, as such, liable to be detained
and treated as a prisoner of war." ' The Advocate-General
concurred in this opinion. Campbell was detained at
least eight months, and Palmerston sent a mild remon-
strance on his continued close imprisonment, as contrary
to the usage of war, on 8 May 1834.
The demands made upon Switzerland and Cracow in
1836 for the expulsion of alleged dangerous refugees hardly
come within our province.
During the Carlist War of 1835, a proclamation was
issued refusing quarter to foreign Constitutionalists.
Great Britain therefore issued instructions whereby her
naval commanders were ordered to refuse Don Carlos all
asylum. 2 This was a somewhat neat move, but both
sides subsequently massacred prisoners. In a previous
(1831) attempt of revolutionists to effect a landing in
Southern Spain, two British subjects, Boyd and Carter,
were captured and shot. 3 They were denied access.
Palmerston thought that there ought at any rate to have
been a trial, and asked for evidence that the party had
not merely been driven ashore. 4 One of the men was
alleged to have been a carpenter, carried accidentally
with the party, and the British Minister pointed out that
he had had no opportunity of proving his innocence. It
was impossible, in the sequel, to deny that an armed
expedition had been intended, nor that the story of the
carpenter was a pure fiction. 5 The matter then assumed
a very minor aspect, and further remonstrance was
Two British subjects (Henningsen and Gruneisen, the
Morning Post correspondent), captured with Carlists,
1 23 S.P. 1263, Palmerston to Russell, 4 Dec. 1833.
* 24 S.P. 401. 3 lb. 827, 833.
4 lb. 833, Palmerston to Addington, 27 Feb. 1832.
5 lb. 841. '
100 ILLUSTRATION [chap, iv
were actually threatened with death, and although their
release was secured, the Spanish commander declared
that in future such a sentence would be executed. 1
In 1836 Peru imprisoned a Chilian envoy, Ventura
Lavalle, which was one of the causes of the war which
then broke out. It was also alleged that Chilians, unlike
other foreigners, had been subjected to military service
and forced contributions in Peru ; but Chili did not
very strongly insist on the illegality of this. 2
In May, 1836, a U.S. officer who landed at Tampico
for the purpose of communicating with the Consul
there, was arrested, and his crew imprisoned, or (as
the Mexicans explained it) detained temporarily. The
commandant wrote a fiery letter in reply to the Consul's
temperate remonstrance, and the Mexican Government,
anxious to remove any cause of offence, replaced him
by another official and promised an inquiry. 3 A long
catalogue of petty complaints is drawn up in Forsyth's
despatch of 20 July 1836.' " The Department," he
admitted, " is not in possession of proof of all the cir-
cumstances of the wrongs done in the above cases, as
represented by the aggrieved parties." All that he asked
for was examination. Most seem to have been cases of
angary : but some were serious outrages. The Mexican
Government temporized, and the whole question was
referred to arbitration by Prussia; but further difficulties
supervened, and it was not until the peace of 1848 that
a settlement was reached. 5
The incident of the Caroline, burnt in U.S. territory by
Canadian militia as a Fenian transport, is well known.
Not so well known is the fact that at that very time
the U.S. Foreign Department was urging on Mexico the
right of the United States to invade Mexican territory,
1 29 S.P. 1225.
2 25 S.P. 781, Message of the President of Chili, 21 Dec. 1836.
3 26 S.P. 1390. * lb. 1393-
6 Art. 14. < f. <le Merignhac, L' Arbitrage international, § 53.
chap, iv] PRO-CONSUL RUSSELL TO I
alleging the very same ground of absolute necessity. 1 It
invoked " the immutable principles of self-defence — the
principles which justify decisive measures of precaution
to prevent irreparable evil."
An American ship which visited Ycdo in 1837 was
fired on, and forced to decamp. 2
Great Britain obtained £1,000 in 1837 from New
Granada, in return for the imprisonment of Pro-Consul
Russell. 3 The Pro-Consul had, according to his own
account, been struck in the dark by an acquaintance with
whom he had had private disputes, and had retaliated
with a sword-stick. The combatants were separated by
the local commandant-general, but Mr. Russell was then
struck on the head by another person, from whom the
commandant again rescued him. He was taken home in
a serious state. He was accused of unlawful wounding,
and a guard was put in his house (which of course was the
consulate). The Alcalde committed the mistake of taking
away the archives for transmission to the Consul, who
had now arrived, and Russell was condemned to six years'
imprisonment for carrying concealed arms. The very
careful balancing of the evidence contained in the judg-
ment of the court shows that the case was not decided
hurriedly. The court showed a laudable concurrence with
the dislike of the knife so often expressed by English
judges. The sentence, however, was the maximum one,
and cannot but be regarded as harsh in the circumstances,
considering the position of the accused. The judge,
moreover, was a friend of the complainant.
The government maintained that it had no power to
interfere with the due execution of the laws, pending
revision by a superior court. Their version of the affair
was that Russell was the aggressor, and that the violence
he suffered was the violence proper to the apprehension of
a dangerous character.
1 26 S.P. 1419, Forsyth to Ellis, 10 Dec. 1836.
2 25 S.P. 566. 3 26 S.P. 128. ;
102 ILLUSTRATION [chap, iv
Palmerston, on the shaky ground that " it seems estab-
lished beyond a doubt " that Russell was not the aggressor,
and that the Alcalde was biassed, demanded £1,000, an
apology tor the invasion of the consulate, the release of
Russell and the dismissal of the delinquent officials (whom
he did not particularize).
This was while the case was still sub judicc at Bogota !
It will be noted, moreover, that the injuries inflicted on
Russell were inflicted by a private person (who eventually
was condemned to imprisonment and payment of damages
by the spontaneous act of the court). The Governor of
Panama pointed out that there were proper and legal
means of questioning the magistrate's impartiality, and
that there were no legal means of forthwith releasing
Mr. Russell. Palmerston having made up his mind ex
parte, there was no opportunity of bringing these con-
siderations to his notice. His hasty declaration that the
action of the local authorities had been cruel and unjust,
rightly offended the nation which was thus unnecessarily
stigmatized. Unnecessarily, because the Superior Courts
were ' ready and anxious to do justice in the matter, and in
fact released Russell on 3 Jan. 1837, in due process of law.
" Moral equality between nations becomes null," says
Pombo, 2 from the moment in which the more powerful
may say to the other that it has been insulted, without
explaining in what the insult consists ; and that imme-
diate satisfaction will be taken by force, if it be not
immediately given, — and in a determined and positive
manner, without any discussion." Even the British
Minister plaintively refers to the "embarrassing circum-
stances in which tho mission is placed by the pressure of
the case, and the impossibility of its receiving further
instructions." :1 An Admiral, named, by felicitous antici-
pation, Petri Halkett, was sent out with a large naval
1 26 S. P. [94. Sec, at p. 203, the conclusive remarks of the
Minister, 7 Dec. 1836 - lb. 211.
1 lb. 12.7, Turner to Palmerston, 11 Dec. 1836.
chap, iv] SULPHUR MONOPOLY 103
force, and detained a French and a native brig, on
22 Jan. 1837, under the colour of blockade.
The " blockade " was attended by fatal irregularities.
Commodore Peyton " declared " it at Jamaica on 10 Jan. 1
On the 17th he proceeded to enforce it. On arrival in
the presumably blockaded waters, he " withheld ' the
declaration, pending a conference, and re-issued it on the
25th, when the conference failed. But blockaders cannot
play fast and loose.
Russell being released, there was no obstacle in the
way of a settlement. A compromise was arrived at, by
which the £1,000 solatium was paid, but the questions
of dismissal and apology dropped. In fact, the British
negotiator hardly knew whom he had to get dismissed.
A sulphur monopoly was granted to Frenchmen by
Sicily, in 1837, in terms which operated unfavourably on
British sulphur merchants there. This was an infraction
of the Treaty of 1816, which secures freedom of trade on
the footing of the most favoured nation. The delicate
question of the validity of a monopoly in favour of
individual home merchants was not involved, and it is
strange that this expedient was not resorted to. What
was next proposed was the imposition of an export duty
on sulphur, for the benefit of the French speculators (who
were to be exempt from it). In principle, there could be
no objection to the export tax. The trade was still open
to other nations and other Frenchmen. The limitation
of export by the imposition of a tax is (as in the case of
the British coal duties) permissible, if not economical.
But the exemption of the monopolists was clearly a
violation of the equality established by the treaty.'
The monopoly was withdrawn, 21 July 1840, ' but the
export duty remained.
Through the mediation of France, a settlement was
reached in 1840. The monopoly was abolished : losses
were to be ascertained by a commission of two Sicilians,
1 26 S.P. 256. 2 28 S.P. 1163. 3 29 S.P. 1225.
104 ILLUSTRATION [chap, iv
two British, and a Frenchman approved by both sides.
The total claims amounted to £65,610 5s. 5^. and were
allowed at almost precisely a third of that sum. 1
At Canton a Chinese was killed by Lascars in an affray
in 1837, and the latter were arrested. The British de-
manded their surrender. The local authorities said that
they were in the custody of the Mandarins, charged with
a violation of the laws of the Empire : if Englishmen went
to France they would have to submit to French justice,
and why not to Chinese ? 2 However, the Lascars were
given up. Nine British merchants were expelled in a
belated endeavour to stop the opium trade, and with it
the alarming drain of silver.
" Till the other day," says Superintendent Elliott
(2 Jan. 1839), 3 " I believe there was no part of the
world where the foreigner felt his life and property more
secure than here in Canton " : but a serious state of riot
had supervened, " and all these desperate hazards have
been incurred for the . . . gains of a few reckless indi-
viduals, unquestionably founding their conduct upon the
belief that they were exempt from the operation of all
law, British or Chinese." The opium-smugglers were
" rapidly staining the British character with deep dis-
grace," * and he ordered their boats away. In March the
foreign settlement at Canton was invested, and forced
to give up its opium. In the middle of the year an
unfortunate riot, occasioned by drunken sailors, caused
the death of a Chinese. Attacks were now openly made
on two British boats.
A Spanish ship was attacked and destroyed, under the
impression of its being an English opium trader. Attacks
were then made on the Chinese fleet in its own waters,
and the First China War followed.
Undertaking to make Mexico liable for losses caused to
Frenchmen in the course of revolutionary outbreaks, Louis
1 30 S.P. in. * 25 S.P. 397.
3 29 S.P. 904. 4 lb, 918.
chap, iv] ARGENTINA AND FRANCE 10.5
Philippe sent Admiral Baudin to beset the Mexican coast
in 1838. The Mexican position that foreigners could not
claim in this respect to be any safer than natives, in a
land to which they had voluntarily come, seems justified
by good sense, if national independence is to be anything
but a fiction. While loudly proclaiming the most lofty
sentiments, the Admiral would make no concessions, and
invaded the country. 1 In the course of his operations he
took a Mexican pilot forcibly out of the British ship
Creole,"- for which the French Government apologized.
At Bushire, in 1838, the populace destroyed wine and
spirits in the British Residency and ill-treated the owner. 3
Palmerston was content with the promise of suitable
penalties being enforced, 4 without exacting the dismissal
of any officer responsible for the peace of the town. In
1839 Admiral Maitland imperiously insisted on being
allowed to land where he chose at Bushire, without re-
ference to the port authority. 5 Very naturally, he was
received with musketry : and the dismissal of the Governor
was therefore demanded and conceded. 6 A Persian
general had moreover stopped a messenger of the British
Minister on his way to Herat, and the man had been
mishandled. 7 The interference with this messenger was
excused as a measure of self-preservation, and an ample
apology was made for it.
France found Argentina as well as Mexico more difficult
nuts to crack than Portugal had been. The Argentine
Minister laid down in terms that — " L'etat de Buenos
Ay res est un etat souverain et independant, et un gou-
vernement etranger n'a rien a voir a ce que cet etat
decrete ; et si les lois qu'il plait de creer ne conviennent
pas aux etrangers, ils peuvent se retirer." 8 Frenchmen
had been forced into the militia. Hippolyte Bade had
1 27 S. P. 1176 et seq. 2 lb. 197.
3 28 S.P. 9. 4 lb. 153. B lb. 18.
6 lb. 133. Cf. the Mexican afiair supra, p. 100.
7 lb. 74. 8 26 S.P. 920.
106 ILLUSTRATION [chap, iv
died after rigorous imprisonment for six months, untried.
Pierre Lavie had been, " sur des presomptions insignifi-
antes," taken from his country house and brought to
Buenos Ayres in irons, where he had been detained in
secret and without trial for six months also. The French
Consul talked of the Argentine adherence to " principes
surannes," and the Argentines, with better reason, spoke
of its unexampled liberality, in permitting without treaty
free liberty of residence and trade. Their positions are
" i. Qu'en laissant a chaque Nation la possession
pacifique de la liberte qu'elles tiennent toutes de la nature,
il leur appartient de juger par elles-memes de ce qui con-
vient a leur prosperite et a leur avancement : et qu'elles
n'offensent personne lorsqu'elles usent de ce droit pour
atteindre un objet aussi important, qui forme le but de
" 2. Que par l'effet de cette liberte chaque Nation a le
droit de permettre ou de refuser la libre entree, et le
simple residence des etrangers, selon l'idee qu'elle se forme
des maux et des biens qu'elle doit en attendre.
"3. Qu'il depend aussi de sa volonte de leur laisser la
liberte de s'etablir sur son territoire.
" 4. Que cette liberte, etant une concession purement
gratuite, la Nation peut l'accorder sous les conditions
qu'il lui plait de dieter.
" 5- Qu'elle peut aussi les engager a en profiter, moyen-
nant d'autres concessions qui lui soient avantageuses.
' 6. Que les etrangers, par le seul fait d'accepter la
permission qui leur est accordee, et sans faire d'autres
demarches, se soumcttent de plein gre aux conditions
qu'on leur impose, et ils acquierent en retour le droit
aux faveurs qui leur sont promises.
' 7. Qu'en consequence, si l'usage libre qu'ils font de
cette permission, leur fait perdre leur nationality, cette
perte n'a rien de force, parcequ'elle est libre et spontanee :
sans qu'on puisse non plus l'attribuer a la loi, qui les a
chap, iv] ARGENTINE PRINCIPLE IO7
engages par les avantages qu'ils ont bien voulu accepter, et
qu'on a laisse a leur choix d'admcttre."
Tlic logic of clause 7 probably goes too far. The loss
of nationality (and the consequent liability to military
service), like cruel and inhuman treatment, can hardly
be made the subject of tacit consent. With that excep-
tion, the theory of national right could hardly be better
put. To this day, the doctrine remains firmly embedded
in Argentine opinion. The Argentine (unlike every
European Latin system) at this moment regards Domicile
as the touchstone of national character for the purposes
of Private Law. 1 The Argentine " Drago Doctrine " con-
demns the violent assertion of the claims of foreign
financiers. The assertion of these principles by the country
in its weak infancy, against the pretensions of the leading
states of the world, is a splendid monument to the
statesmanship and devotion of the Argentine pioneers. 2
Certainly France had little to complain of when she
went to war. There were only two Frenchmen in Argen-
tine prisons — one accused of homicide and the other of
theft :1 — and six in the army. 4 The individual cases of
hardship were trivial. The real question was that of
principle. The eventual success of Argentina, after
several years of blockade, was an instructive lesson.
Bade was, by independent Chilian official testimony,
a traitor. 5 Lavie was an army sutler convicted on his
own confession of receiving army clothing in pawn.
Theirs were literally the only cases, except one com-
plicated and ancient money dispute. Argentina offered
arbitration. The French Consul simply told her that she
would sooner or later have to give in : that his country
would now lend its support to any and every rival faction ;
1 Zeballos, Bulletin Argent in tie Dr. Int. Priv., 477.
2 26 S.P. 930, Arana to Roger, 8 Jan. 1838.
3 lb. 964, Rosas to Lebianc, 3 April 1838.
4 Of whom five were stated to be volunteers.
5 26 S.P. 1003.
108 ILLUSTRATION [chap, iv
and that she was preparing a formidable expedition.
Relations were suspended for several years, and the treaty
by which they were resumed was at least as favourable
to the South American as to the European power. 1
Mr. Webster discusses 2 in 1842 the difficult position to
which we have already referred, of two nations differing
in their estimate of what is the " property " of a subject
of one of them. The slaves of a subject of the United
States came within the territory of Great Britain. Was
he entitled there to the protection for them due to his
' property " ? The question is complicated by the cir-
cumstance that the slaves were on board a U.S. ship :
and, moreover, a ship in distress. Webster maintained
that in these circumstances the rights of the slave-owner
must be determined by his own American law, except in
cases where the local law notoriously took them away.
" A state," he says, " may declare, in the absence of
treaty stipulation, that foreigners shall not sue in her
courts, nor travel in her territories, nor carry away funds
or goods received for debts. . . . Her power to make such
laws is unquestionable : but in the absence of direct and
positive enactments to that effect, the presumption is
that the opposite of these things exist. While her ports
are open to foreign trade, it is to be presumed that she
expects foreign ships to enter them, bringing with them
the jurisdiction of their own government and the protec-
tion of its laws." But on the general case (apart from
this assumed ex-territoriality of ships, especially in case of
rcldchc jorcec), he admitted that slaves in British territory
cease to be fit subjects of protection as property. In a
case of escape — " the territorial jurisdiction of England
will have become exclusive over them and must decide
their condition." 3
This amounts to an absolute opinion in favour of the
1 15 Nouvcau h'cc. Gen. (2 Samwer) 50 : cf. 37 S.P. 7 ; sec also
9 Murhard, 108.
■ 30 S.P. 181, Webster to Ashburton, 1 Aug. 1842. ■ lb. 188.
chap, iv] HAWAII AND OTAIIEITE IOQ
local law governing all questions of property (ex-territori-
ality apart). It is of course subject to the observation that
the local law must be known, and not a trap. Webster's
authority is high enough to make it almost conclusive.
A British ship proceeded to Hawaii in 1843 to make
the following demands : — (1) Restoration to Consul
Charlton of land taken up by the government : ' (2)
Acknowledgment of his deputy Simpson as Acting
Consul pending the discussion of the Hawaian objections
to Simpson : (3) A salute in apology for not receiving
Simpson : (4) Abandonment of the right to iron British
subjects for crimes not felony in England : (5) A new
and fair trial of a case brought by a Briton against an
American : (6) Juries de medictate UngiKc : (7) Direct
access to the Sovereign. Lord G. Paulet threatened an
armed attack if these points were not conceded. It is
no wonder that the King signed his answer — " Yours
respectfully," and proceeded to cede his kingdom to
Lord George. That functionary was promptly disavowed
by Admiral Thomas, who convinced his Majesty that the
Queen's Government " made it a rule never to resort to
force until every expedient for an amicable settlement
had failed," and that " rather than urge compliance with
demands which are likely to embarrass a feeble govern-
ment, its object is to foster and even assist by good
offices such as may be disposed to seek for its friendly
intervention, requiring only in return equal privileges '
on the most-favoured-nation footing. 2 He repudiated
the cession, and declared that H.B.M. left the govern-
ment entirely to the King.
Admiral Dupetit-Thouars told the Otaheitans in 1843 s
that — " contraires a vos propres lois, les domiciles des
francais ont ete violes, . . . des spoliations de proprietes
ont 6te violemment et injustement prononcees, . . .
plusieurs de nos compatriotes ont £te frappes par les
1 Cf. Finlay's claim on Greece, infra, p. 117.
a 31 S.P. 1029. 3 lb. 938.
110 ILLUSTRATION [chap, iv
agents de la police ; . . . d'autres ont ete jetes en prison
. . . et mis au bloc comme de vils scelerats, sans avoir pu
se faire entendre, etc." (sic). It is curious that other
nations had no complaints of such flagrant breaches of
treaty ! Thouars demanded 10,000 piastres, or the
delivery up of the local forts. Exactly as the Hawaian
king had done, the Tahitian queen resigned her external
sovereignty. The real motives of the French can be
accurately estimated from the " expose des motifs " pub-
lished in the Moniteur of 25 April 1843. 1 Lord Aberdeen
officially characterized the cession as made — " partly by
intrigue and partly by intimidation." 2 However, Louis
Philippe's career was drawing to a close. We shall not,
until we deal with events a quarter of a century later,
have to examine aggressive acts of this character on the
part of France : it need only be remarked that, on the
occasion of an insurrection in 1844, the British Consul
was ejected from the Islands, under aggravating circum-
stances of insult. On account of these latter, Guizot
promised a full indemnity. 5 The incident very nearly
provoked war. The London populace was counting up
the alliances and resources of the two countries : the
Cabinet were on the point of sending the Consul back to
Tahiti on a man-of-war. But France firmly maintained
the right of a government to expel persons whom it
For many years the Neapolitan Government steadily
refused leave to build a Protestant church for the English
community of Naples, and their right to do so was never
questioned by the British ministers. 4 Turkey equally
refused to allow the erection of a Protestant church in
Jerusalem until 1845 ; ■ and then it was conceded on
1 31 S.P. 949-
2 '&■ 953. Addington to Barrow, 11 July 1843.
3 32 S.P. 122, 1060.
* See 31 S.P. 1 167, 1 198 et passim ; 33 S.P. 1163, 1164, etc.
6 34 S.P. 1145.
chap, iv] EVIDENCE IN TUNIS III
the demand of Prussia and Britain. It was represented
as demanded by the most-favoured-nation clause — which
may be more than dubious. In a despatch of 1844 Lord
Aberdeen asserted a right to protect Christians in
Turkey. 1 But Turkey can never be taken as a precedent
for anything. Mr. Wellesley, writing in 1846, says—
" They demand our sympathy, but they are not under
our protection." The Armenian Protestants were or-
ganized as a recognized religious community in 1847.
It may surprise some to learn that in Tunis, in 1844,
the jurisdiction of the Bey in person expressly extended
over Europeans. A Maltese having killed a Turk (in