never been denied, and because it alone can enforce its laws on all the tribes.

"We answer the questions propounded to us, that the 9th section of the act of March, 1885, is a valid law in both its branches, and that the Circuit Court of the United States for the District of California has jurisdiction of the offence charged in the indictment in this case."

16

PART II.

INTERNATIONAL RELATIONS AS MODIFIED BY WAR.

CHAPTER I.

MEASURES SHORT OF WAR.

$ 26.-REPRISALS.

SILESIAN LOAN, 1752.

(Martens: Causes Célebres, II., 97.)

The controversy in this case was as regards the right of a State to confiscate, for any reason, its public debt, held by foreign creditors.

In 1735 the Emperor Charles VI. borrowed of several London merchants the sum of 1,000,000 écus (3,000,000 francs), and as security for repayment, gave them a mortgage on the revenues of the Province of Silesia. After the death of the Emperor (1740) Frederick II. of Prussia seized Silesia, which Maria Theresa was constrained to formally cede to him by the treaties of Breslau and Berlin, 1742. Frederick agreed, however, to assume the debt of the province and to pay the English creditors.

In 1744 war broke out between England on the one side and France and Spain on the other. And during the next four years the English seized eighteen Prussian vessels and thirty-three other neutral vessels, freighted in whole or in part by Prussian subjects, and laden with merchandise on account of French subjects. These ships and their cargoes were seized for carrying contraband of war or goods belonging to the enemy.

The government of England having refused to listen to the demand. of the Prussian government for an indemnity to the claimants,

Frederick II. appointed a commission in 1751 to examine these claims and compensate the claimants out of the Silesian loan, the payment of which had been withheld for this purpose. The next year the commission gave judgment, transferring the English mortgage on the Silesian revenues to the Prussian claimants as indemnity for the seizure of their property.

The contention of the Prussian government was that England had acted illegally in capturing the property of her enemies on neutral vessels, that the rule, supported by the practice of most of the nations of Europe, was "free ships, free goods;" and further that the treaties of England with the neutral powers, confirmed by the declarations of the English ministry to diplomatic agents of Prussia, had exempted such goods from capture. According to the law of nature, say the Prussian commissioners, the vessel of a neutral is his property wherever it may be found (i. e. on the high seas), and a belligerent has no more right to enter it to seize the goods of his enemy, than he has to enter a neutral port and seize the vessels of his enemy therein anchored.

As to contraband of war, the general rule of international law limited it to munitions of war, the only exception being things of ancipitis usus destined to a beseiged or blockaded port. It was shown that England herself had made several treaties in which provisions and articles of naval construction were expressly excluded from the list of contraband.

Finally, it was asserted, that the English admiralty court had no right of jurisdiction over Prussian vessels or cargoes seized in places not within English territory; and that these unjust confiscations furnished a just cause for reprisals on the part of Prussia.

The matter was referred by the English government to a commission, composed of Sir R. Lee, judge of the Supreme Court, Dr. Paul, the King's Advocate-General in the civil courts, Sir Dudley Ryder, the Attorney-General, and Mr. William Murray, Solicitor-General (celebrated later as Lord Mansfield). The report of this commission is mentioned by Montesquieu as réponse sans réplique. The following propositions were laid down :

(1) When two powers are at war, each has the right to seize as prize of war, the ships and merchandise of the other, but the property of neutrals should not be captured so long as they preserved their neutrality. It follows, therefore, (2) That the goods of an enemy on board a neutral vessel may be seized. (3) That neutral goods, not contraband, on board the vessel of an enemy, should be released. (4) That contraband goods, although belonging to a neutral, may be seized as prize of war. (5) Before appropriation of

captured goods, there must be condemnation by a court of admiralty, judging according to the law of nations and treaties. (6) The only competent court for that purpose is the court of the captor. (7) All proofs, in the first instance, should come from the vessel seized, such as the ship's papers and the depositions of the master and principal officers of the ship. (8) Every vessel must be furnished with the customary papers. (9) If a seizure is made without sufficient grounds, the captor is to be condemned in damages and expenses. (10) Finally, the law of nations permits reprisals in only two cases: First, in the case of a violent wrong directed and supported by the sovereign, or second, of an absolute denial of justice on the part of all the tribunals, and the sovereign himself, in a matter that admits of no doubt.

The report then takes up the cases of the captured vessels in detail, and shows that they were judged with the utmost impartiality. It would seem that all the Prussian vessels were restored, and all the cargoes in both classes of vessels save fifteen were likewise restored. The Prussian arguments are then answered seriatim, and shown to be without foundation in law or custom. Perhaps the weakest part of the report is the answer to the Prussian contention that contraband was limited to munitions of war. The question, says Wheaton, was at that time in litigation between England and the states of the north who had an interest in the free exportation of the products of their soil, as naval stores and provisions. The commissioners only said that Prussia could not claim the advantage of modifications of international law which had been the result of mutual concessions between England and certain neutral states.

As to the Silesian loan, the King of Prussia had pledged his royal word to pay the debt due to private individuals. This debt was negotiable, and a large part of it may have been transferred to subjects of other states. It would be difficult to find a case where a sovereign had ever seized by way of reprisal a debt which he owed to private individuals. When individuals lend money to a sovereign, they have to trust to his honor; for a sovereign may not, like other men, be sued, and forced to pay by the interposition of courts of law. England, France, and Spain, it was asserted, had adhered religiously to the principle of the inviolability of the public faith.

The dispute was finally settled by a clause of the treaty of Westminster, January 16, 1756, by which Frederick stipulated to pay the English creditors, and the English government agreed to pay 20,000 pounds sterling to satisfy the Prussian claimant. (Wheaton: Histoire du Droit des Gens, I., 260.)

The importance of this case rests, more upon the able exposition of