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14. An Agreement for a New Rule between two

States only

If war should arise between the two contracting parties,

.. merchant and trading vessels employed in exchanging the products of different places, and thereby rendering the necessaries, conveniencies, and comforts of human life more easy to be obtained, and more general, shall be allowed to pass free and unmolested; and neither of the contracting Powers shall grant or issue any commission to any private armed vessels, empowering them to take or destroy such trading vessels or interrupt such commerce. — (Article XXIII of the Treaty between the United States and Prussia, 1785.)

NOTE. — This Treaty expired in 1796, and Article XXIII has never been revived.

15. Prize Court Judges as Exponents of International

Law

In forming that judgment, I trust that it has not escaped my anxious recollection for one moment, what it is that the duty of my station calls for from me; - namely, to consider myself as stationed here, not to deliver occasional and shifting opinions to serve present purposes of particular national interest, but to administer with indifference that justice which the law of Nations holds out, without distinction, to independent states, some happening to be neutral and some to be belligerent. The seat of judicial authority is, indeed, locally here, in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits here to determine this question exactly as he would determine the same question if sitting at Stockholm; to assert no pretensions on the part of Great Britain which he would not allow to Sweden in the same circumstances, and to impose no duties on Sweden as a neutral country, which he would not admit to belong to Great Britain in the same character. If, therefore, I mistake the law in this matter, I mistake that which I consider, and which I mean should be considered, as the universal law upon the question; a question regarding one of the most important rights of belligerent nations relatively to neutrals. - (Extract from Sir William Scott's Judgment in the Swedish Convoy Case, 1 C. Rob., 350.)

16. Extract from a State Paper which cleared up a

Disputed Point If a subject of the King of Prussia is injured by or has a demand upon any person here, he ought to apply to his Majesty's courts of justice, which are open and indifferent to foreigner or native; so vice versa, if a subject here is wronged by a person living in the dominions of his Prussian Majesty, he ought to apply for redress in the King of Prussia's courts of justice.

If the matter of complaint be a capture at sea during the war, and the question relative to prize, he ought to apply to the judicatures established to try these questions.

The Law of Nations, founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage, does not allow of reprisals, except in case of violent injuries, directed or supported by the state, and justice absolutely denied in re minime dubia by all the tribunals, and afterwards by the prince. Where the judges are left free and give sentence according to their conscience, though it should be erroneous, that would be no ground for reprisals.

The King of Prussia has engaged his royal word to pay the Silesia debt to private men. It is negotiable, and many parts may have been assigned to the subjects of other powers. It will not be easy to find an instance where a prince has thought fit to make reprisals upon a debt due from himself to private

There is a confidence that this will not be done. A private man lends money to a prince upon the faith of an engagement of honour, because a prince cannot be compelled, like other men, in an adverse way, in a court of justice. So scrupulously did England, France and Spain adhere to this public faith, that, even during the war, they suffered no enquiry to be made whether any part of the public debt was due to subjects of the enemy, though it is certain many English had money in the French funds, and many French had money in ours. — (British Answer to the Prussian Memorial on the Silesian Loan Question, 1753.)

17. Extract from a Domestic Document which influenced largely the Growth of the International Law of

Land Warfare

Section IV

81. Partisans are soldiers armed and wearing the uniform of their army, but belonging to a corps which acts detached from the main body for the purpose of making inroads into the territory occupied by the enemy. If captured, they are entitled to all the privileges of the prisoner of war.

82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and vocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers — such men, or squads of men, are not public enemies, and therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.

83. Scouts, or single soldiers, if disguised in the dress of the country, or in the uniform of the army hostile to their own, employed in obtaining information, if found within or lurking about the lines of the captor, are treated as spies, and suffer death.

84. Armed prowlers, by whatever names they may be called, or persons of the enemies' territory, who steal within the lines of the hostile army, for the purpose of robbing, killing, or of destroying bridges, roads, or canals, or of robbing or destroying the mail, or of cutting the telegraph wires, are not entitled to the privileges of the prisoner of war.

85. War-rebels are persons within an occupied territory who rise in arms against the occupying or conquering army, or against the authorities established by the same. If captured, they may suffer death, whether they rise singly, in small or large bands, and whether called upon to do so by their own, but expelled, government or not. They are not prisoners of war; nor are they, if discovered and secured before their conspiracy has matured to an actual rising, or to armed violence. — (Instructions for the Government of Armies of the United States in the Field, 1863.)

NOTE. The Instructions, a few Articles of which are given above, were drawn up by Dr. Francis Lieber, and issued to the Federal armies in the American Civil War by the Government of the United States in 1863. When in 1874 an European Congress met at Brussels to discuss the laws of land warfare, Dr. Lieber's Instructions were freely drawn upon in the Declaration then adopted. Though this Declaration was never ratified, its form and matter influenced very largely the composition of the Règlement annexed to the Convention concerning the Laws and Customs of War on Land drawn up at the Hague in 1899, and revised in 1907. Thus the work of a private citizen, adopted by his government, had a marked influence in shaping the great Code of Land Warfare which has now been accepted by most civilized nations. (See pages 182–194.)

PART II

DOCUMENTS ILLUSTRATING QUESTIONS CONNECTED WITH THE LAW

OF PEACE

1. Voluntary Restrictions on State Action

GREAT BRITAIN AND THE UNITED STATES IN

CENTRAL AMERICA

Article 1

The Governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain or maintain for itself any exclusive control over the said ship-canal; agreeing that neither will ever erect or maintain any fortifications commanding the same, or in the vicinity thereof, or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America; nor will either make use of

any protection which either affords or may afford, or any alliance which either has or may have to or with any State or people for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying or colonizing Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America, or of assuming or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection, or influence that either may possess, with any State or Government through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one any rights or advantages in regard to commerce or navigation through the said canal which shall not be offered on the same terms to the citizens or subjects of the other. — (Article 1 of the Clayton-Bulwer Treaty, 1850.)

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