The institutes of the law of nations : a treatise of the jural relations of separate political communities

Front matter

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B Cornell University S Library

Chapter I. — Preliminary Definitions and Divisions, . . i Definitions — The law of nations is

(A) The law of nature realised in the relations of separate nations, . 1

(B) The realisation of the freedom of separate nations, . . 2

(C) The realisation of the freedom of separate nations by the reciprocal

assertion and recognition of their real powers, ... 3

Divisions —

I. In relation to its objects, the Law of Nations, or International Law, divides itself into three leading doctrines : {A) The doctrine of recognition, ..... 3

{B) The doctrine of the normal relations that result from the doctrine of recognition, ...... 3

(C) The doctrine of the abnormal relations that result from the

doctrine of recognition, ...... 4

1st, The fundamental doctrine of recognition, as the doctrine of international existence de facto, or of State life for international purposes, corresponds to that fundamental doctrine of natural law which teaches that all rights and duties have their origin in, and are limited by, the facts of natural life, . i

(o.) Absolute recognition, or recognition that there is a State, i

(b) Relative recognition, or recognition that there is such a

II. In relation to the spheres which it covers, or the interests which it embraces, International Law divides itself into ;

CONTENTS.

{A) Public, .

(-B) Public ami private,

(C) Private, .

Chapter II. — Of the Normal and Abnormal Relations of States, 5

1st, Of the normal relations, 2d, Of the abnormal relations,

(a) As between belligerents, .

(J) As between belligerents and neutrals,

(c) As between neutrals.

Chapter IV. — Of the General Characteristics of the Law OF Nations

(A) The law of nations is coeval with the existence of nations, .

(jB) The law of nations is coextensive with national development,

(C) Only in so far as the conditions of its existence arise from the voliiU' tary activity or inactivity of nations, can the positive law of nations be said to be voluntary, .....

(V) The object of the law of nations in each separate relation may be de duced from its general object — liberty, ...

11 12

13 15

Chapter I. — Op the Law of Nature as Determining the Objects op the Law of Nations

Chapter II. — Op International Customs as Unconscious Interpreters OP the Law op Nature in International Relations, ........

Of bad customs, ........

(a) Those which are bad essentially, on the ground that they violate

permanent natural laws, ......

(6) Those which, continuing after the circumstances in which they

arose have changed, no longer generate law, . (c) Those which have sprung out of reactionary tendencies,

27 31

32 33

CONTEXTS. XI

Chapter III.— Of Treaties, ..... 37 1st, Those which determine an isolated fact in dispute between two

nations, in accordance with a recognised principle, , . 43

2d, Those which define or determine a principle in dispute, by which it is intended tliat, as between the parties, a certain course of action shall in future be regulated, ..... 43

3d, Those which profess to declare the absolute law of nations, and to which the parties not only bind themselves, but which they urge on the acceptance of other nations, .... 44

Chapter V. — Op Scientific or Conscious Intbepbetation op THE Natural Laws op International Eelations, . . 54

Agencies by which the intellectual processes to which we must look for our systematic knowledge of the law of nations may be performed, ........ 55

I. Sovereigns and their ministers, and in constitutional countries the legislative assemblies which act as the advisers of the executive, ....... 65

II. Scientific jurists acting in conjunction, whether in their private capacity, or together with the constituted authorities of one or more States, ....... 57

III. Scientific jurists acting in isolation, .... 58

Chapter VL — Op Contemporary Pdblic Opinion, . 87

Book II

OF THE KECOGNITION OF STATE - EXISTENCE AS THE FUNDAMENTAL DOCTRINE OF THE LAW OF NATIONS.

Chapter I. — Op the Distinction between International Recognition AND IntERETHNICAL RECOGNITION, . . 93

Chapter II. — Of International Recognition in General, . 101

XII CONTENTS.

Chapter III. — Of Plenary Political Recognition, . . 104

Plenary political recognition may be defined as a formal declaration of the result of an inductive process, by which one separate political entity has satisfied itself that another entity, phenomenally presented to it, possesses a separate political existence, . . 104

Chapter IV. — Of the Right to Determine the Fact of

Jural State Existence, ..... 105

The right to determine the fact of the jural existence or non-existence of a claimant for recognition rests with the State, or States, from which recognition is claimed, ..... 105

Chapter V.— Of the Function of Science in Deieriiining

THE Fact of Jural State-Existence, . . . 108

The conditions which, if satisfied, imply a right to plenary political recognition, may be determined scientifically, and enunciated as permanent maxims of international law, .... 108

Chapter X. — Of the Size of the State, . . . .136

Chapter XI.— Op the External Freedom, or, as it is commonly CALLED, the "INDEPENDENCE" OF THE StATE, . 139 1st, The recognition of the inchoate State as a jural claimant for separate

recognition, •••.... 141

2d, Recognition for neutral purposes not directly connected with war, . 151

CONTEXTS.

XUl

3d, Formal and public recognition, by which all the rights and privileges of an adult political community are acknowledged to reside in the new-born State, . . . . . .152

Chapteb XII. — Of the Internal Freedom op the State,

Chapter XIII. — Of Communities that are deprived of Internal Freedom, on the ground that they ake incapable OP Expressing oe Realising their Reciprocating Will under any Form op Internal Government, . . 156

1st, Nonage,

2d, Imbecility,

(a) Congenital imbecility, (6) Superinduced imbecility,

3d, Criminality, .

157 157 157 158 160

Chapter XIV. — Of Communities that are cut ofp from Recognition, on the ground that the Forms op Internal Government under which they profess to live incapacitate THEM POR either EXPRESSING OR REALISING

Reciprocating Will, .... . . 162

1st, Personal governments, whether hereditary or elective, and whether

professing to be founded on divine or on human will, . . 163

2d, Class governments, or governments which rest on the assumption either of the absolute equality or permanent inequality of individuals or of classes, ... ... 165

Chapter XV. — Op the Necessity op Ascertaining the Relative Value op States, . . . . . .168

Chapter XVI. — Of the Means op Ascertaining the Relative Value op States, ..... 182

1st, The extent of the State as an element in determining its relative

claim to recognition, ...... 182

2d, The content of the State or the quality of the materials of which it

(a) Material wealth, .... . 185

(6) Moral and intellectual qualities, .... 185

XIV CONTENTS,

3d, The form of the State, ....-• 1^^

(a) Simple States, ....•• ^^^

(6) Composite States, ....•• ^"*

4th, The form of government, or tlie manner in which the materials of

the State are hrought into action, . , . . • ■^^^

(a) Constitutional monarchies, in which the constitution em-

braces the whole population, individuals being classified, and counted not as equally but as relatively or proportionally endowed with rational will,

(b) Constitutional republics, where the constitution res*s on the

rational will of the community, . . • 210

(c) Constitutional States, where the constitution embraces the

rational will only to a partial extent, . . .211

{d) Non-constitutional States, where the general will finds

expression only through the organic structure of society, 211 (e) Pseudo-despotic and pseudo-democratic States, . . 212

(/) Of the power by which the relative value of the State is to

be determined and its international position assigned to it, 212

Chapter XVII. — Of Partial Recognition, . . . 216

Book III. Of The Noemal Relations Of States

Chapter I. — Op the Distinction between Normal and Abnormal Relations ; and between Abnormal Relations WHICH ARE Jural and those which are anti-Jural, , iiS

(A) Normal jural relations, ...... 223

1st, Normal relations by the law of nature, between communities

within and without the pale of recognition, . , . 223

(a) Relations of mutual forbearance, .... 224 (6) Relations of pupilarity and guardianship, . . . 224

2d, Normal relations by the law of nations between communities

within the pale of recognition, .... 224

(«) Relations of mutual confidence, .... 224

(b) Relations of mutual aid, ..... 224 {B) Abnormal jural relations, ...... 224

1st, Abnormal jural relations by the law of nature between communities within and without the pale of recognition, , 225

CONTENTS. XV

2d, Abnormal jural relations by the law of nations between communities within the pale of recognition, , . . 225 (a) Active, ....... 225

(0) Abnormal anti-jural relations, ..... 225

1st, Abnormal anti-jural relations by the law of nature between communities within and without the pale of recognition, . 225 2d, Abnormal anti-jural relations by the law of nations between

communities within the pale of recognition, . . . 226

{a) Violation of objective freedom, .... 226

(J) Voluntary failure to maintain subjective freedom, . . 226

(c) Voluntary failure to defend subjective freedom, . . 226

(d) Voluntary, neutrality, or failure to intervene in behalf of

objective freedom, ...... 226

Chapter II. — Of the Normal Relations by the Law of Nature between Communities within and without the

Pale of Recognition, ...... 226

Chapter III. — Normal Relations by the Law of Nations

between Communities within the Pale of Recognition, 230

Of the relations of mutual coniidence in general, . . . 230

Chapter IV. — Or Political Intercourse — of Legation, . 236

1st, Legation results from recognition, ..... 236

2d, Legation is measured by recognition, .... 237

3d, A public minister represents the sovereignty of the State which sends him, as a whole, and not any separate branch or function of

that sovereignty, ....... 240

4th, Of the ranking of international agents, .... 241

Regulations annexed to the Vienna Congress Treaty of June 9, 1815, 244 Protocol of Conference of the Five Powers at Aix-la-Chapelle,

5th, The right of legation involves the conditions of its exercise, . 245

(a) The right of passage through intermediate States, . . 246

(b) The right of holding personal intercourse with the representative

of sovereignty in the State to. which he is sent, . . 247

XVI

CONTENTS.

(c) The rights of exterritoriality and inviolabilitj",

(d) Exterritoriality of ships, .

(e) Exterritoriality of foreign armies,

248 252 260

Chapter V. — Of Political Intercourse — continued, Of the negotiation and ratification of treaties,

260 260

Chapter VI. — Op Political Intercocese — eontirmed. The literature of legation, ....

269 269

Chapter VII. — Of Mercantile Intercourse,

The consular office, .....

The consular service of this country consists of five classes —

1. Agents and consul-generals,

2. Consul-generals,

3. Consuls, i. Vice-consuls, 5. Consular agents,

General instructions for her Majesty's consuls, issued by the Secretary

of State for the Foreign Department, With reference to the exequatur, or authority from the foreign State to

act within its jurisdiction, With reference to the advice and assistance to he given to British sub

Correspondence, public and private.

With reference to protection on board of British ships.

The commercial report, &c..

Interference of foreign courts of justice, .

With reference to naval courts.

Consular treaty between France and Italy,

287 287

298 298 298 298 298

Chapter VIII. — Op the Reciprocal Recognition of Public

Municipal Law by Separate States, . . .325

1st, Of the legislative capacity of the State, .... 325 2d, Of the distinction between legislation which has reference to public,

and legislation which has reference to private, relations, . . 326

3d, Of the judicial capacity of the State, ..... 328

4th, Of the executive capacity of the State, .... 330

5th, Of i\\e forum of foreigners, ...... 331

CONTENTS. XVU

6th, Of the exceptional position of criminal judgments, . . . 332

(1st) The diversity of punishments arising from the necessity of adapting them to the special conditions of each people, or to the opinions with reference to these conditions which locally prevail, ........ 838

(2d) The difficulty of throwing criminal courts open to foreign prosecutors, as civil courts are thrown open to civil pursuers, . 339 7th, Of extradition treaties, ...... 339

8th, Of the droit de renvoi, ...... 344

Note — Resolutions of the Institute on the subject of "Extradition," . 345

Chapter IX. — Op the Rbcipeooal Recognition of Private

Municipal Law by Separate States, . . . 348

1st, Introductory remarks, .... . . 348

I. Of the relation in which private international law stands to the

doctrine of international recognition, .... 350

II. Of the objects of private international law, . . . 351

III. Private international law being a doctrine of rights and duties,

logically deducible from the doctrine of recognition, is a brancli

of the science of nature, ...... 357

IV. The fundamental propositions of private international law, . 370 V. Of the temporary and partial exclusion of recognition necessitated

by conflicting interpretations of natural law, and the consequent call for assimilation of municipal systems, . . . 371

VI. Of the permanent exclusion of assimilation by diversity of circumstances, and the consequent call for the reciprocal recognition of conflicting municipal laws, .... 373

VII. Diversity of circumstances does not always exclude assimilation

of legal systems, ...... 377

VIII. The law merchant, ...... 379

IX. Private international law is not a separate system of positive law, and in this respect it differs both from public international law and from municipal law public and private, . . 385

X. The rules of private international law necessarily form part of every municipal system, and may consequently be enforced bj' the municipal executive, ..... 390

XI. Of treaties for the adoption of uniform rules of private international law, ....... 392

XII. The determination of the temporal limits of rules of law belongs

to municipal, not to international, jurisprudence, . . 393

XIII. Of the means of localising legal relations, . . . 396 xvm

CONTENTS.

(a) Of the classification of legal relations, .... 396

(6) Appreciation of tl\e statutory theory, .... 404

(c) Modern significance of the statutory theory, . . . 407

{d) Of the localisation of the rights and obligations which result to

persons from the possession of immoTables, . . . 409

(e) Of the localisation of the personal rights and duties which result

from the possession of movables, .... 416

(/) Of the localisation of the person, .... 422

(g') Of the localisation of jural acts, ..... 438

(h) Of the rule, lods regit actum, ..... 441

Chapter X. — Relations op Mutual Aid,

(y/) Pacific co-operation in behalf of freedom, (B) "Warlike co-operation in behalf of freedom, .

445 448

THE

INSTITUTES OF THE LAW OE NATIONS.

INTRODUCTION.

CHAPTEE I.

PRELIMINARY DEFINITIONS AND DIVISIONS.

Definitions.

rilHOUGH I am not forgetful of the warning that omnis definitio in jure periculosa est, it seems to me desirable, for reasons similar to those which I stated at the outset of the ' Institutes of Law,' ^ that we should enter on the study of the Law of Nations, if not with a scientific definition, at all events with a definite statement of the object of our search. With this view, then, I shall venture to define the Law of Nations as :

(A) The law of nature realised in the relations of separate nations.

But we have seen^ that the perfect relation of all separate rational entities, when realised, is freedom — liberty to be, and to develop themselves in accordance with their ' P. 1. 2 7j _ pp_ 355^ 356.

A

2 PRELIMINARY DEFINITIONS AND DIVISIONS.

idea, or, in other words, with the special character which their nature has assigned to them. Assuming this to be so, the Law of Nations may be farther and more specificallydefined as :

{£) The realisation of the freedom of separate nations.

Lastly : we discovered the arrangements of nature to be such that no created entity can realise its freedom in isolation. Freedom and independence, though so often confounded, are so far from being identical, that, in human relations, they are not even reconcilable ; ^ whilst, in the relations of the human to the divine, freedom identifies itself with voluntary dependence.^ Creaturely freedom is thus a position not only of absolute dependence on creative power, but of relative dependence on other created powers ; and this relative dependence in the last analysis wiU be found to include all created powers. The greater, the more real, or, to use what we found ^ to be an eq^uivalent expression, the more reasonable the power, the less, in one sense, is its dependence on other created powers. But power, as the measure of rights, all of which may be summed up in the right to liberty,* we farther discovered ^ to be the measure of responsibility, and that the discharge of this responsibility is involved in the exercise of the power to which it corresponds. Power thus necessarily becomes the source of another form of dependence. Eeal power cannot be " selfish " without ceasing to be real. It becomes phenomenal merely, and in the end self-contradictory and suicidal. But the more real it is, the more does its self-

PRELIMINARY DEFINITIONS AND DIVISIONS. 3

assertion involve the recognition, and, if need be, the vindication, of the powers which are centred in other entities. Subjective powers rest upon and are measured by objective powers, just as subjective rights and duties rest upon and are measured by objective rights and duties.

By keeping in view this law of what we may call ethical or jural gravitation, which, at bottom, is nothing more than " the golden rule," the universal recognition of which by humanity in all ages we have already pointed out,^ and the validity of which in this particular branch of positive law will become apparent in all directions as we proceed, we arrive by anticipation at what, if I am not mistaken, we shall accept as the ultimate definition of the law of nations — namely this :

{(J) The law of nations is the realisation of the freedom of separate nations hy the reciprocal assertion and recognition of their real powers.

Accepting this, in the meantime, then, as the definition of our subject, let us inquire into its natural or scientific divisions, as regards the spheres which it covers, and the relations which these spheres embrace.

Divisions.

I. In relation to its objects, the Law of Nations, or as it is now more commonly called International Law, divides itself into three leading doctrines.

{A) The doctrine of recognition.

{B) The doctrine of the normal relations that result from the doctrine of recognition.

' Institutes of Law, p. 44.

4 PKELIMINARY DEFINITIONS AND DIVISIONS.

(C) The doctrine of the abnormal relations that result from the doctrine of recognition.

1st, The fundamental doctrine of recognition, as the doctrine of international existence de facto, or of State life for international purposes, corresponds to that fundamental doctrine of natural law which teaches that all rights and duties have their origin in, and are limited by, the facts of natural life.^ As the doctrine which carries it back to nature, the general doctrine of recognition is thus the fundamental doctrine of the Science of International Law— the doctrine in virtue of which it is a science. The general doctrine of recognition divides itself into :

(a) Absolute recognition, or recognition that there is a State.

(6) Eelative recognition, or recognition that there is such a State.

II. In relation to the spheres which it covers, or the interests which it embraces. International Law divides itself into :

(A) Public. — Where two States are its subjects.

Here it is public on both sides.

As examples may be mentioned the laws of recognition, intervention, neutrality, &c.

Formally, though scarcely really, there belongs to this division the case in which one State becomes a claimant against another State on behalf of a private citizen, or a private company ; as — e.g., under the twelfth article of the Treaty of Washington of May 8, 1871.

' Institutes of Lav>, pp. 57, 58, 260.

NORMAL AND ABNOEMAL RELATIONS OF STATES. 5

(B) Public and Private. — "Where a State and the citizen of another State are its subjects.

Here it is public on one side, and private on the other. Such is the law administered by Prize Courts, where the neutral State interposes, if at all, only diplomatically. On the ground that criminal law, even when dealing with private persons, involves public interests, the law of extradition seems to fall under this category.

(C) Private. — Where relations arising out of or dependent on the municipal laws of one State, fall to be realised by the municipal laws of another State.

Here it is private on both sides. Two private citizens sue each other before a municipal judge, with no appeal to any international tribunal.

CHAPTER II.

OF THE NORMAL AND ABNORMAL RELATIONS OF STATES.

The relations of States further divide themselves into those which are normal and those which are abnormal.

1st, Of the Normal Relations.

The doctrine of the normal relations of States, in its various subdivisions, seeks to define the reciprocal rights and duties of States living in peace and amity, and to define the positive laws by which, at the stage of civilisation which they have reached, their intercourse may best be conducted with a

6 OF THE NORMAL AND ABNORMAL

view to the attainment of their freedom as separate political entities.

If mankind were perfectly wise and virtuous, the doctrine of the normal relations of States would exhaust the science of International Law ; and progress in the development of international relations consists in such a modification of the conditions of the realisation of Natural Law in the concrete, as shall render this doctrine more and more exhaustive. It is with a view to this progress that the abnormal relations of States, in so far as they are necessary or inevitable, receive jural recognition as transitory facts, which involve corresponding rights.

2d, Of the Alnm-mal Relations. — The doctrine of the abnormal relations of States rests on the recognition of conflict, or, as it is technically called, " belligerency," as an existing relation in point of fact, which, like all other recognised facts, involves rights and duties ; and it seeks so to define these rights and duties as to determine the conditions, and consequent positive laws of their realisation in the concrete.

(a) As between belligerents ;

(&) As between belligerents and neutrals;

(c) As between neutrals.

At first sight it appears as if to the two classes of Normal and Abnormal Eelations a third class of mixed relations ought to be added, to which the relations of intervention and neutrality would fall to be relegated. But, on further consideration, it is obvious that, as there is no intermediate region of indifference between justice and injustice,'' so there can be no jural ' Institutes of Law, pp. 319, 320.

RELATIONS OP STATES. 7

relations which are partly normal and partly abnormal. Indifference between related entities is a contradiction in terms - — an attitude which is not abnormal alone, but anti-jural — which carries us out of jurisprudence altogether. In accepting war and neutrality as inevitable, we accept them, not as indifferent, but as right — as jural, notwithstanding their abnormality. In consequence of their abnormality, however, they are right relatively only, not absolutely — temporarily only, not permanently. They are right only in relation to conditions that are wrong, because not wholly independent of human volition. If the conditions which generate belligerency or neutrality were as involuntary as the relations of belligerency or neutrality themselves, belligerency and neutrality would be normal relations. But these conditions are not natural phenomena, either ordinary, like the changes of the seasons, the alternations of day and night, and the processes of growth and decay ; or extraordinary, like earthquakes and thunderstorms. They are aberrations from the natural life of man — unnatural phenomena, like preventible disease — the existence of which, and of their consequences, can be jurally recognised only with a view to their removal. A system of jurisprudence which rests on the assumption of the fundamental rectitude of human nature,' thus admits the laws of belligerency and neutrality only conditionally, and under protest. It makes no permanent provision for them, as it does for peaceful intercourse, rivalry, and trade. They are, we must hope, vanishing quantities ; but for the present they are jural factors of international life, which we must be con- ^ Institutes of Law, p. 59.

8 NORMAL AND ABNORMAL RELATIONS OF STATES.

tent to regulate and control, but the present action of which we must not seek to weaken or impede. Whilst sin endures, it would be sinful to proclaim perpetual peace ] but it is only those who believe in eternal sin and punishment, who are bound to believe in perpetual war.

From the natural law which declares rights and duties to be reciprocal and coextensive,^ it follows that every doctrine of international law may be logically stated either as a doctrine of rights or as a doctrine of duties ; and that an exhaustive doctrine of either would embrace both. The only reason for starting from rights, as is the custom in this and all other departments of jurisprudence, rather than from duties, is, that rights are the primary and duties the secondary consequences of existence.^ Till we have a right to exist ourselves, no duty of recognising other existences can be incumbent on us. But this right, we have seen, is coincident with the fact of existence ; and we have no right to continue to exist alongside of other existences, unless, longer than, or farther than we recognise that their right to existence corresponds to our own. Priority of fact, moreover, involves priority of phenomenon. Eights present themselves to consciousness before duties, and hence the convenience of adopting them as jural startingpoints.

Lastly : it follows from the solidarity of rational coexistence, that interests are throughout coincident with rights and duties. A system of jurisprudence which took perfect cognisance of the interests of any single individual, or of any single State, provided the whole range of such interests were embraced ' Institutes of Law, p. 142. " 75., p. 210.

SCHOOLS OF INTERNATIONAL JURISPEUDENCE. 9

by it, would logically result in the recognition not only of its rights and its duties, but of the rights and duties of every other created entity. But such a starting-point is unattainable by human insight. Our rights and our duties we may approximately determine, but the real, permanent, and ultimate interests of any creature are known to the Creator only. It is from accepting a limited insight into their own interests, as the guide of their actions, that most of the errors both of individuals and of States are committed. It is in the region of expediency that we fall into errors of policy, as it is in the region of conventionality that we fall into errors of taste.

CHAPTEE III.

OF THE NATIONAL AND COSMOPOLITAN SCHOOLS OF INTERNATIONAL JURISPRUDENCE.

To any one acquainted with the present tendencies of international thought and feeling, it must be obvious that two schools of international jurisprudence, giving prominence respectively to the principles of neutrality and intervention, tend to develop themselves, often to the extent of mutual exclusion. These two schools, corresponding to the negative and positive schools of general jurisprudence^ in their broadest sense, may be characterised as the national and the

' Institutes of Law, p. 281.

10 SCHOOLS OF INTERNATIONAL JURISPEUDENCE.

cosmopolitan, or the patriotic and the philanthropic schools of international law. If carried out to their logical results in isolation, both are suicidal, because both lead to a denial of the existence of international relations, and, as a consequence, of the possibility of international law.

The negative or national school, setting out from the conception of national rights, and asserting the absolute independence of States, results in the isolation of separate States. International rights and duties thus equally cease, and international law, having no relations to declare, loses the object of its existence. Law, on this hypothesis, is bounded in its empire by the frontiers of each individual State, and beyond these frontiers Hobbes's terrible conception of universal war is realised. Till individual States had attained to a stage of moral and intellectual development, which humanity has as yet given no token of its ability to reach, the rule of the Leviathan would be the only refuge against anarchy, and universal Csesarism the only hope of peace.

The cosmopolitan or positive school, on the other hand, recognising the necessary interdependence of States, but losing sight of their rights as separate communities, sacrifices the very subjects of international law. International law thus loses its function, for if there are no separate rights, there can be no relations between them — if there are no rights, there can be no duties. The logical result of the aspirations of this school would be the realisation of Dante's dream of a universal empire — of the Leviathan again, though of a nobler Leviathan, with higher aims than the mere suppression of internecine war. Its effect in international law would be

CHARACTERISTICS OJF THE LAW OF NATIONS. 11

precisely analogous to the effect of pantheism in natural law. Separate freedom and separate responsibility would cease with separate existence. Both schools profess to be advocates of peace, which the negative school hopes to realise by the principle of absolute non-intervention ; the positive school by the principle of international organisation carried to the extent of regulating national as well as international legislation ; whilst the " peace party," rushing from the one extreme to the other, attempts to draw water at both wells. But whilst hopelessly conflicting in isolation, these two schools, when combined, become complementary ; and it is their reconciliation, by the vindication of national freedom of action, not apart from, but in and through the recognition of international dependence, which constitutes the still very imperfectly solved problem of international law.

CHAPTEE IV.

or THE GENERAL CHAEACTERISTICS OF THE LAW OF NATIONS.

(A) The law of nations is coeval with the existence of nations. When contrasted with other branches of jurisprudence, there are several points of view in which the law of nations may be regarded as modern. There were not only men and families, but there were unions of families into clans and tribes, bound together by ties of blood (ojU/oyaXaKxes) and neighbourhood, before there were those greater ethnological and geographical combinations which we call nations.