consul, by virtue of his office, has power to exercise judicial functions.8 Historically it is true that the consul was originally an officer of large judicial as well as commercial powers, exercising entire municipal authority over his countrymen in the country to which he was accredited. But the changed circumstances of Europe, and the preva lence of civil order in the several Christian states, have had the effect of greatly modifying the powers of the consular office; and it may now be considered as generally true that, for any judicial powers which may be vested in the consuls accredited to any nation, we must look to the express provisions of the treaties entered into with that nation, and to the laws of the states which the consuls represent." Certainly a consul can have no criminal jurisdiction in a foreign country unless it is expressly given.10 However, it has been the uniform practice of civilized governments for centuries to provide consular tribunals in other than Christian countries for the trial of their own subjects or citizens for offenses committed in those countries, and for the settlement of civil disputes between them. The establishment of such tribunals has been among the most important subjects for treaty stipulation. The jurisdiction of consuls sitting as judges is generally confined to the decision of controversies in civil cases, arising between merchants, seamen, and other nationals; to the registering of wills, contracts, and other instruments executed in the presence of the consul; and to the administration of the estates of nationals who may have died within the territorial limits of the consulate. This jurisdiction is ordinarily subject, in civil cases, to an appeal to the superior tribunals of their own country. The criminal jurisdiction is usually limited to the infliction of pecuniary penalties; and, in offenses of a higher grade, the functions of the consul are similar to those of a police magistrate, or juge d'instruction. He collects the documentary and other proofs, and sends them, together with the prisoner, home to his own country for trial.12 The jurisdiction to try offenses committed on the high seas in the district where the offender may be found, or into which he may be first brought, is not exclusive of the jurisdiction of the consular tribunal to try a similar offense when committed in a port of a foreign country in which that tribunal is established, and the offender is not taken to the United States. There is no law of Congress compelling the master of a vessel to carry or transport him to any home port when he can be turned over to a consular court having jurisdiction of

8. Dainese v. Hale, 91 U. S. 13, 23 Wall. 62, 19 U. S. (L. ed.) 864; In U. S. (L. ed.) 190.

Note: 21 L.R.A. 75.

9. Dainese v. Hale, 91 U. S. 13, 23

U. S. (L. ed.) 190.

10. Note: 45 L.R.A. 481 et seq. 11. Mahoney v. United States, 10

re Ross, 140 U. S. 453, 11 S. Ct. 897, 35 U. S. (L. ed.) 581.

Note: 45 L.R.A. 484, 486 et seq. 12. Dallemagne v. Moisan, 197 U. S. 169, 25 S. Ct. 422, 49 U. S. (L. ed.) 709; Telefsen v. Fee, 168 Mass. 188,

similar offenses committed in the foreign country.18 The jurisdiction of consuls over controversies within their province is not as a rule so exclusive as to prevent other courts from entertaining jurisdiction over such controversies; 14 but in some instances their jurisdiction has been made exclusive.15 It is no valid objection to a trial of a felony by a consular tribunal that the trial takes place without an indictment by a grand jury, and that the accused cannot have a jury on the trial of the offense.16 By the Constitution a government is ordained and established "for the United States of America," and not for countries outside of their limits. The guaranties it affords against accusation of capital or infamous crimes, except by indictment or presentment by a grand jury, and for an impartial trial by a jury when thus accused, apply only to citizens and others within the United States, or who are brought there for trial for alleged offenses committed elsewhere, and not to residents or tempo. rary sojourners abroad. The Constitution can have no operation in another country. When, therefore, the representatives or officers of our government are permitted to exercise authority of any kind in another country, it must be on such conditions as the two countries may agree, the laws of neither one being obligatory upon the other. Furthermore the enforcement of the constitutional guaranties in question is impracticable from the impossibility of obtaining a competent grand or petit jury. The requirement of such a body to accuse and to try an offender would, in a majority of cases, cause an aban donment of all prosecution. The framers of the Constitution, who were fully aware of the necessity of having judicial authority exercised by our consuls in non-Christian countries, if commercial intercourse was to be had with their people, never could have supposed that all the guaranties in the administration of the law upon criminals at home were to be transferred to such consular establishments, and applied before an American who had committed a felony there could be accused and tried. They must have known that such a requirement would defeat the main purpose of investing the consul with judicial authority.17

IX. WAR IN GENERAL

83. Nature and Existence of War.-All wars according to the classification of the public jurists are either perfect or imperfect. If war

46 N. E. 562, 60 A. S. R. 379, 45 L.R.A. 481 and note.

13. In re Ross, 140 U. S. 453, 11 S. Ct. 897, 35 U. S. (L. ed.) 581. 14. Note: 45 L.R.A. 491. 15. Telefsen v. Fee, 168 Mass. 188, 46 N. E. 562, 60 A. S. R. 379, 45 L.R.A. 481.

16. In re Ross, 140 U. S. 453, 11 S. Ct. 897, 35 U. S. (L. ed.) 581; Downes v. Bidwell, 182 U. S. 244, 21 S. Ct. 770, 45 U. S. (L. ed.) 1088.

17. In re Ross, 140 U. S. 453, 11 S. Ct. 897, 35 U. S. (L. ed.) 581.

be formally declared it is of the perfect kind; because one whole nation is at war with another whole nation, and all the members of the nation declaring war are authorized to commit hostilities against all the members of the other, in every place and under every circumstance. In such a war all the members act under a general authority, and all the rights and consequences of war attach to their condition. But hostilities may subsist between two nations, more confined in its nature and extent, being limited as to places, persons, and things; and this is more properly termed imperfect war because those who are authorized to commit hostilities act under special authority, and can go no farther than to the extent of their commission. Still, however, it is public war, because it is an external contention by force between some of the members of the two nations, authorized. by the legitimate powers. Indian wars are of the latter class. 18 An act of jurisdiction exerted by inferior magistrates, civil or military, for the arrest or punishment of individuals, is not public war. So long as the act is kept within legal compass, though its exertion be violent, where, for instance, the object is to suppress a riot, quell an insurrection, or repel the hostile incursions of individuals, it is, though sustained by a soldiery in arms, only one mode of enforcing the criminal law. It is like calling out the militia as a posse comitatus to aid a sheriff who is resisted in the execution of process. Force becomes lawful where the laws are set at defiance. Such a state of things, therefore, confers no right to act offensively against individuals who reside or sojourn in the neighboring territory. Should they be pursued and arrested, or killed, the act would be a naked usurpation of authority, like the sheriff of one county going into another to execute process.19 The parties belligerent in a public war are independent nations. But it is not necessary, to constitute war, that both parties should be acknowledged as independent nations or sovereign states. A war may exist where one of the belligerents claims sovereign rights as against the other. Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared; it becomes such by its accidents-the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory, have declared their independence, have cast off their allegiance, have organized armies, have commenced hostilities against their former sovereign, the world acknowledges them as belligerents,

18. Montoya v. United States, 180 Dec. 328. See generally, WAR. U. S. 261, 21 S. Ct. 358, 45 U. S. (L. 19. People v. McLeod, 1 Hill (N. ed.) 521; People v. McLeod, 1 Hill Y.) 377, 25 Wend. 483, 37 Am. Dec. (N. Y.) 377, 25 Wend. 483, 37 Am. 328.

and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treat them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason. The true test of the existence of civil war, as found in the writings of the common law, may be thus summarily stated: "When the regular course of justice is interrupted by revolt, rebellion or insurrection, so that the courts of justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land." 20 In the war of the rebellion the United States sustained the double character of a belligerent and a sovereign, and had the rights of both. The question whether war, in its legal sense, exists is to be determined alone by the political power of the government; and of this determination the courts must take judicial notice. It is not a question for the jury. Inasmuch as the normal state of nations is one of peace and benevolence, nations are morally bound to preserve it, and peace and friendship must always be presumed to subsist among nations. Therefore he who founds a claim upon the rights of war must prove that the peace was broken by some national hostility, and war commenced; mere conjecture, supposition and possibility can render no competent evidence of the fact.3

84. Retorsion: Reprisals, Interdiction of Commerce.-In case a sovereign state deems that it has been wronged by another nation and that forcible measures must be adopted in order to compensate it for past injury or to restrain further wrongful acts, it has available a number of modes of retorsion, short of actual warfare, and invasion of territory. Foremost among these forcible measures is reprisal. "Reprisals," says Vattel, "are resorted to between nation and nation, in order to do themselves justice when they cannot otherwise obtain it. If a nation has taken possession of what belongs to another, if it refuses to pay a debt, to repair an injury, or to give adequate satisfaction for it, the latter may seize something belonging to the former, and apply it to its own advantage, till it obtains payment of what is due, together with interest and damages; or keep it as a pledge till the offending nation has refused ample satisfaction. The effects thus seized are preserved, while there is any hope of obtaining satisfaction or justice. As soon as that hope disappears they are confiscated, and then reprisals are accomplished. If the two nations,

20. Prize Cases, 2 Black 635, 17 U. S. (L. ed.) 457.

3. Miller v. The Resolution, 2 Dall 1, 1 U. S. (L. ed.) 263; Marks v. 1. Miller v. United States, 11 Wall. United States, 161 U. S. 297, 16 S. Ct. 268, 20 U. S. (L. ed.) 135.

2. Prize Cases, 2 Black 635, 17 U. S. (L. ed.) 457; Sutton v. Tiller, 6 Cold. (Tenn.) 593, 98 Am. Dec. 471.

476, 40 U. S. (L. ed.) 706; People v. McLeod, 1 Hill (N. Y.) 377, 25 Wend 483, 37 Am. Dec. 328.

upon this ground of quarrel, come to an open rupture, satisfaction is considered as refused from the moment that war is declared, or hostilities commenced; and then, also, the effects seized may be confiscated." Other forms of retorsion are pacific blockade properly notified and made substantially effective, and the interdiction of commercial intercourse with the offending nation, including the detention of merchant vessels within the ports of the injured state. By nonintercourse acts a nation ordinarily closes its ports to the offending state and prohibits the sailing of vessels from its ports to ports of the offender. If bound to a foreign port with which commercial intercourse has been, or may be, permitted, still a vessel is allowed to depart without bond being given, with condition not to proceed to any port with which commercial intercourse is not thus permitted, nor be directly or indirectly engaged, during the voyage, in any trade with such port. No vessel has a right to come within the territorial waters to inquire whether she may land her cargo; but in case of a storm she may make a harbor; and if prevented by a mutiny of her crew from putting out to sea again, may wait for orders. It is no offense against an embargo law to take goods out of one vessel and put them into another unless it be with an intent to export them.8 To prevent evasions of embargo and nonintercourse laws various penalties are attached to the prohibited acts, in some instances a criminal responsibility being imposed upon offenders." The usual penalty for a violation of the laws is, however, the forfeiture prescribed in case of their violation,10 property engaged in such

4. Little v. Barreme, 2 Cranch 170, 2 U. S. (L. ed.) 243; The Edward, 1 Wheat. 261, 4 Ú. S. (L. ed.) 86; The Pitt, 8 Wheat. 371, 5 U. S. (L. ed.) 639.

5. Duronsseau v. United States, 6 Cranch 307, 3 U. S. (L. ed.) 232; The Richmond v. United States, 9 Cranch 102, 3 U. S. (L. ed.) 670; The Edward, 1 Wheat. 261, 4 U. S. (L. ed.) 86.

6. The Penobscot v. United States, 7 Cranch 356, 3 U. S. (L. ed.) 369. 7. United States v. The Fanny, 9 Cranch 181, 3 U. S. (L. ed.) 698.

8. The Juliana v. United States, 6 Cranch 327, 3 U. S. (L. ed.) 238.

9. The Paulinia v. United States, 7 Cranch 52, 3 U. S. (L. ed.) 266.

10. Murray v. The Betsy, 2 Cranch 64, 2 U. S. (L. ed.) 208; Little v. Barreme, 2 Cranch 170, 2 U. S. (L. ed.) 243; The Good Catharine v. United States, 7 Cranch 349, 3 U. S. (L. R. C. L. Vol. XV.-12.

6

ed.) 367; The Hoppet v. United States, 7 Cranch 389, 3 U. S. (L. ed.) 380; The Anne v. United States, 7 Cranch 570, 3 U. S. (L. ed.) 442; United States v. 1960 Bags of Coffee, 8 Cranch 398, 3 U. S. (L. ed.) 602; United States v. The Mars, 8 Cranch 417, 3 U. S. (L. ed.) 609; Speake v. United States, 9 Cranch 28, 3 U. S. (L. ed.) 645; The Short Staple v. United States, 9 Cranch 55, 3 U. S. (L. ed.) 655; Otis v. Watkins, 9 Cranch 339, 3 U. S. (L. ed.) 752; Jones v. Shore, 1 Wheat. 462, 4 U. S. (L. ed.) 136; Slocum v. Mayberry, 2 Wheat. 1, 4 U. S. (L. ed.) 169; United States v. Sheldon, 2 Wheat 119, 4 U. S. (L. ed.) 199; The Will. iam King, 2 Wheat. 148, 4 U. S. (L ed.) 206; The New York, 3 Wheat. 59, 4 U. S. (L. ed.) 333; The Aeolus, 3 Wheat. 392, 4 U. S. (L. ed.) 418; Otis v. Walter, 6 Wheat. 583, 5 U. S. (L. ed.) 336; The Frances, 8 Wheat. 177