The theory of international law contemplates the world as divided into independent states. That states are sovereign within their own territories, independent of other states, and equal as between themselves is a fundamental axiom of the science. Not that all states are regarded as lying within the domain of this law. In modern times at least it has included all the states of the Christian world; but at one time it excluded non-Christian states, and at this moment it would be difficult to say to what extent it covers the relations of such states inter se and with the Christian states of Europe and America. There is little doubt, however, that in course of time all the civilized communities of the world will observe substantially the same system of international law.

In the next place international law regards the states of the world as being either in a state of war or in a state of peace. It prescribes rules of conduct to be observed in the mutual dealings of nations which are at peace with each other, and of nations that are at war with each other; and it fixes the rights and duties of belligerent and neutral nations. If peace is the normal state of nations, as jurists sometimes assert, war is the state which has made the largest demands on the science. The rules of international law with regard to war are more voluminous and more certain than those which govern nations in time of peace.

International law, as we now know it, is substantially the creation of civilized Europe in the last three hundred years, but rules of some kind, however meagre, 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 in 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 Roman 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 o, jus inter gentes unnecessary and impossible. The fecial law with its college of interpreting priests dwindled into an obsolete 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 ⅛τ∖Ajus naturae, has been lucidly traced by Sir Henry Maine in his treatise on Ancient Law, 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 naturae to the conduct of states inter sc 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 “members of a group of Roman proprietors,” and the Roman law of property supplied the fundamental principles on which their occupation was in international law understood to be based. The 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 De jure Belli et Pacis 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 uηiversim ac certo ordine 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 flourished in the 16th century. The work of Grotius definitely laid the 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 Bynkershoek. In England Sir Leoline Jenkins and Lord Stowell are the most illustrious of those who have made important 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 the 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 principles 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 the 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, it may be a question whether the group alone is in international law an independent state, or whether each individual member has retained its international independence. The United States of America are an example of the 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 of another, it may be a question whether it has lost or retained its independent status in international law. The proper test, according to Phillimore, is its capacity de facto to deal with other states in peace or war, without reference to the protecting state. States which have lost this capacity have been called semi-sovereign states. They have the organization of an independent nation, but are in practice subject to the rule of another state. The Ionian Islands - under the English protectorate were in that position, and in the treaty of 1815 they are described as a single free and independent state, under the exclusive protection of Great Britain. A similar character attaches to some of the dependencies of Turkey. On the other hand, a large portion of the surface of the earth is occupied by communities having neither the permanent territorial occupation nor the social coherence of civilized states, yet entering into such relations with them as require the recognition of some system of rules. A further question of the highest importance may arise when a portion of an existing state rises in rebellion and sets up a claim to independence. Here again the question is one of fact. If the rebels have succeeded in establishing a government, it is the right and duty of the nations to recognize the fact, and each nation must judge for itself whether the time for recognition has come. Premature recognition would be regarded as an aid to rebellion inconsistent with the rules of international law. The criterion suggested by practice and authority is whether the old government had ceased to contend in fact against the revolutionary state. But other nations are not bound to wait until the old government has itself recognized the independence of the new. Similar questions arise when the form of government in any country is changed by revolution, or when portions of one state are transferred by conquest to the dominion of another. When the new state of things is established in fact, no matter whether justly or unjustly, it must be recognized by other nations.

With the question of recognition is intimately connected that of non-interference. Premature recognition of a struggling rebellion would be regarded as a breach of the principle of non-intervention, but to recognize the independence of an independent state is part of the same duty as to abstain from interfering with it when it has been established. Writers on international law lay it down as one of the fundamental principles of the science that one state has no right to interfere with the domestic affixi rs of another. In the formal arrangement of topics it generally appears as one of the necessary consequences flowing from the independence of nations, and Phillimore considers it a self-evident proposition for which it is unnecessary to cite authorities. Nevertheless the practice of nations forbids the doctrine to be stated without limitation. Interference has been sanctioned, according to Phillimore, either in the purely domestic concerns of a nation, or with respect to its foreign relations and territorial acquisitions. The first kind of interference has been justified on the plea of self-defence, as when the decree of the French Convention of 1792, promising aid to all peoples who wished to recover their liberty, was treated as a declaration of war on all existing constitutions. Interference to prevent effusion of blood, or put an end to a state of anarchy from which the interests of other nations necessarily suffer, has also been justified, as when England, France, and Russia interfered between Turkey and its rebellious subjects in 1827. On the whole, the right of intervention has been discredited in international law, and the anomalous condition of the Turkish empire has almost alone in recent times given occasion for its exercise. The ground that reversionary rights of a particular family to the throne of a country justify foreign interference with legislative changes of the succession can no longer be maintained. Nor is it necessary to discuss any such pretended right as that of putting down new Governments which have established themselves by revolution. The same kind of interference is illustrated by the principle of the balance of power which is thus enunciated by Dr Woolsey—that any European state may be restrained from pursuing plans of acquisitions or making preparations looking toward future acquisitions which are judged to be hazardous to the independence and national existence of its neighbours. According to the same authority, it applies only to European states and their acquisitions in Europe, and does not extend to predominant power on the sea. It is not so much a rule of international law as a maxim of policy which has from time to time united European nations against the dangerous ambitions of one of their number. The “Monroe doctrine” of the United States is of a similar character, being directed against the interference of European states in the affairs of the American continent. The declaration that no European power can be permitted to acquire territory on the American continent is, according to Woolsey, not a principle of the national policy of the United States.

Independent states are said to be equal in international law, because, says Phillimore, it is contrary to the nature of an independent state to be in servitude to another. The proposition negatives any claim of precedence on the part of one or more states in international rank, and asserts that all states equally are entitled to the benefit of international rules. No difference in constitution affects this equality, a republic being the equal of a kingdom, and a kingdom of an empire. Beyond this it can hardly be stretched. It is consistent with conventional inequalities in the reciprocal treatment of nations, and with the habitual recognition in Europe at least of the predominance of the Great Powers. Phillimore deduces from the principle of equality the following rights—(1) the right to protect subjects resident in other countries, (2) the right to recognition, (3) the right to external marks of honour, and (4) the right to enter into treaties. As to the first of these, it may be laid down that a state has cause of complaint if its subjects in foreign countries are denied ordinary justice.

States in relation to the territories occupied by them are treated on the footing of proprietors in law. As between nations each is the absolute owner of its dominions, and the principles applicable to their ownership are taken, as already said, from the Roman law of things. For example, the modes of acquiring territory in international law are said to be four. (1) The first is occupation of land not already occupied (res nullius). Mere discovery unaccompanied by beneficial use and occupation will not give a title. (2) The second is prescription or mere possession for a considerable length of time, jurists on the whole are agreed in admitting this title, although they refrain from attempting to fix a period of prescription. These have been called original modes of acquisition, while secondary or derivative modes are (3) gift, purchase, or treaty, and (4) conquest in war. With reference to these distinctions it may be observed that the overruling consideration is actual possession as a matter of fact. Sovereignty exercised de facto over any territory makes it the territory of the sovereign state. This is a deduction of what...