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or they may be furnished with a positive rule by their own sovereign, in the form of ordinances, framed according to what their compilers understood to be the just principles of international law.

The theory of these ordinances is well explained by an eminent English civilian of our own times. "When," says Sir William Grant, "Louis XIV. published his famous ordinance of 1681, nobody thought that he was undertaking to legislate for Europe, merely because he collected together and reduced into the shape of an ordinance the principles of marine law as then understood and received in France. I say as understood in France, for although the law of nations ought to be the same in every country, yet as the tribunals which administer the law are wholly independent of each other, it is impossible that some differences shall not take place in the manner of interpreting and administering it in the different countries which acknowledge its authority. Whatever may have been since attempted it was not, at the period now referred to, supposed that one State could make or alter the law of nations, but it was judged convenient to establish certain principles of decision, partly for the purpose of giving a uniform rule to their own courts, and partly for the purpose of apprising neutrals what that rule was. The French courts have well and properly understood the effect of the ordinances of Louis XIV. They have not taken them as positive rules binding upon neutrals; but they refer to them as establishing legitimate presumptions, from which they are warranted to draw the conclusion, which it is necessary for them to arrive at, before they are entitled to pronounce a sentence of condemnation." 1

4. The adjudications of international tribunals, such as boards of arbitration and courts of prize.

As between these two sources of international law, greater

! Marshall on Insurance, vol. i. 425. The commentary of Valin upon the marine ordinance of Louis XIV., published in 1760, contains a most valuable body of maritime law, from which the English writers and judges, especially Lord Mansfield, have borrowed very freely, and which is often cited by Sir W. Scott (Lord Stowell) in his judgments in the High Court of Admiralty. Valin also published, in 1763, a separate Traité des Prises, which contains a complete collection of the French prize ordinances down to that period.

weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide, than to those of admiralty courts established by and dependent on the instructions of one nation only. (a)

5. Another depository of international law is to be found in the written opinions of official jurists, given confidentially to their own governments. Only a small portion of the controversies which arise between States become public. Before one State requires redress from another, for injuries sustained by itself, or its subjects, it generally acts as an individual would do in a similar situation. It consults its legal advisers, and is guided by their opinion as to the law of the case. Where that opinion has been adverse to the sovereign client, and has been acted on, and the State which submitted to be bound by it was more powerful than its opponent in the dispute, we may confidently assume that the law of nations, such as it was then supposed to be, has been correctly laid down. The archives of the department of foreign affairs of every country contain a collection of such documents, the publication of which would form a valuable addition to the existing materials of international law.1 (b)

(a) [Mr. Wheaton published in his "Life of William Pinkney," who was a member of the joint British and American commission, under the treaty of 1794, the opinions delivered by Mr. Pinkney on the questions of international law, involved in the various reclamations before that tribunal. See Wheaton's Life of Pinkney, pp. 193-372.]

1 Senior, Edinburgh Rev. No. 156, art. 1, p. 311.

The written opinions delivered by Sir Leoline Jenkins, Judge of the High Court of Admiralty in the reign of Charles II., in answer to questions submitted to him by the King or by the Privy Council relating to prize causes, were published as an Appendix to Wynne's Life of that eminent civilian. (2 vols. fol. London, 1724.) They form a rich collection of precedents in the maritime law of nations, the value of which is enhanced by the circumstance that the greater part of these opinions were given when England was neutral, and was consequently interested in maintaining the right of neutral commerce and navigation. The decisions they contain are dictated by a spirit of impartiality and equity, which does the more honor to their author as they were addressed to a monarch who gave but little encouragement to those virtues, and as Jenkins himself was too much of a courtier to practice them, except in his judicial capacity. Madison, Examina. tion of the British Doctrine, &c., p. 113. Lond. edit. 1806.

(b) [The publicity which attends all transactions in the United States has led to the printing of a large portion of the diplomatic papers, which have been occa

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.]

CHAPTER II.

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

subjects of

international law.

Sovereign princes may become the subjects of international law, in respect to their personal rights, or rights 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 corporations, the subjects of

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

al law.

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.

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