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6. The history of the wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations, may conclude this enumeration of the sources of international law.
sioned by their negotiations with foreign powers from the commencement of the Revolution to the present time. The opinions of the Attorneys-General, given on the application of the President, or of one of the Heads of Department, from 1789 to 1851, and which embrace numerous cases arising under the law of nations, have likewise been published. They comprise 5 vols. 8vo. Washington, 1852.]
NATIONS AND SOVEREIGN STATES.
THE peculiar subjects of international law are Nations, 1. Suband those political societies of men called States.
jects of international law.
nition of a
Cicero, and, after him, the modern public jurists, § 2. Defidefine a State to be, a body politic, or society of men, State. united together for the purpose of promoting their mutual safety and advantage by their combined strength.'
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
1 "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, Prélim. § 1, et liv. 1, ch. 1, § 1. Burlamaqui, Droit naturel, tome ii. part 1, ch. 4.
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.1
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 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.
§3. Sovereign princes the
Sovereign princes may become the subjects of international law, in respect to their personal rights, or rights subjects of of property, growing out of their personal relations 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.
4. Individuals, or
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 their internation- international relations with foreign sovereigns and states, or their subjects and citizens. These relations give rise to that branch of the science which treats of what has
1***“nec cœtus piratarum aut latronum civitas est, etiam si fortè æqualita tem quandam inter se servent, sine quâ 'nullus cœtus posset consistere." Grotius, de Jur. Bel. ac Pac. lib. iii. cap. iii. § ii. No. 1.
been termed private international law, and especially of the conflict between the municipal laws of different States.
cally for the
But the peculiar objects of international law, are The terms those direct relations which exist between nations and sovereign states. Wherever, indeed, the absolute or unlimited used symonarchical form of government prevails in any State, ly, or the the person of the prince is necessarily identified with metaphorithe State itself: l'Etat c'est moi. Hence the public latter. jurists frequently use 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.
Sovereignty is the supreme power by which any § 5. SoveState is governed. This supreme power may be fined." reignty de
exercised either internally or externally.
Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its muni- sovereignty. cipal constitution or fundamental laws. This is the object of what has been called internal public law, droit public interne, but which may more properly be termed constitutional law.
External sovereignty consists in the independence of one political society, in respect to all other political sovereignty. 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.
§ 6. Sove
Sovereignty is acquired by a State, either at the reignty, how origin of the civil society of which it is composed, or acquired. when it separates itself from the community of which it previously formed a part, and on which it was dependent.1
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 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.2
The external sovereignty of any State, on the other hand, may
1 Kluber, Droit des Gens moderne de l'Europe, § 23.
2 Cranch's Rep. vol. iv. p. 212.- M'Ilvaine v. Coxe's lessee.