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, or to become practically important. 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 as affecting the belligerents themselves is considered; and in the second, the state of war as bearing on the rights and obligations of neutrals.

3

PART I.

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

CHAPTER I.

COR

RIGHTS OF STATES AS INDEPENDENT SOVEREIGNTIES. RESPONDING OBLIGATION OF NON-INTERFERENCE AND EXCEPTIONS TO IT CLAIMED OR ADMITTED IN THE PRACTICE

OF NATIONS.

A state what?

Pirates no state.

$ 36.

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

1 Comp. Bynkershoek, Quæst. Juris Publici, i., § 17.

§ 37.

Essential at

tributes or rights of a

state.

From the nature and destination of a state, it must in a 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 occupying 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 exercise 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 sovereign 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 resources 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 state 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 sovereignty 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 nor subtracts from the sovereignty of a state, nor affects its rights in any particular.

These attributes may

in part by

confederated

A state, however, may, by its free act, surrender a part of these rights, or it may give up its existence and bebe laid aside come merged in another organization. The partial in whole or surrender occurs sometimes in confederations. The states composing such confederation 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 lasted; such were lately the Ionian Islands, under English protection; or by proMoldavia and Wallachia under that of Turkey, with tected states. the guaranty of the great European powers; Servia and Egypt under Turkey, with a different dependence; Monaco under Sardinia.1

national law

what?

For the purposes of international law that state only can be regarded as sovereign which has retained its power Sovereignty to enter into all relations with foreign states, what- in inter ever limitations it may impose on itself in other respects. Thus the states of this Union' in the view of our science are not sovereign, for they cannot exercise the treaty-making power, nor that of making war and peace, nor that of sending ambassadors to foreign courts. They can only exercise towards foreign nations those private rights which may pertain to any individual or association. It is to be observed, however, that between states of qualified sovereignty the law of nations has application, so far forth as it is not shut out by restrictions upon their power.

In a state which is formed by a union of states, there is no doubt that the central government is responsible for the acts of bodies which have no existence in the view of international law. There is a weak point in our Constitution in this respect, for the responsibility must be borne by the central government, but the evil cannot always be abated. (Comp. Phillimore, 2d ed., i., 162, § 130.) 2

§ 38.

A state is a moral person, capable of obligations as well as rights. These relations continue after it has passed through a change of constitution, for notwithstanding the change the

1 Comp. Wheaton, Elements, i., 2, pp. 70, 71.

2 McLeod, a British captain, concerned in the capture of the Caroline (see § 174), was taken in the State of New York, and tried for murder. Great Britain assumed the responsibility for his acts and demanded him. Our government saw the justice of this, but could not force New York to give him up. Congress passed a law after this giving the Courts of the United States jurisdiction, where a foreign government assumes the responsibility of a crime. (U. S. Stat., v., 539.) T. S.