(3) International Law is not "Positive nor Proper Law" in the sense, 1856 the Porte was formally admitted within the European Concert. China and Japan have been for centuries independent states, but are only now knocking at the entrance gates of the International Circle. (3) International Law, consisting in rules of conduct which regulate the conduct of independent states inter se, though true law, is not, as law, of the same order as ordinary municipal law. A law in the sense of the common lawyer is that which Austinian Austin terms a Positive Law, a command or rule imposed by a determinate sovereign to a subject or subjects, and enforceable by a determinate sanction in the case of non-compliance. International Law lacks alike determinate lawgiver, determinate sanction and determinate enforcing court; we have as yet neither regularly and permanently appointed international judge nor permanently appointed international police, and war, the exercise by an indeterminate power of that open force which it should be the prime object of the International lawyer to suppress, is in practice the ultimate sanction upon non-compliance with the dictates of the international code. John Austin and his followers, confining the term "law" to what they style "Proper Law," to rules emanating from and enforced by a determinate lawgiver, refuse the name of "law" altogether to the rules regulating the international conduct of independent Governments. This narrow and arbitrary limitation of the term finds no support in history, in philology, or in customary usage, and lies open to the fatal practical objection that it must tend to popularise the notion that the rules of International Law are but of imperfect obligation, and so to encourage international lawbut is real lessness. But it remains, nevertheless, a fact that International Law, being the law of independent states, is law of an unique character: it derives its binding authority from the consent of its subjects, from regular observance and from its intrinsic excellence: its basis is not determinate and instant fear, but the voluntary consent of law-abiding and Clark, Practical Science of chap. I. law of an unique character. social sentiment, a consent evidenced by actual practice. International Law is law observed, not law emanating from, and enforced by, determinate sanctioning authority. (4) Inter national (4) International Law being based upon the consent of nations as set out in practice, its dictates must be sought in Law History, the record of practice. consisting in rules of practised, The authorities of International Law are the pages the historian and his original sources in diplomatic correspondence, treaties and state-papers in general, the reports of international Courts of Arbitration and of municipal courts dealing with international questions, and all other documents which authoritatively set out the course of wars, negotiations, and other international incidents. The pages of the jurist are authoritative only in so far as they contain a true record and correct interpretation of the tendencies of actual historic facts, and express opinions which secure international adoption. its autho rities are the records of prac tice. funda (5) International Law being the code of modern civilised (5) The states, its fundamental notion is the conception of Territorial mental Sovereignty. conception of modern national that of Sove reignty. The explanation of this fact is sufficiently evident. InterInternational Law consists in rules of conduct observed Law is by independent states and by communities temporarily Territorial endowed with the qualities of independent states; and, just as the conduct of an individual, undirected by the teaching of compelling power, will be the compound result of the natural working of his native moral and physical endowment, and of the action of the external influences of his environment operating thereon, so the main guiding principles of the conduct of independent communities must necessarily be sought in, (1) the natural characteristics of those communities, and (2) the moral influences arising from their surroundings. And the essential characteristic of the modern state is territorial sovereignty. The ruler of antiquity was the head of a people, the chieftain of a tribe, or he preferred a claim to universal dominion, to world sovereignty, but the modern state is a society which possesses Maine, Ancient Law, p. 103. Wharton, Dig. § 1. The progress of International Law is moral sovereignty, that is, combines governing power with independence, within certain geographical limits. Territorial sovereignty is the one primary and all essential framework of modern State-being. On the lines of territorial sovereignty, therefore, must be constructed any historically sound system of International Law. But while territorial sovereignty must constitute the skeleton framework of International Law, the living and progressive element must be sought in living human influences. assured by Modern states are indeed independent, but they are also influences, interdependent. While nations recognise the conception of territorial sovereignty as containing the main general principles of their just mutual dealings, they are, as being composed of men, obnoxious to external moral influences: pendence in a word, nations are moral entities, and enlightened selfstates. interest playing its part in the field of international inter working particularly through the interde of civilised course, by the needs of that intercourse, if not by the operation of the forces of pure benevolence, the strict principles of territorial sovereignty and its corollaries must be at times affected and relaxed. The progressive improvement of human nature necessarily involves the progressive development of International Law. PART II. INTERNATIONAL LAW OF NORMAL RELATIONS (PEACE). CHAPTER I. EQUALITY OF STATES. The general principles of Public Inter § 2. The international legal relations of States in the time of Peace are mainly regulated by three rules which are derived from the fundamental conception of Territorial Sovereignty. From the conception of territorial sovereignty may be national derived naturally and clearly three broad principles, viz. :— I. All States are formally equal. Law derived from the idea of II. No State may legally interfere in the purely Territorial internal affairs of another State. III. Territory and Jurisdiction are coextensive. These principles constitute the three great general rules of the Public International Law of Peace. RULE I. ALL STATES ARE FORMALLY EQUAL. § 3. "All Sovereign States are equal in the eye of International Law, whatever may be their relative power." Sove reignty. All sovereign states are equal in Elements, I. Wheaton, Lawrence, The applicability of this doctrine to modern international status, relations has been lately challenged on the ground that it conflicts with the present general acknowledgment of the Primacy of certain Great Powers in the field of European politics. The Primacy of the Great Powers is indeed an Law, Essay accepted fact. The four Powers, Great Britain, Austria, though Prussia and Russia, having been drawn into close alliance not equal ternational V. in power. The of the Great Powers Hertslet, Map of Europe, 1. 564-574. Hertslet, Map of Europe, I. 572. T. J. to resist the advances of Revolutionary France and the ambition of Napoleon, found it necessary, after the successful termination of the struggle, to admit their late adversary to their councils, and at the Congress of Aix-la-Chapelle in 1818, accordingly, were laid the hitherto abiding foundations of the Concert of Europe. By secret protocol signed on November 15, 1818, the Five Powers agreed to an union for "the maintenance of the treaties and the support of the rights established by them." "If," ran the terms of the agreement, "to attain these ends the Powers which have concurred in the present act should deem it necessary to establish different reunions, either among the sovereigns themselves or their ministers, to treat of subjects in which they have a common interest, the time and place of such assemblages shall be previously arranged by diplomatic communications; and in the event of such reunions having for their object the condition of other states in Europe, they shall not take place except in pursuance of a formal invitation to those by whom these states are directed, and under an express reservation of their right to participate directly or by their representatives." This agreement has been singularly fertile of result. Congress after Congress has been held in Europe, and the map of the Continent has largely changed under the sanction of the Great Powers. Greece and Belgium, Servia and Roumania owe their present legal being to the European Concert, while the Turk himself has remained in Constantinople by force of the same influence. It may be that this Concert "is probably destined to become more and more effective as the desire for a peaceful settlement of their quarrels increases among the nations, and it may in some far distant time develope into that Supreme Court of International Appeal for which statesmen, philosophers and divines have longed throughout the last three centuries," but at present, although the various states of the world are notoriously unequal in point of actual force, and although |