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CHAPTER II.

PLAN OF THE WORK.

XIII. A TREATISE on International Jurisprudence appears to admit of the following general arrangement:

1. An inquiry into the origin and nature of the Laws which govern international relations (leges).

2. The Subjects of these laws. The original and immediate subjects are States considered in their corporate character.

3. The Objects of these laws. These objects are Things, Rights, and the Obligations which correspond to them (Res, Jura, Obligationes).

4. Certain Subjects of these laws which, though only to be accounted as such mediately and derivatively, yet, for the sake of convenience, require a separate consideration.

These Subjects of International Law are the following individuals who are said to represent a State :

1. Sovereigns.

2. Ambassadors.

Also another class of public officers who are not clothed, accurately speaking, with a representative character, but who are entitled to a quasi diplomatic position, namely— 3. Consuls.

4. Lastly, the International Status of Foreign Spiritual Powers, especially of the Pope, requires a distinct consideration (a).

XIV. Public International Rights, like the Private

(a) Treated of in vol. ii.

Rights of an Individual, are capable of being protected and enforced by Legal Means.

These Legal Means are of two kinds, aptly expressed by jurists as being (1) via amicabili, and (2) via facti.

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When war has actually begun, we enter upon the jus belli, which is to be considered with reference to

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1. The Rights of Belligerents;

2. The Rights of Neutrals

Sequitur enim de jure belli: in quo et suscipiendo, et gerendo, et deponendo, jus, ut plurimum valet, et fides" (c). "For the wars (as Lord Bacon says) are no massacres and "confusions, but they are the highest trials of right " (d).

Grotius points out, with his usual sound and true philosophy, the proper place, object, and functions of war in the system of International Law (e): "Tantum vero abest ut "admittendum sit, quod quidam fingunt, in bello omnia jura

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cessare, ut nec suscipi bellum debeat nisi ad juris consecu❝tionem, nec susceptum geri nisi intra juris et fidei modum. "Bene Demosthenes bellum esse in eos dixit, qui judiciis "coerceri nequeunt; judicia enim vigent adversus eos qui "invalidiores se sentiunt: in eos qui pares se faciunt aut pu66 tant, bella sumuntur; sed nimirum ut recta sint, non minori

(b) Treated of in vol. iii.

(e) Cicero de Rep. lib. ii. c. 14; and he adds, "horumque ut publici interpretes essent lege sanximus."

(d) Bacon's Works, vol. v. p. 384 (ed. Basil Montagu).

(e) Grotii Proleg. 25, de Jure Belli et Pacis; though he illogically displaces the treatment of it in his great work, beginning, as indeed he admits, with the end of his subject.

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religione exercenda quam judicia exerceri solent;" and again, "bellum pacis causa suscipitur" (f).

XV. When by use of the Legal Means of War the Right has been obtained or secured, or the Injury redressed -post juris consecutionem-the normal state of peace is reestablished.

A consideration of the negotiations which precede, and the consequences which follow, the Ratification of Peace will conclude that portion of this work which relates to Public International Law.

XVI. We have hitherto spoken of Public International Law (jus publicum inter gentes-jus pacis), which governs the mutual relations of States with respect to their Public Rights and Duties; but, as States are composed of Individuals, and as individuals are impelled by nature and allowed by usage to visit and to dwell in States in which they were not born, and to which they do not owe a natural allegiance, and as they must and do enter into transactions and contract obligations, civil, moral, and religious, with the inhabitants of other States, and as States must take some cognizance of these transactions and obligations, and as the municipal law of the country cannot, in many instances at least, be applied with justice to the relations subsisting between the native and the foreigner-from these causes a system of Private International Law, a "jus gentium "privatum," has sprung up, which has taken deep root among Christian, though it more or less exists among all, nations.

The distinction, however, between the two branches of International Jurisprudence is extremely important. It is this:

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The obligationes juris privati inter gentes are not—as the

(f) Grotius, de J. B. et P. lib. i. c. i. s. 1.

"Le mal que nous faisons à l'agresseur n'est point notre but: nous agissons en vue de notre salut, nous usons de notre droit; et l'agresseur est seul coupable du mal qu'il s'attire."- Vattel, liv. ii. c. ii. s. 18.

Taylor's Civil Law, p. 131.

obligationes juris publici inter gentes are the result of legal necessity, but of social convenience, and they are called by the name of Comity-comitas gentium.

It is within the absolute competence of a State to refuse permission to foreigners to enter into transactions with its subjects, or to allow them to do so, being forewarned that the municipal law of the land will be applied to them (g); therefore a breach of comity cannot, strictly speaking, furnish a casus belli, or justify a recourse to war, any more than a discourtesy or breach of a natural duty, simply as such, can furnish ground for the private action of one individual against another (h).

For a want of Comity towards the individual subjects of a foreign State, reciprocity of treatment by the State whose subject has been injured, is, after remonstrance has been exhausted, the only legitimate remedy; whereas the breach of a rule of Public International Law constitutes a casus belli, and justifies in the last resort a recourse to war.

It is proposed to treat the subject of Comity or Private International Law next in order to the subject of Public International Law.

(g) Neyron, Principes du Droit des Gens européens, 1. clxxi. c. vi. s. 177.

Barbeyrac, Ad Grotium, l. ii. c. ii, s. 13.

(h) Vattel, liv. ii. c. i. s. 10.

CHAPTER III.

SOURCES OF INTERNATIONAL LAW.

XVII. IT is proposed in this chapter to trace the source and ascertain the character of those laws which govern the mutual relations of independent States in their intercourse with each other.

XVIII. International Law has been said, by one profoundly conversant with this branch of jurisprudence, to be made up of a good deal of complex reasoning, and, though derived from very simple principles, altogether to comprise a very artificial system (a).

XIX. What are the depositories of this reasoning and these principles? What are the authorities to which reference must be made for the adjustment of disputes arising upon their construction, or their application to particular instances? What are in fact the fountains of International Jurisprudence" dijudicationum fontes?"-to borrow the just expression of Grotius. These are questions which meet us on the threshold of this science, and which require as precise and definite an answer as the peculiar nature of the subject will permit (b).

XX. Grotius enumerates these sources as being "ipsa natura, leges divinæ, mores, et pacta "(c).

(a) Lord Stowell: The Hurtige Hane, 3 C. Rob. Adm. Rep. 326. (6) Arist. Eth. lib. i. c. 3 ; Πεπαιδευμένου γάρ ἐστιν, ἐπὶ τοσοῦτον τἀκριβὲς ἐπιζητεῖν καθ ̓ ἕκαστον γένος, ἐφ ̓ ὅσον ἡ τοῦ πράγματος φύσις ἐπιδέχεται· παραπλήσιον γὰρ φαίνεται, μαθηματικοῦ τε πιθανολογοῦντος ἀποδέχεσθαι, καὶ ῥητορικὸν ἀποδείξεις ἀπαιτεῖν.

(c) Prolegom.: "By the Law of Nature and Nations and by the Law Divine, which is the perfection of the other two.”—Lord Bacon, Of an Holy War.

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