are passed or changed, or as speculations for the future, around which interests and passions are not formed. As an offset to this, it is to be remembered, that the commentator will often be a man of books and speculations, rather than of affairs; and that the judicial habit of determining actual controversies, in full view of both their nature and consequences, is most likely to evoke such rules of law as will be able to hold their place among the interests, policies, passions, and neces8.ties of life.

Attempts to deduce international law from a theory that each individual is by nature independent, and has, by an implied contract, surrendered some of his natural rights and assumed some artificial obligations, for the purpose of establishing society for the common advantage; and that each State is, in like manner, independent, and has made like concessions for a like purpose of international advantages, — such attempts fall with the theories on which they rested. As no such state of things ever existed, and no such arrangements or compacts have ever been made, it is safer to draw principles of law from what is actual. Later writers, since philosophy has dropped the theory of the social compact, go upon the assumption that men and communities are by nature what they have always been found to be; that the rights and duties of each man are by Divine ordination, originally and necessarily, those at cace of an individual and a member of society; and that the rights and duties of a State are, in like manner, those at once of an individual State and one among a number of States; and that neither class of these rights or duties is artificial, voluntary, or secondary.

In considering, therefore, whether a certain rule should or should not be adopted, the test is not its capacity to be carried through a circuitous and artificial course, beginning in a supposed natural independence of the human being, and ending in an ther supposed entity compounded of all civilized States; but various elements ester into the solution of international questions, and in various degrees, as fitness to conduce to the highest and most permanent interests of nations as a whole, of nat ns taken separately, differing as nations do in power and pursuits and interests, and of the human beings that compose those societies. If the question involves high ethis, it must be met in the faith that the highest justice is the best interest of all. If it be a question chiefly of national advantage, and of means to an admitted end, it must be met by corresponding methods of reasoning.] — D.

CHAPTER II.

NATIONS AND SOVEREIGN STATES.

internation

§16. THE peculiar subjects of international law are Subjects of Nations, and those political societies of men called al law. States.

§17. Cicero, and, after him, the modern public jurists, Definition define a State to be a body political, or society of men,

of a State.

united together for the purpose of promoting their mutual safety and advantage by their combined strength. (a)

This definition cannot be admitted as entirely accurate and complete, unless it be understood with the following limitations: —

1. It must be considered as excluding corporations, public or private, created by the State itself, under whose authority they exist, whatever may be the purposes for which the individuals, composing such bodies politic, may be associated.

Thus the great association of British merchants incorporated, first, by the crown, and afterwards by Parliament, for the purpose of carrying on trade to the East Indies, could not be considered as a State, even whilst it exercised the sovereign powers of war and peace in that quarter of the globe, without the direct control of the crown, and still less can it be so considered since it has been subjected to that control. Those powers are exercised by the East India Company in subordination to the supreme power of the British empire, the external sovereignty of which is represented by the company towards the native princes and people, whilst the British government itself represents the company towards other foreign sovereigns and States.

2. Nor can the denomination of a State be properly applied to voluntary associations of robbers or pirates, the outlaws of other societies, although they may be united together for the purpose of promoting their own mutual safety and advantage. (b)

3. A State is also distinguishable from an unsettled horde of wandering savages not yet formed into a civil society. The legal idea of a State necessarily implies that of the habitual obedience of its members to those persons in whom the superiority is vested, and of a fixed abode, and definite territory belonging to the people by whom it is occupied.

4. A State is also distinguishable from a Nation, since the former may be composed of different races of men, all subject to

(a) "Respublica est cœtus multitudinis, juris consensu et utilitatis communione societas." Cic. de Rep. 1. i. § 25.

"Potestas civilis est, qui civitati præest. Est autem civitas cœtus perfectus liberorum hominum, juris fruendi et communis utilitatis causâ sociatus." Grotius, de Jur. Bel. ac Pac. lib. i. cap. i. § xiv. No. 2. Vattel, Prelim. § 1, et liv. 1, ch. 1, § 1. Burlamaqui, Droit Naturel, tom. ii. part 1, ch. 4.

(b) . . . "nec cœtus piratarum aut latronum civitas est, etiam si fortè æqualitatem quandam inter se servent, sine quâ nullus cœtus posset consistere." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. iii. § ii. No. 1.

the same supreme authority. Thus the Austrian, Prussian, and Ottoman empires, are each composed of a variety of nations and people. So, also, the same nation or people may be subject to several States, as is the case with the Poles, subject to the dominion of Austria, Prussia, and Russia, respectively. § 18. Sovereign princes may become the subjects of international law, in respect to their personal right, or rights of property, growing out of their personal relations al law. with States foreign to those over whom they rule, or with the sovereigns or citizens of those foreign States. These relations give rise to that branch of the science which treats of the rights of sovereigns in this respect.12

Sovereign subjects of

princes the

internation

Individu

als, or cor

porations,

of interna

§ 19. Private individuals, or public and private corporations may, in like manner, incidentally, become the subjects of this law in regard to rights growing out of the subjects their international relations with foreign sovereigns and tional law. states, or their subjects and citizens. These relations give rise to that branch of the science which treats of what has been termed private international law, and especially of the conflict between the municipal laws of different States.13

sovereign

nonymous

former used

But the peculiar objects of international law are those The terms direct relations which exist between nations and states. and State Wherever, indeed, the absolute or unlimited monarchical used syform of government prevails in any State, the person of ly, or the the prince is necessarily identified with the State itself: metaphoriEtat c'est moi. Hence the public jurists frequently use latter. the terms sovereign and State as synonymous. So also the term sovereign is sometimes used in a metaphorical sense merely to denote a State, whatever may be the form of its government, whether monarchical, or republican, or mixed.

cally for the

§ 20. Sovereignty is the supreme power by which any SovereignState is governed. This supreme power may be exer- ty defined. cised either internally or externally.

Internal sovereignty is that which is inherent in the Internal people of any State, or vested in its ruler, by its muni- sovereignty. cipal constitution or fundamental laws. This is the object of what

[ On the conflicting rights and duties of a person who is a sovereign over one State, and a subject in another, see Heffter, § 52.] — D.

On this branch of Law, see Story's Conflict of Laws; Westlake's Private International Law; Burge's Commentaries; Folix's Traitè du Droit International Prive; Savigny's System des Romischen Rechtes, vol. viii. (translated into French by

has been called internal public law, droit public interne, but which may more properly be termed constitutional law.

External External sovereignty consists in the independence of sovereignty. one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law.

The recognition of any State by other States, and its admission into the general society of nations, may depend, or may be made to depend, at the will of those other States, upon its internal constitution or form of government, or the choice it may make of its rulers. But whatever be its internal constitution, or form of government, or whoever may be its rulers, or even if it be distracted with anarchy, through a violent contest for the government between different parties among the people, the State still subsists in contemplation of law, until its sovereignty is completely extinguished by the final dissolution of the social tie, or by some other cause which puts an end to the being of the State.

quired.

Sovereign- $ 21. Sovereignty is acquired by a State, either at the ty, how ac- origin of the civil society of which it is composed, or when it separates itself from the community of which it previously formed a part, and on which it was dependent. (a)

This principle applies as well to internal as to external sovereignty. But an important distinction is to be noticed, in this respect, between these two species of sovereignty. The internal sovereignty of a State does not, in any degree, depend upon its recognition by other States. A new State, springing into existence, does not require the recognition of other States to confirm its internal sovereignty. The existence of the State de facto is sufficient, in this respect, to establish its sovereignty de jure. It is a State because it exists.

Thus the internal sovereignty of the United States of America was complete from the time they declared themselves "free, sovereign, and independent States," on the 4th of July, 1776. It Guenoux, as Traité de Droit Romaine); Walker's Introd. to American Law, edit. 2, $47, &c.; and, for the general literature of this subject, see Mohl's Geschichte und Latur der Staatswissenschaften, i. 441, &c.

Kluber, Droit des Gens Moderne de l'Europe, § 23.

was upon this principle that the Supreme Court determined, in 1808, that the several States composing the Union, so far as regards their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and that they did not derive them from concessions made by the British king. The treaty of peace of 1782 contained a recognition of their independence, not a grant of it. From hence it resulted, that the laws of the several State governments were, from the date of the declaration of independence, the laws of sovereign States, and as such were obligatory upon the people of such State from the time they were enacted. It was added, however, that the court did not mean to intimate the opinion, that even the law of any State of the Union, whose constitution of government had been recognized prior to the 4th of July, 1776, and which law had been enacted prior to that period, would not have been equally obligatory. (b) 14

The external sovereignty of any State, on the other hand, may rerequire recognition by other States in order to render it perfect and complete. So long, indeed, as the new State confines its action to its own citizens, and to the limits of its own territory, it may well dispense with such recognition. But if it desires to enter into that great society of nations, all the members of which recognize rights to which they are mutually entitled, and duties which they may be called upon reciprocally to fulfil, such recognition becomes essentially necessary to the complete participation of the new State in all the advantages of this society. Every other State is at liberty to grant, or refuse, this recognition, subject to the consequences of its own conduct in this respect; and until such recognition becomes universal on the part of the other States, the new State becomes entitled to the exercise of its external sovereignty as to those States only by whom that sovereignty has been recognized.

§ 2. The identity of a State consists in its having the Identity same origin or commencement of existence; and its dif- of a State. ference from all other States consists in its having a different origin or commencement of existence. A State, as to the individual members of which it is composed, is a fluctuating body; but in respect to the society, it is one and the same body, of which the existence is perpetually kept up by a constant succession of (b) Cranch's Rep. iv. 212, M'Ilvaine v. Coxe's Lessee. [Harcourt v. Gaillard, 12 Wheat. Rep. 527.]-D.