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further caution of knowing that the principle or rule it adopts is to become a general precedent for the law of other cases, and to be subjected afterwards to the test of time, not only by critical examinations of text-writers, but in respect of its applicability to the actual transactions of life, brought before the same or other courts, under other circumstances and in other times.

This discussion does not require an award of general superiority between the publicist and the judge. In the United States, Story and Kent were distinguished alike in each capacity; and, while they saw the value of their own connected systematic treatises, and might attribute their personal fame chiefly to them, yet, on a simple and direct question of a particular point of law, either of them would have preferred, cæteris paribus, to stand by a decision he had made on an actual case argued and tried before him, than on what he might have said in a treatise upon a point which had not been the subject of his judicial decision.

But, on the subject of judicial decisions on international questions, there is another view even higher than this. So far as international law rests on the practice of nations, judicial decisions in prize causes are parts of the law itself. The condemnation or release of a prize, the granting or withholding of the claim of a neutral, is a sovereign act, on sovereign responsibility. The State to which the individual belongs whose claim is rejected by the belligerent State, is not bound by the decision, but may hold the belligerent State responsible. The custom of nations requires the belligerent sovereign to submit the question to his own court, before he shall reject the claim of the neutral; but he may allow the claim, without submitting it to a prize court, or even after the prize court shall have decided against it. If the decision is thus adverse, and the sovereign determines to adopt it, it becomes an act of the nation, upon national responsibility. The decision, therefore, of a prize court, adopted and carried out by the sovereign, has double authority. It is all that a solemn judicial decision by a magistrate can be, upon an actual case, investigated and argued by deeply interested parties, and known by the judge to involve vast consequences not only to the parties, but possibly of peace or war for nations. It is also a national act, on national responsibilities. If a prize court decides against its own sovereign, and his immediate interests, and he restores or makes indemnity, this is surely better proof of what is the law on that point, than the opinion of a writer treating of abstract questions. But it is also an inherent part of international law itself; for it is one of those national acts that constitute that law. The same is true in kind, though not so striking in degree, of a decision made in favor of the sovereign, which he carries out with the acquiescence of the neutral sovereign whose subject is the loser. And even where the belligerent carries out the decision against the remonstrance of the neutral sovereign, and at the peril of war, or actually goes to war to maintain it, it is a national act, the highest possible declaration by that nation of what, at the time, it intends to consider as the law of nations, then and afterwards.

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Every decision of a prize tribunal is, or results in, a national act. The sovereign must either carry it out, or set it aside. The latter he will not be permitted to do, unless it be in his own favor. As a judicial decision, it is the most solemn and responsible opinion a learned doctor of the law can give; and, as a national act, it is done on the most solemn responsibility that can rest on a sovereign.

The consideration most favorable to the text-writer is his probable impartiality. Not that, personally, he is more impartial than the magistrate, or has less of nationality, but that he is engaged on a scientific treatise, where his reputation must rest on the consistency and reasonableness of the whole, tested by time, and where he takes up subjects in the abstract, either past transactions, whose passions and interests

are passed or changed, or as speculations for the future, around which interests and passions are not formed. As an offset to this, it is to be remembered, that the commentator will often be a man of books and speculations, rather than of affairs; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and necessities of life.

Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage; and that each State is, in like manner, independent, and has made like concessions for a like purpose of international advantages, — such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption that men and communities are by nature what they have always been found to be; that the rights and duties of each man are by Divine ordination, originally and necessarily, those at once of an individual and a member of society; and that the rights and duties of a State are, in like manner, those at once of an individual State and one among a number of States; and that neither class of these rights or duties is artificial, voluntary, or secondary.

In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in another supposed entity compounded of all civilized States; but various elements enter into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a whole, of nations taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethics, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning.] — D.

CHAPTER II.

NATIONS AND SOVEREIGN STATES.

Subjects of

internation

§ 16. THE peculiar subjects of international law are Nations, and those political societies of men called al law. States.

§ 17. Cicero, and, after him, the modern public jurists, Definition define a State to be a body political, or society of men,

of a State.

united together for the purpose of promoting their mutual safety and advantage by their combined strength. (a)

This definition cannot be admitted as entirely accurate and complete, unless it be understood with the following limitations: —

1. It must be considered as excluding corporations, public or private, created by the State itself, under whose authority they exist, whatever may be the purposes for which the individuals, composing such bodies politic, may be associated.

Thus the great association of British merchants incorporated, first, by the crown, and afterwards by Parliament, for the purpose of carrying on trade to the East Indies, could not be considered as a State, even whilst it exercised the sovereign powers of war and peace in that quarter of the globe, without the direct control of the crown, and still less can it be so considered since it has been subjected to that control. Those powers are exercised by the East India Company in subordination to the supreme power of the British empire, the external sovereignty of which is represented by the company towards the native princes and people, whilst the British government itself represents the company towards other foreign sovereigns and States.

2. Nor can the denomination of a State be properly applied to voluntary associations of robbers or pirates, the outlaws of other societies, although they may be united together for the purpose of promoting their own mutual safety and advantage. (b)

3. A State is also distinguishable from an unsettled horde of wandering savages not yet formed into a civil society. The legal idea of a State necessarily implies that of the habitual obedience of its members to those persons in whom the superiority is vested, and of a fixed abode, and definite territory belonging to the people by whom it is occupied.

4. A State is also distinguishable from a Nation, since the former may be composed of different races of men, all subject to

(a) "Respublica est cœtus multitudinis, juris consensu et utilitatis communione societas." Cic. de Rep. 1. i. § 25.

Potestas civilis est, qui civitati præest. Est autem civitas cœtus perfectus liberorum hominum, juris fruendi et communis utilitatis causâ sociatus." Grotius, de Jur. Bel. ac Pac. lib. i. cap. i. § xiv. No. 2. Vattel, Prelim. § 1, et liv. 1, ch. 1, § 1. Burlamaqui, Droit Naturel, tom. ii. part 1, ch. 4.

(b).. "nec cœtus piratarum aut latronum civitas est, etiam si fortè æqualitatem quandam inter se servent, sine quâ nullus cœtus posset consistere." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. iii. § ii. No. 1.

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the same supreme authority. Thus the Austrian, Prussian, and Ottoman empires, are each composed of a variety of nations

and people. So, also, the same nation or people may be subject

to several States, as is the case with the Poles, subject to the dominion of Austria, Prussia, and Russia, respectively.

subjects of

internation

§ 18. Sovereign princes may become the subjects of Sovereign princes the international law, in respect to their personal right, or rights of property, growing out of their personal relations al law. with States foreign to those over whom they rule, or with the sovereigns or citizens of those foreign States. These relations give rise to that branch of the science which treats of the rights of sovereigns in this respect.12

als, or cor

of interna

§ 19. Private individuals, or public and private cor- Individuporations may, in like manner, incidentally, become the porations, subjects of this law in regard to rights growing out of the subjects their international relations with foreign sovereigns and tional law. states, or their subjects and citizens. These relations give rise to that branch of the science which treats of what has been termed private international law, and especially of the conflict between the municipal laws of different States.13

The terms

sovereign

nonymous

former used

But the peculiar objects of international law are those direct relations which exist between nations and states. and State Wherever, indeed, the absolute or unlimited monarchical used syform of government prevails in any State, the person of ly, or the the prince is necessarily identified with the State itself: metaphorically for the l'Etat c'est moi. Hence the public jurists frequently use latter. the terms sovereign and State as synonymous. So also the term sovereign is sometimes used in a metaphorical sense merely to denote a State, whatever may be the form of its government, whether monarchical, or republican, or mixed.

§ 20. Sovereignty is the supreme power by which any SovereignState is governed. This supreme power may be exer- ty defined. cised either internally or externally.

Internal sovereignty is that which is inherent in the Internal people of any State, or vested in its ruler, by its muni- sovereignty. cipal constitution or fundamental laws. This is the object of what

[12 On the conflicting rights and duties of a person who is a sovereign over one State, and a subject in another, see Heffter, § 52.]—D.

[18 On this branch of Law, see Story's Conflict of Laws; Westlake's Private International Law; Burge's Commentaries; Fölix's Traitè du Droit International Privé; Savigny's System des Römischen Rechtes, vol. viii. (translated into French by

has been called internal public law, droit public interne, but which may more properly be termed constitutional law.

External External sovereignty consists in the independence of sovereignty. one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law.

The recognition of any State by other States, and its admission into the general society of nations, may depend, or may be made to depend, at the will of those other States, upon its internal constitution or form of government, or the choice it may make of its rulers. But whatever be its internal constitution, or form of government, or whoever may be its rulers, or even if it be distracted with anarchy, through a violent contest for the government between different parties among the people, the State still subsists in contemplation of law, until its sovereignty is completely extinguished by the final dissolution of the social tie, or by some other cause which puts an end to the being of the State.

ty, how ac

Sovereign- § 21. Sovereignty is acquired by a State, either at the quired. origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent. (a)

This principle applies as well to internal as to external sovereignty. But an important distinction is to be noticed, in this respect, between these two species of sovereignty. The internal sovereignty of a State does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists.

Thus the internal sovereignty of the United States of America was complete from the time they declared themselves "free, sovereign, and independent States," on the 4th of July, 1776. It Guenoux, as Traité de Droit Romaine); Walker's Introd. to American Law, edit. 2, 647, &c.; and, for the general literature of this subject, see Mohl's Geschichte und Literatur der Staatswissenschaften, i. 441, &c.

(a) Klüber, Droit des Gens Moderne de l'Europe. § 23.

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