Law Of Nations, according to Mr. Wheaton, "maybe defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations, with such modifications and deviations as may be established by general consent." International jurisprudence is a science of modern origin. In its present sense the law of nations was quite unknown to the two great states of antiquity. In Greece the amphictyonic council bore in some sort the character of an international tribunal, but it concerned itself chiefly with the internal affairs of the members of the league; the few relations which Greece maintained with foreign nations were defined by special compacts, and the general principles of right were rarely invoked in their adjustment. A nicer sense of international obligation was early evinced by the Roman state. The collegium fetialium is said to have been introduced among the religious orders of Rome by Numa Pompilius. It was the office of these fetiales not only to perform the ceremonies which attended a declaration of war, but also to arrange truces and to conclude peace.
They performed the sacrificial rites with which alliances and treaties were solemnized, were intrusted as the representatives of the state with their enforcement, and guarded the security of foreign ambassadors at Rome. Indeed, Nie-buhr expressly styles them "judges of international law." The rules of their procedure in these various functions constituted the jus fetiale; but though the order continued to exist until the time of the emperors, the fecial law had been in the insolence of conquest often disregarded, and with the world-wide extension of the empire it had necessarily fallen into disuse. The works of Cicero, Sallust, Livy, and other writers of the best age of Rome, do indeed contain allusions which imply a recognized law of nations; yet it is certain that the Roman law, as it existed at the dismemberment of the empire of the West, embodied no system of rules for governing the intercourse of states, or for deciding questions of right which might arise between them. - During the middle ages, the pope was often the judge and arbitrator in the affairs of nations. His authority reached its height when Alexander VI. presumed to parcel out the new world to Spanish and Portuguese princes.
The doctrines involved in the papal grant were supported by the jurists of Bologna, but their reasonableness was denied by a Dominican monk of the time, Franciscus a Victoria, professor in the university of Salamanca, who published in 1557 a collection of dissertations entitled Relectiones Theologicce. Of these the 5th, I)e Indis, contested the validity of the papal pretensions; and the 6th, I)e Jure Belli, discussed exclusively the law of war. These essays are perhaps the earliest works written in the spirit of the modern international jurisprudence. Grotius mentions them in his Prolegomena, but includes them among the productions which, "whether composed by theologians or doctors of law, had, in the discussion of the laws of war, alike mingled and confounded natural law, the divine law, the civil and the canon law, and the law of nations." In 1581 Balthasar Ayala composed a treatise De Jure ct Officiis Bellicis, which Hal-lam considers the first systematic one upon the practice of nations in the conduct of war. The honor of being the founder of the science of the law of nations has also been claimed for Albericus Gentilis, a native of Ancona. Genti-lis became professor of civil law at Oxford, and attained high rank as a civilian by his works upon the Roman jurisprudence.
As advocate of the Spanish embassy in the prize court at London, his attention was directed to questions of international rights; his most remarkable work upon topics of this nature was an essay upon the law of war. - In 1625 appeared at Paris the celebrated treatise Be Jure Belli et Pacis, by Hugo Grotius. " Grotius was," says Sir James Mackintosh, "without dispute, the first to give a new form to the law of nations, or rather to create a science of which only rude sketches and undigested materials were scattered over the writings of those who had gone before him." Hallam says that the publication of the book marks an epoch in the philosophical, and it may be said in the political history of Europe. It was very early translated into various European languages, and great jurists made it the subject of elaborate commentaries. In 1656 it was made the text of lectures on public law in the university of Tubingen, and in 1661 a professorship was created in Heidelberg for expounding the law of nature and of nations from the writings of its author. The treatise Be Jure Belli et Pacts is not limited to the law of war and of peace; it embraces also a view of the general principles which should govern the intercourse of nations.
In the Roman law, the phrase jus gentium was not always used in an exact and specific sense, but it generally signified what modern writers have called the natural law, viz., the principles of right which are dictated by reason, and are common to all men alike. The jus gentium might assume the form of positive enactments, and then it formed an element of the jus civile, or municipal law of the state; or, if regarded as the basis and rule of the dealings of states with each other, it signified what is now called international law, or jus inter gentes. It was the object of Grotius to show that nations are governed by a law distinct from the natural law, to wit, by a code or body of rules founded.indeed in the law of nature, but proceeding immediately from universal consent. "Those right deductions," he says, " which proceed from the principles of reason point to the law of nature, while those which proceed from common consent proceed from the law of nations." Pufendorf, who was invested with the professorship of public law at Heidelberg, rejected the distinction which Grotius had drawn between the law of nature and the law of nations; he denied that the latter was founded upon express consent, but considered it merely the law of nature applied to nations; he maintained, therefore, that the customs and usages which nations observe in war have no legal obligation in them, and consequently that, unless they are directly deduced from the law of nature, they may be rejected at pleasure.
Wolf, who represented rather the school of Grotius than that of Pufendorf, admitted with the latter and with Hobbes that, as aggregate bodies of individuals, nations must be in some degree subject to the law of nature, yet maintained that, in their collective capacity, nations acquire a new character and being, different from that of the individuals of whom they are composed; therefore, in its applications to societies of men, the law of nature must undergo some changes and modifications, and thus is derived the voluntary law of nations. Vattel, a disciple of Grotius, assents to this doctrine of the latter, and develops still further his conception of the law of nations. There is an internal, necessary law, he says, resting upon the natural law or dictates of conscience, and therefore immutable; and there is an external, conventional law, which admits deviations from the former, when these involve an invasion of perfect rights. Finally, according to Vattel, the voluntary law, founded on presumed consent, the conventional, framed by express consent, and the customary, proceeding from the tacit consent of nations, compose the positive international law. - The sources of international law are, according.to Grotius, natural law, divine law, customs, and special compacts: natura ipsa, leges divinae, mores, et pacta.
In the celebrated reply made by the British government in 1753 to a Prussian state paper, the law of nations is said to be founded upon justice, equity, convenience, and the reason of the thing, confirmed by long usage. The principle of national justice, founded upon the laws of morality, is, then, the basis of the positive law of nations, that is to say, of the treaties, conventions, and usages which compose it. It is the office of right reason to apply this natural law of equity to the circumstances of each case; and it is the art of applying this law", according to justice and guided by reason, which renders international jurisprudence a particular science. Treaties and usages offer evidence of the general consent of nations, and are important sources of the law. The customary law of nations is further expressed in manifestoes and declarations of war and in the decisions of prize courts. Finally, the concurrent testimony of the great writers upon the science, and the written opinions which official jurists give to their governments, are further evidence and depositories of the law of nations. - States are the proper and immediate subjects of this international law.
A state is defined by Phillimore as "a people permanently occupying a fixed territory, bound together by common laws, habits, and customs into one body politic, exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into international relations with other communities." The sovereignty of a state depends upon its existence de facto as a state; and until this is recognized by other nations, the state enjoys no share in international rights. When once, however, it is admitted into the society of sovereign states, it is the equal of each of these. States may combine and form a confederacy, in which each retains its independent power and sovereignty, or may form a federal government or composite state, which alone is the sovereign power. - It is the clear right of every sovereign state to maintain its political integrity in the society of nations. It may, therefore, justly assert its independence of and its equality with all other sovereign states, and by all the modes permitted in the practice of nations it may confirm its power and extend its domain, either by the acquisition of new territory, the extension of its commerce, or the development of its internal sources of wealth.
All these rights presuppose that of self-preservation. The state may, then, to this end, form alliances, provide land and sea forces, build fortifications, or employ any other usual means for its defence. With these measures other powers have no right to interfere, unless they assume an aggressive character, and seem to threaten the security of such states. Thus a sudden and extraordinary increase of armaments would furnish good reason for demanding an explanation of the object of such warlike preparations. Further, by virtue of its independence, every sovereign state may adopt whatever form of government and whatever political institutions it may prefer, free from the control of any foreign power. Still each state is to remember that all other sovereign states are its equals, and therefore that it may not, by any measures of its private legislation or policy, virtually invade the sovereignty of others. When in 1792 the French national convention declared that it would render aid to all nations that might wish to recover their liberty, and ordered the decree to be printed in all languages, Great Britain was regarded as justified by the law of nations in treating the resolution as a declaration of war against all nations. - Another clear right of every sovereign state is that of exclusive property in its territory, and therefore of complete inviolability.
This right is derived either from conquest or from occupancy, confirmed, as in the case of private individuals, by the right of prescription; or it may rest upon express treaty or conventions with foreign states. As against other powers, the right to territory is exclusive; in respect to its own subjects, the right is paramount, and constitutes what is called the state's right of eminent domain. Mere discovery by the subject of a nation does not give title to his sovereign, unless the sovereign commissioned him to this intent, or subsequently confirmed his claim of discovery by adopting it. Much too depends in respect to right of acquisition upon occupancy. Therefore, in the case of newly discovered lands, not only is some formal act usually considered necessary in taking possession, but the right will hardly be protected and confirmed without use and settlement of the territory. But how far the territorial sovereignty shall extend, even after a settlement, gives rise to very difficult questions of international law. These principles received very ample discussion in our conventions and treaties with Great Britain concerning the northwestern coasts and territory. - The state's exclusive jurisdiction extends of course over all rivers and lakes which are entirely enclosed within its boundaries.
But it is difficult to determine rights when a river forms the boundary between or flows through the territory of different states. When a river forms the limit of conterminous states, the presumption is that both of these have the right of navigation in the whole river, though, according to the Roman law, the middle line of the river forms the strict limit between the two. But in respect to rivers which at any part of their course lie within the territory of a single state, the strict rule is, that the right of navigation here, for those even who border upon it higher up in its course, is but an imperfect one, and the right of a passageway may be conceded or withheld as it may seem good to the state through whose domain the river flows. The strictness of this rule was insisted upon by Great Britain against our government in regard to the St. Lawrence. The United States claimed the right of navigation down the river to the ocean, in virtue of their proprietary right in the great lakes through which it passes. By the treaty of 1854 Great Britain conceded to this country the privilege of navigation, subject to revocation, but still, as it had always done,' denied our natural right to enjoy it.
But by the treaty of 1871 the river was made for ever "free and open for the purposes of commerce to the citizens of the United States, subject to any laws and regulations of Great Britain or of the Dominion of Canada not inconsistent with such privilege of free navigation." Over straits, or those narrow passages which communicate between two seas, a state may possess an exclusive control if both shores belong to her, and if the navigation of either sea to which they lead be subject to her exclusive power. Thus, while the Black sea belonged exclusively to Turkey, and the Bosporus and Dardanelles were both bordered by her territory, the jurisdiction over these was rightfully claimed by the Porte. But when the navigation of either of the seas is free, the right to control the straits must be modified by the necessities and rights of commerce. By the treaty of Paris of 1856 the Black sea was opened to the commerce of all nations, and the clause of that treaty excluding all ships of war was abrogated at the close of 1870. A state cannot be completely secure without extending its authority over some portion of the waters which wash its coasts.
By the general law of nations, which may however be modified by unquestioned usage or by special compacts, this authority reaches over a marine league, or the distance measured by a cannon shot from the shore at low tide. For the prevention of frauds upon the revenue laws in time of peace, or to prevent war ships of a belligerent power from cruising so near the coast as unfairly to menace homeward or outward bound ships, it is the practice of nations, certainly of Great Britain and the United States, to exercise jurisdiction for these purposes within four leagues from the coast. Over all bays and gulfs, and those parts of the sea which are included within lines drawn between headlands, the state has unquestioned right. The open ocean is the common territory of all nations. - Finally, it is an incident of sovereignty that the state may exercise exclusive jurisdiction over all persons within its limits, whether they be its own subjects or those of foreign states. It has an undoubted right to the service of its citizens, the right to forbid their departure (a power which is actively exercised by some European states), and the right to recall them from foreign countries. It may dismiss foreigners, or by an act of naturalization adopt them into its citizenship.
From the principle of exclusive sovereignty it also follows, that the laws of every state govern not only the persons who dwell in it, but control all property, real and personal, within the territory, and all acts done and contracts concluded there. The state concedes no proper force to foreign laws, yet upon the principle of reciprocity, complete or partial, or upon considerations of equity or international comity, they may be recognized and allowed their effect. It is plain that the tenure, the title, and the modes of conveyance of real property must be uniformly governed by the laws of the country where it is situated. Hence it is a rule of the English and American law that a deed or will executed in a foreign country, or in another state of the Union, must be executed with the formalities which are required in that state in which the land lies. On the European continent, however, a different rule is admitted, and a deed or will, properly executed where it is made, may dispose of real property lying in another jurisdiction, no matter what forms of execution may be demanded there. As to personal property, it is now the well settled rule of international jurisprudence, that the law of the owner's domicile must govern the succession to it wherever the property may be.
The municipal laws of states may sometimes have an extra-territorial effect, so far, for example, as to determine the civil and personal capacities of their citizens while residing in foreign countries, or in defining the obligations of contracts made within their territory, but sought to be enforced in foreign jurisdictions. But in neither case will the foreign state resign its control over property lying within its limits, or admit the operation of other laws than its own, when that would prejudice the rights or interests of its citizens, or in any degree infringe its own sovereign authority. The jurisdiction of a state extends also so far as to exempt its sovereign, or his ambassador, or his fleets and armies, from the operation of the laws of a country where they may be. The same exemption extends to its fleets and armies, when they are suffered to pass through a foreign state, and generally to its public ships. These exemptions rest on the promise implied in the comity of nations that no state will exercise its jurisdiction over that which most intimately affects the sovereignty of another. Special conventions may concede to consuls an authority over their countrymen in the foreign states in which they reside.
In Christian countries this authority is usually limited to such civil matters as those arising out of disputes between ship masters and seamen, and to the ministerial acts of attesting contracts and protests, and authenticating other mercantile instruments. In criminal affairs the consul's jurisdiction is limited to the infliction of fines, and in grave cases it is his duty to collect evidence, and send the accused to his own country for trial. In semi-civilized and barbarous countries our consuls often possess complete and exclusive jurisdiction over matters relating to their countrymen. - Except as it is modified by treaty, the judicial power of every state is coextensive with its territory. It reaches all offences committed against its laws, whether by its own subjects or by aliens, and whether within its landed domain or on board its ships, public or private, upon the high seas, or on its public ships in foreign ports. As to the return for trial and punishment of offenders who escape to a foreign jurisdiction, see Extradition. - Though sovereign states are equal, so far as essential rights are concerned, yet in respect to titles and similar distinctions, some of them may assert a preeminence over others.
Thus, in virtue of the "royal honors" which every empire and kingdom in Europe enjoys, these powers may claim certain exclusive privileges of a commercial nature, and take precedence of states which are inferior in dignity. To avoid contests or questions of superiority, the order of signature to public instruments has been often determined by lot, by the use of the alphabet, or by the alternate by which latter mode the representative of each government signs first in order the copy intended for his own government. - Every independent power possesses the right to send and to receive embassies. In monarchies the prerogative usually resides in the sovereign. In composite states, like the United States, it is generally reserved to the federal government, that is, to the supreme executive power. By grant from their respective governments, the right of embassy has been often exercised by the governors of great colonial states. Thus, the British governors general of India, the Spanish governors of the Philippines, and the Dutch governors of Java have possessed the right; so have the Dutch, French, and British East India companies.
A merely rebellious colony cannot assert a jus legationis; but when rebellion has grown to war, and rebels have become enemies, powerful enough to maintain their hostile and independent posture, then they become capable of new rights, including that of negotiation and therefore of embassy. Yet, as to indifferent states, the international position and right of the revolted colony depend on their recognition of it. The state which has the right to send embassies has also the right to receive them, though there is perhaps no perfect obligation in either case, under the positive law of nations. Phillimore says that a state is bound to give audience to an ambassador, and, except under extraordinary circumstances, to receive him for that purpose into its territory and at its court; though, he adds, it may make conditions as to the nationality of the minister, refusing, for example, to receive one of its own subjects. The privilege of continuous residence rests in comity, and is not matter of right. Public ministers are commonly divided into three classes. The first of these comprises ambassadors ordinary and extraordinary, as the mission is limited or indeterminate in point of time, and papal legates and nuncios, ordinary and extraordinary.
These all have the representative character, and are entitled to the same honors which the sovereign power would itself receive. Diplomatic agents of this rank can be sent only by crowned heads, the great republics, and other powers which enjoy royal honors. The second class includes envoys ordinary and extraordinary, ministers plenipotentiary, and internuncios of the pope. In the third class are ranked charges d'affaires accredited to ministers of foreign affairs, and consuls, such as those maintained in the Barbary states by the European powers, who bear credentials as public agents of their governments. Ministers resident accredited to the sovereign are sometimes ranked as a separate class between charges d'affaires and envoys and ministers plenipotentiary. The public character of an ambassador at a foreign court is recognized upon the production of his letters of credence. In the case of a charge d'affaires, these are addressed by one minister to another. In the case of ministers of all the higher ranks, they are addressed to the sovereign. The full power which authorizes the diplomatic agent to negotiate is in modern times given separately from the letter of credence.
During his residence the public minister is entitled to perfect inviolability, and to exemption from the local civil and criminal jurisdiction. This immunity extends also to the members of his household, whether they belong to his own family or to the diplomatic corps, and also to his house and personal property. A consul cannot claim these privileges of exemption which are accorded to public ministers. So far, indeed, as he is impressed with a public character his right extends; but ordinarily he is subject to the local tribunals, like any other resident foreigner. A minister's public mission is terminated by his recall, or by the decease or abdication of his own or of the sovereign to whom he is accredited; by his own declaration to this effect, when on account of any infraction of the law of nations he thinks it his right to do so; by his dismission from the court at which he is residing; or by the final accomplishment or failure of the object of his mission. - International rights are often defined by specific conventions. As in respect to embassies, so in regard to treaties, the power to make them resides generally in the supreme executive authority. But they will be exactly determined by the fundamental law of the state.
In virtue of their full powers, diplomatic agents may sign treaties, but generally these are not binding upon their governments until they are ratified by the supreme authority. Under the constitution of the United States treaties become obligatory only with the advice and consent of the senate. But once ratified in prescribed form, the treaty is binding upon the contracting states, no matter what legislative measures may be required in order to carry it into effect. The constitution gives to the president and senate the treaty-making power. Congress cannot defeat this provision by refusing to pass appropriation bills or other measures, when the engagements entered into are within the constitutional limits. This question has been much considered, especially in its bearing upon Jay's treaty of 1794, and the treaty for the acquisition of Alaska; and the power of congress to withhold laws required by treaties has been asserted in debate, but never finally insisted on. Treaties in the proper sense of the word, like those of alliance or amity, of commerce and navigation, exist only so long as the parties exist who made them. They expire, therefore, if either loses its sovereignty, or if circumstances change so much as to make the treaty utterlv foreign to the existing condition of things.
They may also be annulled by the outbreak of war, or expire by their express limitation. Treaties of alliance may be either offensive or defensive, as they engage to render aid, aggressively or defensively, against other powers. In the event of hostilities, the contracting powers become allies against the common enemy; but not so when a state contracts generally to furnish to another a certain definite succor by war supplies in case of war. Apart from its particular engagements, such a state is neutral. Guaranties are frequent forms of international compacts. Agreements to defend the particular constitution of a country against every aggression, or to secure the liberties of a single state during war between other powers, are instances of these obligations. - Sovereign states being equal, it follows that there can be no supreme tribunal of appeal. Except therefore by submission of their wrongs to arbitration, nations can have no redress for them except by resorting to force. When, then, differences have arisen, and they cannot be composed by negotiation or other peaceful means, the injured state may employ the forcible measures of retaliation, of reprisals, of embargo or the sequestration of the goods of the offending power, or, finally, of war.
Embargoes or sequestrations are often declared as preliminary measures to active hostilities. A declaration of war has a retroactive effect, and the property already seized is placed upon the same footing as that taken during the war.' Reprisals are general or special. They are general when a state authorizes its subjects to capture the goods and attack the subjects of the offending power, wherever they may be found. In the modern practice of nations, general reprisals are deemed synonymous with war, and are indeed the initiative step to hostilities. When wrong is done to particular individuals in time of peace, and justice is plainly refused or unreasonably withheld, letters of marque may be issued to the parties, or a public ship be commissioned to avenge their wrong. These are instances of special reprisals. The ownership of the property taken is acquired, so far as it is necessary to satisfy the debt, or otherwise compensate for the injury committed; the surplus must be restored to the government of the subject against whom the right has been exercised.
In modern times letters of reprisal are chiefly confined to goods, and would hardly be granted to a private individual during a general peace. - The precise extent of obligation resting upon a neutral nation to pass and enforce laws in order to prevent its territory being made use of in originating hostile measures against a power with which it is at peace, has never been fully determined. All authorities agree that the government must not aid or give countenance to such measures, but how active it is required to be in thwarting them, and how stringent and effectual its legislation should be to that end, in order to preserve its character as a neutral and friendly state, were the subject of very earnest discussion in the controversy between the United States and Great Britain preceding the treaty of Washington of 1871, and also at the Geneva conference held under its provisions. In that treaty the British government agreed to the following rules for the future, while not assenting to the claim of the government of the United States that they were in force before.
A neutral government is bound: 1, to use due diligence to prevent the fitting out, arming, or equipping within its jurisdiction of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use; 2, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men; 3, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. It is probably not too much to say that these rules are regarded by the best authorities of the present day as a correct statement of the duties of a neutral in the particulars covered by them. - An open contest between sovereign states is called a public war.
It may be general, extending to all persons and places in the two states, and is then called a perfect war; or it may be imperfect, as it is limited in these respects. Once it was considered necessary to declare Avar formally before proceeding to hostilities; now it is customary to declare simply that war exists. Forthwith, all enemy property is, by the law of war, subject to confiscation; thus, debts due from one state to the other may be sequestered, or property lying within the territory of either be seized as prize of war. But in the exercise of international comity these rights are not usually enforced. The obligation of debts is, as it were, suspended during war, but the right of recovery revives with the peace; and enemy's ships in port may be allowed to depart, and those on their voyage thither to enter, discharge their cargoes, and sail without molestation. All commerce between the subjects of belligerent states is interdicted by the laws of war; yet for good reasons either power may, by express license, permit a partial intercourse.
Very large indulgence was shown in this respect, and for the interests of commerce, by England in the last war with Russia. Provided only that British ships did not enter ports in possession of the enemy, the commerce with the enemy, though indirect, might still be carried on. The interdiction of intercourse between belligerents extends not only to commerce, but to every species of contract, such as insurance of enemies' property, the drawing of bills on subjects of the enemy, or the remission of funds to them by bills or money. So too partnerships existing between the subjects of hostile states are absolutely dissolved by a declaration of war. In the language of Lord Bacon, war is the highest trial of right. It has also been denned as an exercise of the international right of action. Its end and object is to compel justice from an enemy, and it must be prosecuted with steady regard to that end. All measures of force which must be employed to attain it are justifiable, but no others are permissible. Therefore wanton waste of the enemy's country, or wanton destruction of the property or lives of his subjects, are in the modern practice of nations unjustifiable and illegal.
Generally, all those who are engaged in the merely civil affairs of life are exempted from the direct effects of war, and only those who are expressly or impliedly authorized by the commands of the state to represent its sovereignty are ordinarily subjected to hostile attack. Property at sea, however, makes an exception to the usual indulgence shown to the goods of an enemy; for ships and their cargoes upon the ocean are liable without exception during war to seizure and confiscation, and even if captured by uncommissioned cruisers are condemned as good prize of war. The abolition of privateering was proposed to the United States by the governments represented in the congress of Paris in 1856; but the proposition was then declined, and when Mr. Seward in 1861 offered to assent, the offer was declined by Great Britain in view of the then existing circumstances. The validity of all claims of prize and capture is determined by the prize courts of the captor's country. These may sit either within their proper territory or in that of an ally, and exercise jurisdiction over captured property lying either in their own ports or in those of an ally or of a neutral.
They possess a jurisdiction, in respect to captures made by subjects of their sovereign, exclusive of the tribunals of all other nations, excepting only in cases when the capture was made upon the territory of a neutral, or by vessels fitted out within a neutral's limits. These cases involve an invasion of the neutral's sovereignty, and must be adjudicated in his court. The decisions of prize courts are final and conclusive upon rights of property involved; and if their judgments work injustice to the subjects of other powers, their claims to reimbursement must be adjusted between the sovereigns of their respective states. The demand for the surrender of Mason and Slidell, the confederate emissaries seized on board the Trent in 1861, was assented to by the United States government, because Capt. Wilkes had neglected to bring the Trent into port in order that the proper adjudication might be had to determine the lawfulness of the seizure. - Either for ordering the general conduct of war, or for lightening its rigors, belligerent states may enter into general or special conventions.
The former are often made at the beginning of the war, and lay down the rules to be mutually observed in the war, respecting the exchange and redemption of prisoners, concerning passports, safe-conducts, and similar matters, or agree to abstain from certain modes of warfare, or from levying contributions on invaded territory. Particular conventions are made during war, and concern either truces or partial suspensions of hostilities or capitulations, that is, surrenders of particular forces or places. The power to conclude a truce is generally implied in the official character of every high officer, like a general or admiral, but not the capacity to make a long or universal armistice; for that amounts to peace, which only a sovereign can make, and therefore it requires either the sovereign's previous special authority or his subsequent ratification. A truce is binding upon the two states whose officers conclude it, and they therefore are liable for every infraction of its terms, but not upon those to whom its existence has not been actually notified; and for the purpose of avoiding the mischiefs which may arise out of ignorance of the truce, it is usual to fix prospectively the time when it shall commence.
While the truce lasts all warlike acts and preparations must entirely cease, though it does not hinder acts which are allowable in time of peace. But at the place to which the cessation of hostilities particularly applies, a belligerent may not do what he would be allowed to do at a greater distance. That is to say, one party must not take advantage of the temporary peace to perfect its measures of attack or siege, nor may the other repair breaches in its works, or introduce succors or reinforcements, or indeed do anything which would have been impossible if active hostilities had continued. - No state is bound to take part in the wars in which other powers may be engaged. Yet, though the right to remain neutral be one of the clearest rights of its sovereignty, no independent state can retain the same complete independence which it enjoys in time of general peace. A state of war between some members of the society of nations imposes certain positive obligations and restrictions on all the rest.
Except when it is bound to do it by previous treaty stipulations, the neutral state may not render assistance to either belligerent party in the prosecution of war, that is, it must not furnish arms, troops, ammunition, or the like, to either side; and further, in matters which do not directly concern the war, it must not refuse to one belligerent that which it grants to the other. On the other hand, if the state observe strictly the con-ditions of neutrality, it is entitled to perfect inviolability of its territory, and in other respects to complete immunity from the effects of war. Whether the neutral's exemption can be claimed absolutely for its ships, so as to protect the enemy goods which they carry, has given rise to one of the most vexed questions in international law. It has never been doubted that the neutral's public ships are exempt from all intrusion, and therefore that they cannot be visited and searched for enemy property. In respect to private merchant ships, the practice of different nations has been widely diverse. By express conventions England has sometimes admitted the rule that "free ships make free goods," but, though admitting it again during the war with Russia, declared expressly that she only " waived " her right to seize enemy goods on board neutral vessels.
Especially in its treaties, the United States has advocated the adoption of the rule. By the declaration signed at the congress of Paris in 1856 by the representatives of the chief European powers, the principle that neutral ships may carry enemy goods has finally become established, it may be presumed, in the law of nations. The same declaration sanctions the rule that neutral property, except contraband, is not subject to capture though laden in enemy ships. General trade with belligerents is not interdicted by war. The single restriction imposed on commerce is, that it shall not supply either of the hostile parties with means for carrying on the war. A neutral must not carry goods contraband of war, nor bear despatches, nor transport troops to either of the powers at war. Contraband cannot be easily defined, though the proper criterion is, whether the goods be or not usus bel-licl; that is, whether the goods are peculiarly and specifically adapted to serve the uses of war. Contraband property is subject to confiscation by the captor. The strict construction of the principles of neutrality makes the carrying, perhaps even the selling of contraband property in the neutral's home ports, to be a violation of the neutral character.
The United States maintains the contrary doctrine, that both such sale and carriage are consistent with neutrality, though during the transit the goods may be rightfully seized and confiscated. Further, the neutral must not send his ships to blockaded ports, for this would be an intermeddling directly in the war measures of belligerents. But the law of blockade is so strict, that to subject a neutral to its operation, the blockade must exist in point of fact; that is to say, there must be a squadron present, and strong enough to constitute an actual blockade of the port; the neutral must have had due notice of its existence, and must have been guilty of some clear act of violation, either by going in or coming out with a cargo laden after the commencement of blockade. Finally, the neutral must be ready to prove himself that which he professes to be, and his ships must therefore be subject to the exercise of the belligerent right of visitation and search. - When the objects of war are accomplished, peace must be reestablished.
Generally this takes place upon the conclusion of a formal treaty of peace between the belligerent states.
The power of making a peace is determined by the fundamental law of every state. Under our constitution the assent of the two houses of congress is essential to a declaration of war; but the president, with the consent of two thirds of the senate, may agree upon a peace. A treaty of peace takes effect from the day when it is ratified. Every act of force or violence subsequent to that is unlawful. Yet the party who is guilty of it is not criminally guilty if he had no notice of the peace; and in the case of a capture under such circumstances, the captor's sovereign is bound to effect restitution of the property. So when a period has been fixed for the cessation of hostilities at a specified locality, and before the period has arrived, but with a knowledge of the peace, a capture has been made, the capture is void. The treaty puts an end to the war, and puts at rest for ever the debated matters which were its cause. It leaves everything in the state in which it finds it. Conquered lands and fortresses remain with the conqueror, unless otherwise stipulated. Generally, things which by the treaty are to be restored must be restored in the condition in which they were taken.
Thus if a conqueror has rebuilt a town or fortress, and made it what it was before the siege, he should restore it in that condition; but any new works which he has added he may destroy. The particular peace restored by treaty may be broken by omitting to fulfil its stipulations, or by doing some act which contravenes them. The violation of one article is a breaking of the whole treaty, and ends the peace. - The settlement of international disputes by arbitration, or by the establishment of a special international court for the controversy, has been often resorted to; and in the conspicuous instance of the Alabama claims, that method of arrangement was brought more particularly to the favorable consideration of the civilized world than ever before. There are not wanting those who believe it destined rapidly to supersede the resort to arms, and those who do not share this expectation have reason to believe that the terrible arbitrament of war will be often averted by an agreement upon such courts. - See "Elements of International Law," by Henry Wheaton, and particularly the recent editions by William Beach Lawrence (2d ed., Boston, 1863) and Richard H. Dana (8th ed., Boston, 1866); "Commentaries upon International Law," by Robert Phillimore, M. P. (4 vols., London, 1854-'61); "Lectures on International Law," by Travers Twiss, D. C. L. (London, 1856); " Introduction to the Study of International Law," by Theodore Dwight Woolsey (Boston, 1860; 4th ed., revised and enlarged, New York, 1874); " International Law, or the Rules regulating the Intercourse of States in Peace and War," by Maj. Gen. H. W. Halleck, U. S. A. (New York, 1861; Philadel-phia, 1866); and numerous foreign authorities referred to in these.
Some initiatory steps have recently been made looking to an authoritative codification of international law, but they have reached as yet no important result. Dr. Bluntschli of Heidelberg has published a work upon the subject; and Mr. David Dudley Field published "Outlines of an International Code " (New York, 1872). - There is another branch of the law of nations, commonly designated private international law, which supplies the rules under which the ordinary courts of justice determine the rights of private parties, where they arise wholly or in part in a foreign jurisdiction. These rules have been treated elaborately by Judge Story in his " Conflict of Laws" (6th ed., revised and enlarged, edited by I. F. Redfield, Boston, 1865), and recently by Mr. Francis Wharton under the same title (Philadelphia, 1872). A treatise by F. K. Savigny on the same subject has been translated into English (London, 1869). Instead of considering them separately here, we refer to them, in their application to contracts, marriage, and other subjects, under the proper titles. (See also Lex Loci.)
See Law of Nations.