PART THE THIRD.

CHAPTER I.

OBJECTS OF INTERNATIONAL LAW.

CXXXVIII. THE Sources and the Subjects of International Law having been stated, it remains to consider the Objects of this system of jurisprudence; that is, the Rights which are to be ascertained, protected, and enforced by this law (a).

CXXXIX. These rights flow as moral and logical consequences from the positions laid down in the first chapter with regard to the Individuality and Intercommunion of States, and from the definition of a State in the second chapter. Some of these rights concern more immediately the internal and domestic, others the external and foreign, condition of a State. Moreover, the rights of nations, like the rights of individuals, admit of a general division into rights which relate to persons, to things, and to the mode of their enforcement.

CXL. These are rights properly so called-rights stricti juris; but the constant intercourse and increasing civilization of nations has given rise to a usage and practice which greatly mitigates the severity with which these rights,

(a) "Jus gentium est sedium occupatio, ædificatio, munitio, bella, captivitates, servitutes, postliminia, foedera, paces, induciæ, legatorum non violandorum religio, connubia inter alienigenas prohibita. Hoc inde jus gentium appellatur, quia eo jure omnes fere gentes utuntur." -Decret. i. Dist. i. c. ix.

abstractedly considered, might be exercised, both with respect to the foreign community, in its aggregate capacity, and with respect to the persons of the individual members belonging to it. This usage is called comitas gentium-the comity of nations-droit de convenance.

CXLI. With regard to the intercourse of individual members of different States, this COMITY has been suffered to grow up into what may be termed a jus gentium privatum ; and which requires, on account of its magnitude and importance, a separate and distinct notice in another part of this work.

CXLII. With regard to a State in its aggregate capacity, questions of Comity, being much fewer in kind, and rarer in occurrence, may be conveniently mentioned and distinguished in the general treatment of rights properly so called.

CXLIII. But with regard to both, the fundamental distinction between the usage of comity and the right stricti juris must never be forgotten (b).

(b) "Non minus sollicitè separavimus ea quæ juris sunt, strictè ac propriè dicti, unde restitutionis obligatio oritur, et ea quæ juris esse dicuntur, quia aliter agere cum alio aliquo rectæ rationis dictato pugnat." -Grot. Proleg. s. 41.

In the case of the Maria, Lord Stowell observes (speaking of Art. 12 of the Order of Council, 1664, which directs, "That when any ship, met withal by the Royal Navy or other ship commissionated, shall fight or make resist, the said ship and goods shall be adjudged lawful prize"): "I am aware that in those orders and proclamations are to be found some articles not very consistent with the law of nations as understood now, or indeed at that time, for they are expressly censured by Lord Clarendon. But the article I refer to is not of those he reprehends; and it is observable that Sir Robert Wiseman, then the King's Advocate-General, who reported upon the Articles in 1673, and expresses a disapprobation of some of them as harsh and novel, does not mark this article with any observation of censure. I am therefore warranted in saying that it was the rule, and the undisputed rule, of the British Admiralty. I will not say that that rule may not have been broken in upon in some instances by considerations of comity or of policy, by which it may be fit that the administration of this species of law should be tempered in the hands of those tribunals which have a right to entertain and apply them; for no man can deny that a State may recede from its extreme rights, and that its supreme

The violation of rights stricti juris may be redressed by forcible means, by the operation of war, which in the community of nations answers to the act of the Judicial and Executive Power in the community of individuals. But the departure from the usage of Comity cannot be legally redressed by such means. The remedy, where expostulation has failed, must be a corresponding reciprocity of practice on the part of the nations whose subjects are so treated. "Illud quoque sciendum est," observes Grotius; "si quis quid debet, non ex justitia propria, sed ex virtute alia, puta liberalitate, gratia, misericordia, dilectione, id sicut "in foro exigi non potest, ita nec armis deposci" (e). It is, however, often a question of some nicety and difficulty to ascertain to which class an asserted claim belongs, because the usage which had its origin in the precarious concession of Comity may be, and in many instances has been, transferred, through uninterrupted exercise and the lapse of time, into the certain domain of Right (d).

66

66

councils are authorized to determine in what cases it may be fit to do so, the particular captor having in no case any other right and title than what the State itself would possess under the same facts of capture." -1 Rob. Ad. Rep. 367, 368.

And again, further on in the same case, he says: "It is lastly said, that they have proceeded only against the merchant vessels, and not against the frigate, the principal wrong-doer. On what grounds this was done whether on that sort of comity and respect which is not unusually shown to the immediate property of great and august Sovereigns, or how otherwise, I am again not judicially informed; but it can be no legal bar to the right of a plaintiff to proceed, that he has for some reason or other declined to proceed against another party, against whom he had an equal or possibly a superior title.”—Ib. p. 376.

"De officiis inno.riæ utilitatis, quæ, si primam illorum originem spectaveris, sunt imperfecta, per ea, quæ accedunt, autem in perfecta mutari atque transire possunt; paullo difficilior est disquisitio."-De Necessitate et Usu Juris Gentium Dissertatio, c. ii. s. 17.-Pestel.

See the part of this work which relates to COMITY for distinction between Jus Gentium and Jus inter Gentes.

(c) Grotius, 1. ii. c. xxii. s. 16.

(d) Vide antè, p. 12.

CHAPTER II.

RIGHTS OF INDEPENDENCE AND EQUALITY.

CXLIV. SOME of the Rights of nations appear to flow more directly from the first, and some more directly from the second of those propositions which have been laid down as together constituting the basis of International Law (a).

CXLV. From the first proposition-namely, that States are recognized as free moral persons-seem to be more especially derived the Rights incident to INDEPENDENCE, which are the following:

1. The right to a Free Choice, Settlement, and Alteration of the Internal Constitution and Government without the intermeddling of any foreign State.

2. The right to Territorial Inviolability, and the free use and enjoyment of Property.

3. The right of Self-preservation, and this by the defence which prevents as well as by that which repels attack.

4. The right to a free development of national resources by Commerce.

5. The right of Acquisition, whether original or derivative, both of Territorial Possessions and of Rights.

6. The right to absolute and uncontrolled Jurisdiction over all persons and things within, and in certain exceptional cases without, the limits of the territory. Under this head may be considered the status of Christians in Mahometan or Infidel countries, not being subjects of those countries, and the question of Extradition of criminals.

(a) Vide antè, ch. iii.

Kaltenborn, kap. v. s. 9: Versuch einer wissenschaftlichen Systematik des Völkerrechts.