to be the only subjects of international law. Persons and public officers as well as territory and other kinds of property are its objects.11

In our own opinion there is much to be said for the first view. There is a tendency for international law to impose a direct responsibility upon persons and officers12 and if it is ever to be law in the Austinian sense of the term, this view will have to be recognized. The possibility of an effective law binding states as such was exhaustively discussed in the federal convention of 1787,13 and the impossibility of enforcing such a law by ordinary lagal processes was demonstrated prior to the civil war. Even corporations when of considerable magnitude have proved surprisingly difficult things to control by law. A corporation or a state can neither be brought to court, nor put in jail. Law can never act upon it more than imperfectly.

As it is, however, the responsibility of states is the predominant feature of international law, and we will adhere to the usual custom of classifying the branches of that subject according to the rights and duties of states.

It is possible to discuss any body of law in terms of either rights or duties; either privileges or obligations; either liberties or restrictions. Every right implies a duty on the part of others

11 See Lawrence, Int. Law, p. 73, "Probably it is best to say with Oppenheim (Int. Law, 1; 344) that persons, like territory, are objects of International law, and reserve the term subjects for those artificial persons who are either sovereign states or communities closely akin to them through the possession of some of the distinguishing marks of statehood." 12 See, for instance, Hague Conventions 1907, in which occur such expressions as "Every prisoner of war is bound to give, etc." (IV, Art. 9) "a belligerent war ship may not prolong its stay, etc." (XIII, Arts. 14, 16, 18, 19, 20).

18 See James Madison, The Journal of the Debates in the Convention which framed the Constitution of the United States, Gaillard Hunt, ed., N. Y., 1908, 2 vol., also in Madison, Works, Hunt, ed., vol. 3; Elliot, Debates, vol. 5; Farrand, The records of the Federal Convention of 1787, New Haven, 1911, Remarks by Madison, May 31, Wilson, June 25, King, July 14. Strong, July 14, says, "The practicability of making laws with coercive sanction for the states as political bodies had been exploded in all hands". See also Madison letter to Jefferson, Works, 1;344: The Federalist, Nos. 15, 16, 21, P. L. Ford, ed., pp. 87, 90, 91, 97, 123. A. C. McLaughlin, The Confederation and the Constitution, Am. Nation Ser., vol. 10, pp. 242, 245. The constitution of the German Empire does provide for the legal coercion of states through a process known as "Federal Execution", but the law of the empire acts directly on individuals.

to expect its observance. Treatises on international law, as on all other departments of law, commonly treat parts of the subject by describing duties, other parts by describing rights. In fields where liberty of action is the rule and restriction the exception, convenience dictates a treatment from the standpoint of duties, while when the reverse is true, when restriction is the rule and liberty of action the exception, a treatment from the standpoint of rights is most conservative of space.

For our purposes, however, a classification based exclusively on duties is necessary. Our purpose is to discover what obligations of international law are enforced by municipal law. We will therefore attempt to cover the whole field of international law from the viewpoint of duties. We will not consider the rights of the United States as such, but only in so far as they imply a duty to respect equivalent rights of other states.

Looking at international law as imposing obligations upon states, some of these obligations require action or abstention on ( the part of the government, while others require the state to enforce action or abstention on the part of its citizens or public officers. Duties of the first character are considered under four heads, abstention, acquiescence, vindication and reparation, those of the second under the head prevention.

The international obligations of a state differ somewhat according to differences in status caused by the advent of wars. Four general divisions are thus suggested-obligations in time of peace, obligations as a neutral, obligations as a belligerent toward neutrals and obligations as a belligerent toward enemies.

The questions relating to the transition from war to peace, peace to neutrality, etc., as well as to the advent of new states, involve the subject of recognition. This is a political question. Municipal law does not lay down rules saying when states shall be recognized, when belligerency and insurgency exist, and when they cease. In these matters the municipal law of the United States follows the political departments of the government as has been repeatedly affirmed by the courts.14 It adjusts itself to the new status and recognizes the new condition.

14 Rose vs. Himely, 4 Cranch 241 (1808); Consul of Spain vs. the Conception, Fed. Cas. 3137 (1819); Gelston vs. Hoyt, 3 Wheat. 246, 324 (1818); U. S. vs. Palmer, 3 Wheat. 610 (1818); The Divina Pastora, 4 Wheat. 52; Foster vs. Neilson, 2 Pet. 253, 307; Keene vs. McDonough, 8 Pet. 308; Garcia vs. Lee, 12 Pet. 511; Williams vs. Suffolk Ins. Co., 13 Pet. 415 (1839); Kennet vs. Chambers, 14 How. 38 (1852); The Prize Cases, 2 Black 635; U. S. vs. Yorba, 1 Wall. 412; U. S. vs. Lynde, 11 Wall. 632;

These matters are therefore beyond the scope of our subject. We will take the conditions of peace, war and neutrality for granted and discuss the municipal measures for enforcing national duties in each of these conditions, classifying such duties under the five heads, abstention, acquiescence, prevention, vindication and reparation.

The Ambrose Light, 25 Fed. Rep. 408 (1885); Jones vs. U. S. 137 U. S. 202 (1890); The Three Friends, 166 U. S. 1 (1896); Underhill vs. Hernandez, 168 U. S. 250; Ex Parte Toscano, 208 Fed. Rep. 938 (1913). English cases-The Pelican, Edw. Adm. Appdx. D., Taylor vs. Barkley, 2 Șim. 213; Emperor of Austria vs. Day, 2 Giff 628; Republic of Peru vs. Peruvian Guano Co., 36 Ch D. 489, 497; Republic of Peru vs. Dreyfus, 38 Ch. D. 348, 356, 359.

PART I.

OBLIGATIONS IN TIME OF PEACE

CHAPTER I. INTRODUCTORY

The obligations imposed upon states in time of peace are in general derived from one fundamental conception, which may be summarized as the principle of territorial independence or territorial sovereignty.

Modern international law was impossible until the idea that government and jurisdiction are inseparable from territory had received recognition. It is true that these propositions are not universally held now. The principle that jurisdiction extends by race or nationality and by the nature of the act rather than by territory is still asserted and acted upon in claims of jurisdiction over citizens abroad and over any one committing offenses against the state or its citizens. It is, however, believed that these claims are to be regarded as exceptions to the general rule of territorial jurisdiction. The triumph of the theory of territoriality in jurisdiction and government is assured by the fact that power of coercion, physical force, is the foundation of both of them, and effective coercion is by the nature of things exclusive within one territory. We will therefore regard the following propositions as the norms of the law of peace: (1) A state occupies a definite portion of territory. (2) Within that territory it may organize itself, dispose of its land, resources and wealth, and control the conduct of the inhabitants with perfect freedom. This may be stated by saying that within its territory it has unlimited powers of government, property and jurisdiction. (3) Outside of that territory its power ceases.1

1On the theory and necessity of territorial sovereignty see J. W. Burgess, Political Science and Comparative Constitutional Law, Boston, 1898, 1;52; Joseph Story, Commentaries on the Conflict of Laws, 8th ed., Boston, 1883, pp. 8-9, 21-24; J. W. Salmond, Jurisprudence; 2nd ed., London, 1907; p. 99; Justice O. W. Holmes, in American Banana Co. vs. United Fruit Co., 213 U. S. 347 (1909); W. E. Hall, International Law, 4th ed., London, 1895, pp. 20-21, 45-46. J. E. Feraud-Giraud, Etats et Souverains devant les tribunaux étrangers, Paris, 1895, 1;31-36 discusses the necessary exemption of states from foreign jurisdiction.

These conditions are in fact imaginary. They could in completeness be realized only if all states were as isolated as the planets. This not being true, they are subject to numerous exceptions, necessitated by the inevitable peaceful intercourse of states and their subjects, and the necessary concurrent extension of authority by all states over the high seas, which are within the territory of no state, and which by physical facts can not be so appropriated. States better than human individuals accord with Herbert Spencer's theory of liberty, but even in their case we must modify this absolute right of liberty by the proviso that a like liberty be accorded to others.

It is the determination of these exceptions to the ideal condition of absolute territorial independence which forms the body of the law of peace. Were there no exceptions, obviously there would be no more need for law regulating relations between states than there is for law regulating relations between the inhabitants of the earth and the inhabitants of Mars. Consisting of rules governing exceptions to the general rule, the law is ordinarily expressed in terms of rights. Thus we speak of the state's right to a limited jurisdiction over its subjects abroad, and over its merchant vessels on the high seas, and its exclusive right of jurisdiction over its ambassadors, public vessels and armed. forces abroad. We propose, however, to look at the matter from the reverse side of duties. We are not interested in the laws of the United States providing for the exercise of rights as such ; but as they indicate the limits of these rights, and imply an obligation of the United States not to exceed them.

The obligations of states under international law may be classified under five heads: (1) abstention, (2) acquiescence, (3) prevention, (4) vindication, (5) reparation. A state is under the obligation to abstain, with a few exceptions, from the exercise of authority outside of its territory, to acquiesce in the exercise, within its territory, of authority by foreign states in a few cases, to prevent its citizens and public officers from doing acts injurious to foreign states and their subjects, to vindicate its sovereignty and position in the family of nations by treating violations of international law by foreign persons or officers in a manner prescribed by international law, and to make reparation for breaches of international law by its citizens or public officers.

2Herbert Spencer, Social Statics, together with Man versus the State, New York, 1910, p. 36.