"Applying these principles to the case before us, we are of opinion that the mere investment by Hunter, as guardian, of the Confederate funds or currency of his ward in bonds of the Confederate States should be deemed a transaction in the ordinary course of civil society, and not, necessarily, one conceived and completed with an actual intent thereby to aid in the destruction of the Government of the Union. If contracts between parties resident within the lines of the insurrectionary States, stipulating for payment in Confederate notes issued in furtherance of the scheme to overturn the authority of the United States within the territory dominated by the Confederate States, were not to be regarded, for that reason only, as invalid, it is difficult to perceive why a different principle should be applied to the investment by a guardian of his wards' Confederate notes or currency in Con federate bonds--both guardian and ward residing at that time, as they did from the commencement of the civil war, within the Confederate lines and under subjection to the Confederate States. "As to the question of the intent with which this investment was made, all doubt is removed by the agreement of the parties at the trial that the investment was bona fide, and that the only question made was as to its legality. We interpret this agreement as meaning that the guardian had in view only the best financial interests of the ward in the situation in which both were placed, and that he was not moved to make the investment with the purpose in any way to obstruct the United States in its efforts to suppress armed rebellion. We are unwilling to hold that the mere investment in Confederate States bonds-no actual intent to impair the rights of the United States appearing was illegal as between the guardian and ward." Baldy r. Hunter (1898), 171 U. S. 388, 400. It appeared in this case that the defendant was appointed guardian of the plaintiff, in Georgia, in 1857. The investment of the latter's Confederate money in Confederate bonds was made in Georgia in 1863, under leave of a local court, granted in pursuance of the act of the Georgia legislature of Dec. 16, 1861, by which guardians were authorized to invest the funds held by them in Confederate bonds. In Lamar . Micou, 112 U. S. 542, the investment of a ward's funds in Confederate bonds was held to be illegal. The court, in Baldy v. Hunter, distinguished that case from the one before them, as follows: "Lamar r. Micou was a case in which the guardian, becoming such under the laws of New York, in violation of his duty to the country, and after the war became flagrant, voluntarily went into the Confederate lines, and there gave aid and comfort to the rebellion; and yet he asked that the investment of his ward's money in Confederate State bonds receive the sanction of the courts sitting in the State under the authority of whose laws he became and acted as guardian. Besides, it is distinctly stated in the opinion in that case that the sums which Lamar used in the purchase of bonds of the Confederate States were moneys of the ward in his hands arising either from dividends which he had received in their behalf or from interest with which he charged himself upon sums not invested,' 112 U. S. 476, which is a very different thing from reinvesting (as in the present case) in Confederate currency [sic] moneys previously received in the like kind of currency. The present case is governed by considerations that do not apply to that case. We do not doubt the correctness of the decision in Lamar v. Micou upon its facts as set out in the report." By section 4, Art. XIV., of the amendments to the Constitution of the United States it is provided that "neither the Confederate debts United States nor any State shall assume or pay any and obligations. debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void.” It was held by the mixed commission under Arts. XII.-XVII. of the treaty between the United States and Great Britain, signed at Washington, May 8, 1871, that the United States was not internationally liable for the debts of the Confederacy," or for the acts of the Confederate forces." The same principle of non-liability was enforced by the mixed commission under the treaty between the United States and Mexico of July 4, 1868, in respect not only of the acts of the Confederacy, but also of acts of the Zuloaga, Miramon, and Maximilian governments in Mexico. V. RIGHTS AND DUTIES OF STATES. 1. FUNDAMENTAL RIGHTS AND DUTIES. $23. "The ultimate foundation of international law is an assumption that states possess rights and are subject to duties correGeneral summary. sponding to the facts of their postulated nature. In virtue of this assumption it is held that since states exist, and are independent beings, possessing property, they have the right to do whatever is necessary for the purpose of continuing and developing their existence, of giving effect to and preserving their independence, and of holding and acquiring property, subject to the qualification that they are bound correlatively to respect these rights in others. It is also considered that their moral nature imposes upon them the duties of good faith, of concession of redress for wrongs, of regard for the personal dignity of their fellows, and to a certain extent sociability. "Under the conditions of state life, the right to continue and develop existence gives to a state the rights: a Moore, Int. Arbitrations, I. 684, 695; III. 2900–290. b Id., III. 2982-2987. c Id., III. 2886–2900, 2873-2886, 2902-2938. "1. To organize itself in such manner as it may choose. "2. To do within its dominions whatever acts it may think calculated to render it prosperous and strong. "3. To occupy unappropriated territory, and to incorporate new provinces with the free consent of the inhabitants, provided that the rights of another state over any such province are not violated by its incorporation." Hall, Int. Law, 4th ed., 46-47. Wheaton Elements, Part II, Chapters i. and ii. Requirement of "due diligence." * * * A. was indicted under sections 3 and 6 of the act of Congress of May 16, 1884, 24 Stats. at L. 22, "to prevent and punish counterfeiting within the United States of notes, bonds, and other securities of foreign governments," (1) for having in his control and custody a plate for counterfeiting notes of El Banco del Estado de Bolivar, a bank authorized by the laws of the State of Bolivar, United States of Colombia; (2) for having caused and procured the plate to be made, and (3) for causing a note of the bank in question to be falsely made. The statute under which the indictment was found was attacked on constitutional grounds. Held, (1) that by the Constitution of the United States all official intercourse between a State and foreign nations is prevented and exclusive authority for that purpose given to the United States; (2) that the National Government is thus "made responsible to foreign nations for all violations by the United States of their international obligations," and that for this reason Congress was expressly authorized "to define and punish offenses against the law of nations" (Article I., sec. 8, cl. 10); (3) that the law of nations requires every national government to use "due diligence" to prevent the commission within its dominions of a wrong to another nation or its people; (4) that because of this obligation it is the duty of one nation to punish those who within its jurisdiction counterfeit the money of another nation (Vattel, Law of Nations, Phila. ed. 1876, Bk. I., ch. x, pp. 46, 47); (5) that this protection is due to foreign securities, whether national or corporate, which have been put out under the sanction of public authority at home, and especially to bank notes and bank bills issued under the authority of law and forming part of the circulating medium of exchange, or money, of a country; (6) that the statute in question, having been passed for the protection of an international interest and the performance of an international duty, was properly to be considered as an act to define and punish an offense against the law of nations, and that, this being so, no objection could be made to the statute on the ground that it did not expressly declare the offense defined by it to be an offense against the law of nations. United States v. Arjona (1887), 120 U. S. 479. 2. EQUALITY. § 24. "No principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone.” 666 Marshall, C. J., The Antelope (1825), 10 Wheat. 66, 122. Nations,' says Vattel, 'composed of men, and considered as so many free persons living together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.' In other words, all sovereign states, without respect to their relative power, are, in the eye of international law, equal, being endowed with the same natural rights, bound by the same duties, and subject to the same obligations. 'One of the fundamental principles of public law, generally recognized,' says Sir William Scott, 'is the perfect equality and independence of all distinct states.' Relative magnitude creates no distinction of right; relative imbecility, whether permanent or casual, gives no additional right to the more powerful neighbor, and any advantage seized on that ground is mere usurpation. This is the great foundation of public law, which it mainly concerns the peace of mankind, both in their political and private capacities, to preserve inviolate. "A necessary consequence of this equality of sovereign states is the general rule of public law, that whatever is lawful for one nation is equally lawful for any other; and whatever is unjustifiable in the one is equally so in the other.' Vattel, in discussing the sovereignty and independence of states, says that the effect of such a status ‘is to produce, at least externally and among men, a perfect equality of rights between nations in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definite judg ment; so that what is permitted in one is also permitted in the other, and they ought to be considered, in human society, as having equal rights." Halleck, Int. Law (Baker's ed., 1893), I. 116, citing Vattel, Droit des Gens, In matters of ceremonial, certain distinctions are recognized. To "empires, dors. Royal honors do not belong to "duchies, principalities, counties, or to ordinary republics." In matters of ceremonial, the Holy See has precedence of all states. (Rivier, Principes du Droit des Gens, I. 125–127.) While sovereign states possess in point of law equal fundamental rights, yet individual states, like individual men, exercise power in proportion to their influence, strength, and riches. See, in this relation, Lawrence, Essays on some disputed Questions in Modern International Law, Chap. V., entitled "The Primacy of the Great Powers." 3. PROPERTY. (1) OWNERSHIP AND TRANSFER. "The rights of a state with respect to property consist in the power to acquire territory and certain other kinds of property susceptible of being held by it in absolute ownership by any means not inconsistent with the rights of other states, in being entitled to peaceable possession and enjoyment of that which it has duly obtained, and in the faculty of using its property as it chooses and alienating it at will. According to a theory which is commonly held, either the term 'property,' when employed to express the rights possessed by a state over the territory occupied by it, must be understood in a different sense from that which is attached to it in speaking of the property of individuals, or else its use is altogether improper. Property, it is said, belongs only to individuals; a state as such is incapable of owning it; and though by putting itself in the position of an individual it may hold property subject to the conditions of municipal law, it has merely in its proper state capacity either what is called an eminent domain' over the property of the members of the community forming it, in virtue of which it has the power of disposing of everything contained within its territory for the general good, or certain supreme rights, covering the same ground, but derived from sovereignty." It can not be denied that the immediate property which is possessed by individuals is to be distinguished for certain purposes from the ultimate property in the territory of the state, and the objects of property accessory to it, which is vested in the state itself. But these purposes are foreign to international relations. The distinction, therefore, though it may be conveniently kept in mind for purposes of classification in dealing with the rules of war, has no further place in international law." Hall, Int. Law, 4th ed. 47-48. As to questions of property, including those of national proprietary rights, and public and private property, see Wheaton, Elements, Part II. §§ 161–163. a "Vattel, Lib. I. Cap. XX. §§ 235, 244; but see also Lib. II. C. VII. § 81; Heffter, § 64; Bluntschli, § 277. Calvo (§§ 208–9) distinguishes between the public and international aspects of the rights of the state with reference to property, and recognizes, as do also De Martens (Précis du Droit des Gens Moderne de l'Europe, § 72) and Riquelme (Elementos de Derecho Publico Internacional, I. 23), the absolute character of the latter relatively to other States." |