§ 15a. The authority

of text writers.

by itself, or its subjects, it generally acts as an individual would do in a similar situation. It consults its legal advisers, and is guided by their opinion as to the law of the case. Where that opinion has been adverse to the sovereign client, and has been acted on, and the State which submitted to be bound by it was more powerful than its opponent in the dispute, we may confidently assume that the law of nations, such as it was then supposed to be, has been correctly laid down. The archives of the department of foreign affairs of every country contain a collection of such documents, the publication of which would form a valuable addition to the existing materials of international law (u).

6. The history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations, may conclude this enumeration of the sources of international law.

Jurists accustomed to the Common Law of England and America, where judicial decisions form a binding precedent, and are authoritative expositions of the law, are, as a rule, inclined towards resting international law on practice and precedent, and prefer to rely upon the decision of a court or the act of a government, rather than upon theory or the dicta of textwriters, however unanimous or eminent the writers may be. On the other hand, in France and other countries where the whole law is contained in a code, and where the decisions of the courts only settle the matter in dispute between the parties, and form no binding precedent, jurists place very great reliance on the theoretical speculations of text-writers, and frequently consider the rules they lay down as the highest authority. It is not too much to say that the influence of speculative writers in England is comparatively small. In the days of Grotius,

(u) Senior, Edinburgh Rev. No. 156, art. 1, p. 311.

The written opinions delivered by Sir Leoline Jenkins, Judge of the High Court of Admiralty in the reign of Charles II., in answer to questions submitted to him by the King or by the Privy Council, relating to prize causes, were published as an Appendix to Wynne's Life of that eminent civilian. (2 vols. fol. London, 1724.) They form a rich collection of precedents in the maritime law of nations, the value of which is enhanced by the circumstance that the greater part of these opinions were given when England was neutral, and was consequently interested in maintaining the right of neutral commerce and navigation. The decisions they contain are dictated by a spirit of impartiality and equity, which does the more honour to their author as they were addressed to a monarch who gave but little encouragement to those virtues, and as Jenkins himself was too much of a courtier to practise them, except in his judicial capacity. Madison, Examination of the British Doctrine, &c., p. 113. Lond. edit. 1806. [The opinions of American AttorneysGeneral are published. Mr. Forsyth has also published a collection of some of the opinions of English law officers given at various times, under the title of Cases and Opinions on Constitutional Law. Some of these relate to international law.]

when his own works, and a few other treatises, were almost the only source from which anything on the subject could be derived, text-writers had the greatest reverence paid to their opinions. But now that precedents are to be found upon so many points, a text-writer who ignores them, and appeals to theory or to other text-writers instead of to facts, must not expect to receive any great attention in this country. "Writers on international law," says Lord Chief-Justice Cockburn, "however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage" (x). Several treaties have been entered into of late years for the sole purpose of laying down rules of international law which shall bind the contracting parties. Such, for instance, are the Declarations of Paris, 1856, and of St. Petersburg, 1868, and the Geneva Convention, 1864. In others, as in the Treaty of Washington, 1871, rules of law have been inserted among the other provisions.

§ 15b. Rules of

law in

treaties.

§ 15c. Marine

ordinances not neces

The principles laid down in marine ordinances must not always be assumed to have an universal application. "They furnish, however," says Sir R. Phillimore, "decisive evidence against any State which afterwards departs from the principles which it has thus deliberately sarily uniinvoked; and in every case thus clearly recognize the fact that a system versal. of law exists, which ought to regulate and control the international relations of every State" (y).

These ordinances are, however, ex parte instruments, and ought not to be enforced if at variance with the established usage of nations, for no State has the right of laying down rules which shall bind other States that have not consented to them (z).

§ 15d.

Courts of

Courts of Admiralty are courts of the law of nations (a). It is the duty of the judge presiding in such courts "not to deliver occasional and shifting opinions to serve present purposes of particular national in- Admiralty. terest, but to administer with indifference that justice which the law of nations holds out, without distinction to independent States, some happening to be neutral and some belligerent" (b). The records of the English and American Courts of Admiralty are peculiarly valuable, from their containing the judgments of such eminent men as Lord Stowell and Dr. Lushington, Kent and Story.

(x) [R. v. Keyn (The Franconia), 2 Ex. D. 202]. (y) [Phillimore, vol. i. § 57].

(z) [Wolff v. Oxholm, 6 M. & S. 92; The Nereide, 9 Cranch, 388; The Zollverein, 2 Jur. N. S. 429 ; S. C. Swa. 96; Cope v. Doherty, 4 K. & J. 390]. (a) [Reply to Prussian Memorial, 1753. Harg. Coll. Jur. vol. ii. p. 130; The Recovery, 6 C. Rob. 348].

(b) [Per Lord Stowell, in The Maria, 1 C. Rob. 350; Calvo. Droit Int. vol. i. p. 111; Halleck, p. 58].

CHAPTER II.

$ 16. Subjects of

international law.

$ 17. Definition

of a State.

NATIONS AND SOVEREIGN STATES.

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

Cicero, and, after him, the modern public jurists, define a State to be, a body politic, or society of men, 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

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

"Potestas civilis est, qui civitati præest. Est autem civitas coetus perfectus liberorum hominum, juris fruendi et communis utilitatis causâ sociatus." Grotius, de Jur. Bel. ac. Pac. lib. i. cap i. § xiv. No. 2. Vattel, Prélim. § 1, et liv. 1, ch. 1, § 1. Burlamaqui, Droit naturel, tom ii. part 1, ch. 4. [Heffter, liv. 1, § 16, p. 35. Texas v. White, 7 Wallace, 720.]

government itself represents the company towards other foreign sovereigns and States (b).

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 (c).

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 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.

The Jews and the Gipsies are undoubtedly nations, but they cannot be said to form States. The idea of a nation implies community of race, which is generally shown by community of language, manners, and customs (d). A State, on the other hand, implies the union of a number of individuals in a fixed territory, and under one central authority. Austria is a State, but as Prince Gortchakoff sarcastically remarked about it, "it is a government, and not a nation." There is now prevalent in Europe a desire that States should be established on the basis of nationality, so that all members of the same race may be united under the same government. The existence in their present form, of the Empire of Germany, and the Kingdom of Italy, is due in some measure to this sentiment (e).

In the constitution of the United States, the term State most fre

*** 66

(b) [See The Secretary of State for India v. Sahaba, 13 Moo. P. C. 22]. (c) nec cœtus piratarum aut latronum civitas est, etiam si fortè æqualitatem quandam inter se servent, sine quà nullus coetus posset consistere." Grotius, de Jur. Bel. ac. Pac. lib. iii. cap. iii § ii. No. 1. [Thus the Malay and Sooloo pirates of Borneo and the Eastern Archipelago are no doubt united for their own mutual safety and advantage, but they do not form States. The Serhassan Pirates, 2 W. Rob. 354; The Illeanon Pirates, 6 Moo. P. C. 471. Nor did the Buccaneers of the 17th century].

(d) [Calvo, Droit Int. vol. i. § 29].

(e) [M. de Schleinitz to Comte de St. Simon; Annuaire des Deux Mondes, 1860, p. 786].

American

Constitu

tion.

State in the quently expresses the combined idea of people, territory, and government. A State, in the ordinary sense of the constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common constitution, which forms the distinct and greater political unit, which that constitution designates as the United States, and makes of the people and States which compose it one people and one country (f).

§ 18. Sovereign princes the subjects of

international law.

$ 19. Individ

uals, or corporations, the subjects of international law.

The terms sovereign

and state

used synonymous

ly, or the former used

Sovereign princes may become the subjects of international law, in respect to their personal rights, or rights of property, growing out of their personal relations 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 (g).

Private individuals, or public and private corporations may in like manner, incidentally, become the subjects of this law in regard to rights growing out of their international relations with foreign sovereigns and 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.

But the peculiar objects of international law, are those direct relations which exist between nations and States. Wherever, indeed, the absolute or unlimited monarchical form of government prevails in any State, the person of the metaphori prince is necessarily identified with the State itself: l'Etat cally for the c'est moi. Hence the public jurists frequently use 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.

latter.

$ 20.

Sovereignty is the supreme power by which any State is Sovereignty governed. This supreme power may be exercised either internally or externally.

defined.

Internal sovereignty.

Internal sovereignty is that which is inherent in the people

(f) [Per Chief-Justice Chase, in Texas v. White, 7 Wallace, 721].

(g) (See Duke of Brunswick v. King of Hanover, 2 H. of L. Cas. 1; The Charkich, L. R. 4 A. & E. 87].