doubt that a sovereign State may guarantee a particular form of government to one of its component parts, as the constitution of the United States of America guarantees a Republican form to each State of the federal union; or, in case of a protectorate, the protecting State may guarantee or direct a particular form of government for the dependent or protected State. But neither the component nor the protected States are in these cases to be regarded as independent sovereignties; they have parted with some of the essential qualities of sovereignty and independence, and, consequently, are not entitled to the full rights incident to their primary condition as equal members of the society of nations. The same doctrine may apply generally to treaties of unequal alliance. But, in treaties of equal alliance, between independent and sovereign States, will a stipulation of mediation or guaranty justify generally the interference of one State in the internal affairs of another, contrary to the wishes of the latter? If the interference is in itself unlawful, can any previously existing stipulation make it lawful? We think not; for the reason that a contract against public morals has no binding force, and there is more merit in its breach than in its fulfilment.1

1 1 In 1834 Lord Mahon drew attention in the House of Commons to the assistance given to Spain by Great Britain in putting down the Carlist insurrection in Navarre. Although the moral effect of the Quadruple Alliance had assisted to restore peace to Portugal, the character of Great Britain as regarded Spain was different; it was no longer a question of succession to a throne, but of an insurrection. He therefore questioned the legality of further British interference in Spain, moreover remarking that even if interference could be justified, it should be by regular British troops, and not, as was the case, by a body of mercenaries, to facilitate whose enrolment the British Foreign Enlistment Act had been purposely suspended. Sir Robert Peel also blamed the policy of England, and after having mentioned that it was the first instance in modern times of intervention by that country in the domestic affairs of a foreign country, disclaimed the right of interference even if for the purpose of insuring permanent benefit to England. The general rule,' continued he, on which England has hitherto acted is non-intervention, the only admissible exception to it being cases where the necessity is urgent and immediate, affecting, either on account of vicinage or some special circumstances, the safety and vital interests of the State; to interfere on the vague ground that British interests would be promoted by intervention, or the plea that it would be for our advantage to re-establish a particular form of Government in a country circumstanced as Spain was, is to destroy altogether the general rule of non-intervention, and to place the independence of every weak power at the mercy of a formidable neighbour.'

Lord Palmerston, on the other hand, objected that it was not an interference on the part of Great Britain, but merely a permission to English

§ 9. Another ground of foreign interference, in the internal affairs of a sovereign State, is that of humanity, it being done for the alleged purpose of stopping the effusion of blood caused by a protracted and desolating civil war in the bosom of the State so interfered with. If such interference be in the nature of a pacific mediation, one State merely proposing its good offices for the settlement of the intestine dissensions of another State, there can be no doubt of its lawfulness. How far interference by force, or an armed intervention in the internal affairs of another State, may be justified on the ground of humanity, will be considered in another chapter.'

§ 10. Again, suppose such interference in the internal affairs of another State be made on the invitation of the contending parties in the civil war? If the invitation be from only one of the contestants, it can, by itself, confer no rights whatever as against the other party. But if both parties unite in the invitation, it will afford just grounds for the interference of the mediating power. How far such invitations will justify an armed intervention between the contending parties, will be discussed in another chapter. It is sufficient to remark in this place, that the opinion or decision of a mediating power, whether the mediation be proffered or invited, is of the nature of advice, or rather of a proposition for an amicable adjustment of existing differences; which proposition may be rejected by one or both of the parties, without just offence to the mediator.2

men to assist the Queen of Spain, and added that the interference of the Quadruple Alliance was by virtue of a treaty. In the case of a civil war,' said he, 'proceeding either from a disputed succession or from a long revolt, no writer on national law denies that other countries have a right, if they choose to exercise it, to take part with either of the two belligerents. Undoubtedly it is inexpedient to exercise that right except under circumstances of a peculiar nature. The right, however, is general; if one country exercises it, another may the present measure establishes no new principle, and creates no new danger as a precedent.' (See Parl. Deb., xxviii. 1133-63.)

In 1847, on the refusal of the insurgents in Portugal to accede to such terms as might be advised by Great Britain, France, and Spain, a British squadron, with the concurrence of the Queen of Portugal, was sent to Oporto, and the insurrection by that means was terminated. Lord Palmerston defended this interference on the ground of the necessity of existing facts, particularly the recall of the Portuguese Parliament, and on the claims which Portugal, the old natural ally of Great Britain, had on that country. (Brit. and Foreign State Papers, 1846–47, vol. xxxv. p. 1110.) 1 Vide post, note, p. 97, and ch. xiv. § 21.

2 Kent, Com. on Am. Law, vol. i. p. 25; Phillimore, On Int. Law, vol. i. § 395; Martens, Précis du Droit des Gens, §§ 176, 327, 330.

§ II. But if such proffered or invited mediation is of the nature of an arbitration, in which the question of difference is submitted to the decision of the mediating power as an arbitrator, with an agreement to abide by such decision, neither party can properly refuse to abide by the result of the reference, unless it be shown that the award has been made in collusion with one of the parties, or that it exceeds the terms of the submission. The general rules governing such arbitrations, are the same as those governing arbitrations between sovereign and independent States, which will be discussed in another chapter.1

§ 12. But suppose the award has been made without collusion, and has been confined to the terms of the submission, and that one of the parties should refuse to abide by the decision, although both agreed to do so, will such refusal justify the mediating power in employing force to compel obedience to its decision? To decide this. question, it will be necessary to inquire into the particular circumstance of each case. The arbitrator's right to use force, in order to carry his decision into effect, if it exist at all, must be deduced from the terms of the agreement, entered into by the contracting parties to the submission. It does not result as a necessary consequence of his undertaking the office of arbitrator. But this question will be more particularly discussed under the head of wars of intervention; we are here considering only the general right of pacific interference, or pacific mediation, in the internal affairs of a State.2

Such

§ 13. There are certain cases where the very character of the constitution or government of one State may authorise the interference of another in the choice of its rulers. cases, however, are mainly confined to semi-sovereign or dependent States. But the States of the Church have usually been regarded, in the international law of Europe, as sovereign and independent. Nevertheless, Austria, France, and Spain, as Catholic countries, have a voice in the election of the Pope, who is the temporal sovereign of the Roman States, as well as the supreme Pontiff of the Roman Catholic Church.

1 Vide post, ch. xii. § 7; Wheaton, Elem. Int. Law, pt. ii. ch. i. § 13; Garden, De la Diplomatie, tome i. p. 436; Rayneval, Droit de la Nat. et des Gens, liv. iii. ch. xxii.

2 Vide post, ch. xiv. § 12.

But if these spiritual and temporal officers should be separated, the right of foreign States to interfere in the choice of the person to fill the office of civil ruler, might well be questioned. In the case of a composite State, or a confedera

'From the tenor of the following extracts, it would appear that the right possessed by Austria, France, and Spain (and which is also claimed by, although not conceded to, Portugal), is merely the right of excluding from, but not of electing to, the Papacy. This right of exclusion can only be exercised once, and must be made before a canonical majority be obtained. Its origin is not well known; and from the use of the words Supreme Pontiff,' in the form of exclusion, it would appear, although not conclusively, to point to a right of interference in the election of a person to a spiritual office only, and not to a civil ruler.

The Times (November 5 and 6, 1877) says that the question was at that date being considered at the Vatican, and that the Cardinals at the head of the Sacred Congregation were divided in opinion, whether this right of exclusion was not lost to the above Powers in consequence of their apathy at the downfall of the Temporal Power.

Before the election of Leo XII., the Sardinian Ambassador at Rome, writing, in 1823, to the Minister of Foreign Affairs at Turin, relative to the Conclave, says, 'L'influence que les Cours ont dans l'élection du Pape se réduit essentiellement au droit d'exclusion, droit qui n'est fondé que sur une consuétude dont l'origine n'est pas bien connue.'

In 1823, the King of Naples, in his instructions to Cardinal Ruffo, relative to the Conclave, says, The right does not appertain to the Crown of the Kingdom of the Two Sicilies of express exclusion, since it is only reserved to the Courts of France, Spain, and Austria: we trust to your ability, that you will employ all the means which your talents suggest to you, to make the tacit exclusion prevail.'

The following is the form of exclusion made use of by Cardinal Albani, on behalf of Austria, against the election of Cardinal Severoli :-'September 21, 1823.—In my capacity of Ambassador extraordinary to the Sacred College assembled in Conclave, which capacity has been signified to, and known by, Your Eminences as much by means of the letter which has been addressed to you by His Imperial Majesty, as by the notification which to Your Eminences has been made by His Imperial Ambassador, and by virtue of the instructions which have been given to me, I fulfil the displeasing duty of declaring that the Imperial Court of Vienna cannot accept for Supreme Pontiff His Eminence Cardinal Severoli, and gives to him a formal exclusion (esclusiva).'- Bianchi, Storia della dipl. Europ. in Ital., vol. ii.

In 1831, Cardinal Giustiniani was excluded by Spain. (Memorie dei Conclavi da Pio VII. a Pio IX.,' Cipoletta, Milano, 1863.)

Instructions of the French king, Charles X., to the French Cardinals going to the Conclave in 1829:-'. Elle n'a point à proprement parler de plan formé pour élever sur la chaire pontificale, ou pour en exclure, tel ou tel membre du Sacré Collége. Elle regretterait même d'avoir à donner une exclusion formelle et authentique ; mais ce n'est pas moins un cas à prévoir; et cette nécessité se présenterait si la majorité des voix menaçait de se déclarer en faveur d'un sujet dont les préjugés personnels, un zèle aveugle, un caractère intolérant et inquiet, et surtout l'habitude de dépendre de telle ou telle grande puissance seraient susceptibles de faire pressentir à l'Eglise une administration dangereuse aux Gouvernements étrangers, et à la France en particulier, des complications et des embarras de plus d'un genre.

It does not appear necessary that a Pope be selected either from the

tion of several States, the right of one State to interfere in the affairs of another, or of the supreme Government to interfere with that of one of its constituents, will depend upon the constitution or plan of confederation; it does not result from any general right in sovereign States, as recognised by international law.1

§ 14. Another incident to the sovereignty of a State is its independence of every other in its legislative power, so far as such independence does not conflict with the sovereign rights of other States, and is not limited or modified by acts of union or the stipulations of treaty. There is, however, properly speaking, no conflict in laws relating to public international jurisprudence, so long as each sovereign State confines its legislation within its own proper and legitimate limits, that is, to the regulation of the rights and duties of its own subjects inter se, and in their relations to their own government. But in what is called private international law, which regulates the rights of individuals of one State with respect to the laws and institutions of other States, there is not unfrequently a conflict of laws. A consideration of this subject belongs to another chapter.2

§ 15. So, also, every sovereign State is independent of every other in the exercise of its judicial power, which, subject to the exceptions already mentioned, is coextensive with its legislative power. At the same time, this power does not embrace cases where the municipal institutions of another nation operate within its territory, as in cases of a public minister, a foreign fleet or army, rights of exterritoriality conceded by treaty, &c. But these questions will be more particularly discussed elsewhere.3

ranks of the Cardinals, or that he be in Orders. At the election of a new Pope, in 1758, votes were given in favour of Father Baberini, General of the Capuchins, who was not a Cardinal (Novaes, Storia dei Pont., vol. xiv. 8), and Moroni (vol. xxxi.) distinctly relates that John XIX. was only a lay brother.

The usual observance has been not to proceed with a ballot for a new election until the tenth day after the decease of the former Pope, but this custom could evidently be set aside in case of urgency or necessity.

1 Mayer, Corpus Juris Germ. lib. ii. p. 196; Martens, Précis du Droit des Gens, § 76; Garden, De la Diplomatie, tome i. pt iii. § 6; Acte Final du Congrès de Vienne, art. 74; Constitution of the United States, art. 3.

2 Vide post, ch. vii. §§ 1 et seq.; Wheaton, Elem. Int. Law, pt. ii. ch. ii. §1; Foelix, Droit International Privé, § 3; Rayneval, Droit de la Nat. etc. liv. i. ch. xi. ; Riquelme, Derecho Pub. Int. lib. ii. tit. i. cap. i. 3 Bynkershoek, De Foro Legat. cap. iii.; Casaregis, Discursus, Leg.