15a. The authority of text writers. 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 text-writers, 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, 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 textwriter who ignores them, and appeals to theory or to other textwriters instead of to facts, must not expect to receive any great attention in this country. "Writers on international law," says Lord were published as an Appendix to 66 at various times, under the title of Cases and Opinions on Constitutional Law. Some of these relate to international law. Professor Holland's European Concert in the Eastern Question, Mr. Wharton's International Law Digest, and Mr. Pitt Cobbett's selection of Cases and Opinions, are welcome accessions to the literature of international law. Amongst the most interesting legal products of our day are the manuals of the usages of war which a great number of civilized States are now issuing to their officers in the field. . . . perhaps the most singular feature of the manuals is the number of rules adopted in them, which have been literally borrowed from the De Jure Belli et Pacis. . . . It may be said that wherever there was anything like an approach to unanimity in the decisions and votes of the [Brussels] conference, it is adopted in this somewhat irregular form by the greater part of the nations of the world." Maine, I. L. pp. 27, 130; see also ibid., p. 168.] 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" (y). On the other hand, it has recently been pointed out that "the founders of international law, though they did not create a sanction, created a law-abiding sentiment. They diffused among sovereigns, and the literate classes in communities, a strong repugnance to the neglect or breach of certain rules regulating the relations and actions of States" (z). And it is very doubtful if the judgments of Lord Cockburn, and those who agreed with him in the Franconia Case, can be taken as correctly representing the law of England; for the opinion of the minority in that case has been since not only enacted, but declared by Parliament to have been always the law (a). In America also, at any rate, international law is regarded as founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilized nations, and is to be respected as part of the law of the land (b). 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. The principles laid down in marine ordinances must not always be Marine ordinances not assumed to have an universal application. "They furnish, however," necessarily says Sir R. Phillimore, “decisive evidence against any State which universal. afterwards departs from the principles which it has thus deliberately invoked; and in every case thus clearly recognise the fact that a system of law exists, which ought to regulate and control the international relations of every State" (c). But since these ordinances are ex parte instruments, they 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 (d). § 15d. Courts of Admiralty are courts of the law of nations (e). It is the Courts of duty of the judge presiding in such courts "not to deliver occasional Admiralty. and shifting opinions to serve present purposes of particular national (y) [R. v. Keyn (The Franconia), 2 Ex. D. 202.] (2) [Maine, International Law, p. 51.] (a) [R. v. Dudley, 14 Q. B. D. 273, 281, per Lord Coleridge, L. C. J.] (b) [Wharton, Dig. § 8. See also Heffter, ed. 1883, note by Geffcken, § 2, p. 3.] (c) [Phillimore, vol. i. § 57.] (d) [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.] (e) [Reply to Prussian Memorial, 1753. Harg. Coll. Jur. vol. ii. p. 130; The Recovery, 6 C. Rob. 348.] interest, 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" (f). 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. (f) [Per Lord Stowell, in The Maria, 1 C. Rob. 350; Calvo, Droit Int. vol. i. p. 111; Halleck, p. 58. But see The Scotland, 105 U. S. 24; The Gaetano and CHAPTER II. NATIONS AND SOVEREIGN STATES. $16. international law. THE peculiar subjects of international law are Nations, Subjects of and those political societies of men called States. § 17. Cicero, and, after him, the modern public jurists, Definition of define a State to be, a body politic, or society of men, 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 (a) Cic. de Rep. 1. i. § 25. 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, § 17a. Nations and towards the native princes and people, whilst the British 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-Hungary is a State, but as Prince Gortchakoff 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. [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.] |