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INTERNATIONAL LAW.



LONDON: PRINTED BY

8POTTISWOODE AND CO., NEW-STBEBT SQUABE

AND PABLIAMBNT 8TREBX



COMMENTARIES



UPON



INTERNATIONAL LAW.



BY



SIE EOBEET PHILLIMOEE, D.C.L.

MEMBER OF HER MAJESTY'S MOST HONOURABLE PRIVY COUNCIL, AND
JUDGE OF THE HIGH COURT OF ADMIRALTY.



At'xa iro\i(av
A<r<j>a\es fidOpov, ical 6/utd-
Tpo7ro? Eipa»/a, Ta/xCaL



'AvSpda-t tt\ovtov, xpvosai

IlalSes evfiovkov 0e>tTOS.' PlND. Olymp. xiii. 7.



Justice is the common concern of mankind.' — Burke, vol. v. p. 275, Thoughts on the French

Revolution.
Kecte a viris doctis inter desiderata relatum est, jus Naturas et Gentium, traditum secundum

disciplinam Christianorum.'— Leibnitz, xxxii. De Notionibus Juris et Juslitice, p. 120.



VOL. I.



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PBEEACE



TO



THE SECOND EDITION.



Erratum.
P. vi. line 12, for external read eternal



Phillimore's International Law.



These events have not induced me to change the
opinions which I had expressed in this volume as to
the cardinal principles of International Law. On the
contrary, I venture to think that they furnish a strong
corroboration of them.

The " violence, oppression, and sword-law," which
at this moment prevail in part of Europe, ought not

(a) The fourth volume, on Private International Law, was published
in 1861.






??-



"•i



PBEFACE



THE SECOND EDITION.



I. The first edition of this volume, which was
published in 1854, has been for some time out of print.
The third volume, which closed the Commentaries on
Public International Law, was published in 1857 (a).
In the preface to that volume a summary of the his-
torical events which in the interval of these three
years (1854 to 1857) had affected International Law
was given. I propose to place that summary in the
present preface, adding to it a brief notice of historical
events of the like character which have happened
during the second interval of thirteen years (1857-
1870).

These events have not induced me to change the
opinions which I had expressed in this volume as to
the cardinal principles of International Law. On the
contrary, I venture to think that they furnish a strong
corroboration of them.

The " violence, oppression, and sword-law," which
at this moment prevail in part of Europe, ought not

(a) The fourth volume, on Private International Law, was published
in 1861.



VI P KEF ACE.

to shake conviction in the truth of these principles,
while on the other hand they are confirmed by the
consideration of events which, unconnected with the
present war, have happened during the interval men-
tioned.

There always have been, and always will be, a class
of persons who deride the notion of International
Law, who delight in scoffing at the jurisprudence
which supports it, and who hold in supreme contempt
the position that a moral principle lies at its root.

The proposition that, in their mutual intercourse,
States are bound to recognize the external obligations
of justice apart from considerations of immediate ex-
pediency, they deem stupid and ridiculous pedantry.
They point triumphantly to the instances in which
the law has been broken (£>), in which might has been
substituted for right, and ask if Providence is not
always on the side of the strongest battalions.

But in truth these objections are as old as they are
shallow ; they leave untouched the fact that there is,
after all, a law to which States, in peace and war,
appeal for the justification of their acts; that there
are writers whose exposition of that law has been
stamped as impartial and just by the great family of
States, that they are only slighted by those upon
whose crimes they have by anticipation passed sen-
tence ; that Municipal as well as International Law
is often evaded and trampled down, but exists never-
theless, and that States cannot, without danger as
well as disgrace, depart in practice from doctrines



(b) " Sed nimirum historic non tantum quae juste, sed et quae inique,
iracunde, impotenter facta sunt memorant."— Grotius, Be J. B. 1. 2



c. xvm. s. vu.



INTERVENTION. — BALANCE OF POWER. Vll

which they have professed in theory to be the guide of
their relations with the commonwealth of Christendom.

The axiom "populus jura naturss gentiumque
u violans suae quoque tranquillitatis in posterum
" rescindit munimenta " remains as true to-day as
when it was written by its great author two centuries
ago. The precedents of crime no more disprove the
existence of International than of Civil Law (c).

II. In the chapter on Intervention (d) the doc-
trine of what is known as the Balance of Power is
considered.

The preservation of this balance is placed under
the head of Self-defence, and upon this ground the
intervention of a third State, in the adjustment of the
relations between other States, must be principally
justified. The doctrine has of late years been attacked
and ridiculed. It certainly is liable to great abuse,
but fairly explained means no more than the right of
timely prevention of a probable danger.

As a matter of fact it has been directly recognized
as a principle to be maintained by the great European
Powers in recent conventions of great importance.

It will be seen, to pass by other instances, that the
principle occupies an important place in the Protocol
of 1831, which preceded the establishment of the in-
dependent kingdom of Belgium, and in the Treaty of
Stockholm in 1855 (e). Whatever may be the value



(c) See, also, concluding remarks of the third volume.

(d) See Pt. iv. ch. i. of this volume.

(e) " The Queen of England, the Emperor of the French, and the
King of Sweden and Norway, being anxious to avert any complication
which might disturb the existing balance of power in Europe, have resolved
to come to an understanding with a view to secure the integrity of the
united kingdoms of Sweden and Norway, and have named as their



\ in PREFACE.

of this principle, so recently and so solemnly recog-
nized, it has never been more rudely " disturbed"
than by the aggressions of Austria and Prussia upon
Denmark in 1865, and of Prussia alone, in 1866,
upon her weaker neighbours. It is indeed a melan-
choly repetition of history. We see in these acts of
violence the same lust for aggrandisement, the same
contempt for the weakness of the State whose territory
is coveted, which animated the partitioners of Po-
land (/) and the rulers of Revolutionary and Im-
perial France.

Nevertheless, though right be thus dethroned by
might for a season, justice, "the common concern of
u mankind," is the only true policy of all States, and
the precedents of wrong sooner or later recoil on the
wrongdoer. It is some satisfaction to an English
writer that England neither directly nor indirectly
gave countenance to these acts of violence. In 1864,
Earl Russell expressed the opinion of the Government
and people of England as follows : —

" Her Majesty's Government would have preferred
" a total silence instead of the task of commenting on
" the conditions of peace. Challenged, however, by

Plenipotentiaries to conclude a Treaty for that purpose," &c. — Ann. Reg.
I860, p. 323.

(/) " The principle of maintaining a balance of power, which for two
centuries had distinguished Europe above other societies of nations, was
now, for the first time, sacrificed ; three great military Powers, instead of
preventing each other's aggrandisement, conspired to share the spoils of a
neighbour. The feebleness and turbulence of Poland furnished them
with a strong temptation and with some pretext, and the Governments of
France and England, the first influenced by the weakness of the Court,
and the second influenced by the division of the people, betrayed their
duty to Europe, and suffered the crime to be consummated. From that
moment the security of all nations was destroyed."— Life of Sir J. Mack-
intosh, vol. ii. p. 158.



INTERVENTION. — BALANCE OF POWER. IX

4 M. de Bismarck's invitation to admit the moderation
4 and forbearance of the great German Governments,
i Her Majesty's Government feel bound not to dis-
4 guise their own sentiments upon these matters.
4 Her Majesty's Government have indeed, from time
1 to time, as events took place, repeatedly declared
4 their opinion that the aggression of Austria and
4 Prussia upon Denmark was unjust, and that the
4 war, as waged by Germany against Denmark, had
4 not for its groundwork either that justice or that
4 necessity which are the only bases on which war
4 ought to be undertaken.

" Considering the war, therefore, to have been wholly
' unnecessary on the part of Germany, they deeply
4 lament that the advantages acquired by successful
4 hostilities should have been used by Austria and
' Prussia to dismember the Danish Monarchy, which
4 it was the object of the Treaty of 1852 to preserve
entire " (g).

It is worthy of consideration whether a State which
can and does not intervene for the protection of
another unjustly attacked does really provide for its
own safety or secure that peace which it so justly
prizes ; whether there are not cases in which both
national honour and national interests are best con-
sulted by recognizing the international obligations of
succouring an oppressed member of the common-
wealth of civilized States; whether the conduct of a
State may not be selfish, as well as that of an indivi-
dual, and be attended with the like consequences. I
may apply, with a slight alteration, the language of

(y) Ann. Reg. 1864, p. 237.



PREFACE.



our present Prime Minister as to the rights of indi-
vidual men to property and religious freedom, to the
aggregates of men or States, and say, " The rights of
u each State are the rights of his neighbour : he that
u defends one is the defender of all ; and he that
u trespasses on one assails all" (h). It may safely
be affirmed that in the present war (1870) France
was the aggressor, that the immediate reason which
she assigned for beginning it was neither true
nor adequate. The choice by the Spaniards of a
Hohenzollern, by whomsoever suggested, for the
throne of Spain was not an act which disturbed the
balance of power, and neither threatened the general
liberties of Europe nor endangered the safety of
France. But is it not most probable, or indeed
morally certain, that if France had not refused to co-
operate with England and assist Denmark in her
noble war of self-defence in 1865, or had aided the
minor States whom Prussia absorbed in 1866, the
present war, which bids fair to be at least as disgrace-
ful to Christendom as any in which Christian States
have ever been engaged, would not have taken place ?
Let those who deride the notion that a State has
International duties weigh well the following words
of M. Prevost-Paradol, uttered but two years ago : —
" Le d^membrement du Danemark, tolere par
" nous, malgre les ofires formelles de concours que
" nous faisait alors l'Angleterre pour empecher une
11 iniquity si dangereuse, les encouragements que la
" Prusse a recus de nous dans ses desseins declares
14 contre l'Autriche, le secours qu'avec notre aveu,



(A) Letter to the Bishop of Aberdeen in 1852, p. 14. " The rights of
each man."



INTERVENTION. — BALANCE OF POWER. XI

" sinon par notre ordre, lui a prete l'ltalie, sont des
" faits qui n'ont plus desormais qu'un interet histo-
" rique, sur lesquels il serait sans interet de revenir,
" et qu'on peut abandonner au jugement severe de
" l'equitable posterite " (i).

III. The evils which result from this state of
things are not transient; they tend to render per-
manently insecure the mutual relations of indepen-
dent States.

Much of the energy, freedom, and vigour which
have animated, as well as the arts and sciences
which have embellished and enriched Christendom
may be traced to the free competition and emulation
arising from the existence of States of no considerable
territorial grandeur, but members of a commonwealth
which proclaimed that " Russia and Geneva had
" equal rights " (&).

The prevailing notion, unhappily not confined to
Europe, that a State must seek territorial aggrandise-
ment as a condition of her welfare and security is a
vulgar relapse into barbarous times, and fraught with
future misery to the world (I). Hence the great evil of
enormous standing armies, perpetual menaces to the
liberties of mankind ; hence the miserable palliations
of wrong and robbery under the specious titles of
" rectification of frontiers " and the like.

Hence the contempt for the feelings and wishes of
the inhabitants of territories, incorporated like brute
animals, by brute (m) force, into the " rectified" State.

(i) La France nouvelle, par M. Prevost-Paradol, ch. iii. p. 373.

(k) Pt. ii. ch. i. of this volume.

(/) Mackintosh, Memoirs, vol.'ii. p. 214.

(ni) " La force materielle, la force brutale, la guerre, puisqu'il faut
Fappelerpar son nom." Chambre des Deputes, 31 Janvier 1848. — Guizot,
Hist. pari, de la France, t. v. p. 555.



xii PREFACE.

M D'un premier mal naitraient une foule de maux.
11 Reconnaissons done que l'injustice est un mauvais
" fondement, sur lequel le monde politique ne saurait
" batir que pour sa ruine " (w).

This mode of annihilating the liberties of free
men did not, speaking only of modern times, it must
be admitted, begin with these later German wars. It
was the radical vice and the dissolving element of the
conventions which closed the European wars against
France, 1814-15.

The transference of provinces and kingdoms from
one potentate to another, without the consent of the
transferred inhabitants, was strongly condemned at
the time by the wisest statesmen and jurists of the
British Parliament (o). Subsequent events have
proved the wisdom as well as the justice of this con-
demnation.

IV. The rights of the people thus denied in
Germany have been recognized in another part of
the European Continent in a very remarkable
manner. The kingdom of Italy, created during the
interval of which we are speaking, has been founded
upon the basis of consulting the will of the in-
habitants ; and while these pages are being written
the remaining dominions of the Pope and Rome her-
self are, according to the suffrage of their inhabitants,
being united to this kingdom.

V. The means of ascertaining the wish of the
people are open to considerable doubt and difficulty.
The invention of the plebiscite is capable of being

(») Mtmoire raisonnS by Talleyrand, in 1814, against the dismember-
ment of Saxony.

(o) Ch. adv. of this volume.



INTERVENTION. — CIVIL WAR. Xlll

used as an engine of despotism as well as of freedom.
If Italy has acquired province after province, and
city after city, by this instrument, by the same she
has lost and France has acquired Nice and Savoy — an
acquisition from which she has derived no real bene-
fit, and incurred much odium, and which she made (p)
in opposition to the warning and wishes of her ally
Great Britain. I may be allowed to put in contrast
with this mistaken policy the cession, by England, in
1863, with the consent of the Great Powers, of the
Ionian Islands to Greece — an act in which real
homage was paid to the principle of consulting the
wishes and feelings of the subjects of acquired
territory.

In a civil war (q) the stronger party will not allow
the wish of the weaker party to be so ascertained,
nor, if ascertained, pay attention to it, and the inter-
vention of a third Power for the purpose of securing
and giving effect to this expression of opinion, such
as the Prince of Orange in the English, the King of
France in the American, or the King of Sardinia in
the Italian revolution, cannot take place without the
existence of a war between this third Power and the
other belligerent in the civil contest.

I suppose it would not be denied that, in the recent
American civil war, the Southern States would have



(p) Lord Russell to Lord Cowley, July 5, 1859 : " Her Majesty's
Government have learned with extreme concern that the question of

annexing Savoy to France has been in agitation If Savoy

should be annexed to France, it will be generally supposed that the left
bank of the Rhine, and the ' natural limits,' will be the next object ;
and thus the Emperor will become an object of suspicion to Europe,
and kindle the hostility of which his uncle was the victim." — Ann. Req.
1860, p. 243.

(?) Pt. iv. ch. i. of this volume.



XIV PREFACE.

separated themselves from the Northern if the ex-
pression of the wishes of the inhabitants, by a vote
of universal suffrage or a plebiscite, could have
enabled them to effect this disunion, even when the
civil war first broke out, and the Government of
Washington declared its steadfast intention of not
interfering with the status of slavery in the Southern
States.

VI. The application of the doctrine of Interven-
tion to Turkey (r) has produced events of great
importance during the interval mentioned.

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 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 con-
sidered the Positive Law of Christian Communities.
The object of the Treaty of Paris is to secure,
44 through effectual and reciprocal guarantees, the
44 independence and integrity of the Ottoman Em-
44 pire " (s). This result is the subject of a common
Guarantee^). The Plenipotentiaries declare that
44 the Sublime Porte is admitted to participate in the
44 advantages of the Public Law and system (concert)
44 of Europe" (u). This proposition must receive, as
to Private International Law, some obvious limi-
tation from the very nature of Mohammedanism:
though it be true that this religion is professed by a



(r) Pt. ii. ch. i. of this volume.

(«) Preamble.

(t) Article vii.

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



INTERVENTION. — TURKEY. XV

comparatively small number of the subjects of Euro-
pean 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 Eights, she has also sub-
jected herself to the Duties of a civilized Community.
How long this new condition of things, so utterly 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 (x) 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 Interven-
tion by the Powers of Christendom on behalf of
their co-religionists : —

u His Imperial Majesty the Sultan having, in his
u constant solicitude for the welfare of his subjects,
M issued a firman which, while ameliorating their
" condition without distinction of religion or of race,
" records his generous intentions towards the Chris-
" tian 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

(x) The Sultan has even received from the Queen of England the
essentially Christian Order of the Garter.



XVI PREFACE.

M that it cannot, in any case, give to the said Powers
" the right to interfere, either collectively or sepa-
" rately, in the relations of His Majesty the Sultan
" with his subjects, nor in the internal administration
u of his Empire " {y).

It remains to be seen whether this firman be put
into bona fide execution, or whether M. Guizot be
right in (z) his opinion that European intervention
in Turkey is at once inevitable and of no avail. The
immiscible characters of Christian and Turk are still
attested by the exemption of the former from the
civil and criminal jurisdiction of Turkish tribunals.

The Principalities of Moldavia and Wallachia and
ofServia are placed under the Suzerainete of the Porte,
and the Guarantee of the Protecting Powers, but



(y) Article ix.

(z) " 11 y a, dans les relations de l'Europe chretienne avec l'empire
ottoman, un vice incurable : nous ne pouvons pas ne pas demander aux
Turcs ce que nous leur demandons pour leurs sujets chretiens, et ils ne
peuvent pas, memo quand ils se r^signent a nous le promettre, faire ee
que nous leur demandons. L'intervention europe"enne en Turquie est a
la fois inevitable et vaine. Pour que les gouvernements et les peuples
agissent efficacement les una but les autres par les conseils, les exemples,
les rapports, et les engagements diplomatiques, il faut qu'il y ait, entre
eux, un certain degre* d'analogie et de syrnpathie dans les mceurs, les
id6*es, les sentiments, dans les grands traits et les grands courants de la
civilisation et de la vie sociale. II n'y a rien de semblable entre les
Chretiens europeens et les Turcs ; ils peuvent, par necessity, par politique,
vivre en paix a c6te' les uns des autres ; ils restent toujours strangers les
una aux autres ; en cessant de se combattre, ils n'en viennent pas a se
comprendre. Les Turcs n'ont 6te" en Europe que des conquerants destruc-
teurs et ste*riles, incapables de s'assimiler les populations tombe"es sous
leur joug, et egalement incapables de se laisser pene"trer et transformer
par elles ou par leurs voisins.

" Combien de temps durera encore le spectacle de cette incompatibilite
radicale qui ruine et depeuple de si belles contre*es, et condamne a tant
de miserea tant de millions d'hommes ? Nul ne peut le prevoir ; mais la
scene nechangera pas tant qu'elle sera occup^e par lesmemes acteurs."; —
Owkotf Meinoire de mon Temp*, t. vi. ch. xxxvii. pp. 257-8



INTERVENTION. — GREECE. XV11

without " any separate right of interfering in their
" internal affairs " (a).

VII. With respect to Intervention in the internal
affairs of an independent State (&), Greece during the
Eussian war (1856) afforded an instance in which this
exceptional right, the offspring of necessity, has been
exercised both by France and England, as it should
seem 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 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 (c).

{a) Articles xxii.-xxviii.

(b) Pt. ii. ch. ii. of this volume.

(c) " It cannot be denied," Count Walewski says, "that Greece is in
an abnormal state. The anarchy to which that country v?asa prey, has
compelled France and England to send troops to the Piraeus at a time
when their armies, nevertheless, did not want occupation. The Congress
knows in what state Greece was ; neither is it ignorant that that in
which it now is, is far from being satisfactory. Would it not therefore
be advantageous that the Powers represented in the Congress should
manifest the wish to see the three protecting Courts take into serious
consideration the deplorable situation of the kingdom which they have
created, and devise means to make provision for it ?

" Count Walewski does not doubt that the Earl of Clarendon will join
with him in declaring that the two Governments await with impatience
the time when they shall be at liberty to terminate an occupation to



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