(a.) The Customary Law of Nations, including those rules which are deduced from usage and precedent.'

(b.) The Conventional Law of Nations, including those rules which are based upon, or deduced from, the consent of states as expressed in the treaties and conventions entered into by them.'

THE PARTIES TO INTERNATIONAL LAW

The parties to international law are sovereign states. In the fullest acceptation of the term it prevails only among the Christian states of Europe and those originally colonized by them in America and elsewhere. This is due to the fact that these states have had a common historical development, and recognize the same, or nearly the same, standards of law and morals. The area over which it operates, however, is slowly extending. Turkey became a party to it in 1856, and it is steadily gaining recognition in China, Japan, and other Asiatic states, though its acceptance in those countries can never be so complete as in the Western nations of Europe and America.'

References. The origin of the science of international law and its historical development have been made the subject of treatment by many writers, both English and Continental. The earliest English work upon this subject is that of Ward, whose “Inquiry into the Foundation and History of the Law of Nations in Europe " appeared in 1795. Wheaton's "History of the Law of Nations" is the fullest and in many respects the most satisfactory work of the kind in the English language. To a certain extent Ward and Wheaton supplement each other. The legal

'Holtzendorff, § 25; Manning, pp. 78-85; I Halleck, chap. ii. §§ 8, 9: I Phillimore, §§ 41-45.

Wheaton, Int. Law, § 9; I Halleck, chap. ii. §§ 7, 8; Vattel, prelim. chap. §§ 24, 25; Creasy, § 79: Manning, pp. 86, 87; Lawrence, § 63; I Phillimore, chaps. v. and vi. § 49-54; I Twiss, pp. 148-150.

Lawrence, Int. Law, § 42; Wool

sey, § 5; Wildman, p. 38; Klüber, §§ 1,2; Heffter, § 1; Walker, Manual, pp. 1-7; I Twiss, §§ 1, 2; Dana's Wheaton, § 16; Hall, §§ 1, 2; Bluntschli, liv. ii. § 17; I Ferguson, § 16. For a discussion of the position of China in international law, see vol. xvii. Revue de Droit International, p. 504.

and historical works of Hallam, Freeman, Stephen, Amos, and Maine in English, and of Mommsen, Ranke, and Ihne in German, have contributed to throw much light upon the history of society and institutions, and it is impossible to understand the development of international law without some knowledge of the historical development of the states and societies of whose relations with each other international law is but the record. Most works upon the law of nations contain, in their introductory chapters, more or less full accounts of the history of the science. Among them may be mentioned those contained in Halleck, chaps. i. ii. ; G. F. De Martens, §§ 1-15; Phillimore, introduction and chaps. iii.-ix.; Heffter, §§ 1-13; Hall, introduction and p. 2, note; and Laurent, "Droit de Gens," and "Etudes sur l'Histoire de l'Humanité," liv. ii., chaps. i.-iii.; liv. iii., chaps. i.-iv.; liv. iv., chaps. i. ii. The profound influence exerted by the Roman law upon the development of the science is now fully appreciated. For a discussion of the question, see Maine, "Ancient Law," pp. 92-108; Amos, "Science of Law," pp. 332341; Morey, "Outlines of Roman Law," pp. 207-214; Lawrence, “Principles of International Law," chap. iii. §§ 30-41; and Westlake's "International Law," chaps. ii.-v. The principal attempts to codify the rules of international law are those undertaken by David Dudley Field in the United States, and Professor Bluntschli in Germany.'

"

General Bibliography of the Subject of International Law. For a full bibliography of the subject of international law, see G. F. De Martens, Précis du Droit de Gens," pp. 357-441; Klüber, "Droit de Gens," pp. 419-468, and Holtzendorff, "Introduction au Droit de Gens." For a similar work in English, see Woolsey's "International Law," appendix i. pp. 413-429.

1 See also vol. xxi. Revue de Droit International, p. 521.

CHAPTER II

STATES AND THEIR ESSENTIAL ATTRIBUTES: SOVEREIGN. TY, GOVERNMENT, TERRITORY

State: Nation. A state is a society of persons having a permanent political organization, and exercising within a certain territory the usual functions of government.'

The terms state and nation are by no means synonymous. The latter involves the idea of a community of race or language, the former is applied to a society of men organized under some form of government and occupying a fixed territory. A nation may furnish a contingent of population to several states. There is a Polish population in Austria, Russia, and Prussia; a German population in Prussia and Austria; on the other hand, the Austrian, Russian, and Ottoman empires include several distinct nationalities. As applied to societies of men, the term state represents an artificial, the term nation a natural, division. In recent times the tendency to reorganize states upon a national basis has been very marked. The movements within the present century which have resulted in quite a large measure of national unity in Germany and Italy are illustrations of this tendency.'

Citizens: Subjects. The members of this society, or the individual units whose association forms the body politic known as the state, are called its citizens or subjects; the

1 Creasy, pp. 93-99, 112-118; Wheaton, §§ 17, 33; Vattel, liv. i. chap. i. § 1; Maine, Int. Law, pp. 33, 54.74; Hall, §§ 1, 2; Manning, p. 92; Pomeroy, §§ 47-56; Woolsey, § 36; Klüber, § 20; Bluntschli, $$ 17-27; I De Martens, § 16; I Phil

limore, §§ 63-65; I Pradier-Fodéré, §§ 45-68; Wildman, p. 39; Lawrence, § 43; Heffter, §§ 15-18.

I Halleck, chap. iii. § 2; Wheaton, 17; Pomeroy, § 47; Bowen, $9; I Pradier-Fodéré. §§ 45–68, 69– 81; I Phillimore, §§ 61-65.

former term being used in states having republican forms of government; the latter in those in which monarchical institutions exist. The duties and privileges of citizenship are determined, as will presently be seen, in part by municipal, and in part by international law.'

Government. The government of a state is the outward, visible expression of its sovereignty; it is also the agency by means of which its sovereign powers are exercised, and through which it maintains intercourse with other states of the civilized world. It speaks and acts through agents, called public officers, whose powers are exercised, in behalf of the community at large, in accordance with the requirements of its constitution and laws. Through one of its departments or offices, that of State, or Foreign Affairs, its intercourse with other states is conducted.

Kinds of Government. A constitutional government is one in which the powers of sovereignty are defined and limited in accordance with the principles of a fundamental law called a constitution. None of the modern Christian states that acknowledge the sanctions of international law can be said to be absolutely without a constitution or fundamental law of some sort. There may be no substantial guarantees of individual right or of personal freedom; indeed, such rights may not exist, or may be restricted within very narrow limits. It may be a formal written instrument, as in the United States; it may be in great part unwritten, as is the case with the British constitution; or, as in many Continental states of Europe, it may be embodied in the municipal law, from which those principles which are of a fundamental character may be deduced and determined. In some form it must exist. Without such

1 Vattel, liv. i. chap. xix. § 212; Pomeroy, § 171. For a discussion of the right of suffrage from the point of view of municipal or constitutional law, see Cooley, Constitutional Law, pp. 259-268; see, also, the articles on political suffrage, by M. Henri Pascard, in vol.

xxiii. of the Revue de Droit International, pp. 441-474; vol. xxiv. pp. 69-99; vol. xxvi. pp. 51-75, 269-288. 2 Vattel, iv. i. chap. 1. §§ 2, 3: Klüber, $$ 30. 53; I De Martens, §§ 23-28; Hall, § 2; Heffter, § 16; Lorimer, pp. 203-210.

a body of fundamental principles no modern government could be carried on.'

An absolute government, on the other hand, is one in which no limitations have been imposed upon the sovereign; where such limitations exist, they usually appear in some form of representative institutions, the members of which are chosen by an exercise of the right of suffrage on the part of its citizens or subjects; a government is also said to be absolute in form when the duties, privileges, and immunities of citizenship have not been made the subject of formal constitutional guarantees.'

Classification. Governments are also classified according to the source of sovereign power, or the manner in which it is exercised in each.'

A monarchy is a government in which the sovereign powers are concentrated in a single person. An absolute monarchy is one in which the concentration of sovereign powers is real. A limited monarchy is one in which the royal authority is restricted in its exercise, usually by representative institutions of some kind. These restrictions may be so extensive in character as to reduce the sovereign to the condition of an hereditary executive. This is the case in England.

An aristocracy is a government in which the sovereign powers are held to reside in a class. If the ruling class constitutes a small proportion of the population the resulting government is called an oligarchy.

A democracy is a government in which the sovereign powers are held to reside in all the people, and are exercised by them directly.

A republic, or, as it is sometimes called, a democratic republic, is a government in which the sovereign power resides in the people, but is exercised by representatives elected by them for that purpose.

'I De Martens, § 24; Klüber, §§ 30, 51, 52; I Lorimer, pp. 208-215; Creasy, §§ 102-106; Ortolan, liv. i. pp. 10-13; Heffter, § 16.

2

I De Martens, § 25; I Lorimer, pp. 211, 212.

'Klüber, §§ 30-35; I De Martens, §§ 23-28; I Lorimer, pp. 203-212; Creasy, §§ 100-103; I Pradier-Fodéré, § 125.