State. The Crown may obtain redress against its subjects by By the such common law actions as are consistent with the royal dignity; but much easier and more effectual remedies are usually obtained by such prerogative modes of process as are peculiarly confined to it1, such as an 'inquest of office,' a 'writ of extent,' a 'writ of scire facias,' or an 'information' exhibited by the Attorney-General in the Queen's Bench Division of the High Court. The old exemption of the Crown from the payment of costs in proceedings with subjects has been nearly abolished by a succession of statutes. 1 Blackstone, 3 Comm. 258. The nature of international law. THE body of rules regulating those rights in which both of the personal factors are States1 is loosely called 'the Law of Nations,' but more appropriately Ius inter gentes,' or International Law 2.' It differs from ordinary law in being unsupported by the authority of a State. It differs from ordinary morality in being a rule for States and not for individuals. It is the vanishing point of Jurisprudence; since it lacks any arbiter of disputed questions, save public opinion, beyond and above the disputant parties themselves, and since, in proportion as it tends to become assimilated to true law by the aggregation of States into a larger society, it ceases to be 1 Supra, p. III. 2 The former of these names is due to the Oxford Professor, Richard Zouch, 1650; the latter to Jeremy Bentham, who uses it in the Principles of Morals and Legislation, first published in 1789, as appropriate to the mutual transactions of sovereigns as such;' adding in a note: the word international, it must be acknowledged, is a new one; though, it is hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant way, the branch of law which goes commonly under the name of the law of nations.' itself, and is transmuted into the public law of a federal CHAP. XVII, government. The realisation of the 'civitas maxima' of which theorists have dreamed would thus be not the triumph, but the extinction, of International law, which can subsist only between States which, on the one hand, sufficiently resemble one another, and are closely enough knit together by common interests, to be susceptible of a uniform pressure of public opinion, while, on the other hand, they are not so politically combined as to be controlled by the force of a central authority. These conditions of political independence and social sympathy have been twice realised in the history of the world. Very imperfectly, between the various cities of Hellas, which accordingly acknowledged, as in some degree obligatory on all, τὰ κοινὰ τῶν Ἑλλήνων νόμιμα 1. More fully between the States of modern Christendom, no one of which would venture at the present day expressly to repudiate the duty of conforming to the precepts of International law in its dealings with the rest. Just as what is not very conveniently termed 'Municipal' law is recognised as supreme over all questions of private or public right arising within the jurisdiction of any given State2, so it is conceded that International law,' so far as its doctrines have been generally received, is decisive of all questions which arise between one State and another. Its true nature and functions have never been better described than in the following passage, in which they were for the first time adequately set forth in the early years of the seventeenth century. 'Ratio autem huius partis iuris est,' says Suarez, 'quia humanum genus, quantumvis in varios populos et regna divisum, semper habet aliquam unitatem, non solum speci 1 Thuc. iii. 59. 2 Cf. supra, p. 112. Bentham, Principles of Morals and Legislation, ch. xvii, is mistaken in supposing Blackstone to have been the first to use 'municipal' as equivalent to 'national' or 'internal' law; a sense of the term which was well established at least as early as the sixteenth century. Blackstone expressly says, 'I call it municipal law in accordance with common speech.' I Comm. 44. CHAP. XVII. ficam, sed etiam quasi politicam et moralem, quam indicat naturale praeceptum mutui amoris et misericordiae quod ad omnes extenditur, etiam extraneos et cuiuscunque nationis. Quapropter licet unaquaeque civitas, perfecta respublica, aut regnum, sit in se communitas perfecta et suis membris constans, nihilominus quaelibet illarum est etiam membrum aliquo modo huius universi, prout ad genus humanum spectat ... hac ergo ratione indigent aliquo iure quo dirigantur et recte ordinentur, in hoc genere communicationis et societatis. Et quamvis magna ex parte hoc fiat per rationem naturalem, non tamen sufficienter et immediate quoad omnia, ideoque aliqua specialia iura potuerunt usu earum gentium introduci1.' Although, as being concerned with the relations of States, 'international' is said to be a department of public' law, its analogies are rather to the private than to the public branch of law municipal. The reason being that, while in public (municipal) law the personal factors in a right are always dissimilar, in international, as in private, law they are always similar. Just as the parties in private law are two individuals, so in international law are they two States. Much confusion is occasioned by authors who, failing to grasp this essential characteristic of International law, speak of sovereigns and ambassadors as international persons,' or treat of States as capable of having international relations with individuals; regarding, for instance, the seizure of a blockade-runner as an exercise of authority by a belligerent State over a neutral subject. Hence it is that the topics of this science may be most conveniently grouped in general accordance with the principles of division which were originally discovered by the analysis of private law. There is a substantive' and an 'adjective' law of nations the persons governed by this law may be 'normal' or 'abnormal;' and their rights may be antecedent' or 'remedial,' in rem' or 'in personam.' 1 De lege et Deo legislatore, ii. c. xix. § 9. Classifica A distribution of the subject upon these lines, rather than CHAP. XVII. in accordance with the method which, originated by Klüber, tion of has since become traditional, especially on the other side of topics. the Atlantic, has been elsewhere advocated by the present writer in the following terms:-'The law of nations is but private law "writ large." It is an application to political communities of those legal ideas which were originally applied to the relations of individuals. Its leading distinctions are therefore naturally those with which private law has long ago rendered us familiar. In international, as in private law, we are concerned with the Persons for whose sake rights are recognised; with the Rights thus recognised; and with the Protection by which those rights are made effective. We have a law of Persons; a Substantive law which sets forth and explains the rights of those persons; and an Adjective law, which describes the procedure by which redress is to be obtained when those rights are violated. The international law of persons consists of an investigation into the nature of a sovereign State and of the deviations from it. The substantive law of nations enquires into the character, origin, and termination of the rights which States may enjoy; while the adjective law of nations describes the procedure by which redress is obtained for international wrong-doing. This lastmentioned department is subdivided into the law which regulates the relations of the belligerents to one another, and the law which regulates the relations of each belligerent with States which take no part in the war. The whole science is thus divisible into four great chapters, which may be shortly described as treating respectively of international Status; of Peace; of Belligerency ; and of Neutrality 1.' I. The Persons known to International law are States. 1 From an Oxford lecture, which appeared under the title 'Les Débats diplomatiques récents dans leur rapport avec le Système du Droit international,' in the Revue de Droit International for 1878, p. 167. Inter national persons. |