fugitive prisoner of war, he could not lawfully have been seized on shore, unless treaty had so provided. He would equally be entitled to all that protection which officials of the United States were authorised to extend to him within Turkish territory.

4. Would it have been in accordance with international law for the captain of the frigate to use force in protecting him within the port of Smyrna? Active and aggressive force certainly not. As things were, the demonstration of force saved the use of it. But to complain of such force would have fallen to the duty of Turkey, as it would have taken place within her waters. As for force, absolutely considered, for instance on the high seas, Austria could not have complained if the evils of a sudden wrong on her part were in that way sought to be prevented.

At the bottom this was a case of collision between original and transferred allegiance the, latter in its incipiency, in which the obligation to protect the person, within the limits of the law of nations, clearly lay on the United States. How Austria could have dealt with him within her own limits is another question.

CHAPTER IV.

THE FORMS AND THE AGENTS OF INTERCOURSE BETWEEN NATIONS.

SECTION I.-The Forms of Intercourse, or International Courtesy. § 82.

WE have hitherto considered the duties and usages of nations, so far as relates to the treatment of individual aliens General comity who are within their territory. We now pass on to between nations. the conduct which is due from one body politic to another, and to the representatives by whom public intercourse is managed.

The general duties here required are those which are included in the word comity: we call them duties at their origin, as being more or less indefinite, and not of strict obligation; but they become obligatory, if by compact or compliance with usage a nation takes them upon itself in a specific shape. These duties are such as polite treatment of a sovereign or of his ministers in a foreign country, courtesy in diplomatic intercourse, the observance of court etiquette, and of respect on the sea towards a foreign flag. Besides duties such as these, we place under this head respect for the reputation of a foreign state, which is, as we have seen (§ 18), a thing of strict justice.

The use of formal expressions of courtesy among nations consists in their preventing jealousies and quarrels. At the same time they may themselves be the causes of disputes, for, when once established by usage, to withhold them is a slight; and to pay attentions of different kinds, or in different degrees, to equal

and sovereign states, may be more provoking than if both states had been treated with equal want of politeness. But on the whole, as in the society of individuals who are equals, so among states it is probable that without them there would be a far greater amount of unfriendliness.

Regard for the

§ 83.

Every nation, as we have seen, has a right of reputation; every other, therefore, is bound to abstain from reputation of an- deeds and words which are calculated to wound its other state. sense of character, or to injure its good name, or that of its sovereign, before the world. No nation, then, through its public documents, or by its official persons, can with right reflect on the institutions or social characteristics of another, or make invidious comparisons to its disadvantage, or set forth in any way an opinion of its inferiority. So with regard to its functionaries, an intended insult to whom is an insult to the state which they represent. But a state is not bound to repress the free remarks made by the press and private persons upon foreign states and sovereigns, although comity, if not justice, requires that foreign sovereigns should have the power to prosecute for libel or scandal before its courts. Nor again ought regard for the feelings of another government to preclude a state from remonstrating, even in strong terms, against conduct which it judges to be oppressive or flagitious, although that conduct may be confined in its effects to the subjects of the wrong-doing state. (Compare § 111.)

affair.

It may be made a question how far documents, which are The Hülsemann not strictly public, may be complained of by foreign states, as embodying insults against themselves. A noted case of such complaints occurred in 1850, after our government had sent a secret agent to ascertain whether Hungary, in its war with Austria, was likely to achieve its independence. So much the government had a right to do, as it interfered in no manner in the struggle. But when the instructions to this agent were published, containing the expression iron rule,' applied to the sway of Austria over Hungary, the Austrian government directed its chargé d'affaires at Washington, Mr. Hülsemann, to communicate its displeasure at this offensive expression, and at the apparent sympathy with a part of the empire in revolt. It was replied by the United States that there had been no interference in the quarrel between Austria and Hungary; that a sympathy with a people struggling for its independence was, on our part, unavoidable; and that a communication from the President to either House of Congress, is regarded as a domestic communication, of which ordinarily no foreign state has cogni

zance.' This is true, because ordinarily the departments of a government do not discuss the affairs of foreign countries, with which one or other of them has nothing immediately to do. But it is evident that communications may be made between the departments of a government, for which a foreign state may demand redress. The degree of publicity now given to political documents is such that they are brought before the eyes of the world, and cannot be regarded as private. If a man allows his private letters, reflecting on individuals, to be published, he may commit a wrong; and so may a nation or government if it make or allow to be made public what may fairly be called insults to foreign states.

§ 84.

It may be inexpedient to admit foreign sovereigns into a country, but comity requires that this be ordinarily Treatment of allowed, and that, besides the exterritoriality which foreign sovethey enjoy (§ 64), such marks of respect should be reigns, &c. paid to them, and to the members of sovereign houses, as may be required by the usages of Christian states. So also in their transit through or passage along the coasts of another country, they are to be saluted in a manner becoming the dignity of their stations, as the highest representatives of an independent state.

A more free and indefinite treatment of sovereign houses by one another, consists in friendly announcements of interesting events, as births, deaths, betrothals, and marriages; and in corresponding expressions of congratulation or condolence, amounting in the latter case even to the putting on of mourning. These courtesies of intercourse are called by some text writers state gallantry.

courts.

Every court has its own ceremonial and rules of precedence at state festivals and the like. While observing Ceremonial of these, which are nearly alike wherever there is a monarch and a court, a state is bound to make no distinctions in external politeness between foreign representatives, so far as such traditional rules do not make it necessary; and foreign representatives are bound to conform to the ceremonial lex loci, if consistent with the honour of their country.

states.

It is evident that correspondence between the legate of one state and the minister or sovereign of another, re- Diplomatic corquires both those forms of address which are usual respondence of among diplomatists, and an abstinence from all expressions of anger and of contempt. Otherwise, an offence against the self-respect of the nation, with whose functionaries he holds intercourse, is committed, and he may need to atone for his fault by apology or by recall, or else furnish ground of complaint against his nation.

sea.

§ 85.

In regard to the forms of international politeness on the sea, Ceremonial of the a distinction is to be made between what is done within the waters of a nation, and what is done on the high seas, where nations are entirely equal. On the high seas, and, indeed, in the waters of third powers, ships of war are under no imperative obligation from usage or law to salute one another, and yet such marks of respect are not unusual, and are in some degree expected, so that the absence of them, although no insult, might be regarded as discourteous. They ought generally to be returned if offered by one of the parties.1 But within its own sea-line a sovereign state may prescribe the ceremonies with which its forts and ships of war are to be approached or passed, but it must require nothing which can be degrading to other states. And in cases where the claim of a nation over certain waters is not acknowledged, to refuse compliance with a prescribed ceremony is a mode of showing national independence, at which no offence can be justly taken.

Various forms of international politeness on the sea, are, or Forms of polite- have been in vogue, such as furling, inclining or ness on the sea. lowering the flag, lowering the topsails, firing salutes with cannon, sometimes accompanied with salvos of musketry, lowering and raising the flag several times in succession, salutations with the voice, and finally complimentary visits to each other's vessel. To take down the flag or to lower the topsails is a token of inferiority, which is now nearly or quite obsolete. 'To lower or furl the flag,' says Ortolan, is not now practised between vessels of war, as a token of respect, and is a sign, rather, of mourning or of danger. But merchant vessels often greet vessels of war by lowering and raising the flag three several times.'

2

The etiquette of the sea requires that a ship of war entering a harbour or passing by a fort or castle, should pay the first salute, except when the sovereign or his ambassador is on board, in which case the greeting ought to be made first on the shore. So also the earliest salutation should proceed from a ship meeting or joining a fleet, and from an auxiliary squadron on its approach to the main armament. When single vessels encounter

Bynkersh. Quæst. J. P. ii. § 24. Quod ad mare exterum, quod in nullius Principis dominio est, nullius quoque est aliis reverentiam imperare, et salutem navibus suis præstandam exigere. Sunt quædam, quæ, tametsi honeste præstentur inhoneste tamen petuntur. Inter ea refero, si quis minor dignitate majorem, in publico sibi obviam factum, salutet vel non salutet, et siquæ minorum Principum navis, in mari extero, navibus majorum Principum, quaqua etiam dignitate sint, salutem dicat vel neget.'

2 Diplom. de la Mer, vol. i. book 2, chap. 15.

one another, an admiral's ship is to receive the first compliment, and so downward, according to rank, the inferior vessel always commencing salutations. Privateers greet ships of war without having a right to expect the return of the compliment. Merchant ships salute foreign ships of war by demonstrations with sail and flag, or with cannon, if they have any, but the ship need not slacken its course for such purposes. A superior vessel, as one commanded by an admiral, may respond to a compliment with a smaller number of shot, but in general the marks of respect between public vessels must be equal.1

The rules of sea politeness are often embodied in instructions given to commanders of vessels by their respective governments, which directions, through the Christian states of the world, have a general uniformity. They are also sometimes a subject of special treaty. They are of use,' as Ortolan, himself a naval officer, remarks,2 as honours paid to the independence of nations, as a public authorised recognition that the sovereignties of the world are entitled to mutual respect. They help the crews of public vessels, from the commanders down to the marines, to feel that the national honour is in their hands, and thus raise the sense of character of those who are representatives of nations upon the seas.'

§ 86.

seventeenth cen

Formerly, above all in the seventeenth century, the tokens of respect which certain nations demanded of others, in Disputes in the seas over which they asserted dominion, gave rise to tury concerning bitter feelings and to hostilities, or rather served as ceremonies at sea. a pretext for wars which were waged on other grounds. Especially was the English claim to sovereignty in the narrow seas around Great Britain a fruitful source of animosities from the beginning of the reign of James I. onward. The demand was that all foreign vessels should first salute English vessels of war by lowering flags and topsails, without any corresponding mark of respect being made obligatory on the other side.3 This France and Spain forbade their vessels to comply with; and in 1634, by an arrangement between France and England, the ships of each state, when nearer to the other's territory, should give the first

1 Comp. Heffter, § 197.

2 Diplom. de la Mer, u. s.

3 In a communication to the court of France in 1667, the Dutch say that they are willing that France should salute them with two cannon shot less, but cannot consent to lower their flag, unless France shall do the same in return. They add that, although the English in an article of the treaty prescribing tokens of respect are not expressly bound to return the salutation with the flag which the Dutch offer to them, it is with justice presumed to be incumbent on them, and that if the English have failed in such reciprocity, they have failed in their duty, for which reason the Dutch afterwards refused to lower their flag, as by treaty required. See Ortolan, i. 369.