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be observed, goes, not to codification as a stage in legal development, but to codification as a supposed finality. It is not only proper, but necessary, that there should be statutes defining the law in its general relations, these definitions being made as far as possible part of a common system. As has been well stated," future legislation can, of course, be in no degree hampered by codification." And, as we have already seen, statutory definitions not only do not exclude but necessitate judicial differentiation.2

the same processes and through the same agencies as those by which our common law has been developed."

That the German and French codes derive their permanency from their

generality is admitted by Sir J. F. Ste-
phen, 3 Hist. Cr. Law.

11 Steph. Hist. Cr. Law, 351.
2 Supra, §§ 30 et seq.

183

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International law part of the common Specific territory essential but not form

law, § 119.

of government, § 136.

Not the exclusive product of treaty, Modes of sovereignty, § 137.

§ 120.

Appeals to consciousness by right, § 121.

Based on decisions and on common consent, § 122.

Not necessary that there should be a court to enforce it, § 123.

II. HISTORY.

Sovereignties entitled to political deference, § 138.

And to the protection of subjects, § 139. Recognition dependent on discretion, § 140.

Belligerency may be distinctively recognized, § 141.

Devolution of duty on states seceding, § 142.

In primitive times no such law recog- Individuality of parent states remain, nized, § 124.

Tendencies in the middle ages, § 125. Reformation cosmopolitan, § 126. Grotius the founder of the modern system, § 127.

Development under Louis XI., § 128. Natural law prior to the French Revolution, §§ 129.

French Revolution hostile to rights of states, §§ 130.

Congress of Vienna appeals to legitimacy, § 131.

Consequences of fall of Orleans dynasty, § 132.

Modifications by treaty of Paris of 1856, § 133.

Tendencies to absorption of minor states, § 134.

§ 143.

Mutual responsibilities of states and government, § 144.

Governments de facto are authoritative, § 145.

Territory inviolable, but modification as to self-defence, § 146. Exception as to semi-civilized or barbarous states, § 147.

Right to trade secured by law of nations, § 148.

Pledges and servitudes of national pro

perty, § 149.

Servitude implied in neutralization, § 150.

IV. ACQUISITIONS OF TERRITORY. Modes of acquiring, § 151.

Land added by accession, § 152.

Prescription gives title, § 153.

IX. RIGHT TO SEA AND RIVER.

Cession does not divest old laws, § 154. Open sea free to all nations, § 185.

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must be duly authorized and rati-
fied, § 158.

Only parties bound by, § 159.
Pledges granted in, § 160.
Abrogated by war and other limi-
tations, § 161.

VI. DIPLOMATIC AND CONSULAR AGENTS.
Diplomacy a system of law, § 163.
Ministers sent from government to
government, § 164.
Belligerents may be represented, § 165.
Sending and reception a matter of dis-
cretion, § 166.

Inviolability and extra-territoriality of embassies, § 167.

Privilege extends to journey, § 168.
Classification, § 169.

Consuls not so privileged, § 170.
May have jurisdiction in foreign lands,
§ 171.

Exequatur required, § 172.

VII. INTERVENTION.

Permissible in matters disturbing public peace, § 174.

Objections to European intervention in America, § 175.

Belt of sea within cannon-shot terri

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Restitution or indemnity, § 205.
Retortion and reprisal, § 206.

VIII. NATURALIZED AND OTHER RESI- Embargo, § 207.

DENTS: SLAVES.

Naturalization now generally accepted,

§ 177.

Mediation and arbitration, § 208.

XIII. WAR AND ITS INCIDENTS.

Foreigners subjected to law of place of War the final appeal, § 209.

residence, § 178.

May be excluded, § 179.

Duties pertaining to domicil, § 180. Slave-trade no longer allowed, § 181. Nor slavery by non-slaveholding states, § 182.

Only states can be parties to, but involves all subjects, § 210.

Declaration should be formally made, § 211.

Provisional governments may be established, § 212.

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XV. BLOCKade.

Deception and great material destruc

tion allowed, § 213.

Blockade must be effective, § 233.

Commerce with enemies prohibited, Notice must be given, § 234.

§ 214.

Booty not permitted, § 215.

Vessel running may be confiscated, § 235.

Public but not private property may

be seized, § 216.

XVI. RIGHTS OF NEUTRALS.

Distinction in this respect as to insur- Trade of neutrals to be protected, § 238. Neutral waters ought not to be invaded, § 239.

gents, 217.

Conflict as to whether sailing under enemy's flag exposes neutral goods to seizure, § 218.

English courts hold that doing business in a foreign land constitutes commercial domicil, § 219.

Seizable property in transitu cannot escape seizure by assignment, § 220. Guerillas, when internationally sanctioned, § 221.

On withdrawal of invasion old system revives, § 222.

Jus postlimini is right of owner of captured property to restoration, § 223. Maritime law restores captured property on paying salvage, § 224.

XIV. CONTRABAND.

Neutrality conditioned by circum-
stances, § 240.

International and municipal neutrality
not convertible, § 241.
Policy of the United States is to main-
tain neutral immunities, § 242.
Deviation from this policy during the
civil war, § 243.

Rules of treaty of Washington limiting
neutral rights not of permanent obli-
gation, § 244.
Furnishing funds by subjects of neutral
states to relieve belligerents not
breach of neutrality; and so of loans,
§ 245.

Belligerent may be furnished with mu-
nitions of war, § 246.

Articles contraband of war may be for- Belligerent recruiting in neutral state feited, § 226.

a breach of neutrality, § 247.

§ 248.

In cases of conspiracy ships may be So of giving passage to belligerent, confiscated, § 227. Question as to dispatches and diplo- Permitting the fitting out and sailing of matic agents, § 228. cruisers a breach of neutrality, § 249. Such agents may communicate through Freedom of sale not to be confounded belligerent lines, § 229. with liability to confiscation, § 250. Destination of ship imputed to goods, Coaling forbidden from a constant base, § 230.

International law

§ 251.

I. OBJECT AND NATURE.

§ 118. INTERNATIONAL law is a law generally accepted by civilized nations by which international rights and duties are determined. It is to be distinguished from the jus gentium of the Roman law, which was the general system of jurisprudence common to the

is a law accepted by civilized

nations to

1 See Johnson v. Falconer, 2 Paine, 601; S. C., Van Ness, 1.

interna

civilized communities of Italy; while international determine law is limited to jurisprudence which concerns the tional international relations of the civilized world. rights. That international law is not in the strict sense of the term a "law" is asserted, as we have seen, by the English analytical school of jurists. According to that school, it is essential to the constitution of a law that it should be both prescribed and enforced by a sovereign. International law, however, is not, it is asserted, so prescribed, and cannot be so enforced; therefore international law is not, properly speaking, a "law." This position, however, is not accepted by jurists of the historical school, who hold that law is the product of national forces, and may exist without a specific pen

1 Sir J. F. Stephen, while maintaining, in his history of Criminal Law, that there is no such thing as systematic international law, but only a body of usages, admits that: "Where a definite usage between nation and nation exists, and where there is no special law upon the subject to be found in the statute book or elsewhere, it is undoubtedly part of the law of England that such usage should be enforced as law, and the works of authors on the subject are the evidence by which the existence of such usages is commonly proved." Mr. Austin, also, holds that international law is not properly a law in the technical sense of the term, but is simply a scheme of morality; and the reason given by him is that there is no sanction by which it is enforced. This objection will be hereafter noticed.

Jurists of the analytical school object, also, to the theory of there being a binding standard of international law on the ground that there is no agreement as to the basis of the standard. But we might as well object to the binding character of the common law on the ground that there is no agreement as to the basis on which the common law rests.

According to Blackstone, on the

other hand, "both" (equity and common law)" follow the law of nations, and collect it from history and the most approved authors of all countries where the question is the object of that law. In mercantile transactions they follow the marine law, and argued from the usages and authorities received in all maritime countries. Where they exercise a concurrent jurisdiction, they both follow the law of the proper forum; in matters originally of ecclesiastical cognizance, they both equally adopt the canon or imperial law, according to the nature of the subject; and if the question came before either, which was properly the object of a foreign municipal law, they would both receive information of what is the rule of the country, and would both decide accordingly." Blackst Com., book iii. chap. xxvii.

Mr. Wheaton (Internat. Law, Part IV. chap. iii.) declares that "the maritime law of nations, by which the intercourse of the European states is regulated, has been adopted by the new communities which have sprung up in the western hemisphere, and was considered as obligatory upon them during the war of the Revolution."

2 Supra, § 6; infra, § 123.

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