conduct called conduct of independent societies of men, or sovereign states, rules of in their mutual relations with each other, can with strict pro- between priety be called laws.17 And one of his disciples has ob- states are served, that "laws (properly so called) are commands pro- laws. ceeding from a determinate rational being, or a determinate body of rational beings, to which is annexed an eventual evil as the sanction. Such is the law of nature, more properly called the law of God, or the divine law; and such are political human laws, prescribed by political superiors to persons in a state of subjection to their authority. But laws imposed by general opinion are styled laws by an analogical extension of the term. Such are the laws of honour, which are rules of conduct imposed by opinions current in the fashionable world, and enforced by appropriate sanctions. Such also are the laws which regulate the conduct of independent political societies in their mutual relations, and which are called the law of nations, or international law. This law obtaining between nations, is not positive law; for every positive law is prescribed by a given superior or sovereign to a person or persons in a state of subjection to its author. The rule regarding the conduct of sovereign states, considered as related to each other, is termed law by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected.' 9918 International law is commonly divided into two branches: § 13. Divisions I. What is termed the Natural Law of Nations, consisting of internaof the rules of justice applicable to the conduct of those in- tional law. dependent societies of men called states. II. The Positive Law of Nations, which is again subdivided into three branches : 17 Bentham, Morals and Legislation, vol. ii. p. 256, ed. 1823. 18 Austin, Province of Jurisprudence determined, pp. 147-8, 207-8. $ 14. Sources of international law. 1. The Voluntary Law of Nations, derived from the presumed consent of nations arising out of their general usage and consent. 2. The Conventional Law of Nations, derived from the express consent of nations, as evidenced in treaties and other international compacts. 3. The Customary Law of Nations, derived from the tacit consent of particular nations establishing a peculiar usage between themselves.19 The various sources of international law in these different branches, are the following: 1. The rules of conduct which ought to be observed between nations, as deduced by reason from the nature of the society existing among independent states, 2. Text writers of authority showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent. 3. The adjudications of international tribunals, such as boards of arbitration and courts of prize. In the present imperfect state of positive international law, which acknowledges no permanent authorized judicial expositor of its principles and rules, resort must necessarily be had to the precedents collected from the decisions of the boards of arbitration specially constituted to determine controversies between particular states, or of the courts of prize established in every country to judge of the validity of captures made in war. Greater weight is justly attributable to the judgments of the mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide, than to those of admiralty courts established by and dependent on the instructions of one nation only. It is said indeed to be the duty of these courts, though established in the belligerent country, 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 19 Vattel, Droit des Gens, Prelim. to be belligerent. The seat of judicial authority is locally in the belligerent country, according to the known law and practice of nations; but the law itself has no locality. It is the duty of the person who sits there to determine the ques tions that arise exactly as he would determine the same questions if sitting in the neutral country whose rights are to be adjudicated upon.20 Such is the theory of judicial duty, as expounded by one of the greatest of maritime judges. How far the practice of recent times, or of any times, has corresponded with this theory, will always be a matter of doubt with those whose rights and interests are affected by the adjudications of these ex parte tribunals. This will be more especially the case with respect to a great maritime country, depending on the encouragement of its navy for its glory and safety, where the national bias is so strong in favour of the captor, that the judge must, unconsciously, feel its influence. On this account, it becomes the more necessary to investigate rigidly the principles on which these adjudications are founded, and the reasonings by which they are supported.21 With this caution, the books of admiralty reports may become an instructive source of information respecting the practical administration of prize law. ( 4. Ordinances of particular states, prescribing rules for the conduct of their commissioned cruisers and prize tribunals. 5. The history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations. 6. Treaties of peace, alliance, and commerce, declaring, modifying, or defining the pre-existing international law. Though the binding force of express compacts between nations may not depend upon positive law, still these compacts constituting a rule between the contracting parties, are familiarly called laws by analogy to the proper use of that term. The effect of treaties and conventions between na 20 Sir W. Scott (Lord Stowell) in the case of the Swedish Convoy, Robinson's Adm. Rep. vol. i. p. 34. 21 Mr. Chief Justice Marshall, in the case of the ship Venus, Cranch's Rep. vol. viii. p. 253. tions, is not necessarily restricted, as Rutherforth has supposed, to those states who are direct parties to these compacts. They cannot, indeed, modify the original and preexisting international law to the disadvantage of those states who are not direct parties to the particular treaty in question. But if such a treaty relaxes the rigour of the primitive law of nations in their favour, or is merely declaratory of the pre-existing law, or furnishes a more definite rule in cases where the practice of different states has given rise to conflicting pretensions, the conventional law thus introduced is not only obligatory as between the contracting parties, but constitutes a rule to be observed by them towards all the rest of the world.22 What has commonly been called the positive or practical law of nations may also be inferred from treaties; for though one or two treaties varying from the general usage and custom of nations cannot alter the international law, yet an almost perpetual succession of treaties establishing a particular rule will go very far towards proving what that law is upon a disputed point. Some of the most important modifications. and improvements in the modern law of nations have thus originated in treaties.23 22 See "Substance of a Speech delivered by Lord Grenville in the House of Lords, Nov. 13, 1801," upon the maritime convention of June, 1801, between Great Britain and Russia. CHAPTER II. SOVEREIGN STATES. Sovereign THE subjects of international law are separate political $1. societies of men living independently of each other, and espe- states decially those called Sovereign States. A sovereign state is generally defined to be any nation or people, whatever may be the form of its internal constitution, which governs itself independently of foreign powers.1 fined. § 2. Limited This definition, unless taken with great qualifications, cannot be admitted as entirely accurate. Some states are com- sovepletely sovereign, and independent, acknowledging no supe- reignty. perior but the supreme Ruler and Governor of the universe. The sovereignty of other states is limited and qualified in various degrees. of states. All independent states are equal in the eye of international Equality law, whatever may be their relative power. The co-ordinate sovereignty of a particular state is not impaired by its occasional obedience to the commands of other states, or even the habitual influence exercised by them over its councils. It is only when this obedience, or this influence, assumes the form of express compact, that the sovereignty of the state, inferior in power, is legally affected by its connexion with the other. Treaties of equal alliance, freely contracted between independent states, do not impair their sovereignty. Treaties of unequal alliance, guarantee, mediation, and protection, may have a different effect. Still the sovereignty of the inferior ally or protected state remains, though limited and qualified by the stipulations of the treaties of alliance and protection.2 1 Vattel, Droit des Gens, liv. i. c. 1. § 4. 2 Vattel, liv. i. c. 1. §§ 5, 6. |