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In every branch of knowledge, the history of the branco s an important auxiliary to its scientific treat

History of intern

ance.

ment. From the changes and improvements law; its import in the law of nations, it is evident that the istory of this science both the history of opinion and of practice, is deserving of especial attention. It is a leading chapter in the history of civilization. It furnishes valuable hints for the future. Notwithstanding its dark pas sages, it is calculated to animate the friends of justice and hu manity. It explains the present state of the science and indi cates the obstacles which have retarded its advance. Hence the value of such works as Laurent's "Histoire du Droit des Gens," which in three volumes embraces the East and the classical nations of antiquity, Ward's "Enquiry," embracing the period from the time of the Greeks and Romans to the age of Grotius, and Wheaton's history, which in a sense continues Ward's work down to the peace of Washington in 1842, is surpassed by that of few systematic treatises. Histories of treaties also are of great importance, as aids in understand ing the treaties themselves, which are a principal source of international law.

It will be one of our primary aims in this work, as far as our narrow limits permit, to append historical illustrations to the leading titles, in the hope of exhibiting the progressive character of the science, and of conferring a benefit on the student of history. It ought however to be remarked that historical precedents must be used with caution. History tells of crimes against the law of nations, as well as of its construction and its observance, of old usages or principles given up and new ones adopted. There is no value in the mere historical facts, apart from the reasons or pretexts for them, and from their bearings on the spread of justice and the sense of human brotherhood in the world.

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A method which aims to be practically useful in interMethod pursued national law, must take notice of the great imin this work. portance which questions pertaining to a state of war have in that science. In both peace and war the essent.. qualities of states, their sovereignty and the like-must be exercised; but war suspends the operations of certain rights, and calls into activity certain others. Then again, in peace every state sustains a similar relation towards every other; but in war a belligerent state has one relation to its enemy, and another to all states besides; or, in other words, the rights and obligations of non-belligerents or neutrals now begin to exist. We have, then, the general faculties or powers of states, their relations of peace, and their relations in or owing to war. In the method here pursued, these general faculties or essential powers of states, instead of forming a distinct division by themselves, constitute together with the rights and moral claims, the obligations and duties, which have their operation especially in a state of peace, the first part of the science. Then follows the second part, having to do with a state of war. Our first part consists of the following chapters: the first treating of the rights and obligations of states as independent sovereignties; the second, of the right of property, and rights over territory belonging to states; the third, of the rights and duties of intercourse between nations, with the relations of foreigners within the territory to the state; the fourth, of the forms and agents of intercourse between the states themselves; the fifth, of the right of contract, or of treaties. The second part, treating of the relations in a state of war, consists of two principal chapters, in the first of which the state of war, affecting the belligerents themselves is considered; and in the second, the state of war as bearing on the rights and obliga tions of neutrals.

as

PART I.

THE ESSENTIAL POWERS OF STATES, AND THEIR RIGHTS AND OBLIGATIONS ESPECIALLY IN A STATE OF PEACE.

CHAPTER I.

RIGHTS OF STATES AS INDEPENDENT

SOVEREIGNTIES.-CORRESPONDING

OBLIGATION OF NON-INTERFERENCE AND EXCEPTIONS TO IT CLAIMED OR ADMITTED IN THE PRACTICE OF NATIONS.

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A STATE is a community of persons living within certain limits of territory, under a permanent organiza

A state what?

tion, which aims to secure the prevalence of justice by self-imposed law. The organ of the state by which its relations with other states are managed is the government.

A body of pirates may be organized under law, but is no state, being associated for temporary purposes,

Pirates no state.

and designing to act unjustly by its very existence. A state might arise out of a nest of pirates, but would not begin to be a state until it laid aside its piratical character. Thus it has been doubted whether the Barbary powers were anything more than associations of pirates. But having grown in the course of time more just and civilized, they are now taken into the community of nations. Those pirates of Cilicia and Isauria, on the other hand, whose powerful confederacy Pompey broke up, clearly formed no state, their settlements being strongholds contrived to secure their families and their plunder.

* Comp. Bynkershoek Quæst. juris publici, I. § 17.

butes or rights of a state.

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From the nature and destination of a state, it must in a Essential attri- sense be as truly separate from the rest of the world, as if it were the only state in existence. It must have an exclusive right to impose laws within its own territory, the sole regulation in general of its subjects, the sole determining power in regard to the forms of its organization. No reason can be assigned why in a group of states one should have a right to interfere in the legislation or administration of the rest, which would not give each of them the same right in turn. Nor can any reason be found why one state ought to have more rights or different rights than any other. We find it necessary for the conception of states, and for their occupy ing the sphere which the Author of society has marked out for them, to predicate of them sovereignty, independence, and the equality of each with the rest. And these its attributes or rights each has a right to preserve; in other words, to maintain its state existence. These three attributes cannot exist apart, and perhaps the single conception of sovereignty, or of self-protection, may include them all. (§ 17.)

By sovereignty we intend the uncontrolled exclusive exer cise of the powers of the state; that is, both of the power of entering into relations with other states, and of the power of governing its own subjects. This power is supreme within a certain territory, and supreme over its own subjects wherever no other sovereignty has jurisdiction.

By independence we intend to set forth the negative side of sovereignty, that is, to deny that any other state has any right to interfere with the exercise of a state's rights and soyereign powers. Thus a state may make treaties, political or commercial, or may make war, or change its laws, executive officers, or form of government, or by a just policy add to its rescurces, so as to become richer and stronger than other states, or plant colonies or acquire territory, or become consolidated with other states, while no other state shall have any just cause to impede or interfere with its unfettered action.

By equality is not meant equality of honor or respect, or

equality of rank according to the etiquette of courts, or the right to have the same commercial or political privileges which have been granted to other states, but simply equality of stats rights, that is, an equal degree of sovereignty and the possession of all the same rights which other states exercise. This is, perhaps, simply the exhibition of the quality of state sovereignty in a different light. States which are truly sovereign are necessarily equal in rights, since the quality of full sover eignty has no degrees, and the state, as such, has certain rights from its very existence.

It is scarcely necessary to add, that difference of size or of power neither adds to or subtracts from the sovereignty of a state, nor affects its rights in any particular.

A state, however, may, by its free act, surrender a part of these rights, or it may give up its existence and These attributes become merged in another organization. The may be laid aside partial surrender occurs sometimes in confedera- part

in whole or in

tions. The states composing such confederation by confederated, may come together on a variety of conditions, most of which imply a surrender of sovereignty and independence in some degree, and therefore the discontinuance of their existence as states, in the highest sense of the word. Some leagues take away from their members the right of separate peace and war, and perhaps add to this a central board for the adjustment of disputes. Others aim at a closer bond between their members, and confer all power, in foreign relations, as well as various other prerogatives, upon a central legislature and administration created by the league. Others, again, aim to secure a very loose kind of union,-one which allows its members to make political leagues with foreign states, and to make war and peace separately, but has a common head and a court for the settlement of certain disputed claims. On types like these respectively the Achæan League, our Union, and the German Confederation in its more modern form, have been constructed. A state which is under the protection of another may be sovereign in some respects, but not absolutely sovereign. Such was the republic of Cracow, while it

or by protected states.