Page:The New International Encyclopædia 1st ed. v. 10.djvu/795

* INTERNATIONAL LAW. 705 INTERNATIONAL LAW. the law really is." (Paq.uette Habana, 1899, 175 U. S. «77.) It would appear, therefore, that as far as the United States is concerned, international law rests upon the following bases : ( 1 ) treaties ; (2) acts of the executive in international mat- ters; (3) acts of Congress ; (4) judicial decisions of American and prize courts; (5) customs and usages of civilized nations. Text-books are not law per sc, but evidence of the law, so that Lord Salisbury's sarcasm — "International law. . . depends generally on the j^rejudices of the writers of text-books" — loses much of its point in this countrj'. The prejudices of the writers should be discarded, but their texts cannot be over- looked. Hugo Grotius ( 1383-1645 ), in his De Jure Belli tic I'dcis Libri Trcs (1625), is the father of the science of international law in the same way, and in a larger sense than Adam Smith, by his Wealth of Nations (1776), is the creator of the modern science of political economy. The jus Jeciale of the earlier Roman law. vesrulating the formal intercourse between Rome and other na- tions, might have produced a system of inter- national law if Rome had not made one nation of the world. But as ilr. Robertson well says: '"Positive international law does not in fact come into existence until the era of Grotius, al- though usages of international intercourse nmst at all times have existed." Among the most famous followers of Grotius are Putl'endorf (1632-94): Wolf (1679-1754); Vattel (1714- 67); and the Dutch jurist Bynkershoek (1673- 1743), whose authority is second only to that of Grotius. In America the most illustrious names arc Kent (1763-1847); Wheaton (1785-1848); llalleck (1817-721: Woolsey (1801-89); Dana I 1815-82), whose notes to Vheaton"s classic "Ele- ments of International Law' are invaluable; Wharton ( 1820-99) ; and Moore (1861—). (For the writers on international law and a criticism of their work, see Rivier's sketch in Holtzen- (lorfT's Ilandbiich drs VulkeiTechts, French trans.. vol. i.. pp. 351-494.) To these illustrious names should be added those of the judges Sir I.eoline Jenkins (1623-85) and Lord Stowell (1745-1836) in Kngland. Marshall (1755-1835) and Story (1779-1845) in the United States. ISTERNATIOXAL LaW IX TiME OF PEACE. The subjects or persons of international law are inde- ])endent sovereign States or nations. The com- munity constituting such State is (1) perma- nently established for a political end; (2) it is pendent of external control. If one or more of these elements be lacking, the political community i'i not a State in the sense of international law. The l"nited States, i.e. the L'nion, is sovereign; the individual States are unknown to the law of nations. When these requirements are present, we have a State the existence of which is proved like other questions of fact. Individuals choose their associates, and States likewise determine whether and when they wish to maintain rela- tions with a newcomer. A failure to recognize the existence of a State having a rightful claim thereto would be an unfriendly act. but as the recognizing State is sovereign, recognition de- pends upon its will. It is therefore a political, not a judicial question. A revolted colony may have all the requirements except the element of permanency. A hasty recognition of its inde- pendence — France's recognition of the United States in 1778, for instance — helps to create the independence it professes to recognize. Such conduct is unfriendly in the extreme, and Great Britain not unjustly replied with war. The form of government is immaterial. The Papal States (before 1870), the Empire of Rus- sia, the Kingdom of Great Britain, the Republic of the United States, have an equal claim to recognition. The State is the corporation, and if the three essentials of statehood exist it does not matter who happens to be the chairman or public representative. Internal changes are like- wise immaterial. Publicists enter into minute classifications of States, but the matter is of little moment; a State is independent or it is not. If independ- ent of external control, it is, internationally speaking, a sovereign State; if not independent of foreign control, it is internationally a cipher, and nations negotiate with the controlling power. Xeutralized States (Switzerland, 1815; Belgium, 1831; Luxemburg, 1867) have, in the interests of European i>eace, engaged not to wage ofl"ensivc WAV, and their independence is guaranteed on that condition. A State possessing these three elements and so recognized by international law is termed a de jure State; one possessing these elements but not recognized is termed a de fuclo State. The Confederate States of America furnish the most imposing example of a de facto sovereign. The de fiicto States have the same claims upon subjects and residents as de jure States. The struggle they wage to compel the mother country's recog- nition of their independence is war if on a large scale, and they are entitled to all the rights of belligerents, such as exchange of prisoners, the right of visit and search on the high seas, ele. (See BELLIGERENT.) If succ-ess crowns their ell'orts the de facto becomes a de jure sov- ereign State (.merican Revolution). . fundamental proposition of international law is the equality of States, of which Chief .lustiee ilarshall aptly said: ""Xo principle of general law is more universally acknowledged than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone." It fol- lows therefore that the doctrine of intervention or interference has no place in international law. See Intervention. The Monroe Doctrine (1823), rightly xnider- stood, means non-intervention: for the I'nited States will not intervene, but will enjoin inter- vention from an external source. Sir William Ilarcourt has felicitously analyzed the doctrine of intervention in the following passage: "It is a high and summary procedure which may some- limes snatch a remedy beyond the reach of law. Xevertheless, it must be admitted that in the case of intervention, as in the case of revolu- tion, its essence is illegality, and its justification is its success: of all things, at once the most unjustifiable and the most impolitic is an iinsvic- cessful intervention." See Intervention. If the States are equal and sovereign, it neces- sarily follows that no State can extend its legis- hition beyond its borders. A nation's territory includes the land, the unincumbered space above the surface, and marginal seas. A river wholly
 * i(issessed of a defined territory; (3) it is inde-