This same principle has been applied in cases of succession to insurrectionary and military governments. Private rights and obligations, valid under the law of the previous defacto government, have been enforced.80 Neither public nor private obligations will, however, be held as valid if they were contracted in support of armed resistance to the United States, or in rebellion. Thus the courts have held that all acts of the Confederate government of 1861 to 1865 were void. No rights could be derived from its laws because its very existence was rebellion against the United States. Acts of the states in rebellion, however, might be valid if not in direct aid of the insurrection.81 Acts of the Confederate congress accepted by them and enforced by their law, such for instance as acts requiring the acceptance of Confederate paper currency, were valid. Thus the United States courts, after the war, enforced contracts for the payment of Confederate paper for an equivalent value at the time the contract was made, in United States money.82

To summarize, the United States has generally by treaty obligated itself to permit the inhabitants of acquired territory to retain their old allegiance if they wish. Treaties, statutes and constitutional guarantees have insured them the usual immunities of citizens. Treaty guarantees and the doctrine that courts apply international law have insured the retention of the existing system of private law until changed by express act of the legislature, and the inviolability of private property rights unless they were directly involved in the promotion of hostilities or rebellion. Statutes and executive orders have occasionally retained portions of the previous system of public law and administration, but the courts have affirmed that public law is abrogated by succession unless express act of the sovereign intervenes.

80 Succession to British Military Govt. of Castine, Me., 1814, U. S. vs. Rice, 4 Wheat. 246, (1819); to confederate De Facto Govt. of Southern states, 1861-1865, Thorington vs. Smith, 8 Wall. 1, 9-11, (1868); The Venice, 2 Wall. 258; Hanauer vs. Woodruff, 15 Wall. 448; Bissell vs. Heyward, 96 U. S. 580; Delmar vs. Insurance Co., 14 Wall. 661; Horn vs. Lockhart, 17 Wall. 570, 580; Baldy vs. Hunter, 171 U. S. 388, 392, (1890); Sprott vs. U. S., 20 Wall, 459, (1874). See Moore's Digest, 1;45-80.

81On the distinction between acts of the Confederate government and of the state in rebellion, see Sprott vs. U. S. 20 Wall. 459, (1874); Williams vs. Bruffy, 96 U. S. 176, 191-2, (1877); Dewing vs. Perdicaries, 96 U. S. 193, (1877); Ford vs. Surget, 97 U. S. 594, 604, (1878). See Moore's Digest, 1;54-60.

82Thorington vs. Smith, 8 Wall. 1, (1868).

SERVITUDES.

There have been at different times claims that certain portions of territory are subject to servitudes or rights of use by foreign powers and persons, which are beyond the authority of the territorial sovereign to abridge. Thus it has been said that international rivers and canals are owned by adjacent states subject to the rights of free commerce for all; that marginal seas and straits are free to the innocent passage of foreign vessels, that the territorial sovereign's control of ports is subject to the right of asylum for vessels in case of imminent danger from stress of weather or other cause; that certain portions of territory are subject to the right of innocent passage of foreign troops, and even that all foreign territory, especially frontiers, is held by the territorial sovereign subject to the right of foreign states to enter the same for the purpose of enforcing order when self defense demands.83 The United States for a long time maintained that British territorial waters about Newfoundland were subject to prescriptive fishing rights of United States fishermen.

If there are any such inalienable servitudes they clearly put the territorial sovereign under a duty of acquiescence. By the award of the Hague arbitration of 1910 between Great Britain and the United States it was held that servitudes were contrary to the doctrine of sovereignty maintained by international law, and could be recognized "only on the express evidence of international contract;" hence the American claim that prescriptive fishing rights on Newfoundland territorial waters constituted a legal servitude in which Great Britain must acquiesce, was of no avail.84

(1) It seems that possibly an exception to this broad statement should be made in the case of boundary rivers. In that case the right of free commerce could scarcely be unilaterally restricted, and is universally recognized. United States courts have recognized the principle by holding that vessels traversing American waters of international rivers cannot be seized for

83 Pleas of self defense were used to justify violations of Spanish and Mexican territory in pursueing Indian marauders, and the landing of troops in foreign ports to protect United States citizens as in the recent (1914) case of Vera Cruz. See Moore's Digest, 2;400-425. On servitudes generally see Hall, Int. Law, 4th ed., p. 106; Moore's Digest, 2;18.

84 See text of this decision, Am. Jour. Int. Law, 4:948, 958, (1910), Editorial Comment, Ibid. 8;859, (1914); also article C. P. Anderson, The Final Outcome of the Fisheries Arbitration, Ibid. 7;1, 9, (1913).

violation of municipal statutes when bound for a foreign port.3

85

(2) The right of asylum for vessels in distress has also been affirmed in United States law.86 The courts have refused to condemn vessels forced by stress of weather into ports closed by statute or blockaded by right of war.87 The right of asylum, however, is subject to the provision that the vessel, unless a public one, shall be subject to the local jurisdiction. It can therefore scarcely be said that the privilege constitutes a servitude upon the port waters.

Most of these so-called servitudes are not maintainable by modern international law. The United States has diplomatically and judicially affirmed its absolute right to sovereignty over its entire territory.98

(3) Servitudes conceded by treaty are, however, clearly recognized and certainly impose a duty of acquiescence upon the country. The United States has specifically accorded by treaty the right to certain countries of free commerce in international rivers89 and in the Panama canal,90 the right of asylum in ports to either private or public vessels in case of "stress of weather or pursuit of pirates or enemies," the right of using troops

85 The Appollon, 9 Wheat. 362, (1824).

86 Cushing, Att. Gen. 7 op. 122, (1855); The Santissima Trinidad, 7 Wheat. 283; Moore's Digest, 7;982-985. Great Britain treated Jefferson's proclamation, prohibiting hospitality to British warships in 1807, after the Leopard and Chesapeake affair, as a breach of international law. See Moore's Digest, 6;1035.

87 The Nuestra Senora de Regla, 17 Wall. 30; Moore's Digest, 2;339 et seq.

88 Schooner Exchange vs. McFaddon, 7 Cranch 116-136, (1812). See Moore's Digest, 2;4-16.

89 Treaties with Great Britain, 1783, art. 8, Malloy, p. 589; 1842, art. 3, p. 643; 1846, art. 2, p. 657; 1854-1866, art. 4, p. 671; 1871, art. 26, p. 711, decreeing free navigation in the Mississippi, St. Lawrence, St. John, Yukon, Stikine, and Porcupine. With Mexico, 1848, art. 4, 7, p. IIII; 1853, art. 4, p. 1123, decreeing free navigation in the Colorado, Gila, and Bravo. 90 Treaty with Great Britain, 1901, art. 3, Malloy, p. 783.

91 The United States has concluded thirty-one treaties with twentyfive countries in which this privilege is specified. Only two appear to be in force, Bolivia, 1858, art. 9, Malloy, p. 117; Prussia, 1799-1810, revived 1828, art. 18, p. 1492. The privilege of free entry to ports is now so universally acknowledged that treaty stipulations are not necessary.

on its territory in pursuit of marauding Indians92 and the right to establish submarine cable terminals.93 The usual principle that treaties are enforceable law tends to enforce these duties, but acts of congress may always override such treaty privileges so far as municipal law and the controlling power of municipal courts are concerned.94

92 Protocols with Mexico, 1882 to 1896, by which Mexico was permitted to pursue marauding Indians in United States territory. Malloy, p. 11441177.

93Special permits with rules have generally been issued by the president to companies desiring to land cables. On the power of the president to give such permits see Richards, Acting Att. Gen., 22 op. 13, (1897); Griggs, Att. Gen., 22 op. 408, (1899). See Moore's Digest, 2;452-466.

94 For a recent discussion of treaty servitudes or international contracts, see Aix-la-Chappelle Maestricht R. R. Co. vs. Thewis, Dutch Govt. intervener, Apr. 21, 1914, a German case, reported Am. Jour. Int. Law., 1914, 8;858, 907. In this case a portion of Prussian territory was held to be subject to a servitude by which a Dutch Railway Company had the right to operate under Dutch law. Germany claimed that a protocol of Mch. 11, 1877, with Spain created a servitude for her benefit upon the Zulu Archipelago, which remained after cession of the Archipelago to the United States. The United States refused to recognize this claim. See Moore's Digest, 5;351.

CHAPTER IV. OBLIGATIONS OF PREVENTION.

INTRODUCTORY

The municipal laws designed to insure the abstention of the government from illegal acts outside of its territory, and its acquiescence in recognized exemptions from its complete control of its own territory have been considered. But its duties under international law do not stop here. The government is responsible for the acts of its officers and its civil population. It is therefore under an obligation to take positive measures to prevent contraventions of international law by such persons.

The duties of prevention bear a relation to duties of abstention and acquiescence. The responsibility of the government for its subjects extends no further than its own duties. It need prevent nothing which it is not itself bound to abstain from authorizing. In fact it does not extend so far. There are many acts of its subjects which the government is not responsible for and which it need not prevent, but which it must itself abstain from. This is especially evident in the law of neutrality. A neutral government need not prevent the export of arms by its subjects to belligerents, but it must itself abstain from such commerce. In the law of peace the same principle applies. The government must abstain from authorizing the use of force outside of its territory or intervening in the affairs of foreign governments, but it is not responsible, if its subjects do such acts abroad, without authorization. For acts within its territory the responsibility is much greater and hence also is the duty of prevention. For acts of public officers either in its territory or abroad the responsibility of the government is much greater than in the case of private persons, and hence the duty of prevention is more arduous. We may therefore conveniently consider the subject in reference, (1) to agencies of government, and (2) to the civil population. Although the international duties imposed by

1See Moore's Digest, 6;787. The United States does recognize a certain responsibility for acts of its citizens in promoting insurrection against states in which it has consular jurisdiction, even when committed abroad. The immunity of United States citizens from local jurisdiction in such cases is accountable for this exception to the general rule. See Rev. Stat. sec. 4090, 4102. Infra p. 74.