Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/203

 INTERNATIONA L L A W must accompany any state of society in which intercourse, hostile or peaceful, between different communities is common. The great nations of antiquity which have contributed most to the civilization of modern Europe have given least to this branch of that civilization. The history of the Jews furnishes nothing but examples of the total absence of a sense of duty in relation to other nations. The division of the Greek world into a large number of independent communities favoured the existence of an Hellenic law of nations, presenting iu many points such as the recognition of common Hellenic customs, religious and political, and of the principle of a balance of power a parallel to modern international law. The coherence of the Greek communities, however, only intensified the difference between them and all other peoples, and left their relations with them unregulated by any general principles. The jus feciale of the earlier Ronian law regulating the formal intercourse between Rome and other nations is indeed the germ of what might have been a system of pure international law. But the rise of the Roman commonwealth to the mastery of the world rendered ujus inter gcntes unnecessary and impossible. The fecial law with its college of interpreting priests dwindled into an obsolet3 collection of formalities no longer supported by the religious feelings of the people. The jus gentium of the Romans does indeed play an important part in the history of international law, but as conceived of by the Roman lawyers it was not international, but a body of positive law composed of the elements common to the nations known to them, including Rome itself. Positive international law does not in fact come into existence until the era of Grotius, although usages of international intercourse must at all times have existed. The sanctity attributed to ambassadors, the importance of formal declarations of war, and the good faith to be observed in promises or treaties would probably be found to be the points of most general recognition. The connexion between Roman and modern international law, through the conceptions of jus gentium and jus naturx, has been lucidly traced by Sir Henry Maine in his treatise on Ancient Laiv, and may be briefly noticed here. The postulates of the law of nations that there is a determinate law of nature, that it is binding on states inter se, and that such states are equal are founded on well-known general principles of the Roman jurists. The ambiguity of the phrase jus gentium enabled the early founders of international law to apply the principles of the jus naturx to the conduct of states inter se in a way of which there is no example in the Roman law-books. Further, in the Middle Ages the state systems of Europe had arranged themselves on a territorial basis, so that sovereigns were regarded as being the absolute masters of the territory occupied by their people, instead of the chiefs of the people irrespective of territory. They could thus be conceived as &quot;members of a group of Roman proprietors,&quot; and the Roman law of property supplied the fundamental principles on which their occupation was in international law under stood to be based. Tlie appearance of jurists, dominated by the conceptions of the Roman law, at a time when European arrangements made their application possible, is the true beginning of modern international law. The greatest name is that of Grotius, whose work Dejure Belli et Pads was published in 1624. In the first sentence of the prolegomena he defines his subject as the law which obtains between nations or their rulers, whether founded on native or divine ordinance, or custom and tacit consent, which he adds universim ac certo online tractavit hactenus nemo. There had been earlier workers in the same field. Among these were Francis de Victoria of Salamanca, Suarez, Ayala, and Albericus Gentilis, all of whom 191 flourished in tho 16th century. The work of Grotiua definitely laid tho foundation of the science, which ho shaped in imitation of the institutional treatises of Roman law. Among the jurists who followed Grotius, the classical names are those of Puffendorf, Wolff, Vattel, and Bynkers- hoek. In England Sir Leoline Jenkins and Lord Stowell are the most illustrious of those who have made impor tant contributions to international law. In America Wheaton stands at the head of a school of distinguished jurists, and his Elements of International Law is the standard modern treatise on the subject. _ Several of the more important heads of international law will have to be noticed separately, and it is only proposed in the present article to state shortly and in outline its leading principles so far as they can be gathered from the most authoritative modern writers. It will be convenient to discuss first tho general rules obtaining between nation and nation, and, secondly, the modifications and special rules which are brought into existence by a state of war. It may be necessary to distinguish here between public international law and what is known as private international law, The latter phrase is applied to those principles which in the ordinary tribunals of a country are used to harmonize the conflict of laws. Where the subject of a foreign state has a claim against the queen or any of the queen s subjects, for which he seeks redress in our courts of law, it may become necessary to recognize and enforce the law of the foreign state and not the law of England. The best illustration of this class of questions is the case of domicile. For many purposes the place in which a man is domiciled, as distinguished both from that in which he lives and the country of which he is a subject, supplies the law applicable to his case. A French subject, domiciled in Scotland, dies in England leaving personal property in England ; in such a case the property would be distributed according to the law of Scotland, and not of England or of France. All nations have to provide for .such cases, in which the prin ciples of a foreign jurisprudence must be enforced, and have to determine under what conditions and to what extent the tribunal will be required to enforce them. As it happens there is a general agreement among nations on these points; the rule, for example, which makes real property administrable according to the law of the land, and personal property according to the law of the owner s domicile, is universally recognized. So far as this agreement extends, there may be said to be a private international law corresponding to the international system of public law. But in the former we have to deal with true positive law, deriving its authority from the legislature, having no reference to tho opinions and practice of nations, and dealing with the rights of individuals. Public international law is of a totally different character, recognizing nations as the only parties, and depending on the agreement of nations as evinced by their opinions and practice. It is with the latter only that we have now to deal. Independent sovereign states are then the units of international law, and whether a given community is such a state is a question of fact. A community having definite territorial limits within which its own government exercises absolute authority, free from all external control, is the proper type of a state in international law. But the world is not parcelled out among states thus accurately defined. Where a number of states have been united in a permanent confederation, ifc may be a question whether the group alone is in international law an independent state, or whether each individual member has retained its inter national independence. The United States of America are an example of tho former case ; the German confederation until the recent changes was an example of the other. Again, when one state has placed itself under the protection