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CHAPTER II.

OF INDEPENDENT STATES AND THEIR TERRITORIES.

THE subject of international law has been defined to be the rights of independent states and their sovereigns. In this definition the word sovereign must be understood to comprise every form of sovereignty by which the will of a state is represented in its intercourse with foreign powers, whether it reside in one or more and be designated by the style of king, emperor, senate, or any other title (a). Subjectum commune civitatis est civitas: subjectum proprium est persona una pluresve, per cujusque gentis legibus ac moribus (6). Est populi liberi et regis, qui vere rex sit eadem ratio (c). Qui jus verum imperandi habet, sive is rex sit, sive senatus sive populus (d), idem jus eadem que ratio est procerum (e).

The rights of sovereignty are divided into those, which are internal and permanent, and those which are external and occasional (f).

Occasional rights of sovereignty consist of the employment of public ministers, and consuls: of the right of concluding treaties, of the right of reprisals, and the right of making war (g). The internal and permanent rights of sovereignty

(a) Vatt. i. 40.

(b) Grot. i. 7, iii.

(c) Grot. i. 3, xxi.

(d) Grot. i. 4, xviii.—xix. i. 3, viii. 6; Vatt. i. 57-ii. 38.

(e) Grot. i. 3, viii. 6.

(f) Heinecc. El. ii. 136, 137.

(g) Heinecc. El. ii. 137; Wicq. i. ss. ii. and iv. p. 86.

Civitates,

All inde

are those which an independent state exercises within its own territories. Every nation possessing territories, and subject only to its own laws, is an independent state (h). quæ sedem certam et ibi imperium habent (i). pendent states are equal in contemplation of law, and enjoy equal rights without regard to the extent of their territories, the form of their government, or the amount of their resources (j). Every state has the right to determine its own form of government (k), and to exercise all legislative, judicial, fiscal, and commercial; and in a word, all sovereign powers, civil, military, and ecclesiastical within its own territory (1). The territory of a state includes all rivers and parts of rivers, bays, ports, and harbours that are within it (m), and so much of the sea as is commanded by the coast (n). For the sea within gun-shot is no less under the control and in the possession of the state, than the adjoining land. The rule of law on this subject is, terræ dominium finitur, ubi finitur armorum vis: and since the introduction of fire-arms, that distance has usually been recognized to be about three miles from the shore. A question was raised as to the mouth of the Mississipi, what was to be deemed shore, as there are a number of little mud islands composed of earth and trees drifted down by the river, which form a kind of portico to the main land. It was contended that these were not to be considered as part of the territory of America, not being of consistency

(h) Grot. i. 1, xiv.—i. 3, vii.—ii. 9, iii.—iii. 3; Vat. i. 4.

(i) Bynk. Q. J. P. i. xvii.

(j) Vatt. Prel. 18, et seq.-ii. 7, 36, 38, 39, 47, 174; Huber de civ. i. 14, xiii.-i. 15, i.

(k) Grot. i. 3, viii. 2; Puff. vii. 4; Heinecc. El. ii. 115, et seq.; Vatt. i. 31, 34, 36, 37.

(1) Grot. i. 3, vi. 2; Puff. vii. 4; Vatt. i. 25, 27, 138, 146, 204, 205— 244, 245—ii. 54, 58, 59; Heinecc. El. ii. 131, 136, 168, 182, et seq.

(m) Grot. ii. 3, vii.—ii. 2, xii; Puff. iv. 5, viii., Vatt. i. 266, 290, 291. (n) Grot. ii. 3, xiii.; Bynk. D. M. 2, Q. J. P. i. viii.; Kent Comm. i. 29; Vatt. i. 289, 290; The Anna, 5 Rob. 385, (c).

enough to support life, and being uninhabited, and only resorted to for shooting and taking birds' nests. It was held that the right of dominion does not depend upon the texture of the soil, and that these islands were to be deemed appendant to the main land, and comprised with the bounds of the adjoining territories (o).

Provinces (p) and colonies however distant form part of the territory of the parent state (g). So of its ships on the high seas (r). The rights of sovereignty extend to all persons and things, not privileged, that are within the territory. They extend to all strangers resident therein; not only to those who are naturalized, and to those who are domiciled therein, having taken up their abode with the intention of permanent residence, but also to those whose residence is transitory (s). All strangers are under the protection of the sovereign while they are within his territories, and owe a temporary allegiance in return for that protection (t). Whether a natural subject can transfer his allegiance; in other words, whether a man can put off his native country and adopt another, is a question which depends upon the law of his native state (u). The allegiance of a native British subject is indelible (v). No allegiance is due from alien enemies detained as prisoners of war (w), nor from those, whom a sovereign detains by illegal violence, as in the case of Mary Queen of Scots; for he cannot found jurisdiction on his own wrong. But alien enemies may (0) The Anna, 5 Rob. 385, (c).

(p) Grot. i. 3, vii. 2; Heinecc. El. 1, 231.

(9) Vatt. i. 210; Puff. viii. 12, v.

(r) Vatt. i. 216.

(s) Grot. ii. 18, iv. 5; Bynk. D. M. 2 sub fine, F. L. ii. & iii. & xxiv. p. 183.

(t) Grot. ii. 2, v.—ii. 11, v.—ii. 18. iv. 5; Vatt. i. 230.-ii. 101, et seq.; Bynk. F. L. ii.; Ibid. iii. p. 150-xxiv. p. 183.

(u) Grot. ii. 5. xxiv.; Bynk. F. L. iii. p. 150; Q. J. P. xxv. 6; Vatt. iv. 112; Puff. viii. xi. 3.

(v) Fost. C. L. 7, 59, 183; Bla. Comm. i. 369.

(w) Fost. C. L. 188.

be entitled to the occasional protection of the Crown. Thus, although alien enemies are incapable of suing in British Courts (x), yet where such persons were employed to navigate a British vessel disguised as an enemy to a hostile port and back under the protection of a British license, it was held that they were entitled to sue for wages, and that the owner of the vessel was estopped from averring their hostile character (y). So, when alien enemies navigated an enemy's ship to a British port under the like protection (z). In such cases the hostile character is suspended for the purposes of the transaction by consent of the sovereign.

No allegiance is due from ambassadors to the sovereign of the country wherein they are sent to reside. The nature and extent of their privileges will be considered in a subsequent chapter.

Nor is allegiance due from an independent sovereign. The world being composed of distinct sovereignties possessing equal rights and equal independence, whose mutual benefit is promoted by intercourse with each other, and by a mutual interchange of good offices, which humanity dictates, and its wants require; all sovereigns have consented to a relaxation in practice, in cases under peculiar circumstances, of that absolute and complete jurisdiction within their respective territories, which sovereignty confers. This consent may in some instances be tested by common usage, and by common opinion growing out of that usage. A nation would justly be considered as violating its faith, although that faith might not be expressly plighted, which should suddenly and without previous notice, exercise its territorial powers in a manner not consonant to the usages and received obligations of the civilized world. This full and absolute territorial jurisdiction,

(x) Anthon v. Fisher, 1 Doug. 648, (n); Brandon v. Nesbitt, 6 T. R. 23; The Charlotte, 1 Dod. 212.

(y) The Frederick, 1 Dod. 266.

(z) Maria Theresa, 1 Dod. 303.

being alike the attribute of every sovereign, and being incapable of conferring extra-territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects. One sovereign being in no respect amenable to another, and being bound by obligations of the highest character not to degrade the dignity of his nation by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license; or in the confidence, that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse and an interchange of good offices with each other, has given rise to a class of cases, in which every sovereign is understood to wave the exercise of a part of that exclusive territorial jurisdiction which has been stated to be the attribute of every nation.

One of these is admitted to be the exemption of the person of a sovereign from arrest or detention within a foreign territory. If he enter that territory with the knowledge and license of its sovereign, that license, although containing no stipulation exempting his person from arrest, is universally understood to imply such stipulation. The whole civilized world has concurred in this construction, because a foreign sovereign is not understood as intending to subject himself to a jurisdiction incompatible with his dignity, and the dignity of his nation, and it is to avoid this subjection that the license has been obtained. The character to whom it is given, and the object for which it is granted, equally require that it should be construed to impart full security to the person who has obtained it. This security however need not be expressed, it is implied from the circumstances of the case. Should one sovereign enter the territories of another without his consent, express or implied, it would present a question which does not